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Pursuing a claim or making an application for maintenance from someone living abroad is not as difficult as you might imagine. There are a number of international agreements between countries around the world to help you. You should refer to chapter 6 to see which countries Scotland has agreements with, and to the flowcharts at Annex D as a guide to the procedures you have to follow.
Broadly speaking, the recovery of maintenance falls into three general categories. The following paragraphs explain these categories and which steps you will need to take:
1. Enforcing an existing Scottish court order
If you already have a court order for maintenance (a final order), including, where appropriate, an interim order, you will be able to pursue the payer provided that he is living in a country that has an agreement with the United Kingdom to register and enforce maintenance orders (see chapter 6). Your first step should be to contact the court which made the order (or the Deputy Principal Clerk of Session at the Court of Session if appropriate) who will help you with your claim. They will then make sure that your court order, and other necessary documents, is forwarded to Courts Group, who will pass it to the relevant foreign authority for registration and enforcement.
2. Seeking an order in a Scottish court (if you do not have an existing one)
If you do not have a court order you may be able to ask the court to make what is called a provisional order if you meet all the requirements. But please get the help of a solicitor for this. A provisional order is an order made here where the payer is abroad (see chapter 6) and did not have the opportunity to defend the action. It cannot be enforced overseas in that form so the court will then forward the provisional order and any other necessary documents to Courts Group. It will then be sent to the relevant foreign authority and will be presented to the court overseas. The payer is given the opportunity to defend the action in the overseas court. The court can either confirm (accept the order as it stands), vary (the amount) or refuse to confirm (reject) the order. You will then be told what the court has decided.
| Some countries do not accept provisional orders
The Republic of Ireland does not accept provisional orders. If you have no Scottish court order but you want one, you must first start an action in the sheriff court. The defender in the Republic of Ireland must be served with notification that an action has been raised against him, giving him enough time and opportunity to defend the action here. The sheriff court will decide on maintenance once the requirements concerning service have been met. Please talk to a solicitor if you wish to follow this route. |
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Hague Convention countries (see chapter 6 and Annex A) do not accept provisional orders. There are similar rules for serving notice of proceedings against a person living in a Hague Convention country. These must be met before the sheriff court will consider making a maintenance order. Please talk to a solicitor if you wish to follow this route. The United States of America does not accept provisional orders. Only final orders already made and enforceable in Scotland can be sent to the USA. |
3. Seeking an order in another country (if there is no provision there to enforce an order made here)
If there is no provision in the other country for either the enforcement of an existing final order or for confirmation of a provisional order (or even if there is) you have a third option. This is to make an application there to ask that they hold a court hearing to decide whether a maintenance order can be made. Again, the sheriff clerk will help you with your claim. Completed applications will be forwarded by the sheriff clerk to Courts Group and they will send it abroad (see chapter 6).
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Even if the country where the payer lives accepts final or provisional orders, they might also accept applications. Given the choice, you may be able to use either method to suit your circumstances. There can be procedural difficulties with applications, the main one being that they can often take much longer than orders. The only real advantage is that you do not need a solicitor to act for you. |
Minutes of Agreement
The Brussels and Lugano Conventions provide not only for registration and enforcement of maintenance orders but also for a broader interpretation of the definition of maintenance, allowing recognition of a judgment or agreement, for example. It may be possible to register and enforce a Minute of Agreement in a convention country (see chapter 6).
Are there any other options available to me?
If it is not possible to use any of the schemes mentioned here, or if the payer lives in a country that does not have any reciprocal agreement with the United Kingdom, your only other option would be to try and start recovery proceedings yourself in the other country. Courts Group has no role in this type of action. If you wish to follow this route you should talk to a solicitor. You may be able to find a solicitor qualified in the law of the country concerned.
If you need to ask a solicitor if you can pursue an action in a European country which has not signed any agreement referred to in this booklet, you may be entitled to have your legal aid application sent to the appropriate authority in that country. This may be possible under the European Agreement for the Transmission of Applications for Legal Aid. A list of the countries to which the European Agreement applies is at chapter 6. If you wish to follow this route you should talk to a solicitor.
When you try to enforce a court order, or when you make an application, you may be required to supply certain other documents with your claim. The sheriff clerk, or alternatively Courts Group, will be able to tell you what else may be needed. Application forms are normally available from the sheriff clerk's office.
You may be asked for other things, for example, proof of your income and expenditure, a photograph of the payer, copies of any children's birth certificates, and so on, to go with your maintenance order.
Occasionally you might need to have statements or other papers notarised and for that purpose you may be entitled to advice and assistance under the legal aid scheme.
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