The Gazette 1977

MARCH 1977

GAZETTE

SOCIETY OF YOUNG SOLICITORS

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.

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

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