Categories
Family Law

The Enforceability of Family Law Mediation Agreements

Mediation agreements are negotiated agreements between the parties in dispute. They are in common use when it comes to separating couples when the relationship has broken down and the parties seek to do the sensible thing and negotiate certain terms to cover matters such as property, maintenance, custody, access, and so forth.

Mediators guide the parties to their own agreement but do not give legal advice and the mediated agreement is not legally enforceable unless an extra step is taken.

The Mediation Act 2017 is important in this connection, however, as section 11(2) of the Mediation Act 2017 states

(1) The parties shall determine—

(a) if and when a mediation settlement has been reached between them, and

(b) whether the mediation settlement is to be enforceable between them.

(2) Notwithstanding subsection (1) and subject to subsection (3), a mediation settlement shall have effect as a contract between the parties to the settlement except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.

Mediated agreements must be ruled in court in a divorce or judicial separation. However, the court retains its discretion as to whether the agreement makes proper provision and will not rule such an agreement in certain circumstances set out in section 11(3),

where
(a) the mediation settlement—

(i) does not adequately protect the rights and entitlements of the parties and their dependents (if any),

(ii) is not based on full and mutual disclosure of assets, or

(iii) is otherwise contrary to public policy,

or

(b) a party to the mediation settlement has been overborne or unduly influenced by any other party in reaching the mediation settlement.

The Mediation Act 2017 and solicitors

Section 14 of the Mediation Act, 2017 sets out the obligations on solicitors under the act as follows:
Practising solicitor and mediation

(1) A practising solicitor shall, prior to issuing proceedings on behalf of a client—

(a) advise the client to consider mediation as a means of attempting to resolve the dispute the subject of the proposed proceedings,

(b) provide the client with information in respect of mediation services, including the names and addresses of persons who provide mediation services,

(c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation,

(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk, and

(e) inform the client of the matters referred to in subsections (2) and (3) and sections 10 and 11 .

(2) If a practising solicitor is acting on behalf of a client who intends to institute proceedings, the originating document by which proceedings are instituted shall be accompanied by a statutory declaration made by the solicitor evidencing (if such be the case) that the solicitor has performed the obligations imposed on him or her under subsection (1) in relation to the client and the proceedings to which the declaration relates.

(3) If the originating document referred to in subsection (2) is not accompanied by a statutory declaration made in accordance with that subsection, the court concerned shall adjourn the proceedings for such period as it considers reasonable in the circumstances to enable the practising solicitor concerned to comply with subsection (1) and provide the court with such declaration or, if the solicitor has already complied with subsection (1), provide the court with such declaration.

(4) This section shall not apply to any proceedings, including any application, under—

(a) section 6A, 11 or 11B of the Guardianship of Infants Act 1964 ,

(b) section 2 of the Judicial Separation and Family Law Reform Act 1989 , or

(c) section 5 of the Family Law (Divorce) Act .

Solicitors need to ensure clients know that mediation is a voluntary process to arrive at a negotiated solution for the parties. Mediation agreements are intended to be binding but it is advisable that any such agreement is not legally binding until it is put into a legal format. For this reason both parties should be advised and encouraged to obtain legal advice before signing the concluded agreement.

The Law Society advises its solicitors to state that such agreements are not legally binding until further steps are taken to give it binding legal effect. Solicitors are advised to insert the following clause in the agreement:

“We are signing the mediation settlement in recognition of completion of our mediation. We understand that, in signing this, we are not entering into a legally binding and enforceable agreement, for which more steps must be taken to give binding effect to our mediation settlement.”

In summary, the Mediation Act 2017 provides that the mediation agreement shall have effect as a contract between the parties unless expressly stated to be otherwise. The Law Society recommends the clause above to ensure this is the case.

Categories
Family Law

Divorce Law in Ireland Changes from 1st December 2019

divorce law ireland

The law dealing with divorce in Ireland is to change from 1st December 2019.

Part 1 and part 2 of the Family Law Act 2019 will come into effect on 1st December 2019.

The Family Law act 2019 reduces the time that the parties must be living apart in order to obtain a divorce. The minimum living apart period will be 2 years out of the last 3 years; it was necessary to live apart for 4 out of the previous 5 years.

The act also gives statutory certainty to what it means to be living apart from the perspective of getting a judicial separation or divorce.

Part 3 of the act, which is not to commence yet, will deal with the effects of a no-deal Brexit, if it occurs, and will deal with the impact of a no-deal Brexit on the recognition of UK divorces and judicial separations in Ireland.

You can read the Family Law Act 2019 here.

Categories
Family Law Litigation

The Parties in Legal Proceedings in Irish Law

parties in legal proceedings

Are you confused about the parties in a civil legal action?

In this piece, I will, hopefully, clear up any confusion.

Sounds good? Let’s go.

The Plaintiff

The Plaintiff is the party who brings an action or claim against another party. A party can be an individual or a company.

The Defendant

The Defendant is the party against whom the claim is made. This can be an individual, partnership, limited company.

It is vitally important that before commencing legal proceedings you ascertain the correct defendant. For example, if you have had a bad paint job done by a painter called Mick do you sue Mick, or perhaps he has been trading as a limited company.

Or maybe he is in a partnership, with a registered business name, but you have never met the partner.

Remember, if you sue Mick and his company is the correct legal person to sue, you will be wasting your time and money, and your case will be thrown out of Court.

You need to carry out a search on the Companies Registration Office website to check out the situation. The CRO has registers of limited companies and registered business names.

A Minor Plaintiff

A minor plaintiff is a plaintiff under the age of 18 years when the legal proceedings commence, and must sue through through a next friend who will normally be the mother or father.

A Person of Unsound Mind

A person of unsound mind is also known as a person under a disability. He or she needs to sue through a next friend, too.

A Minor Defendant

A minor defendant-that is, a defendant under the age of 18 years-must defend legal proceedings through a guardian ad litem, as he cannot defend in his own name. The procedures for becoming a guardian ad litem is different in the three Courts (District, Circuit, High).

The Petitioner

If proceedings are brought by way of petition the person bringing them is the petitioner.

The Applicant

Sometimes there is no defendant as a person will bring an application to Court for something. This person is the Applicant.

The Respondent

The Respondent is the person against whom a petition or application is brought, for example in matrimonial proceedings.

The Co-Defendant

If more than one defendant is sued by the Plaintiff all defendants are co-defendants.

A Notice Party

A person or body who is not a party to the proceedings, but who may be affected by an order made in proceedings, is a Notice Party. The Notice Party can enter an Appearance in the proceedings and be heard in argument court.

The Attorney General

The Attorney General represents the State and the public interest in legal proceedings and is a necessary defendant when the constitutionality of a law is called into question.

Third Parties

Third parties are parties joined in eh legal proceedings by the defendant if the defendant alleges the third party is responsible if the plaintiff’s action succeeds.

Concurrent Wrongdoer

A concurrent wrongdoer is a party joined in the proceedings by the defendant from whom the defendant seeks a contribution or indemnity. The liability of concurrent wrongdoers is set out in section 11 of the Civil Liability Act, 1961.

Section 12 of the Civil Liability Act, 1961 sets out the extent of liability of the concurrent wrongdoer. In summary, each of the wrongdoers is each liable for the whole of the damage in respect of which they are concurrent wrongdoers.

Section 27 of the Civil Liability Act, 1961 sets out the procedure for claiming contribution from a concurrent wrongdoer.

Notice of Indemnity or Contribution

A notice of indemnity or contribution can be served by a defendant on one or more of the parties to the action. This includes a co-defendant or third party. No permission of the Court is necessary to serve such a notice.

Joining a Third Party

Joining a third party requires approval of the Court, although even if it is refused the defendant can bring separate legal proceedings for contribution against that intended third party. However, service of the notice seeking to join a third party to the proceedings must be served as soon as reasonably possible.

There are rules in each of the Courts for joining a third party to proceedings.

The Court has discretion, however, to refuse an order for contribution in an independent action for contribution.

Concurrent Wrongdoers in Personal Injuries Actions

Section 42 of the Personal Injuries Assessment Board act 2003 applies section 22 of the Civil Liability Act, 1961 in allowing claims for contributions between concurrent wrongdoers where the first concurrent wrongdoer settled with the Plaintiff.

Section 43 of the Personal Injuries Assessment Board act, 2003 applies section 18 of the Civil Liability Act, 1961. This means that an order to pay against a wrongdoer will not be a bar to an action against any other person who would, if sued, have been liable as a concurrent wrongdoer.

This means that non participating respondents are treated the same way as other respondents for the purpose of Civil Liability act, 1961.

Categories
Family Law

How to Change a Child’s Surname in Ireland

change child's name

If you want to change a child’s surname there is three ways this can happen:

  1. In the Birth Register
  2. By Deed Poll
  3. By Common Usage

Birth Register-Re-Registration

If the child has been registered in the mother’s name alone the birth can be re-registered in the Register of Births to include the father’s name. This can be done in the following ways:

  • Both parents register the birth together using form CRA9
  • The mother can name the father and bring along an acknowledgement from the father that he is the father
  • The father can bring along a declaration form acknowledging he is the father and a declaration from the mother confirming he is the father
  • The mother and father can make a written request on production of a court order which names the father.

The Registrar in your local office or the hospital will have the necessary forms.

Birth Register-Changing the Child’s Name

If the parents marry, and they both agree, the surname can be changed in the Birth Register. Both names, however, must have already been on the Birth Register.

Changing Child’s Name by Deed Poll

This will not change the child’s name on the Birth Register. Changing by Deed Poll involves presenting the Deed Poll and the child’s birth certificate in the deed poll section of Central Office of the High Court.

Children between the ages of 14 and 18 can sign a Deed Poll themselves, provided they have consent of both parents. Children under 14 will need to have the Deed Poll executed (signed) on their behalf by a guardian with the consent of the other guardian (if any).

Generally, the father will need to agree to the change of name, and he will have to sign a form confirming agreement.

If the father’s consent is not available all is not lost. The mother will have to swear a grounding affidavit.

This grounding affidavit of the mother must set out the reasons why the change is being sought, the father’s last address (if known), confirmation that the parents were or were not married, whether they lived together as a family unit, why consent is not available, the last date of contact with the father, and whether the mother is sole guardian or not.

If the father’s name does not appear on the child’s birth certificate the mother will have to swear a supplemental affidavit confirming there are no courts orders in place in relation to guardianship, access, custody or maintenance and setting out what role, if any, the father has in the child’s life.

The deed poll will have to be printed on deed paper and it will state that the mother wishes that the child be called by his/her new surname from now on.

The documents that need to be submitted to the Deed Poll section of Central Office of the High Court will be

  • Birth certificate
  • Deed poll
  • Affidavit of witness
  • Grounding affidavit of mother that father is not consenting
  • Certified copies of birth cert, passport and court orders relating to guardianship

A solicitor can send in the necessary documents, but the Deed Poll Section will not accept the documents directly from the applicant by post.

You can then enrol the Deed Poll on a publicly accessible register in the Central Office of the High Court, although this is not necessary and you can use the Deed Poll and the child’s birth certificate together for administrative purposes. The National Driving Licence Service (NDLS), however, requires the deed poll be registered for the purposes of getting a driving licence.

Changing Child’s Name by Common Usage

You can change a name by common usage, and use this for official purposes. You need to show 2 pieces of formal identification in which you use this name.

If you are the sole guardian of a child you can do this without any difficulty; if you are joint guardian you will need the consent of the other guardian.

Conclusion

Changing a child’s surname is easier with the agreement of the other parent.

But it is not fatal if the other parent does not agree or cannot be contacted, and applications can be made to the Deed Poll section of Central Office of the High Court and the Senior Registrar will decide based on the circumstances of the case.

Categories
Family Law

How to Pursue Arrears of Maintenance

arrears of maintenance

Have you a Court Order for maintenance but payments are not being made?

You can pursue the arrears of maintenance, and the creditor runs the risk of going to jail for contempt of court.

How do you pursue arrears?

Firstly, you must make an application for the issue of a summons. It shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:

(a) a copy of the antecedent order concerned;

(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;

(c) the amount of the arrears, and any amount provided by the antecedent order for costs and expenses which is unpaid;

(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.

The summons shall be in the Form 57.1 or Form 57.3 Schedule C. The summons shall, in addition to requiring the attendance of the defaulter at a sitting of the Court, also require the defaulter to complete, detach and lodge with the Clerk not less than one week before the date of the said sitting a statement of means and assets (in the Form 53.3 Schedule C, with the necessary modifications), which shall be attached to the summons.

Persons affected by garnishee order

A person served with an order who is unable to comply with the order may apply to the Court by notice of application in the Form 57.5 Schedule C to set aside or vary the order. A copy of the notice shall be served on the defaulter and on the applicant not later than seven days before the hearing of the application and the original notice shall be lodged with the Clerk not later than four days before the hearing of the application.

Warrant of detention

Where a failure by the maintenance debtor is treated as constituting contempt of court and an order of imprisonment is made, the warrant of detention shall be in accordance with Form 57.7 or 57.8Schedule C, as appropriate.

Application to purge contempt

  1. Where a person is imprisoned for contempt of court in accordance with section 9A of the Act of 1976:

(a) the person shall be notified in writing of the action required to purge his contempt;

(b) the Court may direct that, if the contempt has not previously been purged, the person shall be brought back before the Court at a place and time fixed by the Court.

Conclusion

The above is a summarised version only of what’s involved.

Even though you can follow this procedure yourself you might be better off engaging the services of a solicitor to ensure you are professionally represented and are not given the run around by somebody who does not hold Court Orders or their maintenance obligations in high regard.