Re1150 - Maintenance payments: Types of Obligation to Pay Maintenance

Payments made voluntarily or under an oral agreement

Many taxpayers think that any payment not made under a court order or Child Support Agency assessment is 'voluntary'. Some even regard agreed payments under a court order as voluntary because they consented to the making of the order in those terms. The Revenue does not use the word in this sense when dealing with maintenance payments. The only 'voluntary' payments are those made under arrangements which are not legally binding.

You will normally only meet voluntary payments where

• a husband continues to pay his wife's (or (from 5 December 2005) one civil partner pays another’s household expenses or gives her an allowance towards them to support her and their children after they have separated or divorced or
• payments are made under an oral or written agreement which is not legally binding (perhaps whilst a Child Support Agency assessment is pending), see Re1151.

Certain other payments are treated as voluntary for tax purposes only. These are

• payments made under a legally enforceable oral agreement entered into on or after 15 March 1988 and
• payments made on or after 15 March 1988 under an oral agreement entered into before 15 March 1988, details of which were not produced to the Revenue until after 30 June 1988.

Voluntary maintenance payments, or payments treated as voluntary for tax purposes, do not affect the taxable income of either the payer or the recipients.

But where a husband made payments to his separated wife or met her expenses on food, clothes, services such as gas, electricity etc in amounts which are considered to be sufficient to 'wholly maintain' her, he could still get the Higher Personal Allowance for years up to and including 1989-90, see Re692. If he separated from his wife before 6 April 1990 and meets the conditions set out in In900 he can get the Transitional Married Couple's Allowance for 1990-91 and later years.

He cannot get either allowance for any year after the granting of the Divorce Decree Absolute.

Where a form 41(Sep) or other notification from a taxpayer shows that voluntary payments or payments which are treated as voluntary for tax purposes are being made for the maintenance of his or her husband or wife or child (or (from 5 December 2005) civil partner)

• notify the taxpayer in writing that relief is not due for the payments and why such relief is not due and
• issue leaflet IR93 to both parties if they have not already been sent one with the form 41(Sep) within the past three months or
• if the leaflet has already been sent, draw the payer's attention to it for information regarding arrangements which do not qualify for relief.

At a later stage of a separation you may be told that voluntary payments have been replaced by payments under a court order, legally binding written agreement or Child Support Agency assessment. In this event the payments will normally be dealt with under the New Rules, see Re1110 - Re1119.