… a kind of Legal Column

Archive for January 2011

I’m sick of my Marriage and want a Divorce and to keep my Money !

with 2 comments

13_09_30_divorce[1]Q: My name is John and I am 59 years of age and my wife is 57 years. We have 2 children aged 28 and 34 who are self-sufficient. I am sick of my marriage and want to get a divorce. I work in the bank and my wife just looks after the household. My wife used to drink a lot although hasn’t had a drink in about 5 years and attends AA. She used to be very difficult to be around with her drinking though. I have been quite responsible over the years and made good investments and between my family home, savings and pension have about €5million. I would like to retire soon and although I want to separate from my wife and get a divorce, I don’t want to give her all my money. Her behaviour when she used to drink was embarrassing and I think that is reason enough for me to leave and give her nothing. How can I get a divorce and keep my money or what is my wife likely to get if we went to court??

A: This case is an example of what the Courts refer to as an “ample resource” case. There are not many of these cases left going through the Court system as there is not many households in the current economic climate that are worth or have savings of approximately €5million. Upon reading the question posed above I would say that John is a successful bank employee and his wife a fulltime mother and homemaker. The children are aged 28 and 34 and therefore no longer legally dependant.

Divorce – firstly it must be noted that in Irish law the parties must be separated 4 out of the previous 5 years in order to obtain a decree of Divorce (section 5, Divorce Act, 1996 and the Constitution). If John decided to go to Court it would be Judicial Separation proceedings he would have to pursue at this time. Judicial Separation is almost identical to Divorce save that you cannot remarry if you have a Judicial Separation. Section 2 of the Judicial Separation and Family Law Reform Act, 1989 contains six different circumstances which you can plead in order to obtain a Judicial Separation with the most common section being section 2(1)(f) being that “the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. Other grounds include adultery, behaviour, desertion, lived separate and apart for a year and there is consent of the other party, lived separate and apart for 3 years. In both divorce and judicial separation a “clean break” is desirable but never 100% possible. A spouse or former spouse can always go back to court in relation to access and maintenance. In both cases a court will ensure that ‘proper provision’ is made for both parties. In divorce, however, there is a constitutional obligation on a court to ensure that proper provision has been provided. Finally, a court must be satisfied that there is not prospect of reconciliation between the parties.

Wife’s behaviour – John’s wife, it would seem, had an addiction to alcohol at one point. The fact that she has stopped drinking the last 5 years would seem to mean that her behaviour has not been the reason for the breakdown of the marriage. In any effect, for conduct to be taken into account in Irish law it must be “gross and obvious”. Over the years the term “gross and obvious” has been given a very high threshold and has said to constitute such behaviour as physical or mental abuse. I am of the view that it is unlikely that the wife’s alcoholism would equate to “gross and obvious” conduct on her part. This is subject to further details being provided as to the full extent of the wife’s past behaviour.

What would wife get in Court – this question can never be given a definite answer. In the words of Thorpe LJ in Cowan v Cowan [2001] 2FLR 192 at 213

“….even within the relatively narrow sphere of the big-money case the infinite variety of facts and circumstances thrown up in individual cases makes it dangerous to generalise or to attempt to distil principles”.

Family law cases are as individual as the people who are involved in them, and it is virtually impossible to find two cases which are identical. The Courts tend to look at three areas of the parties finances; income, capital, other. The ‘capital’ usually refers to the family home and/or other property and the ‘other’ usually refers to other financial resources such as pensions, insurance policies etc.

Proper Provision – Section 16 Family Law Act, 1995 governs proper provision in relation to Judicial Separation (section 20 Family Law (Divorce) Act, 1996 is the appropriate section in relation to a divorce application) and provides that in making its orders, the court shall endeavour to ensure that such provision exists or will be made for each spouse concerned and for any dependent member of the family concerned as is proper having regard all the circumstances of the case. There used to be a notion that one-third would go to a dependant spouse, however; such method has been widely criticised and will not be followed in an Irish court.Denham J. said at pp. 384 to 385 in the judgment ofT. v. T.[2002] 3 I.R. 334:

“The concept of one-third as a check on fairness may well be useful in some cases; however, it may have no application in many cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means if, for example, such a sum could only be achieved by a sale of assets which would destroy a business, or the future income of a party or parties, or if it related to property brought solely by one party to the marriage, or any other relevant circumstance.”

And what is said to be proper provision in one case could be highly inadequate in another.Denham J. said at p. 381 of the judgment:

“The relevance and weight of each of the factors will depend on the circumstances of each case.”

The case of K v K [2001] 3IR 371 concerned an appeal to the Supreme Court against a decision of Lavin J. where he had directed that the applicant was entitled half of the respondent’s income, together with a lump sum of £1.5 million, which represented approximately half of the respondent’s assets.  The Supreme Court remitted the case back to the High Court as the trial judge had not given reasons for the manner in which he had exercised his discretion under section 20 of the 1996 Act (the equivalent provision under the divorce act). It emphasises the importance of considering the relevant section and the considerations thereunder of what constitutes ‘proper provision’.

Section 16 of the Family Law Act 1995 sets out 12 factors to which the Court is obliged to pay particular regard, namely,

Section 16(2)(a) the income, earning capacity, property and other financial resource which each of the spouses concerned has or is likely to have in the foreseeable future,

( b ) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

( c ) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,

( d ) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,

( e ) any physical or mental disability of either of the spouses,

( f ) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

( g ) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

(h) Any income or benefits to which either of the spouses is entitled by or under statute,

(i) The conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

(j) The accommodation needs of either of the spouses,

(k) The value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned, that spouse will forfeit the opportunity or possibility of acquiring,

(l) The rights of any person other than the spouses but including a person to whom either spouse is remarried.

There are a number of important judgments which effectively conclude one important point: every case is different and will depend on the facts and circumstances of the parties.

Tax implications – it should be noted that the Courts often utilise the mechanism of a lump sum order so as to provide proper provision in lump sum cases. An important consideration for the Court to consider when making such an Order is the tax implications of the said Order.

Conclusion – it is clear that the Courts view every family law case differently in Ireland and there is no ‘hard and set rules’ in relation to what constitutes proper provision in any one case. Even in the very limited facts which exist in this case, it may be difficult to fit the circumstances into one of the grounds for a Judicial Separation. Given the length of the marriage and the ages of the parties and taking into account that John’s wife, it seems, has never worked outside of the family home, it is likely that a Court would award the wife an award equal to between a third and a half of the overall value of the case. There would likely be maintenance, whether it be in the form of a lump sum payment or monthly maintenance payments or both. There would likely be property adjustment orders in relation to the family home and any other properties and also a pension adjustment order in that John’s wife would receive some of the benefits under John’s pension including, but not restricted to, any spouses benefit it they exist.

LegalEagleStar   Tuesday,  25th  January,  2011

Written by LegalEagleStar

January 25, 2011 at 2:57 pm


leave a comment »

Q.    I   HAVE  HEARD   that it is possible to make your own Will. My neighbour said that it’s easy to do it yourself.  What do you think?

I want to save money but still want to do the right thing.  Help please.

A.    IT  IS  POSSIBLE to draw up your own Will without using a Solicitor but you have to be very careful as there are many pitfalls.  I would strongly advise against doing so.

The main problem is that the Will might be invalid for a number of reasons and this might not come to light until after the person who made it has died.

There are specific requirements for the making of a Will under the Succession Act 1965 which must be complied with for the Will to be valid.

There can be problems with the people who witness the Will.  One case which comes to mind is where the wife of a man who was to benefit under a Will witnessed it.  The will was valid but the intended gift to her husband  was invalid.

Another problem is that a Will should be clear and unambiguous. I have come across a number of “Eason Type Wills” where you can buy  a pre-printed form and fill in the blanks. However, in a lot of cases confusion reigns and a section is wrongly completed and so the intentions of the person making the Will are unclear.

In addition, amendments or deletions are sometimes made which are not properly witnessed thereby causing confusion as to whether or not they were made prior to or after the execution of the Will i.e. when the Will was made. This can lead to problems with the Will being admitted to Probate, cause delays and necessitate the matter having to be determined by a Probate Judge at considerable additional expense.

In some cases it is long after the Will has been made that its validity has to be determined and witnesses to that Will may no longer be alive, contactable or able to recollect what happened at the time.

In general and for the sake of your peace of mind, I’d dvise you always to use a Solicitor.

Better to be safe than sorry.



LegalEagleStar  Wednesday,  19th January, 2011

Written by LegalEagleStar

January 19, 2011 at 2:46 pm

Posted in LegalEagleStar

Tagged with , , ,

I’m so Depressed

leave a comment »

Q   I  AM  feeling very depressed at the moment as I am writing this note from my hospital bed.

Last Saturday week I was knocked from my bicycle. I was taken by ambulance here to hospital. I can remember being hit by this car which didn’t stop. There were no witnesses.  Is there anything I can do ?


A   FORTUNATELY , Yes. A personal injury solicitor can take instructions from you even as you sit in your hospital bed.

He/she will have your accident fully investigated in order to ascertain the facts before proceeding. Presumably the Gardai would also be involved. If the motorist can be found he/she would be the defendant. If would appear unlikely that the hit and run driver will be found, but don’t distress yourself as the Motor Insurance Bureau of Ireland must now deal with such cases.


THE STAR , Friday March 23, 1990

Written by LegalEagleStar

January 11, 2011 at 12:54 pm

Barred by Restaurant after fall (via LegalEagleStar)

leave a comment »

Q    SOME time ago I pursued a successful Insurance claim against a well-known Restaurant when I fell down their stairs due to their negligence. Last week I returned to the same Restaurant with some guests and was told that I was not welcome. In fact I was told that they were unwilling to serve me. Does the Restaurant have a right to do this? This incident caused me a great deal of embarrassment. A   UNFORTUNATELY the Restaurateur is quite within … Read More

via LegalEagleStar

Written by LegalEagleStar

January 8, 2011 at 7:05 pm

Posted in Legal Eagle Column

Landlord keeps breaking in.

leave a comment »

Q   IM  BACK  down at the mothers for xmas but I swung by my flat in Dublin today to make sure everything was ok, got in to find my flat door wide open and a note from the landlord saying he needed to speak to me. I rang him pissed off about the door being open and he said he found the flat door open yesterday but he locked it again afterwards.
I checked around and nothing was stolen which is puzzling if someone had broken in. There was no sign of it and the door was definitely locked when I left.
I’ve had words with him in the past about entering the flat when we’re not there and I kind of suspect he did it again but forgot to lock the door after him, and is now lying to cover his back, no way of proving this though.
Either way my girlfriend and I don’t really want to stay there anymore as either the landlord feels its okay to enter when he likes without notice or someone broke into our flat without the intent of taking anything two days in a row.

Do we have a sufficient argument for ending the lease early (another 4 months remaining) or would we lose our deposit?


A  I’VE  TAKEN a look at your query and the relevant law is contained in The Residential Tenancies Act, 2004.

Section 12 deals with the obligations of the Landlord. Section 12(1)(a) is what You are claiming the Landlord is in breach of. It’s difficult enough though where we could be fighting with the Landlord in order to get your deposit back. The reason it’s not easy, is of course,that if it were, anyone could opt out of their tenancy at any time and would leave all landlords in a vulnerable position. You could argue that your Landlord was in breach of s.12(1)(a) and did not enter the property “on a date and time agreed in advance with the tenant”-section 16(c).

I would argue, in writing, that you have confronted your Landlord about this in the past and you feel your rights are continuously being infringed.

Section 36 states that a tenant may terminate a Part 4 tenancy (tenancy greater than 6 months) by serving on the landlord in respect of the tenancy a notice of termination giving the required period of notice.

You can always of course, refer the matter, or threathen to do so, to the Private Residential Tenancies Board, which provision is made for under the above Act as well.

Not an easy situation you’re in. It’s your decision what you do but it’s good that you have no longer than 4 months left as otherwise you’d HAVE to do something.


LegalEagleStar  Friday, January 7,  2011

Written by LegalEagleStar

January 7, 2011 at 2:14 pm

No show from Gynaecologist

leave a comment »

Q   WHEN  I became pregnant last year I employed the services of an eminent Gynaecologist at great expense I might add.

I wanted the expert to deliver my baby, but when the day in question arrived the Gynaecologist was nowhere to be found and the midwife in the Hospital delivered my baby. Fortunately there were no complications but that’s not the point. I have now received a bill from the Gynaecologist which I am reluctant to pay as he didn’t do what I employed him to do. Am I within my rights in refusing to pay this bill?


A   YOU are airing a grievance felt by many women. You pick out and retain an eminent Gynaecologist and although you visit him prior to the birth he doesn’t appear at the birth. Subsequently you receive his bill.

Should you pay it?  I say Yes.  From my experience of Gynaecologists they are tremendous people who spend so many hours working day in day out that I don’t know how they don’t collapse from the strain.

I do not believe that they would deliberately fail to appear when your time to give birth arrived.

More than likely they were attending another birth or dealing with another patients problem.

It is usual practice for them to be informed by the Hospital of your arrival and subsequently of your progress in labour. They are then advised when the birth is eminent and whatever time of day or night that may be they immediately head towards the Labour Ward. How many times have you visited the Clinic to see your Gynaecologist prior to the birth and had to wait several hours because your expert was attending a birth? He must try his best to accommodate all his patients.

Go and talk to him about the bill.


THE  STAR , Friday January 26, 1990

Written by LegalEagleStar

January 6, 2011 at 2:50 pm

Chemist made a mistake

leave a comment »

Q   I  NEARLY had a fatal accident at my home over the Christmas period.

My elderly mother who lives with us fell ill and I called the Doctor who gave me a prescription for her which I got from my Chemist. The Chemist advised me to give my mother ten times the dosage the Doctor prescribed. Fortunately I thought the dosage was a bit high and I checked again with the Chemist who, after having checked the original prescription, advised me of the correct amount. This error could have been fatal. Do you think I should get onto my Solicitor and get him to write to the Chemist on my behalf?


A   INDEED if your poor mother had taken the tablets as directed she may well have died.

Your diligence has in fact saved your mother and avoided a real tragedy. I wonder whether in fact the Doctor’s writing was the cause of the Chemist’s mistake as on a regular basis Chemists phone up the Doctors concerned to clarify what in fact he/she has in fact written. As you were suspicious and queried the point with the Chemist I feel that the Chemist did not in fact give due diligence in making up the prescription.

As no harm, thank God, resulted from the chemist’s carelessness you would be wasting your time contacting your Solicitor, as to sustain an action in law you must be able to show that someone, in this case your mother, had in fact suffered as a result of the negligent act.


THE STAR, Friday January 26, 1990

Written by LegalEagleStar

January 5, 2011 at 3:14 pm

Scalded-and then Fired from my Job

leave a comment »

Q  I  WAS  employed on a part-time basis at a large Hospital in the kitchens.

During the month of December I was badly scalded while preparing tea for the patients. My Supervisor took me to the Out-Patients Department for treatment and then later dismissed me from my position. I am devastated not only by the fact of being scalded but also at losing my job which I need badly. Was my Supervisor correct in letting me go in this manner?


A  I  THINK you have been very badly treated by the Hospital concerned.

A good employer would have done the right thing and made sure that you were properly looked after and when better your job would be waiting for you. You do not say how the accident occurred. Was it your fault?

If so, your employer may well have taken the view that you were careless or incompetent.

If your accident was not caused through your own negligence but due to the negligence of a fellow worker, or an unsafe system, I would advise that you immediately attend a competent Solicitor to check out your rights.


THE STAR, Friday January 26, 1990

Written by LegalEagleStar

January 4, 2011 at 4:13 pm

Posted in Legal Eagle Column

Tagged with , ,

The Burglar May Sue You

leave a comment »

Q   HAVING  endured several burglaries at my home over the years, I have now placed broken glass around the walls but am now a little worried as someone told me that if an intruder injured himself on one of my walls he could sue me even though he would be trespassing at the time.

Is this true?


A   NO DOUBT you have heard it often said that the Law is an Ass.

Well to answer your question I must regretfully advise you that the law as it stands would leave you liable to the trespasser for injuries received due to your having glass upon your walls.

A long time ago it was permissible for the land owner to shoot trespassers he found on his land.

This was of course barbaric and was subsequently changed. You as an occupier of property must of course protect your property to the best of your ability from burglars but the law does not allow you to put man-traps on your land.

The glass on your garden walls would be considered such a man-trap.

With this knowledge many people still place broken glass on walls in order to deter intruders and I cannot blame them.

Just remember though that if your garden walls are any way low you may be creating a serious man-trap for local children who will climb walls to retrieve footballs etc.


THE STAR , Friday January 25, 1990

Written by LegalEagleStar

January 3, 2011 at 10:27 pm

Maintenance money stops

with 2 comments

Q   I  AM separated four years from my husband and he has been paying me maintenance for myself and the three children since then until recently. He told me that he heard on good authority that another man had moved in with me and the children and that it was up to him to provide for us. This is untrue. I do have a boyfriend without whom I would be lost but he doesn’t reside with us. Does my husband have any grounds in refusing to pay me?

A   FIRST of all, if your husband is paying your maintenance as a result of a Court Order he is in breach of that Order by reducing your payments without first bringing you back to Court. In Court he would have to show that your boyfriend was contributing to your upkeep before the Court would reduce your maintenance. Maintenance is purely a matter of money. The Court in determining what sum of money should be paid by your husband to you for yourself and your children will look at both of your circumstances. All payments in and out will be noted and the Court will provide for proper maintenance to be paid to cover your household and other expenses providing for the proper care of your three children.

THE STAR.  Friday January 19, 1990

Written by LegalEagleStar

January 2, 2011 at 5:05 pm

%d bloggers like this: