MAINTENANCE ACT, 1994

FIRST SCHEDULE Text of Rome Convention

Text of Rome Convention

Section 6.

CONVENTION BETWEEN THE MEMBER STATES OF THE EUROPEAN COMMUNITIES ON THE SIMPLIFICATION OF PROCEDURES FOR THE RECOVERY OF MAINTENANCE PAYMENTS

Preamble

The Member States of the European Communities, hereinafter referred to as “The Member States”,

Mindful of the close links existing between their peoples,

Having regard to the developments tending to the elimination of obstacles to the free movement of persons between Member States,

Convinced of the need to simplify among the Member States the procedures for securing the reciprocal recognition and enforcement of judgments relating to maintenance,

Desiring for this purpose to complement with administrative arrangements the provisions of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions under the successive enlargements of the European Communities,

Have agreed as follows

Article 1

Scope and Application

1. This Convention may be applied to any judgment relating to maintenance which comes within the scope of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels on 27 September 1968 and as subsequently amended (hereinafter referred to as “the Brussels Convention”).

2. The judgment may be a judgment given before or after this Convention enters into force provided it is a judgment that is enforceable in the State addressed under the Brussels Convention or a convention concluded between the State of origin and the State addressed.

3. If the judgment does not relate solely to maintenance the Convention shall only apply to those parts of the judgment which relate to maintenance.

4. For the purpose of this Convention “judgment” shall include an authentic instrument or court settlement within the meaning of Articles 50 and 51 of the Brussels Convention.

5. Any body which, under the law of a Contracting State, is entitled to exercise the rights of redress of the creditor or to represent him shall benefit from the provisions of this Convention.

Article 2

Central Authorities

1. Each Contracting State shall designate a Central Authority to carry out or arrange to have carried out the functions provided for by this Convention.

2. Federal States and States with more than one legal system shall be free to appoint more than one Central Authority. Where a State has appointed more than one Central Authority it shall designate the Central Authority to which applications under this Convention may be addressed for transmission to the appropriate Central Authority within that State.

3. Central Authorities shall not charge any fees in respect of services rendered by them under this Convention.

Article 3

1. The Central Authorities shall cooperate with each other and promote cooperation between the competent authorities in their respective states in order to facilitate the recovery of maintenance payments due.

2. On receipt of the application mentioned in Article 5 the Central Authority in the State addressed shall take or cause to be taken without delay all appropriate and useful measures to

(i) seek out and locate the debtor or his assets;

(ii) obtain, where appropriate, relevant information from Government Departments or agencies in relation to the debtor;

(iii) have the judgment registered or declared enforceable, where appropriate;

(iv) facilitate the transfer of maintenance payments to the creditor or body referred to in Article 1 (5); and

(v) ensure, where the payments due to the maintenance creditor are not made, the use of all appropriate means of enforcement provided for in the State addressed which are applicable and which might permit recovery of these sums.

3. The Central Authority in the State addressed shall keep the Central Authority in the State of origin informed of the measures taken under paragraph 2 and their results.

Article 4

Each Contracting State shall take the necessary administrative and legal measures, including the provision of effective enforcement measures, to enable the Central Authority to fulfil its obligations under this Convention.

Article 5

Applications

1. Where a maintenance creditor or body referred to in Article 1 (5) obtains in a Contracting State a judgment relating to maintenance and wishes to have that judgment recognised or enforced in another Contracting State, the maintenance creditor or body may submit a request for this purpose to the Central Authority in the State of origin.

2. Before transmitting an application to the State addressed, the Central Authority in the State of origin shall ensure that the application and the accompanying documents are in accordance with paragraph 3 of this Article and with Article 6.

3. The application shall contain

(i) a request that it be processed in accordance with the provisions of this Convention;

(ii) a letter delegating to the Central Authority addressed authority to act, or cause action to be taken, on behalf of the maintenance creditor including specific authority to enable enforcement proceedings to be taken;

(iii) the name, date of birth, nationality and description of the debtor and all other relevant information regarding his identity or whereabouts or the location of his assets;

(iv) the documentation required under Section 3 of Title III of the Brussels Convention.

Article 6

Language

The documentation referred to in Article 5 and any correspondence between the Central Authorities relating to the application shall, unless otherwise agreed between the Central Authorities concerned, be in, or shall be accompanied by a translation into, the official language or one of the official languages of the State addressed or any other language that the State addressed has declared it will accept.

Article 7

Relationship with other Conventions

The provisions of this Convention are in addition to the provisions of the Brussels Convention and are without prejudice to other existing international instruments.

Article 8

Standing Committee

1. A Standing Committee shall be set up for the purposes of exchanging views on the functioning of the Convention and resolving any difficulties which arise in practice. The Committee may issue recommendations on the implementation of the Convention or recommend changes in the Convention.

2. The Committee shall be composed of representatives appointed by each Member State. The Commission of the European Communities may attend meetings as observers.

3. The Presidency of European Political Cooperation shall convene meetings of the Committee at least once every two years and otherwise at its discretion. In this regard it shall pay due regard to any requests made by other Member States.

Article 9

Final Provisions

1. This Convention shall be open for signature by the Member States. It shall be subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Italian Republic.

2. This Convention shall enter into force 90 days after the date of deposit of the instruments of ratification, acceptance or approval by all the States which are members of the European Communities on the date on which it is opened for signature.

3. Each Member State may, when depositing its instrument of ratification, acceptance or approval, or at any later date, declare that the Convention shall apply to it in its relations with other states which have made the same declaration 90 days after the date of deposit.

4. A Member State which has not made such a declaration may apply the Convention with other contracting Member States on the basis of bilateral agreements.

5. (i) Each Member State shall at the time of the deposit of its instrument of ratification, acceptance or approval inform the Ministry of Foreign Affairs of the Italian Republic of the following—

(a) the designation of a Central Authority pursuant to Article 2 and

(b) any declarations pursuant to Article 6.

(ii) Any such designation or declaration may at a later date be changed, and any new declaration may be made, by notification addressed to the Ministry of Foreign Affairs of the Italian Republic.

6. The Ministry of Foreign Affairs of the Italian Republic shall notify all the Member States of any signature, deposit of instruments, declaration or designation.

Article 10

1. This Convention shall be open to accession by any State which becomes a member of the European Communities. The instruments of accession shall be deposited with the Ministry of Foreign Affairs of the Italian Republic.

2. This Convention shall enter into force in respect of any State which accedes to it 90 days after the date of deposit of that State's instrument of accession.

Done at Rome on the sixth day of November in the year one thousand nine hundred and ninety, in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, each text being equally authentic, in a single original which shall be deposited in the archives of the Ministry of Foreign Affairs of the Italian Republic.

The Ministry of Foreign Affairs of the Italian Republic shall transmit certified copies of the Convention to the Government of each Member State.

SECOND SCHEDULE Text of New York Convention

Text of New York Convention

Section 13.

CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE DONE AT NEW YORK ON 20 JUNE 1956

Preamble

Considering the urgency of solving the humanitarian problem resulting from the situation of persons in need dependent for their maintenance on persons abroad,

Considering that the prosecution or enforcement abroad of claims for maintenance gives rise to serious legal and practical difficulties, and

Determined to provide a means to solve such problems and to overcome such difficulties,

The Contracting Parties have agreed as follows

Article 1

Scope of the Convention

1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.

2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.

Article 2

Designation of Agencies

1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities which shall act in its territory as Transmitting Agencies.

2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body which shall act in its territory as Receiving Agency.

3. Each Contracting Party shall promptly communicate to the Secretary-General of the United Nations the designations made under paragraphs 1 and 2 and any changes made in respect thereof.

4. Transmitting and Receiving Agencies may communicate directly with Transmitting and Receiving Agencies of other Contracting Parties.

Article 3

Application to Transmitting Agency

1. Where a claimant is in the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.

2. Each Contracting Party shall inform the Secretary-General as to the evidence normally required under the law of the State of the Receiving Agency for the proof of maintenance claims, of the manner in which such evidence should be submitted, and of other requirements to be complied with under such law.

3. The application shall be accompanied by all relevant documents, including, where necessary, a power of attorney authorizing the Receiving Agency to act, or to appoint some other person to act, on behalf of the claimant. It shall also be accompanied by a photograph of the claimant and, where available, a photograph of the respondent.

4. The Transmitting Agency shall take all reasonable steps to ensure that the requirements of the law of the State of the Receiving Agency are complied with; and, subject to the requirements of such law, the application shall include

(a) the full name, address, date of birth, nationality, and occupation of the claimant, and the name and address of any legal representative of the claimant;

(b) the full name of the respondent, and, so far as known to the claimant, his addresses during the preceding five years, date of birth, nationality, and occupation;

(c) particulars of the grounds upon which the claim is based and of the relief sought, and any other relevant information such as the financial and family circumstances of the claimant and the respondent.

Article 4

Transmission of Documents

1. The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.

2. Before transmitting such documents, the Transmitting Agency shall satisfy itself that they are regular as to form, in accordance with the law of the State of the claimant.

3. The Transmitting Agency may express to the Receiving Agency an opinion as to the merits of the case and may recommend that free legal aid and exemption from costs be given to the claimant.

Article 5

Transmission of Judgements and Other Judicial Acts

1. The Transmitting Agency shall, at the request of the claimant, transmit under the provisions of article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties, and, where necessary and possible, the record of the proceedings in which such order was made.

2. The orders and judicial acts referred to in the preceding paragraph may be transmitted in substitution for or in addition to the documents mentioned in article 3.

3. Proceedings under article 6 may include, in accordance with the law of the State of the respondent, exequatur or registration proceedings or an action based upon the act transmitted under paragraph 1.

Article 6

Functions of the Receiving Agency

1. The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.

3. Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.

Article 7

Letters of Request

If provision is made for letters of request in the laws of the two Contracting Parties concerned, the following rules shall apply

(a) A tribunal hearing an action for maintenance may address letters of request for further evidence, documentary or otherwise, either to the competent tribunal of the other Contracting Party or to any other authority or institution designated by the other Contracting Party in whose territory the request is to be executed.

(b) In order that the parties may attend or be represented, the requested authority shall give notice of the date on which and the place at which the proceedings requested are to take place to the Receiving Agency and the Transmitting Agency concerned, and to the respondent.

(c) Letters of request shall be executed with all convenient speed; in the event of such letters of request not being executed within four months from the receipt of the letters by the requested authority the reasons for such non-execution or for such delay shall be communicated to the requesting authority.

(d) The execution of letters of request shall not give rise to reimbursement of fees or costs of any kind whatsoever.

(e) Execution of letters of request may only be refused

(1) If the authenticity of the letters is not established;

(2) If the Contracting Party in whose territory the letters are to be executed deems that its sovereignty or safety would be compromised thereby.

Article 8

Variation of Orders

The provisions of this Convention apply also to applications for the variation of maintenance orders.

Article 9

Exemptions and Facilities

1. In proceedings under this Convention, claimants shall be accorded equal treatment and the same exemptions in the payment of costs and charges as are given to residents or nationals of the State where the proceedings are pending.

2. Claimants shall not be required, because of their status as aliens or non-residents, to furnish any bond or make any payment or deposit as security for costs or otherwise.

3. Transmitting and Receiving Agencies shall not charge any fees in respect of services rendered under this Convention.

Article 10

Transfer of Funds

A Contracting Party, under whose law the transfer of funds abroad is restricted, shall accord the highest priority to the transfer of funds payable as maintenance or to cover expenses in respect of proceedings under this Convention.

Article 11

Federal State Clause

In the case of a Federal or non-unitary State, the following provisions shall apply

(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of Parties which are not Federal States;

(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;

(c) A Federal State Party to this Convention shall, at the request of any other Contracting Party transmitted through the Secretary-General, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention, showing the extent to which effect has been given to that provision by legislative or other action.

Article 12

Territorial Application

The provisions of this Convention shall extend or be applicable equally to all non-self-governing, trust or other territories for the international relations of which a Contracting Party is responsible, unless the latter, on ratifying or acceding to this Convention, has given notice that the Convention shall not apply to any one or more of such territories. Any Contracting Party making such a declaration may, at any time thereafter, by notification to the Secretary-General, extend the application of the Convention to any or all of such territories.

Article 13

Signature, Ratification and Accession

1. This Convention shall be open for signature until 31 December 1956 on behalf of any Member of the United Nations, any non-member State which is a Party to the Statute of the International Court of Justice, or member of a specialized agency, and any other non-member State which has been invited by the Economic and Social Council to become a Party to the Convention.

2. This Convention shall be ratified. The instruments of ratification shall be deposited with the Secretary-General.

3. This Convention may be acceded to at any time on behalf of any of the States referred to in paragraph 1 of this article. The instruments of accession shall be deposited with the Secretary-General.

Article 14

Entry into Force

1. This Convention shall come into force on the thirtieth day following the date of deposit of the third instrument of ratification or accession in accordance with article 13.

2. For each State ratifying or acceding to the Convention after the deposit of the third instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the date of the deposit by such State of its instrument of ratification or accession.

Article 15

Denunciation

1. Any Contracting Party may denounce this Convention by notification to the Secretary-General. Such denunciation may also apply to some or all of the territories mentioned in article 12.

2. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General, except that it shall not prejudice cases pending at the time it becomes effective.

Article 16

Settlement of Disputes

If a dispute should arise between Contracting Parties relating to the interpretation or application of this Convention, and if such dispute has not been settled by other means, it shall be referred to the International Court of Justice. The dispute shall be brought before the Court either by the notification of a special agreement or by a unilateral application of one of the parties to the dispute.

Article 17

Reservations

1. In the event that any State submits a reservation to any of the articles of this Convention at the time of ratification or accession, the Secretary-General shall communicate the text of the reservation to all States which are Parties to this Convention, and to the other States referred to in article 13. Any Contracting Party which objects to the reservation may, within a period of ninety days from the date of the communication, notify the Secretary-General that it does not accept it, and the Convention shall not then enter into force as between the objecting State and the State making the reservation. Any State thereafter acceding may make such notification at the time of its accession.

2. A Contracting Party may at any time withdraw a reservation previously made and shall notify the Secretary-General of such with-drawal.

Article 18

Reciprocity

A Contracting Party shall not be entitled to avail itself of this Convention against other Contracting Parties except to the extent that it is itself bound by the Convention.

Article 19

Notification by the Secretary-General

1. The Secretary-General shall inform all Members of the United Nations and the non-member States referred to in article 13

(a) of communications under paragraph 3 of article 2;

(b) of information received under paragraph 2 of article 3;

(c) of declarations and notifications made under article 12;

(d) of signatures, ratifications and accessions under article 13;

(e) of the date on which the Convention has entered into force under paragraph 1 of article 14;

(f) of denunciations made under paragraph 1 of article 15;

(g) of reservations and notifications made under article 17.

2. The Secretary-General shall also inform all Contracting Parties of requests for revision and replies thereto received under article 20.

Article 20

Revision

1. Any Contracting Party may request revision of this Convention at any time by a notification addressed to the Secretary-General.

2. The Secretary-General shall transmit the notification to each Contracting Party with a request that such Contracting Party reply within four months whether it desires the convening of a Conference to consider the proposed revision. If a majority of the Contracting Parties favour the convening of a Conference it shall be convened by the Secretary-General.

Article 21

Languages and deposit of Convention

The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General, who shall transmit certified true copies thereof to all States referred to in article 13.