Prior to recent reforms of the enforcement of judgment legislation, maintenance was one of the few types of payment which could be secured by a simplified attachment of earnings order procedure. An application for attachment of the earnings of the maintenance debtor (payer) can be made summarily to the District Court Clerk to whom payment is made. The consent of the spouse is not required.
The application may be made by the District Court Clerk at the time and the court first makes a maintenance order, if it is satisfied that a maintenance debtor is a person to whom earnings fall to be paid. Proof of default is not necessary. There are parallel provisions in respect of maintenance in the course in judicial separation and divorce.
The court must give the maintenance debtor the opportunity to make representations relating to whether he is employed or self-employed and whether he would make the payments to which the order relates.
The attachment of earnings procedure applies to periodic maintenance. It has been held that a lump sum such as redundancy are not earnings for this purpose.
The attachment of the earnings order is required to specify a normal deduction rate and a protected earnings rate. The normal deduction rate is the rate which the court considers reasonable to apply for payments due under the order and arrears due. The protected rate is the amount which the court considers below which the earnings of the payer/maintenance debtor should not fall.
Where the order is served on the employer or other payer of earnings, it obliges it to deduct payments and pay them to the District Court Clerk for the benefit of the maintenance creditor. The employer or other payer must give the maintenance debtor a statement of deductions. The District Court Clerk is to forward payments received to the maintenance creditor /s spouse.
Once an order is made under this legislation, other orders for enforcement under the enforcement of court orders legislation lapse.
The court may require the maintenance debtor to furnish a statement of earnings and of his employer as well as the particulars of his personal resources and financial requirements. The notice of the application may include a request for a requirement to furnish these details. They may include earnings and expected earnings.
Where the order is in force, an employer, maintenance creditor or maintenance debtor may apply to the court for a determination as to whether any income is earnings for the purpose of the legislation.
Where a maintenance debtor ceases to be in the employment of the employer to whom an attachment of earnings order is directed, that employer must notify the court within 10 days. The order lapses upon cessation of employment or if the person was never employed by the putative addressee of the order. The order does continue in effect in respect of earnings paid after termination of employment if any.
Duties of Payer
The maintenance debtor is obliged to notify the District Court Clerk within 10 days of cessation of employment or change of employment. He is required to give details of his new earnings or potential earnings.
Where a person employs a maintenance debtor and becomes aware that an attachment of order is in force, he is obliged to notify the court that he is an employer and provide a statement of earnings. The District Court Clerk may serve the order on the employer.
A person who fails without reasonable excuse to give notice above and as a consequence fails to obtain money due under the attachment order, may be sued for recovery of that sum as a contract debt.
It is an offence to give false or misleading information to the court in relation to any of the above matter. The person concerned is liable to a fine of up to €254 or imprisonment of up to six months. There is no criminal sanction for failure to inform the court.
The court may discharge or vary enforcement of attachment of earnings order. The order is automatically discharged upon discharge of the underlying maintenance order.
Judicial Separation & Divorce
The Judicial Separation and Family Law Reform Acts and the Family Law (Divorce) Act allow for secured payment orders to be granted at the time a periodical payment order is made under the maintenance or guardianship of infants legislation.
The maintenance debtor may be required to secure the payment in the manner specified to the satisfaction of the court. It originally applied to separation and divorce matters only but has been extended to all maintenance orders. It is available in the District Court.
The general enforcement of orders legislation may be employed in respect of maintenance orders. See the sections separately on the enforcement of court orders. A person who defaults in payments may be subject to distress of his goods or imprisonment on application by the maintenance creditor or District Court Clerk where the payments are being made through the latter.
Proceedings in respect of maintenance arrears in the six months prior to the application may be recovered. An application is made to the District Court for summonsing or arrest of a maintenance debtor. The maintenance debtor may be required to enter a recognisance to appear on a specified date with or without sureties.
The District Court may on application direct that arrears of a maintenance debt are recovered by distress and the sale of the maintenance debtor’s goods. Subject to the enforcement of court orders legislation generally and Constitutional issues that have arisen in that context, a maintenance debtor may be imprisoned for deliberate failure to make payments due, which he can afford.
The Defence Forces legislation has older provisions for the automatic deduction of earnings. If a maintenance order is made against a person who is a member of the Permanent Defence Force, a copy of the order may be sent to the Minister for Defence.
There shall be ordered to be deducted and appropriated in satisfaction of the amount, such portion not exceeding two-thirds or three fourth of his daily pay as the authority thinks fit. The applicable proportions depend on the member’s rank.
The attachment of earnings provisions and imprisonment under the enforcement of court orders is not permitted.
Where it appears to the Minister that a person is or subsequently becomes a member of the Permanent Defence Forces, has deserted or left in destitute circumstances without reasonable cause, his wife or any legitimate children under the age of 18, the Minister may order that there be deducted from his pay and applied in such manner as the Minister thinks fit, monies for the maintenance of the wife and such legitimate children. The above proportions apply.
Other methods of enforcement may be applied to the enforcement of maintenance payment. Some of the remedies are not available as the order is not final in the sense that it may be varied. An application for variation may be made.
An application may be made under the Debtors (Ireland) Act, for payment of arrears of maintenance or committal in default for deliberate refusal or neglect to pay. They may be provided in the order to enable payment of the debt. Imprisonment may be for a term of six weeks or until payment is made.
The maintenance payments may be recovered by attachment or committal proceedings. They may not be recovered by an action as they are not a final judgment. A motion may be made to attach and commit the maintenance creditor to prison for a default or contempt of court may be made.
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