The Family Law (Northern Ireland) Order 1993

Orders for periodical payment in courts of summary jurisdiction N.I.

7.—(1) For Articles 85 and 86 of the Magistrates' Courts (Northern Ireland) Order 1981F1 there shall be substituted—

“Orders for periodical payment: means of payment

85.— (1) In any case where a court of summary jurisdiction orders money to be paid periodically by one person ( “the debtor”) to another ( “the creditor”), then—

(a) if the order is a qualifying maintenance order, the court shall at the same time exercise one of its powers under sub-paragraphs (a) to (d) of paragraph (3);

(b) if the order is not a maintenance order, the court shall at the same time exercise one of its powers under sub-paragraphs (a) and (b) of that paragraph.

(2) For the purposes of this Article a maintenance order is a “qualifying maintenance order” if, at the time it is made, the debtor is ordinarily resident in Northern Ireland.

(3) The powers of the court are—

(a) the power to order that payments under the order be made directly by the debtor to the creditor;

(b) the power to order that payments under the order be made to the collecting officer;

(c) the power to order that payments under the order be made by the debtor to the creditor by such method of payment falling within paragraph (7) as may be specified;

(d) the power to make an attachment of earnings order under Part IX to secure payments under the order.

(4) The collecting officer shall be the clerk of petty sessions or such other person as may be appointed by the Lord Chancellor as collecting officer of the petty sessions district for which the court of summary jurisdiction making the order acts or the collecting officer of some other petty sessions district.

(5) In any case where—

(a) the court proposes to exercise its power under sub-paragraph (c) of paragraph (3), and

(b) having given the debtor an opportunity of opening an account from which payments under the order may be made in accordance with the method of payment proposed to be ordered under that paragraph, the court is satisfied that the debtor has failed, without reasonable excuse, to open such an account,

the court in exercising its power under that paragraph may order that the debtor open such an account.

(6) In deciding, in the case of a maintenance order, which of the powers under sub-paragraphs (a) to (d) of paragraph (3) it is to exercise, the court having (if practicable) given them an opportunity to make representations shall have regard to any representations made—

(a) by the debtor,

(b) by the creditor, and

(c) if the person who applied for the maintenance order is a person other than the creditor, by that other person.

(7) The methods of payment referred to in paragraph (3)(c) are the following, this is to say—

(a) payment by standing order; or

(b) payment by any other method which requires one person to give his authority for payments of a specific amount to be made from an account of his to an account of another's on specific dates during the period for which the authority is in force and without the need for any further authority from him.

(8) Where—

(a) in the case of an order which is a qualifying maintenance order under—

(i) the Illegitimate Children (Affiliation Orders) Act (Northern Ireland) 1924; or

(ii) the Domestic Proceedings (Northern Ireland) Order 1980,

the court does not propose to exercise its power under sub-paragraph (c) or (d) of paragraph (3); or

(b) in the case of an order which is not a maintenance order under that Act or that Order, the court does not propose to exercise its powers under sub-paragraph (a) of that paragraph,

the court shall, unless upon representations expressly made in that behalf by the person who applied for the order that it is satisfied that it is undesirable to do so, exercise its power under sub-paragraph (b) of that paragraph.

(9) The Lord Chancellor may by regulations confer on courts of summary jurisdiction, in addition to their powers under sub-paragraphs (a) to (d) of paragraph (3), the power (the “additional power”) to order that payments under a qualifying maintenance order be made by the debtor to the creditor or the collecting officer (as the regulations may provide) by such method of payment as may be specified in the regulations.

(10) Any reference in any statutory provision to sub-paragraphs (a) to (d) of paragraph (3) (but not a reference to any specific sub-paragraph of that paragraph) shall be taken to include a reference to the additional power, and the reference in paragraph (11) to the additional power shall be construed accordingly.

(11) Regulations under paragraph (9) may make provision for any statutory provision concerning, or connected with, payments under maintenance orders to apply, with or without modifications, in relation to the additional power.

(12) Regulations under paragraph (9) made by the Lord Chancellor shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.

(13) Where a court of summary jurisdiction makes an order under paragraph (3)(b) there may be paid to the collecting officer (other than an officer of the Northern Ireland Court Service) by the Lord Chancellor a sum in respect of his remuneration and expenses not exceeding such percentage of the money actually paid through him as may be fixed by the Lord Chancellor.

(14) The person against whom an order referred to in paragraph (3)(b) has been made shall give notice to the collecting officer of any change of his address; and any person who fails to give such notice without reasonable excuse shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(15) For the purposes of this Article—

• “debtor” and “creditor” shall be construed in accordance with paragraph (1);

• “maintenance order” means any order specified in Article 98(11) and includes any such order which has been rescinded, revoked or discharged if any arrears are recoverable under it;

and the reference in paragraph (1) to money paid periodically by one person to another includes, in the case of a maintenance order, a reference to a lump sum paid by instalments by one person to another.

Orders for periodical payment: proceedings by collecting officer

85A.— (1) Where payments under a relevant UK order are required to be made periodically—

(a) to or through the collecting officer, or

(b) by any method of payment falling within Article 85(7),

and any sums payable under the order are in arrear, the collecting officer of the relevant court shall, if the person for whose benefit the payments are required to be made so requests in writing, and unless it appears to the collecting officer that it is unreasonable in the circumstances to do so, proceed in his own name for the recovery of those sums.

(2) Where payments under a relevant UK order are required to be made periodically to or through the collecting officer, the person for whose benefit the payments are required to be made may, at any time during the period in which the payments are required to be so made, give authority in writing to the collecting officer of the relevant court for the collecting officer to proceed as mentioned in paragraph (3).

(3) Where authority under paragraph (2) is given to the collecting officer of the relevant court, the collecting officer shall, unless it appears to him that it is unreasonable in the circumstances to do so, proceed in his own name for the recovery of any sums payable to or through him under the order in question which, on or after the date of the giving of the authority, fall into arrear.

(4) In any case where—

(a) authority under paragraph (2) has been given to the collecting officer of a relevant court, and

(b) the person for whose benefit the payments are required to be made gives notice in writing to the collecting officer cancelling the authority,

the authority shall cease to have effect and, accordingly, the collecting officer shall not continue any proceedings already commenced by virtue of the authority.

(5) The person for whose benefit the payments are required to be made shall have the same liability for all the costs properly incurred in or about proceedings taken under paragraph (1) at his request or under paragraph (3) by virtue of his authority (including any costs incurred as a result of any proceedings commenced not being continued) as if the proceedings had been taken by him.

(6) Nothing in paragraph (1) or (3) shall affect any right of a person to proceed in his own name for the recovery of sums payable on his behalf under an order of any court.

(7) In this Article—

• “maintenance order” has the same meaning as it has in Article 85;

• “the relevant court”, in relation to an order, means—

  (a)

  in a case where payments under the order are required to be made to or through the collecting officer, a court of summary jurisdiction acting for the petty sessions district for which the collecting officer to or through whom the payments were required to be made acts; and

  (b)

  in a case where such payments are required to be made by any method of payment falling within Article 85(7), a court of summary jurisdiction acting for the petty sessions district for which the court of summary jurisdiction which made the order sat; or, if the order is not an order made by a court of summary jurisdiction but is an order registered in such a court under, or in accordance with, any statutory provision, the court of summary jurisdiction in which the order is registered;

• “relevant UK order” means—

  (a)

  an order made by a court of summary jurisdiction, other than an order made under Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972;

  (b)

  an order made by the High Court or a county court and registered under Part II of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966 in a court of summary jurisdiction; or

  (c)

  an order made by the High Court in England and Wales or by the Court of Session in Scotland registered in accordance with section 36 of the Civil Jurisdiction and Judgments Act 1982 in a court of summary jurisdiction; and

  (d)

  an order made by a county court or a magistrates' court in England and Wales or a sheriff court in Scotland and registered under Part II of the Maintenance Orders Act 1950 in a court of summary jurisdiction;

  and any reference to payments required to be made periodically includes, in the case of a maintenance order, a reference to instalments required to be paid in respect of a lump sum payable by instalments.

Maintenance orders: penalty for breach

85B.— (1) In any case where—

(a) payments under a relevant Northern Ireland maintenance order are required to be made periodically in the manner mentioned in sub-paragraph (a) or (b) of Article 85A(1), and

(b) the debtor fails, on or after the date of coming into operation of this Article, to comply with the order in so far as the order relates to the manner of payment concerned,

the person for whose benefit the payments are required to be made may make a complaint to a justice of the peace for the county court division which includes the petty sessions district for which the relevant court is acting giving details of the failure to comply.

(2) If the justice of peace is satisfied that the nature of the alleged failure to comply may be such as to justify the relevant court in exercising its power under paragraph (3), he shall issue a summons directed to the debtor requiring him to appear before the relevant court to answer the complaint.

(3) On the hearing of the complaint, the relevant court may order the debtor to pay a sum not exceeding £1000.

(4) Any sum ordered to be paid under paragraph (3) shall for the purposes of this Order be treated as adjudged to be paid by a conviction of a magistrates' court.

(5) In this Article—

• “debtor” has the same meaning as it has in Article 85;

• “maintenance order” has the same meaning as it has in Article 85;

• “the relevant court” has the same meaning as it has in Article 85A;

• “relevant Northern Ireland maintenance order” means—

  (a)

  a maintenance order made by a court of summary jurisdiction, other than an order made under Part II of the Maintenance Orders (Reciprocal Enforcement) Act 1972; or

  (b)

  an order made by the High Court or a county court and registered under Part II of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966 in a court of summary jurisdiction;

  and any reference to payments required to be made periodically includes a reference to instalments required to be paid in respect of a lump sum payable by instalments.

Revocation, variation, etc., of orders for periodical payment

86.— (1) Without prejudice to the provisions of any enactment specified in Article 98(11) and subject to Article 25(2) of the Domestic Proceedings (Northern Ireland) Order 1980, where a court of summary jurisdiction has made an order for money to be paid periodically by one person to another, the court may, by order on complaint, revoke, revive, discharge or vary the order.

(2) The power under paragraph (1) to vary an order shall include power to suspend the operation of any provision of the order temporarily and to revive the operation of any provision so suspended.

(3) Where the order mentioned in paragraph (1) is a maintenance order, the power under that paragraph to vary the order shall include power, if the court is satisfied that payment has not been made in accordance with the order, to exercise one of its powers under sub-paragraphs (a) to (d) of Article 85(3).

(4) In any case where—

(a) a court of summary jurisdiction has made a maintenance order, and

(b) payments under the order are required to be made by any method of payment falling within Article 85(7),

an interested party may apply in writing to the clerk of petty sessions for the order to be varied as mentioned in paragraph (5).

(5) Subject to paragraph (8), where an application has been made under paragraph (4), the clerk, after serving written notice of the application on any other interested party and allowing that party, within the period of 14 days from the date of the serving of that notice, an opportunity to make written representations, may vary the order to provide that payments under the order shall be made to the collecting officer.

(6) The clerk may proceed with an application under paragraph (4) notwithstanding that any such interested party as is referred to in paragraph (5) has not received written notice of the application.

(7) In paragraphs (4) to (6) “interested party”, in relation to a maintenance order, means—

(a) the debtor;

(b) the creditor; and

(c) if the person who applied for the maintenance order is a person other than the creditor, that other person.

(8) Where an application has been made under paragraph (4), the clerk may, if he considers it inappropriate to exercise his power under paragraph (5), refer the matter to the court which may vary the order by exercising one of its powers under sub-paragraphs (a) to (d) of Article 85(3).

(9) Paragraphs (5), (6) and (8) of Article 85 shall apply for the purposes of paragraphs (3) and (8) as they apply for the purposes of that Article.

(10) None of the powers of the court, or of the clerk of petty sessions, conferred by paragraphs (3) to (9) shall be exercisable in relation to a maintenance order which is not a qualifying maintenance order (within the meaning of Article 85).

(11) For the purposes of this Article—

• “creditor” and “debtor” have the same meaning as they have in Article 85;

• “maintenance order” has the same meaning as it has in Article 85; and

the reference in paragraph (1) to money paid periodically by one person to another includes, in the case of a maintenance order, a reference to a lump sum paid by instalments by one person to another.”.

(2) In Article 98 of the Magistrates' Courts (Northern Ireland) Order 1981F2 (enforcement of sums adjudged to be paid), after paragraph (8A) there shall be inserted—

“(8B) Upon the appearance of a person or proof of service of the summons on him as mentioned in paragraph (4) for the enforcement of an order to which this Article applies, the court or resident magistrate may vary the order by exercising one of the powers under sub-paragraphs (a) to (d) of Article 85(3).

(8C) Paragraphs (5), (6) and (8) of Article 85 shall apply for the purposes of paragraph (8) as they apply for the purposes of that Article.

(8D) Paragraphs (8B) and (8C) shall not have effect in relation to an order which is not a qualifying maintenance order (within the meaning of Article 85).” .

F1 1981 NI 26

F2 1981 NI 26