It used to be the case in Ireland that getting engaged to somebody was akin to entering into a legally binding contract. Nowadays, though you may be seen as having a moral obligation to that person, you no longer have a legal obligation. However, as will be discussed, this does not mean that getting engaged is without legal consequence.
Category Archives: Family Law
While we all may have heard of a “common law marriage”, whereby a couple live together as husband and wife without actually being legally married, the concept is not recognised under Irish law. Although the family is recognised and protected in Article 41.1 as “the natural primary and fundamental unit group of Society”, the State still holds the institution of marriage above all non-marital unions, as outlined in my article on the rights of the marital family. Nonetheless, non-marital families are afforded some protections and rights under Irish law.
Historically, one of the relationships with the fewest amount of rights was that of unmarried/natural father and his child. While a natural father’s rights have increased dramatically in recent years, they still do not come close to those of a father who is married to the mother of the child. Indeed, a natural father has no constitutional rights to his child whatsoever, so it is to statute that we must turn. Continue reading
Courts Bill 2013 – changes to the ‘in camera’ rule, and increases to District & Circuit Court awards
The government has today published the Courts Bill 2013, which proposes to change the law not just in relation to family law cases, but to the District and Circuit Courts in general.
Turning first to the impact on family law, it is currently the case in Ireland that family law matters are held in camera, that is, in private. The only people privy to the proceedings are the parties involved, any witnesses, legal counsel, and the judge. Under this new Bill, it is proposed that the in camera rule be changed to allow for “bona fide representatives from the Press” to attend and report on certain cases. However, the court will still have the power to prevent the media from being present and/or from reporting on certain details such as sensitive personal information, and nothing can be published or broadcast which might lead members of the public to identify the parties and/or children involved in the proceedings.
The reasoning behind the proposed change is to add an element of transparency to the family law process which, Minister for Justice Alan Shatter says, will “provide valuable information on the operation of the law in this area”.
Turning to the proposed changes to the District and Circuit Courts, the Bill aims to increase the maximum monetary award in the District Court from €6,384 to €15,000, and to increase the maximum Circuit Court award from €38,092 to €75,000 (though, in personal injuries cases, that award will be capped at €60,000).
The practical effect of this, it is envisaged, will be a reduction in legal costs. For example, as it currently stands, if a party wishes to claim for a sum of €40,000, he will have to begin his proceedings in the High Court, thus attracting High Court legal costs. If the maximum award was increased, however, he could then bring his claim in the Circuit, thus only subjecting himself to costs at that lower level.
The full text of the Bill can be found here.
What do you think of the proposed amendments to the in camera rule? And to the proposed increase of maximum monetary awards in the District and Circuit Courts?
The wording of the long-anticipated Children’s Referendum was finally released at 11.30am on September 19th 2012. The exact wording, which appears on the website of the Department of Children and Youth Affairs, is as follows:
Proposed New Article 42A
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2. 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3. Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.
4. 1° Provision shall be made by law that in the resolution of all proceedings –
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
(See here for the wording ‘as Gaeilge’.)
The Referendum itself will take place on Saturday November 10th 2012. If passed, the wording will be inserted into the Irish Constitution as Article 42A. Information leaflets will shortly distributed to households across the Republic.
What are your initial reactions to the wording?
Article 41 of Bunreacht na hÉireann confers “inalienable and imprescriptible rights” on the family and declares these rights as being “antecedent and superior to all positive law”. These rights are conferred on the family as a single unit, and not on the individuals that make up that unit. This was summed up succinctly by Costello J in Murray v. Ireland  when he described the rights as belonging to “the institution itself”. But what exactly are these rights? They are not enumerated in the Constitution and so, once again, it has been left to the courts to do so.
Apart from the family unit itself (see my previous post for a legal definition of the term “family”), the scope of family law widens to include unmarried couples and their children, if any. There are also some instances in which someone outside the ‘parent-child’ dynamic may become involved in family law proceedings. These include cases of adoption, or when someone other than the parent of the child wishes to have some rights in relation to the custody or guardianship of that child (usually, grandparents or the HSE). Continue reading
Any discussion on family law must start with a definition of what is, legally speaking, considered a “family”. (The debate on what should be considered a family rages on, particularly with the introduction of civil partnerships. However, for the purposes of this piece, I shall stick to the current legal definition, as at June 2012.) Though there are references to the family in Articles 41 and 42 of the Constitution, nowhere in it is there a definition of the term. Thus, as is so often the case in the legal sphere, the job was left to the courts. Continue reading