What is Proper Provision in Divorce Cases?

Many people, particularly wives, seem to think that if they divorce, they are automatically entitled to 50% of everything their husband has. Often the husband thinks he has the same entitlement. The position is set out in the Family Law (Divorce) Act, 1996, which states that every case will be the decided on its own particular merits but that the court will specifically take the following into account in deciding what constitutes proper provision:

• The income and earning capacity and financial resources of both spouses.
• The income and earning capacity and financial resources of both spouses.
• The financial needs, obligations and responsibilities which each spouse has or is likely to have.
• The standard of living of the spouses before the proceedings.
• The age of the spouses and the length of their marriage.
• Any physical or mental disability of the spouses.
• The contribution, which each of the spouses has made or is likely to make to the welfare of the family.
• Whether the earning capacity of either of the spouses has been affected by the marriage.
• The income and benefits to which either spouse is entitled.
• The conduct of each of the spouses.
• The accommodation needs of either spouse.

The benefit (e.g. under a pension scheme) which one of the spouses may forfeit by virtue of the divorce.

The rights of any third party affected by the divorce.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

This is extremely wide but at least it gives you an idea what the court can take into account before granting a divorce.

Many people believe that the court is no longer interested in the reasons why a marriage broke down. In other words, they do not attribute blame. As you can see under (i) above, the conduct of the spouses can be very relevant. Under (d) above, the length of the marriage is very relevant and is particularly so in cases where the marriage was short lived. An argument can be made under (b) above that if one spouse has not worked for many years then it can be argued they have an obligation and a responsibility to perhaps look for employment in order to ease the financial burden on the other spouse.

Another issue that increases tension where a relationship is breaking down is where one spouse, usually the wife will say that the husband has to leave the family home and he can get himself a flat somewhere. Under (j) above, it will be seen that the accommodation needs of either spouse must be taken into account, not just one of them. If the man in the above example has children, he is quite entitled to argue that if he has to have any future relationship with his children, he needs to be able to look after them and have arrangements in place to provide for their accommodation as well as his own accommodation and this will mean that he needs accommodation appropriate to look after his children and look after them overnight.

In my experience, bad conduct of one of the parties tends to get glossed over in family law proceedings. If it is relevant to the justice of the decision the court has to make, then it should not be ignored.

Kevin Brophy
Brophy Solicitors

PROPOSALS SEEK TO STRENGTEN CHILDREN’S RIGHTS

Full text available at http://www.irishtimes.com/newspaper/frontpage/2012/0725/1224320764736.html

Report of Special Rapporteur on Child Protection

Any person should be able to apply to court to seek to have a child at risk placed in the care system under proposals being examined by the Government.

At present only the Health Service Executive (HSE) may take court proceedings to have a child placed in the care system.

The recommendation is one of many included in a report by the Special Rapporteur on Child Protection, Dr. Geoffrey Shannon.

The report says any person should be able to seek an order in respect of a child who is not subject to care proceedings. However, there are some limitations in order to avoid nuisance applications and also to prevent interference with the Constitutional rights enjoyed by the family in Article 41.

These applications will only be allowed in ‘exceptional circumstances.’ An applicant would be required to show ‘reasonable grounds’ to believe that the child had not been receiving adequate care and protection. It would also only be accepted in cases in which a child had previously been brought to the attention of social services.

The proposals follow on from the findings of  the Independent Child Death Review Group that social services had “abdicated their duty” by failing to protect the welfare of many vulnerable young people who were known to the HSE.

The report expresses concern that some young people are spending years in institutional care or in multiple placements because of the lack of “suitable” foster families. It recommends that a shortage of foster placements be addressed without delay. Other proposals include:

The report also proposes that all non-EU national parents of Irish citizen children are given permission to remain in Ireland, on foot of  the landmark European court judgment last year. It also proposes inserting a reference in the referendum on children’s rights in the constitution to allow the right of children to be heard in all judicial and administrative proceedings which relate to them.

Minister for children Ms. Frances Fitzgerald alluded to the fact that the key message in this report is that we must continue to implement our ongoing reform agenda for children and families. The proposals in this report will ensure that the welfare of children always come first and that if any member of the public has concerns about the welfare of a child these can be brought to the attention of the authorities who can then look into the matter and decide if their assistance is required.

Publication of the ‘National Standards for the Protection and Welfare of Children’

This report comes at the same time as  the publication of the ‘National Standards for the Protection and Welfare of Children’ by (Health information and Quaility Authority) HIQA..  These standards will ensure that frontline services will be subject to independent inspection for the first time to ensure they are providing adequate care and protection to vulnerable children. This follows a series of damning reports which have highlighted serious failures in child protection and welfare services.

Barnardos have welcomed the publication of these standards as are of the opinion that they will enhance the welfare and protection of children in Ireland.

Taoiseach Enda Kenny also announced yesterday that he expects legislation in connection with the Children’s Rights Referendum to be published shortly. He made reference to the ‘devastating’ reports into children’s services in the past and it was commented that for too long the needs of vulnerable children were not adequately protected. The proposed legislation will be put together through consultation between Minister Frances Fitzgerald and all interested groups who work on behalf of children. This will ensure that those who are experts in the area have an imput into deciding on how this legislation should be framed and this can only result in a positive outcome.

At Brophy’s we feel that these developments ensure that the care and welfare of children is no longer something which is  hidden behind closed doors and Irish society is finally taking the matter seriously. While the Constitution is respectful of the family and in Article 41 ‘ the  state recognises the family as the natural primary and fundamental unit group of Society…. and the basis of social order…,’’ it will no longer remain uninvolved where there is a risk to the welfare and care of the child. It is certainly time that this was the case and what may have been acceptable practice in the past will no longer be allowed. It is time that there is a more transparent approach to many areas of Irish Society and that vulnerable people are no longer required to suffer in silence and instead are given the help and support that they require and deserve.

Brophy Solicitors

26.07.12

Barring Order Applications

I remember when I did one of my first barring order applications – I thought it was last September but when I checked it out, it was over 25 years ago. Goodness how time flies.

It was one of those cases where I knew I was going to lose. My client was not arguing that he had not been violent to his wife. His argument was that she had been just as violent to him and that she had told him that she wanted him out and he would never get back into the house again because she was getting a barring order against him. I remember that the wife gave her evidence very honestly and openly and her application for a barring order was refused because the judge accepted my argument that a barring order was not a substitute for a divorce. I said that if the main purpose of the application was to remove the husband permanently from the house, then a barring order should not be granted particularly in circumstances where both sides accepted that there was mutual violence between them on a fairly regular basis.

I remember the judge at the time saying that the barring order is not intended to be an Irish divorce.

I used that argument on a number of occasions over the following few years but I have not used the argument for many years now and I have not heard of any other lawyer using the argument. It now seems to be quite accepted that a barring order is a sort of Irish divorce.

The original purpose of barring orders was to allow a breathing space. The purpose was to enable the two parties stand back in a calmer atmosphere and see if they could work out their differences and perhaps attend counselling or get some other form of third party help. I cannot recall over many years, any judge suggesting that the parties should see if they could resolve their differences in this manner as part of a barring order application.

This is all the more surprising when you consider the emphasis placed on the role of the family in our Constitution. So there you have it. You don’t have to wait four years to get a divorce, you can get a barring order this afternoon.

Kevin Brophy 

Lawyers should not act for two sides in property deals - report finds

Full text available at: http://www.irishtimes.com/newspaper/ireland/2012/0709/1224319635301.html

A Law Society task force has decided that solicitors should not be permitted to act for both sides in a property transaction, except in limited circumstances provided for in law. . Its report will be discussed by the council of the society next Friday.

The prohibition should extend to voluntary transactions between, for example, family members where a parent signs a home over to a child, the task force concluded. These are permitted in many jurisdictions. The task force was set up in light of concerns over the same solicitor acting for both purchaser and vendor in conveyancing transactions. The practice was also the subject of a number of complaints to the Law Society.

The task force examined the practice in a large number of other jurisdictions, in the common and civil law traditions. This confirmed every other common law jurisdiction, and most civil law ones, had a prohibition on the same solicitor acting for both sides in a property transaction.

Many of these jurisdictions permitted a range of exceptions, but the task force concluded most such exceptions were unjustified.

On the issue of voluntary transfers of property, usually between family members, the task force said the case for the continuation of allowing one lawyer to act for both sides was undermined by a survey by the Health Service Executive and UCD which found 94 per cent of financial abuse of the elderly in Ireland was perpetrated by family members. Example s of financial abuse include forcing or misleading  an elderly relative   in to signing over their interest in the family home.

The task force did not see how one legal adviser could give independent or impartial advice to donors and their donees.

It recommended that in the case of voluntary transfers and transfers below market value there should be a total prohibition on solicitors acting for both sides.

On transfers for market value, the task force noted there had been adverse judicial comment on the lack of a Law Society prohibition on one lawyer acting for both sides. There should be a prohibition in such cases, it stated, except where both parties were associated companies or were “qualified parties” under EU regulations.

Brophy Solicitors

09.07.12