(J) D v (B) D
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 01 January 1985 |
| Neutral Citation | 1983 WJSC-HC 1925 |
| Court | High Court |
| Date | 01 January 1985 |
1983 WJSC-HC 1925
THE HIGH COURT
BETWEEN:
and
Judgment of Miss Justice Carroll delivered the 6th September, 1984
A net point has arisen in this case, namely whether the amount payable under a separation agreement providing for maintenance (herein referred to as a maintenance agreement) which has been made a Rule of Court under Section 8 of the Family Law (Maintenance of Spouses and Children) Act 1976(herein referred to as "the Act") can be varied downwards.
What has happened here is that the husband entered into a maintenance agreement which was made a Rule of Court on the 29th February, 1980. It provided for the payment of a weekly sum to be increased every twelve months in accordance with increases in the Consumer Price Index. It took no account of whether there was a corresponding increase in the husband's take home pay or whether there was any change in the circumstances of the husband or the wife.
If the Court had made a Maintenance Order under Section 5 of the Act, the Court would have power under Section 6, if there were a change of circumstances, to vary the maintenance if it thought proper to do so.
The wife has brought a motion for committal for failure to pay the sum provided in the maintenance agreement or alternatively attachment of earnings. The husband has brought a counter motion to vary the maintenance. It has been argued on behalf of the wife that the Court has no power to vary the maintenance downwards because of the specific provision of Section 8 of the Act
"Where -"
(a) the parties to a marriage enter into an agreement in writing (including a separation agreement) after the commencement of this Act that includes either or both of the following provisions, that is to say -
(i) a provision whereby one spouse undertakes to make periodical payments towards the maintenance of the other spouse or of any dependent children of the family or of both that other spouse and any dependent children of the family,
(ii) a provision governing the rights and liabilities of the spouses towards one another in respect of the making or securing of payments (other than payments specified in paragraph (a) (i) of this section), or the disposition or use of any property, and
(b) An application is made by one or both of the spouses to the High Court or the Circuit Court for an order making the agreement a rule of court,
the Court may make such an order if it is satisfied that the agreement is a fair and reasonable...
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