Maintenance act, 1994

Act Number28
Enactment Date23 November 1994

Number 28 of 1994


MAINTENANCE ACT, 1994


ARRANGEMENT OF SECTIONS

PART I

Preliminary

Section

1.

Short title.

2.

Commencement.

3.

Interpretation.

4.

Central Authority.

PART II

Recovery of Maintenance (Reciprocating Jurisdictions)

5.

Construction of Part II.

6.

Interpretation of Part II.

7.

Application from reciprocating jurisdiction.

8.

Evidence in proceedings.

9.

Amendment of section 1 of Act of 1988.

10.

Amendment of section 6 of Act of 1988.

11.

Amendment of section 7 of Act of 1988.

12.

Amendment of section 11 of Act of 1993.

PART III

Recovery of Maintenance (Designated Jurisdictions)

13.

Interpretation of Part III.

14.

Application for maintenance from designated jurisdiction.

15.

Application for maintenance in designated jurisdiction.

16.

Evidence in proceedings.

17.

Obtaining of evidence from designated jurisdiction.

18.

Provisional, including protective, measures.

19.

Taking of evidence for proceedings in designated jurisdiction.

PART IV

Provisions Common to Reciprocating and Designated Jurisdictions

20.

Obtaining information on debtor.

21.

Evidence in proceedings.

PART V

Miscellaneous

22.

Enforceability of foreign maintenance orders.

23.

Currency of payments under foreign maintenance orders.

24.

Saving.

25.

Expenses.

FIRST SCHEDULE

Text of Rome Convention

SECOND SCHEDULE

Text of New York Convention


Number 28 of 1994


MAINTENANCE ACT, 1994


AN ACT TO ENABLE EFFECT TO BE GIVEN TO THE CONVENTION BETWEEN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES ON THE SIMPLIFICATION OF PROCEDURES FOR THE RECOVERY OF MAINTENANCE PAYMENTS DONE AT ROME ON THE 6TH DAY OF NOVEMBER, 1990, AND THE CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE DONE AT NEW YORK ON THE 20TH DAY OF JUNE, 1956, AND TO PROVIDE FOR OTHER MATTERS RELATED TO THE RECOVERY OF MAINTENANCE. [23rd November, 1994]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary

Short title.

1.—This Act may be cited as the Maintenance Act, 1994.

Commencement.

2.—This Act shall come into operation on such day or days as the Minister shall fix by order or orders either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

Interpretation.

3.—(1) In this Act, unless the context otherwise requires—

“the Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act, 1976 ;

“the Act of 1988” means the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 ;

“the Act of 1993” means the Jurisdiction of Courts and Enforcement of Judgments Act, 1993 ;

“the Central Authority” has the meaning assigned to it by section 4 ;

“court”, in relation to a jurisdiction other than the State, means any authority competent under the law of that jurisdiction to make an order for the recovery of maintenance;

“designated jurisdiction” has the meaning assigned to it by section 13 ;

“the Minister” means the Minister for Equality and Law Reform;

“the New York Convention” has the meaning assigned to it by section 13 ;

“reciprocating jurisdiction” has the meaning assigned to it by section 6 ;

“the Rome Convention” has the meaning assigned to it by section 6 .

(2) In this Act a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended.

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

(4) In this Act a reference to any enactment includes a reference to that enactment as amended or adapted by any other enactment including this Act.

(5) This Act is without prejudice to the provisions of the Maintenance Orders Act, 1974 .

Central Authority.

4.—(1) (a) The Minister may by order appoint a Central Authority (“the Central Authority”) to discharge the functions required of it under this Act or required of a central authority under the Rome Convention or of a transmitting agency or receiving agency under the New York Convention.

(b) Pending the appointment of a Central Authority the Minister shall discharge its functions, and references in this Act to the Central Authority shall be construed accordingly as references to the Minister.

(c) The Minister may by order amend or revoke an order made under this section.

(2) (a) For the purposes of section 8 of the Enforcement of Court Orders Act, 1940 , of the Acts of 1976, 1988 and 1993 (as amended by this Act) and of this Act the Central Authority shall have authority to act on behalf of, as the case may be, a maintenance creditor or claimant, within the meaning of section 13 (1), and references in those enactments to a maintenance creditor or claimant shall be construed as including references to the Central Authority.

(b) Where the Central Authority so acts, payments of maintenance shall be made directly to the maintenance creditor or claimant unless the Central Authority requests that they be made to a public authority in the jurisdiction where the maintanance creditor or claimant resides.

PART II

Recovery of Maintenance (Reciprocating Jurisdictions)

Construction of Part II .

5.—This Part shall be construed as one with the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993.

Interpretation of Part II .

6.—(1) In this Part—

“the Brussels Convention” means the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (including the Protocol annexed to that Convention), done at Brussels on the 27th day of September, 1968, as subsequently amended, and given the force of law in the State by the Acts of 1988 and 1993 and a reference to an Article of that Convention shall be construed as including a reference to the corresponding Article of the Lugano Convention;

“central authority of a reciprocating jurisdiction” means—

(a) the central authority of such a jurisdiction which has been designated pursuant to paragraph 1 or, where appropriate, paragraph 2 of Article 2 of the Rome Convention, or

(b) an authority of such a jurisdiction with functions corresponding to those exercisable by the Central Authority within the State;

“the Lugano Convention” has the meaning assigned to it by the Act of 1993;

“maintenance creditor” includes any body which, under the law of a reciprocating jurisdiction, is entitled to exercise the rights of redress of, or to represent, the creditor;

“reciprocating jurisdiction” means a Contracting State (within the meaning of the Acts of 1988 and 1993) which is declared by order of the Minister for Foreign Affairs to be a reciprocating jurisdiction;

“the Rome Convention” means the Convention between the member states of the European Communities on the simplification of procedures for the recovery of maintenance payments done at Rome on the 6th day of November, 1990, the text of which in the English language is set out, for convenience of reference, in the First Schedule to this Act.

(2) (a) The Minister for Foreign Affairs may by order declare that any Contracting State (within the meaning of the Acts of 1988 and 1993) specified in the order is a reciprocating jurisdiction.

(b) An order that is in force under this subsection shall be evidence that any state specified in the order is a reciprocating jurisdiction.

(c) The Minister for Foreign Affairs may by order amend or revoke an order under this subsection.

(3) If a judgment or an instrument or settlement referred to in Article 50 or 51 of the Brussels Convention does not relate solely to maintenance, this Part shall apply only to those parts that relate to maintenance.

(4) A word or expression in this Part which is used in the Rome Convention has the same meaning as it has in that Convention and for this purpose the report by Mr. J. Martin and Mr. C. Ó hUiginn on the Convention, a copy of which has been placed in the Oireachtas Library, may be considered by any court when interpreting such word or expression and shall be given such weight as is appropriate in the circumstances.

Application from reciprocating jurisdiction.

7.—(1) The Central Authority may, on receipt of an application for the recognition or enforcement in the State of a maintenance order which has been transmitted by a central authority of a reciprocating jurisdiction, send the application to the Master of the High Court for determination in accordance with section 5 of the Act of 1988.

(2) The Master shall consider the application privately and shall make an enforcement order unless it appears to the Master from the application and accompanying documents or from the Master's own knowledge that its recognition and enforcement are prohibited by the Brussels Convention or the Lugano Convention.

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

(4) (a) The notice to be served on a maintenance debtor under subsection (3) shall include a statement of the provisions of Article 36 (right of appeal against enforcement order) of the Brussels Convention.

(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.

(5) The Master may—

(a) accept an application under...

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