Divorced man no longer has to pay €385 monthly maintenance to ex-wife, judge rules

Original order made in 2005 in favour of woman and couple’s then dependent children

A retired, divorced father of two adult children has secured court orders meaning he no longer has to pay €385 monthly maintenance to his ex-wife.

For reasons including the man’s ex-wife’s income is greater than his, Ms Justice Nuala Jackson granted his appeal over the refusal of the Circuit Court to reduce the spousal maintenance to zero.

An order for periodic maintenance was made in 2005 in favour of the woman and the couple’s then dependent children in the context of divorce ancillary relief orders.

Since the children became legally non-dependent, the only periodic maintenance paid by the man is spousal maintenance of €385 per month, paid by way of attachment of earnings secured upon his pension.

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He applied on a number of occasions to vary the maintenance order, including most recently to reduce the sum to zero. The Circuit Court last December granted a minor variation reducing it to €80 a week but the reduced order has yet to come into operation and he continues to pay €385 a month.

He appealed the Circuit Court decision to the High Court.

In a judgment published this week, Ms Justice Jackson allowed the appeal, having considered the relevant provisions of the Family Law (Divorce) Act 1996 concerning the entitlement to vary or discharge periodic maintenance.

That involved considering if there was any real change in the circumstances of the parties and any new evidence to support a variation or discharge. The judge was required to have regard to matters in the Act, including to ensure proper provision is secured, in deciding if variation or discharge should take place.

In this case, the judge said there were “many real and substantive” changes of circumstance since the maintenance order was made in 2005.

At that time, the woman was not gainfully occupied outside the family home and was gainfully occupied caring for the children, she said.

Both children have third level qualifications, one is married and living elsewhere while the other lives with the mother while continuing with studies and makes minimal contribution to the household expenses, the judge noted.

The woman had assumed significant financial burdens over the years, including buying out the man’s interest in the family home, has been careful with her resources and has created a comfortable home, the judge said.

The man had suffered an injury, leading to his early retirement some years ago, and experienced financial distress leading to his entering a personal insolvency arrangement.

The judge was satisfied there was changed circumstances to justify a review of maintenance. It was “concerning and sad”, she observed, that, after such a long period of separation, there remained acrimony between the parties, which must be most difficult for the children, and she encouraged the parents to attempt a “more respectful” relationship,

The woman, the judge noted, has been employed for some months outside the family home and has been “most enterprising” in earnings from her employment and from the family home. After mortgage costs, she has a monthly income of about €2,060.

After deduction of housing costs and the maintenance payment, the man’s monthly income, including a social welfare payment, is €1,933, she said.

Because the woman’s income is greater than the man’s, and both have potential additional income resources from renting accommodation in their residences, the judge said she would discharge the spousal maintenance order.

Noting the man had referred during the hearing to possible recovery of some previous maintenance payments, the judge said she did not believe that was appropriate.

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