Maintenance on Divorce

Overview

The court may grant a preliminary order of maintenance in judicial separation and divorce proceedings. It may require a spouse to make a lump-sum payment or a periodical payment for the benefit of the other spouse and/or dependent children as and from the date of application to the date of the final orders in the judicial separation or divorce.

On granting a divorce, the court may make orders for periodical payments to either spouse for the benefit of the spouse or a dependent family member. The order may be secured. It may be a lump sum or for periodic payments.

A lump sum order may be made in respect of liabilities or expenses incurred by the applicant before the application. The lump sum may be payable in instalments. On remarriage, maintenance sums are to cease, save in respect of sums due before remarriage.

The procedures for securing and enforcing orders in divorce and judicial separation are similar to those in respect of maintenance generally. The attachment of earnings order procedure is available. See generally the sections on maintenance.

The District Court Office

The District Court office may assist in the recovery of maintenance. There is no obligation on the District Court office to do so.

The obligation is on the recipient spouse to take out a summons for attachment of the other spouse, who has breached an attachment of earnings order. The payer may be obliged to make the payments directly or through the District Court office.

The attachment of earnings procedure in the Family Law (Maintenance of Spouses and Children) Act applies to maintenance order made in the context of a divorce. The attachment order may be made at the time of the periodical payments order. Unlike other contexts, a default is not first required. Attachment of earnings has been provided for more widely by 2015 legislation in respect of civil debts, generally.

Lump Sum or Secured

A lump sum may be for a particular purpose, such as the purchase of property or in order to meet existing expenses. It may be in respect of monies unfairly withheld from the spouse.

In the absence of a so-called clean break divorce in Irish law, the court may make a lump sum order as part of the proper provision where there are sufficient means. The lump sum may be made in instalments. Lump-sum orders may not necessarily be as tax efficient as a periodic maintenance orders.

Where a lump sum payment order is made for a particular purpose, such as buying an asset in the State, it may make it appropriate that the order be made for payment in the domestic currency.

A secured maintenance order requires the paying spouse to make payments from a particular fund set aside or vested in a trustee. This payer may be required to execute a deed of security. The secured assets remain the property of the payer but may be subject to enforcement by the payee in the event of a breach. Payment orders are most commonly secured against land.

The divorce legislation allows for financial compensation orders. It may require a life policy be effected or be effected and assigned or be financed. The orders cease to have effect on death or remarriage.

Criteria

The totality of the circumstances and, in particular,  the factors listed in the Judicial Separation and Divorce Act must be considered. The divorce legislation requires that such provision as the court considers proper, having regard to the circumstances, should be made for spouses and dependent members of the family.

The court must be satisfied that proper provision will be made from time to time. It may review previous orders or review terms of a separation agreement. The terms of separation agreement, while influential or relevant will not bind or constrain the courts if it does not make proper provision.

The determination of the appropriate maintenance is a matter for the court. In the 1980s, the English Courts approved the use of actuarial evidence to calculate lump sums sufficient to generate future income. The approach is helpful but should not be rigidly applied.

In England and Wales, there existed a presumption that the non-earning spouse should start with one-third of the family income and assets, as a rule of thumb.  This depended on whether children need to be provided for as well. The more modern English approach has been to provide for the non-earning spouses’ reasonable needs, having regard to the various factors relevant in divorce.

Factors and Approach

There is no systemic approach or formula for maintenance under Irish law. This position has been criticised as leading to excessively discretionary or potentially arbitrary results. However, the existence of discretion allows individual circumstances to be considered on a case-by-case basis.

Both the divorce and judicial review legislation effectively provide for a spouse’s ongoing maintenance by the spouse with the greater wealth and income, notwithstanding they are divorced.

In effect, the Irish divorce legislation re-enacted the provisions of the judicial separation legislation as to maintenance. There is no clean break provision in Irish law.

Where the parties are residents in different jurisdictions with different currencies, this position should be considered, together with other factors such as taxation, professional fees and investment multiple. Supreme Court has indicated that orders may be made in the currency of residence of either party.

Where the respondents have ample means, it may be appropriate to make the order in the currency of the applicant on the basis that the respondent can bear the risk. If the respondent does not have ample means, the currency risk may be more appropriately borne by the other spouse or may be shared.

Social Protection Payments

The social welfare legislation provides for lone parents allowance. This subsumed former deserted wives’ allowances and laterally deserted husbands’ allowances.

The Social Welfare Act 2005 provided for one-parent family payment, replacing the lone parent’s allowance. It may be payable either to a separated or divorced spouse.

Social welfare legislation allows spouses to claim social welfare payments, notwithstanding that there is an obligation on the part of the other spouse to pay or contribute by maintenance. The legislation requires the paying spouse to make payments to the Minister where the claimant receives social welfare payments, which should be met by the spouse concerned.

Repay DSP

The person who is liable to support the claimant becomes liable to repay the sums to the Department as the body may determine. The Liable Relatives Unit of the Department may apply to the District Court for an order requiring that the contribution be made.

Where the claimant is in receipt of maintenance under a maintenance order, either for the spouse or children, this may offset sums to be paid by to the Department of Social Welfare. If the claimant fails to transfer the payments made under the maintenance where required, the benefits or allowances may be reduced accordingly. The provisions do not apply to maintenance by agreement.

The Department may require the maintenance debtor to repay the Department lone parent payments made to the claimant.

Variation or Discharge

The maintenance obligation remains variable on an ongoing basis with reference to be relevant factors. In principle, an application may be made for variation as circumstances require.

An application may be made under the Divorce Act for the variation or discharge of maintenance pending suit order, periodical payment orders, lump sum orders, or orders by way of instalments. Either party may apply where there is a change in circumstances.

If either spouse dies, another may apply who has sufficient interest in the matter. An application may be made on behalf of dependant family members by them or an interested party.

The court may consider the change in circumstances. New evidence may be offered. The court may vary, discharge or revive an order.

Children Ceasing to be Dependent

Maintenance payable to a dependent family member terminates when the member reaches 18 years or 23 years in full-time education/dependence.