Categories
Divorce

Getting a divorce in Ireland-the steps you must take

judicial-separation

If your marriage has broken down irretrievably then divorce is one of the options that may be open to you.

Firstly, you need to have been living separate and apart from your spouse for two of the last three years.

Then, you should consider trying mediation and getting legal advice. 

If you still decide that you want a divorce the next step is for the applicant to get the necessary papers in order. Your solicitor will do this for you if you engage the services of a solicitor but you can do it yourself if you choose.

This will be a more straightforward matter if the other party is agreeable to the divorce. If the matter is contested then you should consider instructing a solicitor to act on your behalf and look after all the paperwork and communication with the other party and his/her solicitor.

The applicant will need

  • family law civil bill, 
  • affidavit of means, 
  • affidavit of welfare, 
  • declaration from solicitor about the benefit of mediation

The legal proceedings will need to be commenced by issuing the family law civil bill out of the Circuit Court office. This involves sending 3 copies of documents to the court office for issue.

The next step is to serve the other party (respondent) by registered post or in person. You will need an affidavit of service after you have properly served the other party.

Then, the respondent enters an appearance.

If the respondent agrees to the divorce he/she sends a letter to the applicant confirming agreement to divorce on agreed terms. He/she must also send an affidavit of means and welfare.

If the respondent disagrees he/she must serve a defence and affidavit of means and welfare and file it in the court office. The respondent must also complete an affidavit of service.

If there are agreed terms between the parties about the divorce then you will need to file a motion to obtain a date to have a judge rule the divorce on the agreed terms.

If there is disagreement and it is a contested divorce a case progression hearing before the county registrar will be needed to identify the issues and check all the paperwork is in order before getting into the judge’s list.

If there is no response at all from the respondent the applicant can proceed to obtain a divorce in his/her absence.

Then, the parties will need to attend the court hearing. The Judge will ask the applicant, and sometimes the respondent, to give evidence. The Judge must ensure proper provision for dependent children and all other matters are dealt with to the Judge’s satisfaction. If so, the divorce will be granted.

You will then receive the court order of divorce from the court office.

Categories
Divorce Separation

Pension adjustment orders on divorce and separation-what you should know

The benefits payable arising from a pension scheme can only be paid in accordance with the terms of the scheme. This means that an individual member cannot change the terms or pay-outs under the scheme, even if the trustees agreed (which will not be the case).

Therefore, a deed of separation between separating spouses that purports to make changes to the pension scheme will simply not work. The only way that a scheme can be changed is with a pension adjustment order (PAO) granted by a Court.

This is done pursuant to section 12 of the Family Law Act, 1995.  

Pension adjustment orders

If the parties to a failed marriage agree terms on which they will divorce they will need a pension adjustment order from the Court to change the retirement or contingent benefit to which one of the parties is entitled under the pension.

The powers of a Court in this regard are contained in section 12 of the Family Law Act, 1995 and section 17 of the Family Law (Divorce) Act, 1996.

Pension adjustment orders provide a further mechanism by which a court can try to ensure proper provision is made for the spouses and dependent children in a divorce.

A pension can be viewed as an asset of either party and can be divided or transferred from one party to the other. It can also be used as a way of ensuring maintenance is paid by one party to the other.

The power to make a pension adjustment order is only available after the granting of a decree of judicial separation or divorce. A separation agreement cannot make any change to a pension.

Any court application will require the trustees to be put on notice. If they are, and their agreement to an order is obtained in advance, the costs of having trustees attend court will be avoided.

The recommended practice, therefore, is for the parties to agree the form of pension adjustment order with the trustees of the pension. The trustees will give a letter approving the draft PAO which will then be handed into Court when the application is made. A court will require details of the pension scheme and the trustees of the scheme.

Different types of pension scheme

There are two broad categories of pension scheme:

  1. Occupational pension schemes; and
  2. Self-employed schemes

Occupational pension schemes

Occupational pension schemes can be broken down into

  1. Defined contribution schemes and
  2. Defined benefit schemes

Where financial relief is being sought pension details should be provided in an affidavit of means which should set out the nature of the scheme, benefits payable, normal pensionable age, and period of reckonable service.

Defined contribution scheme

A defined contribution scheme is one where the employer and/or employee pay a percentage of the employee’s salary into the scheme. This is then invested by the trustees.

Self-employed schemes generally fall into this category.

Defined benefit scheme

This type of scheme where a specific level of pension is supposed to be paid to the employee on retirement, usually a percentage of the employee’s salary. The pension scheme operated by the Civil Service would be an example of such a scheme.

The pension adjustment

There are two aspects to pension adjustment:

  1. Ear-marking and
  2. Pension splitting

Ear-marking means a portion of the pension benefit should be paid to the other spouse.

Pension splitting means that a percentage of the retirement benefit of a pension is used to provide a separate pension for the other spouse. This could be provided in the same pension scheme, or a separate one.  

A period and percentage

A pension adjustment order in respect of a retirement benefit will specify two things, at least:

  1. A period and
  2. A percentage

The period is the period of reckonable service of the member prior to the divorce or judicial separation. This should state the commencement date and cessation date.

The percentage will be the percentage of the mount of the benefit to be paid to the other spouse on foot of the order. This can run from .001 per cent to 100 %.

It is worth noting that a pension adjustment order can only be made in favour of a spouse or a dependant but cannot be made in favour of a spouse who has remarried. An application cannot be made for a pension adjustment order in respect of a contingent benefit after 1 year has passed after the divorce or judicial separation.

Nominal pension adjustment orders

The law does not make provision for a “nil” order so the usual thing is a nominal pension adjustment order for a period of one day, at the beginning of the period of reckonable service, a percentage of 0.01 per cent or less.

Pension splitting

Where an order is made regarding a retirement benefit payment could commence immediately if the retirement benefit had already commenced being paid to the member spouse. This would apply where the member spouse had retired.

Where the member spouse has not retired, and the payment of retirement benefit has not commenced, the applicant spouse has 2 options:

  1. She may leave it in the pension scheme, and it will become payable when the member spouse retires
  2. The applicant spouse can have an amount of money transferred from the scheme, which would equal the value of the designated benefit

A spouse who has obtained a pension adjustment order in respect of a retirement benefit may apply to the trustees for pension splitting at any time from the date of the order to the date of commencement of the payment of the designated benefit. The trustees must value the percentage of the retirement benefit for payment to the applicant spouse.

Once this is ascertained the trustees can

  1. Hold the transfer amount within the scheme for the benefit of the applicant spouse or
  2. Pay the transfer amount to another pension scheme or approved arrangement-for example, a buyout bond

Any applications to court in respect of a pension adjustment order, or any other order regarding a pension, obliges notice to the trustees of the scheme.

Once an order is made by court in respect of a pension the order should be served on the trustees of the pension scheme.

Conclusion

Pension adjustment orders can be a complex, complicated area of divorce or marriage breakdown. It is often the case that lay litigants can manage to obtain a divorce without the aid of legal assistance but require it for the subsequent pension adjustment order applications.

Categories
Divorce Separation

Mediation Agreements in Family Law

family-mediation-service

Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.

Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.

The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states

11. (1) The parties shall determine—

(a) if and when a mediation settlement has been reached between them, and

(b) whether the mediation settlement is to be enforceable between them.

(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

Mediated agreements musgt be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3), where

(a) the mediation settlement—

(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),

(ii) is not based on full and mutual disclosure of assets, or

(iii) is otherwise contrary to public policy,

or

(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

The Mediation Act 2017 and solicitors

Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:

Practising solicitor and mediation

14. (1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act 1996 .

Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.

The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:

 “We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”
In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.

Categories
Divorce

Living Apart for Divorce Time Reduced to 2 Years

diy divorce

The law dealing with divorce in Ireland is to change from 1st December 2019.

Part 1 and part 2 of the Family Law Act 2019 will come into effect on 1st December 2019.

The Family Law act 2019 reduces the time that the parties must be living apart in order to obtain a divorce. The minimum living apart period will be 2 years out of the last 3 years; it was necessary to live apart for 4 out of the previous 5 years.

The act also gives statutory certainty to what it means to be living apart from the perspective of getting a judicial separation or divorce.

Part 3 of the act, which is not to commence yet, will deal with the effects of a no-deal Brexit, if it occurs, and will deal with the impact of a no-deal Brexit on the recognition of UK divorces and judicial separations in Ireland.

You can read the Family Law Act 2019 here.

Categories
Non Marital Family

Cohabiting Couples in Ireland-Some Legal Essentials

cohabitants ireland

In Ireland, since the introduction of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, certain cohabiting individuals have rights as against their cohabiting partner. These rights include the right to maintenance and financial provision from the partner.

What is a cohabitant and qualifying cohabitant? A cohabitant is defined in section 172(1) as follows:

172.— (1) For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

A qualifying cohabitant is defined in the legislation in section 172 (5) as:

(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

(b) of 5 years or more, in any other case.

If there is any dispute about a person being a cohabitant or qualifying cohabitant a Court will look at the surrounding facts and circumstances such as

  • The contributions of each person in looking after the home
  • The earning capacity of each partner, and financial dependence of either partner on the other
  • The degree to which they presented themselves to others as a couple
  • Whether there are children

What orders can a Court make?

If a Court is satisfied that an individual was part of a cohabiting couple it can make a wide range of orders such as dealing with

  1. Property adjustment
  2. Maintenance
  3. Pensions
  4. The estate of the partner

Time limits for cohabiting partners

If a person wishes to bring a claim to Court on foot of being part of a cohabiting couple relationship he/she has 2 years from the termination of the relationship to do so.

Two years is not a long time within which to take action if your relationship breaks down, therefore you would be well advised to consider getting legal advice before you run out of time.

Categories
Children and Family Relationships Act 2015 Non Marital Family

Changing a Child’s Surname in Ireland-What You Need to Know

change childs name ireland

If you want to change a child’s surname there is three ways this can happen:

  1. In the Birth Register
  2. By Deed Poll
  3. By Common Usage

Birth Register-Re-Registration

If the child has been registered in the mother’s name alone the birth can be re-registered in the Register of Births to include the father’s name. This can be done in the following ways:

  • Both parents register the birth together using form CRA9
  • The mother can name the father and bring along an acknowledgement from the father that he is the father
  • The father can bring along a declaration form acknowledging he is the father and a declaration from the mother confirming he is the father
  • The mother and father can make a written request on production of a court order which names the father.

The Registrar in your local office or the hospital will have the necessary forms.

Birth Register-Changing the Child’s Name

If the parents marry, and they both agree, the surname can be changed in the Birth Register. Both names, however, must have already been on the Birth Register.

Changing Child’s Name by Deed Poll

This will not change the child’s name on the Birth Register. Changing by Deed Poll involves presenting the Deed Poll and the child’s birth certificate in the deed poll section of Central Office of the High Court.

Children between the ages of 14 and 18 can sign a Deed Poll themselves, provided they have consent of both parents. Children under 14 will need to have the Deed Poll executed (signed) on their behalf by a guardian with the consent of the other guardian (if any).

Generally, the father will need to agree to the change of name, and he will have to sign a form confirming agreement.

If the father’s consent is not available all is not lost. The mother will have to swear a grounding affidavit.

This grounding affidavit of the mother must set out the reasons why the change is being sought, the father’s last address (if known), confirmation that the parents were or were not married, whether they lived together as a family unit, why consent is not available, the last date of contact with the father, and whether the mother is sole guardian or not.

If the father’s name does not appear on the child’s birth certificate the mother will have to swear a supplemental affidavit confirming there are no courts orders in place in relation to guardianship, access, custody or maintenance and setting out what role, if any, the father has in the child’s life.

The deed poll will have to be printed on deed paper and it will state that the mother wishes that the child be called by his/her new surname from now on.

The documents that need to be submitted to the Deed Poll section of Central Office of the High Court will be

  • Birth certificate
  • Deed poll
  • Affidavit of witness
  • Grounding affidavit of mother that father is not consenting
  • Certified copies of birth cert, passport and court orders relating to guardianship

A solicitor can send in the necessary documents, but the Deed Poll Section will not accept the documents directly from the applicant by post.

You can then enrol the Deed Poll on a publicly accessible register in the Central Office of the High Court, although this is not necessary and you can use the Deed Poll and the child’s birth certificate together for administrative purposes. The National Driving Licence Service (NDLS), however, requires the deed poll be registered for the purposes of getting a driving licence.

Changing Child’s Name by Common Usage

You can change a name by common usage, and use this for official purposes. You need to show 2 pieces of formal identification in which you use this name.

If you are the sole guardian of a child you can do this without any difficulty; if you are joint guardian you will need the consent of the other guardian.

Conclusion

Changing a child’s surname is easier with the agreement of the other parent.

But it is not fatal if the other parent does not agree or cannot be contacted, and applications can be made to the Deed Poll section of Central Office of the High Court and the Senior Registrar will decide based on the circumstances of the case.

Categories
Divorce

DIY Divorce and Divorce by Consent-What You Should Know

diy divorce

Getting a divorce can be expensive, but it doesn’t have to be.

When I am asked by a potential client, “how much will a divorce cost?”, my answer is always the same.

It depends on how much agreement there is between the parties, how many times we will be required to go to Court, how much correspondence will be exchanged between the parties or their solicitors; in short, how much time will be involved.

Because time is money and going to Court to fight over various aspects of the break up is time consuming and, therefore, costly.

Disputes can be bitter, particularly when it comes to issues like custody, maintenance, property, access, pensions, etc.

Also, if there are other “new” partners involved it can be harder to keep things cool and civil.

In short, the more agreement there is between the parties the cheaper and less stressful it will be for all concerned.

Divorce by Consent

However, if the parties are agreed on all aspects of the divorce a divorce by consent can be obtained at a fraction of the cost of a contested divorce.

There are three circumstances where this can commonly occur:

  • where the parties have not been married a long time and there are no children and no jointly owned property and
  • where the parties have been married a long time but the children, if any, are grown up and the parties are agreed about going their separate ways and have arrangements agreed about joint assets/property/living arrangements and
  • where the parties simply recognise that the marriage is over and the smartest thing to do is not engage in bitter fights and to move on with their lives.

Circuit Court rules

The Circuit Court rules for family law are set out here on this page. So if you are seeking a judicial separation or divorce the steps to be taken are those set out here.

These rules also contain the rules for claiming a nullity, for claiming relief after foreign divorce or separation, for a declaration of marital status, for property adjustment orders and other family law orders are claimed.

Rules 34 and 35 provide for divorce to be granted by notice of motion in default of appearance and/or defence and for the granting of divorce on agreed terms.

Documents required

To get the ball rolling to obtain your divorce you will need some basic legal documents for Court.

These will include:

  1. a Family Law Civil Bill
  2. an Affidavit of Means
  3. an Affidavit of Welfare if there are dependent children.

These will need to be filed in Court and served on the other spouse.

You will then need

  1. Affidavits of service
  2. a Letter of Consent to the divorce
  3. a Notice to Pension Trustees, if there is a pension held by one or both parties
  4. a draft Pension Adjustment Order
  5. a Notice of Motion for Judgment
  6. an Affidavit of Service of Notice of Motion.

Once the Notice of Motion for Judgment is filed in the Court office a date for the hearing of that motion, and the granting of the divorce, will be granted.

Requirements for a divorce

You can read about the requirements in greater detail here.

In summary,

  1. you must have lived apart from each other for 4 of the last 5 years (this has now changed to living apart for 2 of the last 3 years)
  2. there is no reasonable prospect of reconciliation
  • there is proper provision made for the parties and the dependent children, if any.

Also, at least one of the spouses must have lived, or been domiciled, in Ireland in the 12 months prior to commencement of proceedings.

How quickly you will get your divorce will depend on where the proceedings are brought. The Dublin Circuit is the quickest as the Circuit Court sits every day to deal with divorce/judicial separation.

Outside of Dublin the sittings are much less frequent.

The proceedings can be brought where one of the parties resides or carries on a business, occupation, or profession.

You will need an original marriage certificate.

DIY Divorce

There are businesses which provide a service to allow you obtain a consent divorce.

It appears that they prepare the necessary documents and legal papers for you, based on your replies to their questions about your circumstances, and assuming both parties are agreeable to the divorce and its terms.

You then go to Court to file these papers and ultimately you go to Court to obtain your divorce.

If you and the other spouse are happy to do this, and there are no legal issues that you need advice on, this type of service might be suitable for you and what you want.

However, if you need legal advice, or would have concerns about going to Court yourself, or would have concerns about the procedures adopted in Court, or have any second thoughts about doing it yourself you can always instruct a solicitor to get professional advice and help.

Categories
Access

How to Enforce an Access or Custody Order

enforce-access-order

Have you obtained an access order from Court but you’re being denied access to the child?

You may need to take legal action to enforce your Court Order.

Section 60 of the Children and Family Relationships Act 2015 came into law in Ireland on January 18th, 2016. It amends the Guardianship of Infants Act, 1964 and provides as follows:

60. The Act of 1964 is amended by the insertion of the following sections after section 18:

“Enforcement orders

18A. (1) A guardian or parent of a child who has been—
(a) granted, by order of the court made under this Act, custody of, or access to, that child, and
(b) unreasonably denied such custody or access by another guardian or parent of that child,
may apply to the court for an order (‘enforcement order’) under this section.
(2) An application under subsection (1) shall be on notice to each guardian and parent of the child concerned.
(3) Subject to subsection (4), the court, on an application under subsection (1), shall make an enforcement order only where it is satisfied that—
(a) the applicant was unreasonably denied custody or access, as the case may be, by the other parent or guardian,
(b) it is in the best interests of the child to do so, and
(c) it is otherwise appropriate in the circumstances of the case to do so.
(4) An enforcement order may provide for one or more than one of the following:
(a) that the applicant be granted access to the child for such periods of time (being periods of time in addition to the periods of time during which the applicant has access to the child under the order referred to in subsection (1)(a)) that the court may consider necessary in order to allow any adverse effects on the relationship between the applicant and child caused by the denial referred to in subsection (1) to be addressed;
(b) that the respondent reimburse the applicant for any necessary expenses actually incurred by the applicant in attempting to exercise his or her right under the order referred to in subsection (1)(a) to custody of, or access to, the child;
(c) that the respondent or the applicant, or both, in order to ensure future compliance by them with the order referred to in subsection (1)(a) do one or more than one of the following:
(i) attend, either individually or together, a parenting programme;
(ii) avail, either individually or together, of family counselling;
(iii) receive information, in such manner and in such form as the court may determine on the possibility of their availing of mediation as a means of resolving disputes between them, that adversely affect their parenting capacities, between the applicant and respondent.
(5) An enforcement order shall not contain a provision referred to in subsection (4)(a) unless—
(a) the child, to the extent possible given his or her age and understanding, has had the opportunity to make his or her views on the matter known to the court, and
(b) the court has taken the views (if any) of the child referred to in paragraph (a) into account in making the order.
(6) Where the court, on an application under subsection (1), is of the opinion that the denial of custody or access was reasonable in the particular circumstances, it may—
(a) refuse to make an enforcement order, or
(b) make such enforcement order that it considers appropriate in the circumstances.
(7) This section is without prejudice to the law as to contempt of court.
(8) In this section—
‘family counselling’ means a service provided by a family counsellor in which he or she assists a person or persons—
(a) to resolve or better cope with personal and interpersonal problems or difficulties relating to, as the case may be, his, her or their marriage, civil partnership, cohabitation or parenting of a child, or
(b) to resolve or better cope with personal and interpersonal problems or difficulties, or issues relating to the care of children, where the person or persons is or are affected, or likely to be affected, by separation, divorce, the dissolution of a civil partnership or the ending of a relationship of cohabitation;
‘family counsellor’ means a person who has the requisite skill and judgment to provide family counselling;
‘parenting programme’ means a programme that is designed to assist (including by the provision of counselling services or the teaching of techniques to resolve disputes) a person in resolving problems that adversely affect the carrying out of his or her parenting responsibilities.

Person presumed to have seen order of court

18B. A person shall be deemed to have been given or shown a copy of an order made under this Act if that person was present at the sitting of the court at which such order was made.
Power of court to vary or terminate custody or access enforcement order
18C. (1) The court may, on application by a person granted by order of the court made under this Act, custody of, or access to a child, make an order varying or terminating an enforcement order or any part of that order.
(2) The court may, in proceedings to vary or terminate a custody or access order, in those proceedings vary or terminate an enforcement order that relates to that custody or access order.

Enforcement of custody or access order

18D. (1) Where a guardian or parent of a child—
(a) has been granted, by order of the court made under this Act, custody of, or access to that child, and
(b) fails, without reasonable notice to another guardian or parent of the child, to exercise the right concerned,
the other parent or guardian of the child may apply to the court for an order requiring the first-mentioned guardian or parent to reimburse to the second-mentioned guardian or parent any necessary expenses actually incurred by that guardian or parent as a result of the failure of the first-mentioned guardian or parent to exercise that right.
(2) In this section, and section 18A, ‘necessary expenses’ include the following:
(a) travel expenses;
(b) lost remuneration;
(c) any other expenses the court may allow.”.

What This Means

This means that you can make a formal complaint to the District Court Clerk who can then issue a breach of access summons (form 58.29 District Court, schedule C) to the party failing to abide by the access order.

It is presumed, also, that the non-compliant party has seen the Court order granting access if he/she was present at the Court sitting where the order was made.

The Court can then make an enforcement order if it decides that you were unreasonably denied access.

The Court can also make an order that you be reimbursed for necessary expenses-travel and lost remuneration- in attempting to avail of access, order that either or both parties attend a family counselling/parenting programme, or vary/terminate the access order.

In other words, the Court has wide discretion to make whatever order it sees fit, having regard to the welfare of the child.

The Court can also find the non-compliant party in contempt of Court and impose whatever penalty it sees fit.

Which Court?

Most orders for enforcement of custody or access will be pursued through the District Court but the Circuit Court may also be appropriate as the Court as apprehended by Part III of the Guardianship of Infants act, 1964 means:

‘ the court ’ means the Circuit Court or the District Court;

Categories
Access Children and Family Relationships Act 2015 Custody Maintenance Non Marital Family

Children and Family Relationships Act,2015-Changes Come Into Law,January,2016

children and family relationships act 2015

Parts of the Children and Family Relationships Act 2015 have come into law from 18th January, 2016.
These deal with
1. guardianship
2. custody
3. access.

Guardianship and Unmarried Fathers

Unmarried fathers will automatically become guardians of their children if they meet a cohabitation requirement.

An unmarried father who cohabits for 12 months with the child’s mother, including 3 months following a child’s birth, will automatically become the child’s guardian.

This provision is not retrospective, so guardianship will only be acquired automatically where the parents live together for at least 12 months after 18 January 2016.

Other Provisions

-A person other than a parent may become the child’s guardian, if married to or in a civil partnership with the child’s parent or if s/he has cohabited with the child’s parent for over 3 years and if the person has shared responsibility for child’s day-to-day care for more than 2 years.

It will also be possible for the court to appoint a person as a child’s guardian if that person has been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.

The powers of court-appointed guardians will generally be limited to decisions on day-to-day matters. The decisions reserved to full guardians are decisions on the child’s place of residence, his / her religious, spiritual and cultural upbringing and on medical matters, placement for or consent to adoption of a child and on the issue of a passport for a child.

It will be possible for a guardian parent to nominate a temporary guardian for his / her child through a court-based process if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities. The court will appoint the temporary guardian and will have the power to limit that person’s responsibilities, taking account of any limitations imposed by the parent.

-A parent’s spouse, civil partner or cohabitant of not less than 3 years will be able to apply for custody where s/he has shared parenting of the child for 2 years. A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

-Relatives of a child such as grandparents or those acting in loco parentis will be able to apply to have access to children more easily in the context of relationship breakdown.

-A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access.

-The court can impose enforcement orders where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, that his or her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.

-A child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage. The court will also be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.

-A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.

The relevant commencement order is the Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016.

The relevant act is the Children and Family Relationships Act, 2015.

Categories
Maintenance

Arrears of Maintenance-How to Pursue Them

arrears of maintenance

Have you a Court Order for maintenance but payments are not being made?

You can pursue the arrears of maintenance, and the creditor runs the risk of going to jail for contempt of court.

How do you pursue arrears?

Firstly, you must make an application for the issue of a summons. It shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:

(a) a copy of the antecedent order concerned;

(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;

(c) the amount of the arrears, and any amount provided by the antecedent order for costs and expenses which is unpaid;

(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.

The summons shall be in the Form 57.1 or Form 57.3 Schedule C. The summons shall, in addition to requiring the attendance of the defaulter at a sitting of the Court, also require the defaulter to complete, detach and lodge with the Clerk not less than one week before the date of the said sitting a statement of means and assets (in the Form 53.3 Schedule C, with the necessary modifications), which shall be attached to the summons.

Persons affected by garnishee order

A person served with an order who is unable to comply with the order may apply to the Court by notice of application in the Form 57.5 Schedule C to set aside or vary the order. A copy of the notice shall be served on the defaulter and on the applicant not later than seven days before the hearing of the application and the original notice shall be lodged with the Clerk not later than four days before the hearing of the application.

Warrant of detention

Where a failure by the maintenance debtor is treated as constituting contempt of court and an order of imprisonment is made, the warrant of detention shall be in accordance with Form 57.7 or 57.8Schedule C, as appropriate.

Application to purge contempt

  1. Where a person is imprisoned for contempt of court in accordance with section 9A of the Act of 1976:

(a) the person shall be notified in writing of the action required to purge his contempt;

(b) the Court may direct that, if the contempt has not previously been purged, the person shall be brought back before the Court at a place and time fixed by the Court.

Conclusion

The above is a summarised version only of what’s involved.

Even though you can follow this procedure yourself you might be better off engaging the services of a solicitor to ensure you are professionally represented and are not given the run around by somebody who does not hold Court Orders or their maintenance obligations in high regard.