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GAZETTE
MARCH 1977
SOCIETY OF YOUNG SOLICITORS
5. GUIDELINES - FAMILY LAW
MAINTENANCE PROCEEDINGS
STATUTES
Married Women (Maintenance in Case of Desertion) Act
1886.
Public Assistance Act 1939.
Maintenance Orders Act 1974.
Family Law (Maintenance of Spouses and Children) Act
1976.
1. Who is entitled to Maintenance?
(a) A spouse is entitled to be maintained financially by
his or her marriage partner. The applicant spouse need
not be deserted or female or chaste to succeed — mere
failure to maintain on the part of the other spouse is
sufficient grounds for the application.
(b) A Dependant child of the marriage is also entitled
to maintenance. Dependant child includes an adopted
child and any child in relation to whom a spouse is
in loco
parentis
where the spouse against whom the order is
sought has treated the child as a member of the family.
The age limit of 16 may be raised to 21 where the child is
receiving full time education or instruction and
indefinitely where the child is so disabled as to be unable
to maintain himself. The child of a deserting spouse may
also be entitled.
2. Form of Application
Application is to the District Court on a new special
form of Summons (Form 1 Rule 7) which can be obtained
from the Local Court Office. Complete the form in
triplicate and present to the Court Office for signature
and the insertion of a date. Keep a copy, have one part
served according to the usual District Court regulations
and when served enter the original for hearing in the
District Court Office. All maintenance proceedings are
heard in camera.
3. Who can Apply?
Normally only the spouse unless it can be shown to the
Court that the spouse is not in a position to apply when
any person can apply for maintenance on behalf of a
child.
4. How much money can be obtained?
The maximum award in the District Court is £50 per
week for a spouse and £15 per week per child. Unlimited
amounts can be claimed in the High Court. In assessing
the amount heed is taken not only of the income but also
the earning capacity, property and financial resources of
the spouses (also see Porter v. Porter 1969 3 AER 640)
where it was ruled that the standard of living of an
innocent wife should be the same as before separation).
5. Who will not get a Maintenance Order?
(a) A deserting spouse is not entitled on his own behalf.
Desertion includes conduct which causes the other
spouse to leave.
(b) An adulterous spouse may not in the discretion of
the Court be entitled in his own behalf.
(c) Since income and earning capacity is the criterion
under the Act, where the Defendant spouse has neither,
the granting of an order would not appear possible.
Note: the dole is income and where an order is granted
against a spouse on the dole, the money will be paid
directly by the Labour Exchange to the applicant spouse
6. The Order
Once the case is heard and the order granted the kindly
District Court Clerk lifts the burden from the Solicitors
shoulders. He notifies the Defendant spouse of the order
and provided the Justice has directed that maintenance be
paid through the clerk, he can request that payments be
made to him. He then forwards the payments to the
applicant spouse.
7. Costs
There is no stamp on a maintenance summons. Legal
costs are in the discretion of the Court but are normally
awarded to the successful applicant spouse and can be
included as an addition to the first instalments on the
order to be reimbursed by the District Court Clerk to the
Solicitor.
8. If the spouse does not pay?
If a spouse defaults on a maintenance order, the
applicant spouse or the District Court Clerk may take
enforcement proceedings. Under the 1976 Act an
application for attachment of earnings of the spouse may
be directed against his employer who must then deduct
the maintenance from the spouse's earnings and pay this
money to the applicant. The amount so attached cannot
be so great as to leave the earning spouse without
sufficient to subsist on i.e. the "Protected Earnings Rate".
The earning spouse must give details of his circumstances
of employment in writing to the Court.
9. If the spouse is in Britain?
Under the Maintenance Orders Act 1974 an extra
copy of the Maintenance Summons when issued is sent by
the District Court Clerk to the Master of the High Court
with a full statement of the case and these are then passed
to the British Authorities for service on the spouse. The
proceedings may then be heard here and an order for
maintenance, if granted, can be enforced in Britain.
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