Frequently
asked questions about maintenance
Are
both spouses responsible for maintenance?
Must a spouse have left the family home before the
other spouse can seek maintenance?
Is a spouse who has left the home entitled to maintenance?
How much money is a spouse entitled to?
Would a spouse be entitled to maintenance if there
are no children?
How does a spouse go about getting maintenance?
How long does it take to have the Maintenance Summons
brought before the Court?
What happens if the spouse doesn't pay?
If a spouse is self-employed, what can the other
spouse do to ensure maintenance?
How
can a spouse get maintenance where the other spouse is unemployed?
If a spouse leaves the country, what can the other
spouse do then?
Does the Court Action cost a lot of money?
Has
the earning spouse the right to appeal a Maintenance Order in
the District Courts?
Does the non-earning spouse receive any maintenance
while waiting appeal?
Can
I be taxed on maintenance payments?
Are both spouses responsible for maintenance?
Since the introduction of the Family Law (Maintenance of Spouses
and Children) Act 1976, both spouses are responsible for the maintenance
of their children and each other in proportion to their means.
If only one spouse is earning and does not maintain the family,
then the other spouse has recourse to law to demand this right.
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Must a spouse have left the family home before
the other spouse can seek maintenance?
No. If regular maintenance is not being paid or if contributions
are not adequate to keep the family in a manner appropriate to
all the circumstances of the case, the law can compel the spouse
to provide maintenance even if he/she is still living at home.
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Is a spouse who has left the home entitled to
maintenance?
A spouse who is held by the court to be in desertion would not
be entitled to maintenance. It is advisable to consult a solicitor
as to what would constitute valid grounds for leaving, before
doing so.
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How much money is a spouse entitled to?
The District Court may not award more than €500.00 per spouse
and €150.00 per dependent child per week. A spouse who feels
entitled to a greater amount would have to take action in the
Circuit Court. The Court might order the money to be paid into
the court. Always check with the Court Clerk on method of payment.
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Would a spouse be entitled to maintenance if there
are no children?
Yes. Provided s/he is not in a position to be part of the workforce
or is beyond the age of being gainfully employed. Very often in
these cases the judge will award a sum for maintenance for a certain
period of time requiring a return to the courts to see if circumstances
have changed.
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How does a spouse go about getting maintenance?
Depending on the level of family income a spouse will decide to
apply to the District Court or Circuit Court. A spouse can go
to the local District Court Clerk and take out a maintenance summons
against the other spouse in order to set the law in motion. The
nearest District Court office will be listed in the telephone
directory under 'Court'. In Dublin there is a Family Law District
Court office in Dolphin House, East Essex Street, Dublin 2. Applicants
will find Court Clerks very helpful. An
application to the Circuit Court entails a more involved procedure
and it would be advisable to consult a solicitor.
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How long does it take to have the Maintenance
Summons brought before the Court?
In the District Court it may take about 3-6 weeks. In urgent cases
the Court may shorten the notice given. A Circuit Court application
may take longer. Meanwhile a spouse without other sources of income
can seek Supplementary Welfare from the Community Welfare Officer,
who normally operates from the local Health Centre.
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What happens if the spouse doesn't pay?
The applicant spouse must go back to the Court which has the power
to have earnings attached at source, through an Attachment of
Earnings Order. This money will be paid to the applicant spouse
by the Clerk of the Court or paid directly, to the applicant spouse
by the other spouse's employer. An Attachment of Earnings Order
is made if the defaulting spouse is in arrears of maintenance
for approximately 2 weeks or more, or has not paid regularly.
The applicant spouse would have to make a complaint to the Court
Clerk before an Attachment Order is made.
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If a spouse is self-employed, what can the other
spouse do to ensure maintenance?
In practice it is extremely difficult to enforce payment if a
self employed spouse defaults in maintenance. The remedy available
is to issue Enforcement Proceedings. The Family Court in Dolphin
House will effect Enforcement Proceedings. This service is free
of charge.
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How can a spouse get maintenance where the other
spouse is unemployed?
A married person can get an allowance in his/her unemployment
payment for the dependent spouse and children. With the permission
of the Department of Social Welfare, where a Court Order for maintenance
exists, this portion of the Social Welfare Allowance/Benefit can
be paid directly to the dependent spouse. In the absence of a
Court Order, the dependent spouse can claim his/her share separately
with the consent of the claimant. If the claimant will not consent
to separate payments being made, the Department of Social Welfare
will decide on the case. A married woman can now claim unemployment
assistance in her own right providing she is fully available for
and actively seeking work. The amount of her allowance will be
determined by her husbands net take-home pay and the same conditions
apply to a married man seeking unemployment assistance when his
wife is earning.
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If a spouse leaves the country, what can the
other spouse do then?
If a defaulting spouse is living in the UK, the reciprocal Maintenance
Orders Act of 1974 allows for a maintenance order issued by an
Irish Court to be served through a Magistrates Court in any part
of the U.K. A spouse can still proceed to sue for maintenance
provided he/she has an address or some means of contacting the
other spouse in Great Britain. Maintenance
Orders can be enforced in EU countries under the jurisdiction
of Courts and Enforeements of judgements (European Committee No.
2 Bill) 1987 ratified in 1988. The District Court in Dolphin House
will fill in the forms and initiate action on behalf of clients.
This service is free. Enforcement proceedings in British Courts
will also be taken (free off charge) by the District Court. Click
here Recovering Maintenance
from Abroad
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Does the Court Action cost a lot of money?
Not necessarily. In the District Court the procedure is simple
and a spouse can represent him/herself. It is necessary to be
well prepared for the hearing. A clear statement of weekly
expenditure on family needs is essential. It is advisable
to be represented by a solicitor if the action is in the Circuit
or higher court. If in doubt about the cost it is sensible to
enquire from a solicitor what the fee will be. For those who cannot
afford a private solicitor Civil Legal Aid is available. This
service is means tested. (Legal Aid Board, Tel: 01 660 5811)
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Has the earning spouse the right to appeal a
Maintenance Order in the District Courts?
Yes, and this will be heard by the Circuit Court Equally, the
non-earning spouse who loses a case in the District Court may
appeal against this decision to the Circuit Court.
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Does the non-earning spouse receive any maintenance
while waiting appeal?
Strictly speaking the earning spouse should continue to pay maintenance
during this period, but it is not possible to enforce it.
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Can I be taxed on maintenance payments?
If you are separated and the Maintenance Order predates 7 June
1983 (Finance Act 1983), a husband will normally pay tax on maintenance
paid to his wife, as part of his total income. The same applies
to an existing Order which has been carried out of Court (e.g.
to allow for increased cost of living or other changed circumstances.)
However,
for Orders made, or varied, in Court on or since 7 June 1983,
separated persons are automatically assessed as single persons
for tax purposes. If you are paying maintenance, it is now tax-deductible.
But if you are receiving maintenance, you have to pay tax on it.
This should be taken into account when applying for maintenance
or a variation in Court (mention the Finance Act 1983, Section
3 and 4, to your solicitor). Tax is not payable on maintenance
allocated to children. Payment, however, only lasts until the
children reach the age of 18 or if they are in full time education,
23.
Alternatively,
the separated couple can ask for joint assessment, in which case
the husband will pay tax on the maintenance payments, but will
also be granted the married allowance and double tax bands (i.e.
as applies to Maintenance Orders pre-dating the Act). In order
to maximise after tax income, it is advisable to consult an Accountant.
For those who cannot afford an accountant, FISC (Telephone 01
6680400) provided a free financial advisory service.
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