Maintenance orders and agreements

Information

There is a legal responsibility in Ireland 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. In Ireland, paying maintenance does not in itself give a parent access or guardianship rights.

Voluntary maintenance

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.

Maintenance orders

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 awarded to a civil partner is for their own benefit while maintenance awarded to an unmarried parent is for the benefit of their child. However, maintenance can be awarded to a spouse for their own benefit and/or for the benefit of a 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(pdf) 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. 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. See "Further information" below on recovering maintenance from abroad.

Maintenance following separation, divorce and dissolution

Under Irish law, there is no clean break from the obligation to support one's spouse and children, or for civil partners to support each other. 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 the remarriage or entering into a new civil partnership of the spouse/civil partner applying for the order.

Rules

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.

Rates

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 'Where to apply'). You must have an address for the other party in order that a summons can be served. This process may be lengthy but generally involves no legal costs.

If the other parent/spouse/civil partner 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. 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.

Contacts

The Legal Aid Board

Quay Street
Caherciveen
Kerry
Ireland

Tel:066 947 1000
Locall:1890 615 200
Homepage: http://www.legalaidboard.ie
Email: info@legalaidboard.ie


Family Mediation Service

1st Floor
St. Stephen's Green House
Earlsfort Terrace
Dublin 2
Ireland

Tel:+353 (0)1 6344320
Fax:+353 (0)1 6622339
Homepage: http://www.legalaidboard.ie/lab/publishing.nsf/Content/Family_Mediation_Service
Email: info@fsa.ie


Central Authority for Maintenance Recovery

Department of Justice and Equality
Bishop's Square
Redmond's Hill
Dublin 2
Ireland

Tel:+353 (0)1 479 0200
Locall:1890 555 509
Fax:+353 (0)1 479 0201
Email: mainrecov_inbox@justice.ie


Free Legal Advice Centres

13 Lower Dorset Street
Dublin 1
Ireland

Tel:+353 (0)1 8745690
Fax:+353 (0)1 8745320
Homepage: http://www.flac.ie
Email: info@flac.ie


Treoir

14 Gandon House
Custom House Square
IFSC
Dublin 1
Ireland

Tel:+353 (0)1 6700120
Locall:1890 252084
Fax:+353 (0)1 6700199
Homepage: http://www.treoir.ie
Email: info@treoir.ie

Further information

Recovering maintenance from abroad

Introduction

There are two ways for someone living in Ireland to recover maintenance from abroad depending on where the person who is due to pay the maintenance lives.

Northern Ireland, England, Scotland and Wales

The Maintenance Orders Act 1974 provides for the enforcement of maintenance orders in the UK. Under this Act you can apply to your local District Court in Ireland for an award of maintenance against a person living in the UK. You do need to know where in the UK the person lives. After you get your maintenance order there is a procedure in place in the District Court which allows you to have the order enforced in the UK.

USA and other countries

The Maintenance Act 1994, which enabled Ireland to ratify the UN Convention on the Recovery Abroad of Maintenance Payments (the New York Convention), came into effect for Ireland in November 1995. This Convention is designed to facilitate the recovery of maintenance by a person living in one jurisdiction against a person living in another. Over 60 countries world-wide are covered by the Convention including EU countries. The Act also facilitated the conclusion of a reciprocal agreement with the USA on a federal basis.

If you want to enforce a maintenance order in a country covered by the Convention or in the USA, you should contact the Central Authority for Maintenance Recovery in the Department of Justice and Equality for help. The Department is responsible for transmitting and receiving maintenance claims under the Convention. (See Where to apply above)

EU countries

While EU countries are covered by the UN Convention on the Recovery Abroad of Maintenance Payments, the recognition and enforcement of maintenance orders in EU member states is governed byEU Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This regulation is known as “Brussels I” and has been in effect since March 2002. It replaced the 1968 Brussels Convention in all the EU states except Denmark. (The Lugano Convention which is similar to the Brussels Convention applies to Iceland, Norway and Switzerland.)

It provides that, if you are a maintenance creditor (you are owed money under a maintenance order), you may sue the maintenance debtor (the person who owes you money) in the member state where you are domiciled or habitually resident if the maintenance creditor is domiciled in another member state. Maintenance matters may also be decided by the court which is dealing with divorce or separation proceedings, provided its jurisdiction to do that is not based only on the nationality of one of the parties.

A judgement on maintenance given in one member state is enforceable in the other member states – a party may ask for its enforcement and get a declaration that it is enforceable. The court must declare it enforceable unless:

  • This would be contrary to public policy
  • The judgement is irreconcilable with an earlier judgement
  • The document which started the proceedings was not served in time

In effect, the foreign judgement is enforceable virtually automatically but it does require a court procedure.

To enforce a maintenance order in an EU country you should contact the Central Authority for Maintenance Recovery. (See Where to apply above). The Central Authority will, if necessary, arrange for the Central Authority in the other country to get a court declaration.

Enforcement order for Uncontested Claims

EU Regulation 805/2004 creating a European Enforcement Order for uncontested claims came into effect in October 2005. This applies to judgements issued after it comes into effect. It provides that uncontested orders – including maintenance orders – may be directly enforced in another member state without having to go through another judicial process in that state. A judgment that has been certified as a European Enforcement Order by the court of one member state must be enforced as if it were given in the member state in which enforcement is sought.

Page updated: 15 August 2011

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