[O. 86, rr. 1-3

ORDER 86

PROCEEDINGS RELATING TO MINORS AND MATRIMONIAL STATUS AND SPOUSES

I. MINORS

Interpretation

1. In this Order-

"the Act" means the Infants Act, Chap. 46:02

"the Family Law Act" means the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, 1981 (No. 15 of 1981)

Application for Maintenance or Advancement of an Infant

2. (1) Subject to paragraph (2) an application concerning the maintenance or advancement of minors or made under the Family Law Act or under Part III of the Act shall be made to a Judge in Chambers by an originating summons intituled-

(i) in the case of an application under the Family Law Act-

In the matter of the Minor

and

In the matter of the Family Law

(Guardianship of Minors, Domicile and Maintenance)

Act, 1981;

(ii) in the case of an application under the Act-

In the matter of the Minor

and

In the matter of the Infants Act, Chap. 46:02.

(2) (a) Where any proceedings (including proceedings for divorce or judicial separation) are pending in relation to the minor; or

(b) when the minor is a ward of court or the administration of the estate or the maintenance or advancement of the minor is under the direction of the Court,

the application shall be made by summons.

Power of Judge Pending Appeal

3. Where an appeal is entered against a judgment given or order made under rule 2 the Judge by whom the judgment was given or the order was made may make such orders either ex parte or otherwise as he may think proper.

 

[O. 86, rr. 4-5

Application to make a Minor a Ward of Court

4. (1) An application to make a minor a ward of Court must be made by originating summons.

(2) Where there is no person other than the minor who is a suitable defendant, an application may be made ex parte for leave to issue either an ex parte originating summons or an originating summons with the minor as defendant thereto; and except where such leave is granted, the minor shall not be made a defendant to an originating summons under this rule in the first instance.

(3) The date of the minor’s birth shall, unless otherwise directed, be stated in the summons and the plaintiff shall:-

(a) on issuing the summons or before or at the first hearing thereof lodge in the appropriate Registry a certified copy of the entry in the Register of Births, or, as the case may be, in the Adopted Children Register relating to the minor; or

(b) at the first hearing of the summons apply for directions as to proof of birth of the minor in some other manner.

(4) Unless the Court otherwise directs, the summons shall state the whereabouts of the minor or, as the case may be, that the plaintiff is unaware of the whereabouts.

(5) Every defendant other than the minor shall, forthwith after being served with the summons:-

(a) lodge in the appropriate Registry a notice stating the address of the defendant and the whereabouts of the minor, or as the case may be, that the defendant is unaware of his whereabouts; and

(b) unless the Court otherwise directs, serve a copy of the notice on the plaintiff.

(6) Where any party other than the minor changes his address or becomes aware of any change in the whereabouts of the minor after the issue or, as the case may be, service of the summons, he shall, unless the Court otherwise directs, forthwith lodge notice of the change in the appropriate Registry and serve a copy of the notice on every other party.

(7) The summons shall contain a notice to the defendant informing him of the requirements of paragraphs (5) and (6).

(8) In this rule any reference to the whereabouts of a minor is a reference to the address at which and the person with whom he is living and any other information relevant to the question where he may be found.

When Minor ceases to be a Ward of Court

5. (1) A minor who, by virtue of section 35(2) of the Family Law Act, becomes a ward of court on the issue of a summons under rule 4 shall cease to be a ward of court:-

(a) if an application for an appointment for the hearing of the summons is not made within the period of 21 days after the issue of the summons, at the expiration of that period;

(b) if an application for such an appointment is made within that period; on the determination of the application made by the summons unless the Court hearing it orders that the minor be made a ward of court.

(2) Nothing in paragraph (1) shall be taken as affecting the power of the Court under section 35(3) of the Family Law Act to order that any minor who is for the time being a ward of court shall cease to be a ward of court.

 

[O. 86, rr. 5-10

 

(3) If no application for an appointment for the hearing of a summons under rule 4 is made within the period 21 days after the issue of the summons, a notice stating whether the applicant intends to proceed with the application made by the summons must be left at the appropriate Registry immediately after the expiration of that period.

Application under the Family Law Act, 1981

6. Where there is pending any proceeding by reason of which a minor becomes a ward of court, any application relating to the guardianship of minors under the Family Law Act with respect to that minor may be made by summons in that proceeding, but except in that case any such application shall be made by originating summons.

Defendants to guardianship summons

7. (1) Where the minor with respect to whom an application under the Family Law Act is made is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the summons or, if the application is made by ordinary summons, be served with the summons, but subject to paragraph (2) any other person appearing to be interested in, or affected by the application shall be made a defendant or be served with the summons, as the case may be, including, where the application is made under section 13 of the Family Law Act with respect to a minor who has been received into the care of a certified school within the meaning of Part III of the Children Act, that school.

(2) The Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.

Guardianship proceedings may be in Chambers

8. Applications under the Family Law Act relating to the guardianship of minors may be disposed of in Chambers.

Applications for paternity orders under section 10 of the Status of Children Act, 1981

9. An application for a paternity order under section 10 of the Status of Children Act, 1981, shall be made by originating summons.

Removal of proceedings from a Magistrate’s Court

10. (1) An application for an order under section 46(1) of the Family Law Act for the removal of an application from a Magistrate’s Court into the High Court shall be made ex parte by an originating summons, but the Court may direct that the summons shall be served on any person.

(2) The application may be heard by the Registrar or by an Assistant Registrar, but, if an order is made for the removal to the High Court of an application to the Magistrate’s Court, that application shall be heard by a single judge of the Court.

(3) Where an order is made under the said section 46(1) the plaintiff shall send a copy of the order to the Clerk of the Peace of the Magistrate’s Court from which the proceedings are ordered to be removed.

(4) On receipt of certified copies of all entries in the books of the Magistrate’s Court relating to the proceedings together with all documents filed in the proceedings the Registrar shall forthwith file the said documents and give notice to all parties that the application is proceeding in the High Court.

 

[O. 86, rr. 10-14

 

(5) The application so removed shall proceed in the High Court as if it had been made by originating summons.

Application of Matrimonial Causes Rules

11. (1) Rules 68 to 71 (inclusive) of the Matrimonial Causes Rules (which relate to proceedings under section 50 of the Matrimonial Proceedings and Property Act) shall apply, with the necessary modifications, to proceedings under section 13 of the Family Law Act.

(2) Rules 41, 44 and 45 of the Matrimonial Causes Rules (which relate to the drawing up and service of orders) shall apply to proceedings under this Part of this Order as if they were proceedings under those rules.

  1. MATRIMONIAL STATUS

Application for Declaration Affecting Matrimonial Status

12. (1) Where, apart from costs, the only relief sought in any proceedings is a declaration with respect to the matrimonial status of any person, the proceedings shall be begun by petition.

(2) The petition shall state:-

(a) names of the parties and the residential address of each of them at the date of presentation of the petition;

(b) the place and date of any ceremony of marriage to which the application relates;

(c) whether there have been any previous proceedings between the parties with reference to the marriage or the ceremony of marriage to which the application relates or with respect to the matrimonial status of either of them and, if so, the nature of those proceedings;

(d) all other material facts alleged by the petitioner to justify the making of the declaration and the grounds on which he alleges that the Court has jurisdiction to make it;

and shall conclude with a prayer setting out the declaration sought and any claim for costs.

(3) Nothing in the foregoing provisions shall be construed:-

(a) as conferring any jurisdiction to make a declaration in circumstances in which the Court could not otherwise make it, or

(b) as affecting the power of the Court to refuse to make a declaration notwithstanding that it has jurisdiction to make it.

Further Proceedings on Petition under Rule 4

13. Subject to rule 6 , the matrimonial causes rules shall apply with the necessary modifications to the petition as if it were a petition in a matrimonial cause.

III SPOUSES

Provisions as to Actions in Tort

14. (1) This rule applies to any action in tort brought by one of the parties to a marriage against the other during the subsistence of the marriage.

 

[O. 86, r. 14

 

(2) On the first application by summons or motion in an action to which this rule applies, the Court shall consider if necessary of its own motion, whether the power to stay the action under section 15(2) of the Married Persons Act 1976, should or should not be exercised.

(3) Notwithstanding anything in Order 13 or Order 19 judgment in default of appearance or of defence shall not be entered in an action to which this rule applies except with the leave of the Court.

(4) An application for the grant of leave under paragraph (3) must be made by summons and the summons must, notwithstanding anything in Order 65, rule 9, be served on the defendant.

(5) If the summons is for leave to enter judgment in default of appearance, the summons shall not be issued until after the time limited for appearing.