Special Committee Family Law (Maintenance of Spouses and Children) Bill, 1975 díospóireacht -
Tuesday, 25 Nov 1975

SECTION 4.

Mr. Andrews

I move amendment No. b.1 :

In page 5, subsection (1), line 31, after " spouse " to insert

" (a) a lump sum payment for the support of the applicant spouse and of each of the dependent children of the family of such amount as the Court may consider proper, or (b) "; and in line 53 after " person " to insert " (a) a lump sum payment for the support of each of those dependent children, of such amount as the Court may consider proper, or (b) "

I have received representations in connection with this Bill from various organisations concerned. One such representation was from the Free Legal Advice Centre and I have incorporated in my amendments a number of the submissions from that body. I have received a report of the committee of the Dublin Solicitors' Bar Association on the Bill and they have requested me to bring it to the attention of all parties considering this Bill in Special Committee. A number of their proposed amendments are not dissimilar to the ones Deputy Collins and I submitted.

Chairman

Does the Deputy wish to move a further amendment to the amendment he has already in his name and that of Deputy Collins?

Mr. Andrews

No, I do not wish to move any further amendment. My amendment is similar to the suggestions received from the bodies I have mentioned. Their amendments coincide with the wording of the amendment to section 4 (1) (a) of the Bill.

This is an amendment moved in the name of Deputy Collins and I and it seems a reasonable amendment in the circumstances. It is our opinion that in certain instances the amount of the periodic payment may not be sufficient and we respectfully submit that the spouse and her dependent children should receive a lump sum payment. I ask the Minister to consider the amendment.

Mr. Cooney

Deputy Andrews makes the point that the maintenance might not be sufficient to cover the needs of the spouse and her children.

Mr. Andrews

The immediate needs.

Mr. Cooney

The purpose of the Bill is to enable adequate payments to be made having regard to the circumstances of the family and to the needs of the spouse and children; and the concept of the Bill is to provide for weekly or periodic payments, and the Bill introduces the machinery for attachment of earnings which is the kernel of the Bill in regard to the enforcement area. That, of course, is regular payments, being attached at the source, in the hands of the employer.

The idea of a lump sum is somewhat inconsistent with this idea of a weekly payment : it is more consistent with the idea of separation. It will surely be relevant in the cases of families of considerable financial and property sources. I do not know whether the proceedings for maintenance in a District Court would be the best place to tease out whether it is to the advantage of the parties to be paid a lump sum or not. This raises a lot of questions with regard to the marriage and what would be best for the parties. They will be best teased out in the context of separation proceedings and that is outside the scope or the idea of the Act. It might be in the interest of the parties to be paid a lump sum at the time of the application. There might be signs on the horizon which would indicate that perhaps it should be postponed or that a lump sum should be paid in some form of a trust, with control over expenditure. These are all matters which are outside the general context of maintenance as such, which is what the Bill wants to deal with. It would bring the Bill into an area where it was never intended to bring it. These are the difficulties in the way of accepting the amendment.

Chairman

When the weekly payment order is made, can it be retrospective so that it is only dated on the day of the order? Could it cover a period prior to it, if it was a weekly payment?

Mr. Cooney

It would not be retrospective.

Chairman

What you are relying on is the formality and ease of access to the court unless we take the steps that are required.

Mr. Cooney

That would be one benefit from the procedure.

Mr. Pattison

Can there be a variation in the amount of the cover? I was thinking of what you had in mind in regard to retrospection. Can the court order that the initial payment be such a sum that would cover the theory of retrospection rather than the payment of retrospection?

Mr. Cooney

It can, but the court has discretion.

Mr. F. O’Brien

In regard to the making of a periodical payment, will the court lay down the period of time, weekly or monthly?

Mr. Haughey

I am not terribly impressed with the Minister's objection to Deputy Andrews' amendment. I do not think any of us will have any difficulty in visualising the situation. A lump sum would be strictly necessary. In the case of most families, the wife, the spouse, would have got round to going to court. There could be lots of debts and arrears. The only way they could be dealt with would be by way of a lump sum. If the court is restricted to providing for future weekly payments only, it would not meet the situation.

Mr. Cooney

I took the amendment to mean a once and for all sum.

Mr. G. Collins

No. A sort of down payment in advance of weekly payments.

Mr. Cooney

The court has discretion as to the size of the award it makes against the husband. That depends on the husband's means. It cannot be influenced by the debts, they will be outstanding and will be a factor again. If there is a £1,000 debt due, and a man is earning £30 a week, the court cannot order him to pay what he has not got. In the case of parties capable of paying large sums, the jurisdiction in the High Court is unlimited, which could be exercised to order payment of periodic sums big enough to meet any debts that have accumulated.

Mr. Haughey

I was trying to make the argument that if the District Court is regarded as suitable and appropriate for investigating a spouse and his means, I do not think the Minister is on very solid ground if he is suggesting that it could not go into the question of a lump sum of an order which would be related to the weekly payment. We are concerned with ordinary families where the circumstances would warrant the District Court to award £25 or £30. What Deputy Andrews would have in mind is a sum of £150 to £200 as an initial lump sum to get over a difficult situation which would have arisen, to pay off depressing domestic debts.

Mr. Cooney

That would be feasible within the Bill that we have drawn. The court may order such a payment to be the initial payment. Thereafter payments would run at a lesser level.

Mr. Haughey

Say it decided to order £30 a week, it could order £150 the first week, and £30 a week thereafter?

Mr. Cooney

It could. A court would have to take into account the capacity of the parties. This would be an overriding situation.

Mr. Haughey

As it reads, I thought it could only make the applicant pay periodic payments.

Mr. Cooney

Again, if the proceedings were in the District Court, the court would be bound by the jurisdictional ceiling of the court.

Mr. Andrews

The Bill is vague on that point. The court in certain circumstances can give a lump sum. Is there any reason in those circumstances why my amendment possibly could be amended to make it clear exactly what the intentions are?

Mr. Cooney

If we dropped the term " lump sum ". That is confusing us.

Mr. G. Collins

And substituted " down payment "?

Mr. Cooney

Yes. What we had in mind are periodic payments of differing amounts to meet the exigencies of the family at a particular time. The court is given discretion to make periodical payments, having looked at the family circumstances, subject to the exigencies of the case—in the case of the District Court, to the jurisdiction limits. It has powers then, on the application of either party, to vary the payments up or down, depending on the circumstances.

Mr. Andrews

What the Minister is saying is that the court may, without using the term " lump sum ", make a payment of £100 in the first instance and thereafter at a reduced rate of £10 or £15 per week.

Mr. Cooney

Depending on the number of children.

Mr. Andrews

That takes care of the point.

Mr. B. Desmond

In relation to line 31 of section 34, the emphasis on periodical payments is excessive. I would suggest to the Minister that he should consider on Report Stage an amendment to read " and make to the applicant a payment or periodical payment," because a payment could be a lump sum, and it would be much more explicit. One can envisage the situation where one spouse may be dead and the dependent child may be in full-time education and he may be aged 20 ½ years and he, therefore, would be entitled to payment for a period of six months and that would be the full payment under the Act he would become entitled to and the court may decide that since one spouse is dead and the child is in full-time education it should make one payment for six months. Does one payment of six months made at the end of that period——

Mr. G. Collins

Is the danger not there that a down payment or a lump sum may indicate that that money might not necessarily be there when it should be there?

Mr. B. Desmond

There would be the problem, for instance, if one has to terminate payments at 16 years of age or, indeed, at 21 and the amount of money involved may be, say, £250 or £300 as envisaged in the situation of a one-child family, a student of 20 ½ years of age and the court finally takes a decision. The court might order six months maintenance payment. There is no good reason why that should be a lump sum pay. Therefore, it is suggested in that line in the Bill that it should be a payment or periodical payments. I think that I would prefer to see this section being far more permissive, if I may say so, permissive in terms of the court being enabled to decide the amount. Line 35 is rather tight when it says " of such amount and at such times ". Certainly under that one can bring in the concept of a lump sum payment, or a payment or payments on a quarterly basis or annual basis. One can bring that in. It is not terribly explicit.

Chairman

Speaking as a lawyer, I would be a little bit afraid of this emphasis on a lump sum by virtue of the fact that you might find yourself in what they call the position known as res judicata. Once the court has made an order for a lump sum that might close the door for any comeback in the matter. Periodical payment is both a continuity and a review approach. Mistakes can be made and have been made before in law cases, if you are tied to one lump sum. You are running a risk there that is not already in the section.

Mr. B. Desmond

One can be faced with the situation that there is the abject humiliation of a particular spouse, he or she, having to go to the District Court clerk on a weekly basis or a monthly basis or a quarterly basis to collect specific maintenance payments. That aspect is involved. Both parties, as the maintenance issue arises, may wish to be shut of one another, as we say, and there may be very little involved. He may well be emigrating. The child may be 21 years of age and she may be 55 years of age and the thing is all washed up. There may be an application for maintenance. Very often one does find in the terms of maintenance that the issue of principle and the issue of retribution are far more uppermost in the minds, perhaps, of the offended spouse than the amount that is involved—the question of proving that the other person was liable and is liable and, therefore, the amount of settlement that she would like to get or he might like to get, a couple of hundred pounds or a couple of thousand pounds and be finished with him for life.

Mr. Cooney

That is a different situation. This is a maintenance Bill and maintenance is a continuing process. This is the essence of what we were considering earlier. You are talking about separations.

Mr. B. Desmond

I can envisage a situation that even though this is maintenance and periodic maintenance and so on and there may be no legal separation agreement between the parties and the offended spouse may be perfectly justified in taking, in legal terms, a case against him, but she may do so and people can be as in an emotional situation like this, just think——

Chairman

I do not wish to cut the Deputy short now but I think he is just a little bit irrelevant on the purposes and the structure of the Bill. There are other matters that come into another field of legal activity and remedies, the importance of something else that is not being dealt with here in this section.

Mr. Cooney

Deputy Desmond is dealing with matters of discretion. There is discretion under the Bill as drafted. A court can decide that one payment discharges the obligation to maintain.

Mr. B. Desmond

Could I ask the Minister to insert " a payment or periodical payments "?

Mr. Cooney

We can look at it. I do not think there is any need.

Mr. Haughey

Wherein do you derive that the court can order a single payment? It is not on this amendment. It is an interpretation.

Mr. Cooney

The Bill gives overall power to the court to step in where a spouse is not discharging his responsibilities in regard to the maintenance. It could happen that the responsibility to maintain might arise once only. It might be a school fee. It might happen only once. The situation might change subsequently. A court could have dealt with a child who would take himself outside the ambit of the Act altogether and it would have the right to make only an order for one payment.

Mr. Haughey

Where is that, that the court is in loco parentis?

Mr. Cooney

The whole concept of the court making a maintenance order gives power to the interested person, whether he be a spouse or a child, to come into the court and say: " The school fees for 1975 amount to £50 and the father has a duty to pay them." The court could make one order for the payment of those fees.

Mr Haughey

The Minister then is assuring us that periodical payments could, in fact, include sums of the nature of a lump sum which Deputy Andrews has in mind, subject to the overall limitation.

Mrs. Desmond

Line 34 refers to a period during the lifetime of the applicant spouse or subject to payment after the death of a spouse in respect of a dependent child. Does that preclude payment after the death of the spouse?

Mr. Cooney

No, it would not. With regard to the maintenance of children where there is only one parent—the obligation is covered in paragraph (6).

Mrs. Desmond

That is all right.

Mr. Andrews

The Minister has given an undertaking that practically the spirit of my amendment can be applied under the section, and on that undertaking I wish to withdraw my amendment.

Mr. Cooney

That is on the understanding that we are clear on what we mean by "lump sum ".

Mr. Andrews

Yes, we are.

Amendment, by leave, withdrawn.

Question proposed : " That section 4 stand part of the Bill."

Mr. B. Desmond

I am in some difficulty particularly as to the moral concepts behind the definition of " condolence " in the terms of adultery or by wilful neglect of misconduct conducive to adultery.

Mr. Cooney

Let me explain what the law was prior to this. It was that the wife in receipt of maintenance but who committed adultery disqualified herself absolutely from such maintenance. We are easing the situation. The court will disregard an act of adultery. If the other spouse has condoned or connived at or by wilful neglect or misconduct conduced to the adultery. So in cases where, for example the husband is a party to the adultery by his wife he cannot plead that adultery to shake off his responsibility under the Bill.

Mr. B. Desmond

Could I make just two points? I would gladly use the words " where the husband had acquiesced "—the concept of acquiescence to me is explicit—but why not say " shall refuse to make a maintenance order " instead of " may not "?

Mr. Cooney

It was considered best to use the word " may " but paragraph (b) goes further. In the case of what I might call wilful adultery the court may still ignore it. This is a novel concept in Irish law in 1975.

Mr. Andrews

We are legislators not moralists.

Mr. B. Desmond

As a layman so used to moral concepts I have difficulty in understanding the parliamentary draftsmanship.

Mr. Andrews

I am sure the parliamentary draftsman is a very moral man.

Mr. Brosnan

Is it necessary to have (a) and (b)?

Mr. Cooney

There is a difference between (a) and (b), paragraph (a) envisages a situation where there has been condonation or connivance by the husband. In that situation the court may refuse to make a maintenance order. In (b) there is no condonation or connivance.

Mr. Haughey

They are two different situations.

Question put and agreed to.