Maintenance of Children whose parents are not married to each other ©
Paying maintenance does not in itself give a parent any access or guardianship rights. It may be useful to record the payment of maintenance in case this record needs to be shown at a later date should there be a dispute in relation to maintenance payments.
Maintenance of children
- Both parents have a duty to financially maintain their dependent children up to the age of 18, or up to age 23 if the child is in full-time education, or would be in full-time education if maintenance were being paid. If the child has a mental or physical disability to such an extent that it is not reasonably possible for the child to maintain her/himself fully then the duty to financially maintain that child continues indefinitely.
- 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 can maintenance be arranged?
Informal agreements may be made regarding maintenance. These agreements can be made in writing and can be made a Rule of Court (see below). A written agreement that is not made a Rule of Court is NOT legally binding. An agreement does not rule out the possibility of applying for a maintenance order through the courts at a future date.
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.
If you are having difficulty agreeing maintenance you could try mediation (see below) or collaborative law (see below). If all else fails, an application can be made to the court for maintenance.
What is Mediation?
Mediation is where a third party, the mediator, helps parents/guardians/family members to reach an agreement. Mediation encourages all parties to co-operate with each other in working out arrangements concerning their children. Any written agreement can be made a Rule of Court (see below).
NOTE: A mediation service is currently available through local district courts located in Dublin (Dolphin House), Naas, Nenagh and Clonmel, Limerick City, Cork City and Tralee. Check with your local district court for availability. Find your local court here
What is Collaborative Law?
Collaborative law is where parents/guardians/family members work with specially trained lawyers, receive legal advice and guidance, and together with the lawyers, discuss and attempt to resolve issues through face-to-face meetings. Decisions are made by the parties involved. Written agreements can be made a Rule of Court (see below).
Association of Collaborative Practitioners: www.acp.ie
Legal Aid Board: LoCall 1890 615 200, www.legalaid.ie
What is a Rule of Court?
Where an agreement for maintenance is entered into and 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.
Maintenance through the courts
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.
If you are worried that the other parent will not pay the maintenance it is possible to get 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.
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
– is not a parent.
Before making a decision 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).
If you are not happy with the decision made by the court you have 14 days in which to appeal. The terms of the order will apply while waiting for the appeal unless a court directs differently.
What if maintenance is not paid as ordered by the court?
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.
Having the amount of maintenance varied
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.
Where a maintenance order is in place and the payee falls behind in payment it is possible to apply to the court for arrears.
How maintenance affects Social Welfare Payments
If a parent is receiving One-Parent Family Payment (OFP) s/he will be required to seek maintenance from the other parent and OFP will be reduced by approximately half the amount of maintenance being paid. If you have housing costs, your rent or mortgage repayment up to a maximum of €95.23 per week can be offset against maintenance payments. Half the balance is then assessed as means. You must provide proof of rent or mortgage payments. For more information see, ‘how maintenance is assessed as means’. See Treoir’s Information Pack for unmarried parents.
Maintenance and income tax
Maintenance payments received in respect of a child are not taxed.
If the parent who is, or should be, paying maintenance lives abroad
A person who wishes to apply for, vary or enforce, maintenance from a person who lives outside of Ireland may apply through the Irish Central Authority for Maintenance Recovery, provided that the country where the other parent lives is:
- signed up to the UN Convention. Here is a full list of countries participating in the Convention, or
- party to the EC Council Regulation 2009. This includes all EU countries, including the U.K., or
- the U.S.A.
This service is generally free of charge.
Contact the Central Authority for Maintenance Recovery:
Maintenance, marriage and adoption
If a parent marries someone who is not the other parent of the child, then both biological parents still have the responsibility to maintain their child. If the child is adopted, then only the adoptive parents are required to maintain the child.
- You might find Treoir’s Expenses Sheet useful in working out how much maintenance to pay.
- Further information on applying for maintenance and the forms used is available on the Courts Service website.
- Family Law court hearings, including maintenance hearings, are not open to the general public. You are entitled to represent yourself in the District Court.
- You may qualify for legal aid. Contact the Legal Aid Board: LoCall 1890 615 200, www.legalaid.ie.
- You could also contact Free Legal Advice Centres (FLAC) for information and guidance in legal matters. LoCall 1890 350 250, www.flac.ie.