Domestic Proceedings and Magistrates’ Courts Act 1978

35 Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage [F1 or formation of civil partnership] . E+W

(1) Where—

(a) an order made under section 2(1)(a), 6 or 7 of this Act has, by virtue of section 4(2) of this Act, ceased to have effect by reason of the remarriage of[F2 , or formation of a civil partnership by,] the party in whose favour it was made, and

(b) the person liable to make payments under the order made payments in accordance with it in respect of a period after the date of that remarriage [F3 or the formation of that civil partnership ] in the mistaken belief that the order was still subsisting,

no proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) above shall be maintainable by the person so liable or his personal representatives against the person so entitled or his personal representatives, but on an application made under this section [F4 the family court] may exercise the powers conferred on it by subsection (2) below.

(2) [F5 The family court] may order the respondent to an application made under this section to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) above or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application.

(3) An application under this section may be made by the person liable to make payments under the order made under section 2(1)(a), 6 or 7 of this Act or his personal representatives and may be made against the person entitled to payments under that order or his personal representatives.

(4) An application under this section [F6 may (but need not)] be made in proceedings F7 ... for leave to enforce, or the enforcement of, the payment of arrears under an order made under section 2(1)(a), 6 or 7 of this Act F8 ...

(5) An order under this section for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.

F9 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) [F10 An officer of the family court,] and the collecting officer under an attachment of earnings order made to secure payments under [F11 an order made under section 2(1)(a), 6 or 7 of this Act], shall not be liable—

(a) in the case of [F12 an officer of the family court,] for any act done by him[F13 , in pursuance of an order made under section 2(1)(a), 6 or 7 of this Act requiring payments to be made to the court or an officer of the court,] after the date on which that order ceased to have effect by reason of the remarriage of[F14 , or formation of a civil partnership by,] the person entitled to payments under it, and

(b) in the case of the collecting officer, for any act done by him after that date in accordance with any enactment or rule of court specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with,

if, but only if, the act was one which he would have been under a duty to do had the [F15 order made under section 2(1)(a), 6 or 7 of this Act] not ceased to have effect by reason of the remarriage [F16 or the formation of that civil partnership] and the act was done before notice in writing of the fact that the person so entitled had remarried [F17 or formed a civil partnership] was given to him by or on behalf of that person, the person liable to make payments under the [F15 order made under section 2(1)(a), 6 or 7 of this Act] or the personal representatives of either of those persons.

(8) In this section “collecting officer”, in relation to an attachment of earnings order, means the officer of the High Court, [F18 or the officer designated by the Lord Chancellor] to whom a person makes payments in compliance with the order.

Textual Amendments

F1 Words in s. 35 heading inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(4); S.I. 2005/3175, art. 2(2)

F2 Words in s. 35(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(2)(a); S.I. 2005/3175, art. 2(2)

F3 Words in s. 35(1)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(2)(b); S.I. 2005/3175, art. 2(2)

F4 Words in s. 35(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(2); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F5 Words in s. 35(2) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(3); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F6 Words in s. 35(4) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(4)(a); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F7 Words in s. 35(4) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(4)(b); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F8 Words in s. 35(4) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(4)(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F9 S. 35(6) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(5); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F10 Words in s. 35(7) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(6)(a)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F11 Words in s. 35(7) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(6)(a)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F12 Words in s. 35(7)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(6)(b)(i); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F13 Words in s. 35(7)(a) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(6)(b)(ii); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F14 Words in s. 35(7)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(3)(a); S.I. 2005/3175, art. 2(2)

F15 Words in s. 35(7) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 84(6)(c); S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F16 Words in s. 35(7) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(3)(b)(i); S.I. 2005/3175, art. 2(2)

F17 Words in s. 35(7) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 58(3)(b)(ii); S.I. 2005/3175, art. 2(2)

F18 Words in s. 35(8) substituted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 196(3); S.I. 2005/910, art. 3(y)