Maintenance General

Historical Background

Historically, a husband was obliged to maintain his wife and children. He was obliged to provide necessaries for them. Necessaries are those goods and services required for the maintenance of the spouse and children, having regard to their standard of living, position in society and requirements.

Until the later years of the 19th century, a wife’s assets passed directly to her husband on marriage, and she was incapable of contracting and entering transactions herself. The spousal right to support ended in the event that the spouse deserted her husband or committed adultery to which the husband did not consent, connive in or condone.

At common law, a wife was entitled to purchase necessaries. Moreover, she was entitled to take credit and incur debts on her husband’s behalf for the purpose of purchasing necessaries.

Eventually, the wife’s inabilities to contract and hold property were removed by statute. The wife’s right at common law to pledge her husband’s credit is probably inconsistent with modern constitutional rights and principles.

Modern Legislation

Legislation in the last 40 years has steadily facilitated easier applications for maintenance and enforcement through the courts. The procedures for applications to the District and Circuit Courts are significantly simpler than in general legal disputes.

The court may make a maintenance order in favour of an applicant’s spouse and/or dependent children where it is satisfied that the other spouse has failed to provide such maintenance as is proper in the circumstances. The requirement to maintain applies equally to husbands and wives in respect of the other.

The application for maintenance may be made and maintenance may be ordered to be paid regardless of whether the parties live together or apart. The requirement that the applicant be a spouse means this particular legislation is limited to those persons.

There are separate provisions for maintenance and financial provision in the case of judicial separation and divorce. There is also special provision which applies where a foreign divorce is recognised in the State. An application may be made to courts for preliminary relief in relation to maintenance as well as other orders.

Any person may apply to seek payment of maintenance for dependent children where the spouse is dead, incapacitated or living separately and apart from the other spouse. The applicant need not be the person with custody of the children.

There is provision for interim maintenance pending a hearing of the maintenance application. The court may make an order of interim maintenance if it is proper to do so, having regard to the needs and circumstances of the person for whom support and maintenance orders are sought.

Children

A dependent child is one under the age of 18 years or under the age of 23 and in full-time education. It also includes a person who suffers from a physical or mental disability and cannot maintain himself in view of dependency. In this latter case, there is no age limit.

Maintenance may also be applied for in respect of children to whom the spouse stands in the place of the parents (in loco parentis). The child may be the child of both spouses, adopted by them or in relation to whom they stand in place of parents.

Alternatively, the child may be a child of one spouse or adopted by one spouse, or standing in place of a parent provided the respondent spouse knows he or she is not the parent and has treated the child as a family member.

Since the Status of Children Act 1987, a non-marital child is a dependent child of both parents. Either parent may apply to the court for the maintenance of the child. In this situation if the court determines that the other parent has failed to provide proper maintenance it may make an order directing them to make a periodical payment or lump sum.

Lump or Periodical

The courts may make maintenance orders by way of periodical payments or by way of a lump sum of both. Maintenance payments may be secured against the property owned by the respondent spouse.

A court may make a lump sum maintenance order for payment of maintenance and or a lump sum payment. A lump sum order may be ordered to be paid in installments or may be ordered to be secured on a property.

In deciding whether maintenance should be paid and at what level, the court has regard to the entire circumstances. In particular, this could include:

• the income, earning capacity, assets and resources of the spouses and children
• financial and other responsibilities of the spouses to each other and dependent children and their needs
• the conduct of each spouse but only where it would not serve justice to ignore it

Formerly, certain misconduct on the part of the spouse, including desertion, was a bar to maintenance. Now, it only prevents maintenance if circumstances are such that it would be unjust to ignore them.

Criteria

The court decides what is proper maintenance with reference to the entire circumstances. It must have regard both to the needs of the applicant’s spouse and dependent children and to the needs of the paying spouse.

The level of maintenance depends on the preexisting circumstances and the resources available. If a spouse has enjoyed a certain standard of living, this would be largely reflected. Of necessity, there may be a reduction in standard of living due to the splitting of resources.

The applicant spouse may be entitled to a lifestyle co-measured with that available to other spouses. Where the spouse has cared for dependent children, she may not be obliged to work outside the home in order to supplement income.

This proposition has been justified by the special protection of the spouse within the home under the Constitution, although this may be less of a consideration than was the case before.

Generally, the need for two homes will lead to a reduced standard of living for both. However, if one spouse is wealthy and has the means to maintain the existing lifestyle for both, the courts are likely to order substantial maintenance measured against the preexisting standard of living.

The court will have regard to the entire circumstances of both spouses, including contributions or obligations arising from a second relationship. The permanency of the second relationship will be irrelevant.

Obligations to a person to whom the spouse is not married may be disregarded because no legal obligation to maintain exists under the traditional approach. This approach has been eroded in recent times.

Desertion by one Spouse

The court takes some account of spousal misconduct in determining maintenance. If one spouse has caused the particular situation or separation, then the court is more inclined to be protective of the other spouse, in particular where misconduct has caused the separation.

Outside of this, the court will generally only take into account serious misconduct. This is only in the context of maintenance between spouses. This would not apply in relation to dependents.

Where one spouse has deserted the other, it is a bar to maintenance unless, having regard to all the circumstances, it would be unjust not to make a maintenance order. See other chapters in relation to desertion. A spouse may be in desertion if he or she has driven out the other spouse. In this case, there is constructive desertion by the spouse who has caused the separation.

Separation Agreement

Spouses may not exclude or limit the right to apply to the court for maintenance in a separation agreement. It is not possible to make a lump sum payment in full and final settlement of all future claims. It is possible to revisit maintenance as circumstances change. The fact of a separation agreement and its terms would be relevant. However, they cannot ultimately displace the right of the other spouse to apply to the court where appropriate maintenance is not being provided in the circumstance.

A separation agreement may be made a rule of the court. This means that it has the force of a court order. The court must be satisfied that it is fair and reasonable and adequately protects the interests of the parties and dependent children. Once made a rule of court, the order may be enforced using the special enforcement mechanism through the District Court mentioned below.

Variation

An application may be for discharge or variation of a maintenance order by either spouse in certain circumstances. The spouse who is obliged to pay the maintenance order may apply for discharge at any time after a year. A discharge may be ordered where the court is satisfied, having regard to the record of payments and circumstances, that the other party would not be prejudiced by the discharge.

The Court may discharge or vary a maintenance order at any time on the application of either party where there is a change in circumstances. The circumstances must not have existed at the time the order was made. This may include the conduct of a spouse, where it would be repugnant to justice to disregard such conduct.

The Court may also have regard to new evidence which was not available at the previous hearing. If the payee of maintenance deserts or continues to desert the paying spouse, the court may discharge the maintenance order unless it would be repugnant to do so, having regard to all circumstances. Maintenance for a child is discharged when the child ceases to be a dependent.

Payment Through Court Office

Unless the Court otherwise directs, payment of maintenance is made through the District Court office. The District Court office is obliged to transmit payments to the recipient.

If the payments are not made through the District Court Office where required, they must take steps to recover the same. This is separate to the right of the payee spouse to recover the same.

Attachment of Earnings

On the application of the payee spouse or the District Court Office, the Court may make an attachment of earnings order. The order specifies a normal deduction rate which is reasonable to deduct from the salary of the paying spouse. It must also specify the protected earning rate, which is a sum below which the retained income of the paying spouse must not be allowed to fall.

The Court will not make an attachment of earnings order without the consent of the payer unless he or she has failed to make a maintenance payment. An attachment of earnings order is served on the employer. Certain obligations arise. The employer must make the requisite deduction and give a statement to the employee. If the employer no longer employs the person concerned, he must notify the Court Office.

The attachment of earning orders must be served on a subsequent employer. Service by registered post is sufficient. The Court may order the payer or its employer to furnish a statement of earnings.

The payer has an obligation to inform the court of any change in relation to employment and identity. The new employer must inform the court if he knows that such an order exists.

An application can be made to vary or release an attachment of earnings order by either spouse to the District Court Office. An employer must comply with the terms of the order within 10 days of notice. It is an offence to give false or misleading information.

There is a procedure under the Enforcement of Court Order Acts by which a judge may direct enforcement by distress. This involves the physical seizure and sale of goods.

A paying spouse may be subject to imprisonment under the Enforcement of Court Orders Act for failing to make maintenance payments due. The original was found unconstitutional in part.  This lead to the provision of legal aid and much more rigorous procedures so, as to protect a person from possible imprisonment without due process.

UK Cross-Border

The general principle is that the courts recognise the decision of Foreign Courts. The practicality of enforcement may be difficult.

The Maintenance Orders Act 1974 requires the enforcement of maintenance orders made in the United Kingdom. The United Kingdom has equivalent legislation for enforcement in the UK of Irish maintenance orders. The matter is referred to the Master of the High Court, which h considered the matter, must make an order unless its recognition would be prohibited.

When an enforcement order is made, a notice of the fact must be given to the payer. He must be informed of his right to appeal to the High Court within one month. The maintenance order must be recognized unless.

• It is contrary to public policy.
• It has been made without appearance and the person involved was not given sufficient notice in time to arrange a defence.
• It is not reconcilable with an order in the same matter made in the State.

The District Court can enforce a UK maintenance order it recognises in the same manner as enforces a domestic maintenance order.

EU Cross-Border

The Brussels, Rome and New York Conventions on the international recognition of maintenance are incorporated in Irish Law by the Maintenance Act 1994. The Brussels and Rome Conventions apply to the European Union.  Each state must designate a central authority. Central authorities must cooperate to facilitate the recovery of maintenance payments.

A maintenance creditor in one state may seek to have an order recognised and enforced in another state. It may request the central authority in its home state to transmit the application to the state in which enforcement is sought. On receipt of an application, the latter state shall take necessary measures to locate the maintenance payer and have the order enforced.It facilitates transfer of maintenance payments and uses the enforcement mechanisms of the latter state to recover.

In Ireland, where the central authority receives an application, it is sent to the Master of the High Court. The Master must make an enforcement order unless it appears that recognition or enforcement is prohibited under the Convention. It is then served on the payer, who may appeal to the High Court.

The grounds for refusal of recognition are broadly the same as set out above. An order which is recognised under the Conventions is enforceable in the same way as a domestic maintenance order.

Non-UK Non-EU

The New York Convention provides a broadly similar procedure for non-UK, and non-EU cases. There is a central transmission agency in each state. When the central authority receives a request accompanied by an order from another state, It is submitted to the Master of the High Court.

The Master of the High Court determines enforceability in much the same manner as above. If the central authority may enforce the order through the District Court.

A claimant may use the legislation to assist in relation to a pending maintenance order against a respondent spouse living in one of the other states. It may apply to the Irish Central authority to have its claim transmitted to the central authority in the later jurisdiction. There are procedures for taking evidence in the third country concerned in relation to the application.

The authority may obtain information regarding the place of work and location and suspend the assets of the defendant maintenance payer concerned. An application may be made to the District Court for information regarding the payer.