Maintenance Orders Act, 1974

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Number 16 of 1974

MAINTENANCE ORDERS ACT, 1974

ARRANGEMENT OF SECTIONS

PART I

Preliminary and General

PART II

Reciprocal Recognition and Enforcement of Maintenance Orders

Number 16 of 1974

MAINTENANCE ORDERS ACT, 1974

AN ACT TO MAKE PROVISION IN RELATION TO THE RECIPROCAL RECOGNITION AND ENFORCEMENT OF MAINTENANCE ORDERS AS BETWEEN THE STATE AND NORTHERN IRELAND, ENGLAND AND WALES AND SCOTLAND. [9th July, 1974]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary and General

Short title.

1.—This Act may be cited as the Maintenance Orders Act, 1974.

Commencement.

2.—This Act shall come into operation on such day as the Minister for Justice by order appoints.

Interpretation.

3.—(1) In this Act—

“appropriate authority” means the person who, in a reciprocating jurisdiction, has a function corresponding to that of the Master of the High Court under section 19 (3);

“enforcement order” has the meaning assigned to it in section 6;

“maintenance creditor”, in relation to a maintenance order, means the person entitled to the payments for which the order provides;

“maintenance debtor”, in relation to a maintenance order, means the person liable to make payments under the order;

“maintenance order” means—

(a) an order (including an affiliation order or an order consequent thereon) which provides for the periodical payment of sums of money towards the maintenance of any person, being a person whom the person liable to make payments under the order is, in accordance with the law of the jurisdiction in which the order was made, liable to maintain, or

(b) an affiliation order or an order consequent thereon, being an order which provides for the payment by a person adjudged, found or declared to be a child's father of expenses incidental to the birth of the child or, where the child has died, of the funeral expenses,

and, in the case of a maintenance order which has been varied, means that order as varied;

“maintenance proceedings” means proceedings in relation to the making, variation or revocation of a maintenance order;

“notice of the institution of the proceedings”, in relation to maintenance proceedings, means—

(a) where the proceedings were instituted in the State, a copy of the summons or other originating document served in the State or a notice of the issue of the summons or other originating document,

(b) where the proceedings were instituted in Northern Ireland or in England and Wales, a copy of the summons or other originating document served in a reciprocating jurisdiction, a notice that a provisional maintenance order has been made or a notice of an application to a court for a maintenance order,

(c) where the proceedings were instituted in Scotland, a copy of the writ, summons or other originating document, together with a copy of the warrant for service and a copy of the citation;

“reciprocating jurisdiction” means Northern Ireland, England and Wales, or Scotland;

“revocation”, in relation to a maintenance order, includes the discharge of such order or the termination of a weekly sum payable thereunder and cognate words shall be construed accordingly.

(2) For the avoidance of doubt, a maintenance order includes—

(a) such an order which is incidental to a decision as to the status of natural persons,

(b) such an order obtained by or in favour of a public authority in connection with the provision of maintenance or other benefits in respect of a person whom the maintenance debtor is, in accordance with the law of the jurisdiction in which the order was made, liable to maintain, and

(c) a provision in an agreement in writing between spouses for the making by one spouse of periodical payments towards the maintenance of the other or of any of their children or of any child to whom either is in loco parentis, being an agreement which has been embodied in or approved by a court order or made a rule of court.

(3) A reference in this Act to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended.

(4) A reference in this Act to a subsection, paragraph or other division is to the subsection, paragraph or other division of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Scope of Act.

4.—This Act shall have effect in relation to maintenance orders whether made before or after the commencement of this Act but shall not have effect in relation to arrears accrued before such commencement.

Expenses.

5.—The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II

Reciprocal Recognition and Enforcement of Maintenance Orders

Maintenance orders made in a reciprocating jurisdiction

Recognition and enforcement.

[C 31, 32.1, 33.3, 34.1 (part) and 35]

6.—(1) Subject to and in accordance with this Act, a maintenance order made in a reciprocating jurisdiction and enforceable therein shall be recognised and enforceable in the State when, on receipt by the Master of the High Court from an appropriate authority of a request for the enforcement of the order, an order is made under subsection (4).

(2) The documents referred to in section 13 (1) shall be attached to the request.

(3) The maintenance debtor shall not, at this stage, be entitled to make any submission on the request.

(4) The Master shall consider the request privately and shall make an order (in this Act referred to as an enforcement order) for the enforcement of the maintenance order to which the request relates, unless it appears to him from the documents before him or from his own knowledge that its recognition and enforcement is prohibited by section 9.

(5) The Master shall cause his decision on the request to be brought to the notice of the maintenance creditor and, if an enforcement order has been made, shall cause notice thereof to be served on the maintenance debtor.

(6) (a) The notice to be served on a maintenance debtor under subsection (5) shall include a statement of his right of appeal under section 7 (1), the restriction imposed by section 7 (3) on the taking of measures of execution against his property and the provisions of section 9.

(b) Service of the notice may be effected personally or in any manner in which service of a superior court document within the meaning of section 23 of the Courts Act, 1971 , may be effected.

Appeal against enforcement order.

[C 36.1, 37.1, 38.1, 39.1 and 37.2]

7.—(1) Where an enforcement order is made, the maintenance debtor may appeal to the High Court against the order within one month of service of notice thereof on him.

(2) The Court may, on the application of the appellant, stay the proceedings if either enforcement of the maintenance order has been suspended in the reciprocating jurisdiction in which it was made pending the determination of any form of appeal or the time for an appeal has not yet expired and enforcement has been suspended pending the making of an appeal; in the latter case, the Court may lay down the time for which it will stay the proceedings.

(3) During the time allowed for an appeal under subsection (1) and until the appeal is determined, no measures of execution may be taken against the property of the maintenance debtor other than measures ordered by a court and designed to protect the interests of the maintenance creditor.

(4) The judgment given on the appeal may be contested only on a point of law.

Appeal against refusal of enforcement order.

[C 40.1, 40.2 (part) and 41]

8.—(1) If a request to which section 6 (1) relates is refused, the maintenance creditor may appeal to the High Court against the refusal.

(2) Notice of the appeal shall be served on the maintenance debtor.

(3) The judgment given on the appeal may be contested only on a point of law.

Prohibition of recognition and enforcement.

[C 27 (part) and 34.2 (part)]

9.—A maintenance order made in a reciprocating jurisdiction shall not be recognised or enforceable if, but only if—

(a) recognition or enforcement would be contrary to public policy,

(b) where it was made in default of appearance, the person in default was not served with notice of the institution of the proceedings in sufficient time to enable him to arrange for his defence, or

(c) it is irreconcilable with a judgment given in a dispute between the same parties in the State.

Jurisdiction, substance not to be examined.

[C 28.3 (part), 29 and 34.3]

10.—In any proceedings under this Act for the recognition and enforcement of a maintenance order—

(a) the jurisdiction of the court which made the order may not be examined, and

(b) the order may not be examined as to its substance.

Partial enforcement.

[C 42]

11.—(1) Where, in a maintenance order made in a reciprocating jurisdiction, there are provisions in respect of which enforcement cannot be ordered, an enforcement order may be made in respect of any other provision of the maintenance order.

(2) Where partial enforcement of a maintenance order is sought in a request to which section 6 (1) relates, the enforcement order may provide accordingly.

Restriction on security for costs.

[C 45]

12.—No security or deposit, however described, may be required from a person seeking enforcement of a maintenance order made in a reciprocating jurisdiction solely on the ground that he is not residing in the State.

Documents required to accompany request for enforcement order.

[C 46, 47 and 48]

13.—(1) Subject to subsection (2), the documents which shall be attached to a request to which section 6 (1) relates are—

(a) a certified copy of the maintenance order concerned,

(b) in the case of a maintenance order made in default of appearance, the original or a certified copy of the document which establishes that notice of the institution of the proceedings was served on the person in default,

(c) documents which establish that the order is enforceable according to the law of the jurisdiction in which it was made and that notice of the order has been served on the maintenance debtor outside the State or sent by registered post to him at an address within the State, and

(d) where appropriate, a document showing that the maintenance creditor is receiving legal aid in that jurisdiction.

(2) If the documents specified in subsection (1) (b) or (1) (d) are not produced, the Master of the High Court may allow time for their production, accept equivalent documents or, if he considers that there is sufficient information available, dispense with their production.

(3) If the Master so requires, a translation of the documents shall be produced; the translation shall be certified as correct by a person competent to do so.

(4) Where the Master receives a document containing a request for the enforcement in the State of a maintenance order made in a reciprocating jurisdiction and purporting to have been transmitted by or at the instance of an appropriate authority, he may, without further proof, accept the document as being a request to which section 6 (1) relates and as having been received from an appropriate authority.

(5) A document which purports to be—

(a) a copy of a maintenance order made by a court in a reciprocating jurisdiction, or of the document specified in subsection (1) (b), and to be certified by a judge, magistrate or officer of that court to be a true copy thereof,

(b) any other document specified in subsection (1), or any equivalent document to which subsection (2) relates, and to be signed by a judge, magistrate or officer of such court, or

(c) a translation required under subsection (3) and to be certified as correct by a person competent to do so,

may, without further proof, be accepted by the Master as being such copy, document or translation, as the case may be.

Enforcement by District Court.

14.—(1) In this section “enforceable maintenance order” means—

(a) a maintenance order in respect of which an enforcement order has been made, or

(b) in the case of a maintenance order to which section 11 relates, the maintenance order to the extent to which it is ordered to be enforced in accordance with that section.

(2) (a) The District Court shall have jurisdiction to enforce an enforceable maintenance order and for that purpose the order shall, from the date on which the maintenance order was made, be deemed to be an order made by the District Court under section 1 of the Married Women (Maintenance in case of Desertion) Act, 1886, or section 3 of the Illegitimate Children (Affiliation Orders) Act, 1930 , as the case may be.

(b) Paragraph (a) shall have effect notwithstanding that any amount payable under the enforceable maintenance order concerned exceeds the maximum amount which the District Court has jurisdiction to award under the said Acts.

(3) Notwithstanding anything contained in the Acts referred to in subsection (2), as extended by that subsection, an enforceable maintenance order may not be varied or revoked by a court in the State.

(4) Where an enforceable maintenance order is varied by a court in a reciprocating jurisdiction and a certified copy of the variation order is sent to the District Court, the enforceable maintenance order shall, from the date on which the variation order takes effect, be enforceable in the State as so varied.

(5) Where an enforceable maintenance order is revoked by a court in a reciprocating jurisdiction and a certified copy of the revocation order is sent to the District Court, the enforceable maintenance order shall, from the date on which the revocation order takes effect, cease to be enforceable in the State except in relation to any arrears accrued at that date.

(6) Any arrears under an enforceable maintenance order and any costs in respect of such order awarded against the maintenance debtor by a court in a reciprocating jurisdiction shall, for the purposes of subsection (2) and subject to section 4, be regarded as a sum payable by virtue of an order made under the enactments referred to in the said subsection (2), as extended by that subsection.

(7) The jurisdiction vested in the District Court by this section shall be exercised by the justice of the District Court for the time being assigned to the district court district in which the maintenance debtor under the maintenance order concerned resides.

(8) (a) Any sum payable by virtue of an enforceable maintenance order shall, notwithstanding anything to the contrary therein, be paid by the maintenance debtor to the district court clerk for the district court area in which the debtor for the time being resides for transmission to the maintenance creditor or, where a public authority has been authorised by the creditor to receive such sum, to that public authority.

(b) The district court clerk shall, if any sum payable by virtue of an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, make an application under section 8 (which relates to the enforcement of certain maintenance orders) of the Enforcement of Court Orders Act, 1940 , and for that purpose the references in that section (other than subsections (4) and (5)) to the applicant shall be construed as references to the district court clerk.

(c) Nothing in this subsection shall affect the right of a maintenance creditor to proceed for the recovery of any sum payable to a district court clerk under paragraph (a).

(9) A maintenance debtor under an enforceable maintenance order shall give notice to the district court clerk for the district court area in which he has been residing of any change of address and, if he fails without reasonable cause to do so, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding twenty pounds.

(10) In this section, a reference to a district court clerk shall, where there are two or more district court clerks for the district court area concerned, be construed as a reference to any of those clerks.

(11) For the purposes of this section, the Dublin Metropolitan District shall be deemed to be a district court area.

Service of certain documents.

15.—Service of a document relating to maintenance proceedings in a reciprocating jurisdiction which is received by the Master of the High Court from an appropriate authority for service on the person against whom the proceedings have been instituted may be effected in any manner in which service of a District Court document within the meaning of section 7 of the Courts Act, 1964 , may be effected.

Saving.

16.—Nothing in this Act (other than section 9) shall be taken as preventing the recognition of a maintenance order which is made in a reciprocating jurisdiction and which, apart from this Act, would be recognised in the State.

Maintenance orders made in the State

Jurisdiction where defendant resides in reciprocating jurisdiction and transmission of documents.

17.—(1) Where proceedings are instituted under the Married Women (Maintenance in case of Desertion) Act, 1886, or the Illegitimate Children (Affiliation Orders) Act, 1930 , against a person residing in a reciprocating jurisdiction for the making, variation or revocation of a maintenance order, the court shall have the like jurisdiction to hear and determine the proceedings as it would have if that person were residing in the State and a summons to appear before the court had been served on him.

(2) The jurisdiction conferred by subsection (1) shall, in so far as it vests in the District Court, be exercised by the justice of the District Court for the time being assigned to the district court district in which the person instituting the proceedings resides.

(3) (a) On the institution of proceedings to which subsection (1) relates, the registrar or clerk of the court shall send the documents specified in paragraph (b) to the Master of the High Court, who shall transmit them to the appropriate authority in the reciprocating jurisdiction concerned if it appears to him that the statement referred to in paragraph (b) (ii) gives sufficient information to justify that being done.

(b) The documents referred to in paragraph (a) are—

(i) notice of the institution of the proceedings, which shall include a statement of the substance of the complaint or application, as the case may be,

(ii) a statement signed by the registrar or clerk giving such information as he possesses as to the whereabouts of the person against whom the proceedings have been instituted,

(iii) a statement signed by the registrar or clerk giving such information as he possesses for facilitating the identification of that person,

(iv) where available, a photograph of that person, and

(v) any other relevant document.

Restriction on making, etc., of maintenance orders.

18.—In any proceedings under the enactments referred to in section 17 (1) against a person residing in a reciprocating jurisdiction, a maintenance order shall not be made, varied or revoked unless—

(a) notice of the institution of the proceedings has been served on him in accordance with the law of that jurisdiction and in sufficient time to enable him to arrange for his defence, and

(b) the notice included a statement of the substance of the complaint or application, as the case may be.

Transmission of maintenance order to reciprocating jurisdiction for enforcement.

19.—(1) Where the maintenance debtor under a maintenance order made in the State is residing in a reciprocating jurisdiction, the maintenance creditor may apply to have the order transmitted to that jurisdiction for enforcement.

(2) The application shall be made to the registrar or clerk of the court which made the order.

(3) (a) If it appears to the registrar or clerk that the maintenance debtor is residing in a reciprocating jurisdiction,

(i) notice of the order shall be sent by him to such debtor by registered post, and

(ii) the documents specified in paragraph (b) shall be sent by him to the Master of the High Court, who shall transmit them to the appropriate authority in that jurisdiction if it appears to him that the statement referred to in paragraph (b) (v) gives sufficient information to justify that being done.

(b) The documents referred to in paragraph (a) (ii) are—

(i) a certified copy of the maintenance order,

(ii) in the case of a maintenance order made in default of appearance, the original or a certified copy of the document which establishes that notice of the institution of the proceedings was served on the person in default,

(iii) a certificate signed by the registrar or clerk certifying that the maintenance order is enforceable in the State and that notice thereof has been sent to the maintenance debtor by registered post,

(iv) a certificate signed by the registrar or clerk of any arrears under the order,

(v) a statement signed by the registrar or clerk giving such information as he possesses as to the whereabouts of the maintenance debtor,

(vi) a statement signed by the registrar or clerk giving such information as he possesses for facilitating the identification of the maintenance debtor,

(vii) where available, a photograph of the maintenance debtor, and

(viii) any other relevant document.

Evidence

Obtaining of evidence from reciprocating jurisdiction.

20.—A court may, for the purpose of any proceedings under this Act or proceedings to which section 17 (1) relates, send to the Master of the High Court for transmission to the appropriate authority in a reciprocating jurisdiction a request for the taking in that jurisdiction of the evidence of a person residing therein in relation to such matters as may be specified in the request.

Taking of evidence for court in reciprocating jurisdiction.

21.—(1) Where, for the purpose of any maintenance proceedings in a court in a reciprocating jurisdiction or proceedings in such court for the enforcement of a maintenance order, a request is received by the Master of the High Court from an appropriate authority for the taking in the State of the evidence of a person residing therein relating to matters specified in the request, the Master shall request a justice of the District Court to take such evidence.

(2) The justice shall, after giving notice of the time and place at which the evidence is to be taken to such persons and in such manner as he thinks fit, take the evidence and cause a record thereof to be sent to the Master for transmission to the appropriate authority from which the request was received.

(3) The justice shall have the same powers in relation to compelling the attendance of persons and the production of documents and in relation to the taking of evidence as the District Court has on the hearing of an action.

(4) A person whose evidence is requested to be taken under subsection (1) shall, in relation to the taking of the evidence, have the same rights as he would have on the hearing of an action in the District Court.

(5) Where any person, not being a party to proceedings referred to in subsection (1), attends pursuant to a request under that subsection, the justice concerned may order that there shall be paid to him out of public funds such sum by way of expenses as the District Court may order to be paid in respect of a witness on the hearing of an action.

Evidence in proceedings.

22.—(1) In any proceedings under this Act or proceedings to which section 17 (1) relates, unless the court sees good reason to the contrary—

(a) a document containing a request for the enforcement in the State of a maintenance order made in a reciprocating jurisdiction and purporting to have been transmitted to the Master of the High Court by or at the instance of an appropriate authority may, without further proof, be admitted as evidence that it is a request to which section 6 (1) relates and has been received by the Master from an appropriate authority;

(b) a document which purports to be a copy of a maintenance order, or of an order varying or revoking a maintenance order, made by a court in a reciprocating jurisdiction and to be certified by a judge, magistrate or officer of that court to be a true copy thereof may, without further proof, be admitted as evidence of the order;

(c) a statement contained in a document which purports to be certified by a judge, magistrate or officer of a court in a reciprocating jurisdiction to be—

(i) a document setting out or summarising evidence given in proceedings in that court or evidence taken in that jurisdiction for the purpose of maintenance proceedings in the State, whether in response to a request made under section 20 or otherwise, or a true copy of such document,

(ii) a document which has been received in evidence in proceedings in that court, or a true copy of a document so received, or

(iii) a true copy of the document specified in section 13 (1) (b),

may, without further proof, be admitted as evidence of any fact stated therein to the same extent as oral evidence of that fact by the maker of the statement would be admissible in those proceedings;

(d) a statement contained in a document which purports to be signed by a judge, magistrate or officer of a court in a reciprocating jurisdiction and to be—

(i) a document specified in section 13 (1) (other than paragraph (a)),

(ii) an equivalent document to which section 13 (2) relates,

(iii) a document which establishes that notice of the institution of proceedings in a reciprocating jurisdiction for the variation or revocation of a maintenance order made in that jurisdiction was served on the person against whom the proceedings were instituted, or

(iv) a certificate of any arrears under a maintenance order,

may, without further proof, be admitted as evidence of any fact stated or certified therein to the same extent as oral evidence of that fact by the maker of the statement would be admissible in those proceedings;

(e) a statement contained in a document which purports to be—

(i) a tax assessment or other statement or certificate relating to tax,

(ii) a statement or certificate of earnings,

(iii) a medical certificate,

(iv) a statement or certificate that a person was employed or was unemployed for a specified period,

(v) a statement or certificate that the notice referred to in section 18 (a) has been served in accordance with the law of the reciprocating jurisdiction concerned,

(vi) a letter written by a party to maintenance proceedings who is residing in a reciprocating jurisdiction, or

(vii) an affidavit or other document made or signed by such a party,

may, without further proof, be admitted as evidence of any fact stated or certified therein to the same extent as oral evidence of that fact by the maker of the statement would be admissible in those proceedings.

(2) The provisions of subsection (1) shall apply to a translation of any document referred to therein if it purports to be certified as correct by a person competent to do so.

(3) A statement which is admissible as evidence by virtue of subsection (1) (d), (1) (e) or (2) may be proved by the production of a copy (authenticated in such manner as the court may approve) of the document which contains the statement or of the material part thereof, whether or not the document is still in existence.

(4) In estimating the weight (if any) to be attached to a statement admitted as evidence by virtue of subsection (1) (c), (1) (d) or (1) (e), regard shall be had to any other evidence available to the court and to any circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, including the question whether the maker of the statement had any incentive to conceal or misrepresent facts and whether or not the statement was made on oath.