Maintenance orders and agreements

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.

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.

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.

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 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.

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.

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.