Maintenance Act , 1994

PART I Preliminary

1. Short title.

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

2. Commencement.

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

3. Interpretation.

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

F1[‘the 2007 Lugano Convention’means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Protocols and Annexes thereto signed at Lugano on 30 October 2007;]

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

F2[‘the Act of 1998’means the Jurisdiction of Courts and Enforcement of Judgments Act, 1998;]

F3[‘the Act of 1995’means the Family Law Act, 1995;]

F4[‘the Act of 1996’means the Family Law (Divorce) Act, 1996;]

F5[‘the Brussels I Regulation’means Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;]

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

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

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

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

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

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

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

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

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

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

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

4. Central Authority.

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

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

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

(2) F6[(a) For the purposes ofsection 8of theEnforcement of Court Orders Act 1940(as amended bysection 63of theCivil Law (Miscellaneous Provisions) Act 2011), the Acts of 1976, 1995, 1996 and 1998, the Brussels I Regulation, and the 2007 Lugano Convention, the Central Authority shall have authority to act on behalf of a maintenance creditor or of a claimant (as defined in section 13(1)), and references therein to a maintenance creditor or to such a claimant shall be construed as including references to that Authority.

(aa) In paragraph (a)‘maintenance creditor’means, in the context of the Brussels I Regulation or the 2007 Lugano Convention, a maintenance creditor referred to in Article 5(2) of that Regulation or Article 5(2) of that Convention.]

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

PART II Recovery of Maintenance (Reciprocating Jurisdictions)

5. Construction of Part II.

5.—This Part shall be construed as one with the F7[Jurisdiction of Courts and Enforcement of Judgments Act, 1998]F8[, the Brussels I Regulation and the 2007 Lugano Convention].

6. Interpretation of Part II.

6.—(1)In this Part—

F9[‘the Brussels Convention’means—

(a)the 1968 Convention, and

(b)the Accession Conventions,

as defined in the Act of 1998, and a reference to an Article of the Brussels Convention shall be construed as including a reference to the corresponding Article of the Lugano Convention;]

“central authority of a reciprocating jurisdiction” means—

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

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

F9[‘the Lugano Convention’has the meaning assigned to it by the Act of 1998;]

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

F10[‘reciprocating jurisdiction’means a Contracting State within the meaning of the Act of 1998 or, as appropriate, a Member State to which the Brussels I Regulation applies or a state bound by the 2007 Lugano Convention;]

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

(2)F11[(a) The Minister for Foreign Affairs and Trade may by order declare that any Contracting State (as defined in sections 4(1) or 17(1) of the Act of 1998) or a state bound by the 2007 Lugano Convention specified in the order is a reciprocating jurisdiction.]

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

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

(3)If a judgment or an instrument or settlement referred to in Article 50 or 51 of the Brussels Convention F12[, Article 57 or 58 of the Brussels I Regulation or Article 57 or 58 of the 2007 Lugano Convention] does not relate solely to maintenance, this Part shall apply only to those parts that relate to maintenance.

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

7. Application from reciprocating jurisdiction.

7.—(1)The Central Authority may, on receipt of an application for the recognition or enforcement in the State of a maintenance order which has been transmitted by a central authority of a reciprocating jurisdiction, send the application to the Master of the High Court for determination F13[in accordance with section 7 of the Act of 1998]F14[, the Brussels I Regulation or the 2007 Lugano Convention].

(2)F15[In the case of an application under the Brussels Convention or the Lugano Convention the Master shall consider it] privately and shall make an enforcement order unless it appears to the Master from the application and accompanying documents or from the Master’s own knowledge that its recognition and enforcement are prohibited by the Brussels Convention or the Lugano Convention.

F14[(2A) In the case of an application under the Brussels I Regulation or the 2007 Lugano Convention the Master shall determine it in accordance with Regulation 4 of the European Communities (Civil and Commercial Judgments) Regulations 2002.]

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

(4)(a) The notice to be served on a maintenance debtor under subsection (3) shall include a statement of the provisions of Article 36 (right of appeal against enforcement order) of the Brussels Convention F16[F14[, Article 43 of the Brussels I Regulation or Article 43 of the 2007 Lugano Convention], as appropriate].

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

(5)The Master may—

(a)accept an application under subsection (1) F17[…] as having been transmitted by the central authority of the reciprocating jurisdiction concerned, and

(b)accept the documents accompanying the application, namely—

(i)a request that the application be processed in accordance with the provisions of the Rome Convention,

(ii)a letter delegating to the Central Authority authority to act, or cause action to be taken, on behalf of the maintenance creditor, including specific authority to enable enforcement proceedings to be taken,

(iii)a document containing the name, date of birth, nationality and description of the maintenance debtor and all other relevant information regarding the identity, whereabouts or location of the assets, of the maintenance debtor,

(iv)a document required under Article 46 or 47 of the Brussels Convention F18[F14[, Articles 53, 54 or 57 of the Brussels I Regulation or Articles 53, 54 or 57 of the 2007 Lugano Convention], as appropriate,] to be produced by a party seeking recognition or applying for enforcement of a judgment, and

(v)any translation of such a document,

as being such request, letter, document or translation, as the case may be.

(6)If any of the documents mentioned in subsection (5) (b) are not produced, the Master may allow time for their production, accept equivalent documents or, if the Master considers that there is sufficient information available, dispense with their production.

(7)F19[…]

8. Evidence in proceedings.

8.—Subject to section 21 (4), in any proceedings under this Part, unless the court sees good reason to the contrary—

(a)a document purporting to be an application for the recognition or enforcement in the State of a maintenance order and to have been transmitted by a central authority of a reciprocating jurisdiction may be admitted as evidence that it is such an application and has been so transmitted, and

(b)a document purporting to be a document accompanying such an application and to be—

(i)a request that the application be processed in accordance with the provisions of the Rome Convention,

(ii)a letter delegating to the Central Authority authority to act, or cause action to be taken, on behalf of the maintenance creditor, including specific authority to enable enforcement proceedings to be taken, and

(iii)a document containing the name, date of birth, nationality and description of the maintenance debtor and all other relevant information regarding the identity, whereabouts, or location of the assets, of the maintenance debtor,

may be admitted as evidence of any matter to which it relates.

9. Amendment of section 1 of Act of 1988.

9.—F20[…]

10. Amendment of section 6 of Act of 1988.

10.—F20[…]

11. Amendment of section 7 of Act of 1988.

11.—F20[…]

12. Amendment of section 11 of Act of 1993.

12.—F20[…]

PART III Recovery of Maintenance (Designated Jurisdictions)

13. Interpretation of Part III.

13.—(1)In this Part, unless the context otherwise requires—

“central authority of a designated jurisdiction” means—

(a)a transmitting agency or receiving agency in a state which is a contracting party to the New York Convention, or

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

“claimant” means, according to the context, either—

(a)a person residing in a designated jurisdiction (including any body which under the law of that jurisdiction is entitled to exercise the rights of redress of, or to represent, that person) and claiming pursuant to this Part to be entitled to receive maintenance from a person residing in the State, or

(b)a person residing in the State (including a competent authority within the meaning of Part IX (Liability to Maintain Family) of the Social Welfare (Consolidation) Act, 1993) and claiming pursuant to this Part to be entitled to recover maintenance from a person residing in a designated jurisdiction;

“designated jurisdiction” means—

(a)any state which is a contracting party to the New York Convention, or

(b)any other state or jurisdiction which is declared by order of the Minister for Foreign Affairs to be a designated jurisdiction for the purposes of this Part;

“the New York Convention” means the Convention on the recovery abroad of maintenance done at New York on the 20th day of June, 1956, the text of which in the English language is set out, for convenience of reference, in the Second Schedule to this Act;

“respondent” means, according to the context, either—

(a)a person residing in the State from whom maintenance is sought to be recovered pursuant to this Part by a person residing in a designated jurisdiction, or

(b)a person residing in a designated jurisdiction from whom maintenance is sought to be recovered pursuant to this Part by a person residing in the State.

(2)(a)The Minister for Foreign Affairs may by order declare that any state or jurisdiction specified in the order is a designated jurisdiction.

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

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

(3)Subject to subsection (1), a word or expression in this Part which is used in the New York Convention has the same meaning as it has in that Convention.

14. Application for maintenance from designated jurisdiction.

14.—(1)On receipt of a request by the Central Authority from a central authority of a designated jurisdiction on behalf of a claimant for the recovery of maintenance from a person for the time being residing in the State (“the respondent”) the Central Authority may—

F24[(a)if the request is accompanied by an order of a court in a Contracting State (as defined in the Act of 1998), transmit the request to the Master of the High Court for determination in accordance withsection 7of the Act of 1998 andPart IIof this Act, and the other provisions of the Act of 1998 shall apply accordingly, with any necessary modifications,]

F25[(aa) if the request is accompanied by an order of a court of a Member State to which the Brussels I Regulation applies or by an order of a court of a state bound by the 2007 Lugano Convention, transmit the request to the Master of the High Court for determination in accordance with that Regulation or that Convention,]

(b)if the request is accompanied by an order made by any other court and the Central Authority is of opinion that the order may be enforceable in the State, apply to the District Court for the enforcement of the order, or

(c)if either the request is not accompanied by such an order or enforcement of the order is refused—

F26[(i)if the amount of the maintenance sought to be recovered exceeds the maximum amount which the District Court has jurisdiction to award under the Act of 1976 or the request is for a relief order (within the meaning of the Act of 1995) or a maintenance pending suit order, a periodical payments order, a secured periodical payments order or a lump sum order (within the meaning, in each case, of the Act of 1996), make an application to the Circuit Court,]

(ii)in any other case, make an application to the District Court,

for the recovery of maintenance in accordance with the request.

(2)The District Court, on an application to it under subsection (1) (b), may, if it considers that the order of the court in the designated jurisdiction for the recovery of maintenance is enforceable in the State, make an order for its enforcement and thereupon—

F27[(a)the order of the District Court shall be deemed to be an enforceable maintenance order as defined in the Act of 1998, and

(b)sections 8, 9 and 10 of that Act shall apply in relation to that order, with any necessary modifications.]

F28[(3)An application referred to in subsection (1) (c) shall be deemed to be an application for a maintenance order under section 5 or section 5A or 21A (inserted by theStatus of Children Act, 1987) of the Act of 1976, or the appropriate order referred to in subsection (1) (c) (i), as may be appropriate, and to have been made on the date on which the request of the claimant for the recovery of maintenance was received by the Central Authority of the designated jurisdiction concerned.]

(4)The court, on an application to it under subsection (1) (c) may, subject to subsection (5)—

(a)take evidence from the respondent by way of affidavit or on sworn deposition,

(b)cause a copy of the affidavit or deposition to be sent to the Central Authority for transmission to the central authority of the designated jurisdiction with a request that the claimant provide an answering affidavit,

(c)send letters of request pursuant to section 17 for the taking of further evidence in a designated jurisdiction,

(d)take the evidence of the claimant or of any witness residing in a designated jurisdiction through a live television link,

F29[(e)pending the final determination of the application, make an interim order under section 7 of the Act of 1976 or an order undersection 24of the Act of 1995.]

(5)Where it appears to the court that the claimant or respondent bona fide desires to cross-examine a witness and the witness is available for the cross-examination, whether through a live television link or otherwise, the court shall decline to permit the evidence of the witness to be given by affidavit.

(6)Notice of an application under paragraph (b) or (c) of subsection (1) shall be given to the respondent by the Central Authority and shall be accompanied by a copy of the documents proposed to be given in evidence by the Central Authority at the hearing of the application.

(7)Where—

(a)on an application pursuant to subsection (1) (c) it is necessary to take the evidence of the claimant or of any witness through a live television link, and