District Court Rules

ORDER 57

PROCEEDINGS UNDER:
SECTION 8 OF THE ENFORCEMENT OF COURT ORDERS ACT 1940
SECTION 9A OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976
SECTION 52A OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010

Definitions

1. (1) In this Order:

“the Act of 1940” means the Enforcement of Court Orders Act 1940 (No 23 of 1940);

“the Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act 1976 (No 11 of 1976);

“the Act of 2009” means the Enforcement of Court Orders (Amendment) Act 2009 (No 21 of 2009);

“the Act of 2010” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24 of 2010);

“the Act of 2011” means the Civil Law (Miscellaneous Provisions) Act 2011 (No 31 of 2011);

“Maintenance Regulation” means Council Regulation (EC) 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L7 of 10 January 2009, page 1).

(2) References in this Order to an “order” shall be construed in accordance with sections 65 and 136 of the Act of 2010.

Venue

2. Proceedings to which this Order relates may be brought, heard or determined at any sitting of the Court for the court area where either party to the proceedings ordinarily resides or carries on any profession, business or occupation or where the order which it is sought to enforce was made and, save where the context otherwise requires, any reference in this Order to the “Clerk” is a reference to the Clerk for that court area.

Application in writing for summons under section 8(1) of the Act of 1940

3. An application under section 8(1) of the Act of 1940 (as substituted by the Act of 2011) for the issue of a summons shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:

(a) a copy of the antecedent order concerned and, where relevant, a copy of any enforcement order made by the Master of the High Court in respect of the maintenance order concerned or, as the case may be, a copy of the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation, of the decision issued by the court of origin;

(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;

(c) the amount of the arrears, and any amount provided by the antecedent order for costs and expenses which is unpaid;

(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.

Issue of summons under section 8(1) of the Act of 1940

4. (1) The summons shall be in the Form 57.1, Schedule C. The summons shall, in addition to requiring the attendance of the defaulter at a sitting of the Court, also require the defaulter to complete, detach and lodge with the Clerk not less than one week before the date of the said sitting a statement of means and assets (in the Form 53.3, Schedule C, with the necessary modifications), which shall be attached to the summons.

(2) The applicant or solicitor for the applicant shall be entitled, on payment of the prescribed fee, to inspect and take or obtain copies of the statement of means at any time after it is lodged.

Distress warrant

5. A warrant of distress and sale under section 8(2)(c) of the Act of 1940 shall be in accordance with Form 57.2, Schedule C.

Application in writing for summons under section 9A(3) of the Act of 1976 or section 52A(3) of the Act of 2010

6. An application under section 9A(3) of the Act of 1976 (as inserted by the Act of 2011) or under section 52A(3) of the Act of 2010 (as inserted by section 146 of the Children and Family Relationships Act 2015) for the issue of a summons shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:

(a) a copy of the antecedent order concerned;

(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;

(c) the amount of the arrears and any amount provided by the antecedent order for costs and expenses which is unpaid;

(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.

Issue of summons under section 9A(3) of the Act of 1976 or section 52A(3) of the Act of 2010

7. The summons addressed to the debtor shall be in the Form 57.3, Schedule C.

Service of summonses and orders

8. (1) Order 41 shall apply to the service and lodgment of proof of service of a summons mentioned in rule 4.

(2) Order 51A, rules 8(5) to 8(8) inclusive shall apply to the service and lodgment of proof of service of a summons mentioned in rule 7.

(3) An order made under section 8(2)(a) or section 8(2)(b) of the Act of 1940 shall be in the Form 57.4, Schedule C and a copy of such order shall be sent by registered post by the Clerk to every person directed to pay monies to the Clerk.

Persons affected by garnishee order

9. (1) A person served with an order mentioned in rule 8(3) who is unable to comply with the order may apply to the Court by notice of application in the Form 57.5, Schedule C to set aside or vary the order. A copy of the notice shall be served on the defaulter and on the applicant not later than seven days before the hearing of the application and the original notice shall be lodged with the Clerk not later than four days before the hearing of the application.

(2) Where the Court is considering making an order under section 8(2)(a) or section 8(2)(b) of the Act of 1940, the Court may adjourn the hearing of the summons and direct that the person who would be directed to pay monies to the Clerk under any such order be put on notice of the adjourned application.

Warrant of arrest

10. A warrant of arrest issued under section 9A(5) of the Act of 1976 or 52A(5) of the Act of 2010 shall be in accordance with Form 57.6, Schedule C.

Warrant of detention

11. Where a failure by the maintenance debtor is treated as constituting contempt of court and an order of imprisonment is made, the warrant of detention shall be in accordance with Form 57.7 or 57.8, Schedule C as appropriate.

Application to purge contempt

12. Where a person is imprisoned for contempt of court in accordance with section 9A of the Act of 1976 or section 52A of the Act of 2010:

(a) the person shall be notified in writing of the action required to purge his contempt;

(b) the Court may direct that, if the contempt has not previously been purged, the person shall be brought back before the Court at a place and time fixed by the Court.

Clerk to provide certificate and to be available to tender evidence

13. (1) Before the time fixed for the hearing of an application under section 8 of the Act of 1940, section 9A of the Act of 1976 or section 52A of the Act of 2010, any Clerk for another court area to whom payments under the maintenance order, variation order, interim order or enforceable maintenance order are payable shall send to the Clerk a certificate signed by him or her certifying the amount of monies outstanding on foot of such order.

(2) On the hearing of an application under section 8(1) of the Act of 1940, section 9A of the Act of 1976 or section 52A of the Act of 2010, without prejudice to any other evidence which may be required on that hearing, there shall be tendered or cause to be tendered as evidence—

(a) the maintenance order, variation order, interim order, (as the case may be);

(b) in the case of an enforceable maintenance order a copy of the maintenance order;

(c) in the case of a decision referred to in Article 17.1 of the Maintenance Regulation, a copy of the extract in the form set out in Annex I or, as the case may be, Annex II, to the Maintenance Regulation, of the decision issued by the court of origin;

(d) the application for the summons;

(e) in the case of an enforceable maintenance order, a copy of the order made by the Master of the High Court, and

(f) any other relevant document. Provisions regarding warrants to apply

14. The provisions contained in Order 26 regarding warrants shall apply to warrants issued under this Order with the proviso that warrants of distress shall be addressed to and executed by the several Sheriffs and County Registrars.

[SI 17/16]

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