PART II

Maintenance of Spouses and Dependent Children

5. —(1) (a) Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.

(b) Subject to subsection (4) of this section, where a spouse—

(i) is dead,

(ii) has deserted, or has been deserted by, the other spouse, or

(iii) is living separately and apart from the other spouse,

and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.

(c) A maintenance order or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.

(2) The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse.

(3) Where the applicant spouse has committed adultery, then-

(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may refuse to make a maintenance order for the support of the applicant spouse,

(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, make a maintenance order for the support of the applicant spouse in any case where, having regard to all the circumstances (including the conduct of the other spouse), the Court considers it proper to do so.

(4) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—

(a) the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or under statute, and

(b) the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

6. —(1) The Court may—

(a) discharge a maintenance order at any time after one year from the making thereof, on the application of the maintenance debtor, where it appears to the Court that, having regard to the maintenance debtor's record of payments pursuant to the order and to the other circumstances of the case, the persons for whose support it provides will not be prejudiced by the discharge thereof, or

(b) discharge or vary a maintenance order at any time, on the application of either party, if it thinks it proper to do so having regard to any circumstances not existing when the order was made or, if it has been varied, when it was last varied, or to any evidence not available to that party when the maintenance order was made or, if it has been varied, when it was last varied.

(2) Notwithstanding anything contained in subsection (1) of this section, the Court shall, on application to it under that subsection, discharge that part of a maintenance order which provides for the support of a maintenance creditor where it appears to it that the maintenance creditor, being the spouse of the maintenance debtor, has deserted and continues to desert the maintenance debtor.

(3) That part of a maintenance order which provides for the support of a dependent child shall stand discharged when the child ceases to be a dependent child of the family by reason of his attainment of the age of sixteen years or twenty-one years, as the case may be, and shall be discharged by the Court, on application to it under subsection (1) of this section, if it is satisfied that the child has for any reason ceased to be a dependent child of the family.

(4) Where the applicant spouse has committed adultery since the making of a maintenance order for the support of such spouse, then—

(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may discharge or vary the maintenance order;

(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, refuse to discharge or vary the maintenance order for the support of the applicant spouse in any case where the Court, having regard to all the circumstances (including the conduct of that other spouse), considers it proper to refuse to do so.

(5) Desertion or adultery by a spouse shall not be a ground for discharging or varying any part of a maintenance order that provides for the support of dependent children of the family.

7. —On an application to the Court for a maintenance order, the Court, before deciding whether to make or refuse to make the order, may, if it appears to the Court proper to do so having regard to the needs of the persons for whose support the maintenance order is sought and the other circumstances of the case, make an order (in this Act referred to as an interim order) for the payment to the applicant by the maintenance debtor, for a definite period specified in the order or until the application is adjudicated upon by the Court, of such periodical sum as, in the opinion of the Court, is proper.

8. —Where—

(a) the parties to a marriage enter into an agreement in writing (including a separation agreement) after the commencement of this Act that includes either or both of the following provisions, that is to say—

(i) a provision whereby one spouse undertakes to make periodical payments towards the maintenance of the other spouse or of any dependent children of the family or of both that other spouse and any dependent children of the family,

(ii) a provision governing the rights and liabilities of the spouses towards one another in respect of the making or securing of payments (other than payments specified in paragraph (a) (i) of this section), or the disposition or use of any property, and

(b) an application is made by one or both of the spouses to the High Court or the Circuit Court for an order making the agreement a rule of court,

the Court may make such an order if it is satisfied that the agreement is a fair and reasonable one which in all the circumstances adequately protects the interests of both spouses and the dependent children (if any) of the family, and such order shall, in so far as it relates to a provision specified in paragraph (a) (i) of this section, be deemed, for the purpose of section 9 and Part III of this Act, to be a maintenance order.

9. —(1) Where the Court makes a maintenance order, a variation order or an interim order under this Act, the Court shall—

(a) thereupon direct that payments under the order shall be made to the District Court clerk, unless the maintenance creditor requests it not to do so and the Court considers that it would be proper not to do so, and

(b) in a case in which the Court has not given a direction under paragraph (a) of this subsection, direct, at any time thereafter on the application of the maintenance creditor, that the payments aforesaid shall be made to the District Court clerk.

(2) Where payments to the District Court clerk under this section are in arrear, the District Court clerk shall, if the maintenance creditor so requests in writing, take such steps as he considers reasonable in the circumstances to recover the sums in arrear whether by proceeding in his own name for an attachment of earnings order or otherwise.

(3) Where a direction has been given under subsection (1) of this section, the Court, on the application of the maintenance debtor and having afforded the maintenance creditor an opportunity to oppose the application, may, if it is satisfied that, having regard to the record of the payments made to the District Court clerk and all the other circumstances, it would be proper to do so, discharge the direction.

(4) The District Court clerk shall transmit any payments made to him by virtue of this section to the maintenance creditor.

(5) Nothing in this section shall affect any right of a person to take proceedings in his own name for the recovery of any sum payable, but not paid, to the District Court clerk by virtue of this section.

(6) References in this section, in relation to any proceedings, to the District Court clerk are references to such District Court clerk in such District Court district as may be determined from time to time by the Court concerned.

(7) Nothing in subsection (1) or (2) of this section shall affect paragraph (a) or (b) of section 14 (8) of the Maintenance Orders Act, 1974.

(8) Section 14 (8) of the Maintenance Orders Act, 1974 , is hereby amended by the insertion in paragraph (b) after “application under” of “section 10 of the Family Law (Maintenance of Spouses and Children) Act, 1976, or” and by the substitution of “the said section 8” for “that section” and the said paragraph (b), as so amended, is set out in the Table to this section.

TABLE

(b) The district court clerk shall, if any sum payable by virtue of an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, make an application under section 10 of the Family Law (Maintenance of Spouses and Children) Act, 1976, or section 8 (which relates to the enforcement of certain maintenance orders) of the Enforcement of Court Orders Act, 1940 , and for that purpose the references in the said section 8 (other than subsections (4) and (5)) to the applicant shall be construed as references to the district court clerk.