The Liability To Maintain And The Child Support Act
by Peter Snow LLB (Hons)
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1 Introduction

The liability of certain individuals to maintain other individuals has for hundreds of years been a central feature of both the general law and what is now known as social security law. The purpose of this paper is to consider, with some degree of precision, liability to maintain and its legal significance during that time and today, for reference with especial regard to the Child Support Act 1991.

2 The Liability To Maintain: Clarification Of Terms

The terms, "liable to maintain" and "liability to maintain" are used in a number of statutes which are in force at the present time, yet they have been grossly misinterpreted or completely ignored by legal practitioners, legal writers and even judges over a period of many years. Blatant disregard of whether they meant anything at all must in some cases have led to legal implications and consequences quite different from those which the words were intended to produce.

2.1 "Maintenance" and "Maintain".

Probably the most common error is to equate periodical payments towards the cost of a person's maintenance with maintenance. Correctly, "maintenance" refers to the supply of necessaries - in particular, accommodation, food and clothing. The customary term "maintenance order" hides this fact, although notices which appear in such orders which refer to "the person under an obligation to make payments under this order" emphasise the distinction. Some early decisions under the Poor Relief Act 1601 directed (for instance) that "the said child AB, by the parish having been relieved, be sent to the said grandparents CD and DD, by them to be maintained". Liability to make payments under a maintenance order is not "liability to maintain". In an article in "Family Law" in 1975 (to be referred to), the present writer drew attention to a series of notable instances of this fallacy having been perpetrated by judges of the High Court and the Court of Appeal and by legal writers. They have never been repeated since.

2.2. "Liability to Maintain": a Duty to Maintain.

The liability to maintain is the obligation or duty to maintain: an infinitive construction - liability to do something. An incorrect interpretation of part of section 2(5) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 by the Probate, Divorce and Admiralty Divisional Court in Roberts v. Roberts [1962] 2 All ER 967, followed in Snow v. Snow [1971] 3 All ER 833, holding that the words "the liability of any person other than a party to the marriage to maintain the child" (a stepchild) meant "any liability enforceable at law", meant a natural father's ability to pay instead of his liability to maintain, must have resulted in numerous orders against stepfathers who were not liable to maintain at all. A later paragraph will deal with this in some detail by reference to conflicting existing judicial precedent which was ignored in Roberts.

3 Liability At Common Law And Liability By Statute

There are several important differences between liability to maintain at common law and liability to maintain by statute in England and Wales. The only common law liability to maintain in England and Wales is the liability of a man to maintain his wife. There is no reciprocal liability of a woman to maintain her husband - though a Law-Commission/Home-Office Working Party in the 'Seventies' did in fact recommend that the common-law should be made reciprocal. There has never been any common-law liability of a father to maintain a child in England and Wales.

The common-law liability of a man to maintain his wife has never been repealed, and is a liability to maintain her to a standard of living commensurate with his own. Historically it was always enforceable by the wife through her agency of necessity by which she could pledge her husband's credit if she was in need. The agency of necessity was abolished some years ago. State benefits and legally-aided matrimonial proceedings probably made it unnecessary.

3.1 Relation between Common-law and Statutory Liability to Maintain

A husband's common-law liability to maintain his wife is a liability to her, whereas the statutory liability of each party to a marriage to maintain the other and his or her respective children is a liability to the State for maintenance of the person concerned. Until the coming into force of the Child Support Act 1991, direct recovery of benefit expenses from persons liable to maintain persons assisted was in all cases effected by proceedings by the DSS in the magistrates' courts. The common-law liability of a husband to maintain his wife is still suspended by the wife's desertion and discharged by her adultery (see National Assistance Board v. Wilkinson [1952] 2 All ER 255); and although this is not now reflected in "private" matrimonial proceedings (notwithstanding that adultery and desertion are both grounds for divorce), it is still important in relation to recovery proceedings by the DSS in respect of benefit given to her.

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Page last updated: 28 October, 2002 © Copyright Peter Snow 1998