Maintenance of Spouse

Authority of Wife

At common law, a wife had authority to pledge her husband’s credit for necessaries. Necessaries are things suitable to the person’s social standing or status, in accordance with this or her needs in that context, include food, lodgings, clothing and  medicine.

A husband is obliged at common law to maintain his wife by providing her with necessaries. This developed in the context of the wife’s legal incapacity to contract on her own behalf and hold property. At common law, neither spouse could sue the other so that maintenance could not be enforced.

A husband is deemed to give his wife authority to pledge his credit for such purpose.  The authority continued for so long as spouses live together.

The presumption of authority could be rebutted by an express notice to the contrary to a trader. The husband was judge of the sufficiency of the allowance given. If the wife ceased to live in the marital home, whether forced out or deserted, she could not pledge her husband’s credit even to support herself and children.

Modern Legislation

The Married Woman Status Act 1957 removed the remaining  disabilities of wives in the context of ownership and holding of property. The principle of agency to purchase necessitates is of doubtful status in the 21st century. Insofar as it still subsists at common law, it is unlikely to be relied on by traders.

The Family Law (Maintenance of Spouses and Children) modernised the law on maintenance. It provides for an application by one spouse for maintenance on behalf of himself or herself and/ or dependent children.

It is a stand alone provision for maintenance which may be taken at any time during the course of marriage irrespective of whether parties are separated or divorcing. It predates and is now supplemented by maintenance jurisdiction in the context of judicial separation and divorce.

Application for Maintenance

The application may be made in the District Court or High Court depending on the level of payment subject to limits of jurisdiction for each court. The question for the court is whether proper maintenance is being provided by one spouse for the other and/or dependents. A maintenance order may only be made if evidence is offered that proper provision is not being made.

The court in deciding whether a maintenance order should be made and if so the amount, must have regard to all the circumstances of the case. This is to include the income, earning capacity , the property and financial resources of the spouses, children and dependent members of the  family and any other dependent children of which either spouse is parent. Regards is also had to income and benefits to which either spouse or children may be entitled.

The court is  also to consider the financial and other responsibilities of spouses towards each other and towards any dependent children of the family and each spouse as a parent towards any other dependent children and the needs of any other children including the need for care and attention.

Spouses must furnish details of their property and income as are reasonably required for the purpose of the proceedings. If they fail to do so, the court may order them to comply. If either spouse has children with another, then their needs and responsibilities to that other child must also be considered, in determining the level of maintenance.

Criteria

The principal function and focus in maintenance cases is the relative financial needs and capacity of the spouses. This takes account of their income and assets, expenditures and liabilities. The 1989 Act, provided that desertion was not an absolute bar to obtaining maintenance.

The court is  specifically required  to have regard to all the circumstances of the case. It may include obligations to persons to whom one or other spouse has a moral obligation. The criteria are such that there is considerable scope for subjectivity on the part of individual judges.

The court should ascertain the minimum reasonable requirements of each and ascertain the income earned and capable of being earned. The court in carrying out the task must have regard to the fact that if parties are separated, there will be a reduction in the overall level of income. There is usually a necessity for two residences and two households.

In older cases, the courts in making maintenance orders had regard to the Constitutional recognition of the position of a wife within the home, and considered that a wife should not be obliged to earn in many cases to the neglect of her duties in the home, where there were dependent children.

Where there is a breakdown, there is an inevitable decline in living standards. The matter is focused on whether proper provision in being made for the needs of the spouse, whose maintenance is at issue. In the case of a wealthy spouse, it is not sufficient to provide basic needs.

In ample resources cases, what is proper maintenance in the circumstances is the continuance of the standard of living as near as reasonably practicable to that enjoyed by the spouse and family before breakdown of marriage, taking into account the relevant circumstances, bearing into mind that each spouse is entitled to a reasonable post breakdown standard of living.

Types of Order

There is power to make interim awards by way of a periodical sum payment, if it appears to the court, proper to do so, having regard to the needs of the person for whose support the maintenance order is sought and the other circumstances of the case. This is generally made where there is immediate need and the spouse making the order has insufficient means pending a full court application.

Periodical payment maintenance orders may be made. They may also be made pending divorce and or judicial separation.  Periodical payments may be paid for such period, in such amounts, at such time, as the court may consider proper. The orders are subject to variation from time to time and the possibility of termination, as changed circumstances require.

The 1995 Family Law Act makes provision for lump sum maintenance orders for the benefit of a spouse. They may be made instead of or in addition to periodical payments. The court should  make such award as it considers appropriate, having regard to the amount of periodical payments that would have been made and the periods during which and the times at which the payments would have been made, if no lump sum was ordered.

There are lump sum jurisdiction limits for the District Court but not for the High Court and Circuit Court.

There is no limit to the number of times an application for a maintenance order or lump sum may be made. Lump sums may be for ad hoc purposes to meet past or future expense. They may be for a spouse who has little or no support for a purpose and or / for a period.

The following are some sample circumstance in which an order for maintenance might be made. An order  may be made where  a spouse has incurred expenses or has been unnecessarily forced impoverished. It may be made to reimburse monies borrowed to meet personal and household expenses and family expenses prior to court hearing;

An order may be made where one spouse has received a capital sum on retirement, inheritance or otherwise and there is a concern that this may be dealt with unwisely or it is reasonable that it be secured or used to provide maintenance for a spouse and/ or dependents. An order may be made, where a capital sum is required to meet expenses and significant outgoings.

Conduct

In most circumstances, the spouse’s conduct is not relevant to the obligation to pay maintenance. Conduct is only relevant where it is such that in the opinion of the court, it would be repugnant to justice to disregard it. These provisions do not apply to maintenance paid for the benefit of dependent children.

A spouse may be barred from the receipt of maintenance, where the spouse has deserted and continues to desert the other. This is the case unless having regard to all the circumstances, including the conduct of the other spouse, the court is of the opinion that it would be repugnant to justice not to make a maintenance order. Desertion includes constructive desertion, which is conduct on the part of one spouse that results in the other spouse with just cause leaving and living separately and apart.

The onus of proving desertion is on the spouse against whom proceedings are commenced. If a spouse establishes that there has been desertion, the onus is on the other spouse  to satisfy the court that refusal of maintenance would be repugnant to justice.

Difficult questions may arise in relation to constructive desertion. Traditionally, spouses were obliged to accept the wear and tear of married life as part of the marriage for better or for worse. In many cases, it may be difficult to identify who has deserted whom, where spouses simply separate.  Desertion implies a leaving without consent.

The modern legislation has moved significantly from fault based grounds. The divorce legislation does not, in effect provides for no-fault divorce, sufficient that spouses live separately and apart.

Difficult issues arise in relation to attempting to identify fault in the context of desertion. The modern approach recognises that marriages may breakdown without fault on the part of either party. Matters and events that are the fault of one party may have caused, induce or lead to further events and matters that might  be characterised as the default of other party.

Discharge and Variation

Where a spouse applies for judicial separation and divorce, previous maintenance orders may be discharged in the course of the judicial separation or divorce, as at such date as the court specify.

Periodical payment orders may be discharged or varied on the application of either party at any time where there are new circumstances and evidence before the court. This may arise from changed circumstances and sometimes where it is shown that incomplete facts were before the court when the maintenance order was made. Changes in the value of money may justify an application for maintenance.

A maintenance order may be discharged on the application of a spouse, a year after being made, if it appear as to the court, having regard to the record of payments and circumstances, persons whose support is provided for, will not be prejudiced by it being discharged.

The court must revoke the order if the maintenance creditor subsequently deserts, unless having regard to all the circumstances including the conduct of the other spouse, the court is of the opinion that it would be repugnant to justice to do so.

In determining an application for variation or discharge of an order, the court may have regard to the conduct of each spouse, if it would in all the circumstances of that case be repugnant to justice to disregard it.

A maintenance order is to remain in force for such period during the lifetime of the applicant as the courts may consider proper. The court may in making a maintenance order delimit its duration as it sees fit.

A maintenance order may be varied or revoked . The District Court may vary or revoke an order made by the District Court previously or another District Court or the Circuit Court on appeal from it. The Circuit Court may vary an order, its own orders or an order made on appeal from the Circuit Court to the High Court.

Maintenance Agreement

If parties enter into a written maintenance agreement containing provisions whereby

• one spouse undertakes to make periodical payments to the other, or to dependent children of the family;
• a provision governing rights and liabilities of the spouses towards one another in respect of the making of payments other than the above payments or the use of property,

then upon application by the other spouse, the High Court or Circuit Court may make the agreement an order of court, if satisfied that it is fair and reasonable and that it adequately protects the interest of both spouses and dependent children. Where an agreement is made of rule of court, it may be enforced as if it was a court order.

District Court Office

The court on making a maintenance order must direct that the payments are to be made to the local District Court office rather than the maintenance creditor. The court is to make a direction unless at the request of the maintenance creditor, the court considers it would not be proper to do so.

The court may at any time in the future make such an order if it does not do so at the time of the making of the principal maintenance order. This may be made on foot of an unilateral application by the maintenance creditor.

The clerk is under a duty to transmit payments to the maintenance creditor. Where payments are in arrears, then on request from the creditor, the clerk may proceed for enforcement of the arrears in his own name. The maintenance debtor may also take proceedings in his or her own name.

Where a court has ordered payments, the court clerk may discharge the direction on the application of the maintenance debtor, if satisfied having regard to payment record and other circumstances that it would be proper and appropriate to do so.

The above provisions also apply to maintenance in the context of judicial separation and divorce.