Tag Archive for: Court

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

Win for Publicans in business interruption insurance case!

On 5th February 2021, the High Court ruled that several publicans were entitled to cover under FBD Insurance business interruption policies, for losses suffered because of the Covid 19 pandemic. This was a similar outcome to a case already decided in the UK Supreme court.

Justice Denis McDonald found that a policy sold by FBD covered losses sustained by the pubs having to close due to Covid 19. This ruling is similar to the recent UK Supreme Court decision of 15 January 2021 where the insurance regulator successfully challenged insurers refusal to indemnify certain businesses under business interruption policies.

FBD argued that their policy did not cover the disruption caused by Covid 19 as it never provided for pandemics, however the High Court disagreed, finding that cover is not lost where the closure of the business affected is prompted by a nationwide outbreak of a disease, provided that the outbreak is within a 25 mile radius and is one of the reasons for the closure of the business.

This is a significant ruling for many businesses with similar business interruption policies. It remains to be seen however whether this ruling will be appealed in the near future. Mr Justice McDonald has delayed a decision quantifying the losses suffered by the publicans until a later date and we will be able to update you once this aspect of the judgement is given.

Following the judgement, Insurance companies indicated that they would work with insured clients. Whilst this case was against FBD, the principles apply to all insurance companies. The full text of the judgement can be found here https://www.courts.ie/acc/alfresco/8bfaa5dd-3ea3-4580-979f-0dfb2d8243be/2021_IEHC_78.pdf/pdf#view=fitH

If you are a publican, restaurant or business owner and feel you might be affected by this judgement, you should first read carefully your insurance policy, liaise with your broker and if you have any questions contact our Head of our litigation Lorcan Dunphy at 062 61288 or email ldunphy@dtryan.ie

Local Courts – Immediate Access – Family law

The District Court is a Court of local and limited jurisdiction but is the work of this Court that the general public hear about most often – have you heard Paddy O’Gorman on the Today with Sean O’Rourke RTE radio show?

The District Court is usually held once or perhaps twice a month in a local town and deals with a variety of cases. From a Family Law point of view it is often the Court of first contact for parties when their relationships have broken down, and they require immediate protection from the Courts. Orders under the Domestic Violence Legislation or Maintenance and Access to children are the types of situations that are dealt with by the District Court on a day to day basis.

In this blog, I set out the types of family law applications that can be made in the District Court and the range of Orders that can be made by the Court.

One of the most common applications to the District Court is for a Protection order – when a party is in fear of, their partner or the other parent of their child and the protection of the Court is required. A Protection order enables a party who feels that their health and safety is at risk, and they are in fear of the other person to apply to the Court in an ex-parte application ( without notice to the other side) and after giving information to the Judge under Oath – why they should be given the protection of the Court. If the Court accepts their evidence then the party can get a Protection Order which prohibits the other person from using violence, threatening violence, molesting or putting the victim/partner/spouse in fear. This is a temporary Order and only lasts until the hearing of the main Court case where the party against whom it is sought has the right to put their case forward.

The long term applications that can be sought in the District Court are a Barring Order for a period of up to three years and a Safety Order for a period of up to five years.

The other most common order in the District Court relates to Maintenance – this is where a parent / spouse / partner can apply to the Court and seek a regular payment from the other parent / spouse or partner. The District Court only has the power to Order payments to a maximum of €150.00 per week per child and €500.00 per week in respect of a spouse. If you are seeking a payment above this, an application needs to be made to the Circuit Court. It is also possible as part of the Court Order to have your maintenance paid through the District Court Clerk’s office. If the maintenance is not paid, then it is open to the Maintenance Creditor to again apply to the Court for a variety of reliefs.

The District Court is a Court of first jurisdiction and the work of the District Court especially in family law matters is of most importance to the general public.

Donal T.Ryan Solicitors LLP Cashel and Cahir, represent clients in all Courts. Aidan Leahy and Máire McMahon are experienced District Court practitioners in all aspects of Court work. Contact us at 062 61288 or 052 7441244 or www.dtryan.ie