The Gazette 1976

JUNE/JULY 1976

GAZETTE

maintenance. It is perhaps unfortunate that non-par- ental proceedings for maintenance in respect of a child cannot be brought in a case where both parents are continuing to live together and where both are failing to support their child. Why should it be possible for a social worker to bring maintenance proceedings against a deserted wife or a widow for not supporting her child, while it remains possible to bring the same proceedings against a married couple living together? On what grounds may an order be made and how will maintenance be assessed? An order may be made against a spouse where that spouse has failed to provide "such maintenance for the applicant spouse and any children of the family as is proper in the circumstances". Where failure to main- tain is proved, the Judge or Justice may order the de- fendant spouse to make periodic payments "of such amount and at such times as the Court may consider proper." (s. 5(1) (a)) A number of matters here call for comment. First it is now no longer necessary to prove desertion as it was under the 1886 Act. It is possible for one spouse to bring a maintenance action against the other while the two are still living together as one household. This is an important change, though one which was under the old law partly anticipated by certain District Jus- tices in accepting a very liberal definition of "deser- tion". Second the conjunction " a n d" between "dependent spouse" and "any dependent child" is something of a mystery. Its presence suggests that before an order can be made it must be proved that both a spouse and at least one dependent child are not being properly maintained. Read strictly the section would deny a remedy to an inadequately maintained wife with no children or with children who are being adequately maintained. Such a conclusion would be unfortunate and could hardly have been intended by the legislature. Third the requirement that there should appear to the Court to have been a failure to provide such main- tenance "as is proper in the circumstances", and the power given to the Court to order the defendant spouse to pay such maintenance "as the Court may consider proper" provide the first of many examples under the Act where the Court is asked to exercise a considerable degree of discretion. In exercising this discretion the Judge or Justice is required to have regard to all the circumstances of the case including a number of specific matters set out in s. 5(4) (a)&(b). (Where an interim order is being sought under s. 7 even less guidance is given.) The specified matters are not accorded any priority and they are not intended to be exhaustive. Clearly there is a possibility of inconsistency in the practice of different Courts. How much weight e.g. should be attached to "earning capacity" (specified in s. 5(4) ( a ) )? Should a wife who is qualified but not working as a secretary be awarded less maintenance than an unqualified wife? Should a husband who is not making use of his qualifications and who has taken a job which does not realise his full earning potential be asked to pay more than an unqualified man in a similar position? And there are more general questions. Should the Court attempt to maintain a rough equality in the standard of living of husband and wife? Or will the Courts accept the old ecclesiastical principle of awarding an innocent wife a sum equal to one-third of the joint incomes of husband and wife? The principle of accepting ^ of the combined resources of the parties as a starting point has recently been favoured in Eng- 97

FAMILY LAW A Commentary on the Family Law (Maintenance of Spouses and Children) Act, 1976 by W. R. Duncan, M.A., Barrister at Law, Lecturer in Law at Trinity College, Dublin. The Family Law (Maintenance of Spouses and Child- ren) Act 1976 introduces the most important changes in maintenance proceedings in this country for almost a century. It radically alters the bases upon which a spouse may secure a maintenance order, it attempts to equalise the maintenance rights of legitimate and ille- gitimate children, it contains the first ever (admittedly limited) statutory controls over maintenance agreements, it raises substantially the District Court maintenance limits and it introduces new mechanisms (including attachment of earnings) for the collection and enforce- ment ef maintenance payments. The Act does of course make other changes in family law, but it is primarily concerned with maintenance and it is this aspect which will be dealt with here. This commentary is not intended as an exhaustive explan- ation or analysis of the Act, but as a pointer to a num- ber of practical problems which may confront the lawyer in operating the Act and to some of its defects. Section A. Maintenance Proceedings against Spouses. Who is entitled to maintenance and who may bring proceedings? In contrast to the 1886 Married Women (Mainten- ance in Case of Desertion) Act, under which only a wife could obtain maintenance, the new Act gives to either spouse a right to be maintained by the other (s. 5(1) (a). Dependent children of the family are, as in the case of the Guardianship of Infants Act 1964, given maintenance rights in respect of both parents. The definition of a dependent child is broader than that formerly applying under the Courts Act 1971. It includes an adopted child and any child in relation to whom either or both spouses are in loco parentis. Where a child is the child of one spouse only (e.g. an illegitimate child or the child of a previous marriage) the other spouse may still be liable for his maintenance if, being aware that the child is not his, he has treated the child as a member of the family. The age of de- pendency is extended from 16 to 21 in a case where a child is receiving full time education or tuition, and indefinitely where a child is suffering from mental or physical disability such that it is not reasonably possible for him to maintain himself. Although dependent children are given maintenance rights, the power to bring proceedings will normally vest only in their parents. However s. 5(1) (b) intro- duces an important new exception to this principle in a case where a dependent child has lost (by e.g. death or desertion) one parent and the other is not fully maintaining him. In such a case any person may apply for maintenance on behalf of the child. "Any person" would certainly include e.g. a social worker and may arguably include the child himself. It might be pos- sible e.g. for the child of a widower, who is 18 years old and beginning a University course, to bring pro- ceedings against his father to contribute towards his