Children and Family Relationships Bill, 2015-Making Parenting Orders Work

Part 9 deals with making parenting orders work.

Head 62: Definitions

This Head provides definitions for the purposes of the Part. The aim of the Part is to provide a route to enforcing orders relating to parenting, particularly custody and access orders.

Head 63: Enforcement orders

The policy intention of this and related Heads are to allow for enforcement of access and of shared custody orders. There is a significant level of non-compliance with access and shared custody orders, and under the law as it stands, the remedy is most likely to be to find the non-compliant party in contempt of court. However, judges are understandably unwilling to go straight to contempt proceedings. This power conferred on the court here is to allow it to intervene, on application by the party whose rights have been breached (subhead (1)), by ordering any of a range of measures in an enforcement order, including that the respondent must allow the applicant compensatory access time, or must lodge a security with the court, or reimburse the applicant for expenses incurred in attempting to exercise custody or access; the court is also given a wide discretion in the directions it may give to the applicant and respondent, and may vary or discharge any custody or access order (subhead (2)). Subhead (3) specifies that the discretion of the court in subhead (2) includes the power to order the parties to engage, together or separately, in a parenting programme or in counselling or mediation insofar as that relates specifically to parenting. Subhead (4) allows the court to refuse to make an order where it considers the denial of custody or access was reasonable, but also allows it to make the enforcement order it considers reasonable – this will allow it to vary or discharge custody / access orders if it considers it appropriate in the circumstances. Subhead (5) allows a parent or guardian to apply for reimbursement of expenses in relation to the failure, without reasonable notice, by the other parent or guardian to exercise his or her custody / access rights. This might arise, for example, if the applicant incurs transport or child-minding costs due to the respondent’s failure. Subhead (6) clarifies that this provision does not affect the existing law on contempt of court. 107

Head 64: Supplementary enforcement orders where enforcement orders are breached

This Head gives the courts discretion to make supplementary orders where an enforcement order is itself breached (subhead (1)), with additional remedies including fining the respondent, requiring the respondent to undertake community service, or, in extreme cases and subject to the additional provisions of subhead (4) and (5), 108 directing a member of An Garda Síochána to assist in enforcing access in accordance with Head 66 (subhead (2)). The provisions of the Criminal Justice (Community Service) Act 1983 apply to any community service order under subhead (2)(b) as though it was an order under that Act.

Head 65: Power of court to vary or terminate custody or access enforcement order

This Head gives the court power to change an enforcement order or terminate the order or a part of it (subhead (1)), and to vary or terminate an enforcement order in the same proceedings that it varies or terminates a custody order or an access order in relation to which the enforcement order was made (subhead (2)).

Head 66: Assistance by an Garda Síochána pursuant to enforcement order

This Head confers on An Garda Síochána the function of assisting in enforcing access or custody, where a supplementary enforcement order under Head 64 specifically authorises them to do so (subhead (1)). It is envisaged that this remedy be available as a last resort where the access and custody rights of the applicant are persistently breached and the court considers that this is the only effective enforcement mechanism. Subhead (2) allows a Garda to apply for a court order authorising the Garda to enter the premises where s/he believes the child to be, in order to remove the child and bring her or him to the applicant. Subhead (3) gives the Garda some discretion to determine whether to bring the child to the applicant, where s/he believes it is not in 111 the child’s best interests in the circumstances – these could be circumstances relating to the applicant or to the child, A Garda who has obtained an order for entry under subhead (2) may obtain the necessary assistance and may use reasonable force in effecting entry, should that be necessary (subhead (4)), but unless specifically authorised to do so, only between 8 a.m. and 9 p.m. (subhead (5)). No-one may take an action against An Garda Síochána and the person giving assistance in accordance with subhead (4), acting in good faith in accordance with the Head (subhead (6)).

Head 67: Report by an Garda Síochána

Where a Garda assists in enforcing custody or access in compliance with Head 66, s/he is to prepare a written report, in a manner to be prescribed by regulations, of what happened in the course of providing assistance. If s/he decides to exercise the discretion conferred by Head 66(3) not to bring the child to the applicant, must explain why (subhead (1)). The report must be made available to the applicant, the respondent and the court (subhead (2)). Subhead (3) allows the report to be entered in evidence in any subsequent proceedings without proof of the signature or official character of the Garda making the report. Subhead (4) provides that the Garda is not required to attend proceedings relating to the enforcement order unless the court orders his or her presence, of its own motion or on application by the applicant or the respondent. Except where the account in the report is specifically in dispute, it is intended that the court will rely on the written report without requiring the Garda to be available to give evidence.

The Family Mediation Service

The Family Mediation Service is a free service run by the Family Support Agency.

It is a completely free service and provides mediation services to couples, both married and unmarried, who are separating or whose relationship has broken down.

Professional, trained mediators help the couple to negotiate their own agreement to deal with

  • The family home and property issues
  • The children
  • Pensions and
  • Any other issues that arise in a separation.

The accredited and professional mediator maintains a neutral position and does not take sides but seeks to help the couple to reach agreement for separation.

In order to avail of the service it is important that both parties are agreeable and contact the mediation service separately.

Mediation sessions

Generally a session will last for around 1 hour and there will be 3 to 6 sessions in the mediation. Ultimately a good outcome is to arrive at a written agreement concerning all of the issues which can then be brought to a solicitor who can draft a legally binding separation agreement.

Mediation is completely confidential and there are a number of full time and part time offices around the country.

Take a look at the legal aid board site to see where these are located and learn more about the mediation service.

 

The Family Mediation service publish a number of very helpful booklets which you can access on their website above which deal with many of the important issues of separation such as

  • Financial matters
  • Children
  • Parenting plans.

It is a statutory requirement (Judicial Separation and Family Law Reform Act, 1989, sect. 5 and 6) for a solicitor to advise couples who are separating and who wish to apply for a Judicial Separation to

  1. Discuss reconciliation and
  2. Discuss mediation and
  3. Coming to a negotiated settlement by way of a separation agreement or deed.

The Family Mediation Service, as well as being professional and free, can have the additional benefit of reducing your legal costs when it does come to having a separation agreement drafted or when seeking a Judicial Separation or divorce.

Being able to present to a solicitor with many of the major issues agreed can make life easier and more cost effective for all concerned.
By Terry Gorry
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Access, Custody and Guardianship of Children in Ireland-The Essentials

The Guardianship of Infants act,1964 is the principal piece of legislation governing the issues of access, custody and guardianship in Ireland.

Any guardian of a child can apply to Court to seek an order concerning these issues and the Court will be primarily guided by what is in the best interests of the child. An unmarried natural father can bring an application under the Guardianship of Infants Act, 1964 regarding custody and/or access.

Who is the guardian of the child?

The natural mother is automatically a guardian under Irish law; the father is also automatically a guardian if he is married to the mother at the time of birth or becomes a guardian on subsequent marriage after the birth.

However the natural father of the child, who is not married to the mother at the birth of the child, can apply to become a guardian under the Guardianship of Infants act,1964. (He can also become a guardian with the joint guardian with the consent and co-operation of the mother).

It is important to note that the unmarried father has the right to apply to become a guardian but not the right to be a guardian automatically.

The welfare of the child

Any application to Court in respect of guardianship, access or custody will be considered be having a look at what is in the best interests of the child. This welfare of child concept is necessitated by the 1964 act and welfare is looked at under a number of headings such as

  • The moral welfare (conduct of the parents is relevant only insofar as it affects the welfare of the child)
  • Religious welfare
  • Intellectual welfare (includes educational needs of the child)
  • Physical
  • Social (the capacity of the child to mix with and become part of the society in which they will be brought up)
  • Emotional
  • Capacity of the parent to care for the child
  • Wishes of the child but this will depend ont the age and level of understanding of the child and a Court is under no obligation to agree to the demands of a child in this respect
  • Keeping siblings together
  • Keeping siblings with the marital father where the mother is deceased.

Where there is a conflict between the welfare of the child and other considerations, the welfare of the child takes precedence.

Guardianship of children

Guardianship in Irish law is recognised as the duties and rights of the parent to make decisions in relation to the child’s upbringing, specifically in relation to education, religion and general global care/rearing, and decisions which must be made during the child’s lifetime relating to general lifestyle and development. It includes a duty to maintain and properly care for the child.

Who can be a guardian?

The natural mother is automatically  a guardian of the child.

Whether the father is a guardian or not will depend on his relationship with the mother-if they are married he is automatically a guardian.

If they are not married he is not a guardian.

However he can become a guardian in two ways:

  1. he can apply to Court under section 6A of the Guardianship of Infants Act, 1964 to be made a guardian or
  2. a statutory declaration, with the mother’s agreement, in accordance with the Children Act, 1997 (Section 4)

The Guardianship of Infants Act, 1964 also allows the father and mother to appoint testamentary guardians by will or deed to act as guardians in their place after death.

A guardian then has rights to custody of the child, subject to any court order, will, or deed, and can act on behalf of the child in relation to property of the child, legal proceedings and so on.


Unmarried fathers

Unmarried fathers are excluded from being automatic guardians of the child, unlike the natural mother. The Guardianship of Infants Act, 1964 gives the unmarried father the right to apply to Court to be appointed a guardian. This application will be judged on the circumstances of the case and the welfare of the child.

Custody

Custody is the right of a parent to exercise day to day care and control (physical) of the child. The married parents are automatically joint guardians and custodians of the child.

In the unmarried family, the mother is automatically the child’s guardian and sole custodian.

An unmarried father can apply for custody under the Guardianship of Infants Act, 1964 (Section 11(4)), even if he is not a guardian at the time.

The Children Act, 1997 makes provision for the father and mother to be appointed joint custodians. However, the reality is that the more likely scenario will be that one parent will have sole custody, generally the mother, and the other parent will have access. (Strictly speaking, the right to access is a right of the child in accordance with the UN Convention n the Rights of the Child)

In situations where married parents separate and sole custody is awarded to one parent, this does not mean that the non custodial parent is deprived of other rights that accrue as a guardian. The non custodial parent must still be consulted in relation to all aspects of the child’s welfare.

How to Apply for Custody

The application for custody is normally brought in the District Court and the procedure is the same as applying for maintenance or access (see further down the page for the procedure and the relevant form).

Basically, you use form 58.17 and serve it on the other party at least 14 days before the Court hearing date, unless the application has been certified by the District Court office as urgent. In this case, two days notice is required.

You then file the notice and a statutory declaration of service at least 2 days before the Court hearing date.

family-law-access

Access

The law considers that the right to access to a parent is in fact a right of the child; this is why an access to a child order will be decided by the Court whilst looking at what is in the best interests of the child.

Generally though it is very unusual for a Court to not grant a parent access to their child and may, where necessary, make a supervised access order to allow to this to happen where the circumstances demand it.

The Children Act 1997 gives rights of relatives to apply for access to a child. This includes grandparents and the extended family of the child as well as those who have acted in loco parentis to the child.

Access orders are not final and can be varied/changed on application to Court.

How to Obtain Access

The vast majority of access applications are made in the District Court.

The application involves filling out the appropriate form (form 58.17) and lodging it in the District Court office. They will issue the form and insert a date in the Notice for the Court hearing for your application.

You must serve this Notice of the application on the other party (the Respondent) at least 14 days before the Court date. However, if the application is certified as urgent by the District Court office, 2 days’ notice will be sufficient.

The Notice and a Statutory Declaration of Service (forms 10.1/10.2/10.3) must be lodged in the Court office at least 2 days before the Court hearing date.

You then attend Court to make your application. You may have instructed a solicitor to assist you or you can apply yourself if you feel comfortable doing so.

You may also be entitled to legal aid through the District Court Family Law Legal Aid scheme. If you are approved, you will have to make a small contribution to the cost of the solicitor. The solicitor will be paid directly by the Legal Aid Board a set fee set down in the family law scheme.


By Terry Gorry
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Court Orders on Separation and Divorce

The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).

court-orders-divorce

The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.

The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.

An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.

Custody and access orders

Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.

It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.

Financial Provision on Marriage Breakdown

Financial provision can be made on the breakdown of a marriage under the following broad headings:

  • maintenance

  • property

  • succession.

Maintenance

The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.

This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.

Three types of maintenance order can be made under the Family Law Act, 1995:

  • a periodical payments order

  • a secured periodical payments order

  • a lump sum payment order.

The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.

All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…

Learn more about maintenance orders here.

Property-The Family Home

The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.

When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.

Property Adjustment Orders and Preliminary Orders

Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.

Courts have the power to make the following orders on separation or divorce :

I.    Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)

II   Property adjustment orders

1. The property to be transferred from one spouse to another or to another person

2. The reduction or extinguishment of any interest that a spouse has in the property

3. The settlement of the property to either spouse

However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.

The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.

All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.

Property adjustment orders can also be made in respect of all types of property, not just the family home.

Succession rights

A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate.

However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements.

This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.

However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.

Pension adjustment orders

The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.

However if you remarry you are prevented from applying for such an order.

It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.

If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.

If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.

The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.

Factors the Court Considers When Making Orders on Divorce and Judicial Separation

The factors the Court will consider when making these orders are

I. The actual and potential financial resources of both spouses

II. The actual and likely financial needs, obligations and responsibilities of both spouses

III. The standard of living of the spouses before the separation or divorce

IV. The length of marriage and the ages of the spouses

V. Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family

VI. Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage

VII. Statutory entitlements-any benefit or income either spouse is entitled to in law

VIII. Conduct-this is not a hugely important factor unless the conduct is egregious

IX. The accommodation needs of both spouses

X. Any separation agreement entered into by the spouses and which is still in effect

All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.

It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.

Procedure in the Circuit Court and High Court

The Circuit Court and the High Court have jurisdiction to hear

  • applications for divorce

  • decrees of judicial separation

  • applications for orders under the Family Law Act, 1995

  • applications for decrees of nullity.

Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).

Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.

Discovery

Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.
By Terry Gorry
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Judicial Separation-The Grounds for Judicial Separation and the Difference from Divorce

There are now two ways to legally end a marriage in Ireland-divorce and judicial separation. The Judicial Separation and Family Law Reform Act 1989 gives the Court wide discretion to make orders in relation to the granting of a decree of judicial separation.

One significant difference between divorce and judicial separation in Ireland is the element of “fault”-there is no requirement to show fault on behalf of one of the parties in a divorce decree but there may be such a requirement to obtain a decree of judicial separation, depending on which of the 6 grounds you choose.

Other differences between divorce and judicial separation are:

  1.  a divorce allows both parties to remarry, while judicial separation does not
  2. the arrangements between the parties in a judicial separation may be reviewed and changed when a Judge is being asked to grant a divorce.

The grounds for judicial separation

The Judicial Separation and Family Law Reform Act 1989 provides 6 grounds for the granting of judicial separation by either the Circuit Court or High Court.

1.  Adultery

Adultery is a ground for judicial separation and while it can be difficult to prove, it can be inferred from the circumstances.

2.  Behaviour

The behaviour of one of the parties which renders it impossible for the other party to live with the offending party is also a ground. Physical and mental cruelty provides the basis of this reason for judicial separation.

3.  Desertion

Desertion by one of the parties is another ground but it must be for a period of at least one year and continuous. Constructive desertion, where one party deserts because of the bad behaviour of the other party, is included in this ground for a decree.

4.  The parties agree and have lived apart for at least 1 year

The living apart must be continuous and the reasons for doing so are irrelevant provided both parties agree to judicial separation.

5.  Normal marital relationship has not existed for at least 1 year

Where a normal marital relationship has not existed for at least 1 year and regardless of the presence of fault, a Court may grant a decree under this heading. There is no definition of what a ‘normal marital relationship’ in the legislation.

Nevertheless, this is the most common basis for the grant of a decree of judicial separation.

6.  The parties have lived apart for at least 3 years

Under this ground there is no need to show fault-this is a useful ground where there is no fault and the other party will not consent.

Note: the advantage of applying for a decree of judicial separation on the grounds of adultery or cruelty (numbers 1 and 2 above) is the applicant spouse does not have to wait 1 year to issue proceedings.

Welfare of children in Judicial Separation

Once one of the six grounds for judicial separation outlined above is proven on the balance of probabilities a court will grant a decree of judicial separation PROVIDED the welfare of any dependent children of the marriage has been provided for.

A dependent child is a child who has not reached the age of 18 or the age of 23 if in full time education.

Welfare is concerned with the religious, moral, intellectual, social and physical welfare of the dependent child.

3.—(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned.

(2) (a) Where there are, in respect of the spouses concerned, any dependent children of the family, the court shall not grant a decree of judicial separation unless the court—

(i) is satisfied that such provision has been made, or

(ii) intends by order upon the granting of the decree to make such provision,

for the welfare of those children as is proper in the circumstances.

(b) In this subsection—

“dependent children of the family” has the same meaning as it has for the purposes of Part II of this Act;

“welfare” comprises the religious and moral, intellectual, physical and social welfare of the children concerned.

(3) Upon the granting of a decree of judicial separation by the court, the court may, where appropriate, by order give such directions under section 11 of the Guardianship of Infants Act, 1964 , as it thinks proper regarding the welfare or custody of, or right of access to, an infant (being an infant within the meaning of that Act) as if an application had been made under that section.

Source: Section 3, Judicial Separation and Family Law Reform Act, 1989

Solicitors obligations

A solicitor involved in  judicial separation proceedings is obliged by law to discuss with his/her client the possibility of reconciliation and mediation and negotiation of a separation agreement satisfactory to both parties.

If the Court is satisfied that all of this has occurred it may grant a decree of judicial separation and once this is done the court may make further ancillary relief orders which we look at elsewhere on this site.

Judicial Separation and Separation Agreements

Separation agreements drawn up and agreed between parties and Judicial Separation are very different animals with one significant factor that you must be aware of..

Since a decision of the Supreme Court in 1998 in P.O’D v A.O’D a separation agreement agreed between 2 parties is a bar to the subsequent obtaining of a Judicial separation.

The hugely significant factor in this decision is that without a Judicial separation  you are not entitled to look for any of the large range of property and financial reliefs under the Family Law Act, 1995.

The reason for this is that the Supreme Court held that it would not be right to go behind the separation agreement freely entered into by two consenting adults by one of the parties seeking a Judicial separation which would have the effect of tearing up the separation negotiated and entered into freely by both parties.

However a separation agreement cannot act as an impediment to seeking relief in maintenance proceedings under the Family Law Act 1976 (Maintenance of Spouses and Children) nor can it prevent divorce proceedings from being instituted.

However any subsequent divorce proceedings will be heavily influenced by the separation agreement entered into by the parties.

The influence of the separation agreement will depend on

  • The circumstances surrounding the agreement

  • When the agreement was negotiated and executed.

By Terry Gorry
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Separation Agreements in Family Law in Ireland-The Facts You Should Know

Separation agreements in family law in Ireland are agreements drawn up by the parties to a broken down marriage who wish to avoid the Courts to resolve their differences.

Terms of separation agreements

Most separation agreements will deal with an agreement for the parties to live apart and further matters commonly covered will include access to children if any, maintenance, custody, division of property and any other relevant matters that the parties wish to commit to writing.

The agreement to live apart should contain a date when this will commence as this date will be important if either party wishes subsequently to obtain a divorce.

Non molestation

A common clause in separation agreements is a “non-molestation clause” which simply prevents the disturbance or annoyance of one party by the other after execution of the agreement.

Custody and guardianship

The issues of access and custody where there are children under 18 are important matters to cover and agreement may have been agreed between the parties about sole or joint custody.

Matters in this section may also deal with bringing a child abroad and out of the jurisdiction and detailed arrangements for access.

Remember that even where parties separate both married parents remain joint guardians of children under 18.

Property

Matrimonial property is obviously a big issue to be dealt with in separation agreements. Common situations include one of the parties staying in the family home, perhaps until children reach the age of 18, and then the home being sold and proceeds split.

An alternative is for one party to buy out the other party’s interest in the property and become the sole owner on payment of an agreed lump sum.

Maintenance

A separation agreement should make provision for the payment of maintenance by one spouse to another and this will normally be the subject of extensive negotiations.

The existence of agreement in relation to maintenance does not prevent a spouse from going to the District court to seek a maintenance order under the Family law act, 1976. However the Court will consider the existence of the separation agreement terms which deal with maintenance in any order it might make.

Other matters that might be considered for inclusion in any separation agreement include

  • Taxation-the receipt of maintenance by the custodial parent is taxable so the question of election to be taxed as a single person or jointly might be considered. The receipt of maintenance designated for the support of children is not taxable though.

  • Succession rights-the parties may renounce their succession rights to their share of the estate of the other party under the Succession Act 1965

  • Pensions-pensions in a separation agreement can be a complex issue and you would be well advised to take taxation advice if the pension is substantial

  • An indemnity-most agreements will have a clause which indemnifies each party against any debts subsequently incurred by each party.

The separation agreement can be made a rule of Court-the advantage of this is that any failure to uphold the agreement can be remedied by going into Court for a contempt of Court ruling. In addition any maintenance payments can be made through the District Court clerk which will afford a greater degree of security when it comes to enforcing any failure to pay.

Separation Agreements and Future Legal Proceedings

As a separation agreement is a binding contract, subsequent judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 are not possible.

This means that a spouse is precluded from seeking the extensive range of financial and property reliefs available under the Family Law Act, 1995. A pension adjustment order is also out of the question as this is granted under the Family Law Act, 1995.

Separation Agreements and Divorce Proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law  (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties).

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

  1. The length of time since agreement was reached;

  2. The financial background pertaining to the Consent Agreement;

  3. The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.

Full and Final Settlement in Separation Agreements

Does a ‘full and final settlement’ in a deed of separation or on Consent Terms in a judicial separation actually mean what it says? In other words, can either party get a ‘second bit of the cherry’ at the time of divorce?

Firstly, the Courts are obliged under section 20(3) of the Family Law (Divorce) Act, 1996 to ‘have regard’ for any separation agreement entered into:

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

However, this does not prevent Courts from making further additional provision to ensure ‘proper provision’ for spouses and dependent children as has been seen in various decided cases and the Supreme Court has found that Courts have ‘very broad discretion’ in these cases.

Section 14 of the Family Law (Divorce) Act, 1996 allows for property adjustment orders to set aside the terms of previous agreements to ensure proper provision at the time of divorce.

Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:

  1. Courts will have regard to prior agreements and the circumstances of that time;

  2. Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation;

  3. The court will consider the financial resources of both parties at the time of divorce;

  4. More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;

  5. A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;

  6. Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;

  7. Prior settlements are more likely to be revisited where proper disclosure was not made at the time

  8. The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight.

All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.


By Terry Gorry
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