Dear Claudine,

My boyfriend and I broke up five months ago. We have two children aged four and seven and he is now refusing to pay any money to me for their upkeep. He is working fulltime and takes them overnight most weekends. He refuses to pay money to me for them stating that he buys them clothes and pays for them when they are with him at weekends.

Can you please advise me.

Sarah

Dear Sarah,

Thank you very much for your email. As parents you both have a responsibility to support your children financially. As you are not married, you are the sole custodian of your children and regarded as their primary carer. The parent who does not have custody and/or primary care and control of the children is legally obliged to pay money to the parent with custody in respect of maintaining the dependent children. Therefore, your boyfriend is legally obliged to pay maintenance for both children as he is the natural father. Informal maintenance arrangements can be made setting out how much maintenance has to be paid for the dependent children and this type of an agreement can work out very well when both parents can reach a reasonable agreement on the financial needs of the children. If the parents cannot reach an agreement, they may consult a Solicitor to negotiate an agreement on their behalf which when approved and signed by both parents becomes legally binding on them. Alternatively, if the parents of dependent children cannot reach an agreement in relation to the maintenance to be paid to the sole custodian or primary carer of the children, then an Application can be made to the District Court seeking an Order for Maintenance. Either parent may apply to the Court under the Family Law (Maintenance of Spouses and Children) Act 1976 for a Maintenance Order against the other parent to assist in maintaining the dependent child or children who is residing with him or her. The maximum amount of maintenance that the District Court can order is €150.00 per week per child. A parent can also seek special one off payments for example: at Christmas time or at the start of the school year. An Application for maintenance can be made at any time before a dependent child reaches the age of 18 years old, or 23 years old if he or she is in full time education. At any time irrespective of the age of the child, an Application can be made by a parent if the child has a mental or physical disability and it is not reasonably possible for the child to maintain him or herself. The amount of maintenance payable by a parent is dependent upon the requirements of the dependent child or children and generally the parent seeking maintenance will be required to complete a weekly expense sheet clearly setting out how much money he or she requires to assist them in maintaining the child or children in respect of food, clothing, schooling, and special needs, rent, etc. The Court will then determine how much maintenance is reasonable taking into account the financial ability of the paying parent. The Court when making a Maintenance Order, will specify the amount to be paid and will state how much is payable in respect of each dependent child. The Court will also indicate whether payments are to be made on a weekly, fortnightly or a monthly basis and the date upon which the first maintenance payment is to be made. Generally, the maintenance is paid directly to the parent who has primary care and control of the dependent children. However, the Court in certain circumstances may specify that the maintenance is to be paid through the District Court office where there is a serious probability that the paying parent will default in his or her maintenance payments. The advantage of having the maintenance paid through the District Court office is that the office keeps a record of all maintenance payments received. If payments fall into arrears, then the District Court Clerk will give sworn evidence to the Court of the amount of arrears due up to the date of the issue of the proceedings for arrears. If the paying parent does not pay the maintenance as directed by a District Court Judge, then he or she is deemed to be in breach of a Court Order and the parent seeking maintenance will be required to notify the District Court that arrears of maintenance have accumulated and request them to issue an Enforcement Summons putting the case back for hearing again. If the paying parent is employed, and there is a maintenance order in place, the parent seeking maintenance can apply to issue proceedings for an Enforcement Order or an Attachment of Earnings Order. If an Attachment of Earnings Order is made, the paying parents employer will be legally obliged to deduct the maintenance payments from the paying party’s salary and furnish them to the District Court Office to be sent to the other parent. Arrears of up to 26 weeks are the most that can be claimed through an Enforcement Summons. Arrears of maintenance which accrued more than six months before the application to enforce a Maintenance Order may not be recovered. If the person applying for maintenance believes that the paying party will not pay on foot of the Maintenance Order, then they can apply for an Attachment of Earnings Order at the time of the Maintenance Order being made.

I hope that the above is helpful to you and thank you for your very kind e-mail.

With every good wish.

Claudine