Declarations of Parentage and Paternity

The Status of Children Act, 1987 makes provision for declarations of parentage. This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

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The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order. These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.

Check out  solicitors in Dublin..

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Recognition of Foreign Divorces in Ireland

The recognition of foreign divorces in Ireland is governed by two principle pieces of legislation:
1. The Domicile and Recognition of Foreign Divorces Act, 1986 and
2. The Brussels II regulation of 2001, later amended by Brussels II bis.
These laws govern divorces post 1986; the law concerning divorce before 1986 will be common law rules.

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The Domicile and Recognition of Foreign Divorces Act, 1986

This Act covers divorces that were applied for post 1986 and the essential thrust of the legislation is that if either spouse was domiciled in the jurisdiction granting the divorce at the date of commencement of proceedings then that divorce will be recognised in Ireland. (Domicile is living in a place with the intention of residing in that place permanently).

Section 29 Family Law Act, 1995

If your circumstances are such that failing to prove that one of the parties was domiciled in the jurisdiction granting the foreign divorce then you might consider section 29 of the Family Law Act 1995.

 

This allows an application to be made in the Circuit Court or High court for a declaration that a foreign divorce is entitled to be recognised in Ireland. In fact you can seek various declarations concerning divorce, legal separations or annulments granted in foreign Courts.

 

However do note that this procedure does not cover situations covered by the Brussels II regulation which states that foreign divorces in Brussels II countries are automatically entitled to recognition in Ireland.

United States Divorces

Generally each State or jurisdiction is treated separately for the purposes of recognition of a foreign divorce and this is very pertinent re the United States of America and American divorces.

United Kingdom Divorces

However the United Kingdom is an exception to this rule insofar as the UK is considered to be one state. The effect of this is that a divorce granted anywhere in the UK will be recognised in Ireland provided that one of the spouses is domiciled anywhere in the UK.

Exceptions to the recognition of foreign divorces in Ireland

There are a number of circumstances where a foreign divorce will not be recognised in Ireland including:

1. Non Judicial Divorces
Generally the divorce will have to have been obtained legally/judicially in the foreign jurisdiction.

2. Duress
If a spouse is pressurised or put under duress to apply for a divorce the subsequent divorce will not be recognised in Ireland.

3. Fraud
If a foreign divorce is obtained by fraud it will not be recognised in Ireland as a valid divorce decree.

4. Denial of justice
This is a wide, catch all type of category which affords considerable discretion to Irish Courts in recognising (or not) foreign divorces.

foreign-divorces-in-ireland1

Brussels II BIS

This European Council Regulation replaced the original Brussels Regulation which provided for recognition of divorces, separations and nullities granted in other EU jurisdictions.

Brussels II BIS will apply where one of the spouses resides in or is a national of another EU member state and the principal aim of this regulation is to recognise EU divorces on an EU wide basis. (Note: the question of domicile still applies between Ireland and the UK as outlined above)

foreign-divorces-in-ireland2

In summary Brussels II BIS states that judgments given in competent courts in the EU in relation to separation, divorce or annulments should be recognised in all EU member states. However Brussels II BIS goes a step further in providing a voice for the child in these proceedings and ensures that if the child is not given an opportunity to be heard then any judgment under Brussels II Bis will not be valid or recognised.
Brussesls II Bis came into effect in Ireland in 2005.

Maintenance and foreign divorces

There are now procedures in place in Ireland to allow the enforcement of maintenance orders between countries thanks to the Rome convention and the New York convention and the Maintenance Act, 1994 coming into law in Ireland.

In addition the Family Law Act, 1995 provides for the application in Ireland for certain reliefs arising from a divorce obtained abroad.

Jurisdiction and service

The question of service of proceedings in foreign divorce proceedings is a critical one. Brussels II Bis provides that where there is a dispute as to which court will have jurisdiction that the first court in which the documents commencing proceedings is lodged will have jurisdiction. This can give you a significant advantage in your case, especially from a costs perspective.

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Domestic Violence Act 1996-Related Proceedings and Breach of Barring Orders

The Domestic Violence Act, 1996 makes provision for a number of useful powers of the Court in domestic violence cases. These include

1. How breaches of Court orders can be dealt with quickly by the Gardai
2. How the Court can deal with related issues such as access and maintenance without the need to issue new proceedings
3. How any Court Orders take effect.

breach-of-barring-orders

Breach of barring orders is a criminal offence

Breaches of Court Orders

The Gardai have considerable powers of arrest under the Domestic Violence Act, 1996 to enforce Court orders along with their normal powers under various other acts such as Criminal Damage Act, 1991. They can arrest without warrant for example where the victim is someone who could apply for a barring order or safety order.

This is part of our family law in Ireland series of articles.

They also have a duty to investigate and record all reports of incidents of domestic violence.

Related proceedings

Courts have the power to deal with access and maintenance along with the substantive issue of a barring order application without the need to issue separate proceedings in respect of access and maintenance.

Generally the guiding principle for the Court in determining access is what is in the best interests of the child. However where there are issues of domestic violence or violence to children this principle takes a back seat to the question of whether the child needs to be protected.

Taking effect of Court orders

The Domestic Violence Act, 1996 provides that any Order made under the Act will take effect by oral notification to the respondent and the provision of a copy of the Court order.
In fact if the respondent is in Court when the order is made this is deemed to be valid notification.

Penalties for Breach of Barring Orders

The penalties for breaching Court orders made under the Domestic Violence Act, 1996 include
• A fine not exceeding £1,500 (approx. €1,905) and/or 12 months imprisonment and is a criminal offence.

In addition the Court has discretion to convict for contempt of Court and breach of an Order may lead to liability in any civil legal proceedings brought.

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Domestic Violence Remedies | Barring Orders,Safety Orders and Protection Orders

Domestic violence in Ireland was first recognised on the statute books in the Family Law (Maintenance of Spouses and Children) Act, 1976 with the introduction of the first civil remedy for domestic violence. This act introduced the notion of a “barring order” which is a court order excluding the violent partner/spouse to be excluded from the home.

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Domestic Violence Act, 1996

The Domestic Violence Act, 1996 built upon this legislation of 30 years before and sets out three main aims:-

  1. To protect spouses and children and others in domestic relationships whose safety and welfare is at risk in the relationship;
  2. To increase the powers of the Gardai to arrest witout warrant in certain situations;
  3. To allow a Court to hear other related applications, such as for maintenance, custody and access, at the same time as the application for a barring order.

This legislation builds upon the protection offered by the Family Law (Maintenance of Spouses and Children) Act, 1976 to provide protection for non-spouses such as cohabitants and family members.

Domestic violence remedies

It also extended the range of remedies available in cases of domestic violence to include

  1. A barring order
  2. An interim barring order
  3. A protection order and
  4. A safety order.

Barring order

A barring order is an order which directs the respondent to leave the premises where the applicant lives and preventing the respondent from returning to the premises until the Court allows. In making a barring order the Court must be satisfied that the safety or welfare of the applicant justifies making the order.

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A barring order can last for up to 3 years.

 

An applicant for a barring order who is not a spouse must have an equal or greater interest in the property than the respondent. In addition to this test the couple must have lived as “husband and wife” for 6 months out of the previous nine months period.

 

In summary there are 4 types of people who can apply for a barring order:-

  1. A spouse
  2. Cohabitants who have lived together for 6 out of the previous 9 months
  3. A parent of an adult child who is a non-dependent
  4. The Health Service Executive on behalf of an entitled person.

Interim barring order

An interim barring order is one which a Court can make to cover the period of time between the commencement of legal proceedings and the hearing of the action. The criteria to be applied by a Court is whether the applicant is in immediate risk of significant harm and the granting of a protection order would not be sufficient to protect the applicant.

An interim barring order can be applied for on an ex parte basis but will be limited in duration to a maximum of 8 working days in the interests of fair procedure (Domestic Violence (Amendment) Act, 2002).

 

Protection order

A protection order does not put the respondent out of the family home but does order him/her not to use violence, threats, molestation or use violence against the applicant. A protection order will only last until the hearing of the barring or safety order proceedings and are available to anyone who has commenced proceedings for a safety or barring order.

 

Safety order

A safety order is similar to a protection order but does have a life of it’s own and can last for up to 5 years.

There are two common situations where a safety order is useful:

  1. Where the applicant is trying to help the respondent deal with, for example, alcoholism but also wishes for protection from violence and
  2. Where spouses are separated in fact but have not yet applies for a divorce or separation.

Safety orders can be applied for by

  • Spouses
  • Cohabitants who have lived together for 6 out of the previous 12 months
  • The parents of an adult child
  • The HSE.

Update August 2011-Civil Law (Miscellaneous Provisions) Act, 2011

The Civil Law (Miscellaneous Provisions) Act 2011 has made significant changes to the Domestic Violence Act 1996.

Prior to the enactment of this legislation an applicant for a safety order who was a cohabitant ( that is, not a spouse) had to have lived as husband and wife with the partner for a period of 6 out of the previous 12 months.

The requirement now as a result of the  Civil Law (Miscellaneous Provisions) Act 2011 is for the applicant who:

(ii) is not the spouse or civil partner within the meaning of the Act of 2010 of the respondent and is not related to the respondent within the prohibited degrees of relationship, but lived with the respondent in an intimate and committed relationship prior to the application for the safety order, or..

The effect of this change is that there is no specific requirement of living together for a particular period of time required. Now it is only necessary to show that the applicant:

lived with the respondent in an intimate and committed relationship prior to the application for the safety order.

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The Family Mediation Service | Free Service for Separating Couples

The Family Mediation Service is a free service run by the Family Support Agency. It is a completely free service and provides mediation services to couples, both married and unmarried, who are separating or whose relationship has broken down.

family-mediation-service

Professional, trained mediators help the couple to negotiate their own agreement to deal with

  • The family home and property issues
  • The children
  • Pensions and
  • Any other issues that arise in a separation.

The accredited and professional mediator maintains a neutral position and does not take sides but seeks to help the couple to reach agreement for separation.

In order to avail of the service it is important that both parties are agreeable and contact the mediation service separately.

(This is part of the family law in Ireland series of articles)

Mediation sessions

Generally a session will last for around 1 hour and there will be 3 to 6 sessions in the mediation. Ultimately a good outcome is to arrive at a written agreement concerning all of the issues which can then be brought to a solicitor who can draft a legally binding separation agreement.

Mediation is completely confidential and there are a number of full time and part time offices around the country. Take a look at www.fsa.ie to see where these are located.

family-mediation-service1

The Family Mediation service publish a number of very helpful booklets which you can access on their website above which deal with many of the important issues of separation such as

  • Financial matters
  • Children
  • Parenting plans.

It is a statutory requirement (Judicial Separation and Family Law Reform Act, 1989, sect. 5 and 6) for a solicitor to advise couples who are separating and who wish to apply for a Judicial Separation to

  1. Discuss reconciliation and
  2. Discuss mediation and
  3. Coming to a negotiated settlement by way of a separation agreement or deed.

The Family Mediation Service, as well as being professional and free, can have the additional benefit of reducing your legal costs when it does come to having a separation agreement drafted or when seeking a Judicial Separation or divorce.

Being able to present to a solicitor with many of the major issues agreed can make life easier and more cost effective for all concerned.

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Separation Agreements and Divorce-The Impact of a Separation Agreement on Divorce Proceedings in Ireland

Because a separation agreement in Irish law is a binding contract it prevents the bringing of proceedings for Judicial Separation under the Judicial Separation and Family Law Reform Act 1989.

Divorce proceedings

However a separation agreement is not a bar to subsequent divorce proceedings under the Family Law  (Divorce) Act 1996 and in deciding upon divorce proceedings the Court will have to “have regard” for the terms of any separation agreement.

divorce-proceedings

The difficulty can arise though where divorce proceedings are brought some time after the separation agreement has been entered into and the financial fortunes of either or both parties have changed significantly.

In K v K [2003] High Court decided that the Court had to decide what was “proper provision” at the date of divorce, not the date of the separation agreement and this can lead to a significant redistribution of the assets.

In circumstances where the separation agreement precedes the divorce proceedings fairly recently in time then there probably will not be any reason for a significant departure from the provisions of the separation agreement (unless of course there has been a material change in financial circumstances of the parties). (This is part of the family law in Ireland series of articles)

In M.P. v A.P. 2005 High Court the Court held that the weight to be placed on a Judicial Separation Consent Agreement in divorce proceedings will depend on

  1. The length of time since agreement was reached;
  2. The financial background pertaining to the Consent Agreement;
  3. The reasonable expectation of the parties.

If your marriage has broken down you should consult a solicitor who will explain the various options open to you and any pitfalls to avoid.

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The Non Marital Family in Ireland-The Legal Position

The constitution of Ireland recognises and protects, in articles 41 and 42, the family which it defines as the marital family. These rights are not conferred on the unmarried parents but the rights of non-marital children are held to be just the same as marital children.

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The unmarried mother

The unmarried mother has a natural right to the custody and care of her child but does not enjoy the protection provided by the constitution to the family in article 41. She is, unlike the natural father, automatically the guardian of the child.

 

The unmarried father

The unmarried father has no constitutional rights in relation to his child.

 

Guardianship of the child

The unmarried father of a child can now apply, thanks to the Status of Children Act 1987, to be appointed as joint guardian of the child along with the mother. Any such application will be determined by the Court through the prism of what is in the best interests of the child.

The parents can also, without the need to go to Court, make a statutory declaration agreeing to the father becoming a guardian of the child.

You might also be interested in guardianship, access and custody.

Custody and access

Whilst the natural father does not have a constitutional right to custody of the child (unlike the mother’s constitutional right), he can apply to the District Court for a custody and access order. Generally the natural father will be successful in obtaining access through the courts.

 

Maintenance

Unmarried people in a relationship with children cannot seek maintenance from the other partner for him/herself but can seek maintenance for the child/children under the Family Law Act, 1976.

 

Succession

Non marital children have the same succession rights as marital children since the Status of Children Act 1987.

 

Property

Unmarried cohabiting couples do not enjoy the protection of the Family Home Protection Act 1995.

Cohabitation agreements

Cohabitation agreements which attempt to replicate a marriage situation are not recognized in Irish law as they are held to be against public policy and unenforceable. Agreements between cohabiting couples though about other matters such as money or property would be enforceable like normal commercial contracts provided their existence did not depend on the performance of marital difficulties.

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Child Care Law In Ireland

The principle law in Ireland in relation to the care of children is the Child Care Act, 1991. Incidentally a child is defined as a person under the age of 18 who has not married.

The Child Care Act provides that in any court proceedings concerning a child the Court must regard the welfare of the child as the principle guide in it’s decision making. Depending on the age of the child, the Court will also have to have regard to the wishes of the child and the parents but the guiding principle is the welfare of the child.

 

The Child Care Act 1991 also sets out the role of the HSE in child care issues and under section 3 of Part III of the Act which places certain duties and obligations on the HSE in the whole area of child care. The HSE must also have regard to the wishes of the parents in carrying out it’s statutory duties.

 

High Court decisions have held that it is generally in the best interests of the child to be brought up in his own family so for this reason the intervention of the HSE to override the wishes of the parents has been limited to exceptional cases.

 

Voluntary care

Section 4 of the Child Care Act allows the HSE to take a child into voluntary care with the consent of the parents where the child’s care and protection requires it.

 

Section 5 of the Act obliges the HSE to deal with homeless children and provide them with “suitable accommodation”.

 

Children in emergency situations

Both the HSE and the Gardai have extensive powers to protect children in emergency situations. Section 12 allows the Gardai to remove a child to safety where there are reasonable grounds for thinking that there are immediate and serious risks to the welfare or health of the child. When this occurs the HSE is then obliged to make an application for an emergency care order in the District Court.

 

This emergency care order will see the child being placed in the care of the HSE for up to 8 days.

 

The HSE and care proceedings

Part IV of the Act covers the role of the HSE in situations where the child is thought to be in danger. If the HSE considers that a child is in need of care or protection it has a positive obligation to make an application to Court for either a care or supervision order.

 

Care orders

A care order places the child in the care of the HSE for so long as he remains a child or for a lesser period. The HSE then acts as a parent to the child.

 

Supervision order

A supervision order is a half way house measure-the Court can make a supervision order prior to deciding on the merits of making a care order and involves the HSE calling to the child’s house to check on the welfare of the child and to advise the parents about caring for the child.

 

Parents can be guilty of a criminal offence if they do not comply with the supervision order.

 

Interim care order

An interim care order is a care order for a short period of time-up to 28 days-and is designed to protect the child in the short term. An interim order can be longer than 28 days if the parents consent.

 

Guardian ad litem

The Child Care Act 1991 introduced into Irish law the “guardian ad litem” which is a court appointed person to represent the child’s interests in any proceedings under the Act; he/she is independent of both the HSE and the child’s parents.

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Factors the Court Considers When Making Orders on Divorce and Judicial Separation

The family law Courts have considerable powers to make orders called ancillary relief orders on granting decrees of divorce and judicial separation in Ireland.


 

What does the Court consider when making these orders?

 

As dealt with elsewhere on this site (family law in Ireland) the Courts can make orders in respect of property, pensions, maintenance, financial compensation orders and succession rights. The factors the Court will consider when making these orders are

I.     The actual and potential financial resources of both spouses

II.     The actual and likely financial needs, obligations and responsibilities of both spouses

III.     The standard of living of the spouses before the separation or divorce

IV.     The length of marriage and the ages of the spouses

V.     Spousal contributions-this is increasing in importance in the Court’s considerations and looks at not just financial contributions but time spent looking after home and family

VI.     Earning capacity or lack of it due to time spent in the home due to marital responsibilities and the lack of future earning capacity due to the sacrifice of career made during marriage

VII.     Statutory entitlements-any benefit or income either spouse is entitled to in law

VIII.     Conduct-this is not a hugely important factor unless the conduct is egregious

IX.     The accommodation needs of both spouses

X.     Any separation agreement entered into by the spouses and which is still in effect

 

 

All of these factors will be considered under the overarching goal of attempting to ensure proper provision is made for both the spouse and any dependent members of the family.

 

It is noteworthy that even where there is a full and final settlement clause in the divorce the Courts can still make a change to any maintenance order as in Irish law there is really no “clean break”.

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Marital Breakdown and the Family Home

The Family Home Protection Act 1976 describes the family home as “primarily a dwelling in which a married couple ordinarily reside”.

When a marriage breaks down in Ireland and divorce or judicial separation proceedings are instituted the family home will loom large in considerations as for many couples it is the principal or only asset that they have.

(This is part of the family law series of articles)

The recent fall in property values has caused chaos in this regard though as many people see that there is nothing to divide up after paying off the bank.

 

Property adjustment orders

Courts can make property adjustment orders in separation or divorce proceedings; in fact they can also make preliminary orders in respect of the family home which are orders which predate the hearing of the legal proceedings.

 

Courts have the power to make the following orders:

I.     The property to be transferred from one spouse to another or to another person

II.     The reduction or extinguishment of any interest that a spouse has in the property

III.     The settlement of the property to either spouse

 

 

However no order can be made in favour of a spouse who remarries and an application for a property adjustment order must be made during the lifetime of the other spouse.

 

The Courts can also order the sale of the family home but cannot do so if one of the spouses remarries and is living in the home with his/her new spouse.

 

All property adjustment orders can be varied except an order directing the sale of the family home and this has been carried out.

 

Property adjustment orders can also be made in respect of all types of property, not just the family home.

 

Succession rights

A spouse has an entitlement under the Succession Act, 1965 to one half (if there is no children) or one third (if there is children) of the deceased spouse’s estate. However the Judicial Separation and Family Law Reform act 1989 allowed for the first time the extinguishment of the share to which the spouse would be entitled under the Succession Act, 1965 but only provided proper provision has been made for the spouse losing their succession entitlements. This of course only applies in Judicial Separation cases as in divorce cases the “spouse” is no longer a “spouse” after divorce and loses Succession Act entitlements automatically.

 

However the Court will generally make allowance for this loss by making what it considers the necessary ancillary orders on granting a decree of divorce.

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