Maintenance Orders in Family Law-All You Need to Know About Maintenance

maintenance-family-law

The Social Welfare act, 1993 obliges both spouses in a marriage to provide financial support for each other and their children. This is called maintenance.

maintenance-order-ireland

Maintenance is also known as periodical payments orders after a divorce or judicial separation.

The Family Law (Maintenance of Spouses and Children) act 1976 governs the making of maintenance orders or periodical payments orders in Ireland.

Provision must be made for dependent children of the family and this includes children of both spouses or of either spouse. A dependent child is one who is under the age of 18 or 23 if in full time education.

Maintenance of Children

The Status of Children Act 1987 obliges the maintenance of non marital children.  In fact, both parents, regardless of their marital status-unmarried, married, separated, divorced-have an obligation to maintain their children financially.

In practice, this usually involves the parent who does not have custody paying maintenance to the parent who has day to day care and control of the children-custody. Because the parent who has custody has the day to day costs associated with the children.

Since the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 civil partners have a right to maintenance.

Qualified cohabitants, in certain circumstances such as where the relationship ends through death or separation. However there is no automatic right to such orders or any financial relief-the Court will decide based on the circumstances.

A Maintenance Order

To apply for a  maintenance order under the Family Law (Maintenance of Spouses and Children) act 1976 you must be a spouse and there is facility to apply for an interim maintenance order prior to the hearing of the application for a maintenance order.

A maintenance order compels a spouse to make periodic payments to the other spouse. The amount and times of payment will be directed by the family law Court.

The Status of Children Act, 1987 changed the situation in relation to unmarried parents and maintenance for dependent children.

 

Maintenance of Spouses and Dependent Children
Maintenance order. 5.—(1) (a) Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.
(b) Subject to subsection (4) of this section, where a spouse—
(i) is dead,
(ii) has deserted, or has been deserted by, the other spouse, or
(iii) is living separately and apart from the other spouse,
and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.
(c) A maintenance order or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.
(2) The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse.
(3) Where the applicant spouse has committed adultery, then-
(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may refuse to make a maintenance order for the support of the applicant spouse,
(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, make a maintenance order for the support of the applicant spouse in any case where, having regard to all the circumstances (including the conduct of the other spouse), the Court considers it proper to do so.
(4) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—
(a) the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or under statute, and
(b) the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

Source: Family Law (Maintenance of Spouses and Children) Act, 1976, section 5.

You will have to show that the other spouse has failed to provide proper maintenance in the circumstances and ultimately the Court will decide what is appropriate in each case. It is not necessary that the spouses are living apart.

A maintenance order can be varied (changed) or discharged after one year where there is a good record of payment.

How is the amount of maintenance calculated?

Firstly, a Court will only make an order for maintenance where the respondent spouse has failed to make proper provision in the circumstances of the case.

To decide on the amount of any order the Court will look at

I.     The income, earning capacity and financial resources of both parties and their dependent children

II.     The financial responsibilities of both parties

III.     The conduct of both parties (less important now as “need” is the principle criterion)

So, it will boil down to the needs of the applicant spouse and children and the resources of the respondent spouse.

The overall goal of the Court will be to make proper provision in each case and will have to balance the needs of one party and the children against the resources of the other spouse.

Generally if one spouse is involved in another relationship this too will be taken into account. Variation of maintenance orders can be obtained if circumstances change significantly and there is also provision for lump sum payments to be made although the max. that the District Court can order is €6,348.69.

The leading case dealing with the criteria  to decide on the amount of a maintenance order is R.H. v N.H. 1986 which set out

  1. after separation, there are two households
  2. the Court must look at the minimum reasonable requirements of the dependent spouse and children
  3. the Court must look at the income and/or earning capacity of the dependent spouse
  4. the Court must find out the net income of the dependent spouse (if there is assets generating little income the Court will order these to be sold)
  5. the Court must find out the minimum reasonable requirements of the respondent spouse. This is the most important factor-the ability of the respondent to pay.

Generally, second relationships and the income or expense of that relationship is taken into account in making an order for maintenance.

Spousal conduct can lead to a spouse being barred from obtaining a maintenance order in respect of him/herself but will still be able to get one in respect of children.

The Status of Children Act, 1987 allows a parent to apply for maintenance against the other parent in respect of the child where the child is born outside marriage.

The Family Law Act, 1995 provides for the making of lump sum payments which can be made in addition to or instead of periodical payments. The maximum allowable in the District Court is €6,348.69.

Maintenance Agreements

Parties can reach agreement themselves in respect of maintenance. This can be simply in respect of maintenance or as part of a separation agreement. However, the parties can still go back to Court and cannot exclude the operation of the Family Law (Maintenance of Spouses and Children) act 1976. The 1976 Act also allows any agreement to be made a rule of Court, provided it is ‘fair and reasonable’.

The max. payment that the District Court can order by way of maintenance orders is €150 per week per child and €500 for the spouse. The Circuit Court has unlimited jurisdiction.

But regardless of the formalities of divorce or judicial separation each spouse can enter into an agreement to provide for each other and dependent children. It is important to note though that even if parties do come to an agreement themselves neither party is prevented from going back to Court to seek an order for maintenance as there is no “clean break” recognized in Irish family law.

If the party who is obliged to pay maintenance refuses to do so there are various mechanisms which are intended to remedy this problem such as attachment of earnings orders and the Enforcement of Court Orders Act, 1940 or ordinary debt collection proceedings as the Enforcement of Court orders Act, 1940 only allows you to claim 6 months arrears maximum.

However, arrears going back further than 6 months can be pursued through ordinary debt collection proceedings.

In fact, the Family Law Act, 1995 provides that an attachment of earnings order will be automatically made on the granting of a maintenance order unless the respondent spouse can prove to the Court that he/she will make the payments without the necessity for it.

Maintenance Orders Made Abroad

Maintenance orders made abroad can be enforced in Ireland.

For example, the Maintenance Orders Act, 1974 allows the enforcement of orders made in the UK and the enforcement of orders made here in the UK. The Jurisdiction of Courts and Enforcement of Judgments Act, 1998 allows the enforcement of maintenance orders throughout the European Union. The Maintenance Act, 1994 provides for the enforcement of maintenance orders made in a wider range of countries than just the EU.

How to Apply for a Maintenance Order

Most maintenance applications will be brought in the District Court,unless a higher court is dealing with a related judicial separation or divorce proceeding.

You need to issue and serve a maintenance summons on the other parent. The form is 54.1/54.2/54.3,54.4/54.11. You can do this yourself or engage a solicitor.

And you may qualify for legal aid.

The maintenance summons must be served on the respondent at least 14 days before the Court date. This becomes 21 days if you don’t serve personally but serve by registered post.

After service, you must file the original maintenance summons and a statutory declaration of service in the District Court office-this must be done at least 2 days before the Court hearing date.

You then attend Court with your solicitor, unless you are making the application yourself, on the day  of Court in the summons.


By Terry Gorry
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