Tom Baldwin announced Retirement

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Tom Baldwin announces Retirement

Tom was born in 1958 in Killester. Son of a Company Senior Manager with a staunch trade union background and a mother whose father was a tailor and cutter again deeply involved in trade unionism. Tom grew up with a great respect for workers rights and the rights of the ‘little guy’. To this day he refuses, on principle, to act for any Bank or Insurance Company whose values he condemns as immoral.

Prior to qualifying in 1980, Tom was in charge of The Free Legal Advice Centre (FLAC) in Ballymun, which operated out of the basement of Padraic Pearce Tower. The majority of the work involved Family Law and this involvement was an eye opener to the dreadful social conditions and environment in which people lived. At that stage there was no Civil Legal Aid available in Ireland.To this day, Tom has ensured that no one has been deprived of legal services from his firm because of lack of finance.

Initially practicing from Killester Park, Tom moved his practice into Fairview in 1983 and continued to service the needs of those he had originally acted for on a free basis as well as developing a private practice to cater for the needs of other clients.

Tom has written for many national papers including The Star (as Legal Eagle) and The Sunday Independent. Now Tom is retiring to concentrate on writing, and will continue to call out the big corporations and their immoral behaviour -as well as exposing those in the pay

Tom is delighted to have served the locals in Marino and Fairview as well as many throughout the country.

You can keep up with Tom via his blog.

Your First Meeting with an experienced Divorce Lawyer

   Carol McGuinness Solicitor

 

What you should expect from an initial consultation with a Family Law Solicitor.

 

Divorce is a very stressful and difficult time for separating couples so instructing the right solicitor is key to ensuring the process might be a little easier for you.

After making an appointment with a solicitor, it is best to come prepared with regards to the details of your marriage i.e. date of marriage and date of separation and what your family’s financial position is. Also be prepared to inform your solicitor about your children; ages, dates of birth, addresses, if still attending school, activities and suchlike. If the solicitor requests certain financial documentation be sure to bring these along.

An experienced family law solicitor will also require details of the financial aspects of your case. You will need to provide full details regarding your assets, income, expenses and liabilities. Financial questions will also be asked to determine the level of support that a spouse and the children may require. If you are able to provide this information, an experienced solicitor will be able to advise you regarding a financial settlement reached or the likely division of assets.

You may have many questions regarding your divorce. Write these down prior to your visit and don’t be afraid to ask for answers. An experienced family law solicitor will be able to answer these questions for you.

Many are not aware of how solicitors charge for their services. You should be given detailed information and a cost estimate at the initial appointment. Establish how a solicitor is charging you i.e whether it will be an hourly rate or a fixed fee. Most solicitors will request a retainer by way of a lump sum up front. Be sure to ask whether it is possible to receive a monthly invoice so you are fully aware of your costs and the work charged at all stages of the divorce.

In summary, after the initial consultation, you should feel confident in your solicitor’s ability and that she/he has a full understanding of your circumstances and your needs. In addition, you should have a full understanding of the divorce process, the financial side, any children issues that you may have and what fees you will be expected to pay.

 

Carol McGuinness is Head of the Family Law Unit at Early & Baldwin Law Firm

27/28 Marino Mart, Fairview, Dublin 3,

 

Your access to Justice … as prescribed by a Group of Political Elites

Lawyer Bashing Is Fun (Photo credit: rkrichardson)

In the 1980s a meeting of ‘Elite’ politicians took place with the Insurance Industry. ( I could name this Group but will refrain from so doing.) Many such meetings were already happening concerning the banks but this one was composed essentially of the same participants.  At this  meeting concerns were raised by the Insurance Industry people regarding the changing face of the legal profession. With pressure on the Government to allow lawyers advertise their firms, concern was expressed that if the American Model was followed that profits would take a severe hit and something had to be done to stop this from happening. The lawyers present, and in particular a leading Law Society member expressed the view that the profession would not be allowed go this route and he would make sure that anyone trying to do so would be severely dealt with. Matters were initially laid to rest but it was not long before the ‘new breed’ of lawyer emerged which challenged those ‘traditional’ types. ( I am not referring to those that didn’t advertise. Just a cynical reference to those that controlled the profession.) Then followed more meetings with the interest group and it was not long before they hatched their own plan to deal with the ‘new breed’.

Juries were removed from Personal Injury Cases in 1988. That of course wasn’t enough as it was decided that Judges could not be trusted to reduce awards. It took them all of  fifteen years to appoint Mary Harney to attempt to introduce a ‘Lawyer Free’ Personal Injury Assessment Board which in effect continues to this day. The reasoning behind this was not, as stated to assist and help the Citizen to get justice in their cases, in a speedier fashion, but was to kick lawyers out of the system.  Sure, the Government had the interests of the citizens at heart. It was those greedy lawyers who ripped the citizen off. Nonetheless the ones to benefit were the Giant Insurance Companies. Thankfully the Courts subsequently found it unlawful to exclude lawyers from dealing with such cases. Today the Insurance Industry spend Millions of Euros each week in expensive television campaigns which denigrate the integrity of the citizen, suggesting that they are crooks ripping off the system. Strangely enough, no mention of the dreaded greedy lawyers in their current advertising campaign. No doubt though they will be the target of a future, more enhanced campaign.

On the family law front, divorce was being heralded as the new way forward. Having dealt a blow to those personal injury lawyers, it was not long before the mantra changed, slightly. We want Divorce and Now was penned but there was an addition to the narrative. We are entitled to Divorce and as a right, we shouldn’t have to pay for it. These chants didn’t fall on deaf ears. (I am not in any way condemning Legal Aid here, a right myself and many others fought hard for.) Those same politicians targeted  ‘Divorce Lawyers’ as the scum of the earth. It would seem that it wasn’t just the ‘new breed’ of Personal Injury Lawyers who would be the target of their venom but now the Family Law Lawyer.

When the dreadful lawyers involved in Family Law became the prime target (I exclude Mr Shatter and other such elitist Firms here), we all started receiving documentation regarding mediation. This was the way of the future we were told. In England there had been a move by some lawyers to become involved in the mediation process and there has been a drive in Ireland in the recent past, to mediate as opposed to litigating family law matters. Let me just comment that the work of the lawyer on a daily basis is not what is widely believed. Yes, we issue proceeding to protect the interests of our clients but then meet with our opposing number to try to see what common ground we may have. Many issues are resolved this way. Other matters that are in dispute will be litigated on. The time of the Court is not wasted on matters that are not in dispute. Mediation is part and parcel of the daily work of the lawyer. Yes, it’s paid for by the client, as is mediation. Now we are told that lawyers should be taken out of the equation and let the mediator do the work. Right, so you pay the mediator instead. Then when the process is complete you attend at the office of your lawyer for advice on what had been agree. Well, in my experience the mediated agreement is far from complete and I’ve yet to see a mediated agreement which I couldn’t have done a better job on and been part of the whole process. Remember you still have to go to Court to get your Divorce, Judicial Separation or suchlike. I know this is controversial but I’m not convinced after my more than 30 years in practice that mediation is the way to go in the majority of family law cases.

So, law without a lawyer is the current trend. Just be careful for what you wish for, because a small group of elite politicians, bankers and Insurance Companies are driving this agenda and it is not for the benefit of the Citizen. The ‘new breed’ of lawyer deserve your support. Remember it is you they act for and your interest alone. And what’s refreshing in this day and age is that they will not be bought off. The political elites are in the ascendancy at the present time and becoming more dangerous by the day. Our current Minister for Justice ,who has a distinct distaste for the current ‘independent’ bar wants to do away with the profession as we know it and have a new legal profession which is answerable to him, as Minister for Justice. While I’m no lover of the current Law Society model which is unrepresentative of me  and I have told  as much, I do fear that under the direct control of the Minister for Justice that my independence will be lost and I will be unable to represent the interests of my client without the State looking over my shoulder and overseeing all my actions. This is not what an independent legal profession is all about. For too long have the Law Society acted only for the elite within the profession and have been unrepresentative of lawyers who acted, not for the Corporate sector but the citizen. They have allowed the elites among them progress at the expense of the grass root solicitor within the community whose sole concern is protecting the rights of the citizen. The loss to the profession of these excellent, and mainly young members, is an absolute disgrace and in years to come, will be regretted by many, when too late to rescue our dying profession.

LegalEagleStar , Thursday , 6th. September , 2012 .

Why get Married ? Sure it only keeps Divorce Lawyers in Business.

Image via Wikipedia

      

In Ireland you must give three months’ notice in order to get married. This is a lot longer than the likes of Las Vegas, where you simply go and apply for a marriage licence which is then issued …while you wait. Unlike Las Vegas where you can obtain a divorce (or annulment as the case may be) pretty much straight away, you have to be separated four out of the previous five years in Ireland in order to obtain a Decree of Divorce. With the new Civil Partnership and Certain Rights and Obligations Act, 2010 now in place where, a dependant co-habitant who has been living with their partner for five years or, two years if they have a child together, has the right to apply to court for several reliefs, including a maintenance application against their partner should the couple break up. With couples no longer feeling the pressure of having to get married, where it is now socially acceptable for an unmarried couple to live together and to have children together, one begs the question, what is the point?

Some of the world’s most high-profile and costly divorces include Rupert Murdoch’s divorce from Anna Murdoch costing him a reported €1.7 billion. Michael Jordan’s said to be the most expensive sports celebrity divorce, cost him €150 million. Recently Tiger Woods paid his ex-wife Elin Nordegren €100 million in their divorce. He seems to have gotten off lightly, since he has an estimated net worth of $500 million as well as taking into account the circumstances surrounding the couples very public split. Most divorce cases in Ireland would not be dealing with such large amounts of money.  So many cases in this day and age, are dealing in fact with no money, or in the case of assets, negative equity. Many couples in the current economic climate instead, are fighting over who will take on the liabilities rather than fighting for the assets.

News broke this past summer of the separation of Arnold Schwarzenegger and his wife of 27 years, Maria Shiver. Although regarded as one of Hollywood’s longest standing and solid marriages, it has not been without its speculation regarding the former Californian Governor’s alleged infidelities.  Schwarzenegger, it subsequently emerged, had fathered a child with the couple’s Nanny some fourteen years before, in or around the time that Maria gave birth to their fourth child, Christopher. This is what led to Ms Shriver filing for divorce.

Such high-profile separations should deter, you would think, the possibility of any further marriage proposals in the future, giving George Clooney as an example. On the other hand you have the likes of Paul McCartney who has just married his new wife Nancy Shevell, a New York heiress, after a four-year romance. This was McCartney’s third walk up the aisle. He married his first wife Linda in 1969 and they had stayed together until her untimely death in 1998 which was as a result of breast cancer. They are said to have had a very happy marriage. His second marriage however, to Heather Mills was a somewhat less successful union which ended in a bitter divorce in 2008. The divorce ended with Paul McCartney ordered to pay Heather Mills an estimated £23.7 million with ongoing child maintenance in the amount of $70,000 per annum being paid for the benefit of their daughter Beatrice.

In 2008 there were a record 22,243 marriages registered here in Ireland, showing an increase instead of a decrease in the number of people deciding to enter wedlock ( It should be noted that although 22,243 marriages were registered, it’s not necessarily so that 22,243 marriage ceremonies took place in 2008. ) With a recession digging deep and many young people emigrating, one must ask how the numbers getting married are still growing. Some people believe that by getting married they are making a long-term commitment. After several years in a relationship, if marriage is not proposed, then one or both parties “aren’t serious” about the relationship and are “wasting time”. In the past people have had to get married if they wished to have a child, or rushed a marriage perhaps, if a child was already on the way. Others were almost forced to marry to keep up appearances in their community or within their family or because “it was the right thing to do”.

People nowadays have a choice. With over 50% of all marriages now ending in divorce or separation, why do people still choose or believe in the institution of marriage?  Some people, young and old, are still traditional and believe that a marriage should come before choosing to conceive a child.  Some people, albeit a significant lesser sum, believe it right to be married before they decide to live together. A small number of people, a very small number I imagine, choose or deem it improper to share a bed before getting married. Nowadays, we must believe that quite a number of people get married simply because they want to. There is no longer a force or a need but simply a want. People never go into a marriage knowing or expecting that they will divorce or separate. Women are working more outside the home and the term “housewife” has in large become defunct. While I am still not convinced that marriage is a path in which I wish to travel, I must concede the fact that the institution of marriage is not dead and this, I believe, can only be a positive.

LegalEagleStar, Tuesday, 13th. December, 2011.

Divorce in Ireland today in this Economic Downturn

Image by DrJohnBullas via Flickr

When a marriage breaks down or a long-term relationship ends, it’s a tough time for everyone involved. It’s not just the couple themselves who experience the hurt and/or anger of the separation but also any children that either, or both of them may have, their immediate families and also close friends.  Of course, when a couple separates, it is not as simple as it once was. Today with the economic downturn the money is simply not available to effect a proper separation. People  didn’t need to worry about joint bank accounts and mortgages in the past.  When a relationship breaks down everything needs to be regulated. What were possibly at one time, simple everyday matters, have now to go through the long process of being sorted. Parties need to agree, or have a Court decide, custody and access of any dependent children; deciding where the children primarily live and what days and times the other parent may see their children; child and possible spousal maintenance; what will happen to the family home and any other possible houses or assets, pension entitlements, car/s etc. While an amicable breakup is desirable, it is not always possible and in many cases either one or both parties will look for the kitchen sink from the other. In  previous years, which at this time, seem somewhat of a blur, parties separated and huge settlements and significant maintenance were awarded. Cases were fighting for dates to be heard in the High Court. Nowadays, the High Court lists are quite slim with the majority of cases being heard in the Circuit Court.

There are now huge difficulties for lawyers trying to negotiate settlements even where an agreement is reached between the parties. To use by way of example, the following scenario. Say there is a family home and an investment property, and the agreement reached is that one party remains in the family home with the children, while the other party is to live in the investment property. It is agreed that each will be the sole owner of the respective properties and be responsible for that property’s mortgage while allowing the other party off  the mortgage. The Court rules the settlement, but then the Banks will not allow either party off either mortgage. This, even where the parties indemnify each other to the best of their abilities and with the best of intentions. Where one party later defaults, the Bank can still go after both parties and the settlement reached can effectively become worthless.

So, what do people need in a good family lawyer?  Some individuals falsely believe, that by going to one of the Big Named Law Firms, they are getting the best Solicitors and Barristers in the business. In the current economic climate, I believe that some firms continue to charge inordinate fees, when people are struggling to maintain one household, let alone two, which is the effect post separation. I believe this is unjust. While some cases involve more working hours than others and fees vary in this regard, I do not believe people should be paying more for one solicitor than another largely due to the name that appears on the headed paper. Unlike Solicitors, Barristers are a completely independent body and again, while some cases involve more time and paperwork than others, Barrister’s fees will, in most part, be the exact same whether acting for a Big Firm or a Small Practice. Many successful Family Law Barristers, contrary to common belief, act for everyone from the Legal Aid Board, to the local one man solicitor who employs two people, right up to the big firms who employ several hundred. In the times that we live in, it’s also important to remember, that while you do not want to be ‘ripped off ‘  and would like value for money, equally you must be aware of these so-called ‘quickie divorces’ where you think you are getting a bargain and the fees are very low. Later down the line however, you may find yourself in difficulty where transactions haven’t been completed or haven’t in fact been done correctly. In deciding what Solicitor to engage, you must think about yourself and what your needs are.  Some Solicitors and Barristers in the family law field have an aggressive approach, while others have a nurturing view. And then others, just effectively, say it as it is. Personally, I believe a down to earth, friendly, straight forward approach is ideal. I also believe that a party going through a separation has enough physical and mental strain going on in their lives, that an aggressive legal team can sometimes make matters worse and the hopes of a settlement between the parties becomes more difficult. While your legal team does not necessarily need to be your friend, you do need to be comfortable with them and be able to speak openly  in order for them to best meet your needs.

What are you paying for?  You may see your bill at the end of a case and wonder how this figure appeared? Initially, a Solicitor will take your  instructions, explain the different options open to you and then write to the other party involved, informing them of your intention to separate and regulate matters between you. If you agree on a Separation Agreement, the Solicitor will draft this up and you will not need a barrister, nor will you attend Court. A Separation Agreement is in effect, a contract between the two parties and any breach thereof is a breach of contract. If the parties agree to a Judicial Separation or Divorce, in many cases a solicitor will brief a Junior Counsel (barrister) and, in some cases, a Senior Counsel also. The Barrister’s role is to draft the appropriate Court documents and deal with any Court appearances which, in some cases may just be one on the day of the hearing or, in other cases, where interim orders are required and/or where the other party is reluctant to participate in the case. In the latter scenario, Orders to compel them to do so, or have Orders made in their absence may be required.

Unfortunately, relationships will break down in good times and bad. Today we are in unprecedented times and the legal profession must respond to the needs of their clients in a way that reflects the true values in our society. Those values have unfortunately been decimated by the few in our profession who represent the vested interests of those who control our society. It’s time that the legal profession asserted itself in the interests of all who serve the interests of the citizen and lead the demands for true reform and oppose the obscene vested interest groups who seek the ruination of our society and the downgrading of the rights of our Citizens. Elsewhere in the world today, it is the legal profession who are at the forefront of reform in the interests of the citizen and who suffer in such a cause. In Ireland  it should be no different. The politicians today are looking after the interests of the IMF/EU and the Banks, so there is a clear conflict of interests with the concerns of the Citizen.

Those who are unfortunate enough to suffer relationship breakdown in these troubled times deserve to be represented by us in the legal profession, having regard to the considerable strains that people are now enduring. Yes, the strain on relationships is now far greater in such troubled times. There are those that pull together in times like these but bad relationships will certainly not survive the additional stress they must endure today.

LegalEagleStar , Thursday , 30th. June , 2011

My Blog tomorrow deals with Divorce in Ireland today in this Economic Downturn

Image via Wikipedia

Today in Ireland, unlike in prior times, the unfortunate person faced with Family Law Breakdown is facing  a dilemma. Irish Banks and Building Society’s are refusing to rearrange mortgages and in so doing are frustrating the terms of many a Divorce. Also, what lawyer should you instruct? Do you pay high fees to Big Name Firms? Are they worth it or are they ripping you off? What is the Barrister’s role in the process and how do I get the best to act for me?

In tomorrow’s Blog I will give my views on Divorce in Ireland today and shed some light on the whole legal drama.

Family Law: Mediation v. Court

Image by DrJohnBullas via Flickr

Some time ago on Twitter I became engaged with a Follower on the subject of the role of mediation in Family Law Cases.  Interesting exchanges but it became clear that my views were opposite to my friends. I hold the view that a Court is the correct Forum while he felt that Mediation was the way to go. Then along came an English Solicitor who stated that over 90% of his cases had been disposed of through mediation and that he felt it was in his clients best interests as it was what the client wanted. I proffered the view that it was the role, in fact the duty of the Solicitor to advise his/her client of the way forward to resolving their case not let the client decide what they thought was best. It was my duty, under law, to advise the client on all options open to them, including Mediation, but ultimately, after taking full and detailed instructions, to advise the client what I though was best for them in their particular case. It was then up to the client to decide whether to follow my advice or go elsewhere and instruct someone who they felt was best suited for them. The argument made by my English colleague was that Mediation was the best option because it was cheaper. I felt that sometimes the cheaper option could be the most expensive one in the long run. Cost is indeed a factor but in my opinion not the deciding factor. Some people feel that a lawyer is not needed at all. That they can do a better job without a money leaching lawyer. This is not a view I take as Law Without a Lawyer is never, in my experience, a good idea.

Some Years back I attended a Family Law Seminar and one of the speakers was a lady who, if on the opposing side, necessitated on every occasion running the matter into Court. She was, to put it mildly, difficult. It was never easy to settle a case with her. She always took the view, without exception, that her opposite number was one to be fought with to the nth. degree and never, in my view, wished to enter into talks to settle even the most minor matter. So, you can imagine my interest in her lecture on Mediation. She painted the picture of a ‘Happy Divorce’. One where flowers were arranged in the room to create the right atmosphere. After the lecture finished I was still unconvinced and remain so to this day. Maybe it was because it was her giving the lecture. Maybe that’s unfair but I found her talk somewhat unconvincing and I thought insincere.

My views are summarised in the following which appears on my website… ”Remember your wedding? The preparation, the big day, and the cost? Well prepare yourself for the same trauma except this time it is not a happy occasion. Nevertheless with sensitive handling and the proper legal team behind you, you can be assured of a satisfactory outcome. Negotiation and mediation often facilitate resolution, however, we will pursue litigation to protect our clients best interests. Don’t be bullied or face this trauma alone. You owe it to yourself and your family to do it right.”

I know this is a contentious issue and one where people have formed their opinions based on their own experiences. Needless to say if you have had a bad experience with a lawyer of course this will colour your view and this is quite valid. Family Law should only be practised by lawyers who have expertise in that area. No matter how sympathetic you may be to your client it is not in their best interests for you to handle their family law case if you do not have the expertise so clearly needed. The lawyer must also have people skills as this is a traumatic experience for anyone to have to endure. In a perfect world I have no doubt that mediation is the ideal scenario but unfortunately we have to deal with a great amount of hurt and devastation. In such circumstances a great deal of time is needed to take the correct and detailed instructions from the client before you are in a position to outline what course of action you feel is necessary to achieve a satisfactory outcome for your client. Remember that you are dealing with someone’s life and indeed in most cases,the lives of children.

The family law practitioner has a heavy burden resting on them. Sometimes it can be a traumatic experience for them also. I recall a case many years ago when, with my opposite number, we disposed with most issues in the case, bar the custody of the children of the marriage. It is not what you think. Neither in fact wanted them ! They had no problem sorting out the house, in fact houses and cars, including the treasured BMW. I had to listen to quite a lot of nonsense that day but when they both argued that the children would be better off with the other, I became quite enlightened as to both of their lifestyles. Sometimes it amazes me what people’s priorities actually are !

LegalEagleStar  Wednesday, 27th. April, 2011

Recognition of Foreign Divorces by Irish Courts

Q:   I have been living in Ireland for four years and moved here because my husband was offered a job. We are from Paraguay and not long after we arrived here we separated. I wanted to get a divorce here but didn’t want to wait four years and since we married in Paraguay and were from there originally my husband wanted to get divorced there, so I agreed. We flew to Paraguay, got our divorce and flew back. My husband sometimes threatens that he will not pay his maintenance and there is no security for the maintenance and now I understand that I could have gotten what is called a judicial separation here and I was wondering if I still can?

 

A: When the parties moved to Ireland,   did they form the intention that they were to move to this jurisdiction indefinitely? If the answer is yes it poses the question whether their place of domicile changed from Paraguay to Ireland. Further, I believe that the wife should obtain what is called an Affidavit of Laws from a Paraguayan lawyer so as to confirm the validity of the Paraguayan Divorce, in circumstances where neither of the parties were resident in Paraguay at the time of the application for the divorce.

Legislation

The Domicile and Recognition of Foreign Divorces Act, 1986 governs the recognition of foreign divorces that were applied for after the 2^nd of October 1986. Section 5(1) provides: “For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled”. This means that if either spouse was domiciled in the jurisdiction granting the divorce at the date the proceedings were initiated, the divorce is entitled to recognition in Ireland. Thus, when a court recognises a foreign divorce decree the parties are seen by Irish law as being validly divorced.

Therefore, even if the wife in this case argued that she had moved to Ireland with the intention of never moving back to Paraguay and it was found that her domicile had changed to Ireland, if her husband still claimed Paraguayan domicile, that would be enough for the divorce to be recognised in the Irish courts.

Section 29 of The Family Law Act, 1995provides that “an application can be made under s.29 seeking a declaration that a foreign divorce is entitled to recognition in Ireland.”

Part III of the 1995 Act introduced a procedure whereby a person who was divorced abroad after 1^st August 1996 can apply for certain reliefs in Ireland. Reliefs may also be applied for in relation to any dependant family members. Most reliefs under the 1995 Act are available save for preliminary reliefs. A person does not have an automatic right to apply for such reliefs and therefore an Applicant must get the leave of the court by way of an ex parte application. The court will only grant leave where it finds that there is a substantial ground for doing so and that at least one requirement under section 27 is established. Section 27 states:

27.—(1) Subject to subsection (2), the court may make a relief order if, but only if, at least one of the following requirements is satisfied:

( a ) either of the spouses concerned was domiciled in the State on the date of the application for an order under section 23 (3) in relation to the relief order or was so domiciled on the date on which the divorce or judicial separation concerned took effect in the country or jurisdiction in which it was obtained,

( b ) either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid;

( c ) on the date of the institution of the proceedings aforesaid either or both of the spouses had a beneficial interest in land situated in the State.

Section 23(3) mentioned in s.27(1)(a) relates to the ex parte application stage. The court must also be satisfied that, in all the circumstances of the case, that such an order is appropriate. In considering what is appropriate, the court shall have regard to the matters set out in Section 26 of the Act:

26.—The court shall not make a relief order unless it is satisfied that in all the circumstances of the particular case it is appropriate that such an order should be made by a court in the State and, without prejudice to the generality of the foregoing, in deciding whether to make a relief order, the court shall, in particular, have regard to the following matters:

		( a ) the connection which the spouses concerned have with the State,
		( b ) the connection which the spouses have with the country or jurisdiction other than the State in which the marriage concerned was dissolved or in which they were legally separated,
		( c ) the connection which the spouses have with any country or jurisdiction other than the State,
		( d ) any financial benefit which the spouse applying for the making of the order (“the applicant”) or a dependent member of the family has received, or is likely to receive, in consequence of the divorce or legal separation concerned or by virtue of any agreement or the operation of the law of a country or jurisdiction other than the State,
		( e ) in a case where an order has been made by a court in a country or jurisdiction other than the State requiring a spouse, or the spouses, concerned to make any payment or transfer any property for the benefit of the applicant or a dependent member of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with,
		( f ) any right which the applicant or a dependent member of the family has, or has had, to apply for financial relief from a spouse or the spouses under the law of any country or jurisdiction other than the State and, if the applicant or dependent member of the family has omitted to exercise any such right, the reason for that omission,
		( g ) the availability in the State of any property in respect of which a relief order in favour of the applicant or dependent member of the family could be made,
		( h ) the extent to which the relief order is likely to be enforceable,
		( i ) the length of time which has elapsed since the date of the divorce or legal separation concerned.

Case Law

In what can be quite a complex area of the law, it is important to examine the case law that has emerged in the area. In MEC v JAC [2001] 2 IR 399 – The High Court (Kinlen J.) held, in granting the relief sought,

1. that the courts of Ireland would recognise a decree of divorce if either spouse was domiciled in the jurisdiction in which the divorce proceedings were instituted at the time those proceedings were instituted.

2. That, as both the Applicant and Respondent were domiciled in Ireland at the time of the divorce, the decree could not be recognised in the State.

3. That any suggested radical change in the hitherto accepted law should more properly be effected by statute and the fact that the Oireachtas was slow to deal with many problems in the matrimonial field did not of itself give support to the court’s jurisdiction to legislate.

DT v FL [2009] 1 IR 435 (Supreme Court) – The parties were Irish citizens and were married in Ireland in 1980. The parties and their three children moved to the Netherlands in 1987. Upon the breakdown of the marriage in 1993 the Applicant returned to Ireland with the three children. The Respondent remained in the Netherlands. In 1993 the Applicant issued proceedings in the District Court of Rotterdam seeking maintenance for her and the children. The Applicant did not seek a decree of divorce. The Respondent instituted proceedings in 1994 in the District Court of Rotterdam seeking a decree of divorce. The Applicant did not object to the relief being granted and sought orders for maintenance for her and the children and also for custody of the children. The District Court of Rotterdam accepted jurisdiction on the basis of the Respondent’s residence in the Netherlands for more than twelve months. A decree of divorce was granted along with an order for spousal maintenance in favour of the Applicant. The Applicant instituted family law proceedings against the respondent in 2000, in Ireland, seeking a decree of judicial separation and ancillary orders. The Respondent sought a declaration that the decree of divorce obtained in the Netherlands should be recognised in the State. The High Court (Morris P.) refused the declaration and held that the Respondent was domiciled in Ireland and that residence was not a basis for recognising the divorce obtained in the Netherlands. The Respondent appealed to the Supreme Court which dismissed the appeal.

It must be noted that with the coming into force of either Brussels I (2001) or Brussels II (2003), the above decision could well have been different. However, since Paraguay is not a party to Brussels I or Brussels II, the decision is still relevant.

MR v PR[2005] 2 IR 618 – In considering the ex parte stage of Part III of the 1995 Act, Judge Quirke in the High Court, in refusing to set aside the granting of leave and in granting the relief sought by the Applicant, held that an Irish court should not interfere with, supplement or adjust an order of divorce obtained in a foreign court save in exceptional circumstances, and only when satisfied that the outcome of those proceedings had been unfair or unjust and that no remedy was available to the Applicant in that jurisdiction.

PWY v PC [2008] 2 IR 262 – The parties to the proceedings had been divorced in Hong Kong in 2002 and were now living in Ireland. The Respondent sought an order setting aside an order of the High Court which granted the Applicant leave to seek relief pursuant to Part III of the Family Law Act 1995. Sheehan J in the High Court held that, in setting aside the order which granted the Applicant leave and refusing a further application for leave,

1. , that the court had an inherent jurisdiction to set aside an order granting leave to apply for relief pursuant to s. 23(3) of the Family Law Act 1995 that had been made on the basis of an ex parte application, including cases where there was an absence of mala fides.

2. That the inherent jurisdiction to set aside an order granting leave, which had been made on the basis of an ex parte application, should only be used in exceptional cases. Material non-disclosure of a serious nature in an application where leave was obtained constituted such an exceptional case.

3.      That the court had no jurisdiction to grant leave unless one of the requirements of s. 27 of the Family Law Act 1995 was met. The court should look at ss. 23 and 26 together when assessing whether to grant leave. An Applicant must have established a substantial ground and have established that a court in this State was the most appropriate venue for hearing the application. Inherent in the notion of a substantial ground was the appropriateness of an order being made by a court in this State.

4.      That the requirements to obtain leave under ss. 23 and 26 of the Family Law Act 1995 and the factors to consider when establishing jurisdiction, should be taken in conjunction. It was not necessary to show hardship or injustice in considering whether there was a substantial ground for an application and regard must have been had to comity and forum non conveniens.

Agbaje v Agbaje[2009] 1 FLR 987– This was another English case considering the equivalent English legislation. The parties were a Nigerian couple who had spent most of their 32-year marriage in Nigeria, although they had also spent some time living in England, and had acquired British citizenship. The husband owned a property in London, which was used as a base while visiting the children of the family, who were being educated in England. After the separation the wife moved from the matrimonial home in Nigeria to the English property. The husband applied for a divorce in Nigeria. Four months later the wife petitioned for a divorce in England, and then filed an answer and cross-petition in the Nigerian divorce proceedings, seeking ancillary relief in the form of a lump sum worth about £42,000 and property transfers worth about £500,000. The Nigerian court refused to stay the Nigerian proceedings, and shortly afterwards the English court dismissed the wife’s application for an anti-suit injunction against the husband, on the basis that ‘there was no evidence that substantial justice could not be obtained by the wife in the courts of Nigeria’ and no ‘cogent evidence that England is the natural forum for the decision-making process in relation to these parties’ divorce’. Ultimately the Nigerian court granted the husband a divorce, awarding the wife a life interest in the matrimonial home in Nigeria, which was worth about £83,000, (the court had no power to make a property transfer order), plus a lump sum payment of £21,000 as ‘maintenance for life’. The husband retained assets of about £616,000, including two properties in London. The wife then sought leave, without notice, to issue an application for financial relief following an overseas divorce, pursuant to Pt III of the Family Proceedings Act 1984. The leave judge produced a short judgment granting the wife leave. However, on the husband’s application to set aside the leave, the leave judge produced a much longer judgment, setting out in some detail his reasons for concluding that there were exceptional circumstances and that the wife would suffer real hardship unless leave were given. The Court of Appeal refused the husband permission to appeal the grant of leave. The trial judge, who placed considerable reliance on the judgment given by the leave judge, eventually awarded the wife £275,000 from the sale of the English property, on condition that she transfer her life interest in the Nigerian property to the husband. The husband’s appeal raised questions as to: (i) the proper scope and role of the leave application and the essential difference between the leave application and the substantive application; (ii) the purpose of the 1984 Act; (iii) what account should be taken of comity and rules of forum; and (iv) when it was ‘appropriate’ to order financial relief under Pt III.

Held – allowing the husband’s appeal and dismissing the wife’s claim for relief under Pt III –

1. The permission stage was intended to give the potential respondent adequate protection against having to present a strong defence at substantial cost; it was also intended to provide some measure of protection against the possibility of applications being used to exert improper pressure to settle in order to avoid the expense of contesting an application. At the without notice permission stage the judicial task was to decide whether there was a ‘substantial ground’ for making the order, on the basis of a quick impressionistic assessment of the merits, bearing in mind that the object of the exercise was to weed out the weak case.

2. The purpose of the jurisdiction to award financial relief after an overseas divorce, under Pt III of the Family Proceedings Act 1984 was to remit hardship in the exceptional case in which serious injustice would otherwise be done.

3. Comity between courts of competing jurisdiction had a significant influence on the way in which the decision under Pt III had to be taken. Although the importance of comity and the forum conveniens rules ought not to be pressed too far, it was necessary, for the sake of consistency, to pay close regard to the interests of justice as they would have affected a stay of the English proceedings, and such interests of justice as would require the correction of the order made by the foreign court.

4. The focus should be on whether, objectively speaking, substantial justice or injustice had been done overseas, a fortiori when the foreign court was the appropriate forum for granting the divorce and regulating the financial consequences of the dissolution. It would be wrong to focus simply upon a comparison between the size of the overseas award and the size of the potential award in England; whilst disparity was an obvious factor, it should not be permitted to dominate. If the appropriate court had made an appropriate order, the court might well be satisfied, ordinarily, that it was not appropriate to make a further order under Pt III.

5. The judge had erred in principle. The trial judge had not referred to the couple’s connection with Nigeria when dealing with s 16, although the connection with the divorce court was a factor that merited particular attention, and was a more weighty factor than the connection the parties had with England and Wales. The judge had not addressed the need for respect and deference to be paid to the Nigerian court, although comity between this jurisdiction and a Commonwealth jurisdiction that had largely embraced our traditions was an important factor in the case. The judge had not addressed expressly the award made by the Nigerian court, and whether a serious injustice had been done to the wife in Nigeria. Finally, the judge had failed to explain why this was an exceptional case in which the wife should be allowed a second bite of the cherry

6. The husband and wife had a more significant connection with Nigeria than with England, and Nigeria, not England, was the natural and appropriate forum for resolution of the wife’s claims. No substantial injustice had been done to the wife in Nigeria. Although it was plain that the wife would suffer real hardship in England and Wales, because she had exhausted the lump sum designed to provide for her sustenance in Nigeria, comity commanded respect for the overseas order

Conclusion

The querist and her husband are both Paraguayan  nationals who were married in Paraguay and their connection with Ireland has only been in existence for the previous four years. It is unlikely that their domicile has changed to Ireland unless they formed the intention to come to Ireland and stay in the jurisdiction indefinitely or since relocating to Ireland they formed this intention. The residency factor is something to take into account when deciding on whether a person’s place of domicile has changed, however, it has been said that the domicile of origin persists until it has been clearly shown to have changed (Re Joyce [1946] IR 277). Even if the Applicant formed the view that her domicile was in Ireland, unless the Respondent formed a similar view, he could still rely on section 5(1) of the Domicile and Recognition of Foreign Divorces Act, 1986, stating that his domicile was always Paraguay and therefore the Paraguayan Divorce would have been obtained legally and in return capable of recognition in this jurisdiction. I am not aware if there are any residency requirements in relation to a Paraguayan divorce where both parties are Paraguayan nationals who were married in Paraguay. An Affidavit of laws might need to be obtained in order to clarify the validity of the Paraguayan divorce and the law and rules in relation to obtaining a divorce in Paraguay. If residency is not a factor and the parties were therefore validly divorced in Paraguay, under the Domicile and Recognition of Foreign Divorces Act, 1986,  an Irish court recognises a foreign divorce decree and the parties are seen by Irish law as being validly divorced. In effect an Order for Judicial Separation could not be sought in the Irish Courts.

Part III of the 1995 Act states that firstly leave must be granted in order to apply for such relief. Part III says that a court will only grant leave where it finds that there is a substantial ground for doing so and that at least one requirement found under section 27 is established. The Applicant in this case could satisfy the requirement set out in section 27(1)(b) which states that “either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid”

The court must also find that there is a substantial ground for granting relief at this first stage in the process. In deciding whether there is a substantial ground and whether it is appropriate to grant leave, the court looks to section 26. In considering section 26(a)-26(i) I believe that unless there is some evidence that the Respondent has or will default in paying maintenance in the future, it is my opinion that there is strong grounds for not getting through the leave stage.

I believe that the recent case of DT v FL [2009] 1 IR435 is very relevant to the case at hand. After living in the Netherlands since 1987, the court still found that in 2000 the Respondent was still domiciled in Ireland. In applying the facts, I believe that both parties would still be found to be domiciled in Paraguay. The court found in DT v FL that both parties domicile was Ireland and this overrode the Netherlands divorce where the Netherlands courts had accepted jurisdiction on the basis that residency factors had been satisfied.

I believe that the cases of MR v PR[2005] 2 IR 618,PWY v PC [2008] 2 IR 262,Agbaje v Agbaje[2009] 1 FLR 987 are all relevant to the case at hand. Although two of the decisions are English and not binding on an Irish court, the legislation in this area of the law is similar and the decisions could be found to be persuasive to an Irish Judge. I outlined the facts as I found them to be very relevant to the facts of the case at hand. In MR v PR Quirke J in the Irish High Court stated that a court should not interfere with a decision of a foreign court save where there is exceptional circumstances and that the outcome of the foreign court proceedings had been unfair or unjust and that no remedy was available to the applicant in that jurisdiction. In applying this case to the facts, I do not believe that a court would find that an exceptional circumstance is the fact that there is no security for maintenance for the Applicant and that the Paraguayan Divorce was unfair or unjust to the Applicant. It is therefore, in my opinion, that an application by the Applicant under Part III would not be successful.

LegalEagleStar , Wednesday , 9^th March ,  2011

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

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

Maintenance money stops

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