Maintenance Rights in Irish Family Law
Maintenance rights stand as a cornerstone in Irish family law, ensuring financial support during and after marriage. Even if maintenance was not obtained during the separation or divorce process, spouses retain the right to seek it later, with the only exception being re-marriage.
Jurisdictions
During marriage or separation, spouses can seek maintenance under the Family Law Maintenance of Spouses and Children Act, 1976. If a Maintenance Order is made in the Circuit Court, it should be handled in the District Court.
In the District Court, maintenance is capped at €150 per child, per week, and €500 per spouse, per week. In the Circuit Court, there is no such limit, with considerations focusing on the payer’s ability to pay and the Applicant’s needs.
Previous Case Law – R.H. v N.H. Supreme Court 1986
In this matter, the Court recognised the inevitability that both parties and the children of the marriage would suffer a significant diminution of the overall standard of living. The Court set out the following test that subject to that overriding consideration the court must:-
- Ascertain the minimum reasonable requirements of the wife and the children for whose upkeep the wife is responsible,
- Ascertain the income earned or capable of being earned by the wife (over and above the maintenance for which the husband is responsible),
- Ascertain the true net take home pay and income of the husband,
- Ascertain the reasonable living expenses of the husband, taking into account the general consideration of economy affecting all the parties concerned but leaving the husband with a reasonable standard of living.
Previous Case Law – N.O. v P.Q. Court of Appeal 2021
There is a statutory right of spouses to maintain one another during the marriage and beyond. An interesting case law to note is that of N.O. v P.Q. [2021] in which a husband was ordered by the High Court to pay a lump sum of €120,000 and pay a further €800 per month in spousal maintenance for four years and €1,200 per month for the children while they were still dependents.
This decision was appealed by the wife on two grounds, firstly that €800 per month would not be sufficient to support her, and secondly, that it was incorrect that the maintenance was to be paid for a specified period of four years and would cease thereafter.
The Court of Appeal held there was a significant overestimation by the trial judge of the future likelihood of the wife earning an income and stated that the monthly maintenance order of €800 as to be incapable of constituting proper provision for the wife. The Court of Appeal found that the High Court had overestimated the likelihood of the wife being self-sufficient within four years given her age, employment history and lack of qualifications.
Further, the Court of Appeal held that the trial judge had failed to properly value the contribution the wife had made to the success of the couples’ farm over the 23 years of marriage.
A sum of €1,600 per calendar month until the husband’s retirement was held to be a reasonable, fair and proportionate sum in all the circumstances.
Maintenance Applications by Third-Parties
Third parties, such as relatives or the child, can bring a maintenance application if they believe a child is not being properly maintained by one or both guardians. A child may also bring an application for maintenance against a guardian, although these are rare.
Non-Compliance of payment of maintenance
If a party falls behind on maintenance, an application can be made for an Attachment of Earnings Order, where a copy of the Maintenance Order will go to the Employer. The Maintenance will then be deducted at the source of income.
New Guidelines
The government recently issued new guidelines on the enforcement of maintenance with a commitment to put in place measures to implement the wide-ranging recommendations designed to make it easier for maintenance Orders to be enforced.
For further information on any family law related matters, do not hesitate to contact one of our Family Law Solicitors on 01-2960666.
