D. v D

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1990
• Neutral Citation: 1990 WJSC-HC 1608
• Docket Number: No. 604Sp/1978,[1978 No. 604Sp]
• Court: High Court
• Date: 01 January 1990

D v. D

D.

-v-

D.

1990 WJSC-HC 1608

No. 604Sp/1978

THE HIGH COURT

Synopsis:

HIGH COURT

Jurisdiction

Wife - Maintenance - Entitlement - Husband - Income - Reduction - Application for authority to make reduced payments - (1978/604 Sp - Barron J. - 19/12/89)

|D. v. D.|

HUSBAND AND WIFE

Maintenance

Variation - Reduction - High Court - Jurisdiction - Separation agreement - Rule of court - Husband's income lessened since date of agreement - Family Law (Maintenance of Spouses and Children) Act, 1976, ss. 5, 8 - (1978/604 Sp - Barron J. - 19/12/89)

|D. v. D.|

Citations:

D (J) V D (B) 1985 ILRM 688

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S8

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S5

FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 S6

O'S V O'S UNREP HIGH MURPHY 18.11.83 1984/5/1573

D (H) V D (P) UNREP SUPREME 8.5.78

1 Judgment of Mr. Justice Barrondelivered the 19th day of December 1989.

2 This case raises a net point of law. The parties entered into a separation agreement which contains provisions for the payment of maintenance by the husband to his wife. The particular clause provides for increases in accordance with inflation. The husband now maintains that his financial circumstances have worsened considerably and that he is no longer able to meet his liabilities under the separation agreement. He accordingly is seeking an Order from the Court that the maintenance payments be adjusted downwards. The question is, has the Court any power to make such an Order.

3 This particular net point arose in J.D. .v. B.D., an unreported decision of Carroll, J. delivered on 6th September, 1984. In that case, an agreement for the payment of maintenance by a husband to his wife provided for annual increases in line with increases in the Consumer Price Index. The agreement contained no provision for review in the event of a change of the cirumstances of the parties. That agreement as here was made a Rule of Court under theprovisions of Section 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976.The question arose upon an application to commit the husband for failure to pay the agreed maintenance. It was held that the agreement did not constitute a Maintenance Order within the meaning of Section 5 of the Act and that therefore the provisions of Section 6 allowing an application to vary a Maintenance Order did not apply. Carroll, J. did however hold that it was an unjust agreement having regard to the husband's altered circumstances and in effect refused to commit the husband unless the maintenance paid fell below what she found to be a reasonable amount.

4 In O.S.-v- O.S. Murphy, J. in an unreported Judgment delivered on the 18th November 1983 dealt with a case where the husband became financially unable to meet his contractual liabilities both to his wife and to his children who were not dependants. The wife sought maintenance under Section 5 of the Act. It was held that the Court had no power to alter the contractual obligation. At the same time an Order was made under Section 5 of such sum as the Court considered proper having regard to the husbandapos;s financial circumstances. Such...