95 / 300
a l so
suggested that it be made available to her husband
'' he can prove the insufficiency of his own resources.
42. Other proposals were as follows :
(
a
) service of documents by post to be permitted;
(h) certificate of wages be made admissible as evid-
ence of earnings;
(c) the period of a child's dependence to be extended
h
e
yond the age of 16 years where the child continues in
'
u
'l-time education, and extended for life in the case of
Mentally handicapped child.
Committee's Findings
43. We are satisfied that there is a real need for a
ra
dical change in the legal provisions relating to the
Provision of maintenance for deserted spouses and
a
milies. We are also of opinion that failure to main-
ta
'n, instead of desertion, should be the basis of the
nevv
, jurisdiction.
. 4 he District Court should continue to be the prin-
Cl
P
a
l forum to which the complaining spouse may have
*,
es
°
rt
- In order to minimise the hardships which any
e,a
Y might cause the deserted family, changes not
p ' v in procedural law but also changes in substantive
avv
, will require to be made.
4 he Committee's Recommendations
44. The existing law should be amended to provide
la
t a spouse may be ordered to pay to the other spouse
V means of maintenance order for the support of that
^Pouse and the dependent children such sum as the
p r t may order when it is satisfied that there has been
ta
mily default on the part of the spouse against whom
order is sought. Family default should be defined as
(
a
) actual abandonment of the family home, the other
•jPpuse and the dependent children and failure to main-
tai
>i them; or
.(b) such ill treatment, physical or mental, or other
psconduct on the part of one spouse as would reason-
ably justify the other in leaving the family home and a
a
'lure by the spouse in the family home to maintain the
°ther; or
,(
c
) such ill treatment, physical or mental, or other
psconduct on the part of one spouse as would reason-
a
p y justify the other in leaving the family home
though she or he does not do so and a failure by the
s
Pouse who earns to maintain the other; or
(d) failure of the spouse who is responsible for the
ppport of the family to provide a reasonable standard
living for them having regard to the means and
ear
nings of that spouse.
45. I
n
cases of actual distress, immediate relief for
^ deserted family by way of interim order is essential.
. his order should be addressed to and be payable
'^mediately by the relevant local assistance authority.
Co
py of any interim order made should be served by
pdinary prepaid post on the spouse alleged to be in
default and on the local authority, and either should
la
ve
a
right to apply to the District Court to set aside
he order or to vary it. A full hearing should follow as
as possible. At this a Certificate of Earnings exhi-
lte
d in an affidavit sworn by the employer should be
Efficient proof of earnings, unless the Court orders
ot
herwise. At the conclusion of the hearing an order for
[h^ntenance should be made if the evidence warrants
11 a
nd should be served on both the defaulting spouse
a
hd his employer. It should require the deduction of
. e sums specified in the order from the defendant's
'hcome and its payment direct to the plaintiff by the
employer without deduction of income tax. Any sum
paid by a local authority on foot of an interim order
should also be paid in the same way. Where the default-
ing spouse is not within the jurisdiction, or cannot be
traced, the orders of the Court should be directed to the
appropriate local authority, which would be liable to
pay the amount and would seek to recover any sums
paid from the defaulting spouse. All such payments
should be deemed a civil debt for which execution may
be levied against the estate of the husband/defendant
other than such part of it as consists of the family home
and furniture in the actual occupation of the spouse
who obtained the order.
The protection of the family home should be ensured,
insofar as possible, when the defaulting spouse is the
legal owner. The registration of the order as a
lis
pendens
should be permitted effectively to prevent any
attempt of sale. Thereafter, the sale of the home should
be made possible only by leave of the Court. Where
appropriate, the Court award of maintenance would
take into account the necessary payment of mortgage
instalments or rent. If the home is rented from the
Corporation or a local authority, that authority may
be ordered by the Court to transfer the tenancy into the
joint names of the spouses for the period set out in the
order.
46. If the Court finds on the evidence offered that a
spouse has reasonable grounds for believing that the
safety or welfare of the family requires it, the Court
should have power to make an order prohibiting the
defaulting spouse from entering or attempting to enter
the family home "until further order" and from in any
way molesting, annoying or putting in fear the family
or any member of it.
47. The hearing of maintenance cases other than in
public should not be a matter of discretion for the
presiding Judge. All such hearings should be in private.
48. The Court should be given power to exclude wit-
nesses until it is ready to hear their evidence.
49. The limits of £15 and £5 imposed by the Courts
Act, 1971, in respect of a deserted wife and each child,
should be removed insofar as the District Court is
concerned. The Committee would favour an unlimited
jurisdiction as to the amount being conferred on the
District Court but because of the doubts as to the
constitutionality of such an enlargement of jurisdiction
it is recommended that figures of £40 and £10 be
substituted for the time being, with power being vested
in the Minister for Justice to alter these amounts in
future by ministerial order as circumstances require.
50. Any attempt at resumption of cohabitation with a
view to reconciliation by the parties should not affect
the continuance or effect of the Court order; if it were
allowed to do so, it would place the deserted spouse in
an intolerable dilemma, and could well militate against
eventual reconciliation. The order of the Court should
run, therefore, until it is discharged by the Court itself.
A successful reconciliation could thus lead to an appli-
cation to the Court and the discharge of the Order.
51. A child's dependency should continue during
such period as he is in receipt of full-time education
after attaining the age of sixteen years. The Court
should, however, take account of any earnings of which
the child is in receipt, e.g. under an apprenticeship
agreement, a scholarship or a secondary education
grant.
Where the dependent child, upon attainment of the
age of sixteen years, is mentally or bodily deficient in