DELAY WITH COURT ORDERS

One of the great frustrations in a solicitor’s job is trying to get court orders and judgements. This is particularly relevant in the High Court. The position in the High Court is that if you wish to appeal a High Court decision to the Supreme Court, you must do so within 21 days of the order being perfected. 

The problem is that you could have a relatively straightforward case which ends in one day, say June 1st, but the judge decides to reserve his judgement. As in every other area of life, some judges are efficient but some are not. Some judges will have their reserved judgement ready in a couple of weeks but the unfortunate position is that you could be waiting over a year for other judges. Waiting for the judgement can be frustrating in the extreme but even when you get your judgement, you are still not ready to lodge an appeal if you wish to appeal. Once you get the judgement, the Order itself then has to be perfected and that process can take several months. This should not happen but it certainly does happen. 

I have recently received instructions in relation to a family law case where the judge at the end of the hearing gave a verbal decision, but said that he would set out his thinking in a written judgement and it took a full year for that judgement to come through and then took another six months to get the perfected order. This is particularly critical in the High Court because once your appeal is lodged, books of pleadings and a certificate of readiness has to be sent to the Supreme Court and only then does time start running in the Supreme Court and at the moment the delay bringing cases on for hearing is around four years. In this particular unfortunate lady’s case involving substantial matters of family law, there could be a delay of six extraordinary years before there is a final hearing and matters are brought to a close. 

I have taken over cases where the other side lodge an appeal from the Circuit to the High Court and the case sits in limbo because the appellant did not lodge a book of papers so that the case could appear in a list to fix a date for hearing. 

The unfortunate situation exists in Ireland that if somebody knows how the system works, they can delay bringing a case to a conclusion literally for years on end unless your solicitor is proactive and aggressively fights your corner. In many of these cases the only alternative is to make an absolute pest of yourself by ringing the relevant court registrar or bringing applications to court to make sure the other side lodge necessary papers. 

They say justice delayed is justice denied. All I can say is if your solicitor knows what is happening, there is always something you can do about it but if you do nothing, nothing happens.

Kevin Brophy,

Brophy Solicitors

FATHERS’ RIGHTS – SLOW BUT STEADY PROGRESS

The Civil Registration (Amendment) Bill, 2014 was published within the past few days and if it is ultimately passed, it will mean that the father’s name, even an unmarried father’s name, must appear on every child’s birth certificate.

It is however extraordinarily disappointing that there is still no progress being made on the right of every unmarried father to automatically be their son or daughter’s guardian. It is quite extraordinary that this continues to be an issue our government refuse to deal with.

Having said that, I suppose you can argue that slow progress is better than no progress.

 

Kevin Brophy

Brophy Solicitors

MEN AND FAMILY LAW

The judge had to decide how much maintenance a mother and the father had to pay to look after their 7-year-old son. The mother earns €60,000 a year, the father earns €20,000 a year. The judge accepted that the earnings figures were correct. 

 

 

When all the evidence had concluded, the mother said could she say something about my client. The judge said she could. She then embarked on five minutes of what I could only describe as abuse of my client, who was totally taken aback at the comments that were being made about him. I interrupted her and asked the judge why this lady was being allowed to make these defamatory comments about my client when the case was over. The judge said that my client needed to know how his ex partner felt about him. I asked would my client be entitled to respond to the allegations and the judge said that would not be necessary. 

 

 

She then made an order that my client pay approximately 80% of the sum needed to maintain their son. When I subsequently complained to the judge about the manner in which the case had been dealt with, she invited my client to take the witness stand and answer any of the allegations being made against him. The offer was put to him in such a way that he had no choice but to give evidence, but the judge was clearly absolutely furious that her handling of the case was being questioned in this manner. 

 

 

I have said this before and I will say it again. Men and in particular unmarried fathers, do not get a fair deal when it comes to very many maintenance and matters relating to custody and access, particularly in the District Court. The lesson here is that if you are instructing a solicitor to deal with a District Court family law case, you must in my view instruct an experienced solicitor, who is prepared to stand up to the judge and tell the judge that he or she is not entitled to make certain orders if that is the case.

 

 

In conclusion, if you are bringing a family law case in the District Court, make sure:-

 

• You have a strong, fearless and experienced solicitor on your side.
• You have all details concerning your income listed in the District Court Statement of Means form.
• Be sure that evidence of income is vouched i.e. wage slips and P60s, mortgage statements etc.
• Make sure you get all of this information from the other side in advance of the hearing.

 

Finally, it is not critical that the judge likes you but it is critical that the judge does not dislike you. Do not argue with anybody while you are giving evidence. Always answer the question. Most important of all however, stand your ground.

OVERCHARGING BY SOLICITORS

A client can be in a very difficult position when they decide to leave their solicitor and instruct somebody new. The first solicitor is entitled to insist that his/her fees be paid in full before they release their file to the new solicitor. This can often create difficulties because the client generally will only leave the first solicitor because they are not happy with the service they have received and would probably not be happy to pay any fee they might feel is either excessive or unjustified.

Many people believe that solicitors are reluctant to sue their colleagues and that even if they are able to get another solicitor to consider taking an action against one of their colleagues, they would want to ensure that their full fees are paid to the other solicitor.

This is one of the reasons why you should obtain at the outset of the case a detailed breakdown as to the likely level of charges and to monitor this during the course of the case. If you feel that the costs being requested by your original solicitor are excessive, you have a number of remedies. You can report the matter to the Law Society, who will investigate allegations of overcharging. In certain cases you can have the matter dealt with by the process known as taxation of costs. You are entitled to a detailed breakdown of all the work completed on your behalf and how the solicitor arrived at the fee. The problem with all of this however is that this process takes time and you may not have that time. In our experience many clients feel they have no alternative but to pay the previous solicitor’s fees in full because otherwise they will not obtain a copy of their file. For this reason it absolutely makes sense that you insist from the outset that you get copies of all documents from your solicitor. Your file should be almost as substantial as the solicitor’s file when your relationship with that solicitor comes to an end.

We make it a practice to send our clients copies of all relevant correspondence and we urge them to bring their file with them to any meeting they have with us so that everybody is completely up to date in relation to the case and there are no misunderstandings.

Clients should always remember that solicitors are just like any other service provider. If they provide a shoddy service, they should not be paid, or should not be paid in full, for that shoddy service. Solicitors are providing a service just like a plumber or an electrician. In conclusion therefore you should always do the following:-

• Make sure you receive a comprehensive section 68 letter concerning the fees you are likely to have to pay to your solicitor when the case starts.
• Make sure that section 68 letter is updated as the case progresses and the issues become clearer.
• Make sure your solicitor agrees to send you copies of all relevant correspondence and documents concerning the case. Your file should be fairly close to the size of your solicitor’s file.
• When your solicitor requests fees, always ask for a written breakdown as to exactly what that the fee covers.
• If you are unhappy with the service you have received from your solicitor, you can have the matter dealt with by the Law Society or you can refuse to pay the fee until the matter is investigated.
• Always remember, YOU ARE THE BOSS. 

Kevin Brophy

Brophy Solicitors

DO I SUE MY SOLICITOR OR REPORT HIM TO THE LAW SOCIETY?

Kevin's Blog

Many people, who have problems with their solicitor feel that the Law Society could deal with any complaints and this might save them the expense of instructing another solicitor to deal with the matter.

The Law Society will look into complaints in relation to misconduct, overcharging and inadequate professional services.

In this article I only want to deal with the question of inadequate professional services. If you feel that your solicitor has mishandled a particular transaction and you have suffered a loss, the appropriate step to take is to seek independent legal advice and consider the possibility of suing your solicitor for negligence. If you report the matter to the Law Society, they will generally advise that they can only look into a matter if financial loss has not been caused. If they see that you have suffered a loss then they will undoubtedly suggest that you take advice from another solicitor. Even if they do look into it, the largest penalty they can impose is €3,000.

The general rule in negligence cases is that you must issue your proceedings within six years of the negligent act you are complaining about. I have seen a number of cases where the solicitor has continued to act for the injured party on the basis that “leave it with me, don’t worry about it, everything will be fine”. Time passes and then the six years has elapsed. In these circumstances, a strong argument can be made that the normal statutory six year period should be extended if the client felt that he was misled into continuing to stay with the solicitor and thus inadvertently allowed his/her claim to be statute barred. However, it’s best not to get into that situation as there is absolutely no guarantee that the relevant time limits would be extended.

If you have a problem with your solicitor and if you feel that he/she has acted in a negligent manner and you have suffered a loss as a result, you should immediately contact another solicitor to get a second opinion. It can be difficult to get another solicitor to sue a colleague, particularly outside the Dublin area, and if you have difficulty locating such a solicitor, you can contact the Law Society directly as they have a list of solicitors who are prepared to take on such actions, or you can contact ourselves. 

The bottom line however is that once you become aware that you either have a problem or you may have a problem with your solicitor, you should act without delay.

Kevin Brophy,

Brophy Solcitors

THE RIGHT TO BE FORGOTTEN

Mario Gonzales recently brought the Spanish government to the European Court of Justice arguing that data should be removed from Google if it was no longer accurate or relevant or it was excessive or inadequate. In his case, if you searched his name in Spain, an article would appear describing how he had to sell his house in order to deal with certain debts. The debt issue had long since been resolved but the article continued to appear.

Google vigorously contested this case because it could have very far reaching consequences. This applies to Google but also applies to any other “data controller”.

This was an extraordinary victory for the protection of personal data and certainly represents a blow to Google and other search engines. We are currently involved in a number of legal actions involving Google, YouTube, Facebook and other social media organisations where information has appeared that can be defamatory but it is certainly interesting to note that a private individual can now force these organisations to remove information about them where they can show that the information is no longer accurate or if it is entirely out of date and excessive and would appear to apply to photographs of, for instance, embarrassing teenage episodes or even insults on social media websites.

In this David v. Goliath battle, it looks like David is fighting back!

To learn more about the decision in this case, see our recent blog post here. 

Kevin Brophy,Brophy Solcitors

 

CAN YOU PREVENT A BANK REPOSSESSING YOUR INVESTMENT PROPERTY EVEN THOUGH YOU ARE IN DEFAULT?

A very interesting case was heard in the High Court recently. The case was Ulster Bank Ireland Limited v. Healy. It was a case where an accountant had borrowed money to buy a number of investment properties. The borrower subsequently defaulted on the loans and the bank sought to repossess the properties. 

Mr. Healy argued that as he had not purchased the property as part of his normal business, he should be treated as a consumer and not as a property investor. The relevance here is that if the court were to treat him as a consumer for the purposes of the Consumer Credit Act, 1995 then the bank may not be able to enforce their loan agreement with him. 

The case centred on the definition of the word ‘consumer’. The argument Mr. Healy made was that he was acting outside his normal business, trade or profession and therefore he should be treated as a consumer and not as a professional property investor. 

Mr. Healy made an application to issue judicial review proceedings and he was successful but the overall case has yet to be determined by the courts. The High Court stated at the initial hearing that they accepted that there was a possibility that Ulster Bank may have acted in contravention of the Consumer Credit Act when it gave a loan to Mr. Healy. They said that it could be argued that they should not have described him as a commercial borrower and therefore as a non-consumer, they should have given him the benefit of the relevant provisions of the Consumer Credit Act. The court accepted that this was a reasonable argument to make and that the bank may have been in breach of the relevant provisions of the Act, which could lead to his loan agreement being unenforceable or only being enforceable on terms the court considered reasonable and appropriate. 

No final decision has been made on this but it is certainly of great interest and there are any number of people in Ireland, who invested during the Celtic Tiger years and who were treated by the banks as commercial investors rather than consumers and it may well be that the banks breached their obligations under the Consumer Credit Act in so doing. 

This matter will be finally determined, probably before the end of the year and we will revisit this area once again at that time.

Kevin Brophy,

Brophy Solcitors

CAN YOUR DOG APPLY FOR A BARRING ORDER?

We often read in newspapers about terrible cases where animals have been mistreated. The general outcome is that the person who abused the animal will be fined or in extremely rare cases they might be sent to prison. 

I am of the view that at some point in the not too distant future, an abused animal will be able to sue its owner for the equivalent of a barring order. This may sound ridiculous and one of the reasons it may sound foolish is because an animal does not have legal personality and an animal cannot issue proceedings in its own name. That is the standard legal thinking. 

We have an amount of animal welfare law and there are numerous endangered species statutes but the fundamental legal status of non-humans has remained unchanged. The philosopher Jeremy Bentham said that the only arbiter of how we treat animals is not “can they reason” nor “can they talk” but “can they suffer”.

There is a famous English case called Somerset v. Stewart, which was decided in 1772 when the English High Court decided that a slave could bring a set of proceedings even though that slave at the time had the legal status of an animal i.e. he was a non-person. The argument is often made that animals cannot bring legal proceedings because they cannot personally appear in court and cannot explain themselves. Children however or persons on their behalf can bring proceedings. Mentally incapacitated adults can bring proceedings. There are any number of cases where non-humans have been held to be legal persons like ships, limited companies, partnerships and even states. 

A legal person does not have to be exactly the same thing as a human being. 

We hear of certain children who are born without complete brains. They can breathe and digest but they have no consciousness and no sentience. They have no feeling, no awareness whatsoever. Could you abuse that child and get away with it? Could you eat that child and get away with it? Of course not, but is having a human form the only sufficient condition for rights? Why is a human individual with no cognitive abilities whatsoever a legal person with rights, whereas cognitively complex beings such as chimpanzees or dolphins or whales have no rights at all? 

In my view when we are regarded as distant ancestors, people in the future will look back in horror at the manner in which we treated animals, even advanced animals with intelligence and the ability to feel pain and other sensory experiences. Animals deserve protection and they will only have legal protection when they are granted legal rights.

Kevin Brophy,

Brophy Solcitors

CLAIMING COMPENSATION FROM THE LAW SOCIETY

If a client has a problem with a solicitor and is considering making a claim on the Law Society Compensation Fund, that claim must be received by the Law Society within six months of the loss coming to attention of the claimant. This new time limit was introduced following the introduction of the Solicitors (Compensation Fund) Regulations, 2013 and came into operation on 1st December 2013. 

It is possible for the Law Society to extend this six month deadline in exceptional circumstances but proving exceptional circumstances can be very difficult.

We have acted in a number of cases involving allegations of wrongdoing by solicitors and quite often although the wrongdoing had been brought to the attention of the client, the client continued to instruct the solicitor, sometimes because the solicitor assured them that everything would be all right in the end, and sometimes out of a misplaced sense of loyalty. 

This six month deadline concerns claims to the Law Society Compensation Fund but does not affect the standard time limit for suing a solicitor for negligence. In these cases you still have six years from the time when the negligence occurs. The high profile cases of Michael Lynn and Thomas Byrne involved claims made to the Law Society Compensation Fund because the clients could show that the solicitor had acted dishonestly and clients had lost money. If a solicitor acts negligently then you still have six years to issue your proceedings against the solicitor. 

In cases of dishonesty however, it is critical that immediately you become aware of a situation which you think might be dishonest, you either contact a solicitor or contact the Law Society.

Kevin Brophy,

Brophy Solcitors

FAMILY LAW CASES & SECTION 47 REPORTS

Kevin's Blog

I have recently discussed problems that have arisen with section 47 reports in family law cases and I am not sure if it’s coincidence but I have received a number of queries recently in relation to people who are having considerable difficulties with section 47 reports.

The main problem appears to be that many clients believe that the psychologist in question has made up their mind about them almost before the first meeting takes place. I have had reports of clients being questioned in a quite aggressive manner and clients getting the feeling from the tone of the questions that the psychologist’s sympathies lie very much with the other side. 

In my experience clients should come out of the section 47 process not knowing what the conclusions are likely to be in the report or as happens in some cases, the psychologist has already discussed the conclusions with both clients and both clients are basically happy. 

The problems arise however where during the course of the preparation of the section 47 report one of the parties becomes unhappy with the psychologist and wants to have that person removed. I have been involved in a number of cases where clients have expressed extreme dissatisfaction with the manner in which the section 47 process was being conducted by a child psychologist but only on one occasion did the client go so far as to instruct me to apply to have that person removed. We made our application and we met with Counsel and my client was told in no uncertain terms that unless there was an example of extreme and overwhelming wrongdoing, there was no chance that the court would remove the section 47 professional as it was felt that this would create a very dangerous precedent. 

The argument is that the section 47 personnel are all well known to the courts and are all extremely well qualified otherwise they would not be on the panel of experts in the first place. It is felt that in many section reports, one side is going to be very unhappy with the recommendations so it is not unusual that the complaints are made but this tends to colour the fact that in my experience, a number of my clients who have been unhappy with the manner in which the section 47 process was conducted, were quite entitled to be unhappy. However, there is very little you can do and it is for this reason that I always encourage clients as vigorously as I possibly can to treat the Section 47 process almost as if it were the hearing itself. Section 47 findings are not binding on the court but they are extremely persuasive and if your solicitor believes it is necessary for you to be fully prepared for a court hearing, then there is absolutely no reason why you should not also be fully prepared for the section 47 meetings. These meetings are critical and can affect the rest of your life. If your solicitor does not appear to be taking the matter seriously or devoting enough time to helping you prepare for these meetings, then you should absolutely insist that your solicitor set aside time to go through the type of questions you are likely to be asked and what the psychologist is likely to be looking for when preparing the report. 

In my experience, the section 47 report is by far the most critical document that is presented to a court and the section 47 process should be treated with extraordinary care and attention. 

Please also be very careful that you know exactly what the other side are saying to the section 47 professional. There is nothing to stop the other side writing lengthy letters to the psychologist giving one side of the story. In my opinion that is absolutely wrong and any such letters should be shared but in my experience that often does not happen. During the process you should ask the psychologist to confirm what input s/he has received from the other side and also confirm that you will receive copies of any correspondence she has received from them so that you can deal with anything of relevance.

Kevin Brophy,

Brophy Solcitors

THE MONICA LEECH CASE: DAMAGES IN DEFAMATION CASES

You will all be familiar with Monica Leech case, which is currently before the Supreme Court. This is the case where an allegation that Monica Leech was having an affair with a government minister resulted in a High Court jury awarding her €1.87 million in damages. That order is currently being appealed to the Supreme Court on the basis that it is disproportionately high.

I would put it in a slightly different light. I would not say this award was disproportionately high. I would say that it is one of the most outrageous decisions every made by an Irish court and is the type of decision that could end up meaning that juries would no longer hear defamation cases. 

Go on the Injuries Board website and look at their Book of Quantum. If you are in a road traffic accident and you are paralysed from the neck down for the rest of your life, you will generally not receive much more than €400,000. You will see the type of compensation you can expect to get if you lose your legs in an accident or if you lose your sight in an accident. 

I acted for many applicants concerning cases dealt with by the Residential Institutions Redress Board. Some of these were absolutely dreadful cases of young children being horribly sexually abused. Many of them were clearly extraordinarily damaged. Many suffered from alcoholism, had broken down marriages or had never got into a relationship in the first place. Applicants who had never been able to hold down a job were being offered €30,000 or €40,000 to settle their cases. 

When I compare damages that are awarded in cases where applicants have suffered very serious life threatening and permanent injuries and look at the amount of awarded to Monica Leech then I have to say that this type of award brings the whole area of defamation into disrepute. 

A person’s reputation is a very precious thing. I would be the first to accept that and I would be the first to accept that if a person has been genuinely defamed and has suffered as a result, they should be handsomely compensated and the person who did the defaming should be handsomely penalised. However, let’s be sensible and realistic. The award in this case was outrageous. As I write this, the Supreme Court has not handed down its verdict and I am sure that whatever final order is made, it will be ten times over and above any reasonable amount that should be awarded. I certainly hope however that it will be massively reduced.

Yours sincerely,

Kevin Brophy,

Brophy Solcitors

SAME SEX MARRIAGE – DOES THIS MAKE YOU FEEL UNCOMFORTABLE?

I would like to share with you the following short video. It does what all really powerful message are all about. It’s short, it absolutely gets its message across and it really make you stop and think. I hope you enjoy it.

Kevin Brophy,

Brophy Solcitors

THE DIFFICULTY WITH NERVOUS SHOCK CASES

We were recently approached by a client who said that the hospital he had attended recently had written to him saying that certain medical instruments used in the treatment of him had not been properly sterilised and that he was therefore at risk of the dreadful CJD illness.

Our client was a young man who was clearly enormously upset at the idea that he had been exposed to the risk of this life threatening disease. CJD is a particularly distressing disorder, which came to the public attention many years ago when cattle began to contract it and it was known as “mad cow disease”. 

We were concerned that there was a conflict between two types of legal precedent. You may recall the case of Fletcher v. Commissioners of Public Works. This was a case where the plaintiff was employed as a general operative in Leinster House and who became aware that for four years, he was brought into contact with significant amounts of asbestos. The High Court found that the plaintiff should not have been obliged to work in dangerous conditions and as his employer knew of the dangers concerning inhaling asbestos particles, they were grossly negligent. In the Supreme Court, the High Court decision in favour of the plaintiff was overturned. The Supreme Court said that the case was not similar to nervous shock cases as there was no shock in the sense of a “sudden perception of a frightening event or its immediate aftermath”. The court’s decision was that they would not award compensation for a purely psychiatric injury arising from grief and mental anguish if that grief or mental anguish was not caused by a physical injury.

If I suffer a very minor injury in for instance a road traffic accident but I had a pre-existing psychiatric condition, which subsequently becomes symptomatic as a result of the accident and I suffer catastrophic effects and I have to leave my job, I will be compensated in full. The Supreme Court however say that if I did not suffer any physical injury but I received a shock and this triggered the same type of psychiatric illness, I cannot claim. There is no logic to this and it appears to me that the Supreme Court made a decision based on policy rather than logic. Many cases over the years have been dismissed on the basis that to allow the case will ‘open the flood gates’ for similar types of injuries and this appears to be one of those cases. 

We therefore had to return to our client to say that shock alone, not associated with any type of physical injury, will not give rise to a claim even if he suffers genuine and real psychiatric damage as a result of the other side’s negligence.

Kevin Brophy,

Brophy Solcitors

HAGUE CONVENTION - CHILDREN SHOULD ALSO HAVE A SAY

International child abduction disputes in Ireland are on the rise, and are likely to increase in the coming years. In many cases after marital or relationship breakdown, a child is removed in breach of rights of custody and taken out of the country in which the child has lived and been brought up. In most cases this is by one of the parents. Applications under the Hague Convention can be made in order to return the child to the country of origin in order that matters relating to custody and access can be determined. 

The concept of ‘habitual residence’ influences how these judgments are determined. However, the Convention does not define specifically what criteria determine habitual residence. The European Courts of Justice approach it as being the social and family environment in which the child has grown up and with which they are most familiar – it is often the place to which they are emotionally bound. This is usually determined by parental statements and other relevant facts such as the amount of time the child spent in a particular place.

However, a recent judgment by the Supreme Court in the United Kingdom, LC (Children) [2013] EWCA Civ 1058 has thrown light on whether the child’s views should play a part in this decision making process. In that particular case, an adolescent child refused to leave England after visiting her father in December 2012. She wanted to remain with him in England but the mother applied for her and her siblings to be returned to Spain under the provisions of the Hague Convention. Following an appeal to the Supreme Court, a unanimous ruling was made ordering that the case be remitted back to the original Family Division court because the original judge had failed to give sufficient weight to the length of time the eldest child had spent in England and her objections to returning to Spain. It is the first judgment of its kind in the UK, and may or may not be followed here in Ireland. If a child is of an age and ability to be capable of contributing information of weight and relevance to the judicial decision making process, they should be able to do so, the Court found. Furthermore, given that there is a perceived judicial bias in favour of mothers being granted custody over fathers, this recent ruling has significant implications for fathers in cases where abduction or other factors relevant to the provisions of the Hague Convention occurs.

Kevin Brophy,

Brophy Solcitors

EVERYONE (I MEAN EVERYONE!) HAS HUMAN RIGHTS

I appeared on a panel on Tonight with Vincent Browne last night discussing the question “Are people who oppose same sex marriage equality homophobic?”. I was invited to be on the panel because I am acting for John Waters, Breda O’Brien and members of the Iona Institute in relation to comments made on the Saturday Night Show when they were accused of being homophobes.

Brophy Solicitors is a human rights firm. I am a human rights lawyer. I believe that every individual has the right to have their rights vindicated and protected. This protection extends to a right to express contentious views freely and a related right to protect one’s reputation from damage. 

As a lawyer, my role is to represent my clients and to vindicate their rights to the best of my ability. I must do this irrespective of whether I personally agree with the views held by my clients. I believe that my clients were defamed on the Saturday Night Show and I subsequently represented and protected their interests effectively by securing a positive outcome for them.

At the same time, I am an advocate of same-sex marriage. I act for Senator Katherine Zappone and Dr. Ann Louise Gilligan in their application to have their Canadian marriage recognised in Ireland. I absolutely support their entitlement to have their marriage recognised in Ireland. If there is a referendum next year on same-sex marriage, I will vote in favour of a constitutional amendment to give effect to same sex marriage.

I frequently act for many members of the gay and lesbian community and other minority groups. My firm recently secured a very significant victory in a transgender case that will have major implications for gender-recognition in transgender cases. I support marriage equality and equality generally for the gay community.

Fundamentally, I believe that every individual should be afforded the opportunity to express their opinions freely. Individuals who oppose same-sex marriage should not fear for their lives or their reputations just because they oppose same-sex marriage.

I welcome debate on the question of same-sex marriage in the run up to the referendum next year, provided that it is a rational and civilized debate that respects individual rights. I may not be sympathetic to all my clients’ views on a particular subject, but I will always do my utmost to vindicate their rights if they are defamed and seek to defend their human rights if they are infringed.

Kevin Brophy,

Brophy Solcitors

PRE-NUPTIAL AGREEMENTS – THEY’RE ON THE WAY!

The Irish Farmers Association (IFA) is the unlikely group at the forefront of a lobbying campaign to have pre-nuptial agreements recognised under Irish law. The IFA has been a major proponent of the pre-nup since divorce was legalised in 1996 against the wishes of the majority of Irish farmers. They first began lobbying for changes in 2011 and recently renewed their efforts. 

If you consider the average Irish farm – it is clear why the issue is of concern. If a farmer’s marriage breaks down, divorce can mean division of land that has been in a family for generations. If the farm house is left to the mother in which to rear the children, the farmer can be forced to live far from his land and livestock. If the farm is split in half, this down-sizing renders it less viable as a business. 

Such is the fear of the implication of divorce that farmers are delaying the transfer of land to the younger generation, which has repercussions itself. However, it seems their campaign has been successful – Justice Minister Alan Shatter has agreed to consider the recognition of pre-nuptial agreements as part of legal reforms. 

A pre-nuptial agreement is a contract signed by a couple prior to marriage that outlines how finances and possessions are to be divided should the relationship break down. While some pre-nups can go as far as specifying how many home-cooked meals are expected on the table each week, the majority deal with property, business and financial assets. It specifies how these assets are to be divided in the event of a relationship breakdown. 

More and more Irish people are signing pre-nuptial agreements. While they are not legally binding in Ireland at the moment, they do carry weight in court. Judges are not obliged to enforce them but often use them as a persuasive guide when deciding on Judicial Separation and Divorce cases.

Many people are signing pre-nuptial agreements now in the hopes that Shatter’s review will mean that the agreement will soon become legally binding. In the meantime, it is likely that their pre-nuptial agreement will be taken into consideration by the judge as long as it meets certain requirements including that the agreement must be in writing and that both parties obtained independent legal advice prior to signing.

What’s the value of a pre-nup? Ask anyone who has gone through a messy divorce!

DOMESTIC VIOLENCE – MEN SUFFER TOO!

While it is often portrayed as such, domestic violence does not always involve a female victim and male abuser. A National Study of Domestic Abuse found that 213,000 Irish women and 88,000 Irish men have been severely abused by a partner at some point in their lives. Yet only 5 per cent of those men reported it to the Gardai - a much lower percentage than women (29%). 

It is not hard to understand why. The Domestic Violence Act, 1996, is ‘gender-neutral’ in that it is legislation there to protect anybody affected by abuse; spouse, partner, man or woman. The reality is very different. For a long time domestic abuse was as a gender issue. In the patriarchal society of times gone by, men were the heads of the household and women the subordinates. Men were therefore the usual perpetrators of abuse when it happened. That much is fact. But times have changed. And so must our response to this issue. 

Domestic violence is no longer a cross only women bear. One in six men will be severely abused by their partners at some point in their lives! That is a shocking statistic. And we’re only talking here about severe abuse! Though issues like stigma and shame play a big role in why men are reluctant to report cases of domestic abuse - the worry that they’d be seen as ‘less of a man’ can be a huge obstacle in accessing support. 

Worry about child custody is another common reason why men may choose to ‘stick with it’ rather than leave their abusive relationship behind. If they leave the family home, such is the unequal state of family law in Ireland, there is no guarantee that these fathers will be permitted regular contact with their kids, never mind custody or joint custody. 

For unmarried fathers, the position is even worse. There are, however, things that can be done that afford fathers – married or not - some rights such as applications for guardianship, custody or access. For men who have suffered any type of domestic abuse there are also remedies available to them - barring, protection and safety orders for instance. 

Male domestic abuse is on the rise and in the first instance the extent to which it exists needs to be recognised.

Kevin Brophy,
Brophy Solcitors

NEVER HATE YOUR EX MORE THAN YOU LOVE YOUR CHILD!

‘My kids don't go back and forth; none of this 50/50 time with the mums and dads. My children live with me; that is it’. This comment, made by Kate Winslet during an interview with Vogue magazine, inspired a controversial Christmas ad campaign by UK rights group Fathers4Justice. 

Their ad features a picture of Kate under which reads the slogan ‘Kate, every child deserves their father this Christmas’, followed by details of her interview. 

Also featured in what’s been termed the ‘Crummy Mummy’ campaign are Halle Berry (‘Halle, a father is for life, not just conception’), Katie Holmes (‘Katie, do you believe in equal parents, equal love?’) and Kim Basinger (‘Kim, never hate your ex more than you love your child’). 

Fathers4Justice are fighting to give fathers equal rights to see their children after separation. They are a proactive group who use publicity to increase public awareness of fathers’ rights issues. Their campaign succeeded in attracting significant media coverage and drawing attention to these issues at a time of year when it is especially difficult for parents who are unable to see their children. 

The group have been criticised for their tactics not only by the lawyers of these celebrities but by certain UK media sources who claim that the campaign is misogynistic and disingenuous given that some of the women now have amicable custody arrangements. 

Regardless of their custody arrangements, Kate and others in the public eye must realise that they are role models and that their actions and comments can be damaging. Fathers4Justice are challenging inequality and anti-father discrimination including the commonly held belief that a child having a relationship with their father can be disruptive. 

In the UK, as in Ireland, the law favours mothers. Too often, fathers are unnecessarily prevented from having regular contact with their kids. I hope that 2014 will see an improvement in outcomes for separated fathers but I think there’ll need to be more proactive, perhaps controversial campaigns before this will be achieved. 

In case you were wondering, Kate is threatening to sue, while Halle and the others have refused to comment. 

Kevin Brophy,
Brophy Solcitors

CHRISTMAS MESSAGE

It is hard to believe that 6 or 7 days ago it was March and now it’s almost Christmas!

As we approach the end of another year, I would like to take this opportunity to thank each and every person who has instructed us during the year. You are our clients and you are the life blood of the office. 

I hope you will continue to rely on us as your solicitors during 2014 and I will give you my commitment that we will continue to do the very best we can for you. 

This year has been a difficult year for many clients as it has been a difficult year for the country generally but it is great to see business improving and there is clear evidence that we are slowly but surely coming out of recession.

I hope you all have a very happy and enjoyable Christmas break and you have my best wishes and the best wishes of everybody in the firm for 2014.

Kevin Brophy,
Brophy Solcitors

Recognition of Foreign Divorces – Brussels II

Divorces obtained in the EU countries (apart from Denmark) have been subject to the provisions of the Brussels II Regulations since 1st March 2005.

Accordingly, any person seeking a divorce in any country in the EU will have to show either:-

That the spouses are habitually resident in that country, or

The spouses were last habitually resident there, provided one of the still resides there, or 

The respondent is habitually resident. or 

In the event of a joint application, either of the spouses is habitually resident or 

The applicant is habitually resident if he/she resided there for at least a year immediately before the application was made, or

The applicant is habitually resident if he/she resided there for at least six months immediately before the application was made and is either a national of the member state in question or in the case of the United Kingdom and Ireland has his/her domicile there.

We are currently dealing with a case where a lady has obtained a divorce in her home country and this has created a huge problem for my client, who is a non-EU national and in theory could end up being deported. The applicant however was not resident in her home country when she obtained the divorce, but was resident in Ireland and had been for several years. Under Irish law, she would not have been entitled to apply for a divorce because she had not been separated for over four years out of the previous five. She therefore decided to apply for a divorce in her home country where divorce is permitted where couples are separated for only one year. We are arguing that the entire divorce is not valid and cannot be recognised in Ireland because neither she nor our client qualified under the various headings set out above. 

A growing number of foreign nationals in Ireland are resorting to obtaining divorces in their home country where the criteria for obtaining a divorce may be less strict than in Ireland. However, unless the provisions set out in Brussels II have been complied with, that divorce may not be recognised in Ireland and this can have enormous consequences for all parties.

Kevin Brophy,
Brophy Solcitors