Provisional Legislative Council ' s
Panel on Home Affairs

Proposed court procedures and other matters concerning the Attachment of Income Orders for enforcement of maintenance orders


Introduction

The purpose of this paper is to seek the Panel's views on the matters to be included in the Chief Justice Rules to be made under the Guardianship of Minors Ordinance (Cap. 13) ( " GMO " ), Separation and Maintenance Orders Ordinance (Cap. 16) ('sMOO " ) and Matrimonial Proceedings and Property Ordinance (Cap. 192) ( " MPPO " ) to specify the court procedures and other matters concerning the Attachment of Income Orders ( " AIO " ), which may be issued by the court for enforcement of maintenance orders.

Background

2.In June 1997 the Marriage and Children (Miscellaneous Amendments) Ordinance ( " the Ordinance " ) was enacted. It amended the GMO, SMOO and MPPO. One of the purposes of the amendments is to give the court more powers so as to facilitate the making and enforcement of maintenance orders. The amendments seek to address the difficulties experienced by some divorcees (mainly women) in obtaining maintenance payments due to them.

3.One of the measures introduced by the Ordinance is that where a maintenance payer fails to pay without reasonable excuse, the court may issue an AIO. The AIO orders an income source (i.e. a person from whom the maintenance payer receives income) to deduct from the maintenance payer's income and pay the amount deducted direct to the maintenance payee. The word " income " includes, but is not confined to, wages. An AIO may be issued to attach, for example, wages, rental receipts and dividends from companies.

4.An AIO would alleviate the difficulties encountered by the maintenance payee in collecting payments. Also, the prospect of the court issuing such an order would make a maintenance payer think twice before he defaults in payment.

5.All the provisions in the Ordinance, except those relating to AIO, commenced operation on 4 July 1997. The provisions concerning AIO will be brought into operation as soon as the Chief Justice has made rules to specify the court procedures, the statutory forms to be used and the obligations of various parties involved (maintenance payers, maintenance payees and income sources).

Proposals

6.The matters proposed to be included in the Chief Justice Rules are set out in detail in the Annexattached.

Time-table

7.The drafting of the Chief Justice Rules is in progress. We hope to receive, within November 1997, the comments of the Panel and the professional bodies concerned (i.e. the Law Society and Bar Association) on the matters proposed to be included in the Rules. We shall then be able to take account of these comments before we produce the final draft of the Rules, which we hope to submit to the Chief Justice for approval in December 1997.

8.We aim to bring into force the provisions in the Ordinance concerning the AIO in early 1998, i.e. after the Rules have undergone negative vetting by the Provisional Legislative Council.

Advice sought

9.Members are invited to comment on the proposals contained in the Annex.


Home Affairs Bureau
10 November 1997
File Ref. : HAB/II/4/7 XI


Annex

Matters proposed to be included in

Chief Justice Rules
concerning the Attachment of Income Orders under the Guardianship of Minors Ordinance (Cap. 13) (GMO) Separation and Maintenance Orders Ordinance (Cap. 16) (SMOO) and Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO)

Introduction

With a view to addressing the difficulties encountered by maintenance payees ( " designated payee " ) in collecting maintenance payments, the Marriage and Children (Miscellaneous Amendments) Ordinance 1997 was enacted in June 1997 to provide for the Attachment of Income Orders (AIOs). Where a maintenance payer has defaulted in payment without reasonable excuse, the court may issue such an order to attach the income of the maintenance payer and the designated payee shall be paid directly.

2.Section 20(6) of the GMO, section 9A(6) of the SMOO and section 28(6) of the MPPO provide that the Chief Justice may make such rules of court as he considers necessary or expedient for the purpose of effecting AIOs. Section 20(7) of the GMO, section 9A(7) of the SMOO and section 28(7) of the MPPO provide for rules to be made to create offences for contravening any rule. Section 20(8) of the GMO, section 9A(8) of the SMOO and section 28(8) of the MPPO provide that the Chief Justice may specify the form of any document which is to be or may be filed in proceedings relating to AIOs.

3.Pursuant to the sections mentioned in para. 2 above, the following are proposed to be made rules by the Chief Justice:

  1. the detailed procedures regarding the application, issue and enforcement of AIOs;

  2. information to be included in the documents to be filed in proceedings relating to AIOs;

  3. offences for contravening certain rules; and

  4. statutory forms to be used in relation to the procedures.

Detailed procedures on the making of AIOs

4.In the event of default by the maintenance payer in complying with a maintenance order without reasonable excuse, a designated payee may apply to the court for an AIO.

Application for an AIO

5.The designated payee shall commence the application by a summons or originating summons. The application shall be accompanied by an affidavit or affirmation with the following information :

  1. that the maintenance payer has defaulted in payment (with details of default, such as the amount of default and the total amount due), and that the payee honestly believes that there is no reasonable excuse for the default;

  2. the name and address of the designated payee;

  3. the name and address of the maintenance payer;

  4. reference of the divorce proceedings and the maintenance order concerned etc.;

  5. reference of any judgment summons issued and details of any other proceedings already instituted to enforce the maintenance order;

  6. any known income source or sources (i.e. the persons by whom the income of the maintenance payer is payable) of the maintenance payer; and

  7. date of service of the maintenance order concerned (or, if it has not been served, the reason);

6.The designated payee shall serve the application on the maintenance payer in the same mode of service as for other civil proceedings.

Signed statement from the maintenance payer

7.Where an application for an AIO has been served on the maintenance payer, the maintenance payer shall supply the court and the designated payee with a signed statement within 14 days of the service. In supplying his statement to the court, the maintenance payer must confirm that the same has been duly served on the designated payee.

8.Where the maintenance payer fails to reply within 14 days since service of the application, the court may order the maintenance payer to reply and submit the statement within seven days of the court's order. The order shall be made in a statutory form.

9.The signed statement abovementioned shall be made in a statutory form and shall include the following information: -

  1. the names and addresses of all income sources of the maintenance payer regardless of whether they are mentioned in the designated payee's application;

  2. nature and amount of the maintenance payer's incomes and supporting documents, e.g. particulars of the payer's present income, whether any significant change in his income is expected, how frequent the income is received;

  3. other particulars (e.g. staff card number) for the purpose of enabling him to be identified by his income sources;

  4. needs of the maintenance payer, e.g. his personal expenses; and

  5. any existing or expected incumbence on his income, including, but not limited to, charging order, mortgage and deductions made by his employer as permitted under section 32(2) of the Employment Ordinance (Cap. 57).

10.In regard to (a), (b) and (c) above, regardless of whether there is one or more than one income source, the maintenance payer shall provide the required information on a separate annex for each source. (This is to facilitate the verification by an income source who, for the sake of protecting privacy of the maintenance payer, will not be provided with any information concerning other income sources.)

Verification of the signed statement by the income source

11.The court shall send a copy of the relevant annex to each alleged income source of the maintenance payer and order the income source to verify the contents of the statement and provide the following information in a statutory form:-

  1. his name and address;

  2. his business registration number (if applicable);

  3. name and identifying particulars of the maintenance payer;

  4. nature and amount of the payer's income and supporting documents, e.g. particulars of the payer's present income, whether any significant change in his income is expected and how frequent the income is received;

  5. the correct information if any information contained in the maintenance payer's signed statement is, to the income source's best knowledge, incorrect;

  6. any information other than that contained in the signed statement which he wishes the court to take into account in deciding on the application for the AIO, e.g. details of income which is being attached or will be attached and any deduction made pursuant to section 32(2) of the Employment Ordinance (Cap. 57) at the material time; and

  7. whether he wishes to address the court during the hearing of the application for AIO.

12.The court's order shall be made in a statutory form.

13.The income source shall comply with the court's order referred to in para. 11 above by completing a statutory form which should be signed by the income source concerned or by an authorised person on his behalf, and be sent to the court within 14 days. The court shall forward a copy of the completed form to the designated payee or his legal representative.

14.The income source shall notify the court within seven days upon receipt of the court's request as described in para. 11 if he has never been or has ceased to be an income source of the maintenance payer prior to receipt of the court's order.

Issue of an AIO

15.If the maintenance payer has more than one income source, the court will exercise its discretion in deciding which income or income source(s) should be issued an AIO.

16.(1)Where an AIO has been made to secure maintenance payments, no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the related maintenance order begun before the making of the AIO.

(2)Where the court has made an AIO -

  1. no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the related maintenance order begun before the making of the AIO; and

  2. so long as the order is in force, no execution for the enforcement of the related maintenance order shall issue against any property of the maintenance payer without the leave of the court.

(3).An AIO made to secure maintenance payments shall be discharged by an order of the court upon the making of an order of commitment or the issue of a warrant of commitment for the enforcement of the related maintenance order.

[Note : The Department of Justice's advice is being sought on whether it is necessary and intra vires to include such a provision in the Chief Justice Rules]

Format of the AIO

17.The form of the order should cover :

  1. name and correspondence address of the income source;

  2. name of the maintenance payer concerned and other identifying particulars which may be required to enable him to be identified by the income source;

  3. amount to be attached, name and address of the designated payee, when and how the amount should be sent;

  4. the period during which the AIO is effective;

  5. the amount which the income source may further deduct from the maintenance payer's income for administrative and clerical cost; and

  6. notice to the effect that in an employment situation, a deduction which an employer may make under section 32(2) of the Employment Ordinance (Cap. 57) shall have priority over the amount to be attached by the order if the sum of that deduction and the amount to be attached exceed the whole wages of the employee. [Note : This notice is to reflect the provisions in section 20(5) of the GMO, section 9A(5) of SMOO and section 28(5) of the MPPO]

Service of the AIO

18.The designated payee shall serve the AIO, either personally or by registered post, on (a) the income sources concerned and (b) the maintenance payer.

Compliance by the income source

19.An AIO shall take effect 14 days after the date of service, or the commencement date specified in the AIO, whichever is later. Before the lapse of 14 days after the date of service, no income source shall be held liable for failing to comply with the AIO.

20.The income source who has been served an AIO shall deduct from the maintenance payer's income such amount as specified in the AIO at the next payment of such income following the effective date of the AIO. The deducted amount shall be paid to the designated payee in the manner as directed in the AIO. The income source may further deduct from the maintenance payer's income $500, or a smaller amount as ordered by the court, to defray clerical and administrative expenses reasonably incurred by the income source in complying with the AIO. Only one such further deduction may be made during the period when the AIO is in force, provided that where the AIO is varied, the court may order another such deduction to cover expenses incurred by the income source in connection with the variation. The income source's liabilities to the maintenance payer will be discharged to the extent of the total deductions.

21.Where an income source cannot comply with the AIO in full (e.g. there is a reduction in the maintenance payer's income or the amount specified in the AIO plus deductions permitted under section 32(2) of the Employment Ordinance (Cap. 57) exceeds the maintenance payer's wages from the income source), the income source shall:

  1. deduct from the income and pay to the designated payee either:

    1. the reduced income in full, provided that this does not exceed the amount specified in the AIO;

      or

    2. where the income source is permitted under section 20(5) of the GMO, section 9A(5) of the SMOO or section 28(5) of the MPPO to have priority in making other deductions, the balance between the reduced income and the total of the priority deductions; and

  2. inform the designated payee and the maintenance payer of:

    1. the reason why the income source cannot pay the designated payee the full amount specified in the AIO; and

    2. the amount which has been paid to the designated payee.

22.If the income source has ceased to be so before being served an AIO, he shall furnish such evidence to the court and the designated payee within seven days from the receipt of the AIO.

23.If the income source who has been served an AIO subsequently ceases to be so, he shall furnish such evidence to the court and the designated payee within seven days from the date he ceases to be the income source. The court shall, on being satisfied by the evidence, discharge the AIO as provided for in para. 34.

Obligations of the maintenance payer

24.For the avoidance of doubt, during the time when an AIO is not in effect owing to the situation stipulated in paras. 22 and 23 above, the maintenance payer shall pay the designated payee the amount specified in the maintenance order in a manner as if the AIO had not been granted. Where the income source cannot comply with an AIO in full owing to the situation described in para 21 above, the maintenance payer shall pay the designated payee the balance between the amount specified in the AIO and the amount actually paid by the income source to the designated payee.

25.When an AIO is in force and the amount specified therein (in case more than one AIO is in force simultaneously, the total of the amounts specified in the AIOs) is less than the amount specified in the relevant maintenance order, the maintenance payer shall notify the designated payee in writing of any increase in income and the particulars of any new income source(s). Such notification should be made within seven days of the changes.

26.If the amount of income which can be attached is less than the amount specified in the AIO, the maintenance payer is obliged to pay the balance (i.e. the amount specified under the maintenance order less the amount which has been attached) to the designated payee.

Variation of an AIO

27.Where a maintenance payer's incomes have been attached in pursuance to these rules, the court may, at any time thereafter while such orders are in force, vary such AIOs or the original maintenance order, or make new AIOs in relation to different or new income sources of the maintenance payer. The court may do so upon the application of the maintenance payer or the designated payee or both.

28.In making an AIO, the court may at the same time make an order to vary or discharge any other order, including another AIO, in force at the material time in relation to the enforcement of the maintenance order.

29.An application for varying an AIO shall be made by a summons and include:

  1. the name and address of the designated payee;

  2. the name and address of the maintenance payer concerned;

  3. reference of the divorce proceedings and the maintenance order concerned etc.;

  4. reference of any judgement summons issued and details of any other proceedings already instituted to enforce the maintenance order;

  5. reference of the AIOs issued; and

  6. reasons for varying the AIOs.

30.The application to vary an AIO shall be served on all parties (including the income sources) concerned by the applicant in the same mode of service as for other civil proceedings.

31.The court may order the maintenance payer or the income sources to submit information which the court deems necessary, including that mentioned in paras. 9 & 11. The subsequent issue and service of the varied AIO should follow the procedures set out in paras. 15 to 18 above. The relevant income sources should then comply with paras. 20 to 23 while the maintenance payer should comply with paras. 24 to 26.

32.A varied AIO shall be made on a form as provided for in para. 17.

33.When an AIO is varied, the old AIO shall cease to be effective when the varied AIO comes into force. The varied AIO shall not take effect until 14 days after the date of service of the AIO or the commencement date specified in the varied AIO, whichever is later.

Discharge of an AIO

34.Without prejudice to the effective date as provided for in an AIO (para. 17(d)), an AIO can be discharged only by an order of the court. An AIO may be discharged in the following circumstances :

  1. upon the application of the maintenance payer or the designated payee or upon evidence provided by the income source in pursuance to para. 23;

  2. at the discharge or lapse of the maintenance order to which the AIO is related; or

  3. when the court makes another order, including another AIO, subsequent to the AIO in relation to the enforcement of the maintenance order. [Note : see para. 16]

35.An application for discharging an AIO shall be made by a summons and include :

  1. the name and address of the designated payee;

  2. the name and address of the maintenance payer;

  3. reference of the divorce proceedings and the maintenance order concerned etc.;

  4. reference of any judgment summons issued and details of any other proceedings instituted to enforce the maintenance order;

  5. reference of the AIOs issued; and

  6. reasons for discharging the AIOs.

36.An application to discharge an AIO shall be served on all parties (including the income sources) concerned by the applicant in the same mode of service as for other civil proceedings.

37.An order to discharge shall be made on a statutory form which shall include the following :

  1. name and correspondence address of the income source;

  2. name of the maintenance payer concerned and other identifying particulars which may be required to enable him to be identified by the income source;

  3. name and address of the designated payee;

  4. amount which was attached by the AIO; and

  5. effective date of the discharge order.

38.Where an AIO is discharged upon an application, the applicant shall serve a notice of discharge on the respondent and the income sources concerned either personally or by registered post.

39.When an AIO is discharged, the discharged AIO shall cease to be effective from the date specified in the discharge order.

Offences and Penalty

40.A maintenance payer commits an offence punishable by a fine at level 2 and by imprisonment for 1 month if he:

  1. fails, without reasonable excuse, to comply with the court's order referred to in paras. 8 and 31; or

  2. fails, without reasonable excuse, to notify the designated payee as required by para. 25; or

  3. knowingly makes a false statement in purported compliance with paras 7, 9, 25 and 31.

41.An income source commits an offence punishable by a fine at level 2 if he:

  1. fails, without reasonable excuse, to comply with the court's order referred to in paras. 11, 13, 20, 21 and 31; or

  2. knowingly makes a false statement in purported compliance with paras 11, 14, 22, 23 and 31.

42.An income source shall not be held liable for failing, without reasonable excuse, to comply with an AIO unless the court is satisfied that the AIO has been properly served on him and a period of 14 days has lapsed since the service.

Forms

43.New statutory forms shall be prepared for the following purposes:

  1. to order the maintenance payer to submit the statement (para. 7);

  2. to submit such information by the maintenance payer as required by para. 7 (para. 9);

  3. to order the income source to verify the statement (para. 12);

  4. to reply to the court's order as provided by para 12 (para. 13)

  5. to attach the income of a maintenance payer (the AIO itself) (para. 17);

  6. to discharge an AIO (para. 37); and

  7. to make notification as provided for in paras 14, 22 & 23.


Home Affairs Bureau
10 November 1997