Many people require subsidized legal aid for family law problems and there are two panels of solicitors maintained by the Civil Legal Aid board for family law matters.
One panel deals with divorce and separation cases and the other panel, the District Court panel of solicitor’s scheme, deals with maintenance, domestic violence, custody, guardianship and access.
The District Court scheme requires that you make an application to your local family law centre to bring proceedings in the District Court under one of the headings of guardianship, access, domestic violence, maintenance and custody. If you are deemed to be eligible (income under €18,000 per annum and your case must have merit) then the family law centre will issue you with a legal aid certificate.
Once you are granted this legal aid certificate you will normally be given the list of solicitors on the family law District Court panel and asked to choose one to act for you.
You then give part III and part IV of the legal aid certificate to the solicitor and this will set out what legal action is authorised on your behalf. Your solicitor will then act on your behalf and institute the proceedings that he/she is authorised for.
Financial eligibility for civil legal aid
To qualify for civil legal aid your annual income must be less than €18,000 and your capital resources (such as property) must be less than €320,000. You must make a contribution to the cost of this service and this will range from €10 for legal advice and €50 for legal aid.
Merit of your case
Your case must have merit also and this is a matter for the family law centre to decide.
Your first step in this process is to call to your local law centre and make an application. Here is a link to a list of these law centres listed by county.
Terry Gorry & Co. Solicitors is on the panel of solicitors for the District Court scheme and is eligible to provide services in Dublin, Kildare, Meath and Westmeath.
However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.
Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.
However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).
Before the Status of Children Act, 1987 a non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.
Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.
A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.
Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.
All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.
The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.
have been cohabitants for not less than 12 consecutive months occurring after the date on which this subsection comes into operation, which shall include a period, occurring at any time after the birth of the child, of not less than three consecutive months during which both the mother and father have lived with the child.
Custody and Access
Custody is the date to day physical care and control of the child.
Access is the right to see and communicate with the child.
As outlined above, the natural mother has a constitutional right to the custody of the child but the natural father does not in a non-marital family.
However, the father can apply to Court for a custody and access order under the Guardianship of Infants Act, 1964, section 11(4).
The most common applications by fathers is for an access order but he may also seek custody where the child is not being looked after by the mother.
An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976)
The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.
Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.
This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.
It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.
The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases.
Where parentage is in question, Courts can order the taking of blood tests or DNA tests.
The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.
The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees.
An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.
Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.
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.
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.
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.
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  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
The length of time since agreement was reached;
The financial background pertaining to the Consent Agreement;
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?
(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.
Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:
Courts will have regard to prior agreements and the circumstances of that time;
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;
The court will consider the financial resources of both parties at the time of divorce;
More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed;
A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation;
Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement;
Prior settlements are more likely to be revisited where proper disclosure was not made at the time
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.
Important Supreme Court G V G case
The Supreme Court made a significant ruling in 2012 when it
decided the “G v G” case. This case looked at the question of how much weight or
regard should be given to a previously agreed deed of separation when it comes
to divorce time.
The Supreme Court made the following determinations:
A deed of separation should be given significant
weight when it comes to making provision for the parties at a later divorce
hearing, especially when the deed of separation contains a “full and final
settlement clause”; exceptional circumstances would be needed for a court to
upset the separation agreement freely entered into-for example, substantial
change such as the illness of one of the parties
A clean break is a legitimate aspiration in
Irish law, but it is not a guaranteed right and “proper provision” may see a
change in circumstances being reflected in the final divorce ruling provisions
Inherited assets should not be seen as assets
obtained by both parties in the marriage
“Second bite of the cherry” cases have become more difficult
as a consequence of this Supreme Court decision and parties can enter into deeds
of separation which contain full and final settlement clauses with greater
confidence that they will not be overturned later on.