Maintenance orders and agreements in Ireland
* How to apply
* Where to apply
There is a legal responsibility in Ireland on both spouses to maintain each other and any children in accordance with their means. Maintenance can be paid periodically (i.e., weekly or monthly) or in a lump sum. In Ireland, paying maintenance does not in itself give a parent access or guardianship rights.
In situations where parents are unmarried or separated, they can make informal agreements regarding maintenance. This can work well where parents are reasonable and fair - but it is difficult to assess informally how much maintenance should be paid. You might consider sitting down and writing out the actual expenses (weekly, monthly, etc.) of the child. If you find it difficult to come to an arrangement which satisfies both parties, you may find that mediation can help. Alternatively, each parent can engage their own legal advice who will act as negotiator of an agreement. Both parents can then sign this agreement which can later be made a rule of court. A rule of court means that these agreements have the same effect as a maintenance order (see below). A solicitor cannot act for both parents in this situation, given there may be conflicts of interest.
Informal agreements such as this can include a property transfer or a lump sum payment but it cannot rule out the possibility of applying for a maintence order through the courts in the future.
If the parties cannot agree upon maintenance, either party can apply to court for a maintenance order. An application for maintenance can be brought either in the District or Circuit Court.
A person seeking a maintenance order can represent himself or herself. However, a person seeking a maintenance order should always check to see if they are eligible for legal aid or contact a private solicitor to assess the cost of the application. The cost of the application can be awarded against the party refusing to pay maintenance if a judge considers it appropriate.
Maintenance can be awarded to a spouse for their own benefit or for the benefit of a child who is under the age of 18, or 23 if the child is in full-time education. However, if the child has a mental or physical disability to such a degree that it will not be possible for them to maintain themselves fully, then there is no age limit for seeking maintence for their support. Each party must disclose their finances to the court and the judge will consider all of the family's circumstances when making a maintenance order.
In cases where a spouse fails to comply with a court order and pay the amount awarded, an Attachment of Earnings Order can be sought if the person is in employment, on social welfare or on a private pension. This order results in the maintenance amount being deducted at source by the spouse's employer or the Department of Social and Family Affairs.
The District Court in making a maintenance order can direct that the payment under the order shall be made to the District Court Clerk if the court considers that it would be proper to do so. The Circuit Court may as part of its order direct that a maintenance order is payable through the District Court. The District Court has a fully computerised payments system for the receipt and transmission of payments received. All payments received are immediately dispatched to the receiving spouse on the day received. A fully computerised print out of all payments is available to either party on request.
Maintenance orders can be enforced in all European Union countries and in countries that are a party to the UN Convention on the Recovery Abroad of Maintenance Payments.
Maintenance following Separation and Divorce
Under Irish law, there is no clean break from the obligation to support one's spouse and children. A clause in a Separation Agreement stating that a spouse will not seek maintenance in the future or seek increased maintenance is unenforceable. The spouse can apply for a maintenance order and a court will consider this application, particularly if the circumstances of the parties have changed or the spouse who executed the agreement did not have legal advice at the time.
A divorced spouse can also apply to a court for a maintenance order or a variation of a maintenance order after the Divorce Decree has been granted. The only bar to an application is the remarriage of the spouse applying for the order.
If you wish to appeal the decision of the court about a maintenance order, you can do so within 14 days or apply to the court for an extension of time to appeal. You should seek legal advice regarding your appeal.
If both parties agree, the amount of maintenance to be paid can be agreed between the parties. If the parties cannot agree on the amont of maintenance to be paid, it will be necessary to apply to the District or Circuit Court, depending on the amount of maintenance that is sought.
At present, the District Court can award any amount up to 500 euro per week for a spouse, and 150 euro per week for each child. If sums greater than these amounts are being sought, you will need to apply to the Circuit Court.
Varying the amount of maintenance
It is advisable to updated weekly maintenance payments annually. Where maintenance orders have been made through the courts, either parent can at a later date apply to the court to have the amount varied. (Varied means having the amount increased or decreased). In order to do this, you will require a 'Variation Order'.
Arrears of maintenance
If a parent falls behind with payments where there is a maintenance order in place, then it is possible to apply to the court for an Attachment of Earnings Summons. It is possible to get this Attachment at the time when you apply for the maintenance order if you fear there may be a default. (In other words, you fear that the other parent may fail to comply with the maintenance order). If the parent is self-employed, an Enforcement Summons can be applied for.
If the father lives abroad, you should contact the Central Authority for Maintenance Recovery (see 'Where to apply'). You must have an address for the father in order that a summons can be served. This process may be lengthy but generally involves no legal costs.
If the father lives in the UK, you can apply for maintenance to your local District court here in Ireland. Staff in your local court will guide you through this process.
How to apply
A person seeking a maintenance order can go to their local District Court and get the Court Clerk to issue a Maintenance Summons against the other spouse. Legal advice and representation is always advisable. To enquire whether you are eligible for Legal Aid, contact your nearest law centre. The law centre staff will assess your means and advise on financial eligibility. Legal Aid is not free and everyone must pay a contribution towards costs. The minimum is 5.08 euro, the maximum charge is 29.20 euro if you go to court. Download an application form for Legal Services and a Financial Assessment form and bring this with you to your nearest law centre.
FLAC (or Free Legal Advice Centre) is a non-governmental organisation which promotes and operates a range of services to meet the legal needs of those living in poverty. FLAC operate a network of legal advice clinics throughout Dublin and in the Cork area. If you live outside Dublin or Cork you can also obtain free advice and information by contacting FLAC at the telephone number or e-mail address below.
FLAC clinics are confidential, free of charge and open to all. You do not have to make an appointment and there are no application forms to complete.
Where to apply
The Legal Aid Board,
Tel: (066) 947 1000
E-mail: [email protected]
Free Legal Advice Centres,
49 South William Street, Dublin 2
Tel: (01) 679 4239
E-mail: [email protected]
Central Authority for Maintenance Recovery,
43/49 Mespil Road,
Tel: (01) 667 0344
Treoir (Federation of Services for Unmarried Parents and Children),
14 Gandon House,
Lower Mayor Street,
Tel: (01) 6700 120