Traditional family unit proves resilient as marriages rise

There has been a slowdown in the rate of increase of cohabiting couples, and Ireland still has one of the highest birth rates in Europe

THE TRADITIONAL Irish family remains remarkably stable, with the numbers getting married on the rise and a slowdown in the rate of increase of cohabiting couples.

The 2011 census results show that overall there were 1.17 million families, up 12 per cent on five years earlier.

Families are defined as couples with or without children, as well as lone parents.

The marital family still accounts for the majority – 70 per cent – of all family units, or just over 870,000 families.

Some of biggest increases in family units were among husbands and wives with children, who made up almost half of all families last year, or just under 560,000 family units.

The number of cohabiting couples has been rising rapidly in recent years. While cohabiting couples are still one of the fastest-growing family units – up 18 per cent – the pace of growth has slowed. They now account for 143,600 family units.

Most cohabitants – 58 per cent – did not have any children, but the average number of children in this family type is rising, up to 0.7 children per cohabiting couple from 0.6 in 2006,

Cohabiting couples with children tend to be younger, indicating that many go on to marry later in life.

The most dramatic increase is among same-sex couples. While the numbers are small, with just over 4,000 same-sex couples recorded as living together, it represents an increase of almost 100 per cent. Of these couples, 230 had children.

Marriage as an institution is on the rise. There were 144,000 more married couples in Ireland than there were five years ago.

The majority of this increase – 132,000 – was among those married for the first time. An additional 11,000 were remarried after the break-up of a previous marriage.

At the same time, there is a continued trend in the number of divorced or separated people.

While the number of divorced people has increased by some 150 per cent since 2002 to just under 86,000, the number of separated people has levelled off and stood at just over 116,000.

Given that divorce in Ireland generally requires a period of separation of up to five years, the numbers are likely to reflect a progression of people moving from separation to divorce.

The overall rate of marital breakdown – that is the number of separated and divorced as a proportion of those ever married – is up from 8.7 per cent to just under 10 per cent over the past five years.

However, this upward trend is unlikely to change Ireland’s position as one of the low-divorce countries of Europe, according to Dr Jane Gray, NUI Maynooth’s head of sociology.

“Irish family patterns are distinctive from those of some other western countries in two respects: the birth rate remains relatively high and the propensity for marriages to dissolve remains comparatively low,” she said.

Census figures also indicate Ireland still has one of the highest birth rates in Europe. In total, some 365,000 children were born in the five years up to 2011, or an average of 73,000 births per year.

This high number of births is due largely to an increase in the number of women of child-bearing age, rather than an increase in the fertility rate. In fact, the fertility rate – the number of children a woman has on average in her lifetime – has been falling steadily since the 1980s and has remained static over the past five years.

Signs that increasing numbers of mothers are delaying childbirth until later in life are confirmed in the latest census figures.

The biggest increase in numbers of children were among mothers in their 30s. In 2006, for example, women in this age group had given birth to 460,000 children. By last year, this rose 11 per cent to almost 511,000.

The average age for a woman giving birth in Ireland in the three months before last year’s census was 31.8, one of the oldest maternal ages across the EU.

The long-running trend in family sizes is also continuing. The average number of children per family was 1.38, down from 1.41 in 2006. This was a less pronounced drop than observed between 1991 and 2006.

There are still some large families, though far fewer in number. Some 1,592 families contained seven or more children.

The number of lone parents, meanwhile, continues to rise. Latest figures show they increased by 14 per cent to 215,300.

However, this not necessarily a rise in the traditional stereotype of young lone parents. Significant numbers were widowed (just under 25 per cent), and separated or divorced (32 per cent). In fact, the proportion of young lone mothers or those with young children was similar to the previous census in 2006.

Irish Times | Fri, Mar 30, 2012 | Link to Irish Times Article

Taking the bitterness out of breaking up

Couples can dismantle their relationships in a civilised manner by adopting a ‘positive plan’ for separation, writes SHEILA WAYMAN

‘BREAKING UP is hard to do. . .” We can all sing along with feeling to the Neil Sedaka song. Separation or divorce is often likened to a bereavement – only worse, some say, because there is not the same sense of closure that a coffin lid brings.

But while we tend to hear about the horror stories, involving personal acts of revenge and gigantic legal bills, couples can and do dismantle their relationships in a civilised manner. And where children are involved, it is, perhaps, the least they can do.

Barrister and family mediator Rachel Fehily believes more people could save themselves time, money and heartache if they were better informed about options and resources before embarking on the painful journey of disengaging as a couple.

She has written a holistic “positive plan” for separation or divorce in Ireland, called Break Up, Don’t Crack Up, that is out this month. It comes not long after the publication of her previous book, Split: True Stories of Relationship Breakdown in Ireland, last November.

As a barrister who went on to specialise in family mediation, did she become disillusioned with the adversarial legal system?

“You begin to notice that the legal system isn’t really solving people’s problems – in all areas of law, not just family law,” she explains. “But it is necessary – there has to be a final arbiter of fact or conflict.”

However, at the pre-legal stage, it is very important that people have other options, says Fehily, who did a one-year course in conflict resolution at UCD and now works solely in mediation.

Intense and articulate, she balances a no-nonsense attitude with compassion for the difficulties humans find themselves in when love grows cold.

“You have a huge duty to your children to resolve things as amicably as possible,” says Fehily, a separated mother of two boys, Harvey (13) and Jack (11). “I feel really strongly about this.”

Couples breaking up tend to link parenting of their children with the division of assets, she explains. “They will say, ‘You are not paying maintenance, so I am not going to let you see our child’, which is so wrong.

“Those two things have to be kept separately and not used as a weapon; the sooner people start to separate those two things in their mind the better.”

Every couple’s separation or divorce is unique to their relationship. “The grounds for battle or conflict fall in different areas for different people. That is why everybody’s conflict resolution mechanism almost needs to be tailor-made for them.”

She would like to see something like the Australian system, where couples have to make a “genuine effort” at mediation to find a solution to their disputes over parenting before going to court, introduced here.

Currently in Ireland, solicitors have to give clients seeking judicial separation or divorce a list of conflict resolution experts. She, and many others working within the legal system, don’t think that’s enough. But the Dolphin House pilot project (see panel, right) seems to be a step in the right direction.

However, when using mediation for issues such as parenting and assets, “it is of utmost importance that people have independent legal advice before they sign up to anything”, says Fehily.

Ask her about the most common mistakes people make when breaking up, and she hardly knows where to start, “there are so many”. She outlines five:

1. Trying to make decisions when they are in huge distress

It is impossible for people to deal with parenting, financial and other long-term issues if emotionally they are not ready. So the first port of call for professional help might be a GP, who can refer you for counselling.

2. Fighting in front of the children

“That is a big mistake,” she stresses. Conflict can sometimes be driven by engaging with the legal process, she acknowledges, but children need to be shielded from this.

3. Automatically going to law and not looking for an alternative

Litigation can be a very long, drawn out and costly process, “and not necessarily give them the solutions they are looking for”, says Fehily.

She advises that it is always in people’s own interests to use peaceful rather than high-conflict means to resolve relationship disputes, such as mediation, counselling or collaborative law – unless there really is no alternative.

4. Neglecting their finances or having an unrealistic view of how their financial situation is going to be resolved

Fehily points out that you are trying to set up two houses, there are children involved and everybody’s living standards are going to be diminished.

“This is a really hard thing for people to get their head around.”

People often think if their ex behaved badly during the marriage, they will do better in court financially.

But Fehily does not believe judges divide assets up on this basis; decisions are based on needs of the family and legal aspects.

“Unless behaviour is abhorrent, I don’t think it is a significant factor,” she says.

5. Failing to move on after the separation agreement is finalised

When people keep revisiting the same conflicts, as if they are on a loop, they are not doing themselves nor their children any good.

They need to go and talk to a professional after a certain period of time if they can’t move on, she suggests.

Not surprisingly, considering the fall-out from messed-up relationships that Fehily encounters in her work, she says people need to think very carefully before they get married – even before they live together.

“I think more people should do pre-marriage courses.”

With increased global mobility, relationships and marriages between people of different nationalities and cultures are becoming much more common, but people need to be aware of the potential pitfalls.

“The big problem is when the relationship breaks down and both parties want to go their separate ways, back to their family and friends, or they want to educate their children in their own language and culture.”

The “nightmare scenario” is where you have married somebody from a country that is not a signatory to the Hague Convention and a child is parentally abducted, she says.

“If you marry somebody and that person’s country is a signatory, it gives you some protection, as that country will enforce custody and access orders made in another signatory country.”

After a break-up, many people, understandably, feel very strongly that they want to go back to their own country.

“It is such a high-conflict decision, that it can be non-negotiable and end up in court and you have to live with the decision that a judge makes,” she says.

“This is why it is so important the legal system gets involved in cases like this. It is almost like the judgment of Solomon, cutting a child in two.

“If your child goes to live in America and you are living in Ireland, that is going to irrevocably change the nature of your relationship with your child forever.”

Break Up, Don’t Crack Upby Rachel Fehily is published by Orpen Press, €14.99

6 steps to get you through break-up

1. I will look after myself.

2. I will put my children first.

3. If possible, I will try alternative dispute resolution.

4. If I have to litigate, I will litigate well.

5. I will not neglect my finances.

6. I will move on to my new life without bitterness and regret.

For more information, see Rachel Fehily’s website,

Together alone; When couples are forced to share a home

Increasingly, couples in relationship difficulties feel they cannot afford to separate during these tough economic times.

“I think it is really dangerous to be forced to live with somebody when you are in a high-conflict situation,” says Rachel Fehily.

“Most murders are domestic – and you wonder how much of it is caused by people who are living in a very high-conflict situation.”

People living like this need to get help. Women’s refuges would be a last resort, she suggests, and the fact that there is no equivalent sanctuary for men is “terrible”.

Relationships Ireland sees many clients in this situation; some attend to find out if the relationship is beyond redemption or if it can be repaired, says counsellor Lisa O’Hara. Others, if they have decided they are no longer a couple, want to see how they can continue to live in the same house.

It is very tricky, “when their internal reality and their external reality is at odds with each other”, says O’Hara, who dedicated a chapter of her recent book, When a Relationship Ends, to this scenario.

Couples need to see where they can draw boundaries within the four walls, starting with the bedroom. “Many couples who are separated will continue to share the same bed,” she explains. “It confuses things a bit.”

If they have children together, they need to look at what stays the same and what’s different. The same applies to their finances. It is almost like the relationship becomes more one of “housemates”.

It is easier to work out if a couple is civilised with each other, keep their children as their main focus and also have a healthy respect for their changed relationship.

However, often the problems that caused the separation in the first place are heightened when they are forced to continue to live together.

Sometimes it is simply not possible, O’Hara adds, and somebody has to move out.


Conflict resolution: Taking the mediation route

More than 260 separating couples have reached agreement on family issues through mediation rather than fighting it out in court, during a year-long pilot project making mediation services available at the District Court complex in Dublin’s Dolphin House.

Tomorrow marks the first anniversary of the project, whereby people going into Dolphin House to lodge an application for custody, access and guardianship are encouraged by courts service staff to consider mediation as an alternative to court. They are directed to the fourth floor from where the Family Mediation Service (FMS) operates, free of charge to all.

If the first party is prepared to try mediation and thinks that the other party might be willing too, the FMS invites the other party in for an information session.

If they both agree to try mediation, they are offered a mediation session at Dolphin House without delay. (If legal advice is required, Legal Aid Board personnel are available on the third floor.)

Figures for the Dolphin House project show that between March 21st, 2011, and February 29th, 2012:

First contact information sessions attended:1,144

Second contact information sessions attended: 686

Mediation sessions attended: 740

Agreements reached: 264, plus a substantial number of mediations in progress.

“In addition to the obvious advantages of 264 couples not entering the adversarial system,” says FMS service director Polly Phillimore, “there are many advantages for couples who, by having an opportunity to mediate, may have developed more effective communication and consequentially a less stressful parenting relationship both for themselves but, more importantly, for their children.”

The project is set to continue and it is hoped to extend it to other major centres. She says there has been very positive feedback from clients, many of whom were surprised to be told that there was an alternative to going to court.

The FMS, which is operating on a budget of €2.8 million for 2012, compared with an annual budget of €3.9 million five years ago, sees about 1,500 couples a year.

While the numbers of clients attending its 16 full-time and part-time mediation centres around the State have remained fairly static over the past five years, “the issues and circumstances brought on by the recession have become increasingly complex”, says Phillimore.

Waiting times are generally about two to three months, although they range from one month in Cork and Castlebar, Co Mayo, to six months in Blanchardstown, Co Dublin, and eight months in Wexford.

However, the FMS says that the use of additional, private mediators in recent months is helping to reduce waiting times.

For more information on the Family Mediation Service, see or tel: 01-6344320

By Sheila Wayman – Irish Times | Tue, Mar 20, 2012 | Link to Irish Times Article

Cohabiting couples must consider financial obligations

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 Fergus Ryan – Irish Times | Mon, Feb 27, 2012 | Link to Irish Times Article

Court refuses permission to move children to Spain

High Court judgment

Neutral Citation IEHC 519


Judgment was delivered on April 15th, 2011, by Mr Justice John MacMenamin


An application for the relocation of children from Ireland to Spain with their mother, who was separated from their father, was refused as not in the interests of the welfare of the children.


The applicant was the Spanish mother of two boys now aged 12 and six years old. The mother came to live in Ireland when she married the boys’ father in 1999. The couple separated in 2007, and obtained a judicial separation the following year. They are joint guardians of the children and have joint custody, with the children spending every second weekend from Friday to Sunday with the father, along with two evenings a week from 3pm to 7pm.

The mother sought to move to Spain with the boys, where she would have the support of her family and better employment prospects. This was opposed by the father.

Mr Justice MacMenamin said the father’s conduct towards the mother “has been far below the standards any wife and mother has a right to expect, and his hostility had been a significant contributory factor to the bad relations between them”. He had been verbally threatening to the mother and had been the subject of a protection order and a safety order, which he had breached, leading to the imposition of a term of imprisonment, which is under appeal. He was unemployed and paying no maintenance.

The mother was living in rented accommodation with no income except the lone parent’s allowance and child benefit.

Despite the tension between the parents, the children were very close to both parents, both of whom played an important part in their lives. These facts had to be considered in the light of constitutional and legal principles.


The main focus in the case was the balance to be struck between Articles 40.3 and 41 of the Constitution, he said. Under Article 41 the family was the natural primary unit group of society, and the State guaranteed to protect it. Under Article 40.3 the children had the personal right to have decisions in relation to guardianship and custody taken in the interests of their welfare.

In this and the neighbouring jurisdiction there had been considerable judicial discussion as to whether there was a presumption that a court should give effect to the views of the custodial parent in such cases. The decisions showed that the child’s welfare was the paramount consideration.

A balancing exercise was involved, which must have regard to the constitutional rights of children to have these decisions taken in the interests of their welfare, which included the right to have access to or contact with their parents.

A recent English judgment also emphasised the necessity of obtaining the views of the child having regard to his or her age and maturity.

In this case a consultant psychologist had interviewed the children. He reported that both were cheerful, well cared for, pleasant and friendly. The older boy had special educational needs, but was an insightful, intelligent and articulate boy. The boys clearly had a very close bond with both parents and with each other.

The psychologist’s view was that he could see no reason why the mother’s wish to relocate should be refused. He recommended fortnightly contact meetings alternately in Spain and Ireland. The father did not agree to the parenting plan.

Mr Justice MacMenamin said that such contact, involving the boys travelling from Spain to Ireland every month alone or with another person, and the father travelling and finding accommodation on a monthly basis, was not practical from a logistical or financial point of view. He expressed concern that no adequate expression had been given to the views of the children.

The mother did not consent to his speaking to them and, though she did not have the right to veto it, he did not force the issue.

Mr Justice MacMenamin said he did not think relocation should take place now as it would have the effect of diminishing the father’s relationship with the children. He pointed out that all such orders can be revisited because circumstances can change.

Neil Vaughan Buckley BL, instructed by Brunswick St Law Centre, for the appellant; Gerry Durcan SC and Catherine Lucey Neale BL, instructed by MacCarthy Associates Solicitors, for the respondent.

The full judgment is on

Irish Times | Mon, Feb 20, 2012 | Link to Irish Times Article

Divorce in a Cold Climate

The recession is well and truly upon us and its effect is being felt in every aspect of life in Ireland. Its impact is also being felt in a very significant way in the family law courts where the dramatic downturn in the economy and in asset values has resulted in an increasing number of people turning to the courts for assistance when they cannot meet their financial obligations arising from a separation or divorce. This has created a new set of problems for the courts to deal with because since the introduction of the judicial separation legislation in 1989 and divorce in 1997 the Courts are for the first time having to grapple with family law in the context of a severe recession.

So under what circumstances do the courts have the jurisdiction to deal with such situations? If the parties have resolved matters in the context of a separation, whether by Deed of Separation or by judicial separation, then there is a forum available to them to revisit matters and that is to do so at divorce. In other words, it is open to the parties to issue divorce proceedings after they have been living apart for four years and in the context of those proceedings the parties can ask the court to revisit any previous agreement or court order.

However, what options are available if a divorce has already been granted to the parties? Unlike a separation, a divorce cannot be simply agreed between the parties and can only be granted by a court. A court will grant a divorce either in terms of the settlement agreed between the parties or, if no agreement can be reached, by imposing orders on the parties after a full hearing of the case. The question then arises as to whether the courts are entitled to review a divorce order at a later date if the financial circumstances of one of the parties deteriorates.

The answer is that section 22 of the Family Law (Divorce) Act 1996 entitles the court to vary certain types of orders granted at divorce but not all types of orders. Orders relating to maintenance, lump sums payable by instalments (where certain instalments remain unpaid) and certain types of property adjustment orders can be varied by the court if the court “considers it proper to do so having regard to any change in circumstances of the case and to any new evidence”.

However there are other kinds of orders that cannot be varied under section 22. For example, a simple lump sum order (ie a once off lump sum payment rather than a payment by instalments) cannot be varied. Further, the wording of section 22 does not give a court the jurisdiction to vary a simple property adjustment order, for example the transfer by one spouse of his or her interest in a property to the other spouse.

So is there anything that a party to a divorce can do to vary an order granted at divorce which does not fall within the ambit of section 22?  In the recent case of O’C v O’C the High Court had to deal with such a situation. In this case the financial circumstances of the husband had deteriorated significantly since the conclusion of the case to the extent that he was now unable to comply with his obligations under the order, in particular the transfer of certain properties to the wife. The husband sought to reopen the whole case and sought from the court new orders to reflect the current financial circumstances of the parties.  Ms Justice Dunne refused to do so. However, Ms Justice Dunne did make a further property adjustment order on the family home and instead of the family home being transferred to the husband (as per the original order) a new order was made under which it was transferred to the wife.

In refusing to reopen the case Ms Justice Dunne upheld the general rule that the courts would not revisit court orders, especially orders formalising terms of settlement negotiated between the parties where such terms of settlement were freely entered into at arms length by parties who had received proper legal advice. However, Dunne J said that applications to vary or to set aside terms of settlement would be entertained in certain circumstances. In this regard she stated that in order for an application to vary to be successful new unforeseen events must have occurred since the making of the order that invalidated the basis on which the order had been made so that an appeal would be certain or very likely to proceed if an appeal had been made at the time the order was granted. Further, the Judge stated that the new events should have occurred within a relatively short time after the making of the order.

The upshot of the above is that the court set a relatively high threshold on a person seeking to vary an order granted at divorce which does not come within the ambit if section 22. In this case Dunne J noted that the husband’s difficulties were not so much a new event as the continuation of an existing trend and the husband failed in his application to set aside the settlement. The case seems to suggest that where financial difficulties were not wholly unforeseeable at the time of a settlement, particularly a recent one, it will be difficult to succeed with an application based on those financial difficulties.

This begs the obvious question of where this leaves the spouse who was to receive, for example, a lump sum which cannot now be paid. In other words what happens if, for example, a husband cannot comply with an order to pay a lump sum to his former wife but yet does not meet the criteria set out above to allow him to request the court to vary the order? Such a situation leaves the wife in a very unsatisfactory position. Her husband may genuinely not have the money to pay the lump sum but there may not be any point in bringing him back to court to have the order enforced. The order will remain in place in any event and it may be that in such circumstances the wife may have to bide her time until the husband’s financial position recovers, if at all.


Keeping Your Sanity in a Separation

Separation and Divorce are traumatic life events and an extremely stressful time for those going through a relationship breakdown, especially when children are involved. Although obviously everybody’s circumstances are unique, set out below are some helpful tips for people who are about to go through a separation:

It will be difficult. Don’t underestimate the rollercoaster of emotions you will have to deal with, even if it is your decision to end the marriage. You will be required to make life changing decisions in relation to your future financial security and, possibly, your relationship with your children. Keep in mind also that matters may take longer to resolve than you first think, particularly if you are at loggerheads and communication has broken down.

Be careful about moving out of the family home. Moving out may be the wrong thing to do from a tactical point of view. On the other hand, it might be the right thing to do from the point of view of peace of mind. Take advice before you make this decision.

If you have children, try to resolve arguments over them without involving the lawyers. You and your spouse will have to work together to meet the needs of your children long after you have parted from your Solicitors, so try to keep them out of it.

Try to resolve disputes over the division of contents of the home between yourselves. Don’t let things get out of perspective. It is usually cheaper to replace an item you’re arguing over than to fight about it through your solicitors.

Make sure you get early legal advice, particularly if there is a jurisdictional issue at stake. It may be that more than one country could have jurisdiction. It is therefore essential that you seek advice as soon as possible – timing will be key when it comes to where you issue your proceedings. Different jurisdictions deal with finances in very different ways so it is important to get it right.

If you move abroad, you can’t necessarily take the children with you. Children cannot be taken out of the jurisdiction without the consent of both parents or the permission of the Court. If you pack up and leave with the children to another country, you may be guilty of a criminal offence and could also be in contravention of the Hague Convention.

Every penny you spend on lawyers shrinks the marital pot you’re fighting over. Separation can be expensive, both in terms of time and money. An amicable separation, including the resolution of the financial issues, may still take a number of months to conclude. A fully contested Judicial Separation or Divorce in which all financial matters are disputed may have serious cost implications depending on the complexity of the case and could take 18 months to get to trial. Don’t flitter away the pot. Legal costs can quickly mount up with needless correspondence passing between Solicitors.

Try to keep hostility to a minimum. The law does not apportion blame and it is only in exceptional circumstances that misconduct is taken into account. Therefore don’t write aggressive or insulting letters or text messages; they will only be shown to the Solicitors who will spend more of your money sorting out the repercussions.

Spend time finding the right Solicitor. You will need to get on with your Solicitor. Also, and very importantly, don’t judge your Solicitor on how much he or she charges per hour; an experienced family law Solicitor who works swiftly to cut to the chase will be more cost effective in the long run then a lawyer who charges a lower rate but may not have the same experience.

Your Solicitor may not be the best person to solve some relationship breakdown issues. Your Solicitor should always be supportive, but there are some issues, for example emotional or relationship issues, where it may be more appropriate to consult a different professional, such as a counsellor or family therapist.

Be open with your Solicitor. Your Solicitor will be able to carry out damage limitation if he or she is aware of all the facts. However if skeletons are pulled from the cupboard in front of the Judge when it is too late for your advisors to deal with them it may severely prejudice your case.

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

Justin Spain

Boy (13) allowed to remain with father in Ireland

THE SON of divorced parents who had refused to return to England to live with his mother following a holiday with his father in Ireland may remain here, the High Court has ruled.

The mother of the boy (13) had brought proceedings under the Hague Convention on child abduction seeking an order requiring his return to England and claiming he would have better schooling and a better life there.

The parents married in 1995 in Britain, separated in 2005 and divorced in 2008. The Irish father returned here with all three of their children – two boys and a girl – with the mother’s agreement. No formal custody or access agreement was put in place but the mother maintained contact with the children.

The girl later went to live with her mother but the boys remained here with the father until 2010, when the younger boy also went to live with his mother. He said he did so because he was promised a better life there but, in July 2011, after a two-week holiday with his father, said he wished to remain here and did not return to England.

A clinical psychologist who interviewed the boy said she was satisfied his views about wanting to stay were his own and genuine. He was well capable of forming and expressing his own views and had done so without pressure from others.

Mr Justice Michael Peart ruled, after balancing this “sufficiently mature” boy’s “genuinely held” objections to return to England against the aims and objectives of the Hague Convention, that this was one of those exceptional cases where a child should not be returned to his country of habitual residence which, in July 2011, was Britain.

While article 12 of the convention required immediate return of a child wrongfully removed, article 13 permitted the court some discretion. In this case, of “particular exceptionality” was the fact the boy had seven years of living with his father and of attending school here with which to rationally compare the 12 months between 2010 and 2011 living with his mother in England, the judge said.

There was some dispute whether the mother made clear to the boy, when he came to live with her in July 2010, that he must do so until the age of 16 so as to “settle” him, he also noted. While he chose to go to England then, he had told his father he did so after indications either by his mother or his sister that his life would be better there and he could return to Ireland if things did not work out.

There was limited evidence his father was short of money as he was attending college and in such circumstances, the promise of a better life in England may have had “some superficial attraction”.

The fact the boy’s decision in July 2010 to live with his mother changed his country of habitual residence overnight, given the “settled purpose” of that move, should not deprive him of the opportunity of changing his mind as long as he was not doing so on “a whim”.

It was not contrary to the purposes or terms of the Hague Convention to allow the boy to change his mind before it was “too late”.

It was “increasingly the case” a child of sufficient maturity would be heard on such applications as this; this would be done sometimes via interviews with experts, such as the psychologist in this case.

Mr Justice Peart also stressed there was no evidence the return of the boy to his mother would expose him to psychological harm. Just because a child expressed a wish not to be returned, the court did not have to accede to that wish, he added.

It was clear from the psychologist’s report that this boy, while immature in the sense of not being used to making serious decisions for himself, had sufficient maturity to form and express his own views and to have them seriously considered, he said.

By Mary Carolan – Irish Times | Fri, Jan 13, 2012 | Link to Irish Times Article

A raw deal for unmarried dads

Sir, – I agree with John Waters (Opinion, January 6th) when he says that “unmarried Irish fathers remain deeply ignorant of their legal situation”. Treoir works to inform unmarried parents of their legal rights. Given the increasing number of unmarried parents in Ireland, this is indeed a daunting task.

Our experience in the National Information Service for unmarried parents is that unmarried parents assume where the father’s name is on the child’s birth certificate that the father acquires guardianship rights in respect of his child. This is not so. A father has to take action to become guardian. He can either sign an agreement with the mother (but alas, there is no central register for such agreements) or he can apply to the local district court to be appointed guardian.

The Law Reform Commission has issued its report on legal aspects of family relationships which contains significant recommendations for the improvement of guardianship rights for unmarried fathers. Though these recommendations may take some time to come into affect it is a step in the right direction. – Yours, etc,


Assistant Chief Executive


IFSC, Dublin 1.

Margot Doherty Letter to the – Irish Times | Tue, Jan 10, 2012 | Link to Irish Times Article

The Implication of an Inheritance in Separation

When a couple separate an issue that frequently arises is the issue of inherited or gifted assets. Usually a spouse is anxious to know if inherited assets will be treated as part of the marital assets or whether these assets will be ringfenced as the assets of that spouse only.

The answer is it depends on the circumstances of the case. The legislation does not specifically deal with the issue of how an inheritance should be treated. However, the legislation does allow a Judge to take inherited assets into account in deciding what is proper provision for both spouses following a separation and a Judge has enormous discretion in this regard. So what is the practise of the Courts in dealing with inherited assets?

The leading Irish case in this area was the case of C v C. The main asset in this case was a landed estate which had been inherited by the husband and which had been in his family for generations. The gross value of the assets were over €30 million and the wife was seeking to have the manor house transferred to her. Mr Justice O’Higgins refused to transfer the house to the wife and said:

“The Applicant (husband) has a strong claim to the house. Firstly he is the sole owner. Secondly he has family connections with it for a very long time. Thirdly the Respondent (wife) did not contribute either directly or indirectly to its acquisition as the house was inherited.”

The husband in this case had an after tax income of €750,000 and the Judge awarded the wife a lump sum of €3.3 million to purchase a family home for herself and the children and maintenance of €320,000 per annum for herself and the children. Therefore in “big money” cases the Court is unlikely to give a spouse a significant proportion of the inherited assets of the other spouse, particularly if the inheritance was quite recent.

But what if the case is not a “big money” case? Here the main determining factor is usually the respective needs of the parties and in such cases therefore the Court is more likely to take inherited assets into account when deciding what is proper provision each party. However, a Court must take account of the judgment of the Supreme Court in the recent case of GvG in which the Supreme Court stated that inherited assets should not be considered to be assets of the marriage.

The date when the assets were inherited is also a factor – if the inheritance was received a long time ago it is more likely to be included in the assets to be divided between the parties.

It is therefore important to take advice in relation to inherited assets when a relationship breaks down or indeed when contemplating making a will or getting married.