Maintenance orders and agreements
There is a legal responsibility on parents, whether married or unmarried, to maintain dependent children and on spouses/civil partners to maintain each other in accordance with their means. Maintenance can be paid periodically (i.e., weekly or monthly) or in a lump sum. Paying maintenance does not in itself give a parent access or guardianship rights.
Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a financially dependent qualified cohabitant may be able to apply to the courts for a maintenance order if the relationship ends. See our document on the redress scheme for cohabiting couples.
In situations where parents or spouses/civil partners are separated, they can make informal agreements regarding maintenance. This can work well where both parties 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.). If you find it difficult to come to an arrangement which satisfies both parties, you may find that mediation can help. Alternatively, each side can engage their own legal advice who will act as negotiator of an agreement. Both parties 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 sides in this situation, given that 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 maintenance order through the courts in the future.
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/civil partner for their own benefit and/or for the benefit of a dependent child who is under the age of 18, or 23 if the child is in full-time education. If the child is over 18 and under 23 and the financial circumstances do not allow him/her to attend further education, maintenance can be applied for in order to facilitate further education. If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit for seeking maintenance 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.
Enforcing a maintenance order
In cases where a parent/spouse/civil partner fails to comply with a court order and does not pay the amount awarded, an attachment of earnings order can be sought from the court, if the person is in employment or on a private pension. This order results in the maintenance amount being deducted at source by the parent's/spouse's/civil partner's employer. If the parent/spouse/civil partner is self-employed, an enforcement summons can be applied for.
The Civil Law (Miscellaneous Provisions) Act 2011 has amended the legislation to give the District Court the power to regard a failure by a parent/spouse/civil partner to comply with a court order as contempt of court and to deal with it accordingly, including by means of imprisonment
The District Court in making a maintenance order can direct that the payment under the order 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.
Maintenance following separation, divorce and dissolution
Under Irish law, there is no clean break from the obligation to support one's spouse/civil partner and children. A clause in a separation agreement stating that a spouse/civil partner will not seek maintenance in the future or seek increased maintenance is unenforceable. The spouse/civil partner 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/civil partner 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. Similarly, a former civil partner can apply to the court for a maintenance order or a variation of a maintenance order after the dissolution decree has been granted. The only bar to an application is where the the spouse/civil partner applying for the order has remarried or entered into a new civil partnership.
Maintenance from abroad
Ireland is party to various international conventions and there are also EU Regulations which facilitate the recovery of maintenance from abroad. See our document on the EU and family law.
If you wish to obtain maintenance from someone living abroad, contact the Central Authority for Maintenance Recovery in the Department of Justice and Equality for help - see 'Contacts' below. You must have an address for the other party.
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 amount 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 per week for a spouse/civil partner, and €150 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 update weekly maintenance payments annually. Where maintenance orders have been made through the courts, either party 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/spouse/civil partner 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/spouse/civil partner may fail to comply with the maintenance order). If the other parent/spouse/civil partner is self-employed, an enforcement summons can be applied for.
If the other parent/spouse/civil partner lives abroad, you should contact the Central Authority for Maintenance Recovery (see 'Contacts' below). You must have an address for the other party. This process may be lengthy but generally involves no legal costs.
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. Information on applying for maintenance and the forms used is available on the Courts Service website.
Legal advice and representation is always advisable. To enquire whether you are eligible for Legal Aid, you can contact your nearest law centre. Legal Aid is not free and everyone must pay a contribution towards costs.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.
If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to obtain some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.