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GAZETTE
JUNE/JULY 1976
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
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-
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