Vol. 453 No. 6
7 Mr. Kenneally asked the Minister for Equality and Law Reform the action, if any, he intends to take to limit the power of District Court judges to order maintenance payments by spouses to be made from social welfare or supplementary welfare payments; and if he will make a statement on the matter. [9633/95]
Where a spouse fails to maintain the other spouse or any dependent children the law provides that the court may, on application to it, make an order for payment of maintenance. The maximum weekly amount that may be ordered by the District Court is £200 per week for the support of a spouse and £60 per week for the support of a child. There are no limits on the amounts that may be awarded by the Circuit Court. In determining the amount of any payment the court must have regard to all the circumstances of the case including the income, earning capacity, if any, property or other financial resources of either spouse and any children. Income includes social welfare payments, with the exception of certain allowances such as supplementary welfare allowance. The law in this area is prescribed in the Family Law (Maintenance of Spouses and Children) Act, 1976. I have initiated some important changes to that Act in the Family Law Bill, 1994, at present before the Seanad having been passed by this House. However, I have no evidence to suggest that the law needs to be amended in the way that appears to be suggested by the question. The criteria set out in the Act for the making of maintenance orders by the court are based on what is fair to all parties and the court is already precluded from taking into account certain social welfare payments such as supplementary welfare allowance.
I am pleased this question appeared on the Order Paper because there was an attempt to transfer it to the Minister for Social Welfare, who does not have responsibility for it. In regard to the other question I tabled to the Minister, I received notification at lunch time that it was being transferred to another Minister. The Minister referred to the 1976 Act under which the judge, in such a case, must take cognisance of income, earning capacity, financial resources and property when making a decision. As in the case of many matters that arise in this Chamber the question was inspired by an event. The Minister has said there is no evidence to lead him, under the Family Law Bill, to delimit the powers of a justice. I suggest there is a grey area in relation to earning capacity. How can one justify a situation where a person on long term unemployment assistance of £61 per week must pay maintenance of £20 per week to an estranged wife? When the person went back to the court the amount was reduced to £15, part of which is being paid by the health board. That suggests the health board is paying a large amount of maintenance rather than the person involved. Surely there is something wrong.
Under the existing law only the supplementary welfare allowances are excluded from the court's consideration in assessing the amount of maintenance. Social welfare payments are taken into account. However, every case is different and the court is supposed to take into account the overall financial position of each of the spouses before making a maintenance order. Where a person is in receipt of some form of social welfare benefit but has substantial other means, social welfare payments would be taken into account. It is at the discretion of the court to make a maintenance order having taken into account all the circumstances. I cannot comment on the cases referred to by the Deputy without knowing the full circumstances, but the law as it stands is appropriate and leaves discretion with the court to take the income into account. There are many cases where a person's sole income is from social welfare and in such cases the court would probably be disinclined to make an order for maintenance but may do so if it is appropriate.
We are supposed to provide a level of social welfare payment that is adequate to meet the needs of the recipient. In the case I referred to, the woman is on the full amount of lone parent's allowance. Does the Minister not agree that, given that supplementary welfare allowance is excluded, means-tested social welfare payments should also be excluded? That would eliminate anomalies that might arise because a person has other means.
I will consider the suggestion, although I do not immediately see that it is necessary because the court examines each individual case on its merits. That is the reason the discretion is left with the court. The judges who hear such cases are experienced and know the needs of each spouse, having examined the income of each. I imagine it would be exceptional for a court to make a maintenance order where the sole income consisted of a means-tested social welfare payment, but it would depend on individual circumstances. That level of discretion must be left with the court. Providing for hard and fast exclusion might be unjust in some cases.
