The Gazette 1974

Committee of Court Practice on Desertion and Maintenance NINETEENTH INTERIM REPORT ON DESERTION AND MAINTENANCE (February 1974)

Views submitted to the Committee 30. The legal remedies open to the deserted wife have been criticised by many of the bodies invited to submit their views. Some thought that the existing legislation is out- moded and that the Courts should not have to resort to legal fictions to grant relief. Much of the evidence criticised the expense of Court procedures, having re- gard to the circumstanccs of the persons involved. It is urged that a scheme of free legal aid should be made available. 31. The difficulty of enforcing maintenance orders was stressed in much of the evidence. The sanction of imprisonment where a husband defaults in payment of maintenance was criticised for being one that did not really help the situation but rather aggravated it. Dis- traint of the husband's property, it was said, is not always helpful, as this is often the property out of which the family subsists. The husband often delays in complying with the order made, causing grave hardship in a family which is completely dependent on receipt of the money due. 32. The number of deserted wife allowances in pay- ment by the Department of Social Welfare is approxi- mately 2,900, while the total number of claims received is approximately 4,500. The majority of deserting hus- bands abscond mainly to Great Britain. Many dis- appear leaving the families in ignorance of their where- abouts. Enquiries to the police authorities here and in Great Britain, the Irish Society for Prevention of Cruelty to Children and the National Society for the Prevention of Cruelty to Children, occasionally result in tracing the deserting husband, but such cases are excep- tional. Even if steps to secure his return to Ireland are successful, that does not ensure that she will secure her maintenance. 33. In certain cases if the deserting husband obtains a divorce in England the Department of Social Welfare will discontinue payment of the deserted wife's allow- ance where the divorce is one which would be recog- nised in this State. 34. A deserted wife may face another problem where the family home is in the name of the husband. Having deserted his wife and family he may sell the house, or discontinue paying the mortgage payments, if the house is subject to a mortgage. The loss of the house to the wife and family may follow unless the deserted wife is in a position to meet the mortgage payments out of her own resources. When she does so the defaulting hus- band benefits by the reduction of his own debt to the mortgagee by the wife's payments. If the house is rented, he may cease payment of the rent and so deprive the family of a home, unless the wife is able to pay the rent. 35. The District Court affords an inexpensive and speedy hearing of the deserted wife's claim. The District

Justice who must assess the financial circumstances of the parties is often handicapped by being unable t° obtain precise information as to both parties' earning*- The husband's employment may be seasonal, or he ma)' receive as much again in overtime as he earns in basi f pay, or his employment may be casual and with a num- ber of different employers. The task of the District Justice, it is suggested, would be easier if he could require under penalty a full and accurate statement ot earnings of the deserting husband from his employer*- 36. There was almost unanimous support for the suggestion that portion of a deserting husband's income should be attached at source. Not all were agreed on how this could best be done. Some favoured attachment on a percentage basis. Others preferred it to be assessed by the Court, subject to alteration if circumstance* changed and upon renewed application to the C o u r t - It was suggested that real and personal property al*° be subject to attachment in the same way as the judg- ment mortgage system operates. Most of these sugges- tions were based on the assumption that the husband was the sole breadwinner of the family. This is not always the case in an age when the employment of married women is becoming more common and where their earnings contribute significantly to the famih income. 37. Any system of attaching income, to be effective» should be simple and immediate. The consensus of opinion favoured attachment of a specified amount following an order of the Court. The order could be ; directed to the defaulting spouse's employer, and w o u l d | require deduction and payment over to the other spouse | or, in exceptional cases, to an official of the Court, e.g- the local District Court Clerk. 38. In the case of a self-employed spouse, the Court order could be directed to him or to her, requiring pay- ment of the specified sum to the other spouse or to an official of the Court for the other spouse. 39. The hearing of maintenance cases in open C o u r t is undesirable on the ground that they are of a peculi- arly sensitive nature. It was argued that a less formal hearing away from the Courtroom atmosphere—such as in a District Justice's room—would be more appro- priate. 40. The intervention of partisan "in-laws" in sucfi cases has, at times, rendered their solution more diffi- cult. It has been suggested that a District Justice ougfi 1 to have power to exclude such persons from attending the hearing where they arc not witnesses. It was al*° suggested that the District Justice be given power t° exclude witnesses from the Court until their evidence i* about to be tendered. 41. A number of bodies submitted arguments i' 1 favour of making free legal aid available. At p r e s et free legal aid is restricted to criminal cases. While th e deserted wife with no private means is seen as being particularly qualified to receive free legal aid, it w3* 100