Maintenance Orders (Facilities
for Enforcement) (Jersey) Law 2000
A LAW to make provision to facilitate
the enforcement of maintenance orders; to make provision for the extension to
Jersey of the United Nations Convention on the Recovery Abroad of Maintenance
done at New York on 20th June, 1956 and the Convention on the Recognition
and Enforcement of Decisions Relating to Maintenance Obligations done at the
Hague on 2nd October, 1973; and for connected purposes
Commencement
[see
endnotes]
PART 1
GENERAL INTERPRETATION
PROVISIONS AND ENFORCEMENT OF MAINTENANCE ORDERS MADE IN JERSEY AND IN
COMMONWEALTH COUNTRIES
1 Interpretation
(1) In this Law unless the
context otherwise requires –
“affiliation order” means an order (however described)
adjudging, finding or declaring a person to be the father of a child, whether
or not it also provides for the maintenance of the child;
“certificate of arrears”, in relation to a maintenance order,
means a certificate certifying that the sum specified in the certificate is to
the best of the information or belief of the officer giving the certificate the
amount of the arrears due under the order at the date of the certificate or, as
the case may be, that to the best of the officer’s information or belief
there are no arrears due thereunder at that date;
“certified copy”, in relation to an order of a court,
means a copy of the order certified by the proper officer of the court to be a
true copy;
“Commonwealth country” means any country outside Jersey
which is an independent sovereign member of the Commonwealth or any territory
for whose international relations any such country is responsible;
“competent court in a Hague Convention country” means
any court in a Hague Convention country which has jurisdiction on one of the
grounds specified in Article 33(5);
“convention country” means a country designated by Act
under Article 22;
“court” includes any tribunal or person having power to
make, confirm, enforce, vary or revoke a maintenance order;
“court in a Hague Convention country” means any judicial
or administrative authority in a Hague Convention country;
“Greffier” means the Judicial Greffier;
“Hague Convention” means the Convention referred to in Article 30
and “Hague Convention country” means a country designated by Act
under that Article;
“maintenance order” means an order (however described),
including a settlement made by or before a competent court in a Hague
Convention country, of any of the following descriptions, and in the case of an
order which is not limited to the following descriptions, the part of the order
which is so limited, that is to say –
(a) an order
(including an affiliation order or order consequent upon an affiliation order)
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, according to the law applied in the place where
the order is made, liable to maintain;
(b) an
affiliation order or order consequent upon an affiliation order, 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 child’s birth, or,
where the child has died, of the child’s funeral expenses, or, where the
mother of the child has died, of her funeral expenses; and
(c) an order
within the foregoing provisions of this definition made against a payer on the
application of a public body which claims reimbursement of sums of money
payable under the order with respect to the payee if reimbursement can be
obtained by the public body under the law to which it is subject,
and, in the case of a maintenance order which has been varied
(including a maintenance order which has been varied either by a court in Jersey
or by a competent court in a Hague Convention country whether or not the original
order was made by such a court) means that order as varied, but shall not
include an order made in a Hague Convention country of a description which that
country or Jersey has reserved the right under Article 26 of the Hague
Convention not to recognize or enforce;
“payee”, in relation to a maintenance order, means the person
entitled to the payments for which the order provides and, in the case of a person
resident outside Jersey, includes a person authorized by the law of the country
or territory of that person’s residence to act on behalf of the payee;
“payer”, in relation to a maintenance order, means the person
liable to make payments under the order;
“Petty Debts Court” means the Petty Debts Court
constituted in pursuance of the Loi (1891) sur la Cour pour
le recouvrement de menues dettes;
“prescribed” means prescribed by Rules of Court;
“provisional order” means (according to the
context) –
(a) a
maintenance order made by a court in Jersey which is provisional only and has
no effect unless and until confirmed, with or without alteration, by a
competent court in a Commonwealth country; or
(b) a
maintenance order or assessment made by a court in a Commonwealth country which
is provisional only and has no effect unless and until confirmed with or
without alteration, by a court in Jersey having power under this Law to confirm
it;
“responsible authority”, in relation to a Commonwealth
country, means any person who in that country has functions similar to those of
the Lieutenant-Governor under this Law, and in relation to a Hague convention
country means the appropriate authority in that country;
“Royal Court” means the Family Division of the Royal
Court.
(2) A reference in this Law
to the payment of money for the maintenance of a child shall be construed as a
reference –
(a) to
the payment of money for the child’s education; or
(b) to
the payment, under an order of court in or outside Jersey, of money to any person
for the benefit of that child.
2 Transmission
of a maintenance order made in Jersey for registration in a Commonwealth
country
(1) This Article applies to
any maintenance order, not being a provisional order or an order made by virtue
of a provision of Part 3, made, whether before or after the commencement
of this Part, by a court in Jersey.
(2) Where it appears that
the payer under a maintenance order to which this Article applies is residing
in or is proceeding to a Commonwealth country, the Greffier may, of the
Greffier’s own motion or on the application of a payee under the order,
send to the Lieutenant-Governor a Request for Registration in the prescribed
form.
(3) The Lieutenant-Governor
shall transmit the Request for Registration to the responsible authority in the
Commonwealth country if the Lieutenant-Governor is satisfied that the statement
relating to the whereabouts of the payer gives sufficient information to
justify that being done.
(4) Nothing in this Article
shall be taken as affecting any jurisdiction of a court in Jersey with respect
to a maintenance order to which this Article applies, and, subject to Article 6,
any such order may be enforced, varied or revoked accordingly.
3 Provisional
orders for confirmation in a Commonwealth country
(1) Where an application is
made to a court in Jersey for a maintenance order against any person who is
proved to be residing in or to be proceeding to a Commonwealth country, and the
application is one on which the court would have jurisdiction to make a
maintenance order if that person were resident in Jersey and a summons to
appear before the court to answer the application had been duly served upon the
person, the court shall have jurisdiction to hear the application and may make
a provisional order.
(2) Where a court makes a
provisional order by virtue of this Article, the Greffier shall send to the
Lieutenant-Governor a Request for Confirmation in the prescribed form.
4 Effect
of confirmation
A provisional order made by virtue of Article 3 which has been
confirmed by a competent court in a Commonwealth country shall be treated for
all purposes as if the court in Jersey which made the order had made it in the
form in which it was confirmed and as if the order had never been a provisional
order, and subject to Article 6 any such order may be enforced, varied or
revoked accordingly.
5 Further
proceedings in respect of a provisional order
(1) Where before a
provisional order made by virtue of Article 3 is confirmed,
either –
(a) a
document, duly authenticated, setting out or summarizing evidence taken in a
Commonwealth country for the purpose of proceedings relating to the
confirmation of the order is received by the court in Jersey which made the order;
or
(b) that
court, in compliance with a request made to it by a court in a Commonwealth
country, takes the evidence of a person residing in Jersey for the purpose of
such proceedings,
the court in Jersey which made the order shall consider that
evidence.
(2) If it appears to the
court, having considered such evidence that the provisional order ought not to
have been made, or ought not to have been made in the form in which it was
made –
(a) it
shall, in such manner as may be prescribed, give to the person on whose
application the order was made an opportunity to consider that evidence, to
make representations with respect to it, and to adduce further evidence; and
(b) after
considering all the evidence and any representations made by that person, it
may revoke the provisional order, and may make a fresh provisional order.
(3) Where a court makes a
fresh provisional order by virtue of paragraph (2), the Greffier shall
send in the prescribed manner to the court in the Commonwealth country a
Request for Confirmation in the prescribed form.
6 Variation
and revocation in Jersey of orders to which Articles 2 and
3 apply
(1) This Article applies to
a maintenance order which has been transmitted to a Commonwealth country in
pursuance of Article 2 and to a provisional order made by virtue of Article 3
which has been confirmed by a competent court in a Commonwealth country.
(2) A court in Jersey
which, having considered an application for the variation of an order to which
this Article applies, proposes to vary the order –
(a) may
do so by a provisional order; and
(b) shall
do so by a provisional order where it proposes to increase the rate of payments
under the order unless either –
(i) both the payer
and the payee under the order appear in the proceedings, or
(ii) the
applicant appears and the appropriate process has been duly served on the other
party.
(3) Where a court in Jersey
makes a provisional order by virtue of this Article, the Greffier shall send in
the prescribed manner to the court in a Commonwealth country having power to
confirm the provisional order a Request for Confirmation in the prescribed
form.
7 Confirmation
of provisional orders affecting orders made in Jersey
(1) This Article applies to
a maintenance order which has been transmitted to a Commonwealth country in
pursuance of Article 2 and to a provisional order made by virtue of Article 3
which has been confirmed by a competent court in a Commonwealth country.
(2) Where a certified copy
of a provisional order made by a court in a Commonwealth country, being an order
varying or revoking an order to which this Article applies, together with a
document duly authenticated, setting out or summarizing the evidence given in
the proceedings in which the provisional order was made, is received by the
court in Jersey which made the order, that court may confirm or refuse to
confirm the provisional order and if that order is an order varying the order,
confirm it either without alteration or with such alterations as it thinks
reasonable.
(3) For the purpose of
determining whether a provisional order should be confirmed under this Article,
the court shall proceed as if an application for the variation or revocation,
as the case may be, of the order in question had been made to it.
8 Registration
in Jersey of maintenance order made in a Commonwealth country
(1) This Article applies to
a maintenance order made before or after the commencement of this Part against
any person by a court in a Commonwealth country, including a provisional order
made by such a court which has been confirmed by a court in another
Commonwealth country.
(2) Subject to the
following provisions of this Article, whenever the Greffier receives from the
Lieutenant-Governor a certified copy of an order to which this Article applies the
Greffier shall register the order in the prescribed manner in the court.
(3) Before registering an order
under this Article, the Greffier shall take such steps as he or she thinks fit
for the purpose of ascertaining whether the payer is residing in Jersey, and,
if after taking those steps the Greffier is satisfied that the payer is not so
residing, he or she shall return the certified copy of the order to the
Lieutenant-Governor with a statement giving such information as the Greffier
possesses as to the whereabouts of the payer.
(4) The court in which an order
is to be registered shall be, if the court in which the order was made was a
court of unlimited jurisdiction, the Royal Court, and, if the court was a court
of limited jurisdiction, the Petty Debts Court.
9 Setting
aside registration
The registration of an order under Article 8 shall be set aside
if the court in which the order has been registered is satisfied on an
application by the payer that the order is not an order to which that Article
applies.
10 Confirmation
in Jersey of a provisional order made in a Commonwealth country
(1) This Article applies to
a provisional order made before or after the commencement of this Part against
any person by a court in a Commonwealth country.
(2) Where the Greffier
receives from the Lieutenant-Governor a certified copy of an order to which
this Article applies together with –
(a) a
document, duly authenticated, setting out or summarizing the evidence given in
the proceedings in which the order was made; and
(b) a
statement of the grounds on which the making of the order might have been
opposed by the payer under the order,
the Greffier shall cause proceedings to be commenced in the court
for the confirmation of the order.
(3) If a summons to appear
in the proceedings for the confirmation of the order cannot be duly served on
the payer, the Greffier shall return the certified copy of the order and
documents which accompanied it to the Lieutenant-Governor with a statement
giving such information as the Greffier possesses as to the whereabouts of the
payer.
(4) Subject to the
provisions of Article 18, proceedings for the confirmation of the order
shall be conducted as if an application for a maintenance order against the
payer had been made to the court.
(5) At the hearing it shall
be open for the payer to raise any defence which the payer might have raised in
the original proceedings had he or she been present, but no other defence, and
the statement received from the court which made the order of the grounds on
which the making of the order might have been opposed shall be conclusive
evidence that the payer might have raised a defence on any of those grounds.
(6) If the payer
establishes any such defence as the payer might have raised in the original
proceedings, the court shall refuse to confirm the order, and the Greffier shall
send the certified copy of the order and the documents which accompanied it to
the Lieutenant-Governor for return to the responsible authority in the
Commonwealth country.
(7) In any other case, the
court shall confirm the order either without alteration or with such alteration
as it thinks reasonable.
(8) For the purposes of
this Article, the court by which the order is to be confirmed shall be, if the
court in which the order was made was a court of unlimited jurisdiction, the
Royal Court, and if the court was a court of limited jurisdiction, the Petty
Debts Court.
11 Enforcement
in Jersey of orders registered or confirmed under Part 1
(1) An order registered in
a court in Jersey by virtue of Article 8(2) or confirmed under Article 10(7)
may be enforced in Jersey as if it had been made by the court in which it is
registered or confirmed and as if that court had had jurisdiction to make it;
and proceedings for or with respect to the enforcement of any such order may be
taken accordingly.
(2) The Viscount shall take
all such steps for enforcing the order as may be prescribed.
(3) In any proceedings for
or with respect to the enforcement of an order which is for the time being
registered in, or confirmed by, any court under this Part a certificate of
arrears sent to the court or to the Greffier thereof shall be evidence of the
facts stated therein.
(4) Subject to paragraph (5),
sums of money payable under an order registered or confirmed under this Part
shall be payable in accordance with the order as from the date on which the order
was made.
(5) A court confirming an order
under Article 10(7) may direct that the sums of money payable under it
shall be deemed to have been payable in accordance with the order as from such
date, being a date later than the date on which the order was made, as it may
specify; and subject to any such direction an order so confirmed shall be
treated as if it had been made in the form in which it was confirmed and as if
it had never been a provisional order.
12 Variation
and revocation of orders registered or confirmed under Part 1
(1) This Article applies to
orders registered in Jersey by virtue of Article 8(2) or confirmed under Article 10(7).
(2) The court in which an order
to which this Article applies is registered or has been confirmed shall have
the like power, on an application made by the payer or the payee, to vary or
revoke the order as if the court had made the order and had had jurisdiction to
make it.
(3) Where the court in
which an order to which this Article applies is registered or has been
confirmed varies the order it may do so by means of a provisional order and
shall do so unless –
(a) both
the payer and the payee are for the time being residing in Jersey;
(b) the
application is made by the payee; or
(c) the
variation consists of a reduction in the rate of payments under the order and
is made solely on the ground that there has been a change in the financial
circumstances of the payer since the order was made or, in the case of an order
confirmed under Article 10(7), since the order was confirmed, and the
courts in the Commonwealth country in which the order was made do not have
power, according to the law in force in that country, to confirm provisional
orders varying maintenance orders.
(4) When the court in which
an order to which this Article applies is registered or has been confirmed
revokes the order it may do so by means of a provisional order and shall do so
unless both the payer and the payee are for the time being resident in Jersey.
(5) On an application for
the revocation of an order to which this Article applies the court shall, if
both the payer and the payee are for the time being residing in Jersey, apply
the law of Jersey, but shall in any other case apply the law of the
Commonwealth country in which the order was made; but where the court is
required by virtue of this paragraph to apply the law of a Commonwealth country
it may make a provisional order if it has reason to believe that the ground on
which the application is made is a ground on which the order could be revoked
according to that law, notwithstanding that it has not been established that it
is such a ground.
(6) Where a court makes a
provisional order under this Article, the Greffier shall send in the prescribed
manner to the court in the Commonwealth country which made the order a Request
for Confirmation in the prescribed form.
13 Registration
or confirmation of provisional orders affecting orders under Part 1
(1) This Article applies to
orders registered in Jersey by virtue of Article 8(2) or confirmed under Article 10(7).
(2) Where a certified copy
of a provisional order made by a court in a Commonwealth country, being an order
varying or revoking an order to which this Article applies, together with a
document duly authenticated, setting out or summarizing the evidence given in
the proceedings in which the provisional order was made, is received by a court
in Jersey in which an order to which this Article applies is registered or has
been confirmed, that court may confirm or refuse to confirm the provisional order
and if that order is an order varying the order, confirm it either without
alteration or with such alterations as it thinks reasonable.
(3) For the purpose of
determining whether a provisional order should be confirmed under this Article,
the court shall proceed as if an application for the variation or revocation,
as the case may be, of the order in question had been made to it.
14 Cancellation
of registration or confirmation and transfer of order
(1) This Article applies to
orders registered in Jersey by virtue of Article 8(2) or confirmed under Article 10(7).
(2) Where an order to which
this Article applies is revoked –
(a) by an
order made by the court in which it is registered or has been confirmed;
(b) by a
provisional order made by that court which has been confirmed by a court in a
Commonwealth country and notice of the confirmation is received by the court in
Jersey; or
(c) by an
order made by a court in a Commonwealth country and notice of the revocation is
received by the court in Jersey,
the Greffier shall cancel the order but any arrears due under the order
at the date of cancellation shall continue to be recoverable as if the order
had not been cancelled.
(3) Where the Greffier is
of opinion that the payer has ceased to reside in Jersey, the Greffier shall
cancel the order and shall send a certified copy to the Lieutenant-Governor
together with –
(a) a
certificate of any arrears, signed by the Viscount;
(b) a
statement giving such information as the Greffier possesses as to the
whereabouts of the payer; and
(c) any
relevant document in the Greffier’s possession relating to the case.
15 Transmission
of certain orders by Lieutenant-Governor
(1) This Article applies to
maintenance orders received by the Lieutenant-Governor from the responsible
authority in a Commonwealth country and to orders which have been registered in
a court in Jersey by virtue of Article 8(2) or confirmed under Article 10(7).
(2) If it appears to the
Lieutenant-Governor that the payer under an order to which this Article applies
is not residing or has ceased to reside in Jersey, the Lieutenant-Governor
shall send to the responsible authority of the Commonwealth country which in
all the circumstances is appropriate –
(a) the
certified copy of the order in question and a certified copy of any order
varying that order;
(b) if
the order has at any time been registered in, or confirmed by, a court in Jersey,
a certificate of arrears signed by the Viscount;
(c) a
statement giving such information as the Lieutenant-Governor possesses as to
the whereabouts of the payer; and
(d) any
other relevant documents in the Lieutenant-Governor’s possession relating
to the case.
(3) Where the documents
mentioned in paragraph (2) are sent to the responsible authority in a
Commonwealth country other than that in which the order in question was made,
the Lieutenant-Governor shall inform the responsible authority in the
Commonwealth country in which the order was made of what the Lieutenant-Governor
has done.
16 Appeals
(1) No appeal shall lie
from a provisional order made under any provision of this Part by a court in Jersey.
(2) Where any court in Jersey
refuses to make a provisional order in pursuance of Article 3 or revokes a
provisional order in pursuance of Article 5, the applicant shall have the
like right of appeal (if any) from the refusal to make, or the revocation of,
the provisional order as the applicant would have if that order were not a
provisional order.
(3) Where in pursuance of
any provision of this Part, a court in Jersey confirms or refuses to confirm a
provisional order made by a court in a Commonwealth country (including a
provisional order varying or revoking a maintenance order), the payer or payee
under the order shall have the like right of appeal (if any) from the
confirmation of, or refusal to confirm, the provisional order as he or she
would have if that order were not a provisional order and the court which
confirmed or refused to confirm it had made or, as the case may be, refused to
make it.
(4) Where in pursuance of
any provision in this Part, a court in Jersey makes, or refuses to make, an order
varying or revoking a maintenance order made by a court in a Commonwealth
country, then, subject to paragraph (1), the payer or payee shall have the
like right of appeal (if any) from that order or from the refusal to make it as
he or she would have if the maintenance order had been made by the court in Jersey.
(5) Nothing in this Article (except
paragraph (1)) shall be construed as affecting any right of appeal
conferred by any other enactment.
17 Obtaining
of evidence for the purposes of proceedings in a Commonwealth country
(1) Where for the purpose
of any proceedings in a court in a Commonwealth country relating to a
maintenance order to which this Part applies a request is made by or on behalf
of that court for the taking in Jersey of the evidence of a person residing
therein relating to matters specified in the request, a court in Jersey shall
have power to take that evidence and, after giving notice of the time and place
at which the evidence is to be taken to such persons and in such manner as it
thinks fit, shall take the evidence in such manner as may be prescribed.
(2) Evidence taken by
virtue of this Article shall be sent in the prescribed manner by the Greffier
to the court in the Commonwealth country by or on behalf of which the request
was made.
18 Remission
of case to a court in a Commonwealth country; interim orders
(1) A court in Jersey may
for the purpose of any proceedings in that court under this Part relating to an
order to which this Part applies request a court in a Commonwealth country to
take or provide evidence relating to such matters as may be specified in the
request and may remit the case to that court for that purpose.
(2) A court in Jersey
considering the confirmation of an order under Article 10 and remitting
the case in accordance with this Article may make such interim order for
periodical payments by the payer as it thinks fit.
19 Conversion
of currency
(1) Where the sums of money
required to be paid under an order registered in, or confirmed by, a court in Jersey
under this Part or specified in any statement of arrears due under a
maintenance order made by a court in a Commonwealth country are expressed in a
currency other than the currency of Jersey, then, as from the relevant date,
the sums shall be treated as such sums in the currency of Jersey as are
equivalent thereto on the basis of the rate of exchange prevailing at that
date.
(2) For the purposes of
this Article a written certificate purporting to be signed by an officer of any
bank in Jersey certifying that a specified rate of exchange prevailed between
currencies at a specified date and that at such rate a specified sum in the currency
of Jersey is equivalent to a specified sum in another specified currency shall
be evidence of the rate of exchange so prevailing on that date and of the
equivalent sums in terms of the respective currencies.
(3) In this Article the
“relevant date” means –
(a) in
relation to an order which is registered in, or confirmed by, a court in Jersey
or to a statement of arrears due under a maintenance order made by a court in a
Commonwealth country, the date on which the order is first registered or
confirmed under this Law;
(b) in
relation to an order which has been varied, the date on which the last order
varying that order is registered or confirmed under this Law.
20 Orders
in a foreign language
Where a maintenance order or a provisional order sought to be
registered or confirmed in Jersey under this Part is in a language other than
English, the certified copy of the order shall have attached thereto for all
purposes of this Part, a translation in the English language.
PART 2
EXTENSION OF PART 1 TO NON-COMMONWEALTH COUNTRIES
21 Extension
of Part 1 to non-Commonwealth countries
The States may by Act declare that the provisions of Part 1,
with such exceptions, adaptations and modifications as may be specified in the
Act shall apply as if any country designated in the Act were a Commonwealth
country.
PART 3
FACILITIES FOR ENFORCEMENT
OF CLAIMS FOR THE RECOVERY OF MAINTENANCE
22 Convention
countries
The States may by Act declare that any country or territory
specified in the Act, being a country or territory outside Jersey and not being
a Commonwealth country or a country designated in an Act under Article 21,
to which the United Nations Convention on the Recovery Abroad of Maintenance
done at New York on 20th June 1956 extends, is a convention country
for the purposes of this Law.
23 Application
by person in Jersey
(1) Where a person in Jersey
(in this Part referred to as the “applicant”) claims to be entitled
to recover in a convention country maintenance from another person, and that
other person is for the time being subject to the jurisdiction of that country,
the applicant may apply to the Lieutenant-Governor, in accordance with the
provisions of this Article, to have the applicant’s claim for the
recovery of maintenance from that other person transmitted to that country.
(2) Where the applicant
seeks to vary any provision made in a convention country for the payment by any
other person of maintenance to the applicant, and that other person is for the
time being subject to the jurisdiction of that country, the applicant may apply
to the Lieutenant-Governor, in accordance with the provisions of this Article,
to have the applicant’s application for the variation of that provision
transmitted to that country.
(3) An application to the
Lieutenant-Governor under this Article shall be made through the Greffier who
shall assist the applicant in completing an application which will comply with
the requirements of the law of the convention country and shall send the
application to the Lieutenant-Governor, together with such other documents, if
any, as are required by that law.
(4) On receiving an
application from the Greffier, the Lieutenant-Governor shall transmit it,
together with any accompanying documents, to the appropriate authority in the
convention country, unless the Lieutenant-Governor is satisfied that the
application is not in good faith or that it does not comply with the requirements
of the law of that country.
(5) The Lieutenant-Governor
may request the Greffier to obtain such information relating to the application
as may be specified in the request.
24 Application
by person in convention country for recovery of maintenance in Jersey
(1) Where the Lieutenant-Governor
receives from the appropriate authority in a convention country an application
by a person in that country for the recovery of maintenance from another person
(in this Part referred to as the “defendant”) who is for the time
being residing in Jersey, the Lieutenant-Governor shall send the application,
together with any accompanying documents, to the Greffier.
(2) On receiving the
application in accordance with paragraph (1), the Greffier shall cause
proceedings to be commenced in the Royal Court for the consideration of the
application.
(3) If a summons to appear
in the proceedings cannot be duly served on the defendant, the Greffier shall
return the application, together with any accompanying documents, to the
Lieutenant-Governor with a statement giving such information as the Greffier
possesses as to the whereabouts of the defendant.
(4) In any case not falling
under paragraph (3), the Court shall proceed as if the applicant were
before the Court.
25 Return
of orders
(1) Where the Greffier is
of opinion that the payer under an order made under this Part has ceased to
reside within Jersey the Greffier shall cancel the order and send a certified
copy thereof and the related documents to the Lieutenant-Governor for return to
the appropriate authority in the convention country.
(2) In this Article,
“related documents” means –
(a) the
application on which the order was made;
(b) a
certificate of any arrears, signed by the Viscount;
(c) a
statement by the Greffier giving such information as the Greffier possesses as
to the whereabouts of the payer; and
(d) any
relevant documents in the possession of the Greffier relating to the case.
26 Enforcement
of orders
(1) The Viscount shall take
all such steps as may be prescribed for enforcing an order made under this Part.
(2) In any proceedings for
or with respect to the enforcement of an order under this Part, a certificate
of arrears sent under Article 24 to the Greffier shall be evidence of the
facts stated therein.
27 Variation
and revocation of orders
(1) The Royal Court shall
have jurisdiction to hear any application by the payer or the payee for the
variation or revocation of an order under this Part where the defendant to the
application is residing in Jersey or in a convention country.
(2) Where the Lieutenant-Governor
receives from the appropriate authority in a convention country an application
by a person in that country for the variation or revocation of an order under
this Part, the Lieutenant-Governor shall send the application, together with
any accompanying documents, to the Greffier.
(3) On receiving the
application in accordance with paragraph (1), the Greffier shall cause
proceedings to be commenced in the Court for the consideration of the
application.
(4) The Court shall not
proceed to the hearing of an application for the variation or revocation of an order
under this Part unless –
(a) in
the case of a defendant to the application residing in Jersey, a summons to
appear in the proceedings has been duly served on the defendant; and
(b) in
the case of a defendant residing in a convention country, such notice of the
proceedings as may be prescribed has been given to the defendant in the
prescribed manner.
28 Obtaining
of evidence for purpose of proceedings in Jersey
(1) The Royal Court may for
the purpose of any proceedings in that Court under this Part arising out of an
application received by the Lieutenant-Governor from a convention country
request the Lieutenant-Governor to make to the appropriate authority or court
in the Convention country a request for the taking in that country of the
evidence of a person residing therein relating to matters connected with the
application.
(2) A request made by the
Court under this Article shall –
(a) give
details of the application in question;
(b) state
the name and address of the person whose evidence is to be taken; and
(c) specify
the matters relating to which the evidence of that person is required.
(3) If the Lieutenant-Governor
is satisfied that a request made to him or her under this Article contains sufficient
information to enable the evidence of the person named in the request relating
to the matters specified therein to be taken by a court or person in the
Convention country, the Lieutenant-Governor shall transmit the request to the
appropriate authority or court in that country.
29 Taking
of evidence at request of court in a convention country
(1) Where a request is made
to the Lieutenant-Governor by or on behalf of a court in a convention country
to obtain the evidence of a person residing in Jersey relating to matters
connected with an application to which Article 24 applies, the Lieutenant-Governor
shall transmit the request to the Royal Court which either shall take the
evidence or shall nominate the Viscount or an officer of the Court to take the
evidence of that person relating to such matters connected with that
application as may be specified in the request.
(2) The Royal Court, the
Viscount or other officer of the Court shall have power to take the evidence
and, after giving notice of the time and place at which the evidence is to be
taken to such persons and in such manner as it, he or she thinks fit, shall
take the evidence of the person named in the request relating to the matters
specified therein in such manner as may be prescribed; and the evidence so
taken shall be sent in the prescribed manner by the Greffier to the court in
the convention country by or on behalf of which the request referred to in paragraph (1)
was made.
PART 4
ENFORCEMENT UNDER THE HAGUE
CONVENTION
30 Hague
Convention countries
(1) The States may by Act
declare that any country or territory specified in the Act, being a country or
territory outside Jersey and not being a Commonwealth country or a country
designated in an Act under Article 21, in which the Convention on the
Recognition and Enforcement of Decisions Relating to Maintenance Obligations
concluded at the Hague on 2nd October 1973 is in force, is a Hague
Convention country for the purposes of this Part.
(2) In relation to a Hague
Convention country comprising territories in which different systems of law are
in force in relation to the recognition and enforcement of maintenance orders,
any reference to –
(a) the law
or procedure of a Hague Convention country;
(b) a
court in a Hague Convention country; or
(c) habitual
residence in a Hague Convention country,
shall have effect as if each territory were a separate Hague
Convention country.
31 Transmission
of a maintenance order made in Jersey for registration in a Hague Convention
country
(1) This Article applies to
any maintenance order, not being a provisional order or an order made by virtue
of a provision of Part 3, made, whether before or after the commencement
of this Part, by a court in Jersey if –
(a) either
the payer or the payee had his or her habitual residence in Jersey at the time
when the application for the maintenance order was made;
(b) the
payer and the payee were British citizens at that time; or
(c) the
payer appeared in the proceedings in which the maintenance order was made and
defended on the merits without objecting to the jurisdiction of the court.
(2) Where it appears that
the payer under a maintenance order to which this Article applies is residing
in or is proceeding to a Hague Convention country, the Greffier may, of his or
her own motion or on the application of a payee under the order, send to the Lieutenant-Governor
a Request for Enforcement in the prescribed form.
(3) The Lieutenant-Governor
shall transmit the Request for Enforcement to the responsible authority in the
Hague Convention country if the Lieutenant-Governor is satisfied that the statement
relating to the whereabouts of the payer gives sufficient information to
justify that being done.
(4) Nothing in this Article
shall be taken as affecting any jurisdiction of a court in Jersey with respect
to a maintenance order to which this Article applies, and, subject to Article 32,
any such order may be enforced, varied or revoked accordingly.
32 Variation
and revocation in Jersey of orders
(1) This Article applies to
a maintenance order which has been transmitted to a Hague Convention country by
virtue of Article 31.
(2) Where an application is
made to a court in Jersey by the payee for the variation or revocation of an order
to which this Article applies, and the payer is residing in a Hague Convention
country, the court shall direct the Greffier to send to the Lieutenant-Governor
a notice of the application in the prescribed form, and the court may not vary
or revoke the maintenance order unless –
(a) it is
satisfied that the notice of the application has been served on the payer in
accordance with the law of the Hague Convention country in which the payer is
residing not less than 6 weeks before the date of the hearing of the
application; and
(b) it
has taken into account any representations made and any evidence adduced by or
on behalf of the payer.
(3) Where a court in Jersey
varies or revokes an order to which this Article applies, the Greffier shall
send to the Lieutenant-Governor a Notice of Variation or Revocation in the
prescribed form.
33 Registration
in Jersey of maintenance order made in Hague Convention country
(1) This Article applies to
a maintenance order made before or after the commencement of this Part against
any person by a court in a Hague Convention country.
(2) Subject to the
following provisions of this Article, whenever the Greffier receives from the
Lieutenant-Governor a certified copy of an order to which this Article applies the
Greffier shall register the order in the prescribed manner in the court.
(3) Before registering an order
under this Article, the Greffier shall take such steps as he or she thinks fit
for the purpose of ascertaining whether the payer is residing in Jersey and if
after taking those steps the Greffier is satisfied that the payer is not so
residing he or she shall return the certified copy of the order to the
Lieutenant-Governor with a statement giving such information as the Greffier
possesses as to the whereabouts of the payer.
(4) The court in which an order
is to be registered shall be, if the court in which the order was made was a
court of unlimited jurisdiction, the Royal Court, and if the court was a court
of limited jurisdiction, the Petty Debts Court.
(5)
(a) The
Greffier may refuse to register the order if the court in the Hague Convention
country by or before which the order was made did not have jurisdiction to make
the order; and for these purposes a court in a Hague Convention country shall
be considered to have jurisdiction if –
(i) either the payer
or the payee had his or her habitual residence in the Hague Convention country
at the time when the proceedings in which the maintenance order was made were
instituted,
(ii) the
payer and the payee were nationals of that country at that time,
(iii) the
defendant in those proceedings had submitted to the jurisdiction of the court,
either expressly or by defending on the merits of the case without objecting to
the jurisdiction,
(iv) in
the case of a maintenance order made by reason of a divorce or a legal
separation or a declaration that a marriage is void or annulled, the court is
recognized by the law of Jersey as having jurisdiction in that matter, or
(v) in the case of a
maintenance order made by reason of a dissolution or annulment of a civil
partnership or a legal separation of civil partners, the court is recognized by
the law of Jersey as having jurisdiction in that matter.
(b) In
deciding whether a court in a Hague Convention country had jurisdiction to make
a maintenance order the Greffier shall be bound by any finding of fact on which
the court based its jurisdiction.[1]
(6) The Greffier may refuse
to register the order –
(a) if
such registration is manifestly contrary to public policy;
(b) if
the order was obtained by fraud in connection with a matter of procedure;
(c) if
proceedings between the same parties and having the same purpose are pending
before a court in Jersey and those proceedings were the first to be instituted;
or
(d) if
the order is incompatible with an order made in proceedings between the same
parties and having the same purpose, either in Jersey or in another country
provided that in the latter case the order fulfils the conditions necessary for
its recognition and enforcement in Jersey under this Law.
(7) Without prejudice to paragraph (6),
if the payer did not appear in the proceedings in the Hague Convention country
in which the order was made, the Greffier shall refuse to register the order
unless –
(a) notice
of the institution of the proceedings, including notice of the substance of the
claim, was served on the payer in accordance with the law of that Hague
Convention country; and
(b) having
regard to the circumstances, the payer had sufficient time to enable him or her
to defend the proceedings.
34 Setting
aside registration
(1) The payer may apply to
the court in which an order is registered under Article 33 for the
registration to be set aside.
(2) The court shall set
aside the registration if it is satisfied that the order is not an order to
which Article 33 applies or that the Greffier should have refused to
register the order under paragraph (6) of that Article.
(3) The court may set aside
the registration on any ground upon which the Greffier might have refused to
register the order under Article 33.
35 Appeals
against refusal to register
The payee may appeal to the court against any refusal by the
Greffier to register an order to which Article 33 applies.
36 Enforcement
in Jersey of orders registered under Article 33
(1) An order registered in
a court in Jersey by virtue of Article 33 may be enforced in Jersey as if
it had been made by the court in which it is registered and as if that court
had jurisdiction to make it, and proceedings for or with respect to the
enforcement of any such order may be taken accordingly.
(2) The Viscount shall take
all such steps for enforcing the order as may be prescribed.
(3) In any proceedings for
or with respect to the enforcement of an order which is for the time being
registered in any court under Article 33, a certificate of arrears sent to
the Greffier shall be evidence of the facts stated therein.
(4) Subject to paragraph (5),
sums of money payable under an order registered under Article 33 shall be
payable in accordance with the order as from the date on which the order was
made.
(5) Where an order was made
by a court in a Hague Convention country prior to the date of the entry into
force of the Hague Convention between Jersey and that country, no sums of money
falling due before that date shall be payable in accordance with the order.
37 Cancellation,
transfer and transmission of orders registered under Article 33
(1) This Article applies to
a maintenance order registered in a court in Jersey by virtue of Article 33.
(2) Subject to the
following paragraphs, Article 14 and 15 shall apply in relation to orders
to which this Article applies as if the Hague Convention country in which the
maintenance order was made was a Commonwealth country.
(3) In its application to
the orders to which this Article applies, Article 14 shall apply with the
omission of paragraph (2)(b).
(4) In its application to
the orders to which this Article applies, Article 15 shall apply with the
omission in paragraph (2) of that Article of the words “which in all
the circumstances is appropriate” and of paragraph (3) of that Article.
38 Obtaining
of evidence for the purpose of proceedings in Jersey
A court in Jersey may for the purpose of any proceedings in that
court under this Part relating to a maintenance order to which this Part
applies request the Lieutenant-Governor to make to the responsible authority in
a Hague Convention country a request for the taking or provision of evidence
relating to such matters as may be specified in the request.
39 Obtaining
of evidence for the purpose of proceedings in a Hague Convention country
(1) Where for the purpose
of any proceedings in a court in a Hague Convention country relating to a
maintenance order to which this Part applies a request is made by or on behalf
of that court for the taking in Jersey of the evidence of a person residing
therein relating to matters specified in the request, a court in Jersey shall
have power to take that evidence and, after giving notice of the time and place
at which the evidence is to be taken to such persons and in such manner as it
thinks fit, shall take the evidence in such manner as may be prescribed.
(2) Evidence taken by
virtue of this Article shall be sent by the Greffier to the Lieutenant-Governor
for transmission to the responsible authority in the Hague Convention country.
40 Conversion
of currency
Article 19 shall apply in relation to orders made by a court in
a Hague Convention country as if that country were a Commonwealth country.
PART 5
SUPPLEMENTAL
41 Provisional order to cease to have
effect on remarriage or on registration of civil partnership[2]
(1) Where
a court has, by virtue of Article 3, made a provisional order consisting
of or including a provision for periodical payments by a husband or wife or
civil partner and the order has been confirmed by a competent court in a
Commonwealth country, then, if after the making of that order the marriage or
civil partnership (as the case may be) of the parties to the proceedings in
which the order was made is dissolved or annulled but the order continues in
force, that order or, as the case may be, that provision thereof shall cease to
have effect on the remarriage of the payee, or the entering into a civil
partnership by the payee, except in relation to any arrears due under it on the
date of such remarriage or civil partnership and shall not be capable of being
revived.
(2) For
the avoidance of doubt it is declared that references in this Article to
remarriage or civil partnership include references to a marriage or civil partnership
which is by law void or voidable.
42 Admissibility
of evidence given abroad
(1) A statement contained
in –
(a) a
document, duly authenticated, which purports to set out or summarize evidence
given in proceedings in a court in a Commonwealth country, a convention
country, a Hague Convention country or a country designated in an Act under Article 21;
(b) a
document, duly authenticated, which purports to set out or summarize evidence
taken in such a country for the purpose of proceedings in a court in Jersey
under this Law, whether in response to a request made on behalf of such a court
or otherwise; or
(c) a
document, duly authenticated, which purports to have been received in evidence
in proceedings in a court in such a country, or to be a copy of a document so
received,
shall in any proceedings in a court in Jersey under this Law (including
any proceedings on appeal from any such proceedings) be admissible as evidence
of any fact stated therein to the same extent as oral evidence of that fact is
admissible in those proceedings.
(2) A document purporting
to set out or summarize evidence given as mentioned in paragraph (1)(a),
or taken as mentioned in paragraph (1)(b), shall be deemed to be duly
authenticated for the purposes of that paragraph if the document purports to be
certified by the judge, magistrate, or other person before whom the evidence
was given or, as the case may be, by whom it was taken, to be the original
document containing or recording or, as the case may be, summarizing, that
evidence or a true copy of that document.
(3) A document purporting
to have been received in evidence as mentioned in paragraph (1)(c), or to
be a copy of a document so received, shall be deemed to be duly authenticated
for the purposes of that paragraph if the document purports to be certified by
a judge, magistrate or officer of the court in question to have been, or to be
a true copy of a document which has been so received.
(4) It shall not be
necessary in any such proceedings to prove the signature or official position
of the person appearing to have given such a certificate.
(5) Nothing in this Article
shall prejudice the admission in evidence of any document which is admissible
in evidence apart from this Article.
43 Order,
etc. made abroad need not be proved
For the purposes of this Law, unless the contrary is
shown –
(a) any order made by a
court in a Commonwealth country, a convention country, a Hague Convention
country or a country designated in an Act under Article 21 purporting to
bear the seal of that court or to be signed by any person in the person’s
capacity as a judge, magistrate or officer of the court, shall be deemed
without further proof to have been duly sealed or, as the case may be, to have
been signed by that person;
(b) the person by whom the order
was signed shall be deemed without further proof to have been a judge,
magistrate or officer, as the case may be, of that court when he or she signed
it and, in the case of an officer, to have been authorized to sign it; and
(c) a document purporting
to be a certified copy of an order made by a court in such a country shall be
deemed without further proof to be such a copy.
44 Rules
of Court
Without prejudice to the generality of the powers conferred under Article 13
of the Royal Court (Jersey)
Law 1948, Article 2 of the Law Reform (Miscellaneous
Provisions) (Jersey) Law 1967 or any other Law, the Superior Number of the
Royal Court, with the advice and assistance of the Rules Committee may make Rules
of Court prescribing the practice and procedure under this Law before the Royal
Court and the Petty Debts Court.
45 Transitional
provisions
(1) Where immediately
before the commencement of Part 1, a country was one to which the Maintenance
Orders (Facilities for Enforcement) (Jersey) Law 1953 extended, the
provisions of that Part shall apply to any order made under that Law by a court
in Jersey against a person residing in that country and to any order made by a
court in that country against a person residing in Jersey and transmitted to Jersey
for the purpose of proceedings under that Law.
(2) Any proceedings brought
under or by virtue of any provision of the Maintenance Orders (Facilities for
Enforcement) (Jersey) Law 1953 in a court in Jersey which are pending
immediately before the commencement of Part 1 shall be continued as if
they had been brought under or by virtue of the corresponding provision of this
Law.
46 Citation
This Law may be cited as the Maintenance Orders (Facilities for
Enforcement) (Jersey) Law 2000.