Maintenance for Dependent Children

Under Irish law parents have a duty to financially maintain their dependent children. This duty lasts until the child / children reach the age of 18, or up to the age of 23 if the child is in full-time education (or if the child would be in full-time education had the maintenance been paid). Where a child has a mental or physical disability, to the extent that it is not reasonably possible for the child to maintain his/herself fully, then this duty to maintain that child will continue indefinitely.

Can Cohabitants be under this duty?

In short the answer is yes, possibly.  A cohabitant of a person who is a parent, or a cohabitant of a person who has the day-to-day care (is in loco parentis), of a child may have to financially maintain the child, if that cohabitant:

• is a guardian, and
• is not the parent.

The court shall consider all the circumstances of the case, in particular the income of both cohabitants and any maintenance responsibilities they may have towards any other children or former partners.  If a non-parent is ordered to pay maintenance the order will remain in place up until the child is 18 years of age.

How do I seek / organise Maintenance for my child / children?

Many couples arrange maintenance informally amongst themselves.  Such agreements can be made in writing but are not legally binding unless they are made a Rule of Court.  The formation of such agreements does not present the parties from seeking a maintenance order in court at a later stage.

How is Maintenance assessed?

It can be difficult to assess how much maintenance should be paid.  It might be useful to write down the actual expenses of the child. Where there is a difficulty agreeing to maintenance Mediation may be an option but where this fails, an application can be made to the court for maintenance.

When parties enter into an agreement for maintenance and this agreement is made in writing (including written agreements made during mediation), an application can then be made to court for an order to make that agreement a Rule of Court. The court may make an order if it is satisfied that the agreement is fair and reasonable and adequately protects the interests of the child. The agreement then has the same standing as a court order. A written agreement that is not made a Rule of Court is NOT legally binding.

When parties need to resort to court?

Parents

Where maintenance is not being paid, either parent may apply to the court for a maintenance order against the other parent in respect of a dependent child.  In order to make this application it is necessary to have an address for the other parent. The court may order the non-resident parent* to pay a regular amount based on income and expenses. The maximum that the District Court can order from either parent is €150 per week for each child. There is no limit in the Circuit/High Courts.  A parent can also seek a once-off lump sum up to a maximum of €15,000 through the District Court.  Where a court orders that a lump sum be paid, the court can specify how this sum is to be used, which may include providing suitable accommodation for the child.  A parent can seek a contribution from the other parent towards expenses related to the birth of a child, or funeral expenses if a dependent child dies.  The maximum that can be awarded in the District Court in each of these circumstances is €2,000.

Where it is shown that the other parent will not pay the ordered maintenance the concerned parent may seek an Attachment of Earnings Order.  This means that the other parent’s employer can deduct the maintenance payments directly from their wages.

If the court decides that the parent cannot afford to pay maintenance it is possible to ask the judge to make an order for a nominal sum (even €5 per week). In this way if financial circumstances were to change in the future, it would be easier to apply for a variation order than to re-apply for maintenance.  It also means that there is a Court Order naming the man as father, which could be important for birth registration or other purposes.  Maintenance is payable from the date the application was made for a court order.

*where a parent is failing to maintain a child, it is also possible to apply for a maintenance order against the other parent where both parents are living at the same address.

Non-parents

Where a parent or a person who is a guardian and has the day-to-day care of a child (i.e. is in loco parentis) is in a cohabiting relationship and that relationship comes to an end, he/she can seek maintenance for the child (through the court) from his/her former cohabitant.   This applies where their former cohabitant is:
–  a guardian, and
–  not a parent.

In such circumstances the court shall consider all the circumstances of the case in particular the income of both cohabitants and any maintenance responsibilities they may have towards any other children or former partners.  If ordered to pay maintenance the order will remain in place up until the child reaches the age of 18 (unless the order has been varied or terminated by the court).

NOTE: It is also possible for a person who is not the parent but is a guardian, e.g. grandparent or relative, and has the day-to-day care of the child to seek maintenance from the parent or a person who is a guardian and had the day-to-day care of the child (was in loco parentis).

Can I appeal a Court Decision?

A court decision can be appealed by either parties within 14 days of the decision.  The terms of the order will apply while waiting for the appeal unless a court directs differently.

If maintenance is not paid as ordered by the court, it is possible to apply to court for an Enforcement Order.  It is also possible to get an Attachment of Earnings Order.  This means that an employer can be instructed to deduct the maintenance payments from the person’s wages.  You can apply for an Attachment of Earnings Order when first applying for a maintenance order through the court, if you are concerned that maintenance will not be paid, or you can apply later if the maintenance is not paid.

Variation Orders

Where a maintenance order has been made either party can go back to court at any time to have the amount of maintenance increased or decreased should circumstances change. This is called a Variation Order.

Maintenance Arrears

Where a maintenance order is in place and the payee falls behind in payment it is possible to apply to the court for arrears.