Examining the Enforceability of Irish Pre-nuptial Agreements – Áine Horgan

Examining the Enforceability of Irish Pre-nuptial Agreements – Áine Horgan

Pre-nuptial agreements are typically executed to protect assets prior to marriage and become operational in the event of a marriage breakdown. Ross Alyward has stated that pre-nuptial agreements are drafted to not only consider the course of a marriage, but also to regulate the termination of a marriage. Whilst we normally associate pre-nuptial agreements with the protection of property, assets or inherited gifts, they can be utilised in contemplation of other eventualities that may possibly arise in the course of a marriage – Catherine Zeta Jones and Michael Douglas have a pre-nuptial agreement which attempts to prevent, or at least punish infidelity. Nicole Kidman and Keith Urban have a pre nuptial agreement that comes into effect should Urban’s addiction issues reoccur.

Pre nuptial agreements are enforceable, but not automatically binding under Irish law unless they comply with the financial inter-spousal obligations demanded by the courts upon divorce, for example, proper provision must be made for dependent spouses upon the breakdown of a marriage. The Family Law (Divorce) Act 1996 provides a legal framework for marital breakdown, introducing divorce and removing the lifelong aspect of marriage, and indeed any argument that a pre nuptial agreement pre-empting a breakdown would be contrary to public policy. However, current public policy prevents a clean financial break on divorce, and by requiring that dependent ex-spouses are entitled to proper provision following marriage breakdown, ensures that pre nuptial agreements will be set aside if its terms do not sufficiently provide for the more vulnerable spouse and dependent children, meaning the impact of pre nuptials at present, is very much determined on a case by case basis.

The C.S.O in Ireland estimates on 2016 figures that divorces here have increased by one fifth since 2011, bringing the rate to approximately 13%. Surely it is time that these agreements should be placed on a more concrete statutory footing in this jurisdiction?

Unknown to most people, Irish courts have been obliged since 1965 to take pre-nuptial agreements into consideration, as the Succession Act includes a section allowing a spouse to waive his/her legal right share on the death of his/her spouse, primarily with a view to protecting the family farm. However, courts are not mandated to give pre-nuptial agreements full effect if they are grossly unfair. Farmers and business owners have long lamented that more robust protection is not available to allow them to protect their assets should marital break down occur within the family. Under Irish law, as it currently stands, a family business, farm or inherited asset which has been in a family for generations may have to be sold to provide for a spouse if a marriage has ended. A study conducted amongst 1,000 farmers by Farmland.ie in April 2017 revealed that 72% were in favour of marital pre nuptial agreements becoming strictly enforceable.

Recent census figures also identify an increase of just over 17% in the number of people getting remarried. Almost 30,000 men and nearly 21,000 women over the age of 45 were in second marriages in 2016. Presumably many of these people possess assets and wealth that they want to protect in the event of their death in favour children, or even grandchildren, from previous relationships. Under current law, the succession entitlements of a second spouse will take priority, and in comparison, any children of the deceased only have very meagre protection. They have a right to apply to the court if they can prove that they were not appropriately provided for during the lifetime of their deceased parent.

Many Irish couples undertake pre marital courses prior to their big day, it might be sensible to at least encourage couples to contemplate signing a prenuptial agreement prior to marriage, in a manner similar to how couples are mandated to consider the option of mediation, prior to issuing divorce proceedings. Some might argue that a policy shift to a system where pre-nuptial agreements have to be considered by couples prior to marriage could be construed as encouraging divorce, however it could equally give both parties great reassurance, especially where there is a  large imbalance or wealth and or assets between the parties.

Including a sunset clause in the agreement would compel the couple to revisit their pre-nuptial agreement at various junctures throughout the marriage (for example every five or ten years), allowing the pre nuptial agreement to evolve to reflect the changing needs and circumstances of the couple and any children they might have. Indeed recent judicial pronouncements suggest a growing reluctance to interfere with family assets or inherited gifts when determining what orders are required to make proper provision for a former spouse. This policy shift might apply to pre-nuptial agreements, should a case come before the courts for adjudication. In the recent Irish divorce case G v. G, the court stated that it would not view inherited assets in the same way as it would treat assets accumulated by the couple during the course of the marriage.

In 2017, with the current divorce rate of 17% on the increase it might finally be time to afford better respect to the private choices of couples and allow their pre marital views to have more influence on the divorce process without perhaps completely binding them to an agreement that is either grossly unfair or does not reflect changes in circumstances that may have occurred during the course of marriage.

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Ireland 2017 – forcible adoption of children in State care? by Caroline O’Meara

Adoption involves a child being adopted by someone who is not their birth parent whereby the legal rights and responsibilities are transferred from the birth parent(s) to the adoptive parent(s).

Recent changes to adoption law have brought about significant changes. More people than ever before can now adopt a child: married couples; single people; relatives; civil partners; co-habiting partners; and step-parents.

Children in state care may now be adopted without parental consent where a child has been in care for at least three years and placed with their adopters for at least 18 months. During this time ‘every effort’, which is not explained in the legislation, must have been made by Tusla to engage with parents who must have been offered all ‘reasonable supports’, again is undefined by the legislation.

This marks a significant shift away from the traditional protection of the family unit.

The High Court must be satisfied that the parents have failed in their duties towards the child and that there is no reasonable prospect that they will be able to care for the child. The adoption must always be viewed as desirable and in the child’s best interests.

For children in the long term care of the state, these changes are positive in that they provide a legal, social and familial certainty in terms of their longstanding placement with their foster family.

Yet, adoption without parental consent may be seen as a heavy-handed and draconian state intervention in the family; a tool to reduce public expenditure by creating a framework to transfer some or all of the existing 6,258 children in care (December 2016) out of the Care system; thereby eroding parental rights.

However, the legislation contains safeguards. Proof as to the adopter’s eligibility and suitability are required, as is the eligibility of the child to be adopted. The adoption must be seen to be in the child’s best interests.

Everyone connected with the child, and not just the birth parents (ie fathers who are not guardians, spouses, civil partners, co-habitants of the birth parent, grandparent or foster parents) must be consulted for their views as to the adoption. Whilst their views will be taken into consideration, the legislation does not require their consent. A child must also be consulted as to their wishes and views, having regard to their age and understanding, but the law is not prescriptive as to how this will happen.

The new legislation permits more children to become eligible to be adopted and the categories of those who may adopt has also widened, which is to be broadly welcomed. Whilst this may lead to increased adoption applications, the length and complexity of adoption assessments are such that an avalanche of applications is not anticipated. , However the separate need for Tusla, the Adoption Authority and the High Court to each be satisfied as to the eligibility criteria of the prospective adopters and the child placed for adoption remains and that it is desirable and in the child’s best interests to grant the order.

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Are we there yet? – Realising the rights of the Child – Linda Kearin

Ireland has a disturbing past with regard to the protection of children and the vindication of their rights. The recent shameful history of child abuse in Ireland demonstrated by the Ryan and Roscommon Reports, and more recently ‘Grace’ has led to the creation of review groups to establish how vulnerable children were left to be the victims of the most heinous of crimes.
The insertion of Article 42A into the Irish Constitution was approved by a referendum of the people in 2012, it will better reflect the rights enunciated under the UN Convention on the Rights of the Child, in particular Article 19 which provides that the State shall take all appropriate measures to protect children from all forms of abuse and neglect. Article 42A.4.1 provides that the best interests the child shall be the ‘paramount consideration’ in certain areas of decision making affecting a child; care proceedings and child protection cases, adoption, guardianship, custody and access cases. It also provides that the rights of the child are independent of the family and significantly the marital status of a child’s parent does not affect the rights of the child as an individual. This is a significant development in the law which could have positive profound effect for children. Decisions will be determined solely based on what is best for the child in question. Up to this point children’s rights were only provided for within the context of the family unit. This is the context in which the Irish courts have historically operated; where the family unit is supremely represented within the constitution and as such the courts are reluctant to interfere in family life, particularly with regard to the upbringing of a child. This position has seriously restricted the courts discretion in vindicating the rights of children and placing their welfare and best interests as paramount.
The Children Act 1997 provides for the wishes of the child to be taken into account in private law proceedings. The Child Care Act 1991 provides the statutory basis for the appointment of a Guardian Ad Litem where the court is satisfied that this appointment is necessary in the interest of the child and justice. The Guardian Ad Litem has a dual role; to inform the court of the child’s wishes and feelings and to advise on the child’s best interests. However the appointment of the Guardian Ad Litem is left to the discretion of the judge which results in an inconsistent application of the service. The Children Act 2001 also provides for the appointment of a Guardian Ad Litem with respect to children where a special care order is applied. A special care order means that the child is committed to Tusla’s care for as long as the order remains in force. It authorises Tusla to provide appropriate care, education and treatment and, for that purpose, to detain the child in a special care unit if necessary.
The Children and Family Relationship Act 2015 is a long and complex piece of legislation and places additional powers on the courts with regard to guardianship, access and custody. The Act requires the child’s best interests to be the paramount consideration in any decisions on guardianship, custody and access. In all cases the views of the child must be taken into account if the child is in a position to express his/her views. The rights and responsibilities of a guardian include; deciding on the child’s place of residence and with whom they live, making decisions regarding the child’s religious, spiritual, cultural and linguistic upbringing and to consent to medical and dental treatments for the child. Significantly a guardian also has the right to place the child for adoption, and consent to the adoption of the child, under the Adoption Act 2010 .
The 2015 Act extends the remit of individuals who can apply to the court for guardianship of a child; a step-parent, a civil partner or a person who has cohabited with a parent for not less than three years and where they have co-parented the child for more than two years. A person who has provided for the child’s day-to-day care for a continuous period may also apply. In the event of a parent becoming incapacitated and unable to look after their child, the court can appoint a temporary guardian.
The Act provides that an unmarried father will automatically be a guardian if he has lived with the child’s mother for 12 months, including at least three months with the mother and child following the child’s birth. Previously unmarried fathers did not automatically acquire guardianship rights. The father’s relationship with his children can still be determined by the relationship he has with the mother and in the event of the couple being unable to make a decision regarding custody and access then the courts will determine what is appropriate. The Act implies that the maternal relationship trumps the paternal relationship with the child; while this may have been the case in Ireland in previous generations it certainly doesn’t reflect the social norm in 2017, this is a clear demonstration of the law lagging behind the evolving social landscape. The 2015 Act aims to reflect best practice in providing for the best interests of every child, which raises the question as to why every child of an unmarried father doesn’t have an automatic right to this father as a legal parent / guardian? If all children are treated equally, it could be argued that the state is discriminating in favour of children of married fathers. Unmarried fathers are not afforded the same automatic rights as married fathers, so in turn their children could suffer a limited relationship with their father as a result of the conditions outlined in the new legislation (or while the guardianship process goes through the courts). The 2015 Act requires the court to deal with cases promptly without delay, it places a duty on the court to include the views of the child, but it is not clear from the legislation how this should happen, such lack of clarity could lead to the child’s views being omitted altogether. This is a major flaw in the legislation.
The family law system places repeated emphasis and importance on the best-interest principle, ensuring that regard is given to the welfare of the child as a primary concern in family law proceedings. The Children and Family Relationship Act 2015 is a positive development and beneficial to children as it provides an enhanced automatic identification of guardians, albeit not absolute. The implementation of Article 42A has the potential to have a significant and positive effect on the regulation of child protection and adoption, if applied correctly it has the potential to make significant difference to a child’s life. It sends a clear message that Ireland values children and their rights, and subsequently will protect them. Despite the fact that this regard for children has been a long time coming, it is clear that it is a progressive step in the development of child law in Ireland.

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Grandparent Rights? Another layer in the complex area of family law – Redmond Powell

The typical Irish family has changed significantly since the birth of today’s grandparents. The commonplace larger families have reduced in size and many modern families rely on grandparents for much more than just weekend visits. However, a substantial amount of modern grandparents have very different experiences of family life especially when things go wrong. Modern families equally throw up issues that can lead to the fracturing of the relationships between the three generations of the family.

The issues
Divorce, separation and death are some of the more common causes of families drifting apart and for others it may be as simple as “words” that were said out of tone or in anger. The end result is that grandparents can be prevented from playing a part of their grandchildren’s lives. Being denied access to grandchildren can at a minimum be frustrating and for most, heart-breaking. Depending on the issue the legal options available to grandparents are as follows:
a) Apply for an access only order, or
b) Apply for custody and guardianship

When grandparents are considering an access application to the court it must be acknowledged that to do so can lead to a further fracturing of the grandparent/parent relationship. Emotions can run very high at the mention of litigation and in reality legal proceedings should be the last attempt to gain access to grandchildren, but unfortunately, in some cases it is necessary. One of the first drawbacks to family court is the adversarial nature of the Irish court system. This approach does not auger well for the family as in effect it pitches one side against the other. It is vitally important to keep focused on the primary objective which is the reinstatement or the protection of the relationship between grandparents and grandchildren.

The recent changes to the Guardian of Infants Act 1964 brought about by the introduction of the Children and Family Relationships Act 2015 have given more opportunities for grandparents to seek the courts direction in matters concerning the grandchildren’s welfare. Section 11(b) now affords grandparents and certain other qualifying people rights to apply for access to children.
This application can include establishing the right of access to the child but can be contested by the parent with custody of the child. The child, to the extent possible given his or her age and understanding, will have the opportunity to make his or her views on the matter known to the court.
Guardianship and custody.

Grandparents can be asked, or can offer, to take much greater responsibility in the lives of their grandchildren because of the difficulties that exist in the lives of their own children. However caused, grandparents taking on this type of caring role may not realise the heavy burden of responsibility that is placed upon them. Engaging with social workers and other professionals may become the norm. Grandchildren’s difficult behaviour, the disruption to regular routines and the possibility of resentment from other children and grandchildren may all become commonplace. In the past this type of commitment by grandparents did not bestow them with any guardianship rights, just lots of responsibilities.
However, as well as the changes to access arrangements the amended Guardian of Infants Act 1964 mean that grandparents can apply to

a) Become guardians of their grandchildren if they have been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.

b) Become temporary guardian for his / her grandchild if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities.

Court appointed guardians have the right and responsibility to decide where and with whom the child lives, as well as the right to consent to medical, dental and other health related treatment for the child. The child, to the extent possible given his or her age and understanding, will have the opportunity to make his or her views on the matter known to the court.

Relationships with parents
Parents are crucial in grandparent- grandchild relationship as they can act as a gatekeeper by restricting the access to the child because of their issues with their parents (the grandparents). In a post separation situation a parent may decide that the grandparents on the “other” side should not have access to their grandchild. Given that statistically the mother is more likely to gain custody of the children can typically mean that paternal grandparents are the ones who lose out. Limiting access may be the parent’s way of attempting to break free from the entire ex-family and perhpas reduce conflict with any new partner.

Mutual friends or family members could be used as an intermediary with the parent or The Family Mediation Service (FMS) or the Mediators Institute of Ireland could provide a more professional approach to resolving the issue.

Maintaining a relationship with a grandchild.
Whilst the parent-child relations can sometimes be complicated and fraught with difficulties the grandparent-child relationship can occupy a different space, regarded by Andrea Smiths as “a free and easy relationship that is lacking in complications because the parental layer of responsibility is removed from the equation.” Family law processes can be quite time consuming. Whilst the process is ongoing it might be useful to maintain some level of contact, if permissible. Writing letters or cards especially at Christmas, birthdays and other important days may help in the healing process. Keep positive and never blame the other side. Writing letters also acts as evidence of your attempts to heal the rift and may be very useful information for the Judge in his deliberations.

Finally, keep in mind that winning in court can be an empty victory as additional complications may arise if the parent is adamant that the grandparent is persona non grata and return dates to court may become commonplace as enforcement orders are considered as an option. A period of reflection may be necessary as this process will undoubtedly have an effect on the child with the end result being that the grandparents needing to wait until the child can make decisions for him/herself.

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Protecting the Victims of Domestic Violence – Rachel Condon

Rate of Abuse

Statistically, according to Women’s Aid, Ireland has the second highest number of women avoiding places or situations for fear of being assaulted out of all EU countries.

In a 2014 study entitled “Violence Against Women: An EU-Wide Survey” by the European Union Fundamental Rights Agency, it was reported that 14% of women in Ireland have experienced physical violence by a partner. 6% of Irish women have experienced sexual violence by a current or former partner and 31% of women have experienced psychological violence by a partner. 12% of Irish respondents had experienced stalking (including cyber stalking) while 41% of Irish women know someone in their circle of family or friends who have experienced intimate partner violence.

The EU Campaign Against Domestic Violence, 2000 reported that 25% of all violent crimes reported worldwide involve a man assaulting his wife or partner. At least one in three women worldwide (approximately one billion) have been beaten, coerced into sex, or had been otherwise abused in their lifetime.

In Ireland, 209 women have died as a result of domestic violence since 1996 with 63% killed in their own homes. Of the 209 women killed, 87% of them were murdered by somebody they knew such as a spouse, partner, brother, son, neighbour or acquaintance. Women are twice as likely as men to suffer domestic violence with one in seven women being abused in comparison to one in seventeen men.

Reporting Abuse

Women’s Aid has reported that on average a woman will be assaulted by her partner or ex-partner 35 times before she will report it to the police. Those who do take the step to report the abuse face obstacles in the courts with judges and solicitors minimising the perpetrator’s accountability.

The Domestic Violence Death Review Team in Australia drew up a report in 2010 which found that judicial staff often used minimalising language such as ‘volatile relationship’ or ‘stormy relationship’ to describe cases where there was a history of domestic abuse. By way of example, the report referred to the case of a man who set his girlfriend on fire as being in a state of “jealous anger”, to explain his violent behaviour.

While victims of domestic violence may be reluctant to report abuse, whether out of fear of further harm or because of a fear that they won’t be believed, such reporting is crucial. It is also important to seek medical help as well as assistance from An Garda Síochána. Even if a victim has no intention of prosecuting their abuser, taking these actions is vital so if they do ever wish to proceed with charges there is logged evidence of their abuse which can be used in their defence. There are also a variety of different orders one can make against an abusive partner in the District Court such as a barring order which requires the violent person to leave the family home and prevents them from behaving violently or threateningly towards the victim or a safety order which prohibits the abuser from further violence or threats of violence. The Circuit Court can extend a safety order for an unlimited duration if necessary.

The Domestic Violence and Sexual Assault Investigation Unit primarily investigates domestic/ sexual violence cases and they liaise with the relevant State bodies, Government departments and voluntary groups. The interviewing process attached to a domestic violence investigation can be found at www.garda.ie/domestic/violence. For sexual assaults, treatment is available at six sexual violence units around the country. Listed below are the locations and contact numbers for the different units. All listed units are open 365 days a year:

Cork: located in the South Infirmary, Victoria University Hospital. Services can be accessed at 021/4926297 and are available 24 hours a day, 7 days a week.

Donegal: Located in NoWDOC premises, Old Town, Letterkenny. Services can be accessed at 0870681964 or via 0749104436 from 8am until 8pm, 7 days a week. For out of hours services, please contact Letterkenny General Hospital Emergency Department on 0749125888 ext. 3595.

Dublin: Located in the Rotunda Hospital, Dublin 1. Services can be accessed at 01 8171736 Monday to Friday from 8am until 4pm. For out of hours services, contact the Rotunda Hospital on 018171700 and ask for SATU.

Galway: Located in a dedicated building near Galway racecourse. Services can be accessed at 091765751 or 0876338118, Monday to Friday from 8am until 4pm. For out of hours services, contact your local Garda station.

Mullingar: Located in Midland Regional Hospital, Mullingar. Services can be accessed at 0449394239 or 086 0409952, Monday to Friday from 8am until 5.30pm. For out of hours services or weekends contact your local Garda Station or call nursing administration via the hospital switchboard on 044 93 40221.

Midwest: Located in Mid Western Regional Hospital Limerick. Services can be accessed from Monday to Friday, 6pm until 8am Saturdays, Sundays & Bank Holidays 24 hours. Contact SHANNONDOC on 1850 212 999. During office hours contact Galway or Cork SATU.

Waterford: Located in Waterford Regional Hospital. Services can be accessed on 051 842157 or out of hours contact the nurse on call via the hospital switchboard on 051 848000.

Victims of sexual violence will be asked to consent to a Forensic Clinical Examination as soon as possible once a complaint has been made and Gardaí will log this evidence to be used in court.

Abolishing Rape Myths

It is critical that as a society, Ireland understands that victims are less likely to report abuse if there is a prevalent “victim-blaming” attitude. This occurs when the victim of a crime or any wrongful act is held entirely or partially responsible for the harm that befell them. This leaves little faith in legal systems for victims of heinous crimes as those implementing the law, who we rely on to bring justice to these people, can’t address violence against women/men without perpetuating victim blaming myths. Questions such as “what were you wearing?’, “had you consumed alcohol?” or “how did you get yourself into that position?” strengthens what the abuser has been saying all along; that it is the victim’s fault they have been abused, that had they dressed or behaved in a certain way then they wouldn’t have suffered at the hands of their victimiser. This demeaning attitude towards victims of violence makes it difficult for them to seek help while removing any responsibility from the abuser.

As a society we choose to blame the victim because we want to distance ourselves from the unpleasant occurrence that has taken place giving us a false sense of security that this could never happen to us when in reality this is not the case. The tendency to blame survivors branches out into different elements; mainly, many people would say they would immediately leave after the first episode of domestic violence or they would certainly report a violent assault but for people who have experienced this, such a clear escape can be blocked by the primary aggressor. Secondly, the victim themselves is likely to place the blame on themselves and have this reiterated by their abuser ensuring that they feel the abuse is their fault and could have been avoided therefore making it unlikely for them to seek help. Until societal attitudes change towards victims and we realise the abuser needs to take responsibility it is unlikely we will progress in helping victims of violence.

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Is it time to resurrect Civil Partnership? – Anne Ahern

Is it time to resurrect Civil Partnership? – Anne Ahern

The recent UK Court of Appeal decision in Steinfeld and Keidan v the Secretary of State for Health, brings to mind the short life of the Irish Civil Partnership. Created by the 2010 Civil Partnership and Certain Rights and Obligations of Cohabitants Act, Civil Partnership gave same sex couples, practically, with some minor differences, the same legal protections as married opposite sex couples. Its demise was executed in the 2015 Marriage Act, which provided that there can be no further Civil Partnerships in Ireland after May, 2016. The existing Civil Partnerships today retain their legal footing, and can, if the couple so chose, be converted with ease to marriage.  The Civil Partnership, struck down in its infancy, prevented from maturing, has perhaps been denied the opportunity to reveal its worth as an alternate creature to marriage.

In the Steinfeld case the opposite sex couple claimed that their European Convention rights under Articles 8 and 14 were infringed. These rights of privacy and family life and protection against discrimination were infringed by the State where they were precluded from entering into a Civil Partnership on the basis of their different sex.  The UK is the only European country which has retained Civil Partnership for same sex couples after same sex marriage had been introduced.  Other countries such as Ireland has wound down Civil Partnership, or some countries have civil partnerships open to both same and different sex couples.

The Court accepted the evidence of the plaintiffs, and other witnesses, that marriage was not an option for them because of its roots in patriarchy and inequality. They stated that Civil Partnership best reflected their values, and would give due recognition to the equal nature of their relationship. The Court accepted that these views were sincere and genuinely held and amounted to an inability to enter into marriage. They therefore did not have the choice to marry.

The three Court of Appeal judges unanimously held in the Plaintiffs favour but they ultimately failed in their challenge as the court accepted that the governments approach of waiting and gathering evidence before deciding to wind down Civil Partnership, or to extend it to different sex couples. This was held to be a matter of social policy within the remit of the government and therefore justified the unequal treatment of different and same sex couples. However, it is clear from the judgment that this justification can only be temporary.

Back to Ireland, in despatching the option of Civil Partnerships in the 2015 Act, the Minister for Justice in the Oireachtas alluded to the special constitutional position of marriage in Ireland under Article 41, maintaining that to allow Civil Partnership to survive would be to permit it to compete with marriage. In its demise, the Oireachtas effectively prevented Steinfeld challenges, eradicating an alternate or parallel legal union regime. It can be almost definitively ventured that if Civil Partnership continued to exist in this jurisdiction, it could be effectively challenged on the grounds of equality, discrimination and private and family life, on both European Convention and Constitutional grounds where it continues to preclude opposite sex couples.

Is there a demand in Irish society for a purely secular legal union akin to the Civil Partnership? Those opting not to marry but to cohabit may have many varied reasons underlying that decision. Applying the Steinfeld and Keidan argument for a secular union to the Irish context, it is plausible that many Irish couples may base their decision to cohabit rather than marry on religious and historical objections. Looking at research in Ireland and in the UK, motives for different family formations can be extrapolated. In Ireland ESRI research has shown in 2006 that cohabitation is more likely among couples who have different religious affiliations and much more likely among couples who have no religion. https://www.esri.ie/news/households-and-family-structures-in-ireland/

A statistical survey in the UK examining the figures entering into Civil Partnerships after the introduction of same sex marriage show that, although over all figures are decreasing, that same sex couples over 50 entering Civil Partnerships are increasing. [(ONS) Civil Partnerships in England Wales, 2015 published 12 September, 2016]

The minor differences between Marriage and Civil partnership mean that in the eyes of some, any objections are matters of principle rather than pragmatism. The religious character of marriage is today largely historical as marriages do not require religious ceremony for their validity. Association with patriarchy, equality and oppression, through legislative reform over the last century, is also essentially in the past. This however may not be enough for couples like Steinfeld and Keidan.

Those that have a conscientious objection to marriage, are denied the protections and status that marriage provides in Society. To remain as cohabitees means that entitlement to legislative protection will fall far short of that provided to married couples and Civil Partners. The 2010 Act introduced some protection for cohabitees, following piecemeal reform over the preceding years. Its purpose is to protect the vulnerable, financially dependent cohabitee, when the relationship ends through death or otherwise.

It creates a new legal status of qualified cohabitant who has the right to apply to court for property or maintenance orders, and who must show financial dependence. However, this right to apply does not automatically grant an entitlement to an order. It also provides that the couple can contract out of these legislative obligations to each other.  The protection is therefore limited.  Arguably though, to extend it further by foisting further rights and obligations upon cohabitants would interfere with the autonomy of the couple who have chosen not to formalise their union. After all, the legal status of cohabitee is an automatic one conferred by the 2010 act. The couple do not expressly consent to it, or formally enter into it, as they would if they chose to enter into a Civil Partnership or a marriage.


If countries like France, Belgium, Estonia, and Greece can legislate to have Civil Partnership open to both same and opposite sex couples maybe Ireland can too.





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Spousal maintenance after divorce, time for change? – Anne Horan

Spousal maintenance after divorce – Time for change?

Anne Horan

Following the break-down of a marriage, the parties may well try to go their separate ways, but often this is not easily achieved. Who continues to live in the family home, how will the mortgage be paid, where will the children live and how easy will it be for the partner who has not worked in years, other than part-time, to get a full time job? Perhaps it is aspirational to say that once a marriage ends that the parties should sever all ties where possible, and start afresh. Life tends to complicate issues and solutions that work, are difficult to come by. As same sex marriage is relatively new to Ireland, our governing legislation regulating the break-down of marriage, both on divorce and separation and the existing body of case law has traditionally related to heterosexual marriages. Notwithstanding the fact/impact of divorce the emphasis has been on the protection of the traditional family unit based on marriage that has constitutional protection under all aspects of the Irish Constitution.

The political and social context which gave rise to the introduction of divorce law in Ireland in 1996 forms the basis for the open-ended and very deliberate discretionary based structure that governs this remedy. The result is that the Irish approach is one of almost absolute judicial discretion and especially in the context of inter-spousal support on divorce. The Irish legislature has chosen not to create fixed rules, rather it has established the basic standard of “proper provision” as provided for in the 1996 Act.

It is very well established by Irish case-law that the issue of maintenance can never be finalised. An alternative approach in America was influenced by the equal rights movement in the 1960’s and 70’s which gave rise to a rule-based, equal division regime. On the face of it, the Californian approach to the issue of the division of marital assets, is entirely rule-based. Subject to alternate agreement (like a pre-nuptial agreement) the Californian courts must award an equal division of the marital property of the husband and wife. Such a system of fixed rules, with equal division at its core, does bring certainty not only to the court process but also any negotiations. Settlements are made easier to negotiate if the outcome is predictable. However, a system of fixed rules does not necessarily lend itself to a fair outcome. Research has shown that it can impoverish women, this necessitated the introduction of amending legislation to give the court discretionary power to order spousal support when the circumstances of the parties require it to be ordered. So the imbalance can be addressed through ongoing maintenance payments if necessary. While the Californian approach is clearly much more rule based that the Irish approach, it does show that a 50/50 sharing of marital assets at the date of the divorce does not always equate to fairness. Research suggests that the impact of the equal division rule is that its effect is in fact to impoverish women, and not to equalise the historical gender divide in the home.

The Scottish approach to financial provision between spouses on divorce is regarded as a “principle-based” approach. Scottish family law is designed to limit the scope of judicial discretion exercisable in divorce cases by setting out five principles which must guide the court in reaching a decision. The main principle which is used in the majority of cases is that upon divorce the matrimonial property will be divided fairly, and fairly means “equal” unless there is a compelling argument to justify a fair but unequal split. Where ongoing spousal support is deemed necessary this is limited to a maximum of three years post divorce. It is only in cases of “serious financial hardship” that the court will consider ordering a payment of spousal support beyond this term. Until recently this has been tightly construed by the courts with only making awards in a handful of cases. Once a decree of divorce is granted in Scotland, a spouse cannot go back to court seeking further financial provisions. This again differs from the Irish system where it is open to a spouse to apply for further financial provision at any time following the divorce being granted.

While the Scottish system may seem a little harsh on previously dependent spouses, typically housewives, it is important to remember that in Scotland families have access to State child care. The availability of a State funded child care system together with other social policy structures which support the homemaker upon his/her return to work, or to remain in the home as a primary carer, are fundamental to facilitating the achievement of financial fairness following the granting of a divorce decree.

The introduction of the remedy of divorce in Ireland in 1996 was very politically charged. The 1986 divorce referendum was defeated with the “no” vote securing 73.5% of the vote. The 1995 divorce referendum was carried by the slimmest of margins, 50.28% voted “yes”. This resulted in divorce legislation which sought to ensure an inability to break financial spousal ties with a strong reliance upon judicial discretion, in order to ensure fairness in every instance.

Twenty one years have now passed and the change in family formations is considerable with a rapidly modernising, rapidly secularising, increasingly global Irish society. A lot can be learned from examining the regulatory structures which are in place in other jurisdictions regarding asset division and ongoing responsibilities upon divorce. In order to effectively reform Irish divorce law, law makers ought to begin with a consideration of effectively supporting homemakers in returning to the work place, following the breakdown of a marriage, by having in place a supported state funded childcare system. Where one party to a marriage may have not worked for a long time they will require ongoing spousal maintenance, together with childcare support where appropriate, until they find work or receive the necessary up-skilling/training to be in a position to get work. Once these support structures, together with a fair sharing of the marital assets, are effectively in place for the homemaker then the Irish law makers can look at putting a limit at the number of years which a spouse may receive maintenance after a divorce like the Scottish system. The Irish judicial approaches to the granting of spousal maintenance after divorce is inconsistent and the cases where maintenance ought to be granted needs to be set out more clearly in the legislation so that people can make more informed arrangements or settlements. Settlements are made easier to negotiate if the outcome is predictable.



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You can’t take it with you! – the importance of making a Will – Paul Farrelly

You can’t take it with you! The importance of making a Will – Paul Farrelly

You can’t take it with you!

Although it’s inevitable, nobody likes to think about death. However, out of consideration for those who are left behind it is better to plan ahead and to consider making a will.

Choosing to cohabit rather than to marry, choosing to have children or not, are decisions that may have unexpected legal consequences for those dear to you. The law acts to protect, for the survivor, a part of the estate of a person who dies having made a will (testate), or without having made a will (intestate). There is a common misconception that the survivors’ rights are the same whether or not the couple were married but this is not correct.

What happens to a person’s property when s/he dies depends on whether the person was single, married, in a civil partnership or cohabiting, whether or not s/he had children, and on whether or not s/he had made a will. If there is no will the property is divided according to set rules. If there is a will there are restrictions on how a person may dispose of his/her assets where there is a spouse/partner/children.

People requiring special consideration:

  1. Spouse: The person you have legally married (of the opposite sex or the same sex) and have not divorced.
  2. Civil partner: the person of the same sex with whom you have entered into a Civil Partnership.
  3. Cohabitant: The person with whom you are living in an intimate and committed relationship – (of the opposite sex or the same sex).
  4. Children.

A. If you leave a will…

A will is a legal document which sets out how your estate (property, money and all belongings after debts have been cleared) is to be divided on death and who is to benefit from it.

Making a will

A will must be in writing. It must be signed by the testator (the person making the will) in the presence of two witnesses (the witnesses do not have to see the provisions of the will). It must be signed by the witnesses in the presence of the testator (after he/she has signed it) and in the presence of each other. A beneficiary under the will or the spouse of such a beneficiary should not act as a witness to the signing of the will. The will must nominate an executor(s) who will distribute the estate as set out in the will. The executor(s) may also be a beneficiary under the will.

It’s my property and I can do what I like with it!

That is true unless you have a spouse/civil partner, cohabitant and/or children, in which case the law sets certain limits on what you can do.

If the Testator is Married or in a Civil Partnership

A testator can leave all or part of the estate to his/her spouse/civil partner, but regardless of what the will provides, a surviving spouse/civil partner has a minimum entitlement referred to as a “legal right share”; one half of the estate if there are no children, or one third if there are children. (The children have no automatic legal right share). It is not necessary to go to court to have this share paid out because the person administering the will, the executor, has the duty to pay it out of the estate.

The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her legal right share, although if the house is worth more than the legal right share, the spouse/civil partner may have to pay the difference into the deceased’s estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.

If the Testator is Cohabiting

A testator can leave all or part of the estate to his/her cohabiting partner in the will, but there is no obligation to. The surviving partner has no entitlement to a legal right share. (Note: A surviving spouse or civil partner from a previous relationship is still entitled to a legal right share). The surviving partner may however apply to the courts for redress if he or she can prove:

  •  That they have cohabited for 5 years or 2 years if they have a child together.
  • The applicant can prove to the court that a ‘reasonable person’ would accept that they had been in cohabitation.

The court may make ‘proper provision’ for the surviving partner and will give priority to the accommodation and the present and future income needs of the survivor if the estate is sufficient.

B. If you die Intestate (without making a will)…

If you are Married or in a Civil Partnership

  • If there are no children the surviving spouse or civil partner inherits the entire estate.
  • If there are children the surviving spouse or civil partner inherits two thirds of the estate and the remaining one third is divided between the children.
  • If both parties are dead the estate is divided between the children.
  • If there are no relatives at all the estate goes to the State.

If you are Cohabiting

Cohabiting couples have no legal right to each other’s estates. The surviving partner may apply to the court for redress if he or she meets certain requirements (see above). (Note: A surviving spouse or civil partner from a previous relationship is entitled to a legal right share). The remainder is divided equally between all children of the deceased person.

C. Children

All children’s rights are equal whether or not their parents are married. A parent is not obliged, when making a will, to leave anything to his/her children. A child (adult or minor) may apply to the court if he/she considers that “the parent has failed in his moral duty to make proper provision for the child in accordance with his means” when making a will. In the course of their lifetime the parent has a duty to house, clothe, maintain, feed and educate a child and to make some provision “by way of advancement for them in life”. It is easier for a child under 18 to establish the parent’s failure in moral duty but the court will consider all the relevant circumstances. Legal action must be initiated within six months of the grant of probate.

D. The Family Home

What happens to the family home depends on who owns it. If it is owned jointly the surviving partner automatically inherits the deceased partner’s interest in the house. If the couple were married or were in a Civil Partnership there is no tax liability, but if they were cohabiting there may be.

If the deceased has sole ownership of the house then it is part of his or her estate in its entirety.

  • Where there is a surviving spouse/civil partner the house may be used in full or part satisfaction of the legal right share and where it is the family home the court may award it to the surviving spouse even where it is worth more than the legal right share.
  • Where there is a surviving cohabitant an application for redress (see above) can be made.


The making of a will does not cost very much but it can mean that the burden of the surviving partner and any children is greatly lessened and the likelihood of legal action being necessary is greatly reduced.

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A Housing Crisis – Ireland’s families in turmoil – Donal Hynes

Due to the housing crisis the rental market has faced major hikes in costs, with rents in Dublin rising 8.8 percent in the year to March 2016, and by 16 percent in the last twelve months in Cork. This has led on the one hand to a reduction in people’s disposable income which can only be deemed a negative factor in the national economy and more significantly, to an increase in homelessness. FLAC’s (Free Legal Advice Centre) recently published findings reveal that 300 families with 600 children have become homeless in the first three months of this year.

How has the law sought to assist those in financial turmoil?

The Irish legal system has sought to utilise the law to better support those living in poverty. It is evident that the government are not adequately dealing with the crisis as the ESRI has stated that 25,000 houses will need to be built per year, yet currently we are only set to deliver 12,000 in 2016.

The concept of modular housing has been discussed but has inevitably given rise to many questions. Costs in respect of the building of each proposed modular house are reported to have reached €243,000 instead of the €100,000 proposed which is hardly value for money considering they are regarded to be a short term solution? The Personal Insolvency Act 2012 has been enacted to alleviate the predicament of those facing bankruptcy with wider options now available including three new debt resolution measures. These include a debt relief notice (a debt write off), a debt settlement arrangement and a personal Insolvency arrangement. Additionally, MABS (the Money Advice and Budgeting Service) has been instrumental in ensuring those facing mortgage arrears and financial difficulties generally can access advice regarding engagement with financial institutions and relevant support in instances of property repossessions. Strikingly, the number of cases taken on by MABS in 2013 was 24,377 which represents a significant increase in the number of cases relating to mortgage arears in comparison to previous years.

In the rental market legislative change in the form of the Residential Tenancies Act 2015 put a cap on rent increases for 24 months rather than the previous listed twelve. The Act also introduced a 90 day notice period required for any changes to the rental agreement – including value of the rent. Despite these measures, the lack of supply is still a critical issue and without a solution to this problem the housing crisis will not be resolved.

What can be done?

Under Article 43 of the Irish Constitution a right to own private property exists however the right to a home is not provided for. FLAC and the Simon Charity have questioned whether this should be altered to allow the right to social housing for every Irish citizen under a certain income. The creation and recognition of this right would require a referendum of the people to insert a right to housing in the Constitution. In the United Kingdom the policy on social housing provides for the unemployed and also for the more vulnerable sections of society through special schemes like  The concept of a right to housing already exists in South Africa and certain European countries such as France and Scotland where it is enshrined in legislation. It is also stated under the United Nations, Universal Declaration of Human Rights, that the right to housing is an essential right in creating an acceptable standard of living. However Ireland has not signed this declaration and as such is not legally bound by it. Perhaps it is time we follow our neighbouring countries by signing it in order to force the government to deal with the issue, as it would legally be the responsibility of the state to provide social housing for those who require it. This could result in a large-scale building project rather than the mere 12,500 houses promised by 2020 from the local authorities which are clearly inadequate for the needs of the country as currently over 90,000 households are already on waiting lists.

Unfortunately the financial cost to the state makes this an unlikely development, as the estimated 10,000 new builds a year could cost in the region of two billion per annum. Such an obligation would be incredibly financially demanding on Ireland’s tax base due to the debt burden we have already absorbed from the financial institutions. The ESRI has outlined the idea of a land tax on property developers who continue to sit on urban property without tenants or building projects occurring for long periods of time. This proposed tax would deter developers from sitting on these projects and help advance house building at a more rapid pace.

The rising rental sector and the reduction in rental properties is having a domino effect on disposable income along with more serious issues such as health and education amongst families. A substantial shift in direction is required to deal with this issue to avoid a society where poverty and homelessness become common place. The main parties in the Dail have stated that a new form of politics has begun in Ireland, however it remains to be seen if this government has either the stamina or the stomach to address this alarming problem which continues to deepen on a daily basis. Simon Coveney TD has been appointed as Minister for Housing and the Irish government has promised within one hundred days that a new model of affordable rent and an action plan on housing will be delivered to the Irish public. As with the stigma of Irish politics in recent years, we await to see if these will be just more broken promises.


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Cohabitation in Ireland: Happily Never After?

Cohabitation in Ireland: Happily Never After?

Deirdre Kelleher

As the country becomes accustomed to life after the successful Marriage Equality referendum it is worth pausing to consider the lived reality of thousands of Irish couples for whom equality remains elusive.

According to Census 2011, 12% of families in Ireland are made up of cohabiting couples.  That translates to 143,600 couples who are living together but are not married or in a civil partnership.  This is not an insignificant proportion of the population yet whilst these couples may consider themselves a family, the reality in law is significantly different.  In matters such as inheritance, shared property and maintenance couples who choose not to marry are at a significant disadvantage.

Thankfully much has been done over the years to equalise the position of children irrespective of whether they are born to married or unmarried parents.  The Status of Children Act 1987 removed the awful concept of ‘illegitimacy’ – the antiquated term used for children born outside marriage.  It is now well established that, regardless of the marital status of parents, all children can inherit or make claims against a parent’s estate in accordance with the Succession Act 1965.  The 1987 legislation also amended the Family Law (Maintenance of Spouses and Children) Act 1976 to extend the right to maintenance to children “whose parents are not married to each other”.

Thus whilst it is entirely correct that children ought not  suffer discrimination due to the marital status, or lack thereof, of their parents, it would appear that legislators are less inclined to address the discrimination suffered by those adult parents.

In 2010 the Civil Partnership and Certain Rights and Obligations of Cohabitants Act was enacted, introducing a significant level of  protection and rights for same-sex couples previously only available to their married opposite-sex counterparts.  In particular the rights of civil partners in the area of succession were vastly improved, essentially bringing them into line with the entitlements of married couples.  For example civil partners are entitled to a legal right share in their partner’s estate on death and, in the event of intestacy, civil partners are treated the same as married spouses as regards the proportion of the estate that vests in them (depending on the presence or otherwise of children).  For taxation purposes there is no inheritance tax payable either by spouses or civil partners irrespective of the value of the estate they have inherited.

For cohabitants however, the position is much different.  Firstly, there is no automatic entitlement to any share of their partner’s estate, irrespective of the length of the relationship.  A qualified cohabitant i.e. someone who lives with someone else “as a couple in an intimate and committed relationship” for 2 years if they have children, or for 5 years if they don’t, may apply for an order for provision from the net estate with no guarantee that such an application will be successful.  Of course, there is nothing to prevent a qualified cohabitant from leaving a gift or legacy to their partner in their will, but what may give them pause for thought however is that any gift, legacy or benefit valued at greater than €15,075 is subject to tax at 33%.  In this context, the Revenue Commissioners in Ireland equate the position of cohabitants with that of strangers.

Given that in most circumstances, the most valuable asset in any estate is a house, it is also worth noting that cohabiting couples are not protected in law to the same extent as married couples or civil partners.  The Family Home Protection Act 1976 prevents a spouse from selling or otherwise transferring title of the family home to another without the knowledge and consent of the other spouse, irrespective of who owns the house and civil partners now receive the same protection.  Cohabitants who do not jointly own a property however do not have legal protection if the person who legally owns the house decides to sell it, irrespective of the consequences of that decision.

Buying a house together is not a decision to be embarked on lightly but cohabitants must ensure that they are aware of their legal vulnerabilities.  Particular difficulties can arise upon the death of an owning cohabitant; whilst the surviving joint tenant takes full ownership, other forms of ownership can require each person to express their intentions through their last will and testament. Otherwise if they die intestate, their interest will be distributed according to the rules of intestacy in which instance a cohabiting partner has no legal entitlement. Additionally they should be aware of the taxation consequences of bequeathing a share of the property to a cohabitant as this will most likely exceed the maximum tax free threshold.

Finally, married couples and civil partners are legally obliged to maintain each other, both in the course of their relationship and in the event of its breakdown.  Cohabitants however do not enjoy the same protection.  The 2010 Act does introduce a redress scheme that allows qualified cohabitants to apply to the Court for maintenance and other orders if it can be shown that the applicant was financially dependent on their former cohabitant.  It is only possible for such an application to be made within two years of the end of the relationship, whereas former spouses and civil partners can apply at the time of dissolution or at any time thereafter.

It is surely time for Ireland to look to jurisdictions such as New Zealand where the same rules apply to all relationships – marriages, civil unions (same-sex and opposite –sex) and de facto relationships.  In New Zealand, a couple will qualify as a de facto couple if they live together and are over the age of 18.  The length of time required for a cohabitation to be recognised as a de facto relationship is not strictly defined.  For the purposes of the Property (Relationships) Act 1976 for example it is set at 3 years.  Once a couple has reached this point they are entitled to be treated in exactly the same way as married couples or those in civil unions where the relationship ends either by separation or by death and there is relationship property to be distributed.

This approach to modern family formations makes sense and is inherently fairer.  It recognises that people everywhere make different choices, choices that are right for them in their circumstances.  The law in Ireland urgently needs updating to reflect a legal respect for those choices.  As Anthea McTiernan states simply “isn’t it time for everyone to be able to choose not to get married?

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