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Maintenance Following Separation or Divorce

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Separated or divorced people are responsible for the maintenance of their dependent children and, depending on the terms of their separation/divorce, they may also have maintenance responsibilities in respect of each other. l Aspouse can apply for maintenance even if they are living with the other spouse. l Unmarried parents are obliged to maintain their children but they have no financial obligations to each other.
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  • Added: October, 18th 2010
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january 2007

Separated or divorced people are responsible
for the maintenance of their dependent
children and, depending on the terms of their
separation/divorce, they may also have
maintenance responsibilities in respect of each
other.
A spouse can apply for maintenance even
if they are living with the other spouse.
Unmarried parents are obliged to maintain
their children but they have no financial
obligations to each other.
(See also Separation, Divorce and
Cohabitation leaflets.)
Maintenance Following Separation or
Divorce
In Irish law the obligation to maintain a
spouse and children cannot be set aside, even
on divorce. In other words, it is not possible
to achieve a ‘clean break’ on separation or
divorce.
A clause in a separation agreement, which
states that a spouse cannot seek maintenance
or an increased amount of maintenance in the
future, cannot be enforced.
A divorced spouse can apply for a
maintenance order or a variation of an
existing maintenance order after the decree
of divorce has been granted. A spouse is only
barred from doing this if she/he has
remarried.
2

How to set up maintenance arrangements
for children or for spouses
Maintenance arrangements can be made by
way of a voluntary agreement between the
parents, or through court proceedings.
Maintenance orders can be applied for at any
time through the courts. It is not necessary to
have legal representation to undertake these
proceedings, but it is wise to obtain legal
advice.
The nearest District Court office will be listed
in the telephone directory under ‘Court’ or
found online on the Courts Service website:
www.courts.ie. The District Court clerk can
issue a maintenance summons against the
other spouse or parent.
If proceedings for judicial separation or
divorce have already begun, or if the amount
of maintenance sought exceeds the limit of
the District Court, then the matter of
maintenance will often be determined in the
Circuit Court.
The spouse or parent can go the District
Court clerk and take out a maintenance
summons
in order to begin the process. The
court staff will require details in order to start
the case, e.g., your name, address, and that
of the respondent (the other parent). A
summons will be sent by registered post to
the respondent, which directs him/her to the
Court for a hearing on a certain date.
3

If parents are unmarried it may be necessary
to establish the paternity of the child in the
course of maintenance proceedings.
If circumstances change after a maintenance
order has already been obtained, either parent
can go back to Court at any time for a
Variation Order to have the amount of
maintenance increased/decreased.
Maintenance proceedings are always held in
private. They can be brought at any time until
the child turns 18 years old, or else up to age
23 if that child is in full-time education, or
would be if maintenance was being paid. If
the child has a disability that prevents him/her
from leading a fully independent life, there is
NO age limit.
Payment of maintenance does not give a
parent any access or guardianship rights.
These are seen as separate issues.
A Maintenance Order can run from the date
upon which the order was applied for. From
that point on, where maintenance is not paid
or only partly or sometimes paid, the unpaid
amount of it is known as ‘arrears of
maintenance’.
4

Voluntary Maintenance
It is possible for parents or spouses to make a
written voluntary maintenance agreement
between them about how much maintenance
will be paid in the future and then, if they
wish, they can apply to the District or Circuit
Court (depending on the decided amount of
maintenance) to have it made a rule of court.
Either parent can apply to have a voluntary
agreement made a rule of court; by doing this
the agreement is given legal force. This means
that if any term of the agreement is breached,
certain court-ordered remedies may be
available to help enforce it.
The person who is to receive the maintenance
is known as the maintenance creditor and the
person who is to pay is known as the
maintenance debtor.
The following matters should be taken into
account when laying out a voluntary
maintenance agreement:
Estimate the cost of living if you are
married. Estimate the cost of raising your
child. It is important to remember that the
District Court can only award a maximum
of
150 per child per week and a
maximum of 500 for a spouse.
Determine the financial resources of both
parents, including actual earnings, earning
capacity and the assets held by each
parent.
5

Determine the financial duties of the
maintenance debtor. If the maintenance
debtor has children from another
relationship to whom maintenance
payments are made, then this must be
taken into consideration.
Having considered the above matters, the
parties agree on an amount and then sign the
voluntary maintenance agreement. This may
provide for a property transfer or a lump sum
payment. The agreement cannot rule out the
possibility of a court application for a
maintenance order for regular payments
being made at some time in the future.
Provided that it meets certain legal
requirements, a maintenance agreement will
be legally binding on the parties.
Mediation
Mediation may help if there is difficulty
coming to a arrangement which satisfies both
parents. Mediation provides a service to help
couples negotiate the terms of their own
agreement in an atmosphere of co-operation.
A professionally trained mediator will try to
assist the couple in reaching their own
agreement. The aim for the mediator is to
help couples deal with emotional and difficult
issues that can often prevent an agreement
being reached.
Mediation in the Family Mediation Service is
free of charge.
6

Contact:
Family Mediation Service
Floor 1
St Stephens Green House
Earlsfort Terrace
Dublin 2
Tel: 01-634 4320
Online info: www.fsa.ie
Where parents cannot reach a voluntary
agreement, they can each engage a solicitor
who may act as their negotiator in setting up
the agreement. One solicitor can never act for
both parties.
Maintenance Orders
Where an agreement cannot be reached,
either parent may apply to the Court for a
maintenance order against the other parent in
respect of a dependent child and for a
maintenance order for him or herself if they
are married.
The maximum amount the District Court can
order each parent to pay is 150 per week
per child and 500 per week for a spouse.
There is no such limit in the Circuit Court or
High Court. Having regard to these ceilings,
the spouse or parent can decide to apply for
the order in the District or Circuit Court
depending on the level of family income.
Records of Maintenance: For the purposes of
certainty it is useful to have the maintenance
debtor pay through the District Court clerk.
7

Non-Payment
Non-payment of a maintenance order is an
offence and may result in a prison sentence or
a fine because the person who breaches the
order is also in contempt of court.
If a parent or spouse defaults on their
maintenance payments, it is possible to apply
to the court for an Attachment of Earnings
Summons
, which would mean that
maintenance payments are deducted directly
by that person’s employer. An Attachment of
Earnings Order can be sought if the person is
in employment, on social welfare or on a
private pension, resulting in the maintenance
being deducted at the source, whether that
means the person’s employer or the
Department of Social and Family Affairs.
Under the Family Law Act 1995, it is also
possible to apply for this attachment at the
initial maintenance hearing, if the person
applying to court fears that there will be a
default.
If the parent or spouse who has to pay main-
tenance is self-employed, then you can apply
for an Enforcement Summons against them.
The Circuit Court or District Court, in making
a maintenance order, can direct that the
payment under the order shall be made to the
District Court Clerk and passed on to the
maintenance creditor, if the court considers it
appropriate in the situation.
All payments received are immediately
dispatched to the receiving spouse or parent
on the date received.
8

Non-Payment by a person living abroad
There are two ways to recover maintenance
depending on where the maintenance debtor
lives.
1 The first is where the maintenance debtor
resides in the UK. In this case a person
seeking recovery of maintenance under an
order can apply to their local District Court.
Court officials will guide an applicant
through this process.
2 The second is when the maintenance
debtor resides in one of the 60 countries
that have signed up to the UN Convention
on the Recovery Abroad of Maintenance
Payments, in the USA or in a EU Member
State. In this case an Irish resident seeking
payment can apply to:
The Central Authority for Maintenance
Recovery
The Department of Justice
Bishops Square
Redmond Hill
Dublin 2
Tel: 01-479 0200
The Central Authority will assist in any of the
following matters:
Applying for a Maintenance Order in one
of the above countries.
Enforcing a Maintenance Order that already
exists in one of the above countries.
Seeking an increase in payments under an
existing Maintenance Order in one of the
above countries.
9

The Central Authority works by transmitting
your application to the Central Authority in
the country where the maintenance debtor
lives. No fees are charged for these services.
If the maintenance debtor does not pay after
being contacted by the Central Authority
then, if they live in a EU country (except for
Denmark), the rules of Council Regulation
(EC) 44/2001 (the Brussels I Convention) come
into play. This means that a judgment in
respect of arrears of maintenance (the lump
sum owed) can be obtained and registered in
the country where they reside.
The Central Authority in that EU country then
goes through their national courts seeking
payment as if seeking to collect a debt under
the national law.
However as of October 2005, Regulation
805/2004 means that uncontested
maintenance orders can be directly enforced
in another EU Member State without having
to go through another court process there.
This means if you have got a maintenance
order from the Irish courts against someone
living in Spain, for example, you can apply to
the Master of the High Court in Dublin to
have this order enforced as a European
Enforcement Order directly in Spain, without
the order having to pass through the court of
that country all over again.
10

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