Décision No 1219 du Conseil permanent
Either party to a marriage may apply to the family court for an order under section 2 of this Act on the ground that the other party to the marriage ... —
has failed to provide reasonable maintenance for the applicant; or
has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family; or
has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or
has deserted the applicant.
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—
an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;
an order that the respondent shall pay to the applicant such lump sum as may be so specified;
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;
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.
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.
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 Lord Chancellor may from time to time by order fix for the purposes of this subsection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
An order made by the Lord Chancellor under this section—
shall be made only after consultation with the Lord Chief Justice;
shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament.
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
Where an application is made for an order under section 2 of this Act, it shall be the duty of the court, in deciding whether to exercise its powers under that section and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
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 ;
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future ;
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 ;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
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;
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.
As regards the exercise of its powers under subsection (1)(a) or (b) of section 2, the court shall in particular have regard to the following matters—
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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
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;
the age of each party to the marriage and the duration of the marriage;
any physical or mental disability of either of the parties to the marriage;
the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
As regards the exercise of its powers under subsection (1)(c) or (d) of section 2, the court shall in particular have regard to the following matters—
the financial needs of the child;
the income, earning capacity (if any), property and other financial resources of the child;
any physical or mental disability of the child;
the standard of living enjoyed by the family before the occurrence of the conduct which is alleged as the ground of the application;
the manner in which the child was being and in which the parties to the marriage expected him to be educated or trained;
the matters mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (2) above.
As regards the exercise of its powers under section 2 in favour of a child of the family who is not the child of the respondent, the court shall also have regard—
to whether the respondent has 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;
to whether in assuming and discharging that responsibility the respondent did so knowing that the child was not his own child;
to the liability of any other person to maintain the child.
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.
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, or formation of a civil partnership by, the party in whose favour it was made, except in relation to any arrears due under the order on the date of the remarriage or formation of the civil partnership.
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.
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 or a date ascertained in accordance with subsection (5) or (6) below but—
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 (construed in accordance with section 8 of the Education Act 1996)unless the court considers that in the circumstances of the case the welfare of the child requires that it should extend to a later date; and
shall not in any event, subject to subsection (3) below, extend beyond the date of the child’s eighteenth birthday.
The court—
may make an order under section 2(1)(c) or (d) of this Act in favour of a child who has attained the age of eighteen, and
may include in an order made under section 2(1)(c) of this Act in relation to a child who has not attained that age a provision for extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made to or for the benefit of that child,
if it appears to the court—
that the child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or
that there are special circumstances which justify the making of the order or provision.
Any order made under section 2(1)(c) of this Act in favour of a child shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order.
Where—
a maintenance assessmentmaintenance calculation (“the current assessmentcurrent calculation”) is in force with respect to a child; and
an application is made for an order under section 2(1)(c) of this Act— the term to be specified in any such order made on that application may be expressed to begin on, or at any time after, the earliest permitted date.
in accordance with section 8 of the Child Support Act 1991 ; and
before the end of the period of 6 months beginning with the making of the current assessmentcurrent calculation,
For the purposes of subsection (5) above, “the earliest permitted date ” is whichever is the later of—
the date 6 months before the application is made; or
the date on which the current assessmentcurrent calculation took effect or, where successive maintenance assessments have been continuously in force with respect to a child, on which the first of those assessmentsthose calculations took effect.
Where— the term to be specified in any such order, or in any interim order under section 19 of this Act, made on that application, may begin with the date on which that maintenance assessmentmaintenance calculation ceased to have effect or, as the case may be, the date with effect from which it was cancelled, or any later date.
a maintenance assessmentmaintenance calculation ceases to have effect or is cancelled by or under any provision of the Child Support Act 1991; and
an application is made, before the end of the period of 6 months beginning with the relevant date, for an order under section 2(1)(c) of this Act in relation to a child with respect to whom that maintenance assessmentmaintenance calculation was in force immediately before it ceased to have effect or was cancelled,
In subsection (7)(b) above—
where the maintenance assessmentmaintenance calculation ceased to have effect, the relevant date is the date on which it so ceased; and
where the maintenance assessment was cancelled, the relevant date is the later of—
the date on which the person who cancelled it did so, and
the date from which the cancellation first had effect.
Either party to a marriage may apply to the family court for an order under this section on the ground that either the party making the application or the other party to the marriage has agreed to make such financial provision as may be specified in the application and, subject to subsection (3) below, the court on such an application may, if— order that the applicant or the respondent, as the case may be, shall make the financial provision specified in the application.
it is satisfied that the applicant or the respondent, as the case may be, has agreed to make that provision, and
it has no reason to think that it would be contrary to the interests of justice to exercise its powers hereunder,
In this section “financial provision ” means the provision mentioned in any one or more of the following paragraphs, that is to say— and any reference in this section to the financial provision specified in an application made under subsection (1) above or specified by the court under subsection (5) below is a reference to the type of provision specified in the application or by the court, as the case may be, to the amount so specified as the amount of any payment to be made thereunder and, in the case of periodical payments, to the term so specified as the term for which the payments are to be made.
the making of periodical payments by one party to the other,
the payment of a lump sum by one party to the other,
the making of periodical payments by one party to a child of the family or to the other party for the benefit of such a child,
the payment by one party of a lump sum to a child of the family or to the other party for the benefit of such a child,
Where the financial provision specified in an application under subsection (1) above includes or consists of provision in respect of a child of the family, the court shall not make an order under that subsection unless it considers that the provision which the applicant or the respondent, as the case may be, has agreed to make in respect of that child provides for, or makes a proper contribution towards, the financial needs of the child.
A party to a marriage who has applied for an order under section 2 of this Act shall not be precluded at any time before the determination of that application from applying for an order under this section; but if an order is made under this section on the application of either party and either of them has also made an application for an order under section 2 of this Act, the application made for the order under section 2 shall be treated as if it had been withdrawn.
Where on an application under subsection (1) above the court decides—
that it would be contrary to the interests of justice to make an order for the making of the financial provision specified in the application, or
that any financial provision which the applicant or the respondent, as the case may be, has agreed to make in respect of a child of the family does not provide for, or make a proper contribution towards, the financial needs of that child,
if it appears to the court—
that it would not be contrary to the interests of justice to make an order for the making of some other financial provision specified by the court, and
that, in so far as that other financial provision contains any provision for a child of the family, it provides for, or makes a proper contribution towards, the financial needs of that child,
Subject to subsection (8) below, the provisions of section 4 of this Act shall apply in relation to an order under this section which requires periodical payments to be made to a party to a marriage for his own benefit as they apply in relation to an order under section 2(1)(a) of this Act.
Subject to subsection (8) below, the provisions of section 5 of this Act shall apply in relation to an order under this section for the making of financial provision in respect of a child of the family as they apply in relation to an order under section 2(1)(c) or (d) of this Act.
Where the court makes an order under this section which contains provision for the making of periodical payments and, by virtue of subsection (4) above, an application for an order under section 2 of this Act is treated as if it had been withdrawn, then the term which may be specified as the term for which the payments are to be made may begin with the date of the making of the application for the order under section 2 or any later date.
the consent of the respondent to the making of the order, and
the financial resources of the respondent.
Where the respondent is not present or represented by counsel or solicitor at the hearing of an application for an order under subsection (1) above, the court shall not make an order under this section unless there is produced to the court such evidence as may be prescribed by rules of court of—
the consent of the respondent to the making of the order,
the financial resources of the respondent, and
in a case where the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.
Where the parties to a marriage have been living apart for a continuous period exceeding three months, neither party having deserted the other, and one of the parties has been making periodical payments for the benefit of the other party or of a child of the family, that other party may apply to the family court for an order under this section, and any application made under this subsection shall specify the aggregate amount of the payments so made during the period of three months immediately preceding the date of the making of the application.
Where on an application for an order under this section the court is satisfied that the respondent has made the payments specified in the application, the court may, subject to the provisions of this Part of this Act, make one or both of the following orders, that is to say—
an order that the respondent shall make to the applicant such periodical payments, and for such term, as may be specified in the order;
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.
The court in the exercise of its powers under this section—
shall not require the respondent to make payments which exceed in aggregate during any period of three months the aggregate amount paid by him for the benefit of the applicant or a child of the family during the period of three months immediately preceding the date of the making of the application;
shall not require the respondent to make payments to or for the benefit of any person which exceed in amount the payments which the court considers that it would have required the respondent to make to or for the benefit of that person on an application under section 1 of this Act;
shall not require payments to be made to or for the benefit of a child of the family who is not a child of the respondent unless the court considers that it would have made an order in favour of that child on an application under section 1 of this Act.
Where on an application under this section the court considers that the orders which it has the power to make under this section— the court shall refuse to make an order under this section, but the court may treat the application as if it were an application for an order under section 2 of this Act.
would not provide reasonable maintenance for the applicant, or
if the application relates to a child of the family, would not provide, or make a proper contribution towards reasonable maintenance for that child,
The provisions of section 3 of this Act shall apply in relation to an application for an order under this section as they apply in relation to an application for an order under section 2 of this Act subject to the modification that for the reference in subsection (2)(c) of the said section 3 to the occurrence of the conduct which is alleged as the ground of the application there shall be substituted a reference to the living apart of the parties to the marriage.
The provisions of section 4 of this Act shall apply in relation to an order under this section which requires periodical payments to be made to the applicant for his own benefit as they apply in relation to an order under section 2(1)(a) of this Act.
The provisions of section 5 of this Act shall apply in relation to an order under this section for the making of periodical payments in respect of a child of the family as they apply in relation to an order under section 2(1)(c) of this Act.
Where an application is made by a party to a marriage for an order under section 2, 6 or 7 of this Act, then, if there is a child of the family who is under the age of eighteen, the court shall not dismiss or make a final order on the application until it has decided whether to exercise any of its powers under the Children Act 1989 with respect to the child.
Where an application is made by a party to a marriage for an order under section 2, 6 or 7 of this Act, then, if there is a child of the family who is under the age of eighteen, the court shall not dismiss or make a final order on the application until it has decided whether to exercise its powers under this section and, if so, in what manner.
On an application for an order under section 2, 6 or 7 of this Act the court, whether or not it makes an order under the said section 2, 6 or 7, shall have power to make such order regarding— as the court thinks fit,
the legal custody of any child of the family who is under the age of eighteen, and
access to any such child by either of the parties to the marriage or any other person who is a parent of that child,
An order shall not be made under subsection (2) above giving the legal custody of a child to a person other than a party to the marriage or a parent of the child; but, where the court is of opinion that legal custody should be given to a person who is not a party to the marriage or a parent of the child, it may direct that that person shall be treated as if he had applied for a custodianship order under section 33 of the Children Act 1975. Where a direction is given under this subsection in respect of a person who is not qualified to apply for a custodianship order under the said section 33, that person shall be treated as if he were so qualified and Part II of that Act (except section 40) shall have effect accordingly.
An order shall not be made under this section giving the legal custody of a child to more than one person ; but where the court makes an order giving the legal custody of a child to any person under this section, it may order that a party to the marriage in question who is not given the legal custody of the child shall retain all or such as the court may specify of the parental rights and duties comprised in legal custody (other than the right to the actual custody of the child) and shall have those rights and duties jointly with the person who is given the legal custody of the child.
An order made under subsection (2) above shall cease to have effect as respects any child when he attains the age of eighteen.
Where an order is made under subsection (2) above the court may direct that the order, or such provision thereof as the court may specify, shall not have effect until the occurrence of an event specified by the court or the expiration of a period so specified; and where the court has directed that the order, or any provision thereof, shall not have effect until the expiration of a specified period, the court may, at any time before the expiration of that period, direct that the order, or that provision thereof, shall not have effect until the expiration of such further period as the court may specify.
The court shall not have power to make—
an order under subsection (2) above with respect to a child in respect of whose custody an order made by a court in England and Wales is for the time being in force;
an order under subsection (2)(b) above with respect to a child who is already for the purposes of Part II of the Children Act 1948 in the care of a local authority.
In any proceedings in which the powers conferred on the court by subsection (2) above are or may be exercisable, the question whether, and if so in what manner, those powers should be exercised shall be excepted from the issues arising in the proceedings which, under the proviso to section 60(1) of the Magistrates' Courts Act 1952, must be determined by the court before the court may direct a probation officer to make to the court under that section a report on the means of the parties.
Where the court makes an order under section 8(2) of this Act regarding the legal custody of a child and it appears to the court that there are exceptional circumstances which make it desirable that the child should be under the supervision of an independent person, the court may order that the child shall be under the supervision of a local authority specified by the court or under the supervision of a probation officer.
Where the court decides to make an order under this section providing for supervision by a probation officer, it shall provide for supervision by a probation officer appointed for or assigned to the petty sessions area in which, in the opinion of the court, the child is or will be resident, and the officer responsible for carrying out the order shall be selected in like manner as if the order were a probation order.
An order made under this section shall cease to have effect as respects any child when he attains the age of eighteen.
The court shall not have power to make an order under this section in respect of any child who is already for the purposes of Part II of the Children Act 1948 in the care of a local authority.
Without prejudice to section 21 of this Act, for the purposes of any order made under this section providing for a child to be under the supervision of a local authority or a probation officer, provision may be made by rules for substituting from time to time a different local authority or, as the case may be, a probation officer appointed for or assigned to a different petty sessions area, if in the opinion of the court the child is or will be resident in the area of that authority or, as the case may be, that petty sessions area.
Where a court has power by virtue of section 8(2) of this Act to make an order regarding the legal custody of a child and it appears to the court that there are exceptional circumstances which make it impracticable or undesirable for the child to be entrusted to either of the parties to the marriage or to any other individual, the court may, if it thinks fit, make an order committing the care of the child to such local authority as may be specified in the order.
The authority specified in an order under this section shall be the local authority for the area in which the child was, in the opinion of the court, resident immediately before the order committing the child to the care of a local authority was made.
Before making an order under this section the court shall— but the court shall not be required to give any notification to the local authority under paragraph (a) above if an officer of the authority has already made to the court under section 12(3) of this Act a report which contains a recommendation that an order should be made under this section.
notify the local authority of their intention to make such an order, and
hear any representations from the local authority, including any representations as to the making of an order under section 11(4) of this Act for the making of periodical payments,
On the making of an order under this section— shall apply as if the child had been received by the local authority into their care under section 1 of that Act.
Part II of the Children Act 1948 (which relates to the treatment of children in the care of a local authority) except section 17 thereof (which relates to arrangements for the emigration of such children); and
for the purposes only of contributions by the child himself at a time when he has attained the age of sixteen and is engaged in remunerative full-time work, Part III of that Act (which relates to contributions towards the maintenance of children in the care of a local authority),
While an order made under this section is in force with respect to a child, the child shall continue in the care of the local authority notwithstanding any claim by a parent or other person.
An order made under this section shall cease to have effect as respects any child when he attains the age of eighteen.
The court shall not have power to make an order under this section with respect to a child who has attained the age of seventeen.
The court shall not have power to make an order under this section with respect to a child who is already for the purposes of Part II of the Children Act 1948 in the care of a local authority.
Where the court makes an order under this section with respect to a child, the court shall not have power to make an order under section 8(2)(b) of this Act with respect to that child.
Each parent or guardian of a child for the time being in the care of a local authority by virtue of an order made under this section shall give notice to the authority of any change of address of that parent or guardian, and any person who without reasonable excuse fails to comply with this subsection shall be liable on summary conviction to a fine not exceeding £50.
The Secretary of State may by order repeal subsection (7) above, and any such order shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Where on an application under section 1 of this Act the court, although not satisfied of any ground mentioned in that section, makes an order under section 8(2) of this Act giving to the applicant the right to the actual custody of a child of the family, the court shall have the same powers to make an order in respect of that child under section 2(1)(c) and (d) of this Act as the court would have if it were so satisfied.
Where by an order made under section 8(2) of this Act the right to the actual custody of a child is given to the respondent, the court may make one or both of the following orders, that is to say—
an order that the applicant shall make to the respondent for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
an order that the applicant shall pay to the respondent for the benefit of the child or to the child such lump sum as may be so specified.
Where by an order made under section 8(2) of this Act the legal custody of a child is given to a person who is a parent of that child but not a party to the marriage in question, the court may make one or more of the following orders, that is to say—
an order that a party to the marriage shall make to that parent for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
an order that a party to the marriage shall make to that parent for the benefit of the child or to the child such lump sum as may be so specified.
Where an order under section 10(1) of this Act commits the care of a child to a local authority the court may make a further order requiring a party to the marriage in question to make to that authority or to the child such periodical payments, and for such term, as may be specified in the order.
The court in deciding whether to exercise its powers under subsection (2), (3) or (4) above in relation to any child and, if so, in what manner, shall have regard to all the circumstances of the case including the matters to which the court is required to have regard under section 3(2) of this Act, and, in deciding whether to make an order against a party to the marriage who is not a parent of that child, shall also have regard (among the circumstances of the case)—
to whether that party had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed that responsibility and to the length of time for which he discharged that responsibility ;
to whether in assuming and discharging that responsibility that party did so knowing that the child was not his own child ;
to the liability of any other person to maintain the child.
The provisions of section 5 of this Act (other than subsection (3)(a)) shall apply in relation to an order under subsection (2)(a), (3)(a) or (4) above as they apply in relation to an order under section 2(1)(c) of this Act.
The provisions of section 2(2) and (3) of this Act shall apply in relation to an order under subsection (2)(b) or (3)(b) above as they apply in relation to an order under section 2(1)(d) of this Act and no order shall be made under subsection (2)(b) or (3)(b) above in respect of a child who has attained the age of eighteen.
Where the court, by virtue of subsection (6) of section 8 of this Act, directs that an order made under subsection (2) of that section in respect of a child, or the provision thereof providing for the custody of the child, shall not have effect until the expiration of a specified period or the occurrence of a specified event, an order made in respect of that child under subsection (2)(a) or (3)(a) above shall only require payments to be made from the date on which the order made under section 8(2) of this Act, or that provision thereof, takes effect.
Where an application is made by a party to a marriage for an order under section 2, 6 or 7 of this Act the court, before exercising its powers under sections 8 to 10 of this Act in respect of any child of the family, shall give each party to the marriage and any other person who, as a parent of that child, is present or represented by counsel or solicitor at the hearing, an opportunity of making representations; and any reference in this section to a party to the proceedings shall include a reference both to a party to the marriage and to any other such person who is present or represented.
Where in the case of such an application there is a child of the family who is not the child of both parties to the marriage in question, the court shall not exercise its powers under the said sections 8 to 10 in relation to that child unless either— except that notice shall not be required to be given under paragraph (b) above to any person as the father of an illegitimate child unless that person has been adjudged by a court to be the father of that child.
any person who is a parent of that child, though not a party to the marriage, is present or represented by counsel or solicitor at the hearing ; or
it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed by rules, that such steps have been taken as may be so prescribed with a view to giving notice to that person of the making of the application and of the time and place appointed for the hearing;
Where the court on such an application is of the opinion that it has not sufficient information to decide whether to exercise its powers under the said sections 8 to 10 and, if so, in what manner, the court may, at any stage of the proceedings on that application, request a local authority to arrange for an officer of the authority to make to the court a report, orally or in writing, with respect to any such matter as the court may specify (being a matter appearing to the court to be relevant to the decision) or may request a probation officer to make such a report to the court; and it shall be the duty of the local authority or probation officer to comply with the request.
Any report made in pursuance of subsection (3) above shall be made or, if in writing, furnished to the court at the hearing of the application, and, if the report is in writing—
a copy of the report shall be given to each party to the proceedings or to his counsel or solicitor either before or during the hearing, and
the court may, if it thinks fit, require that the report, or such part thereof as the court may specify, shall be read aloud at the hearing.
The court may, and if requested to do so at the hearing by a party to the proceedings or his counsel or solicitor shall, require the officer by whom the report was made to give evidence on or with respect to the matters referred to in the report, and, if the officer gives such evidence, any party to the proceedings may give or call evidence with respect to any matter referred to either in the report or in the evidence given by the officer.
Subject to subsection (7) below, the court may take account of— so far as that statement or evidence relates to any of the matters specified by the court under subsection (3) above, notwithstanding any enactment or rule of law relating to the admissibility of evidence.
any statement contained in a report made or furnished to the court under subsection (4) above, and
any evidence given under subsection (5) above by the officer by whom the report was made,
A report made in pursuance of subsection (3) above shall not include anything said by either of the parties to a marriage in the course of an interview which took place with, or in the presence of, a probation officer with a view to the reconciliation of those parties, unless both parties have consented to its inclusion ; and if anything so said is included without the consent of both those parties in any such report then, unless both those parties agree otherwise, that part of the report shall, for the purposes of the giving of evidence under subsection (5) above and for the purposes of subsection (6) above, be treated as not forming part of the report.
Where for the purposes of this section the court adjourns the hearing of any application, then, subject to section 46(2) of the Magistrates' Courts Act 1952 (which requires adequate notice of the time and place of the resumption of the hearing to be given to the parties), the court may resume the hearing at the time and place appointed notwithstanding the absence of any or all of the parties.
The power of the court under subsection (3) above to request a report may, at any time before the hearing of the application, be exercised by a single justice, and, if any such request is made by a single justice, the report shall be made or furnished to the court which hears the application and the foregoing provisions of this section shall apply accordingly.
Where two persons who have a parental right or duty jointly by virtue of an order under section 8(2) of this Act disagree on any question affecting the child's welfare, either of them may apply to a magistrates' court for its direction, and the court may make such order regarding the matters in difference as it thinks fit.
Where the court makes an order under subsection (1) above with respect to any child, the court may, on an application made by either of the persons who have a parental right or duty jointly, by order vary or revoke that order.
The power of the court under section 12(3) of this Act to request a local authority to arrange for an officer of the authority to make a report, or to request a probation officer to make a report, shall apply in relation to the exercise by the court of its powers under this section as it applies in relation to the exercise by the court of its powers under sections 8 to 10 of this Act, and the provisions of subsections (4) to (9) of the said section 12 shall apply accordingly.
A magistrates' court, on making an order under section 8(2) of this Act regarding the legal custody of a child or at any time while such an order is in force, shall have power, on an application made by a grandparent of the child, to make such order requiring access to the child to be given to that grandparent as the court thinks fit.
Subsections (5), (6), (7)(b) and (8) of section 8 and subsection (9) of section 10 of this Act shall apply in relation to an order under this section as they apply in relation to an order under section 8(2)(b) of this Act.
Where a magistrates' court has made an order under subsection (1) above requiring access to a child to be given to a grandparent, the court shall have power to vary or revoke that order on an application made—
by that grandparent, or
by either party to the marriage in question, or
if the child is not a child of both the parties to the marriage, by any person who though not a party to the marriage is a parent of that child.
Section 12 of this Act shall apply in relation to the exercise by a court of its powers under this section on an application under subsection (1) or (3) above as it applies in relation to the exercise by the court of its powers under sections 8 to 10 of this Act on an application under section 1 of this Act, and any reference to a party to the proceedings in subsection (4) or (5) of section 12 of this Act shall include—
in the case of an application under subsection (1) above, a reference to the grandparent who has made an application under that subsection ; and
in the case of an application under subsection (3) above, a reference to the grandparent who has access to the child under the order for the variation or revocation of which the application is made.
Where an order made under section 8(2)(a) of this Act in relation to a child ceases to have effect, whether by virtue of an order or direction of a magistrates' court or by virtue of any provision of this Part of this Act, any order made under this section regarding access to the child by a grandparent shall also cease to have effect.
A court shall have power to make an order under this section in favour of a grandparent of a child notwithstanding that the child is illegitimate.
Either party to a marriage may, whether or not an application is made by that party for an order under section 2 of this Act, apply to a magistrates' court for an order under this section.
Where on an application for an order under this section the court is satisfied that the respondent has used, or threatened to use, violence against the person of the applicant or a child of the family and that it is necessary for the protection of the applicant or a child of the family that an order should be made under this subsection, the court may make one or both of the following orders, that is to say—
an order that the respondent shall not use, or threaten to use, violence against the person of the applicant;
an order that the respondent shall not use, or threaten to use, violence against the person of a child of the family.
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that the respondent has used violence against the person of the applicant or a child of the family, or
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that the respondent has threatened to use violence against the person of the applicant or a child of the family and has used violence against some other person, or
that the respondent has in contravention of an order made under subsection (2) above threatened to use violence against the person of the applicant or a child of the family,
and that the applicant or a child of the family is in danger of being physically injured by the respondent (or would be in such danger if the applicant or child were to enter the matrimonial home) the court may make one or both of the following orders, that is to say—
an order requiring the respondent to leave the matrimonial home;
an order prohibiting the respondent from entering the matrimonial home.
Where the court makes an order under subsection (3) above, the court may, if it thinks fit, make a further order requiring the respondent to permit the applicant to enter and remain in the matrimonial home.
Where on an application for an order under this section the court considers that it is essential that the application should be heard without delay, the court may hear the application notwithstanding—
that the court does not include both a man and a woman,
that any member of the court is not a member of a domestic court panel, or
that the proceedings on the application are not separated from the hearing and determination of proceedings which are not domestic proceedings.
Where on an application for an order under this section the court is satisfied that there is imminent danger of physical injury to the applicant or a child of the family, the court may make an order under subsection (2) above notwithstanding— and any order made by virtue of this subsection is in this section and in section 17 of this Act referred to as an " expedited order ".
that the summons has not been served on the respondent or has not been served on the respondent within a reasonable time before the hearing of the application, or
that the summons requires the respondent to appear at some other time or place,
The power of the court to make, by virtue of subsection (6) above, an expedited order under subsection (2) above may be exercised by a single justice.
An expedited order shall not take effect until the date on which notice of the making of the order is served on the respondent in such manner as may be prescribed or, if the court specifies a later date as the date on which the order is to take effect, that later date, and an expedited order shall cease to have effect on whichever of the following dates occurs first, that is to say—
the date of the expiration of the period of 28 days beginning with the date of the making of the order ; or
the date of the commencement of the hearing, in accordance with the provisions of Part II of the Magistrates' Courts Act 1952, of the application for an order under this section.
An order under this section may be made subject to such exceptions or conditions as may be specified in the order and, subject in the case of an expedited order to subsection (8) above, may be made for such term as may be so specified.
The court in making an order under subsection (2)(a) or (b) above may include provision that the respondent shall not incite or assist any other person to use, or threaten to use, violence against the person of the applicant or, as the case may be, the child of the family.
A magistrates' court shall, on an application made by either party to the marriage in question, have power by order to vary or revoke any order made under section 16 of this Act.
Rules may be made for the purpose of giving effect to the provision of section 16 of this Act and any such rules may in particular, but without prejudice to the generality of this subsection, make provision for the hearing without delay of any application for an order under subsection (3) of that section.
The expiry by virtue of subsection (8) of section 16 of this Act of an expedited order shall not prejudice the making of a further expedited order under that section.
Except so far as the exercise by the respondent of a right to occupy the matrimonial home is suspended or restricted by virtue of an order made under subsection (3) of section 16 of this Act, an order made under that section shall not affect any estate or interest in the matrimonial home of the respondent or any other person.
Where a magistrates' court makes an order under section 16 of this Act which provides that the respondent— the court may, if it is satisfied that the respondent has physically injured the applicant or a child of the family and considers that he is likely to do so again, attach a power of arrest to the order.
shall not use violence against the person of the applicant, or
shall not use violence against a child of the family, or
shall not enter the matrimonial home,
Where by virtue of subsection (1) above a power of arrest is attached to an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of any such provision of the order as is mentioned in paragraph (a), (b) or (c) of subsection (1) above by reason of that person's use of violence or, as the case may be, his entry into the matrimonial home.
Where a power of arrest is attached to an order under subsection (1) above and the respondent is arrested under sub section (2) above— In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday, or any Sunday.
he shall be brought before a justice of the peace within a period of 24 hours beginning at the time of his arrest, and
the justice of the peace before whom he is brought may remand him.
Where a court has made an order under section 16 of this Act but has not attached to the order a power of arrest under subsection (1) above, then, if at any time the applicant for that order considers that the other party to the marriage in question has disobeyed the order, he may apply for the issue of a warrant for the arrest of that other party to a justice of the peace for the commission area in which either party to the marriage ordinarily resides; but a justice of the peace shall not issue a warrant on such an application unless—
the application is substantiated on oath, and
the justice has reasonable grounds for believing that the other party to the marriage has disobeyed that order.
The magistrates' court before whom any person is brought by virtue of a warrant issued under subsection (4) above may remand him.
“maintenance assessmentmaintenance calculation” has the same meaning as it has in the Child Support Act 1991 by virtue of section 54 of that Act as read with any regulations in force under that section.
the family court at any time before making a final order on, or dismissing, the application ......
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Where an application is made for an order under section 2, 6 or 7 of this Act—
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shall, subject to the provisions of this Part of this Act, have the following powers, that is to say—
power to make an order (in this Part of this Act referred to as an “interim maintenance order ”) which requires the respondent to make to the applicant or to any child of the family who is under the age of eighteen, or to the applicant for the benefit of such a child, such periodical payments as the court thinks reasonable;
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An interim maintenance order may provide for payments to be made from such date as the court may specify, except that, subject to section 5(5) and (6) of this Act, the date shall not be earlier than the date of the making of the application for an order under section 2, 6 or 7 of this Act....
Where an application is made for an order under section 6 of this Act by the party to the marriage who has agreed to make the financial provision specified in the application—
subsection (1) shall apply as if the reference in paragraph (i) to the respondent were a reference to the applicant and the references to the applicant were references to the respondent; and
subsection (3) shall apply accordingly.
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Subject to subsection (6) below, an interim order made on an application for an order under section 2, 6 or 7 of this Act shall cease to have effect on whichever of the following dates occurs first, that is to say—
the date, if any, specified for the purpose in the interim order;
the date of the expiration of the period of three months beginning with the date of the making of the interim order;
the date on which the family court either makes a final order on or dismisses the application.
Where an interim order made under subsection (1) above would, but for this subsection, cease to have effect by virtue of subsection (5)(a) or (b) above, the family court shall have power by order to provide that the interim order shall continue in force for a further period, and any order continued in force under this subsection shall cease to have effect on whichever of the following dates occurs first, that is to say—
the date, if any, specified for the purpose in the order made under this subsection;
the date of the expiration of the period of three months beginning with the date of the making of the order under this subsection or, if more than one order has been made under this subsection with respect to the application, beginning with the date of the making of the first of those orders;
the date on which the court either makes a final order on, or dismisses, the application.
Not more than one interim maintenance order . . . may be made with respect to any application for an order under section 2, 6 or 7 of this Act, but without prejudice to the powers of a court under this section on any further such application.
No appeal shall lie from the making of or refusal to make, the variation of or refusal to vary, or the revocation of or refusal to revoke, an interim maintenance order.
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Where the family court has made an order under section 2(1)(a) or (c) of this Act for the making of periodical payments the court shall have power, on an application made under this section, to vary or revoke that order and also to make an order under section 2(1)(b) or (d) of this Act.
Where the family court has made an order under section 6 of this Act for the making of periodical payments by a party to a marriage the court shall have power, on an application made under this section, to vary or revoke that order and also to make an order for the payment of a lump sum by that party either—
to the other party to the marriage, or
to a child of the family or to that other party for the benefit of that child.
Where the family court has made an order under section 7 of this Act for the making of periodical payments, the court shall have power, on an application made under this section, to vary or revoke that order.
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Where the family court has made an interim maintenance order under section 19 of this Act, the court, on an application made under this section, shall have power to vary or revoke that order, except that the court shall not by virtue of this subsection extend the period for which the order is in force.
The power of the court under this section to vary an order for the making of periodical payments shall include power to suspend any provision thereof temporarily and to revive any provision so suspended.
Where the court has power by virtue of this section to make an order for the payment of a lump sum, the amount of the lump sum shall not exceed the maximum amount that may at that time be required to be paid under section 2(3) of this Act, but the court may make an order for the payment of a lump sum not exceeding that amount notwithstanding that the person required to pay the lump sum was required to pay a lump sum by a previous order under this Part of this Act.
Where the court has power by virtue of subsection (2) above to make an order for the payment of a lump sum and the respondent or the applicant, as the case may be, has agreed to pay a lump sum of an amount exceeding the maximum amount that may at that time be required to be paid under section 2(3) of this Act, the court may, notwithstanding anything in subsection (7) above, make an order for the payment of a lump sum of that amount.
An order made by virtue of this section which varies an order for the making of periodical payments may, ... , provide that the payments as so varied shall be made from such date as the court may specify, except that, subject to subsections (9A) and (9B) below, the date shall not be earlier than the date of the making of the application under this section.
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Where— the court may, in exercise of its powers under this section to vary or revoke the order, direct that the variation or revocation shall take effect from the date on which the assessmentthe assessment took effect or any later date.
there is in force an order (“the order ”)—
under section 2(1)(c) of this Act,
under section 6(1) of this Act making provision of a kind mentioned in paragraph (c) of section 6(2) of this Act (regardless of whether it makes provision of any other kind mentioned in that paragraph),
under section 7(2)(b) of this Act, or
which is an interim maintenance order under which the payments are to be made to a child or to the applicant for the benefit of a child;
the order requires payments specified in it to be made to or for the benefit of more than one child without apportioning those payments between them;
a maintenance assessmentmaintenance calculation (“the assessmentthe calculation”) is made with respect to one or more, but not all, of the children with respect to whom those payments are to be made; and
an application is made, before the end of the period of 6 months beginning with the date on which the assessmentthe calculation was made, for the variation or revocation of the order,
In exercising the powers conferred by this section the court shall, so far as it appears to the court just to do so, give effect to any agreement which has been reached between the parties in relation to the application and, if there is no such agreement or if the court decides not to give effect to the agreement, the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates or, in the case of an application for the variation or revocation of an order made under section 6 of this Act or on an appeal under section 29 of this Act, to which the court would have been required to have regard if that order had been made under section 2 of this Act.
Where— the court may, in exercise of its powers under this section to vary or revoke the spousal order, direct that the variation or revocation shall take effect from the date on which the child order became so affected or any later date.
an order (“the child order ”) of a kind prescribed for the purposes of section 10(1) of the Child Support Act 1991 is affected by a maintenance assessmentmaintenance calculation;
on the date on which the child order became so affected there was in force an order (“the spousal order ”)—
under section 2(1)(a) of this Act,
under section 6(1) of this Act making provision of a kind mentioned in section 6(2)(a) of this Act (regardless of whether it makes provision of any other kind mentioned in that paragraph),
under section 7(2)(a) of this Act, or
which is an interim maintenance order under which the payments are to be made to the applicant (otherwise than for the benefit of a child); and
an application is made, before the end of the period of 6 months beginning with the date on which the maintenance assessmentmaintenance calculation was made, for the spousal order to be varied or revoked,
An application under this section may be made—
where it is for the variation or revocation of an order under section 2, 6, 7 or 19 of this Act for periodical payments, by either party to the marriage in question; and
where it is for the variation of an order under section 2(1)(c), 6 or 7 of this Act for periodical payments to or in respect of a child, also by the child himself, if he has attained the age of sixteen.
in the case of an order under section 11(4) of this Act for the making of periodical payments where a child of the family is committed to the care of a local authority, by that local authority or by the party to the marriage by whom the payments are required to be made,
For the purposes of subsection (9B) above, an order is affected if it ceases to have effect or is modified by or under section 10 of the Child Support Act 1991.
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Subject to subsections (7) and (8) below, the power of the court under section 20 of this Act to vary an order for the making of periodical payments 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 section 1(4) and (4A) of the Maintenance Enforcement Act 1991.
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Subsection (6) of section 1 of the Maintenance Enforcement Act 1991 (power of court to order that account be opened) shall apply for the purposes of subsection (1) above as it applies for the purposes of that section.
Before varying the order by exercising one of its powers under section 1(4) and (4A) of the Maintenance Enforcement Act 1991, the court shall have regard to any representations made by the parties to the application.
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None of the powers of the court ... conferred by this section shall be exercisable in relation to an order under this Part of this Act for the making of periodical payments unless, at the time when the order was made, the person required to make the payments was ordinarily resident in England and Wales.
Where on an application under section 1, 6 or 7 of this Act by a party to a marriage a magistrates' court has made an order in respect of a child of the family under section 8, 9 or 10 of this Act, either party to the marriage may apply to the court— and, on such an application, the court shall have power to make the order for which application is made and also to make such other order with respect to that child under section 8, 9 or 10 of this Act as it thinks fit.
in the case of an order under section 8 of this Act, for the variation or revocation of that order,
in the case of an order under section 9 of this Act, for the variation or revocation of that order, and
in the case of an order under section 10 of this Act, for the revocation of that order,
Where on an application made by a party to a marriage, a magistrates' court has made an order under section 2, 6 or 7 of this Act but has not exercised its powers under section 8, 9 or 10 of this Act with respect to a child of the family, either party to the marriage may, at any time while an order under section 2, 6 or 7 of this Act is in force, apply to the court for an order under section 8 of this Act and, on such an application, the court shall have power to make such order under section 8, 9 or 10 of this Act with respect to that child as the court thinks fit.
Where a magistrates' court has made an interim custody order under section 19 of this Act, the court shall have power, on an application made under this section by either party to the marriage in question, to vary or revoke that order, except that the court shall not by virtue of this subsection extend the period for which the order is in force.
On an application for an order under subsection (1) or (2) above the court shall not dismiss the application or make the order for which the application is made until it has decided whether to exercise its other powers under subsection (1) or (2) above and, if so, in what manner.
Section 12 of this Act shall apply in relation to the exercise by the court of its powers under this section on an application under subsection (1) or (2) above as it applies in relation to the exercise by the court of its powers under sections 8 to 10 of this Act on an application under section 1, 6 or 7 of this Act.
Any reference in section 11(2), (3) or (8) of this Act to an order made under section 8(2) of this Act includes a reference to an order made under the said section 8(2) by virtue of this section and to an order made under the said section 8(2) which is varied under this section, and any reference in section 11(4) of this Act to an order made under section 10(1) of this Act includes a reference to an order made under the said section 10(1) by virtue of this section, and where by virtue of an order under this section the right to the actual custody of a child is given to the person who made the original application for an order under section 1 or 6 of this Act, the court shall have power to make an order under section 2(1)(c) and (d) of this Act in respect of that child.
An application under this section may be made in the following cases by the following persons, in addition to the parties to the marriage in question, that is to say—
where a child of the family is not a child of both the parties to the marriage, an application under subsection (1), (2) or (3) above may be made by any person who, though not one of the parties to the marriage, is a parent of that child;
where by virtue of an order under section 9 of this Act a child of the family is under the supervision of a local authority or a probation officer, an application under subsection (1)(b) above may be made by that local authority or probation officer ;
where by virtue of an order under section 10 of this Act a child of the family is in the care of a local authority, an application under subsection (1)(c) above may be made by that local authority.
Where an order made by the family court under this Part of this Act for the making of periodical payments to or in respect of a child (other than an interim maintenance order) ceases to have effect— the child may apply to the court ... for an order for its revival.
on the date on which the child attains the age of sixteen, or
at any time after that date but before or on the date on which he attains the age of eighteen,
If on such an application it appears to the court that— the court shall have power by order to revive the order from such date as the court may specify, not being earlier than the date of the making of the application.
the child is, will be or (if an order were made under this subsection) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment, or
there are special circumstances which justify the making of an order under this subsection,
An order revived under this section may be varied or revoked under section 20 in the same way as it could have been varied or revoked had it continued in being.
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It is hereby declared that any jurisdiction conferred on a magistrates' court by virtue of section 20 or 21 of this Act is exercisable notwithstanding that the proceedings are brought by or against a person residing outside England and Wales.
Subject to subsection (3) below, a magistrates' court may, if it is satisfied that the respondent has been outside the United Kingdom during such period as may be prescribed by rules, proceed on an application made under section 20 or 21 of this Act notwithstanding that the respondent has not been served with the summons; and rules may prescribe any other matters as to which the court is to be satisfied before proceeding in such a case.
A magistrates' court shall not exercise its powers under section 20 of this Act so as to increase the amount of any periodical payments required to be made by any person under this Part of this Act unless the order under that section is made at a hearing at which that person appears or the requirements of section 47(3) of the Magistrates' Courts Act 1952 with respect to proof of service of summons or appearance on a previous occasion are satisfied in respect of that person.
Where— the order shall be enforceable notwithstanding that the parties to the marriage are living with each other at the date of the making of the order or that, although they are not living with each other at that date, they subsequently resume living with each other; but the order shall cease to have effect if after that date the parties continue to live with each other, or resume living with each other, for a continuous period exceeding six months.
periodical payments are required to be made to one of the parties to a marriage (whether for his own benefit or for the benefit of a child of the family) by an order made under section 2, or 6 of this Act or by an interim maintenance order made under section 19 of this Act (otherwise than on an application under section 7 of this Act), . . .
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Where any of the following orders is made under this Part of this Act, that is to say— then, unless the court otherwise directs, the order shall continue to have effect and be enforceable notwithstanding that the parties to the marriage in question are living with each other at the date of the making of the order or that, although they are not living with each other at that date, they subsequently resume living with each other.
an order under section 2, or 6 of this Act which requires periodical payments to be made to a child of the family, or
an interim maintenance order under section 19 of this Act (otherwise than on an application under section 7 of this Act) which requires periodical payments to be made to a child of the family,
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Any order made under section 7 of this Act, and any interim maintenance order made on an application for an order under that section, shall cease to have effect if the parties to the marriage resume living with each other.
Where an order made under this Part of this Act ceases to have effect by virtue of subsection (1) or (3) above or by virtue of a direction given under subsection (2) above, the family court may, on an application made by either party to the marriage, make an order declaring that the first mentioned order ceased to have effect from such date as the court may specify.
Where an application is made for an order under section 2 of this Act the court, before deciding whether to exercise its powers under that section, shall consider whether there is any possibility of reconciliation between the parties to the marriage in question; and if at any stage of the proceedings on that application it appears to the court that there is a reasonable possibility of such a reconciliation, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect a reconciliation.
Where the court adjourns any proceedings under subsection (1) above, it may request an officer of the Service (within the meaning of the Criminal Justice and Court Services Act 2000), a Welsh family proceedings officer (within the meaning given by section 35 of the Children Act 2004) or any other person to attempt to effect a reconciliation between the parties to the marriage, and where any such request is made, that officer or other person shall report in writing to the court whether the attempt has been successful or not, but shall not include in that report any other information.
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Where after the making by the family court of an order under this Part of this Act proceedings between, and relating to the marriage of, the parties to the proceedings in which that order was made have been commenced in the High Court or the family court, then, except in the case of an order for the payment of a lump sum, the court in which the proceedings or any application made therein are or is pending may, if it thinks fit, direct that the order under this Part shall cease to have effect on such date as may be specified in the direction.
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section 1(2) of the Matrimonial Homes Act 1967 (which enables an application to be made for an order relating to rights of occupation under that Act or relating to the exercise by either spouse of a right to occupy a dwelling house), or
section 4 of the Domestic Violence and Matrimonial Proceedings Act 1976 (which enables an application to be made for an order relating to the exercise of the right to occupy a dwelling house where both spouses have joint rights),
Nothing in this section shall be taken as prejudicing the effect of any order made by the High Court or the family court so far as it implicitly supersedes or revokes an order or part of an order made by the family court.
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Subject to section 27 of this Act, where a magistrates' court makes or refuses to make, varies or refuses to vary, revokes or refuses to revoke an order (other than an interim maintenance order) under this Part of this Act, an appeal shall lie to the High Court.
On an appeal under this section the High Court shall have power to make such orders as may be necessary to give effect to its determination of the appeal, including such incidental or consequential orders as appear to the court to be just, and, in the case of an appeal from a decision of a magistrates' court made on an application for or in respect of an order for the making of periodical payments, the High Court shall have power to order that its determination of the appeal shall have effect from such date as the court thinks fit, not being earlier than the date of the making of the application to the magistrates' court.
Without prejudice to the generality of subsection (2) above, where, on an appeal under this section in respect of an order of a magistrates' court requiring any person to make periodical payments, the High Court reduces the amount of those payments or discharges the order, the High Court shall have power to order the person entitled to payments under the order of the magistrates' court to pay to the person liable to make payments under that order such sum in respect of payments already made in compliance with the order as the court thinks fit and, if any arrears are due under the order of the magistrates' court, the High Court shall have power to remit the payment of those arrears or any part thereof.
Where on an appeal under this section in respect of an interim custody order made by a magistrates' court the High Court varies or revokes that order, the High Court shall have power to vary or revoke any interim maintenance order made in connection with that order by the magistrates' court.
Any order of the High Court made on an appeal under this section (other than an order directing that an application shall be reheard by a magistrates' court) shall for the purposes of the enforcement of the order and for the purposes of sections 14(3), 20 and 21 of this Act be treated as if it were an order of the magistrates' court from which the appeal was brought and not of the High Court.
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shall be exercisable notwithstanding that the respondent resides in Scotland or Northern Ireland if the applicant resides in England and Wales and the parties last ordinarily resided together as man and wife in England and Wales, and
is hereby declared to be exercisable where the applicant resides in Scotland or Northern Ireland if the respondent resides in England and Wales.
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It is hereby declared that any jurisdiction conferred on the family court by this Part of this Act is exercisable notwithstanding that any party to the proceedings is not domiciled in England.
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Where the hearing of an application under section 1 of this Act is adjourned after the court has decided that it is satisfied of any ground mentioned in that section, the court which resumes the hearing of that application may include justices who were not sitting when the hearing began if—
the parties to the proceedings agree ; and
at least one of the justices composing the court which resumes the hearing was sitting when the hearing of the application began.
Where, by virtue of subsection (1) above, among the justices composing the court which resumes the hearing of an application under section 1 of this Act there are any justices who were not sitting when the hearing of the application began, the court which resumes the hearing shall before making any order on the application make such inquiry into the facts and circumstances of the case as will enable the justices who were not sitting when the hearing began to be fully acquainted with those facts and circumstances.
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The family court when making an order under this Part of this Act for the making of a periodical payment by one person to another may direct that it shall be made to some third party on that other person’s behalf instead of directly to that other person ... .
Any person for the time being under an obligation to make payments in pursuance of any order for the payment of money made under this Part of this Act shall give notice of any change of address to such person, if any, as may be specified in the order; and any person who without reasonable excuse fails to give such a notice shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.
A person shall not be entitled to enforce through the family court the payment of any arrears due under an order made by virtue of this Part of this Act without the leave of that court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun.
The court hearing an application for the grant of leave under subsection (4) above may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment or the making of payment by instalments) as that court thinks proper, or may remit the payment of such arrears or any part thereof.
An application for the grant of leave under subsection (4) above shall be made in such manner as may be prescribed by rules of court.
Where a magistrates' court makes— the court, on making the order or at any time while the order is in force, may, if an application is made for an order under this section, by order direct that no person shall take the child out of England and Wales while the order made under this section is in force, except with the leave of the court.
an order under section 8(2) of this Act regarding the legal custody of a child, or
an interim custody order under section 19 of this Act in respect of a child,
A magistrates' court may by order vary or revoke any order made under this section.
An application for an order under subsection (1) above, or for the variation or revocation of such an order, may be made by either party to the marriage in question and also, in the case of an order made under section 8(2) or 19 of this Act with respect to a child of the family who is not a child of both the parties to the marriage, by any person who, though not one of the parties to the marriage, is a parent of that child.
Where— no proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) above shall be maintainable by the person so liable or his personal representatives against the person so entitled or his personal representatives, but on an application made under this section the family court may exercise the powers conferred on it by subsection (2) below.
an order made under section 2(1)(a), 6 or 7 of this Act has, by virtue of section 4(2) of this Act, ceased to have effect by reason of the remarriage of, or formation of a civil partnership by, the party in whose favour it was made, and
the person liable to make payments under the order made payments in accordance with it in respect of a period after the date of that remarriage or the formation of that civil partnership in the mistaken belief that the order was still subsisting,
The family court may order the respondent to an application made under this section to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) above or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application.
An application under this section may be made by the person liable to make payments under the order made under section 2(1)(a), 6 or 7 of this Act or his personal representatives and may be made against the person entitled to payments under that order or his personal representatives.
An application under this section may (but need not) be made in proceedings ... for leave to enforce, or the enforcement of, the payment of arrears under an order made under section 2(1)(a), 6 or 7 of this Act ...
An order under this section for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.
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An officer of the family court, and the collecting officer under an attachment of earnings order made to secure payments under an order made under section 2(1)(a), 6 or 7 of this Act, shall not be liable— if, but only if, the act was one which he would have been under a duty to do had the order made under section 2(1)(a), 6 or 7 of this Act not ceased to have effect by reason of the remarriage or the formation of that civil partnership and the act was done before notice in writing of the fact that the person so entitled had remarried or formed a civil partnership was given to him by or on behalf of that person, the person liable to make payments under the order made under section 2(1)(a), 6 or 7 of this Act or the personal representatives of either of those persons.
in the case of an officer of the family court, for any act done by him, in pursuance of an order made under section 2(1)(a), 6 or 7 of this Act requiring payments to be made to the court or an officer of the court, after the date on which that order ceased to have effect by reason of the remarriage of, or formation of a civil partnership by, the person entitled to payments under it, and
in the case of the collecting officer, for any act done by him after that date in accordance with any enactment or rule of court specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with,
In this section “collecting officer”, in relation to an attachment of earnings order, means the officer of the High Court, or the officer designated by the Lord Chancellor to whom a person makes payments in compliance with the order.
In the Guardianship of Minors Act 1971—
for the word " custody " in each place (except in section 13) where that word occurs there shall be substituted the words " legal custody ";
in section 13(1) for the words "legal custody" there shall be substituted the words " actual custody ";
in section 20(2) after the word "Act" there shall be inserted the words " ' actual custody', as respect a child, means the actual possession of the person of the child,' legal custody ' shall be construed in accordance with Part IV of the Children Act 1975 and ".
In the Guardianship Act 1973 for the word " custody " in each place where that word occurs there shall be substituted the words " legal custody " and at the end of section 1(1) of that Act there shall be added the following paragraph—.
Section 15(2)(a) of the Guardianship of Minors Act 1971 (which provides that a magistrates' court shall not entertain an application relating to a minor over sixteen unless the minor is physically or mentally incapable of self-support) shall cease to have effect.
In section 2(2) of the Guardianship Act 1973 (which provides that supervision orders and orders committing the care of a minor to a local authority shall only be made in relation to a minor who is under sixteen) for the words "where an application made under section 9 of the Guardianship of Minors Act 1971 relates to the custody of a minor under the age of sixteen " there shall be substituted the words " where an application is made under section 9 of the Guardianship of Minors Act 1971 for an order regarding the custody of a minor ".
In section 3(2) of the Guardianship Act 1973 (which provides that a supervision order shall cease to have effect when a minor becomes sixteen) for the words " age of sixteen " there shall be substituted the words " age of eighteen ".
In section 4 of the Guardianship Act 1973 (which relates to orders committing the care of a minor to a local authority) after subsection (2) there shall be inserted the following subsection—.
The provisions of sections 9, 10 and 11 of the Guardianship of Minors Act 1971 relating to orders for maintenance shall have effect subject to the provisions of this section.
In section 9 of that Act for subsection (2) there shall be substituted the following subsection—
In section 10(1) of that Act for paragraph (b) there shall be substituted the following paragraph—. and in subsection (2) of that section after the words " any order " there shall be inserted the words " (other than an order for the payment of a lump sum) " .
In section 11 of that Act for paragraph (b) there shall be substituted the following paragraph—. and in paragraph (c) after the words " any order " there shall be inserted the words " (other than an order for the payment of a lump sum) ".
In section 2 of the Guardianship Act 1973 the following subsections shall be substituted for subsection (3)—
At the end of subsection (3A) of section 4 of the Guardian-ship Act 1973 there shall be inserted—and in the case of an order under section 2(3) above requiring payments to be made to or in respect of a minor an application for the variation of the order may, if the minor has attained the age of sixteen, be made by the minor himself..
The provisions of section 2 of the Guardianship Act 1973 relating to interim orders shall have effect subject to the provisions of this section.
For subsection (4) of the said section 2 there shall be substituted the following subsection—.
In subsection (5) of the said section 2 the words from " but an interim order " to the end of the subsection shall be omitted.
At the end of subsection (5) of the said section 2 there shall be inserted the following subsections—.
In section 15 of the Guardianship of Minors Act 1971 (which relates to the courts which have jurisdiction under that Act) in subsections (1) and (4) for the words " magistrates' court having jurisdiction in the place " there shall be substituted the words " magistrates' court appointed for the commission area (within the meaning of the Administration of Justice Act 1973) ".
The powers of a magistrates' court to revoke, revive or vary under section 53 of the Magistrates' Courts Act 1952 an order for the periodical payment of money and to suspend or rescind under section 54(2) of that Act certain other orders shall not apply in relation to an order made under the Guardianship of Minors Act 1971 or under the Guardianship Act 1973.
in subsection (1) for the words "acting for the petty sessions area (within the meaning of the Magistrates' Courts Act 1952) " there shall be substituted the words " appointed for the commission area (within the meaning of section 1 of the Administration of Justice Act 1973) " and for the words " for the said petty sessions area " there shall be substituted the words " appointed for the said area " , and
in subsection (3) for the words " acting for the same petty sessions area " there shall be substituted the words " appointed for the same commission area ".
containing one or both of the following provisions—
For section 4(3) of the said Act there shall be substituted the following subsections—.
In section 5(1) of the Affiliation Proceedings Act 1957 (which relates to the persons entitled to payments under an affiliation order) after the words " child's mother" there shall be inserted the words " for the benefit of the child or the child himself ".
In section 5(3) of the said Act (which enables payments under an affiliation order to be made to the person who for the time being has the custody of the child) for the words " entitle that person to any payments to be made under the order" there shall be substituted the words " provide that the person entitled to payments under the order shall be that person for the benefit of the child or the child himself ".
In section 5(4) of the said Act (which provides that a person appointed as guardian under that subsection shall be entitled to payments under an affiliation order) for the words from " a person appointed" to the words " affiliation order and " there shall be substituted the words " where the court has appointed a person as guardian under this subsection the court may provide that the person entitled to any payments to be made under the affiliation order shall be that guardian for the benefit of the child or the child himself and the guardian. ".
For section 6 of the Affiliation Proceedings Act 1957 (which relates to the duration of affiliation orders) there shall be substituted the following section—.
Subsections (1) to (3) of section 7 of the Affiliation Proceedings Act 1957 shall cease to have effect, and in subsection (4) of that section for the words "the foregoing provisions of this section or in any order made by virtue of this section" there shall be substituted the words " section 6 of this Act " and in paragraph (b) of that subsection after the words " child's mother" there shall be inserted the words " or the child himself ".
The provisions of Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 relating to the date of operation of orders made in a reciprocating country and registered in the United Kingdom and of orders varying or revoking orders to which that Part relates shall have effect subject to the following amendments—
in section 5(7) of that Act for the words “the date on which the order was made ” there shall be substituted the words “the date on which under the provisions of the order the variation is to take effect ” ;
in section 5(8) of that Act for the words “the date on which the order was made ” there shall be substituted the words “the date on which under the provisions of the order the revocation is to take effect ” ;
in section 8(7) of that Act for the words “the date on which the order was made ” there shall be substituted the words “the date on which they are required to be paid under the provisions of the order ” ;
in section 8(8) of that Act for the words “such date being a date later than the date on which the order was made ” there shall be substituted the words “the date on which they are required to be paid under the provisions of the order or such later date ” ;
in section 9(8) of that Act for the words “the date on which the order was made ” there shall be substituted the words “the date on which under the provisions of the order the variation is to take effect ” ; and
in section 9(9) of that Act for the words “the date on which the order was made ” there shall be substituted the words “the date on which under the provisions of the order the revocation is to take effect ”.
In section 21 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (which relates to the interpretation of Part I of that Act)—
in subsection (1)—
the definition of “maintenance ”shall cease to have effect ; and
after the words “liable to maintain ” in paragraph (a) of the definition of “maintenance order ” there shall be inserted the following paragraph— ; and
in subsection (2), after the words “subsection (1) above ” there shall be inserted the words “, to the payment of a periodical allowance as mentioned in paragraph (aa) of that definition, ”.
In section 27(2) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (which relates to the jurisdiction of a magistrates’ court to hear an application by a person in a convention country for an affiliation order) after the words “magistrates’ court ” there shall be inserted the words “appointed for the commission area (within the meaning of section I of the Administration of Justice Act 1973) or ” and the words “petty sessions area or ” shall be omitted.
After section 29 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 there shall be inserted the following section—.
In section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (which relates to applications for the recovery of maintenance in Scotland)—
after subsection (1) there shall be inserted the following subsection— ;
in subsection (2)—
after the word “sheriff ” where it first occurs there shall be inserted the words “, or (on appeal or remit) the Court of Session, ” ; and
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 ” ;
after subsection (2) there shall be inserted the following subsection— ; and
after subsection (3) there shall be inserted the following subsections—.
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—— .
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 ”.
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 ”.
After section 43 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 there shall be inserted the following section—.
In section 4 of the Matrimonial Causes Act 1973 (which relates to petitions for divorce presented after the granting of a decree of judicial separation or an order in matrimonial proceedings in a magistrates’ court)—
in subsection (3) after the words “judicial separation or ” there shall be inserted the words “(subject to subsection (5) below) ” ;
at the end of the section there shall be added the following subsections—.
For subsection (1) of section 27 of the Matrimonial Causes Act 1973 there shall be substituted the following subsection—
For subsections (3) and (4) of the said section 27 there shall be substituted the following subsections—.
In subsection (6) of the said section 27 for the words “such one or more of the following orders as it thinks just ” there shall be substituted the words “any one or more of the following orders ”.
After subsection (6) of the said section 27 there shall be inserted the following subsections—.
Subsection (8) of the said section 27 shall cease to have effect.
Section 35 of the Children Act 1975 (which relates to the revocation and variation of orders) shall have effect subject to the provisions of this section.
In subsection (3) of the said section 35 after the words " section 34 " there shall be inserted the words " (other than an order under subsection (1)(c)) ".
In subsection (4) of the said section 35 for the words " such an order " there shall be substituted the words " an order made under that section (other than an order under subsection (1)(c)) ".
After subsection (4) of the said section 35 there shall be inserted the following subsection—.
In subsection (5) of the said section 35 for the words " section 34" there shall be substituted the words " section 34(1)(a), (b) or (e) ".
In subsection (6) of the said section 35 for the words " section 34" there shall be substituted the words " section 34(1)(a) ".
At the end of the said section 35 there shall be added the following subsections—.
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In section 17(1) of the Children Act 1975 (which enables the court, on the refusal of an adoption order, to make a supervision order or commit the child to the care of a local authority) the words " under the age of 16 " shall be omitted.
In section 26(1) of the Adoption Act 1976 (which enables the court, on the refusal of an adoption order, to make a supervision order or commit the child to the care of a local authority) the words " under the age of 16 years " shall be omitted.
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in subsection (1) for the word " proceedings" there shall be substituted the words " adoption proceedings " and the words " under this Part " shall be omitted ;
in subsection (2) for the words " all proceedings " there shall be substituted the words " adoption proceedings " and the words " under this Part" shall be omitted;
after subsection (2) there shall be inserted the following subsection—.
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In section 6(1) of the Adoption (Hague Convention) Act (Northern Ireland) 1969 after the word “annul ” there shall be inserted the words “an adoption effected by a convention adoption order or ” ; and in section 7(2) of that Act the words “in respect of a foreign convention adoption ” shall be omitted.
The power to vary an order by virtue of this section shall include power to suspend the operation of any provision of that order temporarily and to revive the operation of any provision so suspended.
After section 53 of the Magistrates' Courts Act 1952 there shall be inserted the following section—.
In section 54(3) of the Magistrates' Courts Act 1952 (which provides penalties for disobeying orders other than for the payment of money) for the words from " the court may " to the end of the subsection there shall be substituted the words " the court may— but a person who is ordered to pay a sum for every day during which he is in default or who is committed to custody until he has remedied his default shall not by virtue of this section be ordered to pay more than £1,000 or be committed for more than two months in all for doing or abstaining from doing the same thing contrary to the order (without prejudice to the operation of this section in relation to any subsequent default).".
order him to pay a sum not exceeding £50 for every day during which he is in default or a sum not exceeding £1,000; or
commit him to custody until he has remedied his default or for a period not exceeding two months;
For subsection (4) of the said section 54 there shall be substituted the following subsection—.
For subsection (1) of section 56 of the Magistrates' Courts Act 1952 (which defines " domestic proceedings " for the purposes of that Act) there shall be substituted the following subsections—
After section 56 of the Magistrates' Courts Act 1952 there shall be inserted the following sections—.
For subsection (2) of section 57 of the Magistrates' Courts Act 1952 there shall be substituted the following subsection—.
After subsection (2) of section 57 of the Magistrates' Courts Act 1952 there shall be inserted the following subsections—.
In subsection (1) of section 58 of the Magistrates' Courts Act 1952 (which relates to newspaper reports of domestic proceedings) at the beginning there shall be inserted the words " In the case of domestic proceedings in a magistrates' court (other than proceedings under the Adoption Act 1976) " and for the words " domestic proceedings in a magistrates' court" there shall be substituted the words " the proceedings ".
After subsection (1) of the said section 58 there shall be inserted the following subsections—.
For subsection (2) of the said section 58 there shall be substituted the following subsection—.
Section 60 of the Magistrates' Courts Act 1952 (which provides that a court which has requested a probation officer to investigate the means of parties may require the probation officer to furnish to the court a statement in writing or make an oral statement about his investigation) shall have effect subject to the following provisions—
in subsection (1) the word " periodical" and the words " or in any proceedings in any matter of bastardy " shall be omitted;
in subsection (2) the words " which shall be read aloud in the presence of such parties to the proceedings as may be present at the hearing " shall be omitted;
for subsection (3) there shall be substituted the following subsections—;
in subsection (4) for the words " subsection (3)" there shall be substituted the words " subsection (3A) ".
The power to make rules conferred by section 15 of the Justices of the Peace Act 1949 shall, without prejudice to the generality of subsection (1) of that section, include power to make provision for the recording by a magistrates' court, in such manner as may be prescribed by the rules, of reasons for a decision made in such domestic proceedings or class of domestic proceedings as may be so prescribed, and for making available a copy of any record made in accordance with those rules of the reasons for a decision of a magistrates' court to any person who requests a copy thereof for the purposes of an appeal against that decision or for the purpose of deciding whether or not to appeal against that decision.
A copy of any record made by virtue of this section of the reasons for a decision of a magistrates' court shall, if certified by such officer of the court as may be prescribed, be admissible as evidence of those reasons.
The power to make rules conferred by section 15 of the Justices of the Peace Act 1949 shall, without prejudice to the generality of subsection (1) of that section, include power to make provision—
for enabling a person to make one complaint for the recovery of payments required to be made to him by another person under more than one periodical payments order; and
for apportioning between two or more periodical payments orders, in such manner as may be prescribed by the rules, any sum paid to a clerk to a magistrates' court on any date by the person liable to make payments under the orders which is less than the total sum required to be paid on that date to that clerk by that person in respect of those orders (being orders one of which requires payments to be made for the benefit of a child to the person with whom the child has his home and one or more of which requires payments to be made to that person either for his own benefit or for the benefit of another child who has his home with him).
In this section— and any payments required under a periodical payments order to be made to a child shall for the purposes of subsection (1) above be treated as if they were required to be made to the person with whom the child has his home.
" domestic proceedings " has the meaning assigned to it by section 56 of the Magistrates' Courts Act 1952;
Where on an application under subsection (1) above the court decides—
Section 2(3) of the Administration of Justice Act 1964 (which provides that, for the purposes of the law relating to justices of the peace, magistrates' courts and other matters therein mentioned, a London commission area shall be deemed to be a county) shall have effect, and shall be deemed to have had effect as from 1st April 1974, as if—
after the words " magistrates' courts " there were inserted the words " magistrates' courts committees ";
before the word " county ", where it first occurs, there were inserted the words " non-metropolitan "; and
after the words " passing of this Act " there were inserted the words " and references to a non-metropolitan county in any enactment or instrument as amended or modified by or under the Local Government Act 1972 ".
Section 2(3A) of the said Act of 1964 (which provides that for the purposes of the law relating to magistrates' courts committees a London commission area shall be deemed to be a non-metropolitan county) shall cease to have effect.
There shall be defrayed out of moneys provided by Parliament any increase attributable to this Act in the sums payable out of moneys so provided under any other enactment.
In this Act—
shall, subject to the provisions of this Part of this Act, have the . . .
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" child ", in relation to one or both of the parties to a marriage, includes an illegitimate child of that party or, as the case may be, of both parties ;
“petty sessions area” has the same meaning as in the Justices of the Peace Act 1997;
but is of the opinion— then if both the parties agree, the court may order that the applicant or the respondent, as the case may be, shall make that other financial provision.
References in this Act to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household.
For the avoidance of doubt it is hereby declared that references in this Act to remarriage include references to a marriage which is by law void or voidable.
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Any reference in this Act to an enactment shall be construed as a reference to that enactment as amended or extended by or under any subsequent enactment, including this Act.
The transitional provisions contained in Schedule 1 to this Act shall have effect.
Subject to the transistional provisions contained in Schedule 1 to this Act—
the enactments specified in schedule 2 to this act shall have effect subject to the amendments specified in that Schedule (being minor amendments and amendments consequential on the preceding provisions of this act), and
the enactments specified in Schedule 3 to this Act are hereby repealed to the extent specified in the third column of that Schedule.
This Act shall come into force on such date as the Secretary of State may by order made by statutory instrument appoint and different dates may be appointed for, or for different purposes of, different provisions.
Without prejudice to the transitional provisions contained in Schedule 1 to this Act, an order under subsection (3) above may make such further transitional provision as appears to the Secretary of State to be necessary or expedient in connection with the provisions thereby brought into force, including such adaptations of the provisions thereby brought into force or any provision of this Act then in force as appear to him to be necessary or expedient in consequence of the partial operation of this Act or the Children Act 1975.
An order under subsection (3) above may repeal any provision of this Act which has ceased to have effect by reason of the coming into force of the Adoption Act 1976.
The inclusion in this Act of any express transitional provision or amendment shall not be taken as prejudicing the general application of section 38 of the Interpretation Act 1889 with regard to the effect of repeals.
This Act may be cited as the Domestic Proceedings, and Magistrates’ Courts Act 1978.
Except for the following provisions, that is to say— this Act does not extend to Scotland.
sections 54, 55, 60, 61, 74(1) and (3), 87, 88(5), 89(2) (a), (3) and (4) and this section, and
paragraphs 1, 12, 13, 14, 17 and 18 of Schedule 2
Except for the following provisions, that is to say— this Act does not extend to Northern Ireland, and in section 88(5) of this Act any reference to an enactment includes a reference to an enactment contained in an Act of the Parliament of Northern Ireland or a Measure of the Northern Ireland Assembly.
sections 54, 59, 74(5), 88(5), 89(2), (3) and (4) and this section, and
paragraphs 12, 13, 14 and 33 of Schedule 2 and Schedule 3,
Section 89.
This Act (including the repeals and amendments made by it) shall not have effect in relation to any application made under any enactment repealed or amended by this Act if that application is pending at the time when the provision of this Act which repeals or amends that enactment comes into force.
Any order made or other thing done under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 which is in force immediately before the coming into force of Part I of this Act shall not be affected by the repeal by this Act of that Act, and the provisions of that Act shall after the coming into force of the said Part I apply in relation to such an order, and to an order made under that Act by virtue of paragraph 1 above, subject to the following modifications—
on a complaint for the revocation of the order the court shall not be bound under section 8 of that Act to revoke the order by reason of an act of adultery committed by the person on whose complaint the order was made;
on a complaint for the variation, revival or revocation of the order, the court, in exercising its powers under the said section 8 in relation to a provision of the order requiring the payment of money, shall have regard to any change in any of the matters to which the court would have been required to have regard when making that order if the order had been made on an application under section 2 of this Act;
on a complaint after the coming into force of paragraph 27 of Schedule 1 to the Matrimonial and Family Proceedings Act 1984 for the variation, revival or revocation of the order, the court, in exercising its powers under the said section 8 in relation to any provision of the order requiring the payment of money, shall have power to order that payments required to be made for the maintenance of a child of the family shall be made to the child himself.
where the order contains a provision for the legal custody of a child, the court shall have power, on a complaint made by a grandparent of the child, to vary that order under the said section 8 by the addition to the order of a provision requiring access to the child to be given to that grandparent;
where the court, by virtue of paragraph (c) above, varies the order by the addition of a provision requiring access to a child to be given to a grandparent, the court shall have power to vary or revoke that provision on a complaint made—
by that grandparent, or
by either party to the marriage in question, or
where the child is not a child of both the parties to the marriage, by any person who though not a party to the marriage is a parent of the child, or
where under the order a child is for the time being committed to the legal custody of some person other than one of the parents or a party to the marriage, by the person to whose legal custody the child is committed by the order.
The amendment by this Act of any enactment shall not affect the operation of that enactment in relation to any order made or having effect as if made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (including an order made under that Act by virtue of paragraph 1 above) or in relation to any decision of a magistrates’ court made on an application for such an order or for the variation, revival or revocation of such an order but as respects enactments amended by this Act in their application in relation to orders made or decisions on applications for orders or for the variation, revival or revocation of orders made or having effect as if made under other Acts those enactments shall apply as amended by this Act.
Any order for the payment of money in force under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (including any such order made under that Act by virtue of paragraph 1 above) shall be enforceable as a magistrates’ court maintenance order.
Any reference in paragraph 1 above to an application made under an enactment repealed by this Act shall be construed as including a reference to an application which is treated as a complaint under section 1 of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 by virtue of section 27 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 and any reference in paragraph 2, 3 or 3A above to an order made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 shall be construed as including a reference to an order which is made under that Act by virtue of section 28 of the Maintenance Orders (Reciprocal Enforcement) Act 1972
A provision contained in section 72 . . . of this Act shall not apply in relation to proceedings commenced before the coming into force of that provision.
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The amendment by subsection (3) of section 82 of this Act of section 58(2) of the Magistrates' Courts Act 1952 shall not affect the punishment for an offence under the said section 58 which is committed before the date on which the said subsection (3) comes into force, except that a person shall not be liable to imprisonment in respect of an offence for which proceedings are commenced after that date even if the offence was committed before that date.
A provision of Schedule 2 to this Act which relates to the punishment by way of fine which may be imposed for any offence shall not affect the punishment which may be imposed for an offence which is committed before the date on which that provision comes into force.
Section 89.
In section 5 of the Sheriff Courts (Scotland) Act 1907—
in subsection (2), after the words “Actions of aliment ”, there shall be inserted the words “(other than any action mentioned in sub-section (2A) below) ” ;
the following subsection shall be inserted after subsection (2)— ; and
in the final proviso, for the words “the second sub-section ” there shall be substituted the words “sub-section (2) or (2A) ”.
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In section 88 of that Act—
in subsections (1), (2) and (4) for the words "having jurisdiction in the place " there shall be substituted the words " appointed for the commission area ".
in subsection (2)(c) for the words " £10 " there shall be substituted the words " £50 ".
In section 107(1) of that Act after the definition of " child " there shall be inserted the following definition—
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In section 44(2) of that Act for the words “having jurisdiction in the place ” there shall be substituted the words “appointed for the commission area (within the meaning of section 1 of the Administration of Justice Act 1973). ”
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In section 13(4) of the Justices of the Peace Act 1949 after the words “juvenile ” there shall be inserted the words “or domestic ”.
In section 3(2) of the Maintenance Orders Act 1950 for the words “having jurisdiction in the place ” there shall be substituted the words “appointed for the commission area (within the meaning of the Administration of Justice Act 1973) ”.
In section 15(1)(a) of that Act for sub-paragraph (ii) there shall be substituted the following sub-paragraph—.
In section 16(2)(a) of that Act, for sub-paragraph (ii) there shall be substituted the following sub-paragraph—
In section 22(1) of that Act after the words “person liable to make ”, in the first place where they occur, there shall be inserted the word “periodical ”.
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In section 9(2) of the Affiliation Proceedings Act 1957 for the words “£10 ” there shall be substituted the words “£50 ”.
In section 32(2) of the Adoption Act 1958 for the words “subsection (2) ” there shall be substituted the words “subsection (1A) ”.
In section 34A(3) of that Act—
for the words “the authority ”, in the first place where those words occur, there shall be substituted the words “a local authority ” ;
after the words “the authority ”, in the second place where those words occur, there shall be inserted the words “in whose care the child is ” ;
for the words “the court ” there shall be substituted the words “a court ”.
In section 109(2) of the County Courts Act 1959—
in paragraph (g) for the words “section 13A of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “section 35 of the Domestic Proceedings and Magistrates’ Courts Act 1978 ” ;
in paragraph (h) after the words “proceedings under ” there shall be inserted the words “section 34 or 34A of the Adoption Act 1958 ; ”
in paragraph (i) for the words “section 29 ” there shall be substituted the words “section 27, 28, 29 ”.
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at the beginning there shall be inserted the words " notwithstanding anything in section 56A of the Magistrates' Courts Act 1952 ";
at the end of paragraph (a) there shall be inserted the words " who are members of the domestic court panel for that area ";
at the end of paragraph (b) there shall be inserted the words " who are members of that panel ".
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In Schedule 8 of that Act in paragraph 3 for the words “or having effect as if made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “under Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
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In section 30(2) of the Matrimonial Proceedings and Property Act 1970 for the words “Subsections (4), (5) and (6) of section 7 of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “Section 4(2) of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”, for the words “section 2(1)(b) or (c) ” there shall be substituted the words “section 2(1)(a) ” and for the words “as they apply in relation to such an order as is referred to in the said subsection (4) ” there shall be substituted the words “as it applies in relation to an order made under section 2(1)(a) of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
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In Schedule 1 to the Attachment of Earnings Act 1971 in paragraph 4 for the words “or having effect as if made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “under Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
In section 8(3) of the Maintenance Orders (Reciprocal Enforcement) Act 1972 for the words “£10 ” there shall be substituted the words “£50 ”.
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in subsection (1) for the words " sections 28, 29 " there shall be substituted the words " sections 28, 28A, 29, 29A ";
in subsection (9) for the words " section 13(2) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 " there shall be substituted the words " section 32(2) of the Domestic Proceedings and Magistrates' Courts Act 1978 ".
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in subsection (1) for paragraphs (a) and (b) there shall be substituted the words " an affiliation order ";
for subsection (2) there shall be substituted the following subsections: —
In section 42(1) of that Act for the words “section 2(1)(b) or (c) of the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (payment of weekly sums by husband or wife) ” there shall be substituted the words “section 2(1)(a) of the Domestic Proceedings and Magistrates’ Courts Act 1978 (making of periodical payments by husband or wife) ”.
In section 4(1) of the Matrimonial Causes Act 1973 after the words “the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be inserted the words “or Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
In section 47(2)(e) of that Act for the words “the Matrimonial Proceedngs (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
In section 50(2)(b) of that Act for the words “the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 ” there shall be substituted the words “Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 ”.
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sub-paragraph (a) shall be omitted ;
in sub-paragraph (d) for the words " proceedings in which " there shall be substituted the words " proceedings in relation to an application for leave of the court to remove a child from a person's custody under section 34 or 34A of the Adoption Act 1958 or proceedings in which ";
the following sub-paragraph shall be inserted after subparagraph (g)—.
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in paragraph (a) for the word " payments " there shall be substituted the words " periodical payments or pay a lump sum ";
in paragraph (b) after the words " to make " there shall be inserted the word " periodical ".
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in paragraph (b) for the words " the local authority " there shall be substituted the words " a local authority ";
after the words " the authority " there shall be inserted the words " in whose care the child is ".
In section 63(4) of that Act the words “to remove a child from a person’s custody under section 27 or 28 or ” shall be omitted.
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In section 19(2) of the Supplementary Benefits Act 1976 for the words “acting for the petty sessions area ” there shall be substituted the words “appointed for the commission area (within the meaning of section 1 of the Administration of Justice Act 1973) ”
Section 89.