Family Law (Maintenance of Spouses and Children) Act , 1976

PART I Preliminary and General

1. Short title.

1.—This Act may be cited as the Family Law (Maintenance of Spouses and Children) Act, 1976.

2. Commencement.

2.—This Act shall come into operation on the day that is one month after the date of its passing.

3. Interpretation.

3.—(1)In this Act, save where the context otherwise requires—

F1[‘Act of 2010’means theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

F2[‘allowance’means deserted wife’s allowance under section 195, lone parent’s allowance under section 198B or supplementary welfare allowance undersection 200of theSocial Welfare (Consolidation) Act, 1981;]

“antecedent order” means—

(a)a maintenance order,

(b)a variation order,

(c)an interim order,

(d)an order under section 8 of this Act (in so far as it is deemed under that section to be a maintenance order),

F1[(da) an order undersection 8Aof this Act (in so far as it is deemed under that section to be a maintenance order),]

(e)an order deemed under section 30 of this Act to be a maintenance order,

(f)an order providing for a periodical payment under the Illegitimate Children (Affiliation Orders) Act, 1930,

(g)an order for maintenance under section 11 (2) (b) of the Guardianship of Infants Act, 1964,

(h)an enforceable maintenance order under the Maintenance Orders Act, 1974,

F3[(i)an order for alimony pending suit;]

F4[(j)an order for maintenance pending suit under theJudicial Separation and Family Law Reform Act, 1989, or a periodical payments order under that Act,

(k)a maintenance pending suit order under the Family Law Act, 1995, or a periodical payments order under that Act;]

F5[(l)a maintenance pending suit order under the Family Law (Divorce) Act, 1996, or a periodical payments order under that Act;]

“attachment of earnings order” means an order under section 10 of this Act;

F6[‘benefit’means deserted wife’s benefit undersection 100of theSocial Welfare (Consolidation) Act, 1981;]

F1[‘civil partner’shall be construed in accordance with section 3 of the Act of 2010;]

F1[‘cohabitant’shall be construed in accordance with section 172(1) of the Act of 2010 and includes a former cohabitant;]

F6[‘competent authority’has the meaning assigned to it bysection 314of theSocial Welfare (Consolidation) Act, 1981;]

“Court” shall be construed in accordance with section 23 of this Act;

F7[‘dependent child’means any child (including a child whose parents are not married to each other) who is under the age ofF8[18]years, or, if he has attained that age—

(a)is or will be or, if an order were made under this Act providing for periodical payments for his support, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age ofF8[23]years, or

(b)is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully;]

F9[‘dependent child of the family’, in relation to a spouse or spouses, means any dependent child—

(a)of both spouses, or adopted by both spouses under the Adoption Acts, 1952 to 1976, or in relation to whom both spouses are inloco parentis, or

(b)of either spouse, or adopted by either spouse under the Adoption Acts, 1952 to 1976, or in relation to whom either spouse is inloco parentis, where the other spouse, being aware that he is not the parent of the child, has treated the child as a member of the family;]

“desertion” includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living separately and apart from him, and cognate words shall be construed accordingly;

“earnings” means any sums payable to a person—

(a)by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service);

(b)by way of pension or other like benefit in respect of employment (including an annuity in respect of past services, whether or not rendered to the person paying the annuity, and including periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment);

“interim order” means an order under section 7 of this Act;

F10[‘lump sum order’means an order undersection 21Aof this Act;]

“maintenance creditor”, in relation to an order under this Act (other than an order under section 22 of this Act), or to proceedings arising out of such an order, means a person on whose application there has been made such an order;

“maintenance debtor”, in relation to an attachment of earnings order, or to proceedings in which a Court has power to make such an order, or to proceedings arising out of such an order, means the F11[person] by whom payments are required by the relevant antecedent order to be made and, in relation to any other order under this Act (other than an order under section 22 of this Act) or to proceedings in which a Court has power to make such an order, or to proceedings arising out of such an order, means a F11[person] who is or, if it were made, would be required by such an order to make periodical payments for the support of persons named in the order;

F12[‘maintenance order’means, where the context requires,F11[an order undersection 5,5A,5Bor5C]of this Act;]

“normal deduction rate” and “protected earnings rate” have the meanings respectively assigned to them by section 10 of this Act;

F13[‘parent’, in relation to a dependent child, includes a person who has adopted the child under the Adoption Acts, 1952 to 1976, but does not include a person who is a parent of the child adopted under those Acts where the person is not an adopter of the child;]

“variation order” means an order under section 6 of this Act varying a maintenance order.

(2)Subject to section 16 of this Act, the relationship of employer and employee shall be regarded as subsisting between two persons if one of them as a principal and not as a servant or agent pays earnings to the other.

(3)References in this Act to a District Court clerk include references to his successor in the office of District Court clerk and to any person acting on his behalf.

(4)References in this Act to any enactment shall be construed as references to that enactment as amended by any subsequent enactment, including this Act.

4. Commencement of periodical payments.

F14[4.—A periodical payment under an order under this Act shall commence on the date that is specified in the order being a date which may be before or after the date on which the order is made but which shall not be earlier than the date of the application for the order.]

PART II Maintenance of Spouses and Dependent Children

5. Maintenance order.

5.—(1)(a)Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.

(b)Subject to subsection (4) of this section, where a spouse—

(i)is dead,

(ii)has deserted, or has been deserted by, the other spouse, or

(iii)is living separately and apart from the other spouse,

and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.

(c)A maintenance order F15[under this section] or a variation order shall specify each part of a payment under the order that is for the support of a dependent child F15[of the family] and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child F15[of the family] shall be made.

(2)The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse F16[unless, having regard to all the circumstances (including the conduct of the other spouse), the Court is of opinion that it would be repugnant to justice not to make a maintenance order].

(3)F17[…]

F18[(4)The Court, in deciding whether to make a maintenance order under this section and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—

(a)the income, earning capacity (if any), property and other financial resources of—

(i)the spouses and any dependent children of the family, and

(ii)any other dependent children of which either spouse is a parent,

including income or benefits to which either spouse or any such children are entitled by or under statuteF19[with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of any dependent children granted to either parent of such children], and

(b)the financial and other responsibilities of—

(i)the spouses towards each other and towards any dependent children of the family, and

(ii)each spouse as a parent towards any other dependent children,

and the needs of any such children, including the need for care and attention.]

F20[(c)the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances be repugnant to justice to disregard it.]

5A. F21[Maintenance order (provision for certain dependent children).

5A.—(1)Subject tosubsection (3)of this section, where, in respect of a dependent childF22[whose parents are not married to each other and are not civil partners of each other], it appears to the Court on application to it by either parent of the child that the other parent has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order (in this Act referred to as amaintenance order) that the other parent make to the applicant parent periodical payments, for the support of the child as aforesaid, for such period during the lifetime of the applicant parent, of such amount and at such times, as the Court may consider proper.

(2)Subject tosubsections (3)and(4)of this section, where in respect of a dependent childF22[whose parents are not married to each other and are not civil partners of each other]it appears to the Court, on application to it by any person other than a parent, that a parent of the child (not being a child who is being fully maintained by the other parent) has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the parent make to that person periodical payments for the support of the child for such period during the lifetime of that person, of such amount and at such times as the Court may consider proper.

(3)The Court, in deciding whether to make a maintenance order under this section and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—

(a)the income, earning capacity (if any), property and other financial resources of—

(i)each parent,

(ii)the dependent child in respect of whom the order is sought, and

(iii)any other dependent children of either parent,

including income or benefits to which either parent, the dependent child as aforesaid or such other dependent children are entitled by or under statuteF23[with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of any dependent children granted to either parent of such children], and

(b)the financial and other responsibilities of each parent towards—

F24[(i) a spouse or a civil partner,]

(ii)the dependent child in respect of whom the order is sought, and

(iii)any other dependent children of either parent,

and the needs of any dependent child as aforesaid or of any such other dependent children, including the need for care and attention.

(4)The Court shall not make a maintenance order undersubsection (2)of this section in relation to a parent of a dependent child if a maintenance order undersubsection (1)of this section requiring that parent to make periodical payments for the support of the child is in force or that parent has made provision for the child by an agreement under which, at or after the time of the hearing of the application for the order under the saidsubsection (2), payments fall to be made and in relation to which an order undersection 8Aof this Act has been made unless—

(a)the parent is not complying with the order under the saidsubsection (1)or the agreement, as the case may be, and

(b)the Court, having regard to all the circumstances, thinks it proper to do so,

but, if the Court makes the order under the saidsubsection (2), any amounts falling due for payment under the order under the saidsubsection (1)or the agreement, as the case may be, on or after the date of the making of the order under the saidsubsection (2)shall not be payable.]

5B. F25[Maintenance order (liability of cohabitant to other cohabitant in respect of child of other cohabitant)

5B.(1) This section applies to a cohabitant of a person (in this section referred to as the maintenance applicant) who is a parent of, or who is inloco parentisto, a dependent child who is under the age of 18 years where the cohabitant—

(a) is not the parent of the dependent child, and

(b) is a guardian of the dependent child appointed under section 6C of theGuardianship of Infants Act 1964.

(2) Subject tosubsection (3)of this section, where it appears to the Court, on application to it by a maintenance applicant, that the applicant’s cohabitant has failed to provide such maintenance for a dependent child referred to insubsection (1)of this section as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the cohabitant make to the maintenance applicant periodical payments, for the support of the child, for such period during the lifetime of the maintenance applicant, of such amount and at such times, as the Court may consider proper.

(3) The Court, in deciding whether to make a maintenance order under this section for the support of a dependent child referred to insubsection (1)of this section and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, in so far as is practicable, to the following matters—

(a) the income, earning capacity (if any), property and other financial resources of—

(i) the cohabitant,

(ii) the maintenance applicant,

(iii) the child, and

(iv) any other dependent children of the maintenance applicant or the cohabitant,

including income or benefits to which the maintenance applicant, the cohabitant, the child or such other dependent children are entitled by or under statute with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of the child or other dependent children granted to either parent of any such children, and

(b) the financial and other responsibilities of the maintenance applicant and the cohabitant concerned towards—

(i) a spouse, civil partner or cohabitant,

(ii) the child, and

(iii) any other dependent children of the maintenance applicant or the cohabitant,

and the needs of such children, including the need for care and attention.]

5C. F26[Maintenance order (liability of cohabitant to any person in respect of child of other cohabitant)

5C.(1) This section applies to a cohabitant (in this section called the relevant cohabitant) of a person who is a parent of, or who is inloco parentisto, a dependent child who is under the age of 18 years where the relevant cohabitant—

(a) is not the parent of the dependent child, and

(b) is a guardian of the child appointed under section 6C of theGuardianship of Infants Act 1964.

(2) Subject tosubsection (3)of this section, where it appears to the Court, on application to it by any person, that the relevant cohabitant has failed to provide such maintenance for a dependent child referred to insubsection (1)of this section as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the relevant cohabitant make to the person periodical payments, for the support of the dependent child, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.

(3) The Court, in deciding whether to make a maintenance order under this section for the support of a dependent child referred to insubsection (1)of this section and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, in so far as is practicable, to the following matters—

(a) the income, earning capacity (if any), property and other financial resources of—

(i) the relevant cohabitant,

(ii) the child, and

(iii) any other dependent children of the relevant cohabitant,

including income or benefits to which the relevant cohabitant, the child or such other dependent children are entitled by or under statute with the exception of a benefit or allowance or any increase in such benefit or allowance in respect of the child or other dependent children granted to either parent of such children, and

(b) the financial and other responsibilities of the relevant cohabitant towards—

(i) a spouse, civil partner or cohabitant,

(ii) the child, and

(iii) any other dependent children of the relevant cohabitant,

and the needs of any such children, including the need for care and attention.