Categories
Family Law

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

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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.

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.

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 (this was changed in 2011-see below)
  • The parents of an adult child
  • The HSE.

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.

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.

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.

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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Categories
Family Law

Ancillary Orders in Judicial Separation and Divorce

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The Family Law Courts in Ireland have considerable powers to make additional orders, called ancillary orders, in divorce and judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 , the Family Law Act, 1995 (judicial separation proceedings) and the Family Law (Divorce) Act, 1996 (divorce proceedings).

The main factor determining these orders is the need to make “proper provision” for spouses and dependent members of the family.

The Courts also have the power to make preliminary orders in relation to judicial separation and divorce proceedings and these will be granted before the full hearing involving divorce or judicial separation.

An example of such a preliminary order is called a maintenance pending suit order which allows for maintenance payments to be made prior to the hearing of the divorce or Judicial separation proceedings. Domestic violence can also be dealt with through a preliminary order.

Custody and access orders

Custody and access arguments can be dealt with by way of preliminary order also as well as at the substantive hearing of the proceedings. Remember though that orders concerning access and custody can be obtained even where divorce or judicial separation proceedings are not contemplated under the Guardianship of Infants Act 1964.

It is worth noting also that even where divorce takes place a divorced person can still avail of relief under the Domestic Violence Act, 1996 even though ordinarily the person would not be considered to be a spouse in the eyes of the law once the decree of divorce is granted.

Financial Provision on Marriage Breakdown

Financial provision can be made on the breakdown of a marriage under the following broad headings:

  • maintenance
  • property
  • succession.

Maintenance

The common law duty for spouses to maintain one another is continued in the legislation covering marital breakdown and survives the ending of the marriage. The liability to maintain a former spouse only ends when that spouse dies or remarries.

This duty continues despite the execution of a separation agreement or an order of judicial separation or divorce.

Three types of maintenance order can be made under the Family Law Act, 1995:

  • a periodical payments order
  • a secured periodical payments order
  • a lump sum payment order.

The Family Law Act, 1995 also allows a court to make an attachment of earnings order at the same time as the making of a periodical payments order without any default in payment having taken place.

All ancillary relief orders will be granted by the Court in the light of ‘proper provision for each spouse and for any dependent member of the family…’ Learn more about maintenance orders here.

Property-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.

Property Adjustment Orders and Preliminary 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 on separation or divorce :

I.    Preliminary orders (effective until the hearing of the judicial separation or divorce proceedings)

II   Property adjustment orders

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

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

3. 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.

Pension adjustment orders

The Family Law Act, 1995 allows the making of a pension adjustment order which aims to allow the distribution of pension benefits by disregarding the terms of the pension scheme and either party can apply for this order.

However if you remarry you are prevented from applying for such an order.

It is important to note that any attempt by a separating couple to divide the benefits of a pension scheme between them will not work and will have no effect. Regardless of what an individual member of a pension scheme wants, the trustees of the scheme are obliged to be bound by the terms of the scheme.

If the parties come to agreement in relation to the pension then they will need an order of Court to effect that agreement and this can only be done after the granting of a decree of divorce or judicial separation by way of an order of Court.

If separating couples execute a deed of separation between themselves then they are depriving the Court of making an order in respect of the pension.

The recommended procedure would be to agree the terms of agreement between spouses, issue proceedings under the Judicial Separation and Family Law Reform Act, 1989 and an application to have the settlement terms made an order of Court and the relevant pension adjustment order made on consent.

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

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”.

Procedure in the Circuit Court and High Court

The Circuit Court and the High Court have jurisdiction to hear

  • applications for divorce
  • decrees of judicial separation
  • applications for orders under the Family Law Act, 1995
  • applications for decrees of nullity.

Most of these proceedings will be commenced with a Family Law Civil Bill (Circuit Court) or Family Law Summons (High Court).

Where financial relief is sought it will be necessary to file an Affidavit of Means. Where there are dependent children involved, regardless of whether financial relief is sought, an Affidavit of Welfare must be sworn and filed.

Discovery

Discovery is the procedure whereby both parties obtain full and detailed information about the other’s income, debts, assets, and liabilities. There are strict rules in the Circuit Court and High Court in relation to discovery.