Summary Jurisdiction (Wives and Children) Act

Chapter number: 
233
In force: 
Yes

 

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CONSOLIDATED TO 30 JUNE 2012

 

LAWS OF SEYCHELLES

Act 23 of 1963

Act 28 of 1965

Act 29 of 1967

SI. 95 of 1975

Act 23 of 1976

Act 5 of 1998

CHAPTER 233

 

SUMMARY JURISDICTION (WIVES AND CHILDREN) ACT

[28th October, 1963]

 

ARRANGEMENT OF SECTIONS

1.      Short title.

2.      Interpretation.

3.      Application for order.

4.      Powers of court.

5.      Limitation of powers of court.

6.      Court may alter, vary or discharge order.                                          

7.      Order not enforceable if parties reside together.

8.      Change of address.

9.      Interim order for maintenance.

10.    Application as to children.

11.    Liability of father to make adequate provision for the maintenance and education of a natural child.

12.    Provisional orders on employers.

13.    Duration of certain orders. Continuance of payments in certain cases.

14.    Attachment of earning orders.

15.    Enforcement of orders.

16.    Procedure for committal.

17.    Appeal against order made by Magistrate’s Court.

18.    Practice and procedure.

19.    Rules of Court.

20.    Application of Act.

21.    Matrimonial Causes Act not affected.

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1.      This Act may be cited as the Summary Jurisdiction (Wives and Children) Act.

 

2.      In this Act, except where the context otherwise requires –

 

“child” means a child under the age of sixteen years;

 

“court” means a Magistrates’ Court or the Supreme Court;

 

“custodian” means any person, other than the father or mother, who has the actual custody of a child or who is appointed to be guardian of a child or to whose care a child is committed under or by virtue of a court order;

 

“Director” means the person for the time being acting in the capacity or performing the functions of head of the Division or Section responsible for children affairs in the Ministry or department responsible for children affairs;

 

“Family Tribunal” means the Family Tribunal established under the Children Act;

 

“habitual drunkard” means a person who is by reason of habitual intemperate drinking of intoxicating liquor at times dangerous to himself or to others or incapable of managing himself or his affairs or so conducts himself that it would not be reasonable to expect a spouse of ordinary sensibilities to continue to cohabit with him;

 

“marriage” means the voluntary union of one man and one woman for life to the exclusion of all others;

 

“Outlying Islands” means such islands or group of islands as are listed as Outlying Islands in the First Schedule to the Peace Officers (Inner islands and Outlying Islands) Act.

 

2A.   The jurisdiction to hear and determine matters relating to the care, custody or maintenance of a child under this Act is vested in the Family Tribunal and for this purpose –

 

(a)        a reference in the Act to the court shall be deemed to be a reference to the Family Tribunal;

 

(b)        without prejudice to the powers conferred upon it by the Children Act, the Family Tribunal shall have all the powers of the court under this Act;

 

(c)        where consequent upon an application made to the court under this Act, a matter relating to the care, custody or maintenance of a child is required to be determined, the court shall remit the matter to the Family Tribunal for its determination.

 

3.      (1)        Any married woman may apply to the court for an order or orders under this Act on any of the following grounds, namely –

 

(a)        that her husband has been convicted of an offence against her under any of sections 221, 223, 224, 225 and 236 of the Penal Code and has been sentenced in respect thereof to not less than three months imprisonment without the option of a fine;

 

(b)        that her husband has deserted her;

 

(c)        that her husband has been guilty of persistent cruelty to her or her children or of wilful neglect to provide reasonable maintenance for her or her children whom he is legally liable to maintain;

 

(d)        that her husband has, while suffering from a venereal disease and knowing that he was so suffering, insisted upon having sexual intercourse with her;

 

(e)        that her husband has compelled her to submit herself to prostitution;

 

(f)        that her husband is an habitual drunkard.

 

(2)        When the husband has in the opinion of the court been guilty of such conduct as was likely to result and has resulted in his wife submitting herself to prostitution, he shall for the purposes of this Act be deemed to have compelled her so to submit herself.

 

(3)        For the purposes of this section, “children whom he is legally liable to maintain” includes, in addition to children of the marriage any child of the wife born before such marriage (whether such child is legitimate or natural) until such child attains the age of sixteen years or until the death of its mother, whichever event first occurs.

 

4.      The court to which any application under this Act is made may make an order or orders containing all or any of the following provisions, namely –

 

(a)        a provision that the applicant be no longer bound to cohabit with her husband (which provision while in force shall have the effect in all respects of a decree of judicial separation except for the purposes of section 35 of the Matrimonial Causes Act relating to the conversion of a decree of judicial separation into a decree absolute of divorce);

 

(b)        a provision that the legal custody of any children of the marriage between the applicant and her husband while under the age of sixteen years be committed to the applicant;

 

(c)        a provision that the husband shall pay to the applicant personally or for her use to any officer of the court or third person on her behalf such monthly sum as the court, having regard to the means both of the husband and wife, considers reasonable;

 

(d)        a provision for payment by the applicant or the husband or both of them of the costs of the court and such reasonable costs of either of the parties as the court may think fit.

 

5.      No order shall be made under this Act on the application of a married woman if it is proved that such married woman has committed an act of adultery, provided the husband has not condoned or connived at, or by his wilful neglect or misconduct conduced to, the act of adultery.

 

6.      (1)        The court may, of its own motion or on the application of the married woman or of the husband and after inquiring into the circumstances, at any time alter, vary or discharge any such order, and may from time to time increase or diminish the amount of any payment ordered to be made.                       

 

(2)        If any married woman upon whose application an order has been made under this Act voluntarily resumes cohabitation with her husband, the order shall cease to have effect on the resumption of such cohabitation and if she commits an act of adultery such order shall on proof thereof be discharged:               

Provided that the court may, if it thinks fit –

                

(i)         refuse to discharge the order, if in the opinion of the court such act of adultery as aforesaid was conduced to by the failure of the husband to make such payments as in the opinion of the court he was able to make; and

 

(ii)        in the event of the order being discharged, remit the case to the Family Tribunal for a determination regarding the custody, care and maintenance of the children of the marriage:

 

Provided that in making such an order the court shall have regard primarily to the interests of the children.

 

(3)        Where the court makes an order under paragraph (ii) of the first proviso to subsection (2), the court shall remit the case to the Family Tribunal for the purpose of making a determination with regard to the maintenance of the children.

 

7.      Save in the case of an order made under section 10 no order made under this Act shall be enforceable and no liability shall accrue under any such order whilst the married woman with respect to whom such order was made resides with her husband, and any such order shall cease to have effect if for a period of three months after it is made the married woman continues to reside with her husband.

 

8.      Any person for the time being under an obligation to make payments (including costs) under an order made under this Act shall give notice to the person to whom such payments must be made of any change of address, and any person failing to give such notice without reasonable excuse shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five hundred rupees.

 

9.      (1)        Where the hearing of an application is adjourned for any period exceeding one week, the court may order that the husband do pay to the wife, or to an officer of the court or third person on her behalf, such weekly or monthly sum as the court considers reasonable in the circumstances of the case for the maintenance of the wife and any child or children in her custody until the final determination of the case:

 

Provided that the order directing such payment shall not remain in operation for more than three months from the date on which it was made.

 

(2)        Any such order shall be enforced in like manner as if it were a final order of the court.

 

10.    (1)        In any case where a married woman is dead, or has committed an act of adultery, or is absent from Seychelles and her husband neglects or refuses to make provision or adequate provision for the maintenance and education of any child of the marriage, the court may, on the application of the Director or of the custodian, order that the husband shall pay to the applicant for the use of the child, or to any officer of the court or third person on its behalf and for its use such monthly sum as it considers reasonable.

 

(2)        Where subsection (1) applies and the Director makes an application for maintenance, the Director may at the same time apply to the Family Tribunal for an order for directions as to the custody of a child referred to in subsection (1).

 

(3)        The Family Tribunal may, in accordance with section 6(1), at any time alter or vary an order under subsection (2) of its own motion or on the application of the Director, or mother or custodian of the child and where the application is made by a person, other than the Director, shall serve a copy of the application on the Director.

 

(4)        The Family Tribunal may, on the application of the Director, mother or custodian of a child in respect of whom a maintenance order has been made under subsection (1), vary the order.

 

11.    (1)        Where any person has acknowledged himself to be the father of a natural child or has been declared by the court to be the father of a natural child under the provisions of the Children Act and neglects or refuses to make provision or adequate provision for the maintenance and education of such child, the court may, on the application of the mother or custodian of such child, order that the father shall pay to the applicant for the use of the child, or to any officer of the court or third person on its behalf and for its use, such monthly sum as it considers reasonable.

 

(2)        Upon the application of either the mother or the custodian or of the father or of its own motion, a court may, after enquiring into the circumstances, make an order either increasing or decreasing the amount previously ordered to be paid by the father.

 

12.    (1)        Where an application is made under the provisions of the Act for the payment of any monthly sum, and where the husband or the father, as the case may be, has previously to the date of the said application proceeded under a contract of service to the Outlying Islands it shall be competent for the court, if satisfied that the said husband or father has not before his departure made provision or adequate provision for the maintenance of his wife or children, to make a provisional order for a maintenance allowance upon the employer of the said husband or father to pay monthly such sum out of the wages due or to become due to him. The court may make such provisional order on an ex-parte application without giving the husband or father an opportunity of being heard.

 

(2)        A certified copy of an order on an employer under this section shall be served upon him, and such order shall be a sufficient authority to the employer to deduct the monthly sum mentioned therein from the wages due or to become due to the husband or father.

 

(3)         The employer shall be bound to transmit to the husband or father by the next available opportunity a copy of the order served upon him under subsection (2).  The court shall have the same powers of altering, varying or discharging a provisional order as are given under section 6 and subsection (2) of section 11.  The husband or father may during his absence from Mahe make application by proxy to the court for the alteration, variation or discharge of the order.

 

(4)        The employer shall comply with the provisional order or if the provisional order is subsequently altered or varied, with the provisional order as so altered or varied.  If he fails to comply with such an order as so altered or varied he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five hundred rupees:

Provided that it shall be a defence for the employer to prove that he took all responsible steps to comply with the provisional order to which the failure relates.

 

13.    (1)        An order for the payment of money for the maintenance certain and education of a child under the provisions of this Act orders. shall not, except for the purpose of recovering money Continuance previously due under the order, be of any force or validity of payments after the child has attained the age of sixteen years or has in certain died.

(2)        If, on the application of the mother or the custodian it appears to the court that the child is or will be engaged in a course of edified in the order.

(3)        The period specified in an order made by virtue of the foregoing provisions of this section may from time to time be extended by a subsequent order so made, but shall not in any case extend beyond the date when the child attains the age of twenty-one years.

 

14.   A person entitled to receive payments by virtue of an order made under this Act may apply for an attachment of orders. earnings order as provided under the Maintenance Orders  (Attachment of Earnings) Act.

 

15.    (1)        A person making default in complying with an order of orders made by a court under this Act in relation to any matter other than the payment of money may be sentenced to imprisonment until he has remedied his default:

Provided that a person shall not for non-compliance with an order of a court, whether made by one or more orders, to do or abstain from doing any act or thing be liable under this subsection to imprisonment for a period for payments to be made under the order after the child attains that age, then subject to the next following subsection the court may by order direct that payments shall be so made for such period, not exceeding two years from the date of the order, as may be specf periods amounting in the aggregate to more than six months.

(2)        Any sum ordered to be paid under this Act may, without prejudice to any other mode of recovery, be recovered in accordance with the following provisions:

(a)        where default is made in paying any money ordered to be paid under this Act, the court which made the order may -

(a)        education or training after attaining the age of sixteen years, and that it is expedient for that purpose if the order were a judgment or order of the Supreme Court in any of the ways in which such judgment or order may be enforced;

(b)        Where proceedings are brought under this section to enforce the payment of any sum ordered to be paid under this Act and it appears to the court that, at the date when the proceedings were begun an amount equal to not less than two of the payments required by the order was due and unpaid and that the defaulter is a person to whom earnings, within the meaning of the

(i)         commit the defaulter to prison for a term not exceeding six weeks or until payment of the sum due (whichever is the shorter); or

(ii)        order execution of the order, and in the case of an order made by a Magistrates' Court such execution shall proceed as Maintenance Orders (Attachment of Earnings) Act, fall to be paid, then, subject to subsection (2) of section 3 of that Act the court may, if it thinks fit, make an attachment of earnings order instead of making any other order to enforce the making of payments under the order;

(c)        All costs incurred in endeavouring to enforce an order shall, unless the court otherwise orders, be deemed to be due in pursuance of the order.

 

16.    (1)        A court shall not commit any person to prison in committal has defaulted.

(2)        Where an attachment of earnings order is made, no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the related order begun before the making of the attachment of earnings order.

(3)        Every order of committal under this section shall be issued, executed and obeyed in like manner to commitments under the Criminal Procedure Code except that, for the purposes of the prison laws for the time being in force, the person committed shall be deemed to be a civil prisoner.

(4)        There shall be endorsed on every order of commitment the sum on the payment of which the defendant may be discharged.

(5)        When an order of commitment is issued, the defendant may, at any time before he is delivered to the officer in charge of the prison, pay to the officer holding the order the amount endorsed thereon as that on the payment of which he may be discharged, and on receiving that amount the officer shall discharge the defendant, and

(a)        unless a summons to appear and be examined on oath has been served on that person; and

(b)        if that person proves to the satisfaction of the court that he has not and has not had since the date of the order, the means to pay the money in respect of which he shall forthwith pay the amount to the court which made the order.

(6)        No imprisonment under this section shall operate as a satisfaction, or extinguishment of any debt, or deprive any person of any right to levy execution under subsection (2) of section 15 in the same manner as if such imprisonment had not taken place.

                                                                                                                       

17.   An order made by a Magistrates' Court under this Act against may be appealed against to the Supreme Court by a party order made aggrieved by such order and a Magistrate at the time of making an order shall inform any party so entitled to appeal of his right of appeal under this section.

 

18.    Subject to the provisions of any rules made under thisAct, the forms to be used and the practice and procedure to be followed shall be as nearly as practicable as in ordinary civil cases before the court.

 

19.    (1)        The Minister may, after consultation with the Chief Justice, make rules of court prescribing the fees and costs  payable in any proceedings before, or on committal to prison, by a court under this Act, and generally providing for matters of practice and procedure and incidental matters arising under this Act.

(2)        Rules made under or by virtue of this section may include provision for the remission of fees and costs where the person liable to pay them has no means to do so.

 

20.   This Act shall apply only in cases where the husband and wife have been married within the definition of the term “marriage” contained in section 2.

 

21.   Nothing in this Act shall be deemed to affect the provisions of the Matrimonial Causes Act.

 

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NO SUBSIDIARY LEGISLATION

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