Maintenance : Do Rights Come with Duties
This is a sensitive family law area, which can be complex when parents and/or spouses are faced with relationship breakdown and are not aware of their rights or their duties.
Who pays maintenance?
There is a legal responsibility in Ireland on both spouses, to maintain each other, and on parents, to maintain their children, in line with their means. Both parents have a responsibility to support their children financially. This applies to all parents, whether married, separated, living together or if they have never lived together. Child maintenance is payable for a child up to the age of 18 or to the age of 23 if the child is in full-time education. If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit on the payments. A standard rate of child support payment does not exist here currently but the District Court has the power to award sums of up to €150 per week per child and up to €500 per week per spouse. If someone is seeking a higher sum than this they will have to apply through the Circuit Court.
What may come as a surprise is that even if a parent financially support a child it does not give him or her automatic rights of guardianship or access. The Courts do, however, always recommend that a child’s welfare takes priority, which generally means having both parents in his/her life.
When does spousal maintenance cease?
A married person can seek spousal financial support following the breakdown of the marriage. The obligation to maintain and support a husband/wife continues even if the person paying the maintenance remarries and takes on the responsibility for the support of a new spouse and dependent children. In general, a husband/wife only stops being responsible for the maintenance when that person dies or remarries. Surprisingly, recent report findings showed that spousal maintenance is not the norm in Ireland.
Is an ex-partner entitled to maintenance?
Previosuly parties were only entitled to spousal maintenance if married. This all changed with the Civil Partnership Act which gives certain cohabitees rights. Under the Civil Partnership Act a cohabiting couple must have lived together in an intimate and committed relationship for five years or two years if they have children together. In applying for maintenance it is important to remember that a cohabiting couple does not have automatic rights. The person seeking support must show financial dependency as a result of the relationship and its demise and it is a matter for the Courts to decide who “qualifies”. The Court, (if the parties qualify) then has the power to award maintenance to an ex-partner.
How can maintenance be obtained?
When a marriage or relationship ends financial support can be arranged in a number of ways. In situations where parents are unmarried or separated, they can agree between themselves what amount is paid and they can agree the method of payment. Alternatively, each parent may choose for their Solicitor to negotiate an agreement. If the parties cannot agree , either party can apply to Court for a maintenance order and the Judge decides what maintenance is to be paid. In doing so the Judge will look at the individual circumstances of each case and strike a balance between what one party needs and what the other party can afford.
How is maintenance paid?
Parties can make payment arrangements between themselves or it can be paid through the District Court Office where the District Court Clerk will monitor the payments. In cases where a person fails to comply with a court order and does not pay the amount awarded, an Attachment of Earnings Order can be sought from the Court and the maintenance is deducted by the paying employer. The employer has to comply with this otherwise s/he would be held in contempt of court. If the person is self-employed, an Enforcement Summons can be applied for. When that person comes before the Court the Judge can, if s/he has no defence, imprison the debtor.