Tag Archive for: family law

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.

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