The Gazette 1974

Committee of Court Practice on

Desertion and Maintenance

NINETEENTH INTERIM REPORT ON DESERTION AND MAINTENANCE (February 1974)

Views submitted to the Committee

30. The legal remedies open to the deserted wife have

been criticised by many of the bodies invited to submit

their views.

Some thought that the existing legislation is out-

moded and that the Courts should not have to resort to

legal fictions to grant relief. Much of the evidence

criticised the expense of Court procedures, having re-

gard to the circumstanccs of the persons involved. It is

urged that a scheme of free legal aid should be made

available.

31. The difficulty of enforcing maintenance orders

was stressed in much of the evidence. The sanction of

imprisonment where a husband defaults in payment of

maintenance was criticised for being one that did not

really help the situation but rather aggravated it. Dis-

traint of the husband's property, it was said, is not

always helpful, as this is often the property out of

which the family subsists.

The husband often delays in complying with the

order made, causing grave hardship in a family which

is completely dependent on receipt of the money due.

32. The number of deserted wife allowances in pay-

ment by the Department of Social Welfare is approxi-

mately 2,900, while the total number of claims received

is approximately 4,500. The majority of deserting hus-

bands abscond mainly to Great Britain. Many dis-

appear leaving the families in ignorance of their where-

abouts. Enquiries to the police authorities here and in

Great Britain, the Irish Society for Prevention of

Cruelty to Children and the National Society for the

Prevention of Cruelty to Children, occasionally result in

tracing the deserting husband, but such cases are excep-

tional. Even if steps to secure his return to Ireland are

successful, that does not ensure that she will secure her

maintenance.

33. In certain cases if the deserting husband obtains

a divorce in England the Department of Social Welfare

will discontinue payment of the deserted wife's allow-

ance where the divorce is one which would be recog-

nised in this State.

34. A deserted wife may face another problem where

the family home is in the name of the husband. Having

deserted his wife and family he may sell the house, or

discontinue paying the mortgage payments, if the house

is subject to a mortgage. The loss of the house to the

wife and family may follow unless the deserted wife is

in a position to meet the mortgage payments out of her

own resources. When she does so the defaulting hus-

band benefits by the reduction of his own debt to the

mortgagee by the wife's payments.

If the house is rented, he may cease payment of the

rent and so deprive the family of a home, unless the

wife is able to pay the rent.

35. The District Court affords an inexpensive and

speedy hearing of the deserted wife's claim. The District

Justice who must assess the financial circumstances of

the parties is often handicapped by being unable t°

obtain precise information as to both parties' earning*-

The husband's employment may be seasonal, or he ma)'

receive as much again in overtime as he earns in basi

pay, or his employment may be casual and with a num-

ber of different employers. The task of the District

Justice, it is suggested, would be easier if he could

require under penalty a full and accurate statement ot

earnings of the deserting husband from his employer*-

36. There was almost unanimous support for the

suggestion that portion of a deserting husband's income

should be attached at source. Not all were agreed on

how this could best be done. Some favoured attachment

on a percentage basis. Others preferred it to be assessed

by the Court, subject to alteration if circumstance*

changed and upon renewed application to the

C o u r t -

It was suggested that real and personal property al*°

be subject to attachment in the same way as the judg-

ment mortgage system operates. Most of these sugges-

tions were based on the assumption that the husband

was the sole breadwinner of the family. This is not

always the case in an age when the employment of

married women is becoming more common and where

their earnings contribute significantly to the famih

income.

37. Any system of attaching income, to be effective»

should be simple and immediate. The consensus of

opinion favoured attachment of a specified amount

following an order of the Court. The order could be ;

directed to the defaulting spouse's employer, and

w o u l d |

require deduction and payment over to the other spouse |

or, in exceptional cases, to an official of the Court, e.g-

the local District Court Clerk.

38. In the case of a self-employed spouse, the Court

order could be directed to him or to her, requiring pay-

ment of the specified sum to the other spouse or to an

official of the Court for the other spouse.

39. The hearing of maintenance cases in open

C o u r t

is undesirable on the ground that they are of a peculi-

arly sensitive nature. It was argued that a less formal

hearing away from the Courtroom atmosphere—such

as in a District Justice's room—would be more appro-

priate.

40. The intervention of partisan "in-laws" in sucfi

cases has, at times, rendered their solution more diffi-

cult. It has been suggested that a District Justice ougfi

to have power to exclude such persons from attending

the hearing where they arc not witnesses. It was al*°

suggested that the District Justice be given power t°

exclude witnesses from the Court until their evidence i*

about to be tendered.

41. A number of bodies submitted arguments i'

favour of making free legal aid available. At p r e s et

free legal aid is restricted to criminal cases. While th

deserted wife with no private means is seen as being

particularly qualified to receive free legal aid, it w3*

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