LegalEagleStar

… a kind of Legal Column

Posts Tagged ‘Family law

Your First Meeting with an experienced Divorce Lawyer

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https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcQ2sQbAo4ArmbpAuG3EGYjRRA76Mhc0U9ZiwN0cgrThPi8Qf-A72Q   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,

 

Written by LegalEagleStar

October 12, 2017 at 6:34 pm

You Need Your Solicitor

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At Early & Baldwin we divide our work into three separate Departments. Personal Injuries, Family Law and Probate & Conveyancing. Over the years it has actually evolved that way due to our involvement with our clients and their needs. When I qualified in 1980 there was in general, the local solicitor who undertook all types of work. I had been a Director of The Free Legal Advice Centres (FLAC) so had been heavily involved in Family Law. I was in charge of the Ballymun Centre located in the basement of Padraic Pearse Tower, since demolished as part of the Ballymun Regeneration Scheme. Our clients, primarily the women of Ballymun with children, needed us when their husbands abandoned them. There was no civil legal aid available to people and FLAC stood in to help. Disgraceful situation people were in but sure this is Ireland, and it seems we’re used to it ! While they were tough times, it really was the first time in my life that I came face to face with such abject poverty and deprivation. A learning curve I would never forget. After qualifying, I did a lot of Family Law Cases and indeed, continue to do so today. I’ve recently engaged the services of Carol McGuinness, one of the best family lawyers around, to head up our Department.

 

Well then… Why did we open a Department dealing with Personal Injury Law?                In 1987 my law firm partner Kevin Early died. He was primarily involved in the Conveyancing and Probate work, while I looked after Litigation and indeed Family Law. With the introduction of lawyer advertising, which was not previously available, I saw an opportunity to change the direction of the firm from where we were, a general practice, to a more progressive model which could be developed to better meet the needs of our clients. I made it policy that we would not act for Banks, Insurance Companies or indeed large Corporations. I felt that as our clients were ordinary decent people that we owed it to them to act solely for them and not have any conflict of interest. Unlike some of Ireland’s ‘leading’ law firms which it appears, employ ‘Chinese Walls’ to enable them act for all sides !  But I digress.

 

We made some radio ads, employing Emmet Bergin to do the voice overs. He was the sexy Auctioneer in the RTE Sunday night soap Glenroe. The ads worked well and we established a Personal Injury Law Firm. This Firm took on the cases of the ‘little guy’. There was a great buzz in the Office. We all pulled together and engaged with our clients. We saw people at the lowest point in their lives having suffered in an accident. Many lost limbs or had disfiguring injuries.  We came into contact with mental health issues and depression. All of life flashed before us and we felt job satisfaction like never before.

 

All this continued for a number of years until our Government, after lobbying from the Insurance Industry, brought in PIAB, the Injuries Board to take our work away and take it out of the hands of lawyers. It seems they only felt that Big Corporates should avail of lawyers, not the man/woman in the street. Even the Law Society were not happy with our Firm. Their Director General personally told me that they ‘didn’t act for me’. Tough times followed but eventually the Courts pointed out the error of their ways to the Government who couldn’t Ban Lawyers from Personal Injury Cases. The injuries Board continues but we can take our cases to the Courts once we deal with the formalities, should it be appropriate.

Well, as a result, we now have a Personal Injury Department. Excellent people I work with and great clients as before.

 

LegalEagleStar , Wednesday 26th. July 2017.

 

 

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July 26, 2017 at 4:22 pm

Will the Citizen have access to the legal profession? Not if the Big Corporations have any say about it!

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I qualified as a solicitor in 1980. I had no connections in law at all and if it wasn’t for the endeavours of my late father, I couldn’t have pursued my legal studies. He worked hard to provide me with an education and without him and the support of my mother, I’d never have succeeded.

For the previous couple of years or so before qualifying, I had been influenced by Inge Clissmann and Aedan McGovern, both barristers and now Senior Counsel. Inge had got me involved with FLAC, the Free Legal Advice Centres which was run by law students who represented in Court, members of the public who couldn’t afford access to justice. Inge introduced me to the Ballymun Centre located in the basement of Padraig Pearse Tower, long since demolished. There we mainly dealt with family law issues and quite simply, we were overrun with the work. Overrun and indeed overawed. It has left an indelible impression upon me to this day. With little or nothing, the parents we dealt with, raised their families in the most trying of circumstances. At the end of the night, after seeing all those needing help, Inge would insist we retired to the Towers Pub to have a drink, one drink, so as to encourage those we had met to see that we were no different from them and could empathise with them. She was all too aware that lawyers were thought of as elitist and she was doing her part in showing everyone that we were not. She also was teaching us students about our social responsibilities and would not tolerate any bullshit from us. She encouraged talk and discussion and left her mark on us. I subsequently took over as Director of FLAC in Ballymun some time later. They were hard times but certainly gave us law students a social conscience which remains with us to this day. All this happened before our Government were forced to bring in Civil Legal Aid. During my career I have had the pleasure to act for those who ‘couldn’t afford a lawyer’. Pro bono work as it is now referred to.

 

The other influence on my career was my late father. While he was one of the ‘bosses’ in British Railways he was a solid Trade Unionist. He was also a devoted Roman Catholic with a great social conscience. He worked hard to look after us but instilled in me an outlook where people came first. It’s probably because of his example, that at an early stage after qualifying,  I made a decision to not act for Banks or Insurance Companies because I could not identify with the Profit at the expense of People dictate. I found many of their dealings with people to be disgusting and abhorrent. To this day my attitude has not changed.

 

I was lucky enough to be practising when the Competition Authority actions enabled solicitors to advertise. I took out a full-page in Golden Pages, advertising my Personal Injury Law Firm as well as having regular adverts air on RTE Radio. My firm expanded and I must say, I was delighted with the pro-people stance we took. We were a plaintiff firm, never acting for the defendant Insurance Companies. We were attacking the anti-people establishment and winning. Many other firms followed suit and people were being represented on a no-win no-fee basis. What other way could people access the law? This continued, or should I say was allowed to continue for only a moment in time. The Law Society among other interested groups were unhappy and pressurised the Government into making changes. Subsequently PIAB was formed to be a ‘lawyer free zone’ and were mandated with looking after all the injury cases from now on. Thankfully after come Court cases it is no longer a ‘lawyer-free’ zone but the setting up of The ‘Injuries Board’ has depleted the work carried out by High Street Solicitors, whose clients were people, not corporations. At the same time, the Law Society tightened up their advertising regulations and I was personally instructed to not call Early & Baldwin a Personal Injury Law Firm as this was ‘encouraging’ claims. And we are to this day prohibited from advertising that personal injury law is what we do. All this was done by the State in the interests of injured people we were told. Do not believe a word of it. For once, the lawyers who acted for the working man and woman were bringing their cases to Court and accessing ‘Justice’ for them. The Insurance lobby is very powerful, not unlike the Banks. They have great influence over Government, unlike the citizen who has little or no influence.

 

Currently there is outrage regarding the amounts the Insurance Industry are charging for renewal of motor policies. Us lawyers are of course being blamed by the Industry but many commentators are challenging this assertion. Remember that cases were heard before Juries until Government was lobbied by the Insurers who said that people could not be trusted. Then we had cases heard by Judges alone. This continued until the Insurance Industry said that Judges were awarding too much. Judges were halted and the Injuries Board was put in place to replace them. Now it’s only possible for your case to be heard before a Judge, if you’ve rejected the award made by the Injuries Board. All this change has been lobbied for and achieved by the Insurance Industry for their own benefit, not for the citizen. In fact the changes in the law were designed to deny the citizen access to the law by taking the high street solicitor out of the equation. Meanwhile the Big Law Firms still represent the Insurance Industry is all their guises. All this ‘reform’ of the law should be taken with a grain of salt. What had been achieved by young enthusiastic lawyers in getting access to the law for the ordinary man and woman, has now in effect been severely curtailed. This is quite alarming, but maybe not surprising. With the Corporation Tax obscenities and the control of Government by the Bankers, this is the logical conclusion. In future, they would hope, that access to the law was not for the ordinary citizen but solely the preserve of Big Law for their corporate clientelle.

 

LegalEagleStar Friday , 23rd. September, 2016

 

 

 

 

Written by LegalEagleStar

September 23, 2016 at 7:46 pm

The Day a Judge told me to F Off !

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Early & BaldwinAs a long-time practitioner of Family Law, there are moments which stick in your mind, for one reason or another. Many years back, noting I’m qualified over 35 years, I was involved in a very sad Child Custody case.

My client, the husband, had separated from his wife when their only child, a beautiful daughter, was very young. She was now eight years old. He had moved abroad for work and his daughter lived with him since she was a baby. The wife unfortunately had suffered for many years from depression and on occasions, was institutionalised. They still kept in touch and from time to time, he travelled back so that his wife could spend some time with her daughter.

Unfortunately, on one such visit home, the family of his estranged spouse decided to pressurize the child’s mother into hiding the child and when he arrived to collect her at 6pm as agreed, neither the wife nor his daughter could be found. He was traumatized and the next day arrived at my office to instruct me in the case. We wasted no time in issuing proceedings and made an emergency application to the Court to have the matter dealt with. Our investigations had revealed the location of both the mother and child.

On the morning of the hearing, evidence was heard by the learned Judge who decided to that an early date for hearing was warranted and listed the case to come back before him in 5 weeks time. This was agreeable, although inconvenient for my client as he had to inform his employers, who thankfully, were accommodating. The matter of access was discussed and the Judge then decided that he was giving the father No Access, despite the fact that the child lived full-time with him ; that he had sole custody ; and the mother was not a fit person to look after the child, due to her recurring illness. It was her family that had in fact assumed custody of the child, not her. Needless to say we were infuriated with the Judges decision. Despite our endeavours there was no moving him. I then stood up and angrily stormed out of Court followed closely by my client. I was horrified when he asked me was it usual for a Judge to tell a solicitor to F Off ! Needless to say I was horrified as I had not heard the remark. I took a deep breath, composed myself and both myself and counsel headed straight up to the High Court and informed the presiding Judge of what had happened, bar the comment. He wisely ordered daily access for my client from midday until 6pm until the case was heard.

When the case finally came back before the aforementioned Judge, he shouted out ‘Who appealed my Order ?’ Then he took a look at me and said ‘You, huh, doesn’t surprise me.’ He then went on to hear the case in full and rightly returned the child into the custody of the father. When we exited the courtroom the wife let out a cry which brought tears to my eyes. Regardless of the fact that justice was served that day, Child Custody cases are traumatic, not only for the parties involved, but also for the lawyers.

LegalEagleStar Tuesday 3rd. November 2015.

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November 3, 2015 at 8:55 pm

I’ve an App for that …. Law without a Lawyer

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A day doesn’t go by without us being bombarded by Apps. Sign up and get a free App for your iPhone. We have more Apps on our phones than we can use. Sure they may be handy at some stage in the future i.e. next week !

Over the past while, I’ve been horrified that many people, lawyers included, are saying ‘I’ve an App for that’… when discussing the law. Yes, I admit, some are educational but I am referring to those that are advocating that you can look after your own divorce, house sale or purchase and other such important matters which hugely impact on your life. Why go to College and study law; then spend time in a Law School to get your Practicing Certificate? Well according to these geniuses, no need at all. Sure save your money and use the App. They ask you why you are wasting money on these legal professionals when you can just use their App. Unfortunately, it would appear that many people are being taken in by this dangerous nonsense.

While I for one respect newly qualified lawyers, whether they be at the Bar or from the Law Society, they have their place in the overall legal framework. What most don’t have, is experience. That is only gained from many years of practice in their chosen fields. This experience is what comes into play when taking on a case for a client. The client deserves to go to law with experienced lawyers who have their interests solely at heart. Most spend many hours working up the case for their client and the full weight of their experience is called into play. Every client is unique. Their circumstances are not like any others. There may be similarities e.g. they have four children and have been married for twenty years. But that is where the similarity ends. To act as though two cases are the same would, in my opinion, equate to nothing short of professional negligence.

But I cannot afford thousands of pounds to employ a lawyer, or a team of lawyers as can be the case. Well, you cannot afford not to. How much did you spend on your wedding? That was a big event and a very important day for you. You spent what you could to celebrate in style. Yes, later you cut back on some items, but you didn’t do without what was important on the day. Well, your divorce costs should be thought of in similar terms. I am not suggesting you go to one of the Big Law Firms. They have access to the same Family Law Barristers as your local High Street Family Law Solicitor. Why people go to these firms is quite beyond me. In my experience,these firms are dealing with Corporate matters in the main and are not concerned with the day to day legal matters of the ordinary man and woman. They may take on your case if you’re doing your business with them or else if a relative of yours is. Your High Street Family Law Practitioner will give you a good personal service and instruct the appropriate barrister to get you through this difficult time.

I come across lay litigants a lot more today than I have in the past. While I respect the individual trying to do his own case, I do see the error of their ways. It is a nigh impossible task. To give credit where it is due, many Judges go out of their way to help such people. That alone will not help them get the justice which many deserve. So, when you download that magic App that will get you painlessly through your divorce or other pressing legal matter just remember… Law without a Lawyer is a fool’s paradise.

 

LegalEagleStar , Thursday , 7th. August , 2014 .

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August 7, 2014 at 11:22 am

Why become a Lawyer…sure aren’t they only money grabbing Scum !

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Perry Mason (TV series)

Perry Mason (TV series) (Photo credit: Wikipedia)

David E. Kelley

David E. Kelley (Photo credit: Wikipedia)

As a teenager, I was an enthusiastic fan of Perry Mason. I was blown away by his expertise. That man could save people accused and looking guilty. Of course they were innocent but it was only his expertise that exposed the truth. What a Guy. It would appear that Perry was an inspiration for a generation of lawyers. Later ‘idols’ included Ally McBeal, the lawyers at LA Law and more recently Denny Crane and Alan Shore, not to mention Shirley Schmidt, all at Boston Legal. What all of these idols represented was a pursuit of justice for their clients both rich and poor.

During my College years in the mid to late 1970’s, I encountered a very diverse set of fellow students. There was the middle-aged teacher who felt that ‘it was time for a change’. He was a very genuine guy and told all that would listen to him, that his days teaching had come to an end and that he needed a new challenge. There was the Canadian businessman who wanted to come back to Ireland and felt that he wanted to pursue a career in law. My friend Anna was about my age, late teens, and had always wanted to be a solicitor. She came from a wealthy background but was a good person who wanted to do some good. Phyllis was a law clerk and had developed an interest in law and felt it was the natural progression, career-wise, to go to College in order to step up the ladder so to speak. Ann, who had numerous degrees already felt it was time, yet again, to go back and this time get a law degree to add to the numerous degrees she already possessed. She took us all under her belt and gave us the guidance we really needed. There was another Anne who was the daughter of a wealthy banker. She was really mature compared to me. She had her career planned out. Daddy had arranged this. She had brains to burn unlike me who felt somewhat overawed in such company. I must say they were a great support and source of encouragement to be during those years. While I was wildly idealistic, I was getting a real education in life itself. We were a diverse group but the one thing that we all had in common was our enthusiasm for the law. Many a debate, some heated, we engaged in and it was where I encountered politics or should I say Political Parties and the hold and influence they had on people. I saw that it was not only what you know but who you knew that seemed to determine your future.

It was during my second year that I got involved with FLAC (Free Legal Advice Centres). I didn’t apply to join them but was so fascinated with a young enthusiastic female barrister,now a Senior Counsel, who literally threw me into the deep end, that I encountered a vast number of people who The System had ignored and needed our help. It was no time before I was in charge of FLAC in Ballymun and had to deal with numerous social based problems and in particular Family Law. What a fantastic group of people I was privileged to meet. They gave of their time and energy to give advice and indeed appear in Court representing people who could not afford to go into a Solicitor for advice. I must mention here that some firms gave of their time and expertise to help us and for that we were so very grateful. Without their help and letting us use their names to front our Court appearances, we would not have had access to the Court system to protect the rights of the most vulnerable and dismissed in our society.

Well, the results were out. We all passed our exams, Thank God. I think my late father’s prayers had more to do with my success than the many hours spent trying to come to grips with the niceties of the law. We all headed our separate ways and ended up in one job or another. Personally I had a workload what with my involvement in FLAC. This followed me into practice as you just couldn’t hand it over to someone in the hope that they would look after the client. These many clients had become personal to me. I set up practice from my father’s house and with the support of my family I commenced to practice. The rest is history. I was lucky in that I was busy from the start. Apart from the numerous Free cases I did, I got work locally and over the first few years I was able to make a living. Most of my Classmates joined established firms and most stayed the course and are still practicing today.

Was making money a motivation? It certainly was for some but I must say the interest in law was the major factor. For most of us making a living was the important factor as this gave us the energy and enthusiasm to pursue issues through the Courts that would make a difference to people’s lives. It was not glamorous standing outside the Family Law Courts attempting to settle cases. The deserted wife with four children attempting to live on £25 a week was not uncommon. The husband who deserted them claiming he wasn’t working, had no money, when the opposite was the case. Those were hard and tough times for these women and they relied on us to give them the chance to survive. While Ann and one or two others may have gone into banking, most of the rest of us dealt with the ordinary citizen and to be honest, I wouldn’t have it any other way.

LegalEagleStar , Wednesday , 23rd. January , 2013 .

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January 23, 2013 at 9:43 pm

Divorce in Ireland today in this Economic Downturn

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Divorce Cakes a_007

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

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Divorce Your Speed

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

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Divorce Cakes a_005

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

Written by LegalEagleStar

April 27, 2011 at 2:38 pm

Recognition of Foreign Divorces by Irish Courts

with one comment


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 2nd 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 1st 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 , 9th March ,  2011

Written by LegalEagleStar

March 9, 2011 at 1:55 pm

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