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Maintenance costs school going 'child'

  • 30-04-2012 9:07am
    #1
    Registered Users Posts: 16 Dozo


    Hi,

    Just wondering if anyone could shed a light on this.
    I have been living with my partner for 12 years now (we are not married). Before our relationship she was married in Spain with a spanish guy. They had a child who at the time I met her was 5 years of age. The father of the child has been paying maintenance costs as per court order.

    So far no problem, although he should have been paying more but that's between my partner and her ex. Up till 5 years ago we lived in spain and decided to move to ireland, 2 more children we born since.
    Now the point is that the 1st cilld will be 18 soon and according to the (spanish) divorce papers his father has to pay maintenance until the cilld is 18. The irish children allowance will stop as well when he is 18. You understand, a big financial impact.
    Question is, is the father still oblidged to pay towards maintenance costs ? Next year he will be doing leaving cert and after he will probably be in college. My partner does not have income, so I maintain a family of 5.

    Thanks.


Comments

  • Banned (with Prison Access) Posts: 1,950 ✭✭✭Milk & Honey


    That is really a question of Spanish law.


  • Registered Users Posts: 16 Dozo


    Hi,

    Thanks.
    Maybe you are right , maybe not. Not sure.

    Anyway, assuming Irish law would apply what do you think would be the case then ?


  • Banned (with Prison Access) Posts: 1,950 ✭✭✭Milk & Honey


    Dozo wrote: »
    Hi,

    Thanks.
    Maybe you are right , maybe not. Not sure.

    Anyway, assuming Irish law would apply what do you think would be the case then ?

    You are talking about going in to an Irish court for an order against a Spanish national, resident in Spain, in respect of a matter that was already dealt with by Spanish courts?


  • Closed Accounts Posts: 6,296 ✭✭✭RandolphEsq


    Dozo wrote: »
    Hi,

    Just wondering if anyone could shed a light on this.
    I have been living with my partner for 12 years now (we are not married). Before our relationship she was married in Spain with a spanish guy. They had a child who at the time I met her was 5 years of age. The father of the child has been paying maintenance costs as per court order.

    So far no problem, although he should have been paying more but that's between my partner and her ex. Up till 5 years ago we lived in spain and decided to move to ireland, 2 more children we born since.
    Now the point is that the 1st cilld will be 18 soon and according to the (spanish) divorce papers his father has to pay maintenance until the cilld is 18. The irish children allowance will stop as well when he is 18. You understand, a big financial impact.
    Question is, is the father still oblidged to pay towards maintenance costs ? Next year he will be doing leaving cert and after he will probably be in college. My partner does not have income, so I maintain a family of 5.

    Thanks.
    Yes, if the child is in college he still has to pay. You can get an order in the Irish courts and have it enforced in Spain if necessary. Go to your local district court office.


  • Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    Yes, if the child is in college he still has to pay. You can get an order in the Irish courts and have it enforced in Spain if necessary. Go to your local district court office.

    There are issues of international law here that would require a lawyer with experience to advise on, just as an example I assume you are saying any order from Ireland can be enforced under The CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

    Under that convention judgements may be refused,

    Recognition or enforcement of a decision may nevertheless be refused in any of the following cases -


    (3)   if proceedings between the same parties, based on the same facts and having the same purpose -

    a) are pending before a court of the State addressed and those proceedings were the first to be instituted, or
    b) have resulted in a decision by a court of the State addressed, or
    c) have resulted in a decision by a court of another State which would be entitled to recognition and enforcement under the law of the State addressed.

    As the matter has been litigated in Spain the father may object to Ireland hearing the matter.

    The best bet is to check out with the lawyer in Spain to see how Spanish law deals with the issue of a child over 18 but in full time education.


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  • Closed Accounts Posts: 1,359 ✭✭✭ Kevin Deafening Turtleneck


    Dozo wrote: »
    according to the (spanish) divorce papers his father has to pay maintenance until the child is 18.

    Question is, is the father still oblidged to pay towards maintenance costs?

    Thanks.

    Has he not answered his own question right there?
    The matter has already been addressed in Spain. Unless Spanish law provides for the extension of maintenance payments while the child is in full time education after the age of 18 the divorce ruling would apply, no?


  • Closed Accounts Posts: 6,296 ✭✭✭RandolphEsq


    Has he not answered his own question right there?
    The matter has already been addressed in Spain. Unless Spanish law provides for the extension of maintenance payments while the child is in full time education after the age of 18 the divorce ruling would apply, no?

    I don't think that should matter because they are living in Ireland and the law in Ireland allows for a variation of a maintenance order after the decree of divorce unless they have remarried.


  • Moderators, Society & Culture Moderators Posts: 9,639 Mod ✭✭✭✭Manach


    Would not the place where the divorce occurred (Spain) take precedence in legal matters, and that the interests of the child are no longer an over-riding, factor being 18Y? - my barely informed 2c.


  • Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    I don't think that should matter because they are living in Ireland and the law in Ireland allows for a variation of a maintenance order after the decree of divorce unless they have remarried.

    And to issue proceedings in Ireland, they will have to put a certificate on the pleadings so as to serve them out of the jurisdiction saying that the matter has not been before any other court in another jurisdiction which it has. They really need advice from someone who has international family law experience.

    Also a court can usually only vary its own order, I very much doubt the Irish courts would vary an order of the Spanish courts, from my little understanding of Spanish law it does not award maintenance to children over 18. I'm not sure any Irish court would have the jurisdiction to deal with a Spanish order under Irish law.


  • Registered Users Posts: 16 Dozo


    Thanks all for your reply.

    This is mainly between my partner and her ex, although the question rises who is supposed to support the child ? I have not adopted the child. But of course he is living with me as if he is my own, so in the end I will support him.

    I think my partner will have to contact her divorce laywer and take it from there.


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  • Banned (with Prison Access) Posts: 987 ✭✭✭Kosseegan


    Dozo wrote: »
    Thanks all for your reply.

    the question rises who is supposed to support the child ? I have not adopted the child. .


    He is not a child. He is an adult. Nobody is supposed to support him.


  • Closed Accounts Posts: 6,224 ✭✭✭Procrastastudy


    Kosseegan wrote: »
    He is not a child. He is an adult. Nobody is supposed to support him.

    That's only one point of view. In the US for instance I believe this type of arrangement - where the person is still dependant (e.g. a full time student) - is quite common. Personally I think its a good thing. If one can't afford to have anymore children one shouldn't. Have you discussed the father the possibility of him returning to Spain and attending a Spanish University or perhaps him spending the summers in Spain?


  • Registered Users Posts: 16 Dozo


    He does return to Spain regulary and there is still a relationship with the father and his child. Tickets we finance by the way as it was our decision to live in Ireland with his permission.

    My partner predicted that he would stop paying as soon as the child is 18 (she knows him a little bit better than me I suppose) as that is what he is oblidged to according to the spanish divorce.
    That basically means that with that he would decide to leave the mainenance up to his ex (ie my partner) and as she has no income to me.
    Maybe this is more a moral question than anything else. If he doesn't feel responsible for his child than appearantly he has different priorities.


  • Closed Accounts Posts: 9,897 ✭✭✭MagicSean


    The "child" is old enough to be responsable for himself to be honest.


  • Closed Accounts Posts: 6,296 ✭✭✭RandolphEsq


    MagicSean wrote: »
    The "child" is old enough to be responsable for himself to be honest.

    Well, Irish law allows for maintenance to be paid for a child up until they hit 23 years of age if they are still in full-time education.


  • Banned (with Prison Access) Posts: 1,950 ✭✭✭Milk & Honey


    Well, Irish law allows for maintenance to be paid for a child up until they hit 23 years of age if they are still in full-time education.

    The maintenance order was not made under Irish law. An Irish parent is not obliged to support a child over the age of 18 or contribute to the cost of its education other than the context of separation or divorce.


  • Closed Accounts Posts: 1,359 ✭✭✭ Kevin Deafening Turtleneck


    The maintenance order was not made under Irish law. An Irish parent is not obliged to support a child over the age of 18 or contribute to the cost of its education other than the context of separation or divorce.

    Are you sure of this?
    There are restrictions on claiming grants in relation to university costs on those under 23 because they are considered to be still dependent on their parents.


  • Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    A child is considered a dependent child of the family under the family law (maintenance of spouses and children) act 1976 until the age of 23 if in full time education.

    Regardless of whether the maintenance order is made ancillary to divorce/separation proceedings or on its own.


  • Registered Users Posts: 1,070 ✭✭✭blueythebear


    The maintenance order was not made under Irish law. An Irish parent is not obliged to support a child over the age of 18 or contribute to the cost of its education other than the context of separation or divorce.

    I was under the impression that the rules allowed for maintenance for a child over 18 but under 23, either to facilitate full time education (if cost of same prevents the child from entering / continuing education) or to support the child if already in education.

    From the Family Law Act 1995 which amended the definition of "dependent child of the family" in S3 of the Family Law (Maintenance of Spouses and Children) Act 1976.


  • Banned (with Prison Access) Posts: 1,950 ✭✭✭Milk & Honey


    A child is considered a dependent child of the family under the family law (maintenance of spouses and children) act 1976 until the age of 23 if in full time education.

    Regardless of whether the maintenance order is made ancillary to divorce/separation proceedings or on its own.

    An order can be made under the Children Act 1997 to make maintenance payments but there is no general duty on parents to maintain a child over the age of 18.

    The Child Care Act 1991 defines a child as "child means a person under the age of 18 years other than a person who is or has been married;"

    The Health Board has functions in relation to such a person in respect of neglect. Once the child reaches 18 that all stops. The age of 23 appears to mean that if one spouse desires the U23 year old to attend college the other may be made to contribute. This would be subject to affordability. I have yet to hear of a child forcing the parents to pay for college by going to court.


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  • Registered Users Posts: 1,070 ✭✭✭blueythebear


    An order can be made under the Children Act 1997 to make maintenance payments but there is no general duty on parents to maintain a child over the age of 18.

    But there is under the Family Law Acts. Even the Children Act 1997 refers to dependency of Children in the same form as I quoted above, admittedly in relation to Guardianship.
    The Child Care Act 1991 defines a child as "child means a person under the age of 18 years other than a person who is or has been married;"

    The Health Board has functions in relation to such a person in respect of neglect. Once the child reaches 18 that all stops. The age of 23 appears to mean that if one spouse desires the U23 year old to attend college the other may be made to contribute. This would be subject to affordability. I have yet to hear of a child forcing the parents to pay for college by going to court.

    The State would have different obligations to a child than the Child's parents. The parents would and should have more onerous obligations, such as providing for the child over the age of 18 and I presume that this is where the obligation to provide for maintenance for children over 18 comes from.

    You won't hear of someone seeking maintenance for a child over 18 because of the practicalities of the matter. An 18 year old can get a part time job to pay for college, or the absent parent will already be paying maintenance voluntarily. If they are not paying voluntarily, it's likely that the lone parent has tried to obtain maintenance in the past and hit a brick wall anyway.


  • Banned (with Prison Access) Posts: 1,950 ✭✭✭Milk & Honey


    But there is under the Family Law Acts. Even the Children Act 1997 refers to dependency of Children in the same form as I quoted above, admittedly in relation to Guardianship.



    The State would have different obligations to a child than the Child's parents. The parents would and should have more onerous obligations, such as providing for the child over the age of 18 and I presume that this is where the obligation to provide for maintenance for children over 18 comes from.

    You won't hear of someone seeking maintenance for a child over 18 because of the practicalities of the matter. An 18 year old can get a part time job to pay for college, or the absent parent will already be paying maintenance voluntarily. If they are not paying voluntarily, it's likely that the lone parent has tried to obtain maintenance in the past and hit a brick wall anyway.

    There is no obligation on parents to support adult children unless ordered by a court to do so. That is usually in the context of a general order to contribute to the expenses of a household. It is recognised as a legitimate expense to educate children up to the age of 23.


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