Family Law
Protecting Families, Resolving Disputes, Securing Futures
Overview of Family Law
Family law governs the legal relationships between family members, including marriage, divorce, civil partnerships, cohabitation, children's rights, and domestic violence. It aims to protect vulnerable family members while ensuring fair outcomes for all parties.
Key Legislation
- Family Law Act 1995: Introduced judicial separation and divorce (amended by 2019 Act)
- Family Law (Divorce) Act 1996: Introduced divorce in Ireland
- Family Law Act 2019: Reduced divorce separation period from 4 to 2 years
- Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010: Civil partnerships and cohabitant rights
- Children and Family Relationships Act 2015: Modernised child law, including parentage and guardianship
- Domestic Violence Act 2018: Expanded protections for victims of domestic abuse
Divorce & Judicial Separation
Divorce Requirements
Under the Family Law Act 2019, the following conditions must be met for divorce:
- Spouses must have lived apart for at least 2 out of the previous 3 years
- There is no reasonable prospect of reconciliation
- Proper provision has been made for spouses and any dependent children
Judicial Separation
Judicial separation allows couples to separate without ending the marriage. Grounds include:
- Adultery
- Unreasonable behaviour
- Desertion for at least 1 year
- Living apart for at least 1 year with consent
- Living apart for at least 3 years without consent
- No reasonable prospect of reconciliation
Separation Agreement
A separation agreement is a legally binding contract that sets out:
- Division of assets and property
- Maintenance arrangements
- Custody and access arrangements for children
- Pension arrangements
It is recommended to have the agreement reviewed by solicitors for both parties to ensure fairness.
Key Case Law
T v T [2002] 3 IR 334
Principle: Established guidelines for the division of assets on divorce. The court must consider the totality of the assets, the needs of the parties, and make provision for children.
W v W [2012] IEHC 231
Principle: Emphasised that the court has jurisdiction to make property adjustment orders even where the property is held in the sole name of one spouse.
Children & Parenting
Guardianship
Guardianship gives a person the right to make decisions about a child's welfare, including:
- Education and religion
- Medical and dental treatment
- Where the child lives
- Consent to marriage or adoption
Who is a guardian?
- Married parents are automatically joint guardians
- Unmarried mothers are automatic guardians
- Unmarried fathers can become guardians by agreement or court order
- Step-parents can apply for guardianship
Custody & Access
Custody refers to where the child lives. Access refers to contact with the non-custodial parent.
Types of access:
- Reasonable access: Flexible arrangements agreed between parents
- Specified access: Court-ordered specific times (e.g., alternate weekends)
- Supervised access: Where there are concerns about the child's safety
Child Maintenance
Both parents have a duty to maintain their children. Maintenance can be:
- Periodic payments: Regular payments (weekly, monthly)
- Lump sum: One-time payment
- Secured maintenance: Guaranteed by a charge on property
The amount is calculated based on:
- Income and earning capacity of both parents
- The child's needs
- Any other dependents
Child Abduction
International child abduction is governed by:
- Hague Convention 1980: Provides for the return of wrongfully removed children
- EU Regulation 2019/1111 (Brussels II ter): Applies between EU member states
- Child Abduction and Enforcement of Court Orders Act 1991: Implements the Hague Convention in Ireland
If a child has been wrongfully removed from Ireland, the Central Authority (Department of Justice) can assist in seeking their return.
Property & Financial Matters
Family Home Protection Act 1976
This Act protects the family home from being disposed of without the consent of both spouses.
- Any sale, mortgage, or lease of the family home requires the written consent of both spouses
- Consent must be fully informed and freely given
- Applies regardless of whose name the property is registered in
Bank of Ireland v Smyth [1995]
Consent must be fully informed. The bank had constructive notice of the wife's lack of understanding, rendering the consent invalid.Property Division on Divorce
The court can make orders regarding:
- Property adjustment orders: Transfer of property from one spouse to the other
- Pension adjustment orders: Division of pension assets
- Periodic payments: Ongoing maintenance
- Lump sum orders: One-time payments
Factors considered by the court:
- Income, earning capacity, and property of each spouse
- Financial needs and obligations
- Standard of living during the marriage
- Age and duration of the marriage
- Contributions made to the family (including homemaking)
- Any other circumstances the court considers relevant
Cohabitants' Rights
Under the Civil Partnership Act 2010, cohabitants have certain rights after the relationship ends if:
- They have lived together for 5 years (or 2 years if they have a child together)
- The relationship has ended
- One party has been financially dependent on the other
Relief available includes:
- Property adjustment orders
- Maintenance orders
- Pension adjustment orders
Domestic Violence Protection
The Domestic Violence Act 2018 provides a range of protective orders:
Safety Order
Prohibits the respondent from using or threatening violence, but does not require them to leave the home.
Duration: Up to 5 years
Protection Order
Emergency interim order while awaiting a Safety or Barring Order application.
Duration: 8 working days (renewable)
Barring Order
Requires the respondent to leave the family home.
Duration: Up to 5 years
Interim Barring Order
Immediate exclusion from the home where there is an immediate risk of significant harm.
Duration: Up to 8 working days
For Law Professionals
Practice Considerations
- Mediation: The Family Mediation Service provides free mediation for separating couples
- Collaborative Practice: An alternative to litigation where parties commit to resolving disputes without court
- Court Procedures: Family law cases are heard in the District Court, Circuit Court, or High Court depending on the matter
- Recent Developments: The Family Court Bill 2022 aims to establish a dedicated Family Court structure