Maintenance Enforcement Act 1991
Maintenance EnforcementAct 1991
1991 CHAPTER 17
An Act to make provision as to the methods of payment, and the variation of the methods of payment, under maintenance orders made by the High Court and county courts; to re-enact with modifications certain provisions relating to the making and variation of orders requiring money to be paid periodically; to make further provision as to the making, variation and enforcement by magistrates' courts of maintenance orders; to make further provision about proceedings by clerks of magistrates' courts in relation to arrears under certain orders requiring money to be paid periodically; to make further provision as to maintenance orders registered in, or confirmed by, magistrates' courts or registered in the High Court; to extend the power to make attachment of earnings orders in the case of maintenance orders; to amend section 10 of the Courts and Legal Services Act 1990; and for connected purposes.
[27th June 1991]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
The High Court and county courts
1 Maintenance orders in the High Court and county courts: means of payment, attachment of earnings and revocation, variation, etc.
(1) Where the High Court or a county court makes a qualifying periodical maintenance order, it may at the same time exercise either of its powers under subsection (4) below in relation to the order, whether of its own motion or on an application made under this subsection by an interested party.
(2) For the purposes of this section, a periodical maintenance order is an order—
(a) which requires money to be paid periodically by one person (‘the debtor’) to another (‘the creditor’); and
(b) which is a maintenance order;
and such an order is a ‘qualifying periodical maintenance order’ if, at the time it is made, the debtor is ordinarily resident in England and Wales.
(3) Where the High Court or a county court has made a qualifying periodical maintenance order, it may at any later time—
(a) on an application made under this subsection by an interested party, or
(b) of its own motion, in the course of any proceedings concerning the order,
exercise either of its powers under subsection (4) below in relation to the order.
(4) The powers mentioned in subsections (1) and (3) above are—
(a) the power to order that payments required to be made by the debtor to the creditor under the qualifying periodical maintenance order in question shall be so made by such a method of payment falling within subsection (5) below as the court may specify in the particular case; or
(b) the power, by virtue of this section, to make an attachment of earnings order under the Attachment of Earnings Act 1971 to secure payments under the qualifying periodical maintenance order in question.
(5) The methods of payment mentioned in subsection (4)(a) above are—
(a) payment by standing order; or
(b) payment by any other method which requires the debtor to give his authority for payments of a specific amount to be made from an account of his to an account of the creditor's on specific dates during the period for which the authority is in force and without the need for any further authority from the debtor.
(6) In any case where—
(a) the court proposes to exercise its power under paragraph (a) of subsection (4) above, 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.
(7) Where in the exercise of its powers under subsection (1) or (3) above, the High Court or a county court has made in relation to a qualifying periodical maintenance order such an order as is mentioned in subsection (4)(a) above (a ‘means of payment order’), it may at any later time—
(a) on an application made under this subsection by an interested party, or
(b) of its own motion, in the course of any proceedings concerning the qualifying periodical maintenance order,
revoke, suspend, revive or vary the means of payment order.
(8) In deciding whether to exercise any of its powers under this section the court in question having (if practicable) given every interested party an opportunity to make representations shall have regard to any representations made by any such party.
(9) Nothing in this section shall be taken to prejudice—
(a) any power under the Attachment of Earnings Act 1971 which would, apart from this section, be exercisable by the High Court or a county court; or
(b) any right of any person to make any application under that Act;
and subsection (7) above is without prejudice to any other power of the High Court or a county court to revoke, suspend, revive or vary an order.
(10) For the purposes of this section—
‘debtor’ and ‘creditor’ shall be construed in accordance with subsection (2) above;
‘interested party’ means any of the following, that is to say—
(a) the debtor;
(b) the creditor; and
(c) in a case where the person who applied for the qualifying periodical maintenance order in question is a person other than the creditor, that other person;
‘maintenance order’ means any order specified in Schedule 8 to the Administration of Justice Act 1970 and includes any such order which has been discharged, if any arrears are recoverable under it;
‘qualifying periodical maintenance order’ shall be construed in accordance with subsection (2) above, and the references to such an order in subsections (3) and (7) above are references to any such order, whether made before or after the coming into force of this section:
and the reference in subsection (2) above to an order requiring money to be paid periodically by one person to another includes a reference to an order requiring a lump sum to be paid by instalments by one person to another.
Magistrates' courts
2 Orders for periodical payment in magistrates' courts: means of payment.
2. For section 59 of the Magistrates' Courts Act 1980(periodical payments through justices' clerk) there shall be substituted the following section—
59 ‘Orders for periodical payment: means of payment.
(1) In any case where a magistrates' court orders money to be paid periodically by one person (in this section referred to as ‘the debtor’) to another (in this section referred to as ‘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 paragraphs (a) to (d) of subsection (3) below;
(b) if the order is not a maintenance order, of that subsection.
(2) For the purposes of this section a maintenance order is a ‘qualifying maintenance order’ if, at the time it is made, the debtor is ordinarily resident in England and Wales.
(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 clerk of the court or to the clerk of any other magistrates' court;
(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 subsection (6) below as may be specified;
(d) the power to make an attachment of earnings order under the Attachment of Earnings Act 1971 to secure payments under the order.
(4) In any case where—
(a) the court proposes to exercise its power under paragraph (c) of subsection (3) above, 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.
(5) In deciding, in the case of a maintenance order, which of the powers under paragraphs (a) to (d) of subsection (3) above 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.
(6) The methods of payment referred to in subsection (3)(c) above are the following, that 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.
(7) Where the maintenance order is an order—
(a) under the Guardianship of Minors Acts 1971 and 1973,
(b) under Part I of the Domestic Proceedings and Magistrates' Courts Act 1978 , or
(c) under, or having effect as if made under, Schedule 1 to the Children Act 1989 ,
and the court does not propose to exercise its power under paragraph (c) or (d) of subsection (3) above, the court shall, unless upon representations expressly made in that...
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