Cap. 16activeordinance

Separation and Maintenance Orders Ordinance

分居令及贍養令條例

Full legislation

s.9A

Attachment of income to satisfy order

(1AA)
In this
section—
Amendment
                                        Ordinance
(《
修訂條例
》) means the
                                Attachment of Income Order (Application to Government and
                                Miscellaneous Amendments) Ordinance 2007 (
20
                                        of 2007
);
(Added
20 of 2007 s. 5
)
attachment
                                        order
(
扣押令
) means an order made
                                under subsection (1);
designated
                                        payee
(
指定受款人
) means, in
                                relation to a maintenance order, the person named in that order as
                                the person to whom the maintenance payments are to be made;
income
                                        source
(
入息來源
) means a person by
                                whom the income of the maintenance payer is payable and includes the
                                        Government;
(Added
20 of 2007 s. 5
)
maintenance
                                        payer
(
贍養費支付人
) means, in
                                relation to a maintenance order, the person against whom that order
                                is made;
specified
                                        payee
(
指明受款人
) means, in
                                relation to an attachment order, the person named in that order as
                                the person to whom an amount attached by that order is to be
                                paid.
(1)
Where a maintenance order has been made against a maintenance payer
and—
(a)
(i)
a court is satisfied that the payer has without
                                                reasonable excuse failed to make any payment which
                                                he is required to make by the maintenance order;
                                                or
(ii)
a court is satisfied that there are reasonable
                                                grounds to believe that the payer will not make full
                                                and punctual payment in compliance with the
                                                maintenance order; or
(iii)
the payer and designated payee agree to the making
                                                of an order under this section; and
(b)
there is any income capable of being attached payable to
                                        the payer,
the court may, in accordance with rules made under subsection
                                (6), order the income to be attached as to the whole or part of the
                                amount payable under the maintenance order and the amount attached
                                to be paid to the specified payee.
(Replaced
20 of 2001 s. 3
)
(1A)
For the purpose of subsection
(1
)(
a
)(
ii)
, in deciding
                                whether there are reasonable grounds to believe that the maintenance
                                payer will not make full and punctual payment in compliance with the
                                maintenance order, the court shall take into account all the
                                circumstances of the case, including (but not limited to
)—
(a)
the payer’s past record and conduct in discharging his
                                        reasonable financial obligation towards the designated payee
                                        before any maintenance order is made;
(b)
the payer’s past record and conduct in connection with the
                                        making of maintenance payments to the payee pursuant to the
                                        maintenance order or an undertaking in any proceedings;
                                        and
(c)
the risk of the payer dissipating his property.
(Added
20 of 2001 s. 3
)
(2)
(Repealed
20 of 2001 s. 3
)
(2A)
The court may, at any time after a maintenance order has been made,
                                including in the same hearing in which the maintenance order is made
                                or varied, make an attachment order.
(Added
20 of 2001 s. 3
)
(2B)
An attachment order may be made by the court on its own motion or
                                on the application by the maintenance payer or the designated payee
                                or both.
(Added
20 of 2001 s. 3
)
(3)
An attachment order is an authority to an income source to make the
                                payment in accordance with the order, and the receipt of the
                                specified payee is a good discharge to that income source.
(Replaced
20 of 2007 s. 5
)
(3A)
Without limiting the generality of subsection (1), that subsection
                                applies to income that is wages or salary payable to a maintenance
                                payer by the Government, and accordingly paragraph (a) of the
                                proviso to
section 23(1)
of the Crown Proceedings
                                Ordinance (
Cap. 300
) is not to be
                                construed as precluding the court from making an attachment order in
                                respect of such wages or salary.
(Added
20 of 2007 s. 5
)
(4)
Without limiting the generality of subsection (1), that subsection
                                applies to income that is wages payable to a maintenance payer by a
                                person other than the Government, and accordingly
section
                                        66
of the Employment Ordinance (
Cap. 57
) is not to be construed as precluding the
                                court from making an attachment order in respect of such
                                        wages.
(Replaced
20 of 2007 s. 5
)
(5)
Where—
(a)
pursuant to an attachment order, an employer is required to
                                        make a deduction from the wages of his employee in any wage
                                        period; and
(b)
that deduction, together with any deduction authorized to
                                        be made under
section 32
of the Employment
                                        Ordinance (
Cap. 57
) by the
                                        employer from the employee’s wages in the same wage period
                                        would in total exceed the whole of the wages payable to the
                                        employee in respect of that wage period,
then the amount liable to be deducted by the employer pursuant to
                                the attachment order shall be treated as being reduced by such an
                                amount that the total of all deductions made by the employer does
                                not exceed the whole of the wages payable to the employee in respect
                                of the wage period.
(6)
The Chief Justice may make such rules of court as he considers
                                necessary or expedient for the purpose of giving effect to
                                subsection (1), and rules made under this subsection may in
                                particular provide
for—
(a)
the matters to be contained in any application for an
                                        attachment order, and the manner of filing and service of
                                        such an application;
(b)
compliance with an attachment order;
(c)
the obligations on the part of the income source;
(Replaced
20 of 2007 s. 5
)
(d)
the obligations of the maintenance payer when an attachment
                                        order is in force or in the event of an attachment order
                                        ceasing to have effect for any reason;
(e)
the recovery
                                        from
                                        the maintenance payer of the clerical and administrative
                                        costs incurred in complying with an attachment
                                        order;
(f)
the variation or discharge of an attachment
                                        order;
(g)
the enforcement of an attachment order.
(6A)
Rules made under subsection (6) may empower the court to dispense
                                with or relax any procedure or abridge any time limit specified in
                                the rules if the court is satisfied that it is fair and reasonable
                                to do so in the circumstances of the case.
(Added
20 of 2001 s. 3
)
(7)
Rules made under subsection (6) may provide that the contravention
                                of any rule shall constitute an offence punishable by a fine at
                                level 2 and by imprisonment for 1 month.
(8)
The Chief Justice may specify the form of any document which is to
                                be or may be filed in proceedings under subsection (1).
(9)
Any attachment
order—
(a)
made by the court before the commencement date* of the
                                        Amendment Ordinance in respect of the wages or salary
                                        payable to a maintenance payer by the Government;
                                        and
(b)
which has not been discharged or declared invalid by the
                                        court as at that commencement date,
has effect from that commencement date as if it were made under
                                subsection (1) as read with subsection (3A).
(Added
20 of 2007 s. 5
)
(10)
An
application—
(a)
for an attachment order in respect of the wages or salary
                                        payable to a maintenance payer by the Government;
(b)
that is pending immediately before the commencement date*
                                        of the Amendment Ordinance; and
(c)
in which an attachment order has not been made as at that
                                        commencement date,
is to be determined in accordance with this section as amended by
                                the Amendment Ordinance.
(Added
20 of 2007 s. 5
)