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Domestic Proceedings and Magistrates' Courts Act 1978

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This is the original version (as it was originally enacted).

58Complaint by former spouse in convention country for recovery in England and Wales of maintenance from other spouse

After section 28 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 there shall be inserted the following section—

28AComplaint by former spouse in convention country for recovery in England and Wales of maintenance from other spouse.

(1)Where on an application under section 27(1) of this Act for the recovery of maintenance from a person who is residing in England and Wales—

(a)that person is a former spouse of the applicant in a convention country who is seeking to recover maintenance, and

(b)the marriage between the applicant and the former spouse has been dissolved by a divorce granted in a convention country which is recognised as valid by the law of England and Wales, and

(c)an order for the payment of maintenance for the benefit of the applicant or a child of the family has, by reason of the divorce proceedings in the convention country, been made by the court which granted the divorce or by any other court in that country,

the application shall, notwithstanding that the marriage has been dissolved, be treated as a complaint for an order under section 2 of the Domestic Proceedings and Magistrates' Courts Act 1978, and the provisions of this section shall have effect.

(2)On hearing a complaint by virtue of this section the magistrates' court may, if satisfied that the defendant has failed to comply with the provisions of any such order as is mentioned in subsection (1)(c) above, make any order which it has power to make under section 2 of section 19(1)(i) of the Domestic Proceedings and Magistrates' Courts Act 1978 except that—

(a)an order for the making of periodical payments for the benefit of the applicant or any child of the family shall not be made unless the order made in the convention country provides for the making of periodical payments for the benefit of the applicant or, as the case may be, that child, and

(b)an order for the payment of a lump sum for the benefit of the applicant or any child of the family shall not be made unless the order made in the convention country provides for the payment of a lump sum to the applicant or, as the case may be, to that child.

(3)Part I of the Domestic Proceedings and Magistrates' Courts Act 1978 shall apply in relation to any application which is treated by virtue of this section as a complaint for an order under section 2 of that Act, and in relation to any order made on the complaint, subject to the following modifications, that is to say—

(a)section 1 shall be omitted :

(b)for the reference in section 2(1) to any ground mentioned in section 1 of that Act there shall be substituted a reference to noncompliance with any such order as is mentioned in subsection (1)(c) of this section;

(c)in section 3(1) for the reference to the occurrence of the conduct which is alleged as the ground of the application there shall be substituted a reference to the breakdown of the marriage;

(d)in section 4(2) the reference to the subsequent dissolution or annulment of the marriage of the parties affected by the order shall be omitted;

(e)sections 6 to 18, 19(1)(ii), 21, 23(1), 24 to 28, 32(2), 33 and 34 shall be omitted.

(4)A divorce obtained in a convention country shall be presumed for the purposes of this section to be one the validity of which is recognised by the law of England and Wales, unless the contrary is proved by the defendant.

(5)The reference in subsection (1)(b) above to the dissolution of a marriage by divorce shall be construed as including a reference to the annulment of the marriage and any reference in this section to a divorce or to divorce proceedings shall be construed accordingly.

(6)In this section the expression "child of the family" has the same meaning as in section 88 of the Domestic Proceedings and Magistrates' Courts Act 1978..

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