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This is the original version (as it was originally enacted).

60Further amendments of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland

(1)In section 31 of the [1972 c. 18.] Maintenance Orders (Reciprocal Enforcement) Act 1972 (which relates to applications for the recovery of maintenance in Scotland)—

(a)after subsection (1) there shall be inserted the following subsection—

(1A)In any proceedings arising out of such an application as aforesaid the sheriff may subject to subsection (4) below make, with respect to an application under subsection (1) above, such order as he thinks fit having regard to the respective means of the applicant and the person from whom recovery of maintenance is sought and to all the circumstances of the case.;

(b)in subsection (2)—

(i)after the word " sheriff" where it first occurs there shall be inserted the words " , or (on appeal or remit) the Court of Session, "; and

(ii)for the words " the sheriff clerk or sheriff clerk depute shall register the order in the prescribed manner in the court" there shall be substituted the words " the order shall be registered forthwith in the prescribed manner in the appropriate sheriff court by the sheriff clerk or sheriff clerk depute of that sheriff court; and where an order of the Court of Session varies or revokes a registered order of the sheriff, the said sheriff clerk or sheriff clerk depute shall amend the register accordingly ";

(c)after subsection (2) there shall be inserted the following subsection—

(2A)In subsection (2) above " the appropriate sheriff court" means the sheriff court making the order or (where the order is an order of the Court of Session) from which the remit or appeal has come.; and

(d)after subsection (3) there shall be inserted the following subsections—

(4)Where an application under subsection (1) above is for the recovery of maintenance from a person who is a former spouse of the applicant an order containing a provision requiring the payment of such maintenance for the benefit of the applicant shall not be made in respect of that application unless—

(i)the marriage between the applicant and the said former spouse has been dissolved by a divorce which has been granted in a convention country and which is recognised as valid by the law of Scotland ;

(ii)an order for the payment of maintenance for the benefit of the applicant has, in or 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 ; and

(iii)the court making the order under this section is satisfied that the former spouse of the applicant has failed to comply with the order mentioned in paragraph (ii) above.

(5)Without prejudice to any existing power of variation or revocation but subject to section 34(1) of this Act, subsections (4) and (5) of section 5 of the Divorce (Scotland) Act 1976 shall, where an order with respect to an application under subsection (1) above requires the payment of maintenance by a person to a former spouse of that person, apply to that order as they apply to an order under section 5 of the said Act of 1976.

(6)Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (which relates to the variation and recall by the sheriff of certain orders made by the Court of Session) shall not apply to an order of the Court of Session registered under subsection (2) above..

(2)In section 34 of the said Act of 1972 (which provides for the variation and revocation of orders), in subsection (5) after the word " Scotland " there shall be inserted the words—

(a)the words " and no court other than the registering court shall have power to vary or revoke a registered order " in subsection (1) above are subject to any power of the Court of Session on appeal; and

(b).

(3)In section 36 of the said Act of 1972 (which provides for the admissibility of written evidence), in subsection (1) after the words " magistrates' court or " there shall be inserted the words " in, or remitted from, a ".

(4)In section 39 of the said Act of 1972 (which relates to the interpretation of Part II of that Act), in the definition of " maintenance " for the words " means aliment" there shall be substituted the words " includes aliment and any sums which are payable, following divorce, as a periodical allowance ".

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