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GAZETTE
APRIL 1989
followed in the District Court in
such proceedings. However, the
existing provisions (in the 1962
Rules) will continue to apply in
"non-Convention" cases.
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
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has since been repealed by Part IV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.
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.
ENFORCING IRISH
JUDGMENTS ABROAD
Enforcement abroed -
Provision of documents
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.
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