Domestic Proceedings and Magistrates' Courts Act 1978

JurisdictionUK Non-devolved
Citation1978 c. 22


Domestic Proceedings andMagistrates' Courts Act 1978

1978 CHAPTER 22

An Act to make fresh provision for matrimonial proceedings in magistrates' courts; to amend enactments relating to other proceedings so as to eliminate certain differences between the law relating to those proceedings and the law relating to matrimonial proceedings in magistrates' courts; to extend section 15 of the Justices of the Peace Act 1949; to amend Part II of the Magistrates' Courts Act 1952; to amend section 2 of the Administration of Justice Act 1964; to amend the Maintenance Orders (Reciprocal Enforcement) Act 1972; to amend certain enactments relating to adoption; and for purposes connected with those matters.

[30th June 1978]

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:—

I Matrimonial Proceedings in Magistrates' Courts

Part I

Matrimonial Proceedings in Magistrates' Courts

Powers of court to make orders for financial provision for parties to a marriage and children of the family

Powers of court to make orders for financial provision for parties to a marriage and children of the family

S-1 Grounds of application for financial provision.

1 Grounds of application for financial provision.

1. Either party to a marriage may apply to a magistrates' court for an order under section 2 of this Act on the ground that the other party to the marriage (in this Part of this Act referred to as ‘the respondent’)—

a ) has failed to provide reasonable maintenance for the applicant; or
b ) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family; or
c ) has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent or
d ) has deserted the applicant
S-2 Powers of court to make orders for financial provision.

2 Powers of court to make orders for financial provision.

(1) Where on an application for an order under this section the applicant satisfies the court of any ground mentioned in section 1 of this Act, the court may, subject to the provisions of this Part of this Act, make any one or more of the following orders, that is to say—

(a ) an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;

(b ) an order that the respondent shall pay to the applicant such lump sum as may be so specified;

(c ) an order that the respondent shall make to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such periodical payments, and for such term, as may be so specified;

(d ) an order that the respondent shall pay to the applicant for the benefit of a child of the family to whom the application relates, or to such a child, such lump sum as may be so specified.

(2) Without prejudice to the generality of subsection (1)(b ) or (d ) above, an order under this section for the payment of a lump sum may be made for the purpose of enabling any liability or expenses reasonably incurred in maintaining the applicant, or any child of the family to whom the application relates, before the making of the order to be met.

(3) The amount of any lump sum required to be paid by an order under this section shall not exceed 500 or such larger amount as the Secretary of State may from time to time by order fix for the purposes of this subsection.

Any order made by the Secretary of State under this subsection shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.

S-3 Matters to which court is to have regard in exercising its powers under s. 2.

3 Matters to which court is to have regard in exercising its powers under s. 2.

(1) Where an application is made for an order under section 2 of this Act, the court, in deciding whether to exercise its powers under subsection (1)(a ) or (b ) of that section and, if so, in what manner, shall have regard to the following matters, that is to say—

(a ) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b ) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c ) the standard of living enjoyed by the parties to the marriage before the occurrence of the conduct which is alleged as the ground of the application;

(d ) the age of each party to the marriage and the duration of the marriage;

(e ) any physical or mental disability of either of the parties to the marriage;

(f ) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g ) any other matter which in the circumstances of the case the court may consider relevant, including, so far as it is just to take it into account, the conduct of each of the parties in relation to the marriage.

(2) Where an application is made for an order under section 2 of this Act, the court, in deciding whether to exercise its powers under subsection (1)(c ) or (d ) of that section and, if so, in what manner, shall have regard to all the circumstances of the case including the following matters, that is to say—

(a ) the financial needs of the child;

(b ) the income, earning capacity (if any), property and other financial resources of the child;

(c ) any physical or mental disability of the child;

(d ) the standard of living enjoyed by the family before the occurrence of the conduct which is alleged as the ground of the application;

(e ) the manner in which the child was being and in which the parties to the marriage expected him to be educated or trained;

(f ) the matters mentioned in relation to the parties to the marriage in paragraphs (a ) and (b ) of subsection (1) above.

(3) The court, in deciding whether to exercise its powers under section 2(1)(c ) or (d ) of this Act in favour of a child of the family who is not the child of the respondent and, if so, in what manner, shall in addition to the matters mentioned in subsection (2) above have regard (among the circumstances of the case)—

(a ) to whether the respondent had assumed any responsibility for the child's maintenance and, if he did, to the extent to which, and the basis on which he assumed that responsibility and to the length of time during which he discharged that responsibility;

(b ) to whether in assuming and discharging that responsibility the respondent did so knowing that the child was not his own child;

(c ) to the liability of any other person to maintain the child.

S-4 Duration of orders for financial provision for a party to a marriage.

4 Duration of orders for financial provision for a party to a marriage.

(1) The term to be specified in any order made under section 2(1)(a ) of this Act shall be such term as the court thinks fit except that the term shall not begin earlier than the date of the making of the application for the order and shall not extend beyond the death of either of the parties to the marriage.

(2) Where an order is made under the said section 2(1)(a ) and the marriage of the parties affected by the order is subsequently dissolved or annulled but the order continues in force, the order shall, notwithstanding anything in it, cease to have effect on the remarriage of the party in whose favour it was made, except in relation to any arrears due under the order on the date of the remarriage.

S-5 Age limit on making orders for financial provision for children and duration of such orders.

5 Age limit on making orders for financial provision for children and duration of such orders.

(1) Subject to subsection (3) below, no order shall be made under section 2(1)(c ) or (d ) of this Act in favour of a child who has attained the age of eighteen.

(2) The term to be specified in an order made under section 2(1)(c ) of this Act in favour of a child may begin with the date of the making of an application for the order in question or any later date but—

(a ) shall not in the first instance extend beyond the date of the birthday of the child next following his attaining the upper limit of the compulsory school age (that is to say, the age that is for the time being that limit by virtue of section 35 of the Education Act 1944 together with any Order in Council made under that section) unless the court thinks it right in the circumstances of the case to specify a later date; and

(b ) shall not in any...

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