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Domestic Proceedings and Magistrates’ Courts Act 1978

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35 Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage.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 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 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 the court may exercise the powers conferred on it by subsection (2) below.

(2)The 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 shall be made to a county court, except that such an application may be made in proceedings in the High Court or a county court 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; and accordingly references in this section to the court are references to the High Court or a county court, as the circumstances require.

(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.

(6)The jurisdiction conferred on a county court by this section shall be exercisable by a county court notwithstanding that by reason of the amount claimed in an application under this section the jurisdiction would not but for this subsection be exercisable by a county court.

(7)[F1A justices’ chief executive] to whom any payments under an order made under section 2(1)(a), 6 or 7 of this Act are required to be made, and the collecting officer under an attachment of earnings order made to secure payments under the first mentioned order, shall not be liable—

(a)in the case of [F1the justices’ chief executive], for any act done by him in pursuance of the first mentioned order after the date on which that order ceased to have effect by reason of the remarriage of 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 first mentioned order not ceased to have effect by reason of the remarriage and the act was done before notice in writing of the fact that the person so entitled had remarried was given to him by or on behalf of that person, the person liable to make payments under the first mentioned order 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, the officer designated by the Lord Chancellor or the [F1justices’ chief executive]to whom a person makes payments in compliance with the order.

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Amendments (Textual)

F1Words in s. 35(7)(8) substituted (1.4.2001) by 1999 c. 22, s. 90, Sch. 13 para. 93 (with Sch. 14 para. 7(2)); S.I. 2001/916, art. 2(a)(ii) (with transitional provisions in Schs. 1, 2)

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