FAMILY COURTS BILL 2022 – IS REFORM ON THE RIGHT ROAD?

Family Courts Bill 2022 was referred to in the Government and Justice Plan 2022 and forms part of the Family Justice Strategy 2022 -2025

The aim of the Family Court’s Bill 2022 (the Bill) is to provide for a more efficient and user-friendly family court system for a variety of family law proceedings. The Bill has is currently progressing through its second stage in Seanad Éireann,
As Minister for Justice Helen McEntee stated that the Bill “forms an intrinsic part of the reform of the family justice system and will provide many of the building blocks essential to these reforms”. A key part of the strategy is the construction of a purpose-built Family Law Court complex at Hammond Lane in Dublin which will replace the existing District Court in Essex Street, and the Circuit Court in Phoenix House. The Minster indicated that this was be completed by 2026, however at the time of writing in mid 2023, work is yet to commence on the building.

The main changes as detailed in the Bill include:
• Introducing a specific division in the Courts, namely, Family High Court, a Family Circuit Court and a Family District Court, each dealing with family law matters as appropriate to its jurisdiction.
• That greater proportion of non-contentious family law matters to be dealt with at District Court level, thus minimising the costs for litigants. The District Court will be able to deal with judicial separation and divorces where the assets of the marriage do not exceed one million euro.
• Judges will be assigned on a full-time basis to the Family Court divisions and serve a minimum of three years in the division. These will be judges who, by reason of their training or experience, are suitable to deal with matters of family law. Ongoing professional training in family law will be required.
• It is proposed that new positions of Principal Judge of the Family High Court, Family Circuit Court and Judge of the Family District Court will be created to ensure proper and effective management of these Courts.
• A dedicated Family Law Rules Committee ( or and Family Law Sub-Committees of the general Courts Rules Committees) will be established. This it to ensure that the family law rules of court are coherent and applied with consistency across all levels of the family courts.
• Proceedings will be held in a different building or room from which other court sittings are held or on different days or at different times from other court sittings. This is a improvement where at present, usually in the District Court, family law cases could be heard on the same day as debt collection or criminal matters.

Under the Bill, the Courts and practitioners in family law proceedings will be required to have regard to certain key principles including:
• The best interests of every child involved or likely to be affected by the outcome of family law proceedings shall be a primary consideration in the conduct of the proceedings.
• The child’s views should be ascertained, where practicable, and given due weight, having regard to the child’s age and maturity.
• The promotion and engagement by the court in active case management practices.
• The court should encourage and facilitate, as far as possible, alternative dispute resolution, such as mediation – except in cases where this would not be appropriate, such as domestic violence cases.

The publication of the Bill marks an important milestone in efforts to reform the Irish Family Courts system however the extension of the jurisdiction of the District Court to include judicial separation and divorce will only add additional pressure to an already overwhelmed court. In additional to the Courts, investment will be needed in the Court services; more registrars, more facilities in court buildings, better funding for legal aid and additional supports such as mediation.

If you have any questions on family law, contact our Family Law Partner Máire McMahon (mmcmahon@dtryan.ie) or in our Cahir office at 052 7441244

How do I qualify for a Divorce?

25 years ago this year the Family Law (Divorce) Act 1996 was introduced following an historic referendum the previous year. It was enshrined into the Constitution that a Court had to grant a divorce to the spouses, if the Court was satisfied at the date of the institution of the proceedings,
i. the parties lived apart from one another for a period, or periods amounting to, to at least 4 out of the last 5 years,
ii. there was no prospect of reconciliation between the parties, and
iii. the Court considered proper provision in place for the spouses and the dependant members of the family.
Time Period
Following a further referendum in May 2019, where 81.2% of the electorate voted to remove the constitutional requirement for a defined period of separation before a Court may grant a divorce. The Government then introduced the Family Law (Divorce) Act 2019 and introduced the statutory requirement for a period of living apart for 2 out of the previous 3. This reduction in the period of time before a spouse can institute proceedings for a divorce ensures that couples can bring to a conclusion their financial and marital affairs in a shorter time period and often avoid the need for two separate sets of court proceedings.

What is living apart?
It was initially thought that parties had to be living in two separate locations for the time period in question, but In the McA v McA, a case in the year 2000, McCracken J held that the parties who lived in the same house but led very separate lives, had been living apart and said: “I do not think one can look solely at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other.”
During the recession that followed the Celtic Tiger, spouses finding themselves in both martial and financial difficulty have found that they could not afford to live in separate houses, but have effectively lived their lives as “lodgers” in the same house and gone about their lives as separate people. It is also noticeable in these time of Covid that parties, due to the fact that they cannot move out, or cannot find suitable accommodation to move to, are also living separate lives under the same roof. Such a set up is stressful on all parties, as communication can be difficult between the spouses and the children.
In these cases, the Applicant must refer to specific instances of how the parties have lived separate lives, and have not had any martial relations during the time period. Some Judges focus in on day to day activities, such as who prepared the meals, did the parties eat together, did the parties do their own laundry, did they take joint holidays.

Proper Provision?
This is the phrase in the law that refers to mainly financial arrangements between the parties, but also includes any custody and access arrangements. The Court must consider proper provision “having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law”.
In headline terms it means trying to ensure that both parties and the children have their accommodation needs met, there is sufficient income / maintenance for the children and spouses, any pensions that need to be apportioned, perhaps the sale of property and the division of the proceeds. There is a list of criteria set out in Section 20 of the Family Law (Divorce) Act 1996 that the court needs to weigh up before making the necessary orders.

Every family case is different, as no two marriages are the same and no two marriage breakdowns are the same. An experienced family law practitioner can guide a client through the process and ensure that all options are explored and how best to find an approach that suits the client, their children if applicable and how same can be achieved. Sometime is it necessary to look at where the client sees themselves at the end when the case is over, and the role of the solicitor is to see if they can get the client to that point.

If you have questions on family law, find your self at the point where you are thinking of calling time on your marriage and not sure where to turn then contact Máire McMahon, who has 20 years of family law experience can advise you in such situations. Máire can be contacted at 052 7441244 or click here to find out more about Máire Máire McMahon

Family law in 2021 – How it has all changed and yet is still the same!

We were all glad to see the end of 2020 and hoped that 2021 would be better, although three weeks in it does not seem to be going according to our plans! 2020 brought so much change, working from home, home schooling, no travel and then the introduction of Zoom into our lives.
In the area of family law and law in general change came too. I recall listening to the March 12th announcement by then then Taoiseach Leo Varadkar from the USA announcing the closing of the schools in a Court consultation room, with both my Counsel and Client and I all watching intently on a mobile phone. The Circuit Court Judge advised us that she was reluctant to commencing hearing the case as she did not know if the Courts would be sitting the following day to complete the hearing! I recall leaving the Courthouse that afternoon and not knowing when I would be back in the building and not know what lay ahead of us.

Early Challenges
It is now interesting to look back the variety and timing of the queries raised by clients in those early days of lockdown. All work was done over the phone, there was no meeting clients. In the initial period of March / April, the queries focused on the immediate issues of access, maintenance, how to deal with planned Court hearings that were suddenly cancelled. Welcome guidance came from the President of the District Court, the Family Law Committee of the Law Society and on how to continue access visits, and the ability of parents to travel outside the travel limits so that they could see their children. At the same time parents, particularly those who lived with elderly parents were concerned as to the risks involved and both sides often stated that the other parent was either too cautious, or not cautious enough.

Life moved on and thankfully Court hearings commenced again in May. Family law cases were the first cases to be heard in the South Eastern Circuit, there is a natural social distancing in family law cases between the parties!. Consultations with Counsel and clients prior to hearing took place with what’s app video calls. Remote hearings have also commenced which has it’s ups and downs. The ups being the time saved on travel, the down being the technology and the fact that not every case is suitable for a remote hearing – it is very hard to read a witnesses’ and Judge’s body language in a remote hearing.

Then the calls started coming, from parties in relationships who found the lockdown exceedingly difficult and the strain it put on already fragile relationships. Couples found that in pre Covid days the ability to have a “break” from each other and the children, by attending work, gym etc enabled them to continue in the relationship. However now, being at home 24 hours a day made them make decisions on how they wished to moved forward.
The role of a family law solicitor is not to tell a client if their relationship has ended, but to tell them the options available to them if they decide that the relationship is over. Many clients who attend my office have not yet made that decision but want to know what road they are facing if the relationship is ended.

New Routine
Life settled into a new routine and now in January 2021 those calls are coming again. The first two weeks of January are always a busy week for family lawyers, the media have christened it “divorce days”. People have new year’s resolutions, many couples who make the decision to separate will leave it until after Christmas especially if there are children. The same concerns that clients had pre Covid are still there and the family law advice is still the same.
The concept of “living apart” as defined in the divorce legislation and subsequent Court precedents recognises the concept of “living apart” in the same household. The time period for judicial separation and divorce does not start when the parties move into separate accommodation. It is necessary to explore in each consultation when the client formed the intention that the marriage was over, and whether they were living like lodgers in the same building.

Reduced Time Period for Divorce

The reduced time period of living apart of two years since December 2019 to apply for a divorce opens the possibility of bring family law disputes to a resolution sooner rather than later. Previously the 4 year period meant that clients could not close the chapter on their marriage until the divorce was granted. In my experience completing all litigation brings relief and peace of mind to clients.
We are only three weeks into 2021 and the Courts are closed until early February, the calls are still coming, although most consultations are now via zoom but these suits both clients and the solicitor. A trend I have noticed is that a lot of the new clients are from outside the traditional area of South Tipperary.

What to do next?
If you are at a crossroads and not sure in which direction to turn and need advice on any family law matter, do not hesitate to contact Máire McMahon at 052 7441244 or via or website www.dtryan.ie

What is “proper provision” in a family law case?

What is “proper provision” in a family law case?

When a couple separate or divorce the most frequently asked question posed to a family law lawyer, is what am I entitled to?   The simple answer is a settlement be it by agreement or imposed by Court, that achieves proper provision.

Proper provision is achieved by a Judge weighing up a list of principles and reaching a financial split based on this criterion. The aim is to ensure fairness. As no two marriages are the same and no two marriage breakdowns are the same, no two settlements are the same. The list of criteria to be considered are set out in both the Family Law Act 1995, and the Family Law (Divorce) Act 1996.

These criteria include:

  1. the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future
  2. the financial needs, obligations and responsibilities which each of the spouses had or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)
  3. the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be
  4. the age of each of the spouses and the length of time during which the spouses lived together
  5. the physical or mental disability of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family
  6. any income or benefits to which either spouse is entitled by or under statute
  7. the conduct of each of the spouses if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it
  8. the accommodation needs of either of the spouses
  9. the rights of any other person other than the spouses but including a person to whom either spouse is married

A Court will try to ensure that both parties’ ( and the children’s’) accommodation needs are met, that there is sufficient monies for the maintenance of the parties and the children, that both parties if possible have access to a pension, that there is provision for education including Third Level Education, particularly if the children are near or attending Third Level education.

A settlement can be achieved in either of two ways :

  1. By the parties agreeing between themselves as to what each will take from the assets available, this is known as a separation agreement, consent settlement. If parties attend mediation, as a method of resolving the dispute and reach an agreement, this then needs to be incorporated into a formal legal agreement
  2. If the parties cannot reach agreement, then it will be necessary to issue Court proceedings, and ultimately a  Judge will make the decision.

An experienced family law solicitor, such as Máire McMahon with eighteen years of court experience, will be able to advice a client on proper provision and what is the likely attitude and outcome if a case proceeds to Court.

Improved Benefits for Working Parents – Parent’s Leave and Parental Leave.

The challenge for working parents in managing childcare has been addressed on two fronts recently by the Irish Government. Parents of children born on or after 1 November 2019 are now entitled to 2 weeks’ Parent’s Leave, paid by the government. Separately, parents of children up to 12 years of age are entitled to up to 22 weeks’ unpaid leave to care for their child under the similarly named “Parental Leave”.

What is Parent’s Leave?

Employees and self-employed individuals are legally entitled to take two weeks’ leave, known as “Parent’s Leave”, within the first 52 weeks of the birth or adoption of a child, so that they can care for that child. Parent’s Leave can be taken as one block of two weeks’ leave or two blocks of one week each. Parent’s Leave is in addition to Maternity, Paternity, Adoptive and unpaid Parental Leave.

What is Parent’s Benefit?

Your employer does not have to pay you while you are on Parent’s Leave however you may be eligible for Parent’s Benefit from the Department of Employment Affairs and Social Protection.

What is Parental Leave?

Separately, parents are entitled to take up to 22 weeks’ unpaid leave to care for their child. Unpaid Parental Leave is available to employees who are parents of a child under the age of 12 or under the age of 16 in the case of a child with a long term illness or disability. In general you must have been working for your employer for at least a year to get the full amount of Parental Leave. Either parent can apply for unpaid Parental Leave.

How do I apply for Parental Leave?

You must provide your employer with 6 weeks’ notice of your intention to take unpaid Parental Leave. Minimum periods of leave apply (e.g. one continuous block or two blocks of at least six weeks), unless your employer agrees otherwise.

In time…

Although not currently provided for in legislation, it is expected that working parents will ultimately be able to benefit from seven weeks’ paid leave under the Parental Leave scheme, as it develops incrementally over the next three years.

Family Law Act 2019 – What is new? – UPDATED

Divorce was first introduced to Ireland in 1996, and the criteria for divorce were set out in the Constitution and replicated in the Family law (Divorce) Act 1996. It was necessary for the Circuit or High Court to be satisfied that the parties were at the date of commencement of proceedings,” living apart” for at least four of the previous five years; there was no reasonable prospect of reconciliation between the parties, and proper provision was in place for the parties and the dependant children.

As the original legislation provided no guidance as to what constitutes “living apart”, it fell to the Courts to interpret this phase. There are no two marriages the same, and no two marriage breakdowns are the same.

The question was soon posed to the Court was whether parties living in the same house could be deemed to be “living apart”?. The test developed in the McA case, was a mixed test, it comprised of  an objective test  – did it look from the outside that the parties were no longer together and a subjective test, did the parties themselves form the intention that the marriage was over.

 In simple language  – were the parties living like lodgers and detached from each other? In order to satisfy themselves, Judges often enquired as the specific domestic arrangements for eating and laundry.

During the recession from 2008 – 2014, mainly for economic reasons parties found themselves when their marriage broke down, having to continue to reside in the same property as they could not afford to move into separate accommodation.  

In the May 2019 Constitutional referendum, 82.1% of those that voted, chose to remove the four year  period from the Constitution, and to allow the Oireachtas to pass legislation setting the time period.  On the 25th October 2019, the President signed into law the Family Law Act 2019.

Not only did the law introduce the reduced two year period, but now specifically provides reference for spouses living in the same dwelling and states that spouses “shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship” and goes on to reflect as is included in the Civil Partnership and Certain Obligations of Cohabitant’s Act 2019, that a “a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature”.

This clarification is welcomed, but I believe that in reality because of the reduced two year period and the economic improvement in the Country that the necessity for parties to continue living under the same roof will diminish.

The Family Law Act 2019, came into force on the 1st December 2019.

If you have any queries on family law matters, do not hesitate to contact Máire McMahon Partner in Donal T Ryan Solicitors LLP in Cahir at 052 7441244.

Paternity Leave – New Dad – what are your rights?

Paternity Leave- now a statutory entitlement in Ireland
With effect from 1 September 2016 paternity leave is recognised as a legal right in Ireland.

Who is eligible?
An employee considered to be a ‘relevant parent’ of a child will be entitled to 2 weeks’ consecutive leave from their employment to care for their child.
A ‘relevant parent’ includes:
*  the father of the child,
* the spouse/civil partner/cohabitant of the child’s mother
* The parent of a donor-conceived child.
In the case of an adopted child, the ‘relevant parent’ includes:
* The nominated parent in the case of a married same-sex couple or
* The spouse, civil partner or cohabitant of the adopting mother
* a sole male adopter

Only one period of leave will apply where there are multiple births or adoptions at the same time.

In the sad case of a stillbirth or a miscarriage following the 24th week of pregnancy, the entitlement to paternity leave and benefit remains available, within 26 weeks from that time, provided that the employee satisfies the PRSI requirements.
Notification Requirements.

The employee must notify their employer at least 4 weeks before the date on which they wish to take paternity leave. A medical certificate setting out the expected date of birth or confirming the birth must be provided or, in the case of an adoption, proof of the date of placement.
The employer must certify the employee’s paternity leave by completing Form PB2: Employer Certificate. This certificate should be submitted to the Paternity Benefits Section of the Department of Social Protection with the paternity benefit online application.

Paternity Benefit
Paternity Benefit of €230.00 per week, the same as maternity benefit, is payable by the Department of Social Protection. Eligibility for payment will be based on the same PRSI contribution requirements as maternity benefit.

The benefit must be claimed within 26 weeks of the date of birth, or date of placement if the child is adopted, and is paid for 2 consecutive weeks.

Paternity Benefit should be applied for at least 4 weeks before the leave begins. Self- employed individuals should submit an application 12 weeks prior to the leave.

Pay during Paternity Leave
Employers are not obliged to pay employees during paternity leave. Top up payments may be provided on terms and conditions decided by the employer. If the employer continues to pay the employee during paternity leave, the employer should require the employee to sign a mandate instructing the Department of Social Protection to pay the benefit directly to them or alternatively, simply pay the employee the difference between their salary and paternity benefit.

Postponing Paternity Leave
The Paternity Leave and Benefit Act 2016 provides for postponement of paternity leave. For example, if the birth is later than expected or if the date of placement of an adopted child is postponed, an employee may apply to postpone paternity leave.

If the baby is hospitalised, paternity leave and benefit may be postponed for a maximum of 6 months. Where a baby is born prematurely, and the employee wishes to change their leave dates, a letter from the employer confirming the new leave dates and date of birth / placement of the child, must be sent to the Paternity Benefit Section of the Department of Social Protection.

If the employee becomes sick before the paternity leave begins, the employee may postpone paternity leave until he recovers. The employer should be notified in writing and a medical certificate provided.

The leave must be taken within 26 weeks of the date of birth / placement.

Finally for Employers
Employers must keep records of paternity leave taken by their employees. These records must include the period of employment of each employee and the dates and times of the leave taken. Employers must keep these records for 8 years.

Please contact Donal T. Ryan Solicitors LLP for further details.