Civil legal aid cases under the Maintenance Orders: Reciprocal Enforcement

The two distinct situations covered by the 1972 Act

The Maintenance Orders (Reciprocal Enforcement) Act 1972 facilitates the recovery of maintenance where the parties live in different countries.  It deals with two distinct situations.

Reciprocating countries

Part I deals with the situation where the countries concerned (“reciprocating countries”) have agreed that a maintenance order made in one country may be registered and enforced in another country without the need for court proceedings.

Convention countries

Part II deals with the situation where the countries concerned (“convention countries”) have entered into an agreement relating to recovery of maintenance but there is no existing maintenance order or no provision for direct enforcement.  In those circumstances, an action for maintenance must be pursued in the country where maintenance is to be recovered.

Separate arrangements apply where maintenance is being sought in terms of Council Regulation(EC) No 4/2009.

Applications to recover maintenance in Scotland: modified application procedure

Where your client seeks to recover maintenance in Scotland, the responsible authority in the transmitting country will send the necessary documentation to the appropriate authority in Scotland (the Scottish Government).  This will include a certificate from the transmitting country to the effect your client would be eligible for complete or partial legal aid or exemption from costs or expenses there [Section 43A 1972 Act].

Application from a Part I country

The Scottish Government will pass the papers to the sheriff clerk of the sheriff court within whose jurisdiction the defender is believed to reside.

  • If it is a final decree, the sheriff clerk will register it and it can then be enforced in exactly the same way as usual.
  • If it is a provisional order, the defender must be notified and the sheriff must confirm the order before it can be registered.

Once the order has been registered, the Scottish Government will contact the Law Society of Scotland who nominate you to act on behalf of the overseas claimant.  On production of the certificate of exemption from the transmitting country, you may make a grant of advice and assistance without enquiring into your client’s resources and without payment of a contribution.  You should sign the application for advice and assistance on behalf of your client.

Application from a Part II country

The Scottish Government will pass the papers to the Law Society who nominate you to act on behalf of your client.  Advice and assistance can be made available in the same way as for applications from Part I countries. You should also apply to us for civil legal aid to allow proceedings to be raised.  The existence of a certificate of exemption means your client is eligible for free legal aid without enquiry into their resources.  However, we must also be satisfied the applicant has probable cause and that it is reasonable to make legal aid available.

Applications are subject to modified procedural requirements [Section 43A 1972 Act]:

  • The certificate of exemption must accompany the application.
  • No financial application form is needed.
  • An application is needed and should be signed by you on behalf of your client.
  • The statutory statement should explain in sufficient detail what proceedings are contemplated and should include information about arrears of maintenance, the opponent’s resources and ability to pay etc.
  • Statements are not needed.
  • If an existing court order is to be enforced, varied or revoked, a copy of the order should accompany the application.

Your client wishes to recover maintenance abroad: standard application procedure applies

Where your client is a resident in Scotland and wishes to recover maintenance abroad, we may be asked by the Scottish Government or your client directly, to issue a certificate of exemption for transmission to the responsible authority in the other country.  In these cases, we require the same financial eligibility forms and documentation as usual.

You can get useful information about lists of countries with which reciprocal arrangements have been made, from the Scottish Government Justice Department.

 

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