Proper Provision | Family Law Case

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.

Family Law | Children

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.

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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.

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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.