Why it’s better to set Maintenance Payments
in stone.
I had a client
come in to me the other week (lets call her Mary), with a query that I have
heard many times before….”my childrens father has stopped paying maintenance
for our daughters, can I go to Court to recover the money?”
The answer is
“yes”, but in her particular circumstances “no”. You see, Mary had no
Maintenance Order from the Court, she had no formal Maintenance Agreement with
her ex-partner and, it transpired, would have difficulty in proving that they
had any Maintenance agreement that he was now defaulting on.
This happens far
too often. I see in this weeks Examiner that just one quarter of people found
to owe child maintenance payments last year, began making payments after being
contacted by the Department of Social Protection.
Mary had
separated from her ex about two years previously. They had never been married. They
agreed between them that he would pay maintenance of €100 per week for the two
girls directly to Mary and she found it easier to get it in cash from him and
spend it directly on expenses for the girls growing needs. All motored along
gaily for 6 months, while their relationship remained amicable however, matters
took a turn and for reasons best known to himself, he stopped paying.
Mary, thankfully
at the time, was in a good job and managing well financially without State
assistance and soon realised that she did not need the funds for immediate
expenditure on the girls. She decided
not to pursue the money and instead to allow it to “clock up”, with the
intention that she let it build into a nice nest egg for the girls and pursue
it when she needed it.
But, as is the
sorry story for many these days, about 2 months ago, Mary’s employer’s business
folded and she lost her job. She was
obliged to apply for One Parent Family Payment.
She learned that she was obliged to pursue the children’s father for Maintenance
and felt safe in the knowledge that she could both apply for a Maintenance
Order and pursue the arrears. It wasn’t
going to be that easy. I explained that,
yes, we can bring a Summons for a Maintenance Order but that any Maintenance Order
would only be able to provide for payments going forward and not provide for
back payments. If, however, she had
entered into a Maintenance Agreement two years previously, or obtained a Maintenance
Order at the time, we could sue for the breach of the Agreement or Order and
recover some or all of the arrears, or, even better, use the existence of the
Agreement or Order to talk sense to her ex and get things back on track without
having to go to Court.
Mary had failed
to “bank”, when things were getting dicey and was now left with having to
satisfy a Judge that while there was very little proof of one on paper, that
there was a maintenance agreement that he has now breached.
We have tried to
resolve it with his Solicitor who has taken the position that there was never
such an agreement. All is not lost and
we are going to give it a shot in Court…at the very least she will likely
achieve a Maintenance Order which will secure the payments for the foreseeable
future, but she may have to kiss the nest egg goodbye…..
….Oh it would
have been so much easier, had she “banked”.
Colette McCarthy
Wolfe & Co.
087 0508541
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