Justin Spain, Author at Spain Toomey Solicitors

Ruling may affect financial entitlements of ex-spouses

THE HIGH Court has delivered a judgment that is likely to change the way in which separated and divorced spouses are provided for following the death of either party.

A judgment delivered recently by Mr Justice Michael Peart means it will no longer be routine for a court to issue a “blocking order” preventing an application to be made for financial provision out of the estate of the deceased spouse.

Under the Succession Act, a spouse has an automatic entitlement to a minimum fixed percentage of the estate of the other spouse, the percentage depending on whether the spouse died testate or intestate and whether or not there are children. Following a divorce or a judicial separation, the spouse no longer has an automatic right to such a percentage.

In many judicial separation and divorce cases, some provision is made for continuing maintenance of a dependent spouse, either through the payment of a lump sum when the divorce or separation is finalised, through the setting-up of a life insurance scheme to provide for continuing maintenance, or through a pension adjustment order which provides for a portion of the earner’s pension to be paid to the dependent spouse. But this only happens where the resources exist for such arrangements to be made.

Though the Divorce Act provides for an application to be made for provision out of the estate, the practice has grown up that in almost all divorce and judicial separation cases the court makes a “blocking order” under section 18 (10) of the Act, which has the effect that neither spouse can make an application for provision out of the estate of their former spouse. This means that where such a blocking order is made, a spouse receiving maintenance no longer receives it unless some alternative guarantee of payment has been put in place.

The case that came before the High Court recently involved a couple who were legally separated and the man later sought a divorce in the Circuit Court. The court made the divorce decree, giving the wife a lump sum of €50,000 and €200 a week in maintenance. The Circuit Court judge also made a blocking order that neither could apply for provision out of the estate of the other. The couple’s children were grown up.

The husband runs a small and successful business. The court was told the wife previously worked in the business and later worked as a carer with the Health Service Executive, but her hours had been cut back and her financial position had therefore deteriorated. She was very concerned about her security in the event of her husband’s death and sought some modification of the blocking order so that she could make a claim against her husband’s estate if he died.

“It is reasonable for the wife to have fears around what is to happen to her in the event of the applicant’s death, whenever that should occur,” Mr Justice Peart said. If the husband’s employment carried some sort of pension plan, a Pension Adjustment Order could be made, but there was none.

He ordered the husband to give a month’s notice to the wife of any intention to retire, sell or otherwise dispose of his business, so that she could take legal advice about how to secure maintenance.

Turning to the issue of the blocking order, he said: “It seems appropriate that the court should not make a blocking order under section 18 (10) of the Act of 1996 unless the court can be satisfied that proper provision has been made for her maintenance after her husband’s death.”

This would allow her to make an application for provision out of his estate, if her circumstances justified it. It would be a matter for the judge hearing the application to consider the case history, he said.

Details of the judgment, delivered on August 13th, have only just emerged because the case was heard in camera.

Decisions of the High Court are binding on the Circuit and District courts, so it is likely that this judgment will be taken into account in future divorce and judicial separation cases, where no provision has been made for the protection of maintenance payments following a spouse’s death.

By Carol Coulter – Irish Times |Mon, Aug 27, 2012 | Link to Irish Times Article

How to take the financial pain out of separation

Twelve tips from a family law solicitor.

By John Hearne

Celebrities do messy divorce like no one else. When his Spanish-born wife Mati initiated divorce proceedings against celebrity chef Marco Pierre White, the whole thing quickly degenerated into an unseemly mess.

She texted her entire contact list with the news that he had left her for someone else. The family instantly split in two; his two sons went to live with him, their daughter stayed with her.

The couple spent around £1.25m each on legal costs. Mati had to sell her engagement ring to help pay costs. In the end, they got back together.

Most of us won’t have a £50m restaurant empire up for grabs, but that doesn’t mean that divorces won’t get messy. Far from it. Family law solicitor Justin Spain says that if you are facing into separation or divorce, prepare yourself for one of the most stressful periods of your life.

“Family law is not like normal litigation where someone wins and someone loses.” He says. “With family law, it’s lose/lose. The best you can come up with is a kind of a workable solution.”

In most countries, separating couples go straight to divorce. In Ireland, because separating partners must have lived apart for four years before divorce proceedings can begin, the process begins with separation.

Separating partners can agree to a deed of separation, but if agreement can’t be found, one party issues legal proceedings in court. This is when things can get messy.

“In a lot of cases,” says Spain, “there’s so much animosity between the parties that it’s just not possible to agree to a deed of separation.”

If the situation has degenerated to this level, Spain advises a two-pronged approach.

“The family mediation service run by the Government is a good service and it’s free.”

The big downside of litigation is of course the cost.

“I have had cases where you have an average middle-class family and the only asset is the family home, and there may not be much equity in it. Three or four days are spent in court fighting about it and the legal fees could be over 20 grand each.”

The lesson, says Spain, is don’t run down the family pot in a rush to court.

“If you approach the whole separation issue openly and in a business-like way, it can be done relatively easily . . . Or you can litigate and throw a lot of money at it, and you’re going to end up with often a similar result. Litigation should be a very last resort.”

Justin Spain’s 12 Tips For Staying Sane in a Separation

It will be difficult

Even if it’s your decision to end the relationship, things will probably get worse before they get better. You’ll have to make significant decisions that will affect your financial future and your relationship with your children. Remember too that a separation or divorce will take longer to finalise than you think, particularly if communication has broken down.

Be careful about moving out of the family home

Removing yourself from the home may provide a respite from hostilities, but it may be the wrong move strategically. If moving out resolves the situation for one partner, it will remove their motivation for finalising the separation, and leave the other in limbo.

If you have children, try to agree arrangements outside the legal process

You and your spouse will have to work together as parents long after the legal process has ended. Try to resolve issues with a mediator or therapist rather than fighting about it through solicitors.

Try to agree who gets what without using solicitors

Don’t let things get out of perspective. It’s usually cheaper to replace the item you’re arguing over than to use solicitors to fight about it.

Make sure you get early legal advice, particularly if your partner is from outside Ireland

If one of you qualifies as resident in another country, it’s possible that proceedings can be issued outside Ireland. If this is a possibility, it’s essential that you seek legal advice as soon as possible to make sure proceedings are dealt with in Ireland.

You may not be able to take the children out of the country

Children of married parents can’t be taken out of the country without the permission of both parents or the consent of a court. If you take the children to another country, you may be guilty of a criminal offence.

The court won’t care if your partner was unfaithful

In the vast majority of cases, the court will not take the misconduct of one party into account when deciding how to divide things up. Take advice before wasting money on private investigators.

Money spent on lawyers means less for the family

Fully contested judicial proceedings may have serious cost implications for both of you, because usually, each party looks after its own costs. Approaching matters in a business-like manner from the start will mean you’ll spend less on legal costs.

Do your research before deciding on a solicitor

Your relationship with your solicitor is very important, so take your time before deciding who to retain. Don’t make your decision on the basis of how much he or she charges per hour; an experienced solicitor who works swiftly can be more cost-effective than one who charges a lower rate but who may not have the same experience.

Consider counselling

Your solicitor should always be supportive, but don’t rely on him for everything. You may need the help of a counsellor or a therapist to deal with the emotional fallout.

Be open with your solicitor

Your solicitor will be able to deal with issues if he or she is aware of all the facts. However, if skeletons fall out of the closet when the case is in court, and when it’s too late for your advisers to deal with them, it may have negative implications for your case.

Life goes on

Finally, try to maintain a sense of perspective and your sense of humour. Life goes on after separation or divorce. Things will get better once the process has been finalised.

Independent | Thur, Jul 19, 2012 | Link to Indepentdent Article

Required birth registration will not boost fathers’ rights

THE LAW on guardianship of children dates from 1964 and is in urgent need of reform.

Unfortunately, the Government’s current reform proposal is limited in scope and fails to address some of the substantive shortcomings in the current framework of family law.

The introduction, in isolation, of compulsory joint registration of births is not in keeping with the undertaking in the Programme for Government to reform and modernise family law in line with recommendations of the Law Reform Commission.

The commission’s report, Legal Aspects of Family Relationships, proposed extending automatic guardianship rights to all parents, regardless of marital status.

Compulsory joint registration of births was only one aspect of a much broader scheme of reform. The Government is focusing on the low-hanging fruit instead of engaging in the root-and-branch reform that is necessary.

Compulsory joint registration of births means the name of both the mother and father would appear on the birth certificate of every child. It is relatively uncontroversial to suggest a child should have information about, or at the very least the name of, both parents.

However, Irish law does not at present require the name of both parents on the birth certificate of a child. Where parents are married, both names are usually entered on the birth certificate. Where a non-marital mother registers a birth alone she will not be asked about the father.

There are myriad reasons why the father’s name may not be included on the birth certificate of a child born to non-married parents. One reason is the urgency associated with getting the birth registered, as registration triggers the payment of child benefit.

The process for registering a non-marital father on the birth certificate is logistically complex. In many cases, therefore, the intention may be to re-register the birth to include the father’s name at a later stage, once social welfare payments are activated, but this is often not done.

In some cases the father’s name may be omitted in the mistaken belief this will ensure he does not become a guardian. In fact, under the current law, the inclusion of the father’s name on the birth certificate gives rise to no legal rights or responsibilities.

Alternatively, the mother may genuinely not know who the father is or she may know but not wish to enter the name on the birth certificate for a variety of reasons including, for example, rape, incest or fear of violence.

From a children’s rights perspective it is possible to view compulsory joint registration as a positive development, as it is a means to vindicate the right of the child to know the identity of his or her parents.

There are also medical and social reasons why it is important for an individual to know his or her genetic background, one example being to avoid unknowingly entering into a relationship with a relative.

However, the push to introduce compulsory joint registration in isolation is concerning. Requiring the names of all parents to be registered, while benefiting the child, will also provide the State with information on the family status of a greater proportion of the population.

During a period when the State’s finances are strained, and over €1 billion was spent on the One-Parent Family Payment in 2010, it is not unreasonable to suggest this information may be used in the future to pursue parents to recoup some of that expenditure.

In principle there is no objection to requiring a parent to contribute to the cost of raising his or her child. However, with responsibilities should come rights, and the difficulty is that the current law on guardianship grants very limited rights to non-marital fathers.

At present, unless the mother agrees to extend guardianship rights to the non-marital father, he can only obtain guardianship by court order. To address this inequality, the commission recommended the introduction of automatic guardianship rights for non-marital fathers. It suggested a trigger mechanism for activating guardianship and considered that being named on the birth certificate would be appropriate.

This was to ensure that all parties concerned would have a record of who was a parental guardian of a child. To guarantee that practically all non-marital fathers would be registered on the birth certificate, and therefore entitled to guardianship, the commission recommended compulsory joint registration.

It accepted such a system would be subject to limited exceptions, for example where the mother genuinely does not know the identity of the father or where there is a risk to the health or wellbeing of mother or child.

However, by introducing only one aspect of this reform proposal, compulsory joint registration of births, the Government is increasing responsibilities without creating concomitant rights. In so doing it is undermining the spirit of the Law Reform Commission’s recommendations.

Dr Claire Murray is a lecturer in the Faculty of Law, University College Cork and was the principal legal researcher on the Law Reform Commission’s Legal Aspects of Family Relationships report

By CLAIRE MURRAY – Irish Times | Wed, Jun 06, 2012 | Link to Irish Times Article

Solicitor fails in attempt to have ‘commitment gifts’ returned

A DUBLIN solicitor has told the Circuit Civil Court that he bought expensive jewellery and an oil painting as “commitment gifts” to his former partner but expected to get them back.

His former girlfriend, a legal assistant, won a court order to hold on to them and was awarded legal costs against her former lover.

Conor Bowman told Judge Jacqueline Linnane that Matthew Wales had bought Stella Conlon a diamond ring worth €12,000, a Rolex watch worth €5,000 and a Norman Teeling painting worth €5,500.

Mr Wales, Roebuck Castle, Clonskeagh, Dublin, told Mr Bowman, for Ms Conlon, that he had bought the ring in the company of Ms Conlon and had told her it was a commitment gift given as “a token of an exclusive relationship”.

Judge Linnane heard that the Rolex watch had been given as a Christmas gift. Mr Wales said other items he had bought had less value and he was not interested in getting them back.

Ms Conlon, Temple Hall, Mount Saint Anne’s, Milltown, Dublin, said she had become aware that Mr Wales wanted the three items returned two years after their relationship ended in 2009.

She told the court that she and Mr Wales had been in a mutual relationship from 2006 and she never expected she would have to give the gifts back.

She said she understood the ring had been given as “a sign of love”.

She said Mr Wales was a generous man and she would not have accepted the gifts if she had expected the relationship would eventually end.

The court heard they had been together when Mr Wales bought the Molly Malone painting by Teeling. Ms Conlon denied that she had known that he had hung it in her apartment temporarily. She said her friends were aware it was a gift from him.

Mr Bowman said that when the relationship ended, Mr Wales had returned to Ms Conlon’s apartment in her absence, using a key he had, to collect his belongings. He said Mr Wales did not take the painting, which was on the wall.

Judge Linnane, dismissing Mr Wales’s claim, said Ms Conlon was entitled to retain the gifts as they had been given to her unconditionally.

Irish Times | Fri, May 04, 2012 | Link to Irish Times Article

Bill proposes full legal status for humanist weddings

THE GOVERNMENT is expected to agree today to back legislation giving humanists the same status as organised religions and civil registrars in conducting marriage ceremonies.

Minister for Social Protection Joan Burton is due to ask her ministerial colleagues to support the Civil Registration (Amendment) Bill at this morning’s Cabinet meeting.

The legislation was introduced in the Seanad as a Private Members’ Bill by Trinity College Senator Ivana Bacik and is due to pass final stages in the Upper House tomorrow.

The Bill proposes to amend the Civil Registration Act 2004, which regulates the registration of civil marriages.

The 2004 Act stipulates that, apart from Health Service Executive registrars, only a member of a “religious body” may celebrate legal marriages.

This is defined as “an organised group of people, members of which meet regularly for common religious worship”.

This includes organisations such as the Pagan Federation Ireland and the Spiritualist Union of Ireland, which have obtained registration under the Act.

But the definition excludes members of the Humanist Association of Ireland, who currently conduct humanist wedding ceremonies even though these are not legally recognised.

The Bill proposes to extend the right to conduct civil marriages to nonreligious groups such as the HAI. A group of this nature must be a “philosophical and nonconfessional body”, have been performing marriage ceremonies for at least five years, and at least 20 couples must have participated in the ceremony.

Once the Bill has passed through the Seanad tomorrow, it will proceed to the Dáil, where it is expected to be introduced by Ms Burton.

Brian Whiteside of the HAI said that, in the past, it had been “left out in the cold” but persisted in its efforts to obtain the right to solemnise marriages and have “parity of esteem” with religious bodies.

There had been “no real progress” until the change of government last year, when Ms Bacik agreed to take up their cause.

“As the law stands presently a couple cannot have a legally binding, nonreligious marriage ceremony on a Saturday, as the State registrars work only Monday to Friday,” he added.

The proportion of couples choosing a non-religious, civil wedding ceremony in Ireland has increased from 6 per cent in 1996 to more than 23 per cent in 2006, according to the Central Statistics Office.

Humanism is defined as “an ethical philosophy of life, based on a concern for humanity, which combines reason with compassion”.

The HAI has nine accredited celebrants who conducted 153 marriage ceremonies last year.

By Deaglan De Breadun – Irish Times | Tue, May 01, 2012 | Link to Irish Times Article

Gay marriage demand driven by intolerant liberal faction

OPINION: AFTER LAST year’s introduction of civil partnerships for same-sex couples, the debate has swiftly progressed to the question of introducing gay marriage. Several characteristic limitations of the case for doing so are apparent in Kieran Rose’s argument in favour (The Irish Times, April 10th).

A number of self-contradictory or inaccurate arguments must be dispatched before the kernel of the question can be reached.

Public opinion data showing majority support for the introduction of gay marriage is now increasingly cited. This is doubtless accurate.

Public opinion is, however, no more conclusive a reason to legislate for gay marriage today than hostile opinion was good reason to delay reform concerning homosexuality.

Gay activists retrospectively give false legitimacy to the criminalisation of homosexuality in Ireland until 1993 by adducing opinion polling to a debate requiring resolution by reference to the common good. If majority opinion today is good cause to introduce gay marriage, it must have been similarly good cause for the profound imprudence of the law until two decades ago.

That this is absurd betrays not only a shallowness discernible in the case for gay marriage but also what has to be identified as a degree of intellectual dishonesty.

One is as likely to hear both that the Irish public desires the introduction of gay marriage and that the Irish public harbours a dangerous degree of homophobia.

Rose draws on both claims, yet they are clearly self-contradictory.

Separately but similarly, Rose says summarily “the court of public opinion has spoken”. This constitutes an attempt to shut down the debate on gay marriage.

One could appeal to the injustice of this commonplace summary cloture, visible at the recent Fine Gael Ardfheis at which no dissenting voice was allowed speak against the pro-gay marriage motion, but it is wiser to appeal to the imprudence of the imposition of gay marriage by decree rather than by decision.

Closely allied is the frequency with which opponents of gay marriage find their arguments pathologised rather than engaged. This is true despite the existence of gay opponents of gay marriage, such as this writer.

As for claims raised in the name of the gay community, I would prefer if someone with whom I share nothing but sexual orientation did not use that rather uninteresting fact to raise in my name political claims I and others do not share.

Rose states that gay marriage would have “resonance in related areas of difference and inclusion such as ethnic origins”. In short, we are asked to believe that Irish social cohesion through demographic change rests in enough measure to warrant mention on the introduction of gay marriage.

That such arguments can be made with a straight face indicates not only a certain hubris one detects in Irish liberals today.

Perhaps more tellingly, it bespeaks the absence in this country of much willingness in the media or in the political debate to scrutinise Irish liberalism rather than genuflect to it.

In terms of its attitudinal centre of gravity, Ireland has swung from one pole to another in recent decades. Yet comparing today’s Ireland with the Ireland of Archbishop McQuaid reveals that neither the deferential quality of debate in Ireland nor its intellectually undernourished nature have much altered.

The essence of the gay marriage demand is stated by Rose in the assertion that “the right to marry is a basic human right”. So far as claims of justice are concerned, this is the most serious contention that can be raised in support of the introduction of gay marriage.

In Rose’s account, the claim is buttressed by the UN Charter of Human Rights and “other human rights treaties”. Such claims are raised increasingly frequently. They rest on no more than assertion.

Recently, France’s supreme court has found that no discrimination is implied in the distinction between marriage and partnership provisions. The European Court of Human Rights has found there is no right to gay marriage in the European Convention on Human Rights and this does not amount to discrimination.

In considering gay marriage, it is essential to see treating different situations differently in no way constitutes discrimination.

What is more fundamental here is the co-option of human rights language by an increasingly hegemonic strain of intolerant liberalism. Whereas the “right to marriage” as pertaining to couples of the same sex is a recent invention, the right of a child to both a mother and a father where possible is not.

The reason for opposing the unnecessary elevation of civil partnerships to the notional status of marriage is that marriage then loses its nature as the one institution supported by society because it is the family form which on average gives a child the most advantageous upbringing.

It is agreed by most that civil partnerships mostly suffice in practical terms for same-sex couples. Altering the focus of marriage from children to relationships disadvantages future generations to no more necessary end than the further march of an increasingly cavalier and triumphalist liberalism.

Richard Waghorne is a freelance journalist

By Richard Waghorne – Irish Times | Fri, Apr 20, 2012 | Link to Irish Times Article

I was trying to create a family unit that ignored cultural divisions

One day in 2003, Douglas Galbraith discovered that his Japanese wife had left home and taken their two young sons. In writing about their abduction, he sets out a world view he hopes they will read: it might be the only way they will ever know him, he tells RÓISÍN INGLE

THE NOVELIST Douglas Galbraith has two teenage sons but he does not know what they look like. He cannot tell you about their favourite computer games or what television programmes make them laugh. He has not seen them since July 2003, when his Japanese wife took them from their home in Scotland while he was on a short business trip in London. He returned to an empty house to find the pyjamas of Satomi and Mokoto, then aged six and four, in a heap on the floor and a letter on the doormat addressed to his wife confirming her temporary forwarding address in Japan.

The writer of acclaimed literary novels including A Winter In China, Galbraith tells the story of his children’s abduction by their mother in his new memoir My Son, My Son. He says he waited several years before he started to write, determined it would be an objective, intellectual exercise, a work that would not sit comfortably in the “painful lives” section of bookshops.

“If you look at my case in terms of international child-abduction files, it’s a routine story. I wanted to understand it and not just be angry about it and I wanted to connect it to other, much larger things,” says the tall Glaswegian, sitting in a Dublin hotel. “I was very keen not to be writing a misery memoir with their terrible covers and their terrible titles; the ones that sell, sadly, but there you are.”

The book contains everything from his views on the rights of fathers and cultural tyranny to child murder and gender politics. But the grim narrative of the abduction of his children and his subsequent efforts to find them form the core of this beautifully written and at times challenging book.

He likens the initial impact of what happened to him to a bereavement.

“I can’t imagine it would be much worse than if it had been a couple of policemen turning up on the doorstep saying, ‘Prepare yourself, we have the worst possible news’ . . . They were leaving my life as completely as if they had died and I was leaving theirs, so for my boys it is as if their father died when they were aged six and four.”

Filling in the background to the abduction, he says he met his wife, Tomoko, when they were both research students at Cambridge University. She was, he recalls, “a cosmopolitan, impressive, intellectual woman who seemed to have freed herself from any cultural baggage”.

He first noticed this changing when she became pregnant with their elder son. He describes how she gradually began to show disdain for their life in England, discouraging her sons from using English and installing a satellite dish so the family could watch Japanese TV programmes, including weather reports.

“I was unlucky,” he says. “I was trying to create a family unit which ignored cultural divisions . . . It can work brilliantly, but in my case cultural loyalties won out over loyalties to people.” He points out that his is only one side of the story, and that Tomoko might frame things differently. Ultimately, he says, his biggest failing was the one thing he couldn’t do anything about. “I was British, I wasn’t Japanese.”
THE RELATIONSHIPeventually deteriorated to the point where Galbraith says he was staying in the home merely to keep his sons with both of their parents. He had been holding on to their British and Japanese passports as he feared they were at risk of abduction. In the end, Tomoko went to the

Japanese consulate in Edinburgh where officials gave her another set of passports for the children, “no questions asked”. So while the abduction was shocking, it was not exactly unexpected.

“It’s a bit like this phenomenon of people who build their cities at the foot of a volcano,” he says. “You know that you are on your way to being a museum exhibit in Pompeii, so when the volcano erupts your last thought has to be ‘we knew this was coming’.”

His efforts to track them down have involved local police, Interpol, lawyers and trawling through the intricacies of international conventions.

His only success in locating his wife came from posing as someone else and making contact through her old university. This deception, and the fact that Tomoko needed to stay in touch in order to secure her share of the marital home, did result in regular phone calls with his children, but the last call was more than three years ago. Around that time, in a court submission for a case that was never heard, he writes his wife’s justification for the abduction was “(a) she felt like it and (b) because of the poor quality of the sushi in the local Tesco”.

The phone calls stopped when Tomoko received the money from the sale of the house. He sends Christmas and birthday gifts to an address in Osaka where he thinks they live now, a street he has virtually toured thanks to Google Maps. He cannot say whether he will ever see them again. “It depends,” he says, “on how well they have retained the ability to think and act for themselves.”
Galbraith says the book has two readerships: his two children and the rest of the world. He describes his “very adult” book as an “eccentric father substitute which they won’t make head or tail of for a long time . . . but it will allow them to get to know the man through the world view. They will understand my basic values of anti-nationalism and secularism, which don’t appear to have anything to do with the child-abduction story: the reason they are there is so they will be able to read this, if they ever do, and say ‘this is my father and to some extent I know him through this book’. ”

HE HAS NOT, as some other “left behind” parents have done, gone on to have more children. What has held him back is his instinct that as a man he stands a bigger risk of losing everything again should it all go wrong. He has been changed by the experience. “One of the more interesting changes is that I am now more adept at identifying conflicts that are irreducible,” he says mentioning Syria in this context. “I was in a conflict where I had to win or lose. Moderation resulted in me losing.”

His children are now 13 and 15. He is often asked whether he will go to Japan to track them down but he says even if he found them, standing in front of the locked door of an apartment is, to him, a futile gesture. “I want people to understand that the blockage isn’t just physical mileage,” he says. “I could physically go there but I couldn’t force myself on my sons. There needs to be compromise on the part of the person who abducted my children.”

He has accepted that they probably wouldn’t know who he is and that by turning up out of the blue he could make things worse for them. “I just hope they are well and thriving and not thinking about their missing father. My view, though, is that they need contact with their father to have the best chance of not being damaged and of not passing it on to the next generation. I feel my job is to break that cycle of inherited damage.”

He believes it is possible, but not likely, that one day he will get the chance to do that.
My Son, My Son is published by Harvill Secker

By RÓISÍN INGLE – Irish Times | Sat, Apr 14, 2012 | Link to Irish Times Article

Slow to tie the knot; slow to get divorced

THAT’S MEN: Marriage age is at its highest since the 1940s

IN THE 1960s and 1970s, a fellow who courted a girl for 10 years or more was a figure of fun.

Frankie Byrne, Ireland’s favourite agony aunt at the time, chastised such reluctant grooms over the airwaves in her no-nonsense style. Some, I am sure, were inspired to “haste to the wedding” as a result.

Today, it is Frankie who would be out of step with the times. Something odd has happened to us.

On average, men and women in Ireland are over 30 years of age when they get married, according to the 2006 census. I could not find an average age of marriage in the first instalment of 2011 census figures issued in March but other figures on marriage, divorce and so on had not changed significantly – so I assume our grooms and brides to-be are as reluctant as they were five years ago to tie the knot.

All of which means that the marriage age is now at its highest since the 1940s.

I suppose it is hardly surprising, then, that the percentage of people who never marry has been rising steadily since the early 1990s.

We have an image in our heads of the rural bachelor who never gets married and who lives alone in his wee cottage.

Guess what? The proportion of men who never marry is higher in towns and cities than in the countryside, according to the 2011 census.

In all, 25 per cent of men and 23 per cent of women aged 40-49 in urban areas are single. For rural areas the figures were 21 per cent and 13 per cent respectively

However, if the Irish are slow to get married, it seems we are also slow to get divorced. Our marriage breakdown rate is one of the lowest in Europe.

When you are looking at marriage breakdown in Ireland, you have to count separation as well as divorce because the Irish seem more reluctant than many other nations to move on to divorce from separation. Perhaps this has something to do with the four-year wait after the marriage breaks down before a divorce can be obtained.

Perhaps it has something to do with the cost of a divorce. Or couples may not be in a position to sell the family home (which may have a Celtic Tiger mortgage on it) and buy two new homes. Or perhaps it is an overhang from the days when divorce was a taboo. After all, we have had divorce in this State only since 1997.

By the way, the introduction of divorce didn’t lead to any great surge in marriage breakdown as feared by its opponents.

But why the low rate of breakdown?

Is it possible that people who postpone marriage until their early 30s have developed more maturity and are better able to withstand the stresses that are part and parcel of marriage? That seems to make sense.

Whatever the reason, that low breakdown rate is a good thing. Marriage boosts the health and wellbeing of both partners, with men gaining the most. Separation damages the health and wellbeing of both, with the men losing the most.

Marriage breakdown seems to affect the wellbeing of younger people more than it does of older people.

Again, this could be due to the greater maturity of older people: they have been knocked around by life and have learned to cope with painful change.

Some psychologists believe separation may even bring a sense of relief to some older people who have stayed with their partners out of a sense of duty and who finally get to split up with them.

How they get on as singles is another story on which I would love to see some research.

In summary, if Frankie Byrne was around today she would have her work cut out for her.

The Irish trends mentioned in this article are from Families in Ireland by Tom Fahey and Catherine Anne Field. Go to bit.ly/irishfamiliesto read the report.

Padraig O’Morain (pomorain@ireland.com) is accredited as a counsellor by the Irish Association for Counselling and Psychotherapy. His book, Light Mind – Mindfulness for Daily Living, is published by Veritas.

By Padraig O’Morain – Irish Times | Tue, Apr 10, 2012 | Link to Irish Times Article

Right to marry for all key to progressive Republic

LEGAL OPINION: RECENTLY ENACTED cohabitation laws have important legal and financial implications for cohabiting couples. Given that the 2006 census enumerated 121,800 couples living together outside of marriage, the new laws potentially affect a significant number of families. They offer particular protection to financially vulnerable long-term cohabitants in the wake of relationship breakdown.

The new requirements are laid down mainly in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on January 1st, 2011. While the Act affords limited rights to “cohabitants”, enhanced legal protection is offered to a special category of long-term cohabitants called “qualified cohabitants”.

A cohabitant is one of two adults living together in an intimate and committed relationship. They may be opposite-sex or same-sex couples but must not be closely related. They may be married to (or in a civil partnership with) other people, but not each other.

Subject to certain conditions (particularly regarding the duration of cohabitation), cohabitants are automatically recognised in law in a limited range of contexts, including domestic-violence protection and wrongful- death suits. In an important break with the legal position prevailing pre-2011, cohabitants may now also enter into legally binding agreements governing their property and financial interests.

An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.

Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.

Three types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders generally must be sought within two years of the relationship ending. The applicant may first seek maintenance (financial support), to be paid either periodically or in a lump sum. The court may also make an order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Finally, the court may reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs.

There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.

A cohabitant has no automatic entitlement to provision on the death of a partner (though cohabitants may provide for each other by will). A surviving qualified cohabitant may, however, apply to court for provision from the deceased’s estate, if proper provision has not otherwise been made for the survivor. Unless the couple were still in a relationship at the time of death, the survivor must demonstrate financial dependence.

Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.

The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.

Even in respect of qualified cohabitants, the obligations and rights conferred by law are nowhere near as extensive as those applying to either civil partners or spouses. Crucially, redress is predicated on financial dependence, the sole exception being provision from the deceased’s estate where the parties were still a couple at the time of death. Qualified cohabitants with sufficient independent resources will otherwise not qualify for relief, regardless of their contribution to the relationship. Where the qualified cohabitant against whom redress is sought is or was married, moreover, the interests of his spouse or former spouse are prioritised, such that the relief available to the other qualified cohabitant may, in such cases, be quite limited indeed.

Dr Fergus Ryan lectures in law at DIT. He is the author of Annotation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,published by Round Hall

By KIERAN ROSE – Irish Times | Tue, Apr 10, 2012 | Link to Irish Times Article

Implementing Pension Adjustment Orders in England

A problem often faced by family law practitioners is what to do with a pension that is located in another EU state. Will the Trustees of such a pension scheme implement an Irish Pension Adjustment Order? The most practical solution so as to avoid such questions is of course is to leave it alone and to divide the assets in such a way that does not involve trying to divide the pension. However if the particular facts of the case require the pension to be divided then the question arises of how this can be achieved. This article examines the process in England, the most common country in which a foreign pension is likely to be located for historical and practical reasons.

It is necessary to briefly examine the case law on the recognition of Pension Adjustment Orders in other EU states. In the case of Van den Boogaard v Laumenthe question asked of the Court was whether a decision given in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her spouse is excluded from the Brussels Convention on the ground that it relates to property arising out of a matrimonial relationship, or whether it may be covered by the Convention on the ground that it relates to maintenance. The Court answered this question as follows:

“Owing precisely to the fact that on divorce an English Court may, by the same decision, regulate both the matrimonial relationships of the parties and matters of maintenance, the Court from which leave to enforce is sought must distinguish between those aspects of the decision which relate to rights in property arising out of a matrimonial relationship and those which related to maintenance, having regard in each particular case to the specified aim of the decision rendered.

“It should be possible to deduce that aim from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property arising out of a matrimonial relationship, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention.”

“It makes no difference in this regard that payment of maintenance is provided for in the form of a lump sum. The form of payment may also be in the nature of maintenance where the capital sum set is designed to ensure a predetermined level of income.”

It is clear from the above that a Court which is being asked to recognise and enforce an Order must first consider the purpose of the Order. If the purpose of the Order is to provide for the other spouse then it should be enforceable but if the purpose is to divide property then it is not. Given that the purpose of a Pension Adjustment Order is generally to provide maintenance for a spouse after retirement, it should be open to practitioners in most cases to present a strong argument that such an Order should be enforced in another EU state.

However, while the case law would seem to suggest that an Irish Pension Adjustment Order is entitled to recognition by Trustees of English pension schemes, it does not necessarily follow that such Trustees will recognise and implement the Order. If the Trustees refuse to recognise the Irish Order then practitioners are left with three options:

Bring an application pursuant to the Brussels I Regulation to have the Order recognised and enforced.
Bring an application in the English Courts under the Matrimonial and Family Proceedings Act 1984 for a mirror Order of the Irish Pension Adjustment Order.
Enforcement of the Irish Pension Adjustment Order pursuant to Rule 74.3 of the Civil Procedure Rules 1998 which provides for the enforcement in England of judgments made in a different jurisdiction.

The first option above is less straightforward than the other two and advice that I have received from English practitioners is that is simpler and cheaper to make an application under the second or third options.

Myself and my colleague Eugene Davy were involved in a case recently which required the implementation of an Irish Pension Adjustment Order in England. The case demonstrates very well the difficulties that are faced by Irish practitioners in enforcing Pension Adjustment Orders in England.

The outline facts of the case were as follows. The parties were married in England in 1966 and lived there for many years before moving back to Ireland. They separated in 1998 and divorce proceedings were brought by the Applicant husband in 2006. The husband had retired in 2003 and, having worked in England for most of his working life in a senior role, had a very substantial pension there. The Terms of Settlement attached to the Decree of Divorce provided, inter alia, that the wife was to receive half of the retirement benefits. A Pension Adjustment Order in the normal format was not made by the Court in this case however. Instead the Court made an Order in addition to the Decree of Divorce pursuant to section 17(2) of the Family Law (Divorce) Act 1996 awarding the wife 50% of the retirement benefits. It further reflected the understanding of the parties that implementation of the Pension Adjustment Order would involve the Trustees transferring an actuanity calculated pension credit to a fund nominated by her so that she will have the benefit of that fund to provide for her own pension. The Order also dealt with which party should be responsible for the costs of the Trustees in implementing the Order in England. These charges can be relatively high so it is important that they are dealt with within the body of the Order.

On receipt of the Pension Adjustment Order the Trustees were notified of the Order and called upon to confirm that they would implement it. The Trustees duly replied that they would not implement the Order without an Order from an English Court. Solicitors in England were retained and advised that in such circumstances the best way to proceed was to seek a mirror Order under section 13 of the Matrimonial Proceedings Act 1984. In order to make such an application it is necessary to first seek leave of the High Court to bring such an application. In order to bring an application for leave the parties must satisfy jurisdictional requirements under section 15 of the Act as follows:

either of the parties to the marriage must have been domiciled in England and Wales at the date of the application for leave or was so domiciled on date which the divorce was obtained in the overseas country took effect; or
either of the parties was habitually resident in England and Wales throughout the period of one year ending with the application for leave or was so resident throughout the period of one year ending with the date on which the divorce obtained in the overseas country took effect in that country; or
either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling house situated in England and Wales which at some point during the marriage was the matrimonial home of the parties to the marriage.

The difficulty faced in this case is that the parties did not satisfy the above jurisdictional requirements and therefore no application could be made under the 1984 Act for a mirror Order. How then to implement the Irish Pension Adjustment Order?

The solution was to enforce the Order using Rule 74.3 of the Civil Procedure Rules. This process is normally used for enforcing a judgement for a debt issued in another jurisdiction and so the application to have the Pension Adjustment Order enforced under these Rules had to somewhat imaginative. In order to apply under the Civil Procedure Rules the following requirements must be met:

An application needs to be made to the High Court (which can be made without notice).
A witness statement in support must be prepared exhibiting the original judgement.
The written evidence in support of the application must state:
1. The name of the judgement creditor and his or her address.
2. The name of the judgement debtor and his or her address.
3. The grounds on which the judgement creditor is entitled to enforce the judgement.
4. In the case of a money judgement the amount in respect of which it remains unsatisfied.
5. Where interest is recoverable on the judgement under the law of the state of origin the amount of interest which has accrued to date and the rate of such interest.

Additionally evidence in support of an application under the Civil Jurisdiction and Judgment Act 1982 must also exhibit:

documents which show that under the state of origin, the judgment is enforceable on the judgment debtor and has been served,
in the case of a judgment in default, a document which establishes that the party in default was served with the document instituting the proceedings or with an equivalent document, and
where appropriate, a document showing that the judgment creditor is in receipt of legal aid in the state of origin.

Given the nature of a Pension Adjustment Order it was not possible to set out the amount to which the debt remains unsatisfied in monetary terms save to say that the Order remained unsatisfied. Obviously no interest was payable whilst the costs of such an application are normally awarded against the judgment debtor in this instance costs were not sought due to the unique nature of the application.

The application was duly granted by the High Court and an Order made under the Civil Jurisdiction in Judgments Act 1982 registering the Irish Pension Adjustment Order as a judgment in England. Pursuant the Rules the Order was then served on the judgment debtor. The Order must be served on the judgment debtor by either:

Delivering it to the judgment debtor personally, or
As provided in the Companies Act 1985 or 2006, or
In such other manner as the Court may direct.

In this case the Order was served on the Trustees of the pension and this qualified as good service under the Companies Act. The Trustees duly confirmed that they would now implement the Irish Pension Adjustment Order in full as the English Order, in their view, validated the Order of the Circuit Family Court in Dublin.

By way of a sidenote, it may be interest to note that the wife was able to transfer her share of the fund to an ARF in Ireland.

This case demonstrates the hoops through which one must jump in order to have an Irish Pension Adjustment Order implemented in England if the Trustees of the scheme do not accept the Order in the first instance. In addition to the delay involved in such a process there are of course additional legal costs in retaining English lawyers to bring the necessary application. It is important that both the costs and the risks involved in making such an application in England be taken into account before a case involving a large English pension is heard or settled in Ireland. It is also important that the Irish Order is worded in such a way as to facilitate its enforcement in England if necessary. Most of all this case shows that if there is a way around dividing an English pension then such a course of action will lead to a quicker, safer and cheaper solution to the division of assets and proper provision.

[1997] ECR 1147