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

What deposit to I have to pay when buying a house?

STEP BY STEP GUIDE TO BUYING A HOME

BLOG 1 : DEPOSITS:

1. When purchasing a property through an auctioneer, you will be required to pay a booking deposit. Often times this will be in the region of €5,000-€10,000 and will be requested by the auctioneer at the very beginning to show your seriousness and intention to purchase the property. It is a figure that is held by the auctioneers once the property has formally sold. The auctioneer fees are taken from this figure and the balance remaining will then be released to the Vendors.

2. A deposit is then required the day you sign the contracts to purchase the property. Generally speaking, a deposit will be between 8- 12% of the purchase price of the property in question. For example, if a property is on the market for €300,000.00 and the deposit is 10%, the deposit required the day of signing will be €30,000 and this will need to be transferred on the day.

3. There is often confusion that the booking deposit is additional to the deposit required on signing but in fact it can be subtracted from the deposit you will pay on the day you sign the contracts. For example, if you have given €5,000 booking deposit to the auctioneer and €30,000 is required as a deposit to the seller on the signing of contracts, you will only need to give €25,000 the day of signing.

If you are buying a house or thinking of buying a house, contact one of our experienced property solicitors in either our Cahir or Cashel offices and we will be delighted to assist you.

GDPR, Data Protection& Data Breach – Have you been affected?

Data protection is the safeguarding of the rights of all individuals to privacy in relation to the processing of their personal data. The processing of data is regulated by the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
If an organisation has breached your personal data in any way then you may be entitled to compensation for this data breach.
Organisations that hold your data are under strict obligations to ensure that your data is not compromised in any way.

A data protection breach occurs where a person or organisation, entrusted with your personal data, negligently or intentionally, loses, publishes or mishandles your data leading to your personal information being compromised. Examples include, sending an email/letter to the wrong recipient, disclosing your personal data or leaving personal information in a public place aswell as a cyber hack of your personal information on the organisations system.

Any person who is the victim of a data protection breach can make a claim for compensation. If you think that your personal information has been exposed following a data breach or that data about you has been stored incorrectly, it is important that you contact your solicitor as soon as possible for specialist legal advice. An experienced Data Protection solicitor can advise you on your legal rights and options and advance any appropriate claim for compensation.

The impact of a data breach depends on the circumstances of the breach. In many cases it causes anxiety, worry, stress, fear and worse. If you feel that your data has been breached and you have suffered as a result, then we can help you.

Donal T Ryan Solicitors will discuss your data breach claim with you. We will correspond with the organisation that has compromised your data to clarify details of your personal data breach. They must send us the requested information within one month of our request. We will then review the information and advance any appropriate civil case, with your instructions, against the organisation that has breached your data. If the data breach is particularly sensitive and depending on the circumstances, you should be entitled to a greater amount of compensation.

Contact Lorcan Dunphy, Head of Litigation, at Donal T Ryan Solicitors for our specialist expert legal advice at 062 – 61288 or law@dtryan.ie

CHANGES TO FAIR DEAL SCHEME TO ENHANCE PROTECTION FOR FAMILY FARMS

CHANGES TO FAIR DEAL SCHEME TO ENHANCE PROTECTION FOR FAMILY FARMS

Changes to the Nursing Home Support Scheme (Amendment) Act 2021 will come into effect on the 20th of October 2021.
Big Change to Scheme.
The biggest change relates to capping the contribution applied to the the family farm or business to 3 years. This means that after a period of 3 years the value of the family farm will no longer be taken into consideration when calculating the cost of a person’s nursing home care. This is good news for families who wish to keep the family farm going while at the same time availing of the scheme.
BUT as always, there is a catch –
• this will happen only where a family successor commits to working on the farm or in the business for a period of six years. Something that may not necessarily be in place for a lot of elderly business owners and farmers who are very often reluctant to plan for their nursing home care.

Successor to Business
If the business owner had a successor, that successor surely would have been appointed prior to the last minute when the owner is going into a nursing home. But, if the business owner hasn’t appointed a successor by the time they are going into a nursing home, it is going to be hard to locate one quickly.
On the other hand, of course, the aim of the amendment is to compel succession on those who have held out to the end.
This is a method by which to force some farmer’s hands in passing farming businesses on to the next generation. While we have multiple tax incentives in this regard – young trained farmer relief, agricultural relief for interfamily farm transfers this is yet another reason to refrain from holding on indefinitely.

The other social utility about the family successor is that the amendments are designed to remove what was seen as a penalty on a successor. So, a successor could have been appointed and was running the farm but all the time in the background the farm was being charged with the 7.5% nursing home charge. This was obviously a serious dis-incentive for successors to get involved in the family business.
If there is no successor it appears that the 3 year cap will not apply. Therefore, a successor is a no brainer!

Sale of Houses now allowed
Another important change is that the 3 year cap on the family home now applies to the proceeds of sale of the family home. This is seen as being helpful to free up properties that are otherwise lying stagnant because owners want to keep them in the 3 year net. This should also serve to assist the lack of housing supply most towns and cities are experiencing.

How is the Fair deal contribution calculated

In the case of a couple, the applicant’s means are assessed as 50% of the couple’s combined income and assets. The first €36,000 of an individual’s assets, or €72,000 in the case of a couple, is not counted at all in the financial assessment.
The aim is that participants contribute to the cost of their care, according to their means, while the State pays the balance of the cost.

Where an individual’s assessed weekly contribution is greater than the cost of care, they do not qualify for financial support. Therefore, applicants with substantial assets or incomes are unlikely to qualify for financial support.
The capital value of an individual’s principal private residence is only included in the financial assessment for the scheme for the first 3 years of their time in care.

Currently, this unqualified 3-year cap does not apply to productive assets, such as farms and businesses, except in the case where a farmer or business owner suffers a sudden illness or disability and, as a result, requires nursing-home care. This is set to change now as outlined on20th October 2021.

If you have any query, contact Donal Ryan, Máire McMahon or Alison O’Mahony on the matter.

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

What to do when you want to sell your home. Tips to make the transaction move more quickly.

 

Home For Sale Real Estate Sign and Beautiful New House.

 

You have made the decision to sell your property. You have engaged an Auctioneer and placed the property on the market. Now you wait while the property is viewed and hopefully a buyer found, a price agreed and you can more on to the next stage of the sale process.

Don’t just sit back and wait, there are a number of things you can be doing to help the sale run smoothly when the time comes to issue contracts.

  • Talk to your Solicitor – make a decision on the solicitor’s firm you wish to act for you in the sale? Perhaps you may wish to deal with the same firm that bought the house for you, or perhaps you have heard good things about a local firm, or someone has come recommended to you. Contact the solicitor and tell them that your house is on the market. They will discuss the items below with you.
  • Where are your title deeds?
    Consider where the title deeds for your property are currently held. If the property was mortgaged, it is likely they are being held by a Bank. It can take several weeks to get title deeds from a bank so now would be a good time to mention this to your solicitor. They will need an original signed authority from you to take up your title deeds from your bank and you can begin this process now to speed up the issuing of contracts once a sale is agreed.
  •  Compliance with planning and building regulations:
    Generally, there will be some planning documents with your title deeds from the time that you purchased the property. However, if you have completed any work on the property since you originally purchased it, such as an extension or conversion of a garage/ attic, it is quite likely that you will need up to date Certificates of Compliance or Exemption from planning permission and building regulations. In some instances, you may even need to apply for retention planning permission which can take several months.

Talk to your solicitor about any work you have done to the property and they should be able to guide you as to whether you will need     any up-to-date certificates from an Architect / Engineer.

  • Property Tax Receipts:
    There are a number of difference receipts that you will need to price to a prospective purchaser when selling a property. For residential properties you will need the following:
  1.  A complete Local Property Tax property History from 2013 up to date confirming that the LPT has been paid for the property for each year.

2. Evidence of payment of the Household Charge 2012.

3. Either a Certificate of Exemption or Certificate of Discharge from the non-principal private residence charge (NPPR years 2009 to 2013).

This is different to the Local Property Tax and you should obtain same from the Local Authority where the property is situated. This was a charge due on second homes before the introduction of the LPT, and even if the property was not liable for the charge, you still need to provide a Certificate of Exemption.

Each Local Authority has different requirements so you should check their website to see what you will need to provide to get your certificate.

4. Certificate of Registration with Protect our Water in respect of the septic tank (if applicable). If you have a septic tank but have not registered it previously you can do so on-line on Protect our Water’s website.

For commercial or mixed-use properties, you will also need to provide the following:

1. Up to date statement and receipt for commercial rates.
2. Up to date statement and evidence of payment of commercial rates from the Local Authority.
3. Up to date statement and evidence of payment of any water charges.

  • Rental properties:
    If the property is currently let or was let at any time in the previous 2 years, you need to provide certain information to the new purchaser, in particular if the property is located in a designated rent pressure zone.

Ideally you should provide your solicitor with a copy of the latest Lease together with details of any rent review, any notices that have been served by either you or the tenant and details of any disputes. If there is currently a tenant in the property and you want them to vacate before completing the sale, you should check how much notice they are entitled to and how to correctly serve this notice on them. There are very good guidelines and information available on the PRTB website.

Bear in mind that if you are selling a property that is not your principle place of residence, that you will have to consider capital gains tax. This is a tax that is payable if the sale price is more than the price you paid for the property. A solicitor will be able to advise you whether or not CGT applies and will advise you contact an Accountant to discuss it further.

  • BER Certificate and Advisory Report:
    You will need to provide a Building Energy Rating Certificate and Advisory Report to your purchaser. Normally, the Auctioneer will request this before putting the property on the market for sale, so check with them to see if this has already been attended to. They will be able to give you a copy which you can give to your solicitor along with the property tax receipts.
  • Management Company and MUD Act Requisitions:
    If the property is part of a managed development, in particular if it is an apartment, your solicitor will need to obtain information from the Managing Agent which are known as replies to the MUD Act Requisitions. Managing Agents usually charge a fee for providing this information which includes up to date accounts, details of the insurance policy, details of the budget and service charge, and house rules. You should get an up-to-date statement for the Management Company fees together with contact details for the managing agent and provide these for your solicitor. This will allow them to request replies to the MUD Act Requisitions quickly once a sale is agreed.

Every property and every property sale is different and this is not an exhaustive list. However, it is a very good place to start and should help move the sale process for you whenever a buyer is found for your property.

If you are thinking of selling your property and have any questions please feel free to contact our Conveyancing team on 062 61288 (Cashel) or 052 7441244 (Cahir).

 

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

Dog Owners and the Worrying of Sheep

There have been a number of high profile cases involving dogs and the implications of straying dogs on sheep in countryside. The Control of Dogs Act 1986, as amended by the Control of Dogs (Amendment) Act 1992, sets out the rules pertaining to liability for dog owners for damage caused by dogs.

Section 9(2) of the Act provides that if a dog worries livestock, the owner or any other person in charge of the dog shall be guilty of an offence. The word “worry” in relation to livestock means to attack or kill or to chase the livestock in such a way as may reasonably be expected to cause death or injury or suffering to the livestock.

The Act specifies instances where it will be lawful to shoot a dog, but this should be done as a matter of last resort. Farmers need to be very careful in that regard.

The Act states that the responsibility is on the farmer to prove that the dog was shot
a. when it was worrying or was about to worry livestock and
b. that there was no other reasonable means of ending or preventing the worrying,
c. that he was the person in charge of the livestock, and
d. he notified within 48 hours the nearest Garda Station to the place where the dog was shot of the incident.

Take legal advice if you are in any doubt!

Garda Vetting – All you need to know if you work or volunteer with children or vulnerable adults

working-with-kids-daycare

This post is relevant for those who are involved in organisations that work with children or any person whose work or activity involves access to children or indeed vulnerable adults.

On the 29th of April 2016 the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012-2016 came into effect.

These Acts make it mandatory for people working with children or vulnerable adults to be vetted by the Garda Siochana National Vetting Bureau.

This bureau deals with requests to provide information on certain prospective employees or other workers and carries out vetting for relevant organisations that are registered with it. Vetting is not done for individuals on a personal basis.

Under the Acts, any person whose work or activity involves access to children or vulnerable adults must be vetted. This includes staff, volunteers and those on student placements working for a relevant organisation through which they have unsupervised access to children and/or vulnerable adults.

A “relevant organisation” is defined in Section 2 of the Acts as one that employs or permits a person to carry our work or activities which mainly consist of them having access to, or contact with, children or vulnerable adults.

The work or activities where people working with children and vulnerable adults will require vetting will include:-

1. Child Care Services.
2. Schools.
3. Hospitals and Health Services.
4. Residential Services or accommodation for children or vulnerable persons.
5. Treatment, Therapy or Counselling Services for children or vulnerable persons.
6. Provision of Leisure, Sporting or Physical Activities to children or vulnerable persons.
7. Promotion of Religious Beliefs.
8. Under the Private Securities Service Act 2004 Garda Vetting has been extended to Private Security Employees (for example, bouncers and night club security staff).


Re-Vetting

Section 20 of the Acts provides for the re-vetting of employees and other workers after a certain period of time which is to be set out in regulations. Until then, good practice suggests that re-vetting should be carried out every five years.

An organisation that requires Garda Vetting of individuals must register with the National Vetting Bureau. The organisation must appoint a liaison person to apply for and receive vetting disclosures. There is further information on the National Vetting Bureau website.

Under the Acts there are penalties attached for people who employ or enter a contract of service or allow a person to undertake relevant work on behalf of the organisation unless the organisation receives a vetting disclosure from the Bureau in respect of that person. Similarly those who fail to comply in terms of re-vetting also commit an offence as shall those who falsify or alter a vetting disclosure or make a false statement for the purposes of obtaining, or enabling other persons to obtain, a vetting disclosure or allows a vetting disclosure which relates to him or her to be used by another person in such way as to give rise to the reason to belief that records related to another person.