Maintenance Flashcards
Family Law (Maintenance of Spouses and Children) Act 1976
This Act governs the making of periodic payments for the benefit of spouses and dependent children.
Section 5(1)(a) of the 1976 Act provides:
THE TEST IS WHAT IS PROPER IN THE CIRCUMSTANCES
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…
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.
Section 5A(1) of the 1976 Act addresses maintenance provision for illegitimate children
Subject to subsection (3) of this section, where, in respect of a dependent child whose parents are not married to each other, it appears to the Court on application to it by either parent of the child that the other parent has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other parent make to the applicant parent periodical payments, for the support of the child as aforesaid, for such period during the lifetime of the applicant parent, of such amount and at such times, as the Court may consider proper.
L (K) v. Judge Ní Chondúin [2015] IEHC 617
the District Court ordered maintenance in respect of two boys of the marriage. The elder boy had taken time off from university and was due to resume studies in September or October 2015, some weeks before he would reach the maximum age at which maintenance is payable, namely 23 years of age. The younger of the two boys was suffering from some degree of psychiatric difficulty or depression. The District Court awarded maintenance for both boys and this decision was judicially reviewed by the father.
Regarding the older boy, the High Court held that the District Court had erred in awarding maintenance in circumstances where he had taken a gap year from his third level studies.
Regarding the meaning of s 3 of the 1976 Act (“suffering from mental or physical difficulty to such extent that it is not reasonably possible for him to maintain himself fully”), the High Court held, “[t]he test is cumulative and requires evidence not merely of an incapacity, but evidence that the incapacity was such as to render the child incapable of financial independence.” It was held that this test was not met on the facts of the case.
Prior to the passing of the Illegitimate Children (Affiliation Orders) Act 1930, it was not possible to obtain maintenance for non-marital children. Act 1987 repealed the 1930 Act and amended the 1976 Act to cover maintenance for non-marital children.
Maintenance of non-marital children
McE v. O’S [2009] IEHC 52
He noted that the Family Law (Maintenance of Spouses and Children) Act 1976 was amended by the Status of Children Act 1987 to allow for the determination of maintenance disputes in relation to non-marital children.
However, Sheehan J then went on to hold that the 1987 Act did not extend the provisions of s 11(2)(b) of the Guardianship of Infants Act, 1964 to non-marital children.
The learned judge concluded that the Circuit Court had no jurisdiction under s 11 to make the order it did directing the payment of a lump sum of €500,000 by the respondent to the applicant mother to provide a home for her and their child.
During the hearing, the mother had contended that the court had power to make a property adjustment order under s 42 of the Family Law Act, 1995. However, as was pointed out by the notice party (father’s wife), the claim for housing was specified in the Civil Bill to be pursuant to s 11(1) of the 1964 Act and no application was made to amend the Civil Bill. The Court refused the Applicant’s claim pursuant to s.42 on this ground. The judge held that there was no dispute that the applicant’s claim for maintenance was well founded and considered the sum of €1,200 per month to be the appropriate maintenance payment.
The applicant mother in McE v. O’S took proceedings against Ireland before the European Court of Human Rights. The Irish Government in September 2013 requested the Court to strike out the application on the basis of the following terms of settlement (Application No. 42734/09):
- The Respondent (Ireland) acknowledged that certain aspects of the High Court judgment gave rise to a situation incompatible with the right of the Applicant to respect for her family and private life under Article 8 taken in conjunction with Article 14.
- The Respondent agreed to pay the following sums within three months of the date of notification of the decision of the Court:
- €12,000 in non-pecuniary damages to be divided equally between the Applicant and her son;
- €3,500 plus VAT in respect of costs and expenses of the application to the ECtHR;
- €20,000 plus VAT in respect of the costs of the domestic family law proceedings. - A commitment in the Programme for Government to modernise and reform outdated elements of family law to include treating children equally, regardless of the marital status of their parents.
What does the court take into consideration when calculating maintenance?
Section 5(4) provides that in granting a maintenance order, the court is to take account of all the circumstances, with particular regard to the following:
(a) the income, earning capacity (if any), property and other financial resources of:
(i) the spouses and any dependent children of the family, and
(ii) any other dependent children of whom either spouse is a parent, including income or benefits to which either spouse or any such children are entitled by or under statute, with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of any dependent
children granted to either parent of such children;
(b) the financial and other responsibilities of:
(i) the spouses towards each other and towards any dependent children of the family, and
(ii) each spouse as a parent towards any other dependent children, and the needs of any such children, including the need for care and attention;
(c) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances be repugnant to justice to disregard it.
Enforcement: Payment through district court clerk
provides for a system of transmission of payments for a maintenance, variation or interim order through a District Court clerk. The District Court clerk transmits any payments made to the maintenance creditor. This method will not be used if the maintenance debtor requests the District Court not to do so and the court considers that it would not be proper to do so. As part of its order, the Circuit Court may direct that a maintenance order is payable through the District Court.
section 20 1995 Act
Section 28 1996 Act
section 9 1976 act
Enforcement of Court Orders Act 1940
This Act (as amended by s 29 of the 1976 Act, and s 22 of the Family Law Act 1995) (hereafter the 1995 Act)
gave the District Court jurisdiction to imprison the debtor for a maximum three month period, if on coming before the court on foot of default, such person has no defence. The court can also direct such sum or sums together with the costs of the application to be levied by distress and sale of the goods of the defaulter.
Failure to make maintenance payments are now under section 31 of the Civil Law (Miscellaneous Provisions) Act 2011 The main points to note from s 31 are:
- Failure to make payments is a contempt of court.
- A judge of the District Court shall, subject to the section, have the same
powers, including the power to impose a sanction, as are exercisable by a judge of the High Court in relation to contempt of court proceedings before the High Court. - A maintenance creditor may apply to the relevant District Court clerk for the issue of a summons directing the maintenance debtor to appear before the District Court.
- If the maintenance debtor fails, without reasonable excuse to appear before the Court in answer to the summons, the District Court on the application of the maintenance creditor, shall, if satisfied that the debtor was served with the summons, issue a warrant for the arrest of the maintenance debtor.
- Prior to the full hearing, the maintenance debtor shall be informed, that he/she is required to attend, that failure to attend may in itself constitute a contempt of court which includes as a consequence the possibility of imprisonment and that he/she is entitled to apply for legal aid.
- If, on the full hearing, the judge is satisfied that the payment has not been made and this failure is due to the inability of the maintenance debtor to make the payment by reason of a change in his/her financial circumstances or some other reason not attributable to any act or omission on his/her part, the judge may adjourn the hearing to enable the outstanding payment to be made or enable an application to be made for an attachment of earnings order.
- It is also open to the District Court to vary the order where the failure to make the payment is due to the inability of the maintenance debtor to make the payment by reason of a change in his/her financial circumstances.
HD v. Governor of Wheatfield Prison [2011]
- . . . the imposition of a custodial sentence via the contempt jurisdiction should generally be the option of last resort for any court, save where the behaviour of the offender is so contumelious and outrageous as to call for immediate sanctions. While I appreciate that, at least from the perspective of the wife, the husband here had been given many opportunities to discharge his obligations to her, she nonetheless fairly acknowledged that the District Judge in the present case gave the husband no such advance warning so far as the sentence of imprisonment is concerned.
Section 8 of the Enforcement of Court Orders Act 1940 was amended by s 63 of the 2011 Act. The new section deals with maintenance amounts due within the meaning of the 1976 Act. It is open to a District Court judge to take, inter alia, one of the following steps:
- Make an Order directing the outstanding payment(s) to the District Court clerk to the extent of the amount outstanding;
- Where satisfied that it would be effective to do so, make an Order that the amounts outstanding to the Applicant be levied by distress against the goods of the defaulter and the sale of such goods.
Attachment of Earnings Order
An attachment of earnings order is deducted from the paycheque of the debtor at the source. This guarantees the payment of maintenance.
Really only happens where there is already a default.
Cannot deduct the person’s earnings below a certain level.
McGrath v. District Court Clerk & Anor
Attachment earnings orders
raised interesting points as to the operation of an attachment of earnings order. In this case the maintenance order was open-ended in that the employer was not provided with any information as to the dates on which each of the dependent children referred to reached the age of 18 years so that as each child reached that age, the amount deducted from the applicant’s salary would be reduced by ₤40 to reflect the terms of the maintenance order
It appeared that only the attachment of earnings order and not the antecedent maintenance order was sent to the employer. In the High Court, Peart J held that this led to the conclusion that as each child reached the age of 18 years of age, that part of the order, namely as to payment of ₤40 per week for that child, stood discharged. The judge went on to explain that nothing was required to be done for that to be the case and that the only obligation on the applicant by the maintenance order was to pay the reduced amount.
R v. R
guy was refusing to pay maintenance and the court found him in contemp of court gave him 28 day prison sentence but put a stay on it so that he could either pay up and purge his contempt or go to prison.
