Proposal to reduce divorce wait to two years
Josepha Madigan, family law Solicitor and TD, has introduced a Private Members Bill to allow the time that you have to be living apart from your spouse before you can apply for a divorce from four years to two. This is a much needed development as society has changed in the 20 years since divorce was introduced. Such a change, which requires a referendum, would mean an end to the two stage separation process that we have in this country which is unfair to spouses and also to the children caught up in a separation. Ironically, same sex couples who entered into Civil Partnerships only had to wait 2 years for a dissolution of their partnership and this reflected the fact that civil partnership was introduced at a time when societal attitudes to break up of relationships had changed. You can view a recent Irish Times article by clicking on the link below.
Divorce cases may soon pierce the corporate veil
Irish courts have, to date, tiptoed around piercing the corporate veil in separation and divorce cases
Two recent family law cases have highlighted the issue of whether a company will be able to maintain its separate legal identity when its major shareholder is involved in divorce litigation.
It is a long established core principle of company law that a company is a distinct legal entity from its shareholders, even a majority shareholder who has total control over the company.
Notwithstanding this, the family courts in England have until recently routinely made orders directing a company to transfer its assets to the spouse of a shareholder.
The Irish courts have, to date, stopped short of going as far as this.
However, Irish courts do regularly make orders directing a company shareholder to give company data and documents, information that is confidential to the company, to their spouse.
This is to allow the spouse of the shareholder to value the shareholder’s stake in the company in the course of divorce litigation.
A recent English case has made clear when a company might have its assets transferred to the spouse of a shareholder.
The case in question is the case of Prest versus Petrodel. The husband, Michael Prest, was the founder and sole shareholder in Petrodel Resources. In his divorce case, he claimed that Petrodel’s assets did not belong to him and that he was £48 million in debt. Initially the court ordered the company to transfer properties worth £17.5 million to the wife. The company appealed this decision and the UK’s Supreme Court.
The court decided that, in general, orders could not be made awarding company assets to a shareholder’s spouse.
However, the court then went on to make just such an award of company assets to the wife in this case because it found that the husband was the beneficial owner of the assets.
He had, for example, provided the funds to buy them. He also took funds from the company whenever he wished without company authority.
The court therefore rubber-stamped the transfer of assets from a company to a spouse, albeit with limitations.
Irish courts have, to date, tiptoed around piercing the corporate veil in separation and divorce cases.
Instead of making orders against a company, they have made orders against the shareholding spouse to either transfer some of his or her shares in the company to their spouse or to give their spouse a lump sum, such that the only way they will be able to pay the lump sum is to pull money out of the company.
Whichever of these methods of transferring assets to a spouse is used the results are often unsatisfactory and crude.
The former may leave the dependent spouse with an illiquid minority shareholding and the latter is very tax inefficient.
A case in Ireland in June of this year also highlighted the issue of the separate legal status of a company, albeit on a narrower issue.
The case of Q versus Q involved an application by a wife to compel a husband to give certain company information to her. The husband argued that he was not in a position to provide the information pertaining as the company was a separate legal entity.
He also argued that the information being sought was not within his possession or power to give.
Mr Justice Keane in the High Court made the point that a court in a family law case has a quasi-inquisitorial role.
He found that the husband had been able to receive all and any information he needed and he could not therefore argue that the documents his wife was seeking were beyond his possession or power to give.
The case demonstrates that a company is not immune from involvement in family law cases in this country just because it is a separate legal entity.
One feels it is only a matter of time before the issues that arose in Prest versus Petrodel are before the Irish courts.
If the Irish courts do follow Prest, the impact on company law here would be dramatic in that company assets might become fair game for the spouses of divorcing shareholders.
Tackling the problem
A pre-emptive solution should be found now to avoid such problems arising in the future.
One option would be to introduce legislation along the lines of the Australian model which enables a court to make a whole range of orders concerning a third party, including orders against a company to transfer assets from the company to a spouse of a shareholder.
Indeed, perhaps such legislation should be introduced here sooner rather than later so as to provide certainty for couples and companies alike and to make it easier for the courts to make proper provision for spouses on divorce.
Justin Spain is a family law solicitor
By Justin Spain – Irish Times | Mon, Oct 20, 2014 | Link to Irish Times Article
Supreme Court: Divorce should not mean an automatic redistribution of wealth.
The Supreme Court handed down a Judgment of great significance on 19th October. The Judgment was given by the Chief Justice in the case of G v G and addresses the important question of what constitutes proper provision on the granting of a divorce in circumstances where a Separation Agreement has previously been entered into by the parties.
Until this case the law was unclear as regards the weight that a Deed of Separation should have in the context of providing proper provision on divorce at a later date. Parties were using the forum provided by a divorce application to seek a “second bit of the cherry” and there have been conflicted Judgments from the High Court on the issue of how much a weight a previous Deed of Separation should carry. The clarity provided by the Supreme Court in this case on the issue is therefore to be welcomed.
In the case of G v G the parties were married in 1977 and separated in 1995. A Deed of Separation was entered into by the parties in 1996, pursuant to which the husband agreed to pay the wife maintenance of £100 per week for two years, decreasing to £50 per week thereafter. He also agreed to provide a house for her, pay her VHI and gave an additional lump sum of £70,000. The Deed contained a “full and final settlement” clause which stated that the Agreement constituted a full and final settlement of all present and future financial claims by either party including a divorce at a later date.
After the Deed of Separation was entered into the husband became wealthy. Having inherited property, sold it and bought other lands which he later sold for €19 million. The wife still lived in the house provided for her at the time of separation. She had spent her lump sum of £70,000 and did not invest it in any wealth producing activity. The wife then instituted divorce proceedings, primarily with a view to improving her financial situation.
The divorce came before the High Court in May 2009 by which time the husband’s assets were worth €21 million. The High Court made the following Orders in favour of the wife:
- €600,000 for the purchase of an annuity.
- €300,000 for the purchase of a pension.
- Maintenance of €54,000 per annum increasing annually in line with inflation.
- €1,000,000 for the purchase of a second house for the wife.
- A further lump sum of €600,000.
The husband appealed the Order to the Supreme Court on the basis, inter alia, that the amounts awarded to the wife by the High Court were excessive having regard to the law applicable to the making of proper provision for her. The husband argued that the High Court had failed to give any real weight to the parties’ prior Deed of Separation and had embarked upon a redistribution of wealth. He further argued that the Court should only make further provision if there is some material change in a party’s personal non-financial circumstances or if there was some deficiency in the initial provision.
The Supreme Court laid down some general principles to be applied where there is a prior Deed of Separation, including the following:
- A Deed of Separation should be given significant weight by a Court when determining what is proper provision on divorce, particularly if it contains a “full and final settlement” clause.
- If the circumstances of the spouses have changed significantly since separation the Court is required to make proper provision but there is no requirement on the Court to redistribute wealth between the parties. Such changed circumstances may include, for example, changed needs of a spouse due to illness or the bursting of a property bubble which has altered the value of assets so as to render an earlier provision unjust.
- If a spouse acquires wealth after a separation that is unconnected to any joint project during their married life, there is no automatic right of the other spouse to further monies or assets.
- The greater the length of time that has passed since separation, the less likely a Court will be to alter arrangements entered into at separation.
- Assets which are inherited by one spouse will not be treated as assets of the marriage.
- A spouse should not be compensated for their own incompetence or indiscretions to the detriment of the other party.
In applying the above principles to the present case the Supreme Court made a number of findings. The Court found that the initial level of maintenance was too low and also that the Deed of Separation did not provide a sufficient level of security into the future.
However, the Court found that the overall level of financial provision made by the High Court for the wife was excessive. In particular the Court allowed the Appeal of the husband in certain respects and held the following:
- The husband should not have to pay €1,000,000 for the purchase of a second house for the wife.
- The lump sum of €600,000 awarded to the wife should not have to be paid.
- The Court found that where one party fails to maximise resources acquired under a Deed of Separation this in itself is not a basis for further provision to be made. In this case the wife did not maximise her capital resources, however her subsequent ill health and the low level of initial maintenance under the Deed of Separation meant that the High Court was entitled to make further provision for her.
- Where there is a great improvement in one party’s finances following a “full and final” settlement the concept of “proper provision” should not be dominated by that change. However, if there is a new or different need then that may be met from the resources that now exist. The Court stated that the general standard of living of a spouse should be commensurate with that enjoyed when the marriage ended. Importantly, the Court stated that the standard of living of a spouse, when the other party has achieved further wealth, is not entitled to be elevated on that basis.
In the present case the Court found that the husband had acquired his wealth after separation and as such his wealth should not be relevant to making proper provision for his wife except if there is a requirement for a special consideration such as ill health. The Court therefore found that the wife’s increased maintenance and pension met her needs.
This case provides some much needed clarity on the weight to be given to a Deed of Separation when parties come to divorce at a later date. In the last number of years the practice of using divorce as a forum to have a “second bit of the cherry” appears to have been very significantly reduced by this Judgment.
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.
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
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 (email@example.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
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, familylawmediator.ie
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 legalaidboard.ie or tel: 01-6344320
By Sheila Wayman – Irish Times | Tue, Mar 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.