The Gazette 1990

GAZETTE

JANUARY/FEBRUARY 1990

An interesting point in relation to the liability of parents to support a child 22 is whether such liability is joint or joint and several. If the former, then judgment against either one bars any further action against the other even if the com- petent authority has not obtained the fruits of the judgment. This problem does not arise if liability is joint and several. The legislation is "An interesting point in relation to the liability of parents to support a child is whether such liability is joint or joint and several." silent on this issue but there are convincing arguments in favour of liability being joint and several, based on the presumption, in the context of statutory interpretation, against intending what is incon- venient or unreasonable. 23 Enforcement of the obligation to maintain is through recourse to the District Court by the competent authority, but only after notice of this application to court has been served on the person liable to make the contribution - S.316. 24 Section 316(4) provides that where the Court is satisfied that such person has failed or neglected to make the contribution and that he or she was able to contribute to the benefit or allowance granted, it shall fix the amount of the contri- bution to be made and shall order the payment of such contribution to the competent authority by way of such payments as the Court shall think proper. 25 It follows that if the defendant can establish ina- bility to contribute, the Court cannot make any order. Contributions due from a person under s.316(1) may be offset, either in whole or in part as the com- petent authority may determine, by payments made by such person pursuant to a court order under the Family Law (Maintenance of Spouses and Children) Act, 1976. 26 By the same token, a claimant of D.W.A., D.W.B., D.H.A. or S.W.A. is obliged to transfer to the appropriate competent authority payments received by such claimant pursuant to a court order made under the 1976 Act - s.318. 27 This obligation does not appear to exist where the main- tenance is being paid pursuant to an agreement between the parties,

Though this is not explicitly pro- vided for in the new provisions, it is submitted that the relative's obligation to contribute is depend- ent on the claimant being entitled to receive one of the four welfare payments in question. 18 So, for example, if the competent authority mistakenly paid D.W.A. to a woman who did not satisfy the statutory definition of "deserted wife" because she had not taken all reasonable steps to secure main- tenance from her husband, it would seem unjust that the cost of this error could simply be passed on to the claiant's spouse. In the same way, it is arguable that there is an implicit obligation on the compet- ent authority to notify the spouse or parent, as the case may, as soon as possible of the fact of the claimant's receipt of welfare. The presumption of constitutionality which applies to s.316 implies, inter alia, that the "proceedings, pro- cedures, discretions and adjudica- tions which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice." 19 It is sub- mitted that such principles require, in the present context, that the maintaining relative be notified of his or her liability at the earliest possible opportunity, rather than allow a liability to develop of which he or she is unaware. Once it can be shown that the claimant is the spouse or child of the person against whom it is sought to enforce the obligation to contribute and that such claimant is properly in receipt of one of the specified payments, the obligation to contribute appears to be quite strict and is qualified only by the person's ability to pay. In particular the fact that the claimant may be guilty of desertion or adultery will not affect his or her spouses's liability under this provision. 20 Nor does there seem to be any basis for defending proceedings under s.316 simply on the grounds that the parties had been separated and living apart prior to the claimant receiving the appropriate welfare payment. Furthermore, private maintenance arrangements made between the parties whereby one spouse agrees to take no, or an inadequate amount of, mainten- ance cannot affect the statutory liability imposed by s.316. 21

as opposed to a court order. If such transfer is not made, the claimant's benefit or allowance will be reduced by the amount which he or she is liable to transfer. 28 It is not clear whether the com- petent authority can recover, pur- suant to s.316, a sum greater in amount than that paid to the claimant by way of benefit or allowance. Such a result would seem to be quite unreasonable and at odds with the purpose of this provision, which is to enable the State to shift, in whole or in part, the burden of maintaining a claim- ant onto the claimant's spouse or parents, as the case may be. At the same time, it is regrettable that the Minister did not see fit to re-enact the terms of s.215(5) of the 1981 Act, which expressly limited the amount which the health board could recover to the amount of S.W.A. granted, together with the cost of the legal proceedings. It could be argued that the failure to re-enact this provision meant that the Oireachtas deliberately intended to allow the Court to order the repayment of a sum greater than that paid to the claimant, though it is difficult to envisage any situation in which such an order could be justified. From the relative's point of view, of course, it could equally be argued that the failure to re-enact this provision Arbi trat ion Co n f e r e n ce at Strasbourg 29th, 30th, 31st March, 1990 For further details please contact: Michael Irvine, Matheson Ormsby Prentice, 3 Burlington Road, Dublin 4. A I J A Survey o f Internat ional

Tel: (01) 760981 Fax: (01) 760501

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