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This is the original version (as it was originally enacted).

59Complaint by former wife in convention country for recovery in Northern Ireland of maintenance from former husband

After section 29 of the [1972 c. 18.] Maintenance Orders (Reciprocal Enforcement) Act 1972 there shall be inserted the following section—

29AComplaint by former wife in convention country for recovery in Northern Ireland of maintenance from former husband.

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

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

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

(c)an order for the payment of maintenance for the benefit of the applicant or a child of the marriage 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 3 of the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945, and the provisions of this section shall have effect.

(2)Subject to subsection (3) below, 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 3(1)(c) or (d) (payment of weekly sum for benefit of wife, or of a child committed to her custody) or section 4 (interim payments) of the Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945, treating, for the purposes of the said section 3(1)(d), a child whose legal custody has not been committed to any person as a child committed to the custody of the applicant.

(3)An order shall not be made by virtue of subsection (2) above for the payment of a weekly sum for the benefit of the applicant unless the order made in the convention country provides for the making of periodical payments for her benefit; nor shall an order be made by virtue of that subsection for the payment of a weekly sum for the benefit of a child of the marriage unless the order made in the convention country provides for the making of periodical payments for the benefit of that child.

(4)The Summary Jurisdiction (Separation and Maintenance) Act (Northern Ireland) 1945 shall apply in relation to any application which is treated by virtue of this section as a complaint for an order under section 3 of that Act, and in relation to any order made on the complaint, subject to the following modifications, that is to say—

(a)references to the husband or the wife shall be construed as references to, respectively, the former husband or the former wife, and references to the parties to the marriage shall be construed accordingly ;

(b)sections 1 and 2 shall be omitted ;

(c)for the reference in section 3(1) to an application under the foregoing provisions of that Act there shall be substituted a reference to an application such as is mentioned in subsection (1) above;

(d)in section 3, subsection (1)(a) and (b) and subsections (2) to (4) shall be omitted;

(e)payments made under section 3(1)(c) or (d) or section 4 shall be made in the prescribed manner to the prescribed person, instead of to such a person as is mentioned in those provisions (and accordingly subsection (9) of section 27 of this Act shall have effect as if those provisions were included among the enactments mentioned in that subsection);

(f)section 5(2) to (5) shall be omitted ;

(g)section 8 shall be omitted ;

(h)proviso (b) to section 13(1) shall be omitted.

(5)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 Northern Ireland, unless the contrary is proved by the defendant.

(6)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.

(7)In this section the expression " child of the marriage" shall be construed in accordance with section 8 of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966..

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