The Gazette 1989

GAZETTE

APRIL 1989

made in section 7 of the Act to the Illegitimate Children (Affiliation Orders) Act, 1930, the latter Act has since been repealed by Part IV of the Status of Children Act, 1987 and section 5 of the 1976 Act has been expanded to provide for the making of maintenance orders in lieu of the former affiliation orders. On the application of the main- tenance creditor, the Master of the High Court may declare arrears of maintenance which accrued prior to the date of the enforcement order to be enforceable as if they were payable under a judgment of the High Court (section 6 of the Act). Lump sum maintenance judgments will be enforced in like manner (see definition of "maintenance order" in section 1 of the Act). Enforcement by the District Court Notwithstanding the 1968 Convention, the 1974 Agreement between Ireland and the United Kingdom on the Reciprocal Recognition and Enforcement of Maintenance Orders (given effect to here by the Maintenance Orders Act, 1974) continues in force as a separate arrangement between the two countries. The recognition and enforcement of maintenance orders as between Ireland and the other Contracting States is governed by the pro- visions of the 1968 Convention, the relevant provisions of which are similar though not identical to those of the 1974 Agreement. It is worth remembering the following important points - - The Maintenance Orders Act, 1974 had effect in relation to maintenance orders whether made before or after the commencement of that Act (section 4), whereas by virtue of Article 34 of the 1978 Accession Convention (see the 3rd Schedule to the Act) the 1968 Convention applies only to legal proceedings instituted after its entry into effect (i.e. for Ireland after 1st June 1988). - A maintenance creditor seeking to recover arrears of mainten- ance under the 1974 Act is, by virtue of section 8(7) of the Enforcement of Court Orders Act, 1940, restricted to recovering only those arrears which accrued within the previous six months.

followed in the District Court in such proceedings. However, the existing provisions (in the 1962 Rules) will continue to apply in "non-Convention" cases.

There is no such restriction under the 1968 Convention (see section 7(8) of the Act). - Section 14(3) of the 1974 Act prohibits courts in Ireland from varying or revoking maintenance orders made in reciprocating jurisdictions. However, under the 1968 Convention a maintenance order made in one Contracting State may, subject to the pro- visions of that Convention, be varied or revoked on application in another Contracting State. - Under the 1968 Convention a maintenance creditor has a choice of jurisdiction when suing the maintenance debtor. Pro- ceedings may be brought in the courts of her domicile - i.e. the place where she is habitually resident (Art. 5.2), or in the courts of the State where the mainten- ance debtor is domiciled (Art. 2). However, the maintenance debtor has no such option when suing the maintenance creditor (e.g. variation or revocation proceedings). Article 5.2 requires that such proceedings be brought in the courts for the place where the maintenance creditor is domiciled or habitually resident. In order to apply for recognition and enforcement in another Contract- ing State of a judgment given in the District Court in Ireland it will first be necessary to prepare and lodge with the District Court clerk certain documents (see section 12 of the Act and Rules 10 and 11 of the Rules). He will return duly certified or authenticated copies in due course. The copy judgment must then be served on the defendant. The statutory declaration as to service, certificate of posting and advice of delivery should be lodged with the court clerk, who will issue certified copies thereof if required for the purposes of Article 47.1 of the 1968 Convention. It should be noted that duly certified translations of the documents must be produced if the court (abroad) so requires (Article 48). THE RULES Rules 1, 2 and 3 provide for citation, commencement and interpretation. ENFORCING IRISH JUDGMENTS ABROAD Enforcement abroed - Provision of documents

RECOGNITION AND ENFORCEMENT

Recognition Title III of the 1968 Convention deals with the recognition and enforcement of judgments. An application for the recognition or enforcement of a Community judgment in Ireland should be made to the Master of the High Court. It shall be determined by him by order (which may be for recognition and enforcement of a judgment in part only) - see section 5 of the Act. Articles 27 and 28 of the 1968 Convention provide the only grounds on which recognition (and enforcement) of such a judgment may be refused. Article 29 provides that under no circumstances may a foreign judgment be reviewed as to its substance. Enforcement An application for the enforcement in Ireland ' of an authentic instrument or a settlement (Title IV - Articles 50 and 51) should be made by ex parte application to a judge of the High Court. Under Article 31 a judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, the order for its enforcement has been issued there. When an enforcement order has been issued in Ireland in respect of a Community judgment other than a maintenance order that judgment shall, subject to Article 39 (re. appeal), be enforced as if it were a judgment of the High Court. If the enforcement order is made in respect of a maintenance order the District Court shall (under section 7(2) of the Act) have jurisdiction to enforce such enforceable maintenance order, and for the purposes of enforcement, variation or revocation of such order it shall, from the date on which it was made, be deemed to be an order made by the District Court under section 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976. It should be noted that, although reference is

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