European Communities (Maintenance) Regulations, 2011

JurisdictionIreland
CitationIR SI 274/2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 17th June, 2011.

I, ALAN SHATTER , Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Council Regulation (EC) 4/20091 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations make the following Regulations:

Citation and commencement

1. (1) These Regulations may be cited as the European Communities (Maintenance) Regulations 2011.

(2) These Regulations come into operation on 18 June 2011.

Interpretation

2. (1) In these Regulations, except where the context otherwise requires—

“Act of 1940” means the Enforcement of Court Orders Act 1940 (No. 23 of 1940),

“Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act 1976 (No. 11 of 1976),

“Act of 1994” means the Maintenance Act 1994 (No. 28 of 1994),

“decision” includes an authentic instrument and a court settlement,

“enforcement order” means an order for the recognition or enforcement of all or part of a decision where the order—

(a) is made by the Master of the High Court under Regulation 9, or

(b) is made or varied—

(i) on appeal from a decision of the Master under that Regulation, or

(ii) on appeal from a decision of the High Court on such an appeal,

“enforceable maintenance order” means—

(a) a maintenance order respecting all of which an enforcement order has been made, or

(b) if an enforcement order has been made respecting only part of a maintenance order, the maintenance order to the extent to which it is so ordered to be enforced,

“2007 Hague Protocol” means the Hague Protocol of 23 November 2007 on the law applicable to maintenance applications,

“maintenance” means maintenance within the meaning of the Maintenance Regulation,

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

“maintenance debtor” means, in relation to a maintenance order, the person who is liable to make a payment under the order,

“maintenance order” means a decision relating to maintenance,

“Maintenance Regulation” means Council Regulation (EC) 4/20091 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations,

“Member State” means a Member State of the European Union other than the State or Denmark,

“Member State not bound by the 2007 Hague Protocol” means the United Kingdom or Denmark.

(2) References in these Regulations to numbered Chapters or Articles without qualification are references to the Chapters or Articles so numbered of the Maintenance Regulation.

(3) Unless provided otherwise, a word or expression used in these Regulations and in the Maintenance Regulation has the same meaning in these Regulations as it has in the Maintenance Regulation.

Jurisdiction of Circuit and District Courts

3. The Circuit Court or the District Court has jurisdiction for the purposes of Article 3(a) and (b) and the jurisdiction may be exercised by the judge for the time being assigned—

(a) in the case of the Circuit Court, to the circuit, and

(b) in the case of the District Court, to the district court district,

in which the creditor or debtor, as the case may be, is habitually resident.

Choice of Court

4. The Circuit Court or the District Court has jurisdiction for the purposes of Article 4.1. (a), 4.1. (b) and 4.1. (c)(ii) and the jurisdiction may be exercised by the judge for the time being assigned—

(a) in the case of the Circuit Court, to the circuit, and

(b) in the case of the District Court, to the district court district,

in which the creditor or debtor, as the case may be, habitually resides.

Jurisdiction of High Court

5. The High Court has jurisdiction for the purposes of Articles 7, 21 and 32.

Jurisdiction of Dublin Circuit Court and Dublin Metropolitan District Court.

6. Where the circumstances relating to the habitual residence of a creditor or debtor referred to in Regulations 3 and 4 do not apply, the creditor or debtor concerned shall be deemed to be habitually resident in the Dublin Circuit or the Dublin Metropolitan District, and a judge for the time being assigned to that Circuit or District shall have jurisdiction.

Extract of decision

7. Where a maintenance creditor is seeking to enforce a decision in a Member State, the court which made the decision concerned shall, on application to it by the maintenance creditor issue the extract from the decision in the form set out in Annex I to the Maintenance Regulation.

Enforcement of decisions given in Member States bound by the 2007 Hague Protocol

8. (1) A decision given in a Member State bound by the 2007 Hague Protocol shall be of the same force and effect as a judgment or decree of the District Court, and may be enforced, and proceedings taken on it, as if it were a judgment or decree of that Court.

(2) Section 8(7) of the Act of 1940 does not apply to proceedings for the enforcement of a decision referred to in paragraph (1).

(3) Paragraphs (1) and (2) apply even though an amount payable under the decision exceeds the maximum amount the District Court has jurisdiction to award under an enactment referred to in the Act of 1976.

(4) A decision to which paragraph (1) applies shall be deemed to be an antecedent order within the meaning of the Act of 1976.

Applications for recognition or enforcement of decisions given in a Member State not bound by the 2007 Hague Protocol

9. (1) An application under the Maintenance Regulation for the recognition and enforcement of a decision in a Member State not bound by the 2007 Hague Protocol shall be made to the Master of the High Court.

(2) The Master of the High Court shall determine an application referred to in paragraph (1) in accordance with the Maintenance Regulation.

(3) Where the application is for the enforcement of a decision, the Master of the High Court shall declare the decision enforceable immediately on completion of the formalities provided for in Article 28, without any review under Article 24 and shall make an enforcement order in relation to the decision.

(4) An order referred to in paragraph (3) may provide for the recognition or enforcement of all or part of the decision concerned.

(5) Where an application is made under paragraph (1), the Master of the High Court may by order declare the decision which is the subject of the enforcement order and which relates to—

(a) a sum payable under the enforceable maintenance order as a periodic payment but not paid before the relevant enforcement order was made, or

(b) a lump sum (not being a sum referred to in paragraph (a)) which is payable under the enforceable maintenance order,

to be of the same force and effect as a judgment of the High Court and such a decision may be enforced by the High Court and proceedings taken on it as if it were a judgment of that Court.

(6) No order shall be made under paragraph (5) unless the Master of the High Court considers it necessary for the effective enforcement of the enforceable maintenance order concerned.

(7) A maintenance order shall be regarded as a decision referred to in paragraph (1) if the District Court does not have jurisdiction to enforce it under Regulation 10.

(8) For the purposes of this Regulation references in Articles 31, 32, 34, 36, 37, 38, 39 and 48 to a declaration of enforceability are to be read as references to an enforcement order.

Enforcement of enforceable maintenance orders given in a Member State not bound by the 2007 Hague Protocol

10. (1) Subject to Regulation 14 and the restrictions on enforcement contained in Article 36(3), the District Court has jurisdiction to enforce an enforceable maintenance order.

(2) An enforceable maintenance order shall, from the date on which the maintenance order was made, be deemed for the purposes of—

(a) paragraph (1),

(b) section 98(1) (as amended by section 30(1) of the Act of 1976) of the Defence Act 1954 (No. 18 of 1954), and

(c) subject to the Maintenance Regulation, the variation or discharge of that order under section 6 (as amended by section 43(b) of the Act of 1995) of the Act of 1976,

to be an order made by the District Court under section 5, 5A (inserted by section 18 of the Act of 1987) or 21A (inserted by section 21 of the Act of 1987)...

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