MAINTENANCE
ORDERS (FACILITIES FOR ENFORCEMENT) (JERSEY)
LAW 2000
____________
A LAW to make new provision to
facilitate the enforcement of maintenance orders; to make provision for the
extension to the Island 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, sanctioned
by Order of Her Majesty in Council of the
11th
day of OCTOBER 2000
____________
(Registered
on the 20th day of October 2000)
____________
STATES
OF JERSEY
____________
The 23rd day of
May 2000
____________
THE STATES, subject to the sanction of Her
Most Excellent Majesty in Council, have adopted the following Law -
PART
1
GENERAL INTERPRETATION PROVISIONS
AND ENFORCEMENT OF MAINTENANCE ORDERS MADE IN THE ISLAND
AND IN COMMONWEALTH COUNTRIES
ARTICLE 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 his 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 the Island
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 his 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 the Island 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
the Island 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 the
Island, 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 the Island 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 the Island 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 the Island, of
money to any person for the benefit of that child.
(3) A reference in this Law
to a Part, Article or Schedule by number only and without further
identification is a reference to the Part, Article or Schedule of that number
in this Law.
(4) A reference in an
Article or other division of this Law to a paragraph, sub-paragraph or clause
by number or letter only and without further identification is a reference to
the paragraph, sub-paragraph or clause of that number or letter in the Article
or other division of this Law.
(5) Unless the context
otherwise requires, a reference in this Law to an enactment is a reference to
that enactment as amended form time to time and includes a reference to that
enactment as extended or applied under another enactment, including another
provision of this Law.
ARTICLE 2
Transmission
of a maintenance order made in the Island
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 the Island.
(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 his 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 he 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 the Island 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.
ARTICLE
3
Provisional orders
for confirmation in a Commonwealth country
(1) Where an application is
made to a court in the Island 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 the Island and a summons to
appear before the court to answer the application had been duly served upon
him, 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.
ARTICLE 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 the Island 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.
ARTICLE 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 the Island 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 the Island
for the purpose of such proceedings,
the court in the Island 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.
ARTICLE
6
Variation and
revocation in the Island 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 the Island 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 the
Island 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.
ARTICLE 7
Confirmation
of provisional orders affecting orders made in the Island
(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 the Island 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.
ARTICLE
8
Registration in the
Island 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
he 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 thinks fit
for the purpose of ascertaining whether the payer is residing in the Island,
and, if after taking those steps he is satisfied that the payer is not so
residing, he shall return the certified copy of the order to the Lieutenant
Governor with a statement giving such information as he 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.
ARTICLE
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.
ARTICLE 10
Confirmation
in the Island 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 he 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 he might have raised in the
original proceedings had he 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 he 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.
ARTICLE 11
Enforcement
in the Island of orders registered or confirmed under Part 1
(1) An order registered in a
court in the Island by virtue of Article 8(2) or confirmed under Article 10(7)
may be enforced in the Island 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.
ARTICLE
12
Variation and
revocation of orders registered or confirmed under Part 1
(1) This Article applies to
orders registered in the Island 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 the Island; or
(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 the
Island.
(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 the Island,
apply the law of the Island, 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.
ARTICLE
13
Registration or
confirmation of provisional orders affecting orders under Part 1
(1) This Article applies to
orders registered in the Island 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 the Island 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.
ARTICLE 14
Cancellation
of registration or confirmation and transfer of order
(1) This Article applies to
orders registered in the Island 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 the Island;
or
(c) by an order made by a
court in a Commonwealth country and notice of the revocation is received by the
court in the Island,
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 the Island, he shall cancel
the order and shall send a certified copy thereof to the Lieutenant Governor
together with -
(a) a certificate of any
arrears, signed by the Viscount;
(b) a statement giving such
information as he possesses as to the whereabouts of the payer; and
(c) any relevant document
in his possession relating to the case.
ARTICLE 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 the Island 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 the Island, he 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 the Island, 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 his 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 he has done.
ARTICLE
16
Appeals
(1) No appeal shall lie
from a provisional order made under any provision of this Part by a court in
the Island.
(2) Where any court in the
Island 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 he would have if that order were not a provisional
order.
(3) Where in pursuance of
any provision of this Part, a court in the Island 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
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 the Island 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
would have if the maintenance order had been made by the court in the Island.
(5) Nothing in this Article
(except paragraph (1)) shall be construed as affecting any right of appeal
conferred by any other enactment.
ARTICLE
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 the Island of the evidence of a person residing
therein relating to matters specified in the request, a court in the Island
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.
ARTICLE 18
Remission
of case to a court in a Commonwealth country;
interim
orders
(1) A court in the Island
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 the Island
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.
ARTICLE
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
the Island 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 the Island, then, as from the relevant
date, the sums shall be treated as such sums in the currency of the Island 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 the Island 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 the Island 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 the Island 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.
ARTICLE
20
Orders in a foreign
language
Where
a maintenance order or a provisional order sought to be registered or confirmed
in the Island 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
ARTICLE 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
ARTICLE 22
Convention
countries
The
States may by Act declare that any country or territory specified in the Act,
being a country or territory outside the Island 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.
ARTICLE 23
Application
by person in the Island
(1) Where a person in the
Island (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 his 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 his 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 he 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.
ARTICLE
24
Application by
person in convention country for recovery of maintenance in the Island
(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 the Island, he 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 he 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.
ARTICLE 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 the Island he 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 he possesses as to the whereabouts of the
payer; and
(d) any relevant documents
in the possession of the Greffier relating to the case.
ARTICLE 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.
ARTICLE
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 the Island 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, he 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 the Island, a summons to appear in the
proceedings has been duly served on him; 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.
ARTICLE 28
Obtaining
of evidence for purpose of proceedings in the Island
(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 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, he shall transmit the request to the
appropriate authority or court in that country.
ARTICLE
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 the Island 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 or he 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
ARTICLE 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 the Island 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; or
(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.
ARTICLE
31
Transmission of a
maintenance order made in the Island 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 the Island if -
(a) either the payer or the
payee had his habitual residence in the Island 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 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 he 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 the Island 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.
ARTICLE 32
Variation
and revocation in the Island 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 the Island 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 he is residing not less than
six 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 the
Island 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.
ARTICLE
33
Registration in the
Island 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
he 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 thinks fit
for the purpose of ascertaining whether the payer is residing in the Island and
if after taking those steps he is satisfied that the payer is not so residing
he shall return the certified copy of the order to the Lieutenant Governor with
a statement giving such information as he 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 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,
or
(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 the Island
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.
(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 the
Island 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 the Island or in another country provided
that in the latter case the order fulfils the conditions necessary for its
recognition and enforcement in the Island 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 to defend the
proceedings.
ARTICLE 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.
ARTICLE 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.
ARTICLE
36
Enforcement in the
Island of orders registered under Article 33
(1) An order registered in
a court in the Island by virtue of Article 33 may be enforced in the Island 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 the Island and that country, no sums of
money falling due before that date shall be payable in accordance with the
order.
ARTICLE 37
Cancellation
transfer and transmission of orders registered under Article 33
(1) This Article applies to
a maintenance order registered in a court in the Island 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.
ARTICLE 38
Obtaining
of evidence for the purpose of proceedings in the Island
A
court in the Island 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.
ARTICLE
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 the Island of the evidence of a person residing
therein relating to matters specified in the request, a court in the Island
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.
ARTICLE 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
ARTICLE 41
Provisional
order to cease to have effect on remarriage
(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 and the order has been
confirmed by a competent court in a Commonwealth country, then, if after the
making of that order the marriage 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 except in relation to any arrears due
under it on the date of such remarriage and shall not be capable of being
revived.
(2) For the avoidance of
doubt it is hereby declared that references in this Article to remarriage
include references to a marriage which is by law void or voidable.
ARTICLE
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 the Island 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 the Island 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.
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 his 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 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.
ARTICLE 44
Rules
of Court
Without
prejudice to the generality of the powers conferred under Article 11 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.
ARTICLE 45
Repeal
The
Maintenance Orders (Facilities for Enforcement) (Jersey) Law 1953
(hereinafter
referred to as “the repealed Law”) shall be repealed.
ARTICLE 46
Amendment
of Separation and Maintenance Orders
(Jersey)
Law 1953
Article
11 of the Separation and Maintenance Orders (Jersey) Law 1953
shall be re-numbered
as paragraph (1) of that Article and there shall be inserted after that
paragraph the following paragraph -
“(2) Proceedings under this Law for the
maintenance of a child may, if the child or the parent of the child having care
and control of that child is resident outside the Island, be brought on behalf
of the child by any person who is, by the law of the country or territory of
residence, competent to bring those proceedings.”.
ARTICLE
47
Transitional
provisions
(1) Where immediately
before the commencement of Part 1, a country was one to which the repealed
Law extended, the provisions of that Part shall apply to any order made under
that Law by a court in the Island against a person residing in that country and
to any order made by a court in that country against a person residing in the
Island and transmitted to the Island for the purpose of proceedings under that
Law.
(2) Any proceedings brought
under or by virtue of any provision of the repealed Law in a court in the
Island 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.
ARTICLE 48
Citation
and commencement
This
Law may be cited as the Maintenance Orders (Facilities for Enforcement)
(Jersey) Law 2000 and shall come into force on such day as the States may by
Act appoint and different days may be appointed for different provisions or for
different purposes of this Law.
G.H.C.
COPPOCK
Greffier
of the States.