The Gazette 1992

GAZETTE

DECEMBER 1992

2. Vol. 417 Dail Debates col. 2039. 3. It appears that the provisions have not yet been operationally implemented in relation to non- marital couples. 4. As inserted by s. 12 of the Social Welfare Act, 1989 and amended by s. 13 of the Social Welfare Act, 1990 and s. 20 of the Social Welfare Act, 1992. 5. In this section we consider only the procedures relevant to the Department of Social Welfare as the Health Board procedures have not been announced. 6. It should be noted that these guidelines have been altered from those originally drawn up, which are set out in Cousins, supra fn. 1, apparently because the original guidelines were felt to be too generous to the liable relative. 7. Ss. 317 and 318 of the Act as inserted by s. 12 of the Social Welfare Act, 1989 and s. 23 of the Social Welfare Act, 1992. 8. S. 23 of the Social Welfare Act, 1992. 9. S. 318 (3) of the Act. 10. S. 316 of the Act as inserted by s. 12 of the Social Welfare Act, 1989 and amended by s. 21 of the Social Welfare Act, 1992. 11. Garfinkel and Wong, "Child Support and Public Policy", in OECD, Lone Parent Families: The Economic Challenge, Paris 1990. 12. [1952] 2 All ER 255. 13. [1955] 2 All ER 1. 14. See Casey " T h e Supplementary Benefits Act: Lawyer's Law Aspects" (1968) 19 NI LO 11.15. (1896) 30 ILTR 156. 16. HD -v- PD, Supreme Court, unreported 8 May 1978 and section 27 of the Family Law (Maintenance of Spouses and Children) Act, 1976. 17. OC -v- TC High Court, unreported 9 December 1981. 18. National Assistance Board -v- Prisk [1954] 1 All ER 400; National Assistance Board -v- Parkes [1955] 2 All ER 1; Hulley -v- Thomson [1981] 1 All ER 1128. 19. Board of Public Assistance for the South Cork Public Assistance District -v- O'Regan [1949] IR 415.

Or d e rs Acts for the p u r p o se of variation or e n f o r c eme n t. T he C o u rt may ma ke an order for the arrest a n d i mp r i s o nme nt of the d e b t or u n d er the s ame Acts. 20 In a d d i t i o n, the District C o u rt may now ma ke an a t t a c hme nt of earnings o r d er in respect of a liable relative either with h i s / h er c on s e nt or where s / h e h ad d e f a u l t ed w i t h o ut r e a s o n a b le excuse in ma k i ng the p a yme n ts due. 21 It is difficult to predict h ow the Irish c o u r ts will interpret mu ch of this new legislation, a l t h o u gh s ome g u i d a n ce c an be gained f r om the UK caselaw in this area. It seems likely t h at the provisions will lead to a considerable increase in litigation in this area. Th is is a reverse of the considerable increase in litigation in this area. This is a reverse of the general trend in social welfare matters . . . " general trend in social welfare ma t t e rs which tends to be mo v i ng in the direction of giving jurisdiction to specialist t r i b u n a ls rather t h an the c ou r t s. In the UK, for example, following m a j o r r e f o rms of the legislation in relation to child s u p p o r t, jurisdiction is largely being given to Child S u p p o rt Tribunals rather t h an to the courts. It may be t h at f u r t h er ame n d i ng legislation will be required in this area in order to clarify existing uncertainties, a nd to ensure a coherent a nd consistent relationship between public a nd private family s u p p o rt legislation. Conclusion "It seems likely that the provisions will lead to a

Th is is an issue which solicitors would need to bear in m i nd in advising clients in regard to separation agreements.

d) Payment incorrectly awarded:

It a p p e a rs t h a t, in order for the liable relative to have to c on t r i bu t e, the p a yme nt mu st have been correctly m a d e to the c l a ima n t . 19 T h u s the liable relative c o u ld argue t h at the c l a ima nt did n ot satisfy the s t a t u t o ry c o n d i t i o ns for p a yme n t, e.g. in the case of a c l a ima nt in receipt of a deserted wife's p a yme nt the liable relative c o u ld argue t h at the c l a ima nt was not in fact deserted a n d t h e r e f o re s h o u ld n ot have received t he p a yme n t. It a p p e a rs t h at it is o p en to the District C o u rt to reconsider cases where the D e p a r t me nt of Social Welfare h as incorrectly awa r d ed p a yme n t, at least where this arises f r om a mistake of law. A liable relative may also be able to argue t h at the rules of fair p r o c e du r es have n ot been c omp l i ed with if s / h e h as n ot been given timely notice of the D e p a r t m e n t 's intention to award p a yme nt to the c l a ima nt a n d an a d e q u a te o p p o r t u n i ty to ma ke such representations as are a p p r o p r i a t e. Finally, it wo u ld seem t h at liability in respect of a s p o u se will only exist as long as a valid ma r r i a ge subsists. T h u s a recognised degree of divorce or nullity wo u ld t e rm i n a te liability in respect of the 'ex-spouse' ( a l t h o u gh n ot of any children). f ) Nullity or divorce: Wh e n originally i n t r o d u c e d, o ne of the obv i ous weakness in t he liability to ma i n t a in legislation was the lack of e n f o r c eme nt me c h a n i sms. Th is lack h as been rectified by the provisions of the Social Welfare Act, 1992 (the 1992 Act). A c o n t r i b u t i on order f r om the District C o u rt is now d e emed to be an instalment o r d er u n d er the E n f o r c eme nt of C o u rt e) Lack of fair procedures: Enforcement

20. S. 21' of the 1992 Act. 21. S. 22 of the 1992 Act.

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English Agents: Agency wo rk u n d e r t a k en for Irish solicitors in b o t h litigation a nd n o n- c o n t e n t i o us ma t t e rs - including legal aid. Fearon & Co., Solicitors, 12 T h e Broadway, Wo k i n g, Surrey GU21 5AU.

References

1. For the background to this situation see Ward, The Financial Consequences of Marital Breakdown, Dublin 1990; Whyte, "Enforcing Maintenance Obligations though the Welfare Syster (1990) 84 Gazette 5; Cousins, "Social Welfare Payments and Maintenance" [1991] 11 Fam. L J 7.

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