Family Law

The breakdown of a marriage or of a long standing relationship is among the most difficult experiences which any person will face, and it is compounded by anxiety concerning the children, the family home and the financial position of the parties into the future. Our approach in this department is to give the client a clear and realistic view of his or her legal position at the earliest possible stage, to identify what can be achieved by agreement and what cannot, and to proceed thereafter in a manner which is measured rather than combative. Litigation between spouses is expensive, protracted and, in our experience, rarely leaves either party satisfied. It is nonetheless sometimes unavoidable, and where it is unavoidable we conduct it firmly.

Separation and divorce

Where spouses have decided to live apart it is often possible to record the terms upon which they will do so in a deed of separation, which is a contract entered into between them and which may deal with the family home, maintenance, the custody of and access to children, pension entitlements and the succession rights of the parties. A deed of separation can be arrived at without the necessity for court proceedings and is generally the least costly and least distressing course. Where agreement cannot be reached, an application may be made to the court for a decree of judicial separation under the Judicial Separation and Family Law Reform Act 1989, and the court has extensive powers to make ancillary orders in relation to property, maintenance, pensions and other matters.

Divorce was introduced in this jurisdiction by the Family Law (Divorce) Act 1996, following the amendment of the Constitution. The court may grant a decree of divorce only where it is satisfied that the conditions laid down by the Constitution and by the Act have been met, including a requirement that the spouses have lived apart for a specified period, that there is no reasonable prospect of a reconciliation and that proper provision has been or will be made for the spouses and for any dependent members of the family. A solicitor is obliged before instituting proceedings to discuss with the client the possibility of a reconciliation, of mediation and of a separation by agreement, and to furnish the names of persons qualified to assist in those respects.

Children

In any matter concerning a child the court is required to regard the welfare of the child as the first and paramount consideration. Applications in relation to guardianship, custody and access may be brought under the Guardianship of Infants Act 1964, and are heard in most cases in the District Court. We act for married parents, for unmarried fathers seeking to be appointed guardians, for mothers, and on occasion for grandparents and other relatives seeking access to a child. We are conscious that arrangements which suit a child of three will not suit that child at thirteen, and that arrangements agreed or ordered may require to be revisited as the years pass.

Maintenance

A spouse and the parent of a child each owe a duty of maintenance which may be enforced by application to the court. In determining what maintenance should be paid the court will consider the income, earning capacity, property and other financial resources of each of the parties, their respective financial responsibilities and the needs of any dependent children. Orders may be varied where circumstances change, and there are procedures available for the enforcement of an order where payments are not made. This is an area in which full and frank disclosure of financial affairs by both parties is essential, and clients should be aware that the court will require such disclosure on affidavit.

Domestic violence

Where a person is in fear for his or her safety or welfare, or for that of a child, the court may grant a safety order, a barring order, or in a case of urgency a protection order or an interim barring order. Applications of this nature can be brought at short notice and we will always endeavour to see a client in such circumstances on the same day. Where a person is in immediate danger, the Gardai should be contacted without delay.

Cohabiting couples and other matters

We also advise in relation to the position of cohabiting couples, the ownership of property held jointly or in the sole name of one party, applications concerning the family home, nullity, the recognition of foreign divorces, and prenuptial and cohabitation agreements. The law in relation to cohabitants has been the subject of significant legislative attention in recent years and we would advise any couple living together outside marriage to take advice as to their respective positions, particularly where property is being purchased or where children are involved.

All enquiries in relation to family law matters are treated in the strictest confidence.
To arrange a consultation with Frances Mescall please telephone (020) 912 0450.

The contents of this page are for general information only and do not constitute legal advice.