Maintenance

Spouses have rights and obligations to support each other. Support issues most commonly arise in the context of judicial separation or divorce. Separation agreements may also provide for maintenance.

The obligation to provide support and maintenance arises under the Child Support (NI) Order in cases of maintenance for children.

Where there is a claim by one spouse against the other for maintenance, this is determined under the Matrimonial Causes (NI) Order and the Domestic Proceedings (NI) Order 1978 and 1980 as amended. The Family Law (NI) Order 1993 provides mechanisms for payment.

Under the Domestic Proceedings (NI) Order 1980, Magistrate’s Courts have jurisdiction to make orders for periodical maintenance and lump sums under £1,000.

The High Court and County Court have the power to make financial provision for periodical lump sum orders exceeding £1,000. Either party to a marriage may apply to the court for maintenance.

Parties may enter into private maintenance agreements in writing regarding their financial arrangements, either during marriage, as a consequence of marriage annulment, or dissolution. Although maintenance provisions would be binding as contractual undertakings, the courts have the power to review them. Any term in the agreement that purports to restrict review is void.

Maintenance agreements may, therefore, be subject to review by court order.

A maintenance order may be made a court order, in which case it has the equivalent effect of a court order for maintenance. An application can be made to have an order made into a court order by endorsement.

A court order may be made regarding other financial arrangements, such as the transfer of assets. Parties must make full disclosure of their financial circumstances, and the court may consider the circumstances in improving the order.

An application may be made to the court to vary or revoke provisions in an agreement arising from changes in the circumstances in light of which the financial arrangements are made or if the agreement does not make proper arrangements in relation to the children.

For a successful application, the change in circumstances could not reasonably have been foreseen. If the circumstances would have been foreseen, the court may refuse the application. It must be shown that the change in circumstances results in a disadvantage, and this arises from the terms of the agreement.

If the change in circumstances is due to one person’s misconduct or neglect, it may be inequitable to disregard this circumstance.

The agreement may be varied, and fresh terms may be inserted.

Where one party has applied, the High Court or County Court may alter the maintenance agreement. This must generally be done within six months of representation unless court consent is obtained for a later date. The grounds for alteration are broadly the same as set out above.

The application to court for an order may be made where either party to a marriage has failed to provide or make a proper contribution for the reasonable maintenance of a child of the family. Child, in this context, means the child of both or either party to the marriage or another child, other than a boarded-out child.

During the hearing of the application, the judge may make such an order as they deem just or refer the application to the master to investigate the means of the party.

The Property Magistrate’s Court (1980) Order contains grants powers in slightly different terms. It must be shown that the other party to the marriage has failed to provide reasonable maintenance for the applicant or has failed to make a reasonable contribution for the maintenance of a child of the family.

The procedure also allows for an application based on the adultery of the other party, desertion, or on the basis that the applicant has behaved in a way that it cannot be reasonably expected to live with the other party.

The orders that may be made include periodical payment of maintenance, lump sum payment, periodical payments for children, and lump sum payments for children, with lump sums not exceeding (£1,000).

The matters to which the court takes account are similar to those in the context of divorce. An application may be made for breach of a maintenance agreement or on the basis that it would be contrary to the interest of justice.

When parties have been living apart by agreement for at least three months, with no address and desertion, and a warrant has been issued providing maintenance to the other party or to a child of the family, then the other party is entitled to apply for a maintenance order.

There is a right of appeal against the decision of the magistrate’s court to the county court.

Enforcement is obtained by way of application to the enforcement of judgment’s office.

The court has residual power to make maintenance payments in favor of children. However, the child support system separately addresses the substantive position to some extent.

Maintenance agreements for the benefit of children may be varied by application to the High Court, County Court, and magistrate’s courts. A similar application may be made under death of a parent.

In making decisions regarding maintenance, the court considers a range of factors set out in the 1978 order including:

• Income earning capacity, property, and other financial resources that each party to the marriage has or is likely to have in the foreseeable future.
• Increase in earning capacity which it would be reasonable to expect a party to a marriage to acquire in the future.
• Financial needs, obligations, and responsibilities of each of which you may have in the future.
• Standard of living enjoyed by the family before the breakdown of the marriage.
• Age of the parties of the marriage and duration.
• Physical and mental disability of either party.
• Contributions made or likely to be made in the foreseeable future to the welfare of the family, including contributions by way of looking after the family or caring for the family.

Conduct is such that it would be in the opinion of the court inequitable to this regard.

In the case of divorce and nullity, the value to each of the parties of any parties which, by reason of the dissolution or an element, they would lose the chance of acquiring.