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Maintenance claims - Gibraltar

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1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Gibraltar?

Under Gibraltar law, both the Magistrates' Court and the Supreme Court have the power to make orders with respect to the payment of maintenance. In the Supreme Court, provision for the maintenance of children and the wife may be made as part of the divorce, judicial separation and/or annulment proceedings. An order may also be made after the divorce/judicial separation/annulment is granted. There is no provision for the payment of maintenance to the husband in these proceedings.

In the Magistrates' Court, there is power to make a maintenance order in favour of a wife, a husband, children, or even to the parents of the parties where certain conditions are satisfied. Such an order can be made upon a complaint to the Magistrates' Court during the subsistence of the marriage. There is also power to make a maintenance order where a cohabitee fails to maintain the other cohabitee.

2. Up to what age can a child benefit from a maintenance allowance?

A child under the age of sixteen is entitled to receive maintenance. Additionally, a child who, having reached the age of sixteen but is under twenty-one and is either in full time education or undergoing full-time training for a trade, profession or vocation for not less than two years is also entitled to receive maintenance. A child whose earning capacity is impaired through illness or disability of mind or body and who has not reached the age of twenty-one is also entitled to maintenance.

 

TABLE OF CONTENTS

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Gibraltar? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of Gibraltar applicable? 3.
4. if this law is not applicable, which law will the courts of Gibraltar apply? 4.
If both the person who asks for maintenance and the debtor are in Gibraltar: If both the person who asks for maintenance and the debtor are in Gibraltar:
5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
5.a) How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply? 5.a)
6. Can a request be made on behalf of a relative, a close relation, or a child under age? 6.
7. if the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court's decision be revised to take account of the changes in the costs of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. if the maintenance debtor doesn't pay voluntarily, what action can be taken in order to force him/her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? 14.
If the petitioner is in Gibraltar and the maintenance debtor has his/her residence in another country: If the petitioner is in Gibraltar and the maintenance debtor has his/her residence in another country:
15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Northern Ireland? 15.
16. if so, how can that organisation or government department (central or local) be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 17.
If the petitioner is in another country and the maintenance debtor is in Gibraltar: If the petitioner is in another country and the maintenance debtor is in Gibraltar:
18. Can the petitioner address directly a request to an organisation or government department (central or local) in Gibraltar? 18.
19. if so, how can that organisation or government department (central or local) be contacted? 19.
20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 20.
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3. In which cases is the law of Gibraltar applicable?

Gibraltar law applies in the following cases:

  1. if at the date of the making of the complaint for a maintenance order either the complainant or the defendant is resident in Gibraltar; or
  2. where the cause of the complaint arose wholly or partly within Gibraltar; or
  3. the husband or wife has assets in Gibraltar.

The Magistrates' Court may have jurisdiction to deal with an application for maintenance even where any party to the proceedings is not domiciled in Gibraltar.

4. if this law is not applicable, which law will the courts of Gibraltar apply?

The Courts of Gibraltar will only apply Gibraltar law. Failure to satisfy the conditions set out in Gibraltar law may prevent the making of a maintenance order.

If both the person who asks for maintenance and the debtor are in Gibraltar:

5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

To obtain maintenance in cases where the jurisdiction of the Supreme Court has not been invoked, an applicant should apply to the Magistrates' Court. Claims for maintenance arising out of divorce, judicial separation and/or annulment proceedings should be made to the Supreme Court.

5.a) How do I apply for maintenance from this organisation or government department (central or local), and what procedures apply?

In the Magistrates' Court, an application in the form of a written complaint setting out the relief sought and the grounds on which it is based should be made. The application should be accompanied by copies of the marriage certificate (if applicable) and the birth certificates of any children. Upon receipt of the complaint, the Court will proceed to list the matter and inform the parties of the return date. On such day, the parties and/or their legal representatives should attend Court. In the Supreme Court, an application is made by way of summons, supported by affidavit evidence. Upon the filing of these papers, the Supreme Court Registry would proceed to set a date for the hearing of the application.

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6. Can a request be made on behalf of a relative, a close relation, or a child under age?

A request for maintenance can be made on behalf of a child by a person having legal custody for the child or a person appointed by the Minister responsible for social affairs. A request can also be made by the father or mother of a man, married woman or unmarried woman for the provision of maintenance or an application can be made on their behalf by a person appointed by the Minister responsible for social affairs.

7. if the applicant plans to bring the case to court, how does he/she knows which court has jurisdiction?

If the claim for maintenance arises out of a marriage which still subsists or the parties concerned had been cohabiting, the Magistrates' Court may have jurisdiction to deal with the matter. If the claim for maintenance arises out of divorce, judicial separation or annulment proceedings within the jurisdiction of the Supreme Court, then it is that Court that should consider the question of maintenance.

8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures?

An applicant can bring a claim in person and represent himself in Court or alternatively, instruct solicitors to act on his behalf.

9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

The filing of a complaint in the Magistrates' Court attracts no fee. Therefore, an applicant in person may appear without having to incur any expenses. If the applicant instructs solicitors, then their fees will be incurred. In the Supreme Court, the filing of a summons normally attracts a fee of £15. In both the Magistrates' Court and the Supreme Court, legal assistance may be available subject to the applicant having an annual income of less than £5000 and subject to a means test. Applications for legal assistance in either court should be made to the Supreme Court and application forms are available from the Supreme Court Registry.

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10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court's decision be revised to take account of the changes in the costs of living or family circumstances?

Upon hearing the complaint, the Magistrates' Court may make a maintenance order for the payment of a weekly or other periodic sum as the Court considers reasonable in all the circumstances of the case for the maintenance of a child, a father or mother and/or a wife.

Applications can subsequently be made for the variation of maintenance orders. This application would also be made to the Magistrates' Court or to the Supreme Court, where applicable.

11. How and to whom will the maintenance be paid?

Maintenance can be paid from one party to another or alternatively, payments can be made into Court.

12. if the maintenance debtor doesn't pay voluntarily, what action can be taken in order to force him/her to pay?

There is provision for a complainant to apply for an attachment of earnings order once a defendant has missed at least two of the payments required by the original maintenance order. The Magistrates' Court also has the power to make committal orders, thereby committing a defendant to prison for failure to adhere to the terms of a maintenance order. However, in such cases, the Court gives an opportunity to a defendant to make representations why such an order should not be made.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

Applications for maintenance are normally dealt with by the Magistrates' Court of Gibraltar, 277 Main Street, Gibraltar. Where a claim for maintenance arises out of divorce, judicial separation or annulment proceedings, the application should be made to the Supreme Court of Gibraltar, 277 Main Street, Gibraltar.

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14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place?

There is no provision for this in Gibraltar law. Payment can be enforced by an attachment of earnings order or by the use of committal orders.

If the petitioner is in Gibraltar and the maintenance debtor has his/her residence in another country:

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Northern Ireland?

Enquiries should be made to the Magistrates' Court, 277 Main Street, Gibraltar or the Supreme Court, 277 Main Street, Gibraltar.

16. if so, how can that organisation or government department (central or local) be contacted?

Enquiries can be addressed to the

Clerk to the Justices,
Magistrates' Court,
277 Main Street,
Gibraltar
telephone: 350 7567
fax: 350 40483.

Alternatively, enquiries involving maintenance proceedings in the Supreme Court can be addressed to

The Registry,
Supreme Court,
277 Main Street,
Gibraltar
telephone: 350 75608
fax: 350 77118.

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

Both the Supreme Court and the Magistrates' Court will be able to provide guidance regarding applications for maintenance orders generally and the procedure to be followed. Guidance can also be provided regarding the registration in Gibraltar of maintenance orders made in other designated jurisdictions or the enforcement of Gibraltar maintenance orders in other designated jurisdictions. Additionally, enquiries regarding legal assistance should be made to the Supreme Court Registry where application forms can be provided.

If the petitioner is in another country and the maintenance debtor is in Gibraltar:

18. Can the petitioner address directly a request to an organisation or government department (central or local) in Gibraltar?

A complaint setting out the relief claimed in Gibraltar can be sent directly to the Magistrates' Court as and when the jurisdictional requirements are satisfied. Alternatively, the appropriate application can be filed at the Supreme Court Registry where the claim for maintenance arises out of divorce, judicial separation or annulment proceedings.

19. if so, how can that organisation or government department (central or local) be contacted?

See Question 16 above.

20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

See Question 17 above.

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Last update: 04-04-2006

 
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