Family Law Jurisdictional Comparisons, European Lawyer 2013
27 August 2013
1. SOURCES OF LAW
1.1 What is the primary source of law in relation to the breakdown of marriage and the welfare of children within the jurisdiction?
The Constitution of Ireland, specifically Articles 41 and 42, recognises the family as the most important social unit in the State and accord a special position to the ‘family’ based on marriage. While the Constitution dates from 1937, accession to the European Union and other international treaties facilitated the development of modern Irish family law, which is now primarily sourced within a statutory framework. The Judicial Separation and Family Law Reform Act 1989 first introduced the concept of judicial separation and extensive ancillary relief orders. That Act was subsequently amended and enhanced by the Family Law Act 1995 which remains in operation. Divorce was introduced by a narrow majority following a referendum on 24 November 1995 which resulted in new provisions at Article 41 and the enactment of the Family Law (Divorce) Act, 1996.
The Constitution continues to afford special protection to the ‘family’ based on marriage, a proposition which seems outdated given the recent introduction of civil partnership and a protective statutory regime for certain ‘qualified’ cohabitants, see the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010.
1.2 Which are the main statutes governing matrimonial law in the jurisdiction?
The following are the main statutes (in alphabetical order):
- Adoption Act 2010
- Child Abduction and Enforcement of Custody Orders Act 1991
- Child Care Act 1991
- Child Care (Amendment) Act 2011
- Children Act 1997
- Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
- Civil Registration (Amendment) Act 2012
- Domestic Violence Acts 1996-2002
- Domicile and Recognition of Foreign Divorces Act 1986
- Family Home Protection Act 1976
- Family Law Act 1981
- Family Law Act 1995
- Family Law (Divorce) Act 1996
- Family Law (Maintenance of Spouses and Children) Act 1976
- Guardianship of Infants Act 1964
- Maintenance Act, 1994
- Judicial Separation and Family Law Reform Act 1989
- Status of Children Act 1987
2.1 What are the main jurisdictional requirements for the institution of proceedings in relation to divorce, property and children? Domicile and/or ordinary residence in Ireland for a period of 12 months prior to the application forms the basis for jurisdiction in respect of the Judicial Separation and Family Law Reform Act 1989 (the 1989 Act), the Family Law Act 1995 (the 1995 Act), the Family Law (Divorce) Act 1996 (the 1996 Act) and (insofar as it relates to civil partnership), the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (the 2010 Act) (together the Family Law Acts).
The Irish courts also have jurisdiction where the provisions of the revised Brussels II Regulation (Council regulation) (EC) No. 2201/2003 of 27 November 2003 (the Regulation) concerning jurisdiction and the recognition nd enforcement of judgments in matrimonial matters and in matters of parental responsibility apply. The Regulation is now generally cited in Irish family law proceedings and has introduced a number of changes to the asis for jurisdiction in respect of divorce, separation, nullity and also in proceedings regarding children. Unfortunately, its provisions can result in a ‘race for the line’ as each party attempts to acquire a preferred jurisdiction.
The Circuit Court and High Court each have full jurisdiction to deal with proceedings for divorce, separation, nullity and dissolution of civil partnership. Both courts also have jurisdiction to deal with preliminary applications, interim applications and applications for ancillary (including financial) relief. ‘Ample resource’ cases and/or more complex matters are generally instituted in the High Court whereas the Circuit Family Court deals with a higher volume of family law matters. The District Court, being the lowest court, deals with maintenance, guardianship, custody, access and domestic violence applications.
3. DOMICILE AND HABITUAL RESIDENCE
3.1 Explain the concepts of domicile and habitual residence as they apply to the jurisdiction Domicile and habitual residence are not specifically defined in either common law or statute. Domicile is generally understood s the country that a person treats as his permanent home and to which he has the closest legal attachment. The person cannot be without a domicile and cannot have two domiciles at once. At birth an individual acquires a domicile of origin which he retains until he acquires a domicile of choice in its place. A domicile of choice is acquired by making a home in a country with the intention that it should be a permanent base. It may be acquired at any time after a person becomes 16 and can be replaced at will by a new domicile of choice. Habitual residence is interpreted in accordance with European case law which has been endorsed by the Irish courts and applied in individual cases. The term has been interpreted as meaning the place or country in which a person has his home with an intention to reside there, coupled with a physical presence for a reasonable length of time. The court has held that habitual residence is not a ‘term of art’, but a matter of fact, to be decided on the evidence in each particular case. See McGuinness J.’s decision in CM & OM v Delegacion de Malaga & Others  2 IR 363. For further judicial discussion on this subject see PAS v AFS  IILRM 306, SR v MMR IESC 7, AS v CS  IEHC 345 and BU v BE  IEHC 77.
4. CONFLICT OF LAW/APPLICABLE LAW TO BE APPLIED
4.1 What happens when one party applies to stay proceedings in favour of a foreign jurisdiction? What factors will the local court take into account when determining forum issues? Where proceedings are issued in more than one member state, the Regulation provides that the court properly and first seised with proceedings retains that jurisdiction and any second or subsequent court must decline jurisdiction in favour of the first court. The aim of the Regulation is to avoid competing actions and the creation of ‘limping’ divorces, incapable of recognition in other jurisdictions. The doctrine of forum non conveniens has limited application in Ireland.
The Irish courts have followed the reasoning applied in Owusu v Jackson and Others  EUECJC 28102 with regard to mandatory application of the Brussels Convention. At 46, the ECJ held: ‘The Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that Convention on the grounds that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.’ The Irish courts apply ‘lex fori’ ie, Irish domestic law, in determining family law applications. Irish judges may have regard to foreign law in the context of divorce and ancillary relief applications, however, foreign law is not applied even between two foreign nationals. In this regard, Ireland has opted out of ‘Rome III’ which aims to establish a consistent set of rules throughout the EU party member states. The Maintenance Regulation (Regulation (EC) No 4/2009 (given effect in Ireland through SI. No. 274/2011) (the EU Maintenance Regulation) became effective in Ireland in June 2011 and Ireland has also opted into the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations in member states and in this sense an element of applicable law has now been introduced in Ireland.
B. PRE- AND POST-NUPTIAL AGREEMENTS
5. VALIDITY OF PRE- AND POST-NUPTIAL AGREEMENTS
5.1 To what extent are pre- and post-nups binding within the jurisdiction? Could you provide a brief discussion of the most significant recent case law on this issue
There remains considerable discussion and uncertainty with regard to the status of pre- and post-nuptial agreements in Ireland. While no legislation or case law exists, there is a sense that the jurisprudence is shifting towards a greater emphasis on self-determination provided certain procedural safeguards are observed. The Constitution continues to accord a special place to the ‘family’ based on marriage and in that sense may continue to provide a basis for many of the traditional social and moral objections. More recently a number of factors have arguably diminished the strength of these objections. In particular, the introduction of divorce in 1997 and the enactment of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which makes provision such that cohabitants can now regulate financial matters by written agreement.
An expert study group was established by the Irish Government in 2007 for the purpose of reviewing the role and status of pre-nuptial agreements. This comprehensive report recommended the introduction of legislation such that the courts would be required to have regard to pre-nuptial agreements without the terms of such an agreement becoming automatically determinative of the outcome. The report makes recommendations on the formalities necessary for making pre-nuptial agreements including proper disclosure, provision of independent legal advice and execution of the agreement at least 28 days prior to a marriage ceremony. While the recommendations set out in the report have not yet been implemented, pre-nuptial agreements are becoming more prevalent, particularly for wealthier clients.
C. DIVORCE, NULLITY AND JUDICIAL SEPARATION
6. RECOGNITION OF FOREIGN MARRIAGES/DIVORCES
6.1 Summarise the position in your jurisdiction
Where the formal legal requirements of the state where the marriage was celebrated are observed and where both parties have capacity to marry according to the law of their domicile at the time of marriage, a foreign marriage will be recognised as valid in the Republic of Ireland. Where such a marriage does not fall within the general understanding of marriage in Ireland, it may not be recognised on public policy grounds. For instance, in the context of a polygamist marriage.
Special rules apply in the context of recognition of foreign divorce, according to the date when the foreign divorce proceedings were issued. A foreign divorce obtained prior to 2 October 1986 would be subject to common law rules and the Irish courts will now recognise such a decree in circumstances where either or both spouses were domiciled in the foreign state. In some cases, the High Court has recognised such a divorce on the basis of the residence of either spouse, although the precise parameters of such recognition remain unclear.
A foreign divorce obtained on or after 2 October 1986, would be subject to the provisions of the Domicile and Recognition of Foreign Divorces Act 1986 (the 1986 Act). In such cases, the Irish courts will recognise a foreign divorce where either spouse was domiciled in the foreign state at the date of commencement of the proceedings. Special rules apply with regard to cases concerning England and Wales, Scotland, Northern Ireland, the Isle of Man or the Channel Islands, such that the divorce is recognised if either party was domiciled at the relevant time in any of those jurisdictions. On or after 1 March 2001 (or 1 March 2005 in respect of newer member states), foreign divorces granted in the EU member states (excluding Denmark) receive automatic recognition based on a number of grounds including residence. Where there is a dispute, it is possible to make an application under the 1995 Act for the purpose of seeking a formal declaration as to marital status.
7.1 Explain the grounds for divorce within the jurisdiction (please also deal with nullity and judicial separation if appropriate)
Divorce was introduced in Ireland as of 27 February 1997, following a referendum which was won by a narrow majority which resulted in a new constitutional provision and the introduction of the Family Law (Divorce) Act 1996 (the 1996 Act). A decree of divorce can only be granted where:
- the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years;
- there is no reasonable prospect of a reconciliation between the spouses;
- such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law.
As such, there is no requirement to illustrate ‘fault’ for the purpose of grounding an application for divorce in Ireland. Formal evidence must be given to the court in respect of the period spent living apart, although the courts have allowed for periods of time spent living apart ‘while under the same roof’. In most cases, it is necessary to bring judicial separation proceedings in the first instance, the grounds for which are set out in section 2 of the 1989 Act and include adultery, unreasonable behaviour, living apart for a period of three years (or one year where the Respondent consents) and desertion for a period of one year. Where agreement is reached on the terms of judicial separation, same is usually granted on a no-fault basis, ie, no normal marital relationship for a period of one year prior to issue of proceedings. Behaviour is not generally taken into account unless same is ‘gross and obvious’ and where it would be unjust to disregard it.
Applications for a decree of nullity are less frequent since the introduction of divorce and can be made where a marriage is ‘void’ or ‘voidable’. In Irish law, a marriage may be void due to lack of capacity, non-observance of formalities or absence of consent. Grounds rendering a marriage voidable include impotence and incapacity to enter into and sustain a normal marriage relationship. It is not possible to seek ancillary relief on foot of a decree of nullity, the effect of which is to declare that no marriage ever existed between the parties.
8. FINANCES/CAPITAL, PROPERTY
8.1 What powers does the court have to allocate financial resources and property on the breakdown of marriage?
Initially contained in the 1989 Act and then substantially replaced by the 1995 Act, the court has wide-ranging powers to make financial relief orders in the context of judicial separation. The 1996 Act replicates many of these provisions in the context of divorce. Whether dealing with judicial separation or divorce, the court has extensive powers to make orders including for the sale or transfer of the any property or assets owned by either or both of the spouses.
Preliminary and interim relief
Once judicial separation/divorce proceedings are instituted, it is possible to apply for preliminary and/or ancillary relief including maintenance pending suit and inter alia freezing orders. Financial provision The family law courts can make a number of orders including:
- maintenance (periodical payment) orders;
- lump sum orders;
- property adjustment orders for a transfer of any property or assets between the spouses;
- orders conferring on one spouse an exclusive right to reside in the family home;
- orders for the sale of property;
- financial compensation orders, regarding life cover as security for maintenance payments or otherwise;
- pension adjustment orders;
- orders extinguishing Succession Act rights and dealing with relief orders following death.
There is no provision for a ‘clean break’ in Irish law whether in the context of judicial separation or divorce. Recent case law such as G v G  IESC 40, a decision of the Supreme Court delivered on 19 October 2011, is helpful as the Supreme Court remitted the case to the High Court for alteration and stressed that privately reached ‘full and final’ separation agreements should be given significant weight in divorce orders. This case is also authority for the separate treatment of inherited assets. In essence, the court’s obligation whether in the context of judicial separation or divorce is to ensure that ‘proper provision’ is made for the spouses and any dependent children. Section 16 of the 1995 Act and Section 20 of the 1996 Act set out the factors to which the court must have regard when considering whether or not to grant financial relief orders. These include the financial position of each party, the standard of living enjoyed by the parties, conduct where it would be unjust to disregard it, contributions made by each spouse, etc. While there are no specific rules governing assessment of ‘proper provision’, the seminal case T v T  3 IR 335 referred to a ‘benchmark of fairness’ for the dependent spouse as being between one-third and one half of the net assets.
It should be noted recent cases have departed from this yardstick depending on the precise circumstances, although it remains a helpful guideline. While the ‘yardstick of fairness’ and the factors contained in the legislation offer helpful guidance, they are not determinative of the outcome in any given case. Judicial discretion is exercised widely in these matters and will often be heavily influenced by the precise facts and circumstances of the case. Discovery and exchange of financial reports/information is imperative in financially complex cases. For instance, it may be necessary to bring interim applications for discovery orders. More recently, the Irish High Court and the Circuit Family Court have each introduced processes of case management/progression which are designed to ensure that discovery and other pre-trial matters are dealt with prior to listing of the matter for hearing. This process also assists in the management of settlement discussions as each party has greater clarity as to the ‘net asset’ position.
The approach of the Irish courts in ancillary relief applications has been neatly summarised in the High Court decision of MB v VB (Birmingham J, 19 October 2007 (unreported)). In considering the concept of ‘proper provision’ the court wrote that ‘the Supreme Court [in T v T] eschewed any adherence to any particular mathematical formula, making it clear that there was no automatic principle of assets being distributed on the basis of equality and that equally, on the other side of the coin, the claiming spouse was not confined to the share of the assets that would be required to meet their reasonable needs’. The court further commented that ‘there is no right percentage to be applied… I have not approached this case on the basis of deciding on any particular percentage, but rather I have considered percentages only at the final stage and then done so as a form of safety check, so as to confirm to my satisfaction that the approach I was taking was not an unreal one’. Recent financial difficulties and the collapse of the Irish property market have resulted in a number of applications for variation of previous maintenance/capital orders, many of which have been successful. See AK v JK IEHC  341 with regard to differentiation between ‘fine tuning applications’ and ‘strategic applications’ where variation is sought in a postseparation context. See also D v D  IESC 18 where the Supreme Court allowed the husband to adduce new evidence to show a material change in circumstances (namely the reduction in the value of agricultural land). The matter was remitted to the High Court for a determination of how the assets should be divided.
9.1 Explain the operation of maintenance for spouses on an ongoing basis after the breakdown of marriage
On application for judicial separation or divorce, the courts may grant a maintenance order for the support of a financially dependent spouse either as a periodical payment, a secured periodical payment or a lump sum payment. The amount of the payment should be specified including the times at which same are to be made. Consent orders will often provide for increases in accordance with the Consumer Price Index. Such maintenance orders are subject to variation, discharge or suspension in circumstances where they are successfully reviewed at a later date. The court also has power to make retrospective payments in respect of maintenance, although this seldom occurs. While typically open-ended, maintenance orders can be limited in duration. In addition, in the context of separation or a divorce, the court can make orders for maintenance pending suit or interim maintenance. Alternatively, the court can make a stand-alone maintenance order under the 1976 Act, even where there are no proceedings for separation/divorce in existence.
The obligation to maintain a dependent spouse continues after divorce, even where no maintenance order was made at that time. The obligation of spousal maintenance only terminates upon the death or remarriage of the receiving spouse although a court is unlikely to impose a maintenance payment where a dependent spouse is cohabiting with a new partner, in circumstances similar to that of husband and wife. The Circuit Family Court and High Court have unlimited jurisdiction with regard to the level of maintenance orders for spouses and children. There are limitations as to the level of maintenance orders which can be made in the District Court.
9.2 Is it common for maintenance to be awarded?
Maintenance is frequently awarded in ancillary relief applications upon judicial separation and divorce where one of the spouses is financially dependent on the other. In recent times, there is a greater emphasis on the ability of the dependent spouse to re-train and return to remunerative employment. Where there are ‘ample resources’ and valuable assets available for distribution, maintenance is unlikely to be ordered.
9.3 Explain and illustrate with reference to recent cases the courts’ thinking on maintenance
Maintenance orders generally form part of a comprehensive range of ancillary relief orders, whether made by agreement or order of the court. See CD v PD (High Court, O’Higgins J, 15 March 2006) and MB v VB (High Court, Birmingham J, 19 October 2007 (unreported)). There is no formula for calculation of appropriate maintenance payments and the test is what constitutes ‘proper’ maintenance support for a spouse and/or any dependent children. The court would have regard to the financial position of each party and the needs of the dependent spouse/ child in reaching a fair assessment of appropriate maintenance. Reference is made to the High Court decision in JC v MC (No 2) (Abbott J, 14 November 2007 (unreported)) where an applicant wife sought additional financial relief subsequent to the grant of a ‘full and final’ decree of divorce, on the basis of a significant improvement in the husband’s financial circumstances. The court held that it had jurisdiction to increase the periodical payments order but not the lump sum order. Abbott J stated: ‘I am satisfied having carefully considered the evidence that this figure will be sufficient to enable the ex-wife to cater for her own needs and also to keep house for her adult children. It also gives her scope to build up security (by not having to dip into capital) for her future, to cater for any normal contingencies of life and particularly the necessity to provide security in the event of the earlier death of the ex-husband. To avoid needless applications for a review of this figure, the figure should be reviewed annually in accordance with the Consumer Price Index’. See also H v D  IEHC 233 in which Irvine J held that a reduction in income did not automatically entitle the applicant to a proportionate reduction in his maintenance payments unless he could demonstrate that the maintenance so reduced would be sufficient to meet the ongoing needs of the respondent and their two children.
10. CHILD MAINTENANCE
10.1 On what basis is child maintenance calculated within the jurisdiction?
An application for child maintenance can be made independentlyor ancillary to judicial separation/divorce proceedings in respect of a 'dependent child’. A child remains dependent under Irish law until they have attained the age of 18 years or 23 years, provided they continue in fulltime education. This obligation arises regardless of the marital status of the parents and/or whether a father enjoys rights of guardianship. The level of maintenance will be determined following consideration of the income and assets of each parent, the needs of the child and in the marital context, the standard of living enjoyed by the parties prior to separation, together with the other factors set out in Section 16 of the 1995 Act and Section 20 of the 1996 Act.
11. RECIPROCAL ENFORCEMENT OF FINANCIAL ORDERS
11.1 Summarise the position in your jurisdiction
The EU Maintenance Regulation (Regulation (EC) No 4/2009) (the EU Maintenance Regulation) with effect from June 2011 together with the Hague Protocol now regulate maintenance obligations and recognition of cross border orders. These orders were previously recognised and enforced pursuant to the Brussels I Regulation which also facilitated enforcement of lump sum orders and pension orders, where the purpose was to make provision for maintenance. These provisions have now effectively been replaced by the provisions of the EU Maintenance Regulation. The provisions of the revised Brussels II Regulation are confined to recognition and enforcement of decrees of divorce, separation and nullity throughout these states and as such do not assist with recognition and enforcement of ancillary or financial relief orders. Having said that, choice of jurisdiction remains pivotal in many cases concerning international families and undoubtedly has an impact on financial issues.
The Maintenance Act 1994 in effect ratified the 1990 Rome Convention, and the 1956 New York Convention between member states of the United Nations on the recovery abroad of maintenance. Each of these Conventions, together with the EU Maintenance Regulation, provides for the establishment of a Central Authority in each state. As such, a person with a maintenance order can apply through the Central Authority in his or her state for enforcement through the Central Authority in the other jurisdiction. Enforcement proceedings are conducted in accordance with the provisions of the Convention or EU Maintenance Regulation, whichever is applicable. In Ireland, the existing maintenance enforcement procedure is utilised by the Irish Central Authority. The EU Maintenance Regulation simplifies the procedure as between member states. For enforcement of non-EU orders, an application is first made to the Master of the High Court for a determination as to its enforcement under Section 5 of the Jurisdiction of Courts and Enforcement of Judgments Acts 1988 and 1993 (The Brussels and Lugano Conventions). Enforcement proceedings are thereafter generally processed through the District Court.
12. FINANCIAL RELIEF AFTER FOREIGN DIVORCE PROCEEDINGS
12.1 What powers are available to make orders following a foreign divorce?
Part III of the 1995 Act provides for applications for financial ‘relief orders’ on foot of the foreign decrees of divorce or separation. These orders are more limited in scope than the ancillary orders available to an applicant for domestic divorce or separation. Special leave must first be sought from the court prior to bringing such an application. In determining an application for relief, the court must consider several factors including the connection the spouse may have with the state, existing financial arrangements and the possibility of seeking relief in the original state. There are very few reported decisions on Part III to date. Reference is made to MR v PR (High Court, Quirke J, 5 July 2005), where the court held that the applicant wife was entitled to financial relief as it was satisfied that no remedy was available to her following grant of a Spanish decree of divorce where full disclosure had not been made by the husband. This decision is confirmed in the later decision of PMY v PC (High Court, Sheehan J, 23 November 2007) where relief was refused on the basis that the wife was not precluded from seeking financial relief, including maintenance, in Hong Kong, where the original divorce had been granted.
13. CUSTODY/PARENTAL RESPONSIBILITIES
13.1 Briefly explain the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage
In all cases involving children in Ireland, their best interests and welfare are considered to be the guiding and paramount consideration in all matters affecting them (Guardianship of Infants Act, 1964, section 3). Where parties are married, joint custody is assumed and as such orders directing joint custody are generally made by the court on the basis that primary care and control is with one of the parents with days and times for access for the other parent set out in detail, or by using the formula ‘as agreed between the parties from time to time’. In non-marital cases, the mother is the sole legal guardian and custodian of the child(ren). The father can apply to court for guardianship and/or custody and access orders. Alternatively, the mother can appoint the father guardian by statutory declaration. Where there is a dispute between the parties as to the most appropriate custody/access arrangements, in the context of proceedings before the High or Circuit Family Court, the court may direct a section 47 assessment by a child specialist. Generally, the court will be guided by the specialist, in reaching a determination on these issues. It should be noted that there is no panel of child specialists and access to these services is generally limited to litigants who are in a financial position to discharge associated costs.
13.2 Briefly explain the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage
Whether between married parents or unmarried parents, it is usual to put in place interim access arrangements immediately following the breakdown of a relationship, whether by agreement or by court order.
Depending on the circumstances of the case, it may be necessary to seek supervision of access, for example, where there is a serious risk to the welfare of the dependent children, on account of the behaviour of one of their parents. Where there is a dispute with regard to access arrangements, the court may direct an assessment to be carried out by an appropriate child specialist pursuant to section 47, as outlined above. Such provision is not generally available in the context of non-marital children. Access to legal aid is limited and can result in difficulties in enforcement of access/contact arrangements.
14. INTERNATIONAL ABDUCTION
14.1 Summarise the position in your jurisdiction
With effect from 1 October 1991, the Child Abduction and Enforcement of Custody Orders Act 1991 incorporated both the Hague and Luxembourg Conventions on International Child Abduction into Irish law. The revised Brussels II Regulation also applies to the Republic of Ireland with regard to international child abduction. While the Convention continues to apply, the Regulation provides that its provisions take precedence in cases of abductions between member states. As with the Hague Convention, the Regulation aims to prevent parental child abduction between member states and, where such abduction takes place, establishes a system to ensure the prompt return of the child to their member state of habitual residence. Child abduction cases in Ireland are heard in the High Court and legal aid is available to applicants in these cases. The Irish courts adopt a consistent approach and endeavour to return the child speedily to the country of habitual residence. Refusal to return is considered where a grave risk defence is mounted. The courts do not generally hear direct evidence from children in these proceedings, although child specialists and/or guardian ad litems may give evidence in certain circumstances. Again, there is no panel of child specialists available to the court in these cases.
Unmarried fathers who do not have any automatic rights of custody and guardianship are somewhat vulnerable in the Irish context. Recent case law held that the removal of a child in the absence of the consent of an unmarried father (who had not been appointed guardian) is not a wrongful removal as a breach of ‘rights of custody’ had not occurred. Another case found that where the unmarried father had applied to the courts for guardianship and/or access, the court itself has ‘rights of custody’. See CM v Delegacion de Malaga  21R 363; In re J (A Minor) (Abduction)  2AC 562; In re H (Abduction: Custody Rights)  2AC 476; R v R  IESC 7 and AS v MS (child abduction)  IR 341; A.BU v J.BE  IEHC 77; AU v TNU  IESC 39 which refers to Baroness Hale’s decision in Re D (A Child) (Abduction: Rights of Custody)  IAC 619, ‘there is now a growing understanding of the importance of listening to the children involved in children’s cases’. Also see MN and RN  IEHC 382 where Finlay Geoghegan J. states: ‘A mandatory positive obligation is placed on a court by Article 11(2) to provide a child with an opportunity to be heard, subject only to the exception where this appears inappropriate having regard to his or her age or degree of maturity’. (Follows Re F  EWCA Civ 468). Also see JMcB and LE  IEHC 123.
15. LEAVE TO REMOVE/APPLICATIONS TO TAKE A CHILD OUT OF THE JURISDICTION
15.1 Summarise the position in your jurisdiction
Where a parent applies to a court seeking liberty to relocate or remove a child/ children to another jurisdiction, the court will determine the matter based on the best interests principle. The court will also consider the best interests of the child in a pragmatic sense having regard to a number of factors set out in the case law. The courts will generally require information on the arrangements which have been made in the proposed new location, with regard to accommodation, education and the availability of support networks. Where the court grants leave to relocate, it will endeavour to ensure ongoing contact with the other parent. It is often envisaged that orders will be obtained in similar terms in the new jurisdiction depending on mechanisms available for enforcement.
15.2 Under what circumstances may a parent apply to remove their child from the jurisdiction against the wishes of the other parent?
There are an increasing number of cases in Ireland on this subject. At a minimum, very compelling reasons for relocation are required. Flood J sets out factors to which the court should have regard in a ‘leave to remove’ application. See EM v AM (High Court, 16 June 1992 (unreported). These include the following criteria:
‘(1) Which of the two hypothetical outcomes will provide the greater stability of lifestyle for the child.
(2) The contribution to such stability that will be provided by the environment in which the child will reside, with particular regard to the influence of his extended family.
(3) The professional advice tendered.
(4) The capacity for, and frequency of, access by the non-custodial parent.
(5) The past record of each parent, in their relationship with the child insofar as it impinged on the welfare of the child.
(6) The respect, in terms of the future of the parties, to orders and directions of this Court’.
See also GF v DC (Circuit Court, McMahon J, 10 May 2007 (unreported)), KB v LO’R (High Court, Murphy J, 15 May 2009 (unreported)), PC v PW  IEHC 469 and UV v VU  IEHC 519 in which McMenamin J considers the criteria set out in EM v AM in addition to factors such as financial implications, the children’s views, schooling, healthcare and an overall appraisal.
E. SURROGACY AND ADOPTION
16. VALIDITY OF SURROGACY AGREEMENTS
16.1 Briefly summarise the position in your jurisdiction
There is no legislation governing surrogacy in Ireland. Surrogacy agreements are unlikely to be valid in the Republic of Ireland. As a result, Irish couples desperately wanting to have children through surrogacy are driven overseas for fertility treatment. The Minster for Justice, on 21 February 2012, published a guidance document (see www.justice.ie) for Irish couples on surrogacy arrangements made abroad. The purpose of the guidance document is to provide information to prospective commissioning parents on the steps necessary to ensure that a child born abroad through a surrogacy arrangement may enter and reside in the state. It is intended to develop legislative proposals in the coming years for the purpose of comprehensively dealing with this complex area. In a recent case before the High Court, the genetic parents on behalf of their two small children born to a surrogate mother sought to have their names listed as the children’s parents on their birth certificates. Declarations were sought under the Status of Children Act, that their genetic mother is their legal mother and should be named as such on the birth certificate. The surrogate mother consented to the application. The Registrar General defended the action, stating that the policy in Ireland is that the name of the woman who gave birth to a child, and not the genetic mother, is the name placed on the child’s birth certificate. In a decision handed down by the High Court on 5 March 2013, the genetic parents were successful in their application to have the biological (based on DNA testing) mother recognised as legal mother. Unfortunately, this decision is likely to be appealed to the Supreme Court. It is submitted that the continued lack of a legislative framework for surrogacy arrangements creates unnecessary risk, uncertainty and costs for those involved.
17.1 Briefly explain the legal position in relation to adoption in your jurisdiction. Is adoption available to individuals, cohabiting couples (both heterosexual and same-sex)?
Adoption is on a statutory basis pursuant to the provisions of the Adoption Act 2010. For eligibility, a child (between six weeks and 18 years) must be an orphan, ‘illegitimate’ (until Constitutional amendment is enacted) or abandoned. The father’s consent is required in respect of a non-marital child. Reduced availability has increased demand for the adoption of overseas children. The child must come within the jurisdiction of the courts and it must be demonstrated that the order, if granted, would be compatible with the principle of the ‘welfare of the child as the first and paramount consideration’. Pursuant to section 3(1) of the Adoption Act 2010, the law now states that a ‘parent’, in relation to a child, ‘means the mother or father or both of the child, whether or not they are married to each other’. Section 3(2) of the 2010 Act makes it clear that references to ‘adopters’in that Act shall ‘include references to an adopter’. As such adoption by a single applicant is now permitted and is for the first time provided for on a statutory basis. Adoption is not available to same-sex and/or cohabiting couples other than on a sole applicant basis. The prospective adopters are assessed by the Health Service Executive as to their eligibility and suitability. Statutory conditions relating to residence, marriage, religion and minimum age must be satisfied if adopters are to satisfy the eligibility criteria. Neither Irish domicile or nationality is required. Other conditions relating to factors such as maximum age, quality of and lifestyle must also be met by the adopters.
18.1 What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the 2010 Act) entered into force in Ireland on 1 January 2011. In addition to introducing civil partnership for same-sex couples, this legislation introduced a new statutory regime for cohabiting couples, whether same-sex or opposite sex, provided they are not married or civilly partnered to each other. The Act establishes a ‘presumptive’, ‘redress’ or ‘safety net’ scheme for certain cohabiting couples. The aim is to protect the economically dependent or vulnerable party at the end of a long-term cohabiting relationship, whether on relationship breakdown or death. ‘Qualified’ cohabitants can apply to court for certain financial relief, including property adjustment orders, compensatory maintenance orders, pension adjustment orders and other orders for provision from the estate of a deceased cohabitant. ‘Qualified cohabitants’ are defined as cohabitants residing together as an unmarried couple in an intimate relationship for a period of five years, or two years where there is a child or children of the relationship. The orders available to qualified cohabitants are not as extensive as those available to spouses and/or civil partners. The claiming partner must illustrate financial dependency and the court must have regard to the factors contained in the legislation which include the rights of other parties (such as any spouses or civil partners in existence), the duration of the relationship and the contributions made by each cohabitant, whether financial or otherwise. Section 201 of the Act provides for regulation of financial matters by written agreement between cohabitants thereby facilitating ‘opt out’ from the statutory regime. The Act provides that such an agreement will be valid and enforceable where it is in writing, signed by both cohabitants with the benefit of independent legal advice and where it accords with contract law.
G. FAMILY DISPUTE RESOLUTION
19. MEDIATION, COLLABORATIVE LAW & ARBITRATION
19.1 Briefly summarise the non-court-based process available in your jurisdiction and the current status of agreements reached under the auspices of mediation, collaborative law and arbitration
Prior to embarking on proceedings, there is a statutory obligation on solicitors to provide their clients with information and advice on the alternatives available to include counselling and mediation. A number of family lawyers have trained as mediators and collaborative lawyers, and as such these services are now available to clients. A ‘proposed agreement’ reached through either the mediation process or the collaborative process is not legally binding and as such lawyers are usually instructed for the purposes of drafting consent terms or a deed of separation. Arbitration is not generally used in family law disputes though this is an area that may develop in the coming years.
19.2 What is the statutory basis (if any), for mediation, collaborative law and arbitration in your jurisdiction? In particular, are the parties required to attempt a family dispute resolution in advance of the institution of proceedings?
At the current time, there is no statutory basis for either mediation or collaborative law. The draft General Scheme of The Mediation Bill 2012 is intended to introduce a definition of ‘mediation’ which accords with that contained in the EU Mediation Directive 2008/52/EC, that is, ‘mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. There is no concept of requiring the parties to attempt a family dispute resolution in advance of instituting proceedings, although in practice, most good family law solicitors would tend to seek resolution by agreement, in the first instance. This might take place in the form of mediation, collaborative practice or traditional negotiations at a neutral venue. Solicitors are obliged to certify prior to issue of judicial separation or divorce proceedings, that they have advised and given their clients information on the alternatives available including counselling, mediation and negotiation of a deed of separation.
20. CIVIL PARTNERSHIP/SAME-SEX MARRIAGE
20.1 What is the status of civil partnership/same-sex marriage within the jurisdiction?
Ireland does not recognise same-sex marriage, however, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the 2010 Act) introduced civil partnership for same-sex couples and provides for extensive rights and obligations once a civil partnership has been registered.
20.2 What legislation governs civil partnership/same-sex marriage?
The 2010 Act governs civil partnership and also sets out the grounds on which civil partnership may be dissolved. As with marriage, civil partnership only ends on the death of one of the civil partners or on dissolution by the court. The Act makes provision for the formalities and procedures surrounding registration of civil partnership and legal effect is given to arrange of rights and entitlements that flow from civil partnership. These include provision for maintenance, protection of the shared home, inheritance entitlements and pension provision. The Act also makes provision for the legal right share of the civil partner which are broadly similar to the provisions applicable to spouses. In addition, certain classes of foreign relationship are also recognised under the provisions of the Act on foot of further ministerial order. No clear guidance is given on the manner in which children issues should be determined and the 2010 Act is silent on these matters.
21. CONTROVERSIAL AREAS/RAPIDLY DEVELOPING AREAS OF LAW
21.1 Is there a particular area of the law within the jurisdiction that is currently undergoing major change?
A recent constitutional referendum concerning children’s rights, Thirty- First Amendment of the Constitution (Children) Bill 2012 was held on 10 November 2012. While the proposal was approved by voters, the signing of the amendment into law has been delayed by a legal challenge brought in the High Court. The amendment seeks to reinforce the paramountcy principle, regardless of the marital status of a child’s parents, thereby facilitating adoption of marital children in appropriate circumstances. As outlined above, the recent introduction of the 2010 Act has effected very significant changes in the legal and social landscape in Ireland, for both civil partners and cohabiting couples. The Irish Law Reform Commission is also currently reviewing the area of rights and entitlements of unmarried fathers and with regard to families generally.
21.2 Which areas of law are most out of step? Which areas would you most like to see reformed/changed?
In the Report on Legal Aspects of Family Relationships (LRC CP55-2009), a more comprehensive and inclusive definition of the ‘family’ was urged, to take account of the changing reality of modern Irish society and family life. This includes reform concerning the rights and responsibilities of civil partners, stepparents, grandparents, co-habitants, and other members of the contemporary family in Ireland, taking into account the best interests and welfare of children.
The Report also includes a draft Children and Parental Responsibility Bill, which would replace the Guardianship of Infants Act, 1964. New terms ‘parental responsibility’; ‘day-to-day care’ and ‘contact’ should replace the terms guardianship, custody and access currently used in the Guardianship of Infacts Act, 1964. This would remove the ‘possessive’ element present in the current terms and is more consistent with the terms used in many other states and in international instruments to which Ireland is a party.
Recent cases before the courts have also opened up the definitions of ‘marriage’ and ‘family’ for discussion. See JMcD and PL and BM  IESC 81 in which a sperm donor unsuccessfully sought to be appointed as guardian (although as he was known to the parties he was granted access) of his child in circumstances where the child was being raised by a same-sex couple. The rights of the homosexual de facto family were considered in the context of the European Convention on Human Rights Act, 2003. Lawyers and clients alike have recently called for the introduction of legislation with regard to pre-nuptial agreements. Many calls have also been made to legislate in the area of assisted reproductive technologies as there is currently no legislation in place to regulate the myriad legal, social and ethical issues which arise in this context. (See Mary Roche & Ors v Thomas Roche, Sims Clinic Ltd & A.G.  IESC 10).
Furthermore, given the complex rules that apply in the recognition of foreign divorces, a simplification and clarification of these rules would be greatly welcomed. At a consultative seminar organised by the Department of Justice on 6 July 2013, Minister for Justice, Alan Shatter, outlined his vision for a new structure for family courts. A dedicated and integrated family court structure is proposed which would consist of a lower family court of limited jurisdiction and a higher court of unlimited jurisdiction. Both courts would be staffed by specialist judges. A separate court of appeal would be established. Finally, there are signs that a body of law is starting to develop surrounding the interaction of family law and social networking websites on the internet. Postings on these websites are becoming a feature of an increasing number of cases raising questions with regard to defamation, discovery, privacy and child protection. See P v Q  IEHC 593 in which White J accepted the principle of Constitutional Law with regard to inadmissibility of evidence illegally obtained but states that this and rights of privacy have to be balanced against the welfare and interests of a child.
Extensive discovery orders were affirmed in respect of the wife’s email and mobile phone accounts. The discovery so ordered could not be used for the purpose of the financial proceedings but only in respect of matters pertaining to the welfare of the child.
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