First Previous (PART III Attachment of Earnings)

11 1976

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976

PART IV

Miscellaneous

Property in household allowance.

21. —Any allowance made by one spouse to the other spouse after the commencement of this Act for the purpose of meeting household expenses, and any property or interest in property acquired out of such allowance, shall, in the absence of any agreement, whether express or implied, between them to the contrary, belong to the spouses as joint owners.

Barring of spouse from family home.

22. —(1) On application to it by either spouse, the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it, order the other spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and, whether the other spouse is or is not residing at that place, prohibit him from entering that place until further order by the Court or until such other time as the Court shall specify.

(2) Either spouse may apply at any time to the Court that made it for the discharge of an order under this section, and the Court shall discharge the order if it is satisfied that it is proper to do so and that the safety and welfare of the spouse on whose application the order was made or any dependent child will not be prejudiced by the discharge.

(3) Without prejudice to the law as to contempt of court, where a person—

(a) contravenes an order under this section, or

(b) while an order under this section directed against him is in force, molests or puts in fear his spouse or a dependent child,

he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both.

(4) In subsections (1) and (2) of this section “the Court” means the High Court, the Circuit Court or the District Court, and—

(a) the District Court shall have jurisdiction in relation to proceedings under this section irrespective of the rateable value of the place to which the proceedings relate, but any order made by the District Court shall, subject to subsection (5) of this section, expire three months after the date of its making but may be renewed from time to time by order of the District Court, on application to it by a person in whose favour the order was made, for further periods of three months but not exceeding three months in respect of any one renewal,

(b) the Circuit Court (except on appeal from an order of the District Court) shall not have jurisdiction in relation to proceedings under this section where the rateable value of the place to which the proceedings relate exceeds £100,

(c) an order made by the Circuit Court on appeal from an order of the District Court under subsection (1) of this section in relation to a place the rateable value of which exceeds £100 shall, subject to subsection (5) of this section, expire three months after the date of its making but may be renewed from time to time by order of the District Court, on application to it by a person in whose favour the order was made, for further periods of three months but not exceeding three months in respect of any one renewal.

(5) An order under this section shall expire upon the determination of any matrimonial cause or matter in the High Court between the spouses or of any proceedings between the spouses under the Guardianship of Infants Act, 1964 , in the High Court or Circuit Court, and the Court determining any such cause, matter or proceedings may, in the cause, matter or proceedings, make an order under this section irrespective of the rateable value of the place to which the order relates.

(6) An appeal from an order under this section shall, if the court that made the order or the court to which the appeal is brought so determines, but not otherwise, stay the proceeding upon the order upon such terms (if any) as may be imposed by the court making the determination.

(7) Where, by reason only of an order under subsection (1) of this section, a person is not residing at a place during any period, he shall be deemed, for the purposes of any rights under the Landlord and Tenant Acts, 1931 to 1971, the Statute of Limitations, 1957 , or the Rent Restrictions Acts, 1960 and 1967, to be residing at the place during that period.

Jurisdiction of Courts.

23. —(1) Subject to subsection (2) of this section, the High Court, the Circuit Court (on appeal from the District Court) and the District Court shall, concurrently, have jurisdiction to hear and determine proceedings under sections 5 , 6 , 7 and 9 of this Act.

(2) (a) The District Court and the Circuit Court (on appeal from the District Court) shall not have jurisdiction to make an order under this Act for the payment of a periodical sum at a rate greater than £50 per week for the support of a spouse or £15 per week for the support of a child.

(b) Nothing in subsection (1) of this section shall be construed as conferring on the District Court or on the Circuit Court (on appeal from the District Court) jurisdiction to make an order or direction under section 5 , 6 , 7 or 9 of this Act in any matter in relation to which the High Court has made an order or direction under any of those sections.

(3) Notwithstanding anything contained in section 52 or 79 of the Courts of Justice Act, 1924 , the jurisdiction conferred on the Circuit Court by section 8 of this Act may be exercised by the Judge of the circuit where either of the parties to the proceedings ordinarily resides or carries on any profession, business or occupation and proceedings under this Act may be brought, heard and determined before and by a Justice of the District Court for the time being assigned to the District Court district where either party to the proceedings ordinarily resides or carries on any profession, business or occupation.

Payments to be without deduction of income tax.

24. —A periodical payment of money pursuant to a maintenance order, a variation order, an interim order, an order under section 8 of this Act (in so far as it is deemed under that section to be a maintenance order), or an attachment of earnings order shall be made without deduction of income tax.

Conduct of Court proceedings.

25. —(1) Proceedings under this Act shall be conducted in a summary manner and shall be heard otherwise than in public.

(2) Proceedings in the High Court and the Circuit Court under this Act shall be heard in chambers.

Costs.

26. —The costs of any proceedings under this Act shall be in the discretion of the Court.

Voidance of certain provisions of agreements.

27. —An agreement shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Act (other than section 21).

Amendment of Illegitimate Children (Affiliation Orders) Act, 1930, and Courts Act, 1971.

28. —(1) The Illegitimate Children (Affiliation Orders) Act, 1930 , is hereby amended—

(a) by the insertion in section 1 of the following definition:

“‘child’ means any child who is under the age of sixteen years, or, if he has attained that age—

(i) is or will be or, if an order were made under this Act providing for periodical payments for his support, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of twenty-one years, or

(ii) is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully.”;

(b) by the substitution in section 2 of the following subsection for subsection (2):

“(2) An application for the issue of a summons or other process under this section may be made only—

(a) before the birth of the illegitimate child in respect of whom the application is made, or

(b) within three years after the birth of the child, or

(c) where the alleged father of the child contributed to the maintenance of the child within three years after the date of the birth of the child, at any time after the contribution, or

(d) where the alleged father of the child was not resident in the State at the date of the birth of the child, at any time not later than three years after the alleged father first takes up residence in the State after that date, or

(e) where the alleged father of the child was resident in the State at the date of the birth of the child but ceased to be so resident within three years after that date, at any time not later than three years after the alleged father first takes up residence in the State after that cesser.”;

(c) by the substitution in section 3 (1) (a) of “two hundred pounds” for “fifty pounds” (inserted by the Courts Act, 1971 );

(d) by the substitution for section 3 (5) of the following subsection:

“(5) Proceedings under this Act shall be conducted otherwise than in public.”;

(e) by the substitution for section 3 (6) of the following subsection:

“(6) It shall not be lawful to print or publish or cause to be printed or published any material relating to proceedings under this Act which would tend to identify the parties to the proceedings.”;

(f) by the deletion of sections 3 (7) and 9 (2);

(g) by the insertion in section 3, after subsection (9) of the following subsection:

“(10) Notwithstanding anything in this Act, the provisions of section 9 of the Family Law (Maintenance of Spouses and Children) Act, 1976, shall apply in relation to an affiliation order subject to the modifications that the reference in subsection (4) of the said section 9 to the maintenance creditor shall be construed as a reference to the person to whom payments under the order would, apart from this section, be made by virtue of subsections (3) and (4) of section 9 of this Act and the other references in the said section 9 to the maintenance creditor shall be construed as references to the person on whose application the affiliation order was made.”;

(h) by the substitution for section 4 of the following sections:

“4.—(1) A periodical payment under an order under this Act shall commence on such date, not being earlier than the date on which the order is made, as may be specified in the order.

(2) Every periodical sum payable by a putative father under an affiliation order shall, subject to subsection (3) of this section and to any variation in the amount thereof made under this Act, continue to be payable for such period as may be specified in the order.

(3) Every periodical sum payable by a putative father under an affiliation order shall cease to be payable on the happening of whichever of the following events first happens, that is to say:

(a) the death of the child in respect of whom the said periodical sum is payable;

(b) the commutation under this Act of such periodical sum by payment of a lump sum;

(c) the termination of the said periodical sum by an order under section 5;

(d) the attainment by such child of the age of sixteen years, unless at the time of the making of the order or at any time thereafter before the attainment by the child of the age of sixteen years, the District Court, on account of the educational needs of such child or on account of a physical or mental disability of the child, has ordered otherwise;

(e) the attainment by such child of the age of twenty-one years, where the Court, on account of the educational needs of such child, has ordered that payments be made on his behalf after he has attained the age of sixteen years.

(4) (a) Where an affiliation order, whether made before or after the commencement of the Family Law (Maintenance of Spouses and Children) Act, 1976, has been discharged by the District Court under section 5 of this Act or where payments under an affiliation order have ceased to be payable by virtue of this Act, the District Court may, at any time thereafter, notwithstanding anything in this Act, by order direct the making by the putative father of payments of such amount, at such times and for such period as the District Court may specify while the person for whose benefit the order was made is a child.

(b) An order under this subsection shall be deemed, for the purposes of section 3 (10) of this Act, subsection (1) of this section, sections 5 and 6 of this Act and section 31 (1) of the Adoption Act, 1952 , to be an affiliation order.

(5) On the death of a putative father liable to pay a periodical sum under an order under this Act, the liability for the payment of such periodical sum shall attach to his estate as a civil debt and such periodical sum shall be recoverable accordingly by the person to whom it is for the time being payable.

4A.—Where it appears to the Court on application to it by any person, that a parent of a child has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order that the parent make to that person periodical payments for the support of the child for such period during the lifetime of that person, of such amount and at such times as the Court may consider proper.

(2) The provisions of the Family Law (Maintenance of Spouses and Children) Act, 1976, relating to maintenance orders shall apply, with any necessary modifications and adaptions, in relation to an order under this section.

(3) The Court shall not make an order in relation to a parent of a child under this section if an affiliation order or an order under section 4 (4) of this Act requiring that parent to make payments for the benefit of the child is in force or that parent has made provision for the child by an agreement under which, at or after the time of the hearing of the application for the order under this section payments fall to be made and in relation to which an order under section 10 of this Act has been made unless—

(a) the parent is not complying with the affiliation order or the order under the said section 4 (4) or the agreement, as the case may be, and

(b) the Court, having regard to all the circumstances thinks it proper to do so,

but, if the Court makes the order under this section, any amounts falling due for payment under the affiliation order, the order under the said section 4 (4) or the agreement, as the case may be, on or after the date of the making of the order under this section shall not be payable.

(4) In this section—

Court’ shall be construed in accordance with section 23 of the Family Law (Maintenance of Spouses and Children) Act, 1976; ‘parent’, in relation to a child, means the mother of the child, the putative father of the child, or a person who has made provision for the child by an agreement in relation to which an order has been made under section 10 of this Act;”

(i) by the insertion in section 5 of the following subsection:

“(3) A Justice of the District Court, on the application of the person by whom a periodical sum is payable under an affiliation order, shall discharge the order if it is satisfied that the person for whose benefit the order was made has ceased to be a child.”.

(j) by the substitution in section 6 (1) and 7 of “two hundred pounds” for “fifty pounds” (inserted in the said section 7 by the Courts Act, 1971 );

and the said sections 3 (1) (a), 6 (1) and 7, as so amended, are set out in the Table to this section.

(2) References in the said Illegitimate Children (Affiliation Orders) Act, 1930 , to a weekly payment shall be construed as references to a periodical payment.

(3) Section 19 (3) (a) of the Courts Act, 1971 , is hereby amended by the substitution of £15 for £5, and the said section 19 (3) (a), as so amended, is set out in the Table to this section.

TABLE

(a) if such child has died before the making of such order, the funeral expenses, as measured by the Justice, of such child to an amount not exceeding two hundred pounds, or

6.—(1) Upon an application under this section in relation to an illigitimate child under the age of sixteen years in respect of whom a weekly sum is then payable under an affiliation order or in relation to an illigitimate child of the age of sixteen years in respect of whom a weekly sum was payable under an affiliation order imediately before he attained that age, a Justice of the District Court may order the putative father of such child or the personal representative of such putative father to pay such sum not exceeding two hundred pounds as the Justice shall fix for the purpose of apprenticing such child to a trade.

7.—Where an illegitimate child in respect of whom an affiliation order has been made dies while a weekly sum is payable in respect of it under such order, a Justice of the District Court may, upon the application within two months after the death of such child of the personl representative of such putative father to pay the funeral expenses, as measured by such Justice, of such shild to an amount not exceeding two hundrd pounds,.

(a) The District court shall not have jurisdiction to make an order under the said Act for the payment of a weekly sum exceeding £15 for the maintenance and education of a child.

Amendment of Enforcement of Court Orders Act, 1940.

29. —The references in subsections (1) and (7) of section 8 of the Enforcement of Court Orders Act, 1940 , to an order shall be construed as including references to a maintenance order, a variation order, an interim order, an order under section 8 of this Act (in so far as it is deemed under that section to be a maintenance order) or a direction under section 9 of this Act.

Repeals.

30. —(1) The Married Women (Maintenance in case of Desertion) Act, 1886, section 13 of the Illegitimate Children (Affiliation Orders) Act, 1930 , section 7 of the Enforcement of Court Orders Act, 1940 , and section 18 of the Courts Act, 1971 , are hereby repealed, and the reference in section 98 (1) (a) of the Defence Act, 1954 , to an order made by a civil court under section 1 of the said Married Women (Maintenance in case of Desertion) Act, 1886, shall be construed as a reference to an order under section 5 , 6 , or 7 of this Act or an order under section 8 of this Act (in so far as it is deemed under that section to be a maintenance order).

(2) (a) Any order made by a Court under the provisions repealed by this section and in force immediately before the commencement of this Act shall continue in force as if it was, and shall be deemed for all purposes to be, a maintenance order or an attachment of earnings order, as the case may be.

(b) Any proceedings initiated under the provisions repealed by this section and not completed before the repeal shall be deemed for all purposes to be proceedings under the corresponding provisions of this Act and may be continued accordingly.