Categories
Non Marital Family Parentage

Children and Family Relationships Bill, 2015-Testing to Establish Parentage

Part 6 of the Bill deals with testing to establish parentage.

parentage-paternity-family-law

Head 24: Definitions

This Head provides definitions for the purposes of the Part. It differs from the definitions in section 37 of the 1987 Act in referring specifically to DNA and DNA testing, as distinct from “blood tests”. This allows the omission of the definition of “excluded” as DNA tests should still give a high degree of certainty as to parentage even where some level of mutation naturally occurs. It also provides a definition of “non-intimate samples” because blood samples are not generally necessary for the purposes of DNA testing.

Head 25: Direction for the use of DNA tests

This Head mirrors section 38 of the 1987 Act with the modification that reference is made to DNA testing rather than solely to blood tests, and subhead (3) allows the court to decide whether to direct testing by means of blood sample or non-intimate sample, having regard to the overall circumstances and the best interests of the child.

Head 26: Consent to and taking of sample

The Head mirrors section 39 of the 1987 Act with the modification that it includes specific references to non-intimate samples and to DNA tests, and the reference in section 39(3)(b) to a medical practitioner having to certify that the taking of a blood sample will not be prejudicial to a person’s care and treatment is now omitted. This is because virtually all DNA samples will be non-intimate samples and taking such samples cannot prejudice a person’s care and treatment in any normal circumstances.

Head 27: DNA test and reports

This Head provides how DNA test results are to be reported to the court. It replicates section 40 of the 1987 Act with the modification that reference is made explicitly to DNA testing rather than “blood tests”, and to non-intimate samples.

Head 29: Failure to comply with direction on DNA tests

This Head allows the court to draw certain inferences where a person does not comply with a direction to undertake DNA testing. It replicates section 42 of the 1987 Act.
Head 30: Penalty for personation for DNA test purposes

Categories
Non Marital Family

Children and Family Relationships Bill,2015-the Guardianship, Custody and Access Changes

Part 7 of the Children and Family Relationships Bill, published in February, 2015 deals with the proposed changes in relation to guardianship, custody, and access.

children and family relationships bill

Here’s whats proposed:

PART 7 GUARDIANSHIP, CUSTODY AND ACCESS

Head 31: Definitions

This Head provides definitions for the purposes of the Part and the Act more generally. They are based in part of the definitions in section 2 of the Guardianship of Infants Act 1964 as amended, with the following key modifications: -definitions for “custody” and “access” are based on the proposed definitions for “day-to-day care” and “contact” in the Law Reform Commission Report on Legal Aspects of Family Relationships. In addition, the definition of “custody” reflects the possibility of joint / shared custody where parents are separated. The terms “guardianship”, “custody” and “access” are retained because these are used in the Constitutional amendment; – “mother” is defined as the woman who gives birth to a child, except in the cases of adoption, or where an order has been made under Head 13; – the definition of “father” from the 1964 Act (which is used for the purposes of assessing what fathers are automatically guardians of their children) now includes a category of non-marital fathers who cohabit with the child’s mother for at least 12 months prior to the child’s birth, where that cohabitation ends 57 (if applicable) not more than 10 months prior to the child’s birth. This will significantly expand the range of fathers who are automatically guardians of their children without the need to take any further action.

Head 32: Best interests of the child

This Head replicates, in subhead (1), section 3 of the 1964 Act with the modification that the “best interests” of the child, as distinct from the “welfare” are the first and paramount consideration in specified types of proceedings.

This change in language is to align with the language of the Constitutional amendment. Subhead (2) provides that 60 the court should have regard to the fact that unreasonable delay in proceedings may be contrary to the child’s best interests.

Subhead (3) sets out the factors to which a court should have regard when assessing a child’s best interests, including the child’s physical, intellectual and social needs, and further factors concerning the ability and willingness of the parents to cooperate in parenting and caring for the child.

Subhead (4) and (5) explicitly mandates the court to consider any history of family violence when assessing a child’s best interests. Subhead (6) seeks to limit the behaviour of a parent which may be considered by the court to behaviour affecting the child. This is to limit the extent to which proceedings may be used to air grievances between parents, rather than focus on the needs of the child and how the parents may best meet them. Subhead (7) specifies that the court should obtain the views of the child without – so far as is possible – putting the child in a position where s/he is subject to undue influence, including by a parent.

Head 33: Proof of paternity in certain proceedings

This Head replicates section 3A of the 1964 Act (inserted by section 10 of the 1987 Act) with the modification that subhead (1)(b) confers authority on the court to direct a person to make an application under Head 7 for a declaration of parentage and to adjourn the proceedings until the question of paternity is resolved.

Head 34: Powers, responsibilities and rights of guardianship

This Head provides a statutory interpretation for “guardianship” including providing an effective saver for the common law position in subhead (1)(c). It therefore includes all the rights and obligations of a parent (whether or not that parent is a guardian), all additional statutory powers, and any further powers under common law, including in relation to the child’s estate. It is, however, modified by the limitation in Head 36(8) which disapplies from a guardian who is neither a parent nor in loco parentis to a child any requirement to maintain the child from guardian’s own resources.

Head 35: Guardian to act in best interests of the child

Subhead (1) mandates a guardian to act in a child’s best interests. This is a new provision: current law does not expressly direct a guardian to act in the best interests of the child although it is generally assumed that a guardian will do so (particularly as most guardians are parents). However, it seems appropriate that as a directing principle, a guardian should be specifically required to act in a child’s best interest. Subhead (2) mandates a person to do what is reasonable in the best interests of a child of whom the person has custody or care, subject to the overall provisions of the scheme. This is not intended to confer additional guardianship-like powers on such a person, but to help clarify that having custody and care of a child is itself a responsibility and that the child’s best interests must be the legitimate concern of a person who has custody and care of the child.

Head 36: Guardians to act jointly

This Head sets out an obligation for guardians to act jointly (subhead (1)), unless the court limits the powers of a guardian by order (subhead (2)). Subhead (3) mandates the guardians to cooperate and to share information and provides that they may enter an agreement between them on the exercise of guardianship powers in relation to the child. Subhead (4) provides that except where the court otherwise provides, a guardian is entitled to information and to have sufficient access to the child to enable the guardian to properly exercise the function of guardianship. Subheads (5) and (6) set out the key responsibilities of guardianship in nurturing and providing for the child, and in making a range of decisions on behalf of the child including in relation to where and with whom the child lives, on the child’s general upbringing, education and medical treatment, etc. Subhead (7) requires the guardian to exercise those functions in a way which is consistent with the age and capacity of the child. Subhead (8) limits the responsibility for maintenance of the child so that a guardian who is not a parent and is not in loco parentis to a child is not required to maintain the child from the guardian’s own resources.

Head 37: Rights of parents to guardianship

This Head reproduces subsections (1) and (4) of section 6 of the 1964 Act as amended, with the modifications that Ø subhead (1) cross-refers to the exceptions made in subhead (2) and the different rule applying in Head 38 to assisted reproduction and surrogacy, and Ø subhead (2) refers to the additional category of cohabiting fathers who are automatically guardians of their children. Section 6(2) and (3), which refer to the surviving parent acting as sole guardian or together with any guardian appointed by the deceased or by the court, are substituted by Head 40. In addition, Head 44 now makes extensive provision on duration and termination of guardianship.

Head 38. Rights to guardianship in special cases of assisted reproduction and surrogacy

This Head makes special provision for the cases of assisted reproduction. Subhead (1) will cover the majority of cases: where a man and woman have a child together by means of assisted reproduction other than surrogacy, guardianship will be determined in the usual way by reference to whether they are married / cohabiting / make a statutory declaration. Subhead (2) deals with the case where the birth mother has a civil partner: if she is determined as the other parent of the child, then she shall also be a guardian: this treats her in the same way as a spouse who is determined to be the parent of a child born through AHR. Subhead (3) deals with the case of a cohabiting female partner of the birth mother who is determined to be the other parent of the child. Subject to meeting the cohabitation requirements that would apply to a father in the same circumstances, she is to be a guardian of the child. Subhead (4) sets out that where a surrogate gives birth to a child, she alone is the child’s guardian under the court declares she is not a parent and terminates her guardianship in accordance with Head 44, and declares another person or persons to be the child’s parents and appoints a guardian for the child. The intention is that the birth mother will be the child’s guardian until a new guardian is appointed, to ensure continuity of protection for the child.

Head 39: Court appointments of guardians

This Head specifies who may apply to court to be appointed as a child’s guardian. These are a parent (whether the natural father or a person declared to be a parent under Head 11 or Head 13) who is not otherwise automatically a guardian (subhead (1)), or the spouse, civil partner or cohabitant of the child’s parent, who shares responsibility for the day-to-day care of the child (subhead (3)(a)), or a person who has day-to-day care of the child and the child has no parent or guardian who is prepared to fulfill their responsibilities to the child (subhead (3)(b)). The appointment of a guardian under the section does not affect the previous appointment of any other guardian (subhead (2)). The consent of any guardian, the proposed guardian, and the child (if s/he is over 12) is required for the appointment of a guardian (subhead (4)), unless the court dispenses with the consent of an existing guardian or the child on the basis that it is in the best interests of the child to appoint the proposed guardian (subhead (5)).

Head 40: Power of parents to appoint testamentary guardians

This Head mirrors, in subhead (1), the provisions of section 6(2) and (3) of the 1964 Act although it refers to “guardian” rather than “mother” or “father” (this is not a policy change: “father” in the 1964 Act generally refers only to fathers who are guardians.) Subhead (2) allows the guardian parent of a child to appoint a 72 testamentary guardian to act on her or his behalf after her or his death (mirroring section 7(1) and (2) of the 1964 Act). Subheads (3) to (7) mirror the balance of section 7 of the 1964 Act.

Head 41: Power of guardian parent to appoint substitute guardians

This provision is intended to provide the framework for a type of “delegated guardianship”. It draws partly on the framework already established for testamentary guardianship and allows the court to intervene if there are disputes with another guardian. The facility to appoint a substitute guardian is proposed to be limited to a guardian parent who has custody of the child (and this includes shared custody). Appointment under subhead (2) is for a definite period and may be useful if, for example, a guardian will be out of the country for a specified duration and will be difficult to contact in case of any emergencies and unable to carry out normal functions such as signing consent forms or authorisations for a child to engage in particular activities. The nature of the appointment and the presumed ongoing capacity of the guardian parent justify allowing the appointment to be limited in its scope. Appointment under subhead (3) is intended to allow parents to appoint substitute guardians empowered to act in their stead should they be temporarily or permanently unable to exercise guardianship (through accident, physical or mental illness or extraordinary circumstances). 75 Subheads (4) to (6) are based on the provisions in relation to testamentary guardianship allowing a guardian parent to object to the appointment and conferring powers on the court to determine any dispute. Subhead (7) provides for the duration of an appointment as substitute guardian. Subhead (8) makes express provision for any dispute arising as to capacity of a guardian parent to resume exercise of his or her guardianship. This may be particularly useful in the case where a guardian whose capacity is compromised (through episodic mental illness / addiction issues, for example) wishes to resume guardianship duties while the substitute guardian does not consider that s/he is capable of doing so and that the child’s best interests may be compromised. Subheads (10) and (11) are safeguards so that the Child and Family Agency will be notified of the arrangement as though it were an emergency private foster care arrangement where the substitute guardian is someone other than a person normally living in a household with the child; this means that if any welfare concerns arise the Child and Family Agency will be informed and can act on them / activate care proceedings if necessary. The provision is intended to balance respect for the autonomy of the guardian parent and the family privacy of people normally living in a household with the best interests and welfare of the child.

Head 42: Appointment of guardians to replace deceased parent or guardian

This Head replicates section 8(2) to (5) of the 1964 Act as amended, and allows the court to appoint a guardian to a child if the child has no guardian. It is not considered necessary to replicate section 8(1) as the child cannot have no guardian in law unless the child’s mother, or both parents, have died, in which case the Head would have automatic effect. It is assumed that since a mother has a constitutional right to have guardianship of her child, her guardianship cannot be terminated by the court under Head 44 (although the court may still limit her exercise of guardianship powers).

Head 43: Powers and duties of guardians

This Head replicates the provision of section 10 of the 1964 Act and refers to the powers of a guardian to act for a child in a legal capacity and as manager of the child’s property. It is separate and distinct from the provisions in Heads 34-36 which are more focussed the physical, emotional, social and intellectual needs of the child, rather than the property and financial interests of the child.

Head 44: Duration and termination of guardianship

Subhead (1) elaborates the provision for removal by the court (referred to in Head 42(3)) of a guardian appointed under Head 39 or Head 40. An application may be made if there is a guardian to be appointed and the guardian to be removed consents to removal, or is unable, unwilling or has failed to exercise guardianship of the child, or the court otherwise considers it necessary or desirable. 79 Subhead (2) is intended to ensure that the child born through surrogacy always has a guardian – guardianship is vested in birth mother until the court both declares her not to be a parent and also appoints another guardian or guardians. This is to ensure protection for the child. For example, if intending parents before an application under Head 13 is determined, the court may declare the birth mother not to be a parent, declare (now deceased) intending parents to be parents, but, until it appoints guardians to act in place of the deceased, the birth mother remains the guardian. Subhead (3) provides for the duration of guardianship in all other cases.

Head 45: Applications to court concerning welfare of child.

This provision allows the court, on application to it, to review the decision of a child’s guardian where that decision may have long term consequences including as to the child’s health (subhead (1)). It extends to parties other than a child’s guardian access to court where the child’s well-being is in question but where it may not be appropriate to seek review in public law proceedings (subhead (2)). In addition, a guardian may always apply to court for direction on a matter concerning the welfare of a child (subhead (3) – based on section 11(1) of the 1964 Act).

Head 46: Applications to court by child’s parents concerning custody and access

This Head is based on certain of the provisions of section 11 of the 1964 Act. Subhead (1) is based on section 11(2)(a) which confers on the court power to rule on matters of custody and access. It is not proposed to replicate paragraph (b) of that subsection as maintenance payments are adequately dealt with in other legislation. Subhead (2) replicates section 11(3) of the 1964 Act as substituted by section 6 of the Age of Majority Act 1985. Subhead (3) is a simplified version of section 11(4) and is cast in gender-neutral terms given the potential for same-gender parents under the Scheme. Subhead (4) allows the court to determine the detailed residential arrangements of a child when granting joint custody – but only to the extent that they are not agreed between the parents – and to specify what contact the child is to have with the parent with whom, at any particular time, the child is not living (e.g. phone calls where the child is with one parent for most of the week or spends most of his or her holidays with one parent rather than the other).

Head 47: Application to a court for custody by relative of child or person acting in loco parentis

This Head allows certain persons other than a child’s parents to seek custody of the child, where the person is either a relative of the child or has been in loco parentis to the child and meets additional criteria (subhead (1)). These are reforms broadly in line with the recommendations of the Law Reform Commission. Subhead (2) sets out the additional criteria for an application on the basis of being “in loco parentis” as follows: (A) the person has been the spouse or civil partner of the child’s parent or cohabiting with the child’s parent for at least three years, and in each case has shared day-today care of the child with the child’s parent for at least two years, or (B) the person has taken care of the child on a day-to-day basis for at least 12 months and the child has no parent or guardian willing and able to exercise his or her guardianship responsibilities including taking day-to-day care of the child. In the case at (A), this would allow a person who has had a quasi-parental role in relation to a child to apply for custody, including shared custody, on the break-up of a relationship with the child’s parent; in the case at (B) where there may be problems in the child’s birth family, a person who has taken care of the child may be able to apply for legal custody. Subhead (3) restrains the court from making a custody order under the Head unless all the guardians and any subject child over the age of 12 consent to it, unless the court dispenses with the consent under subhead (4) on the basis that the child’s best interests are served by its making the order. Subhead (5) provides for the court to specify the detailed residential and contact and access arrangements, if it decides to grant joint custody of the child to a person who has been in loco parentis to a child, and the child’s parent.

Head 48: Application to court for access by relative of a child or person acting in loco parentis

This Head substitutes for the provisions under section 11B of the 1964 Act which allow certain persons to apply for access to a child. It implements a recommendation of the Law Reform Commission in removing the former “two step” process under which an applicant had first to seek leave to make the application. Subhead (1) 85 specifies that a relative or a person who has been in loco parentis may make an application. Subhead (2) specifies the factors the court must consider in deciding whether or not to make an order as they relate to the relationship between the applicant and the child, including the child’s own views. Subhead (3) additionally mandates the court to consider the best interests of the child and whether the denial of access by the child’s guardians is unreasonable.

Head 49: Additional powers of the court in relation to applications under this Part

Subhead (1) confers a general authority on the court to include conditions in orders it makes concerning guardianship, custody and access where it considers that necessary in the best interests of the child. This could include conditions as to sharing of custody, locations of access, limitations on the exercise of guardianship by one of a child’s guardians, etc. Subhead (2) and (3) are intended to place on a statutory footing a power that is sometimes used by the courts if they consider that a child’s parent may take the child to live in another country in breach of rights of custody or access of the child’s other parent. Subhead (4) does not confer any new function on the court, but is intended to serve as a clear signposting both to judges and to legal representatives of the powers already available to it under the Child Care Act 1991.

Head 50: Making of interim custody or access orders

Subhead (1) allows the court to make interim custody or access orders. This is to help address the problem that waiting lists can cause where there is a dispute about custody and access: an applicant may be denied access for a period of weeks or months, which can be very disruptive of his or her relationship with a child, particularly with a very young child. If the court has the facility to make interim orders, this can help maintain the relationship between the applicant and the child pending the full determination of the dispute. Subhead (2) provides that an interim order shall not be stayed on appeal unless the court that makes the order or the court to which the appeal is made specifically direct otherwise. A complete ban on staying an order would not be appropriate given that this would not allow the court to consider the best interests of the child concerned, but this gives a clear signal that lodging an appeal is not to constitute a stay on the order unless a stay is expressly granted.

Head 51: Power of court as to production of child

This is an updated version of section 14 of the 1964 Act. That section confers on the court the power to refuse to enforce an applicant’s rights of custody in respect of a child where it is of the opinion that the applicant has abandoned or deserted the child. The power granted under this Head varies somewhat in that if the court considers that the behaviour of a parent or guardian means it is contrary to the child’s best interests that the applicant parent have custody, it is required to refuse any right of custody to that parent. In addition, the court is given power to make whatever orders in considers appropriate in respect of guardianship, custody and access.

Head 52: Validity of separation or parenting agreements

Provide along the following lines: A provision contained in any separation or parenting agreement made between the parents of a child shall not be invalid by reason only of its providing that one of them shall give up the custody or care and control of the child to the other.

Categories
Divorce Non Marital Family Separation

The Family Mediation Service

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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Categories
Non Marital Family Parentage

How to Obtain a Declaration of Parentage

parentage-paternity-family-law

The Status of Children Act, 1987 makes provision for declarations of parentage.

This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order.

These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

The relevant rule of the District Court is Order 61.

Proceedings to obtain a declaration of parentage are commenced with a Family Law Civil bill issued in the Circuit Court.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.
By Terry Gorry
Google+

Categories
Divorce

How to Get a Divorce in Ireland-Divorce Law Basics

Divorce in Ireland is provided for by the Family Law (Divorce) Act 1996 which allows both the Circuit Court and High Court to grant decrees of divorce.

The vast majority of divorces will be granted in the Circuit Court.

The Circuit Court only has jurisdiction to grant a divorce decree where the property concerned has a market value of less than €3M but the parties can agree that the Circuit Court will have jurisdiction even if the property involved exceeds €3m.

Grounds for divorce

The grounds for divorce under the Family Law (Divorce) Act 1996 are threefold:

I.        When divorce proceedings commence, the parties must have lived apart for at least 4 of the previous 5 years (where this occurs and a couple have lived together for a short period(s) of time to attempt to reconcile, a divorce decree can still be granted)

II.      There is no reasonable prospect of reconciliation (the Court must be satisfied on this ground)

III.     The Court must make proper provision for the spouses and any dependent members of the family (a dependent member of the family includes children born to both spouses, or one spouse if adopted by both spouses or by one spouse, or to whom either parent is ‘loco parentis’)

You will see from the above conditions that “fault” on the part of one or other party is irrelevant and it is worth noting that “living apart” is possible in the eyes of the Courts even if the parties are living under the same roof.

The notion of living apart has been considered in some detail by the Courts and it has been held by the High Court that where a couple claim to be living apart, even though under the same roof, the court will only decide this issue based on the circumstances of each case.

‘Living apart’ has been held by the Courts to be a ‘state of affairs’ rather than just a physical living apart and the converse is also true: a couple could be living apart even though living under the same roof.

It is important therefore that when couples are having deeds of separation drafted that it states clearly the date on which they started living apart.

It is noteworthy too that any correspondence, written or oral, involving attempts at reconciliation or mediation with a third party is not admissible as evidence in Court.

Effects of divorce decree

The principal effects of a divorce decree in Ireland are

i.        The marriage is dissolved and both parties are free to remarry

ii.       The rights of both parents to continue to be joint guardians of children of the union continues

iii.      A divorced person is no longer a spouse and does not continue to enjoy the benefits of the Succession Act 1965 or the Family Home Protection Act 1976

iv.      There are tax implications

v.       A decree of divorce does not prevent either spouse from being entitled to a widow/widower’s pension or the one parent family allowance or the deserted wife’s allowance and benefits.

Just as in Judicial Separation proceedings both parties must be advised by their solicitors to discuss the possibility of reconciliation, mediation and an agreement in writing between the parties rather than court proceedings.

These obligations on a Solicitor are legally binding and if not carried out neither a Judicial Separation decree or one of divorce will be granted by the Court.

Divorce and Judicial Separation Procedure in the Circuit Court

Family Law Civil Bill

All proceedings for divorce, judicial separation, relief after foreign divorce or separation outside the state, declarations of parentage, declarations of marital status, nullity are commenced by issuing a Family Law Civil Bill in the County Registrar’s office of the appropriate County. This choice of venue can be the county where either party to the proceedings ordinarily resides or carries on business.

Every Family Law Civil Bill must set out the relief being sought and the grounds relied on for seeking that relief.

It must contain certain information such as the date and place of marriage, the length of time the parties are living apart, details about any children of the marriage, information about the family home and any other property, the occupation of the parties, etc. (Here’s the form the family law civil bill should take).

The Family Law Civil Bill, along with a section 5 or 6 certificate, an affidavit of means and affidavit of welfare (where appropriate) are filed in the Circuit Court office and then served on the other party.

Appearance and Defence

The respondent then has 10 days within which to enter an appearance and a further 10 days to enter a defence as well as an affidavit of means and an affidavit of welfare. However these time limits are unrealistic and further time will be taken in practice.

Fast Track Divorce

The Circuit Court Rules do provide for a “fast track divorce” where both parties are agreed in relation to all of the reliefs being sought. This involves the respondent filing a “consent defence” and an application to Court for a judgment by consent.

There is also the possibility of simply obtaining a decree of divorce where no ancillary relief is sought.

Motion for Order in agreed terms

35. (1) In any case in which the parties are agreed in respect of all of the reliefs being sought, the Applicant or the Respondent may, subject to the provisions of the following sub-rules of this Rule, by notice of motion, to be served on the other party and, where relief pursuant to section 12 and/or 13 of the 1995 Act and section 17 of the 1996 Act is sought, on the trustees of the pension scheme concerned, not less than 14 clear days before the hearing, apply to the Court for judgment in agreed terms.

(2) An application mentioned in sub-rule (1) shall, unless the Court otherwise directs, be grounded upon:

(i) an affidavit exhibiting the agreed terms, and
(ii) an affidavit or updated Affidavit of Means of each party, sworn in each case not earlier than six months before the date on which the motion is issued.

(3) On the hearing of the application the Court may, upon hearing such evidence, oral or otherwise, as may be adduced:
(i) give judgment in the terms agreed between the parties, or
(ii) adjourn the application and direct the attendance of a party or other person, or the giving of further evidence on the application, as the Court may require, or

(iii) give directions in relation to the service of a Notice of Trial or Notice to fix a date for Trial.

(4) Where an agreement or consent to the making of an order under this rule is given in writing by a party who does not intend to appear on the hearing of the motion, such agreement or consent shall be verified on affidavit or otherwise verified or authenticated in such manner as the Court considers sufficient.
(5) Where an order to be sought under this rule includes an order for pension relief, a draft of such order which has, so far as the pension relief sought is concerned, been served on the trustees of the pension scheme in question, shall be handed into Court on the hearing of the application.

Case Progression

A case progression summons will issue to both parties when the respondent files and serves a Defence to the Family Law Civil Bill.

Case progression is the management of a family law case, generally concerning divorce or judicial separation, before it goes to trial. The purpose is to attempt to keep costs down for all parties and to ensure the best use of the Court’s time by having the parties deal with issues before going to hearing.

Case progression generally takes place in the Circuit Court and is overseen be the County Registrar.(Here is the case progression questionnaire).

The County Registrar oversees the preparation of cases pre-trial and decides what steps need to be taken by the parties before the case can be heard in Court by a Judge.

The County Registrar can give a range of pre trial orders and directions to the parties such as

  • Vouching items in an affidavit of means
  • Identifying the issues in dispute between the parties.

How Does Case Progression Work?

Both parties, after proceedings have been issued and an appearance and/or defence entered, will be summonsed to a case progression hearing. At the same time they will be given a case progression questionnaire which must be completed before going before the County Registrar on foot of the case progression summons.

This questionnaire allows the County Registrar and the parties to identify the issues which are in dispute and which are agreed. This hearing before the County Registrar also helps identify whether further pleadings are needed and deals with discovery, pension relief notices, expert reports, and so on.

The purpose is to sort out as much as possible before the case goes to trial before a Judge.

Trial

Once all pleadings have been exchanged a notice  of trial is issued and served and a date will be fixed for the hearing of the case.

Affidavit of Means

Where financial relief is being sought by one of the parties, the rules provide for each party to file an affidavit of means.

However in Dublin in where no financial relief is being sought, an affidavit of means is not required by the Family Law office.

An affidavit of means is divided up into 5 schedules listing

  • The assets of the party
  • The income
  • Debts and liabilities
  • The outgoings of the party
  • Any pension scheme which exists.

Affidavit of Welfare

An affidavit of welfare must be sworn and filed where there are dependent children.

The affidavit of welfare must give details of children born to the applicant and the respondent or adopted by them and details of other children of the family or to which either of the parties stand in loco parentis.

Interim Applications

Interim applications can be made by either party by way of notice of motion and affidavit.

Costs

The Court can make any order it sees fit as regards costs but generally each party pays their own costs.

Here are the Circuit Court rules regarding family law.

By Terry Gorry (Contact)

Categories
Divorce

The Recognition of Foreign Divorces in Ireland

The recognition of foreign divorces in Ireland is governed by two principle pieces of legislation:

1. The Domicile and Recognition of Foreign Divorces Act, 1986 and
2. The Brussels II regulation of 2001, later amended by Brussels II bis (See also the Practice Guide for the application of the new Brussels II regulation).

These laws govern divorces post 1986; the law concerning divorce before 1986 will be common law rules.

The Domicile and Recognition of Foreign Divorces Act, 1986

This Act covers divorces that were applied for post 1986 and the essential thrust of the legislation is that if either spouse was domiciled in the jurisdiction granting the divorce at the date of commencement of proceedings then that divorce will be recognised in Ireland. (Domicile is living in a place with the intention of residing in that place permanently).

See section 5 of the Domicile and Recognition of Foreign Divorces Act, 1986.

Section 29 Family Law Act, 1995

If your circumstances are such that failing to prove that one of the parties was domiciled in the jurisdiction granting the foreign divorce then you might consider section 29 of the Family Law Act 1995.

This allows an application to be made in the Circuit Court or High court for a declaration that a foreign divorce is entitled to be recognised in Ireland. In fact you can seek various declarations concerning divorce, legal separations or annulments granted in foreign Courts.

However, do note that this procedure does not cover situations covered by the Brussels II regulation which states that foreign divorces in Brussels II countries are automatically entitled to recognition in Ireland.

United States Divorces

Generally each State or jurisdiction is treated separately for the purposes of recognition of a foreign divorce and this is very pertinent re the United States of America and American divorces.

United Kingdom Divorces

However the United Kingdom is an exception to this rule insofar as the UK is considered to be one state. The effect of this is that a divorce granted anywhere in the UK will be recognised in Ireland provided that one of the spouses is domiciled anywhere in the UK.

Exceptions to the recognition of foreign divorces in Ireland

There are a number of circumstances where a foreign divorce will not be recognised in Ireland including:

1. Non Judicial Divorces
Generally the divorce will have to have been obtained legally/judicially in the foreign jurisdiction.

2. Duress
If a spouse is pressurised or put under duress to apply for a divorce the subsequent divorce will not be recognised in Ireland.

3. Fraud
If a foreign divorce is obtained by fraud it will not be recognised in Ireland as a valid divorce decree.

4. Denial of justice
This is a wide, catch all type of category which affords considerable discretion to Irish Courts in recognising (or not) foreign divorces.

Brussels II BIS

This European Council Regulation replaced the original Brussels Regulation which provided for recognition of divorces, separations and nullities granted in other EU jurisdictions.

Brussels II BIS will apply where one of the spouses resides in or is a national of another EU member state and the principal aim of this regulation is to recognise EU divorces on an EU wide basis. (Note: the question of domicile still applies between Ireland and the UK as outlined above)

In summary Brussels II BIS states that judgments given in competent courts in the EU in relation to separation, divorce or annulments should be recognised in all EU member states. However Brussels II BIS goes a step further in providing a voice for the child in these proceedings and ensures that if the child is not given an opportunity to be heard then any judgment under Brussels II Bis will not be valid or recognised.
Brussesls II Bis came into effect in Ireland in 2005.

Here’s an excellent website which provides a lot of information about divorce and separation in all European countries.

Maintenance and foreign divorces

There are now procedures in place in Ireland to allow the enforcement of maintenance orders between countries thanks to the Rome convention and the New York convention and the Maintenance Act, 1994 coming into law in Ireland.

In addition the Family Law Act, 1995 provides for the application in Ireland for certain reliefs arising from a divorce obtained abroad.

Jurisdiction and service

The question of service of proceedings in foreign divorce proceedings is a critical one. Brussels II Bis provides that where there is a dispute as to which court will have jurisdiction that the first court in which the documents commencing proceedings is lodged will have jurisdiction. This can give you a significant advantage in your case, especially from a costs perspective.

Problems Arising from Non Recognition of Foreign Divorces

The big problem in relation to non-recognition of a foreign divorce is when you remarry-your new spouse may not have any entitlements as set out in the Succession Act, 1965 while your old spouse can benefit substantially.

However you can seek a Court Order in the Circuit Court in Ireland recognising your foreign divorce; if granted, your divorce will be recognised as valid in Ireland.
By Terry Gorry
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Categories
Child Care Law Separation

Access, Custody and Guardianship of Children in Ireland-The Essentials

children and family relationships bill

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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Categories
Child Care Law

Child Care Law in Ireland-What You Need to Know

child-care-law

The principal law in Ireland in relation to the care of children is the Child Care Act, 1991. Incidentally a child is defined as a person under the age of 18 who has not married.

The Child Care Act provides that in any court proceedings concerning a child the Court must regard the welfare of the child as the principle guide in it’s decision making.

Depending on the age of the child, the Court will also have to have regard to the wishes of the child and the parents but the guiding principle is the welfare of the child.

The Child Care Act 1991 also sets out the role of the HSE in child care issues and under section 3 of Part III of the Act which places certain duties and obligations on the HSE in the whole area of child care. The HSE must also have regard to the wishes of the parents in carrying out it’s statutory duties.

High Court decisions have held that it is generally in the best interests of the child to be brought up in his own family so for this reason the intervention of the HSE to override the wishes of the parents has been limited to exceptional cases. Where the HSE feels intervention is necessary, it should first consider whether proper care could be given with the child staying within his/her family with the proper supports being provided by the HSE.

Voluntary care

Section 4 of the Child Care Act 1991 allows the HSE to take a child into voluntary care with the consent of the parents where the child’s care and protection requires it.

Section 5 of the Act obliges the HSE to deal with homeless children and provide them with “suitable accommodation”.

Children in emergency situations

Both the HSE and the Gardai have extensive powers to protect children in emergency situations. Section 12 allows the Gardai to remove a child to safety where there are reasonable grounds for thinking that there are immediate and serious risks to the welfare or health of the child. When this occurs and the child is not returned to his/her custodian/guardian,  the HSE is then obliged to make an application for an emergency care order in the District Court.

This emergency care order will see the child being placed in the care of the HSE for up to 8 days. An appeal to the making of an emergency care order does not stay the operation of the order made.

The HSE and care proceedings

Part IV of the Act covers the role of the HSE in situations where the child is thought to be in danger. If the HSE considers that a child is in need of care or protection it has a positive obligation to make an application to Court for either a care or supervision order.

Care orders

A care order places the child in the care of the HSE for so long as he remains a child or for a lesser period. The HSE then acts as a parent to the child and is obliged to promote the child’s welfare, health, and development.

Supervision order

A supervision order is a half way house measure-the Court can make a supervision order prior to deciding on the merits of making a care order and involves the HSE calling to the child’s house to check on the welfare of the child and to advise the parents about caring for the child.

A supervision order can only last for 12 months but further supervision orders can be sought by the HSE.

Parents can be guilty of a criminal offence if they do not comply with the supervision order.

Interim care order

An interim care order is a care order for a short period of time-up to 28 days-and is designed to protect the child in the short term. An interim order can be longer than 28 days if the parents or a person acting in loco parentis consents.

Guardian ad litem

The Child Care Act 1991 introduced into Irish law the “guardian ad litem” which is a court appointed person to represent the child’s interests in any proceedings under the Act; he/she is independent of both the HSE and the child’s parents.

The Accommodation and Care of Children in Care

The Child Care Act, 1991 sets out a number of options when a child has been placed in the care of the HSE.

These include:

  1. Placing the child with a foster parent in foster care
  2. Placing the child in residential care in a residential care home or children’s residential centre
  3. Placing the child in boarding school
  4. Placing the child for adoption.

Foster Care

The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995) govern the placing of children in foster care.

A foster parent is a person other than a relative of a child who is taking care of the child on behalf of the HSE. The HSE maintains a panel of prospective foster parents.

Before placing a child with foster parents, except in an emergency situation, the HSE is obliged to have an assessment of the child carried out to ensure that the child’s individual circumstances and needs are identified and appropriate care is provided.

The HSE is obliged to promote the welfare of the child in foster care and must have regard to the rights and duties of the parents.

The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995) provide for

  • A panel of prospective foster parents to be created and maintained by the HSE
  • Assessment of the circumstances of the child
  • A contract between the foster parents and the HSE
  • The requirement for the HSE to prepare a care plan for the child, before placing her in care
  • A register containing details of children in care
  • An up to date case record of every child in foster care
  • A fostering allowance payable to foster parents
  • The duties of the foster parents
  • The supervision requirements placed on the HSE in respect of children in foster care
  • A regular review of each child care case and the plan for the care and upbringing of the child. This review must take place at least once a year and once every six months during the first two years of care. This review also requires the HSE to ascertain whether returning the child to the parents’ care would be in the child’s best interests. In carrying out such reviews, the HSE is obliged to take into account any views of the child, the parents, the foster parents, and any other person consulted in relation to the review
  • The removal of the child from foster care, either at the request of the foster parents or where the HSE intends reuniting the child with his parents

Residential Care

The placing of children in residential care is governed by the Child Care (Placement of Children in Residential Care) Regulations, 1995, statutory instrument 259/1995

These regulations cover

  • Standards in residential care
  • Monitoring of placements
  • Reviews
  • The promotion of the welfare of the child.

The decision as to whether to place the child in residential care or foster care must be taken in the light of the individual needs and the circumstances of the child. Regardless of whether the child is in residential care or foster care the HSE is obliged to facilitate reasonable access by the parents/guardians or anyone with a bona fide interest in the child (Child Care Act, 1991, section 37).

Access to Children in Care

Section 37 of the Child Care Act, 1991 states:

37.—(1) Where a child is in the care of a health board whether by virtue of an order under Part III or IV or otherwise, the board shall, subject to the provisions of this Act, facilitate reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child and such access may include allowing the child to reside temporarily with any such person.
(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—
(a) make such order as it thinks proper regarding access to the child by that person, and
(b) vary or discharge that order on the application of any person.
(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child’s welfare, may—
(a) make an order authorising the board to refuse to allow a named person access to a child in its care, and
(b) vary or discharge that order on the application of any person.
(4) This section is without prejudice to section 4 (2).

 

If someone is not happy with the arrangements in relation to access he/she can apply to Court for the appropriate directions.

Generally, in relation to access to children in care, two principles prevail:

  1. The welfare of the child
  2. Access to parents and other relatives should be considered to be in the best interests of the child, unless proved otherwise.

Termination of Care

Termination of a child in care occurs where:

  1. The child reaches the age of 18 years as he is no longer a child in accordance with the Child Care Act, 1991
  2. A child has been placed in care voluntarily by parents and they resume care and custody
  3. A Court discharges a care order
  4. Where a care order expires and is not renewed.

The HSE can also remove a child from a placement.

Any person may apply to the Court for directions where a child is in the care of the HSE.

After a child reaches the age of 18, even though he is no longer a child, the HSE can continue to make provision for a child formerly in its care until he reaches the age of 21. This can include making provision for visits to the child, arrangements for completion of the child’s education, placing the child in a trade, or arranging appropriate accommodation.

The Child Care Act, 1991 allows the family law Court to vary or discharge any care/supervision order. Any person can also apply to Court to have orders discharged or varied as set out in section 22 of the Child Care Act, 1991.
By Terry Gorry
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Categories
Domestic Violence

Barring Orders, Safety Orders, Protection Orders-Domestic Violence Remedies

Domestic violence

Domestic violence in Ireland was first recognised on the statute books in the Family Law (Maintenance of Spouses and Children) Act, 1976 with the introduction of the first civil remedy for domestic violence.

This act introduced the notion of a “barring order” which is a court order excluding the violent partner/spouse to be excluded from the home. (See end of this page for information about the updated Domestic Violence Act 2018 which commenced on 1st January 2019).

Domestic Violence Act, 1996

The Domestic Violence Act, 1996 built upon this legislation of 30 years before and sets out three main aims:-

  1. To protect spouses and children and others in domestic relationships whose safety and welfare is at risk in the relationship;
  2. To increase the powers of the Gardai to arrest witout warrant in certain situations;
  3. To allow a Court to hear other related applications, such as for maintenance, custody and access, at the same time as the application for a barring order.

This legislation builds upon the protection offered by the Family Law (Maintenance of Spouses and Children) Act, 1976 to provide protection for non-spouses such as cohabitants and family members.

Domestic violence remedies

It also extended the range of remedies available in cases of domestic violence to include

  1. A barring order
  2. An interim barring order
  3. A protection order and
  4. A safety order.

Barring order

A barring order is an order which directs the respondent to leave the premises where the applicant lives and preventing the respondent from returning to the premises until the Court allows. In making a barring order the Court must be satisfied that the safety or welfare of the applicant justifies making the order.

A barring order can last for up to 3 years.

An applicant for a barring order who is not a spouse must have an equal or greater interest in the property than the respondent. In addition to this test the couple must have lived as “husband and wife” for 6 months out of the previous nine months period.

In summary there are 4 types of people who can apply for a barring order:-

  1. A spouse
  2. Cohabitants who have lived together for 6 out of the previous 9 months
  3. A parent of an adult child who is a non-dependent
  4. The Health Service Executive on behalf of an entitled person.

Interim barring order

An interim barring order is one which a Court can make to cover the period of time between the commencement of legal proceedings and the hearing of the action. The criteria to be applied by a Court is whether the applicant is in immediate risk of significant harm and the granting of a protection orderwould not be sufficient to protect the applicant.

An interim barring order can be applied for on an ex parte basis but will be limited in duration to a maximum of 8 working days in the interests of fair procedure (Domestic Violence (Amendment) Act, 2002).

Protection order

A protection order does not put the respondent out of the family home but does order him/her not to use violence, threats, molestation or use violence against the applicant. A protection order will only last until the hearing of the barring or safety order proceedings and are available to anyone who has commenced proceedings for a safety or barring order.

Safety order

A safety order is similar to a protection order but does have a life of it’s own and can last for up to 5 years.

There are two common situations where a safety order is useful:

  1. Where the applicant is trying to help the respondent deal with, for example, alcoholism but also wishes for protection from violence and
  2. Where spouses are separated in fact but have not yet applied for a divorce or separation.

Safety orders can be applied for by

  • Spouses
  • Cohabitants who have lived together for 6 out of the previous 12 months (this was changed in 2011-see below)
  • The parents of an adult child
  • The HSE.

Breach of Barring Orders

The Domestic Violence Act, 1996 makes provision for a number of useful powers of the Court in domestic violence cases.

These include

1. How breaches of Court orders can be dealt with quickly by the Gardai
2. How the Court can deal with related issues such as access and maintenance without the need to issue new proceedings
3. How any Court Orders take effect.

Breaches of Court Orders

The Gardai have considerable powers of arrest under the Domestic Violence Act, 1996 to enforce Court orders along with their normal powers under various other acts such as Criminal Damage Act, 1991. They can arrest without warrant for example where the victim is someone who could apply for a barring order or safety order.

They also have a duty to investigate and record all reports of incidents of domestic violence.

Related proceedings

Courts have the power to deal with access and maintenance along with the substantive issue of a barring order application without the need to issue separate proceedings in respect of access and maintenance.

Generally the guiding principle for the Court in determining access is what is in the best interests of the child. However where there are issues of domestic violence or violence to children this principle takes a back seat to the question of whether the child needs to be protected.

Taking effect of Court orders

The Domestic Violence Act, 1996 provides that any Order made under the Act will take effect by oral notification to the respondent and the provision of a copy of the Court order.
In fact if the respondent is in Court when the order is made this is deemed to be valid notification.

Penalties for Breach of Barring Orders

The penalties for breaching Court orders made under the Domestic Violence Act, 1996 include
• A fine not exceeding £1,500 (approx. €1,905) and/or 12 months imprisonment and is a criminal offence.

In addition the Court has discretion to convict for contempt of Court and breach of an Order may lead to liability in any civil legal proceedings brought.

Update August 2011-Civil Law (Miscellaneous Provisions) Act, 2011

The Civil Law (Miscellaneous Provisions) Act 2011 has made significant changes to the Domestic Violence Act 1996.

Prior to the enactment of this legislation an applicant for a safety order who was a cohabitant ( that is, not a spouse) had to have lived as husband and wife with the partner for a period of 6 out of the previous 12 months.

The requirement now as a result of the  Civil Law (Miscellaneous Provisions) Act 2011 is for the applicant who:

(ii) is not the spouse or civil partner within the meaning of the Act of 2010 of the respondent and is not related to the respondent within the prohibited degrees of relationship, but lived with the respondent in an intimate and committed relationship prior to the application for the safety order, or..

The effect of this change is that there is no specific requirement of living together for a particular period of time required. Now it is only necessary to show that the applicant:

lived with the respondent in an intimate and committed relationship prior to the application for the safety order.

Update 2018

The law in Ireland regarding domestic violence changed with the commencement of the Domestic Violence Act 2018 on 1st January 2019.

The purpose of the act is to

  • to provide for emergency barring orders in certain circumstances;
  • to provide for evidence to be given through television link in certain proceedings;
  • to provide for the right of an applicant to be accompanied in certain proceedings;
  • to provide for the obtaining of the views of a child in certain proceedings;
  • to provide for the giving of information on support services to victims of domestic violence;
  • to provide for the making of recommendations for engagement with certain services by respondents;
  • to provide for restrictions on those present in court during certain proceedings; to prohibit the publication or broadcast of certain matters;
  • to provide for an offence of forced marriage; to repeal provisions for exemption, in certain cases, from minimum age requirements for marriage;
  • for those and other purposes to repeal the Domestic Violence Act 1996 and the Domestic Violence (Amendment) Act 2002 and to provide for the consequential amendment of certain other enactments.

You can access the Domestic Violence Act 2018 here.

Categories
Divorce Separation

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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