The Gazette 1992

413 / 462

GAZETTE DECEMBER 1992
Th is is an issue which solicitors
would need to bear in m i nd in
advising clients in regard to
separation agreements.
d) Payment incorrectly awarded:
It a p p e a rs t h a t, in order for the
liable relative to have to c on t r i bu t e,
the p a yme nt mu st have been
correctly m a d e to the c l a ima n t . 19
T h u s the liable relative c o u ld argue
t h at the c l a ima nt did n ot satisfy the
s t a t u t o ry c o n d i t i o ns for p a yme n t,
e.g. in the case of a c l a ima nt in
receipt of a deserted wife's p a yme nt
the liable relative c o u ld argue t h at
the c l a ima nt was not in fact deserted
a n d t h e r e f o re s h o u ld n ot have
received t he p a yme n t. It a p p e a rs t h at
it is o p en to the District C o u rt to
reconsider cases where the
D e p a r t me nt of Social Welfare h as
incorrectly awa r d ed p a yme n t, at least
where this arises f r om a mistake of
law.
e) Lack of fair procedures:
A liable relative may also be able to
argue t h at the rules of fair
p r o c e du r es have n ot been c omp l i ed
with if s / h e h as n ot been given
timely notice of the D e p a r t m e n t 's
intention to award p a yme nt to the
c l a ima nt a n d an a d e q u a te
o p p o r t u n i ty to ma ke such
representations as are a p p r o p r i a t e.
f ) Nullity or divorce:
Finally, it wo u ld seem t h at liability
in respect of a s p o u se will only exist
as long as a valid ma r r i a ge subsists.
T h u s a recognised degree of divorce
or nullity wo u ld t e rm i n a te liability in
respect of the 'ex-spouse' ( a l t h o u gh
n ot of any children).
Enforcement
Wh e n originally i n t r o d u c e d, o ne of
the obv i ous weakness in t he liability
to ma i n t a in legislation was the lack
of e n f o r c eme nt me c h a n i sms. Th is
lack h as been rectified by the
provisions of the Social Welfare Act,
1992 (the 1992 Act). A c o n t r i b u t i on
order f r om the District C o u rt is now
d e emed to be an instalment o r d er
u n d er the E n f o r c eme nt of C o u rt
Or d e rs Acts for the p u r p o se of
variation or e n f o r c eme n t. T he C o u rt
may ma ke an order for the arrest
a n d i mp r i s o nme nt of the d e b t or
u n d er the s ame Acts. 20 In a d d i t i o n,
the District C o u rt may now ma ke an
a t t a c hme nt of earnings o r d er in
respect of a liable relative either with
h i s / h er c on s e nt or where s / h e h ad
d e f a u l t ed w i t h o ut r e a s o n a b le excuse
in ma k i ng the p a yme n ts due.21
Conclusion
It is difficult to predict h ow the Irish
c o u r ts will interpret mu ch of this
new legislation, a l t h o u gh s ome
g u i d a n ce c an be gained f r om the UK
caselaw in this area. It seems likely
t h at the provisions will lead to a
considerable increase in litigation in
this area. Th is is a reverse of the
"It seems likely that the
provisions will lead to a
considerable increase in litigation
in this area. This is a reverse of
the general trend in social welfare
matters . . . "
general trend in social welfare
ma t t e rs which tends to be mo v i ng in
the direction of giving jurisdiction to
specialist t r i b u n a ls rather t h an the
c ou r t s. In the UK, for example,
following m a j o r r e f o rms of the
legislation in relation to child
s u p p o r t, jurisdiction is largely being
given to Child S u p p o rt Tribunals
rather t h an to the courts.
It may be t h at f u r t h er ame n d i ng
legislation will be required in this
area in order to clarify existing
uncertainties, a nd to ensure a
coherent a nd consistent relationship
between public a nd private family
s u p p o rt legislation.
References
1. For the background to this situation
see Ward, The Financial Consequences
of Marital Breakdown, Dublin 1990;
Whyte, "Enforcing Maintenance
Obligations though the Welfare Syster
(1990) 84 Gazette 5; Cousins, "Social
Welfare Payments and Maintenance"
[1991] 11 Fam. L J 7.
2. Vol. 417 Dail Debatescol. 2039.
3. It appears that the provisions have
not yet been operationally
implemented in relation to non-
marital couples.
4. As inserted by s. 12 of the Social
Welfare Act, 1989 and amended by s.
13 of the Social Welfare Act, 1990
and s. 20 of the Social Welfare Act,
1992.
5. In this section we consider only the
procedures relevant to the
Department of Social Welfare as the
Health Board procedures have not
been announced.
6. It should be noted that these
guidelines have been altered from
those originally drawn up, which are
set out in Cousins, supra fn. 1,
apparently because the original
guidelines were felt to be too
generous to the liable relative.
7. Ss. 317 and 318 of the Act as inserted
by s. 12 of the Social Welfare Act,
1989 and s. 23 of the Social Welfare
Act, 1992.
8. S. 23 of the Social Welfare Act, 1992.
9. S. 318 (3) of the Act.
10. S. 316 of the Act as inserted by s. 12
of the Social Welfare Act, 1989 and
amended by s. 21 of the Social
Welfare Act, 1992.
11. Garfinkel and Wong, "Child Support
and Public Policy", in OECD, Lone
Parent Families: The Economic
Challenge,Paris 1990.
12. [1952] 2 All ER 255.
13. [1955] 2 All ER 1.
14. See Casey " T h e Supplementary
Benefits Act: Lawyer's Law Aspects"
(1968) 19 NI LO 11.15. (1896) 30 ILTR
156.
16. HD -v- PD, Supreme Court,
unreported 8 May 1978 and section
27 of the Family Law (Maintenance
of Spouses and Children) Act, 1976.
17. OC -v- TC High Court, unreported 9
December 1981.
18. National Assistance Board -v- Prisk
[1954] 1 All ER 400; National
Assistance Board -v- Parkes[1955] 2
All ER 1; Hulley -v- Thomson [1981]
1 All ER 1128.
19. Board of Public Assistance for the
South Cork Public Assistance District
-v- O'Regan [1949] IR 415.
20. S. 21' of the 1992 Act.
21. S. 22 of the 1992 Act. •
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