451. Deputy Brian Walsh 
asked the Minister for Justice and Equality if he has considered the recommendations of the Law Reform Commission Third Programme of Law Reform on legal aspects of family relationships; if and when he expects to implement these recommendations; and if he will make a statement on the matter. [9352/11]
Minister for Justice and Equality (Deputy Alan Shatter): The Programme for Government contains a commitment to reform and modernise certain aspects of family law. In this context, the detailed recommendations in the Law Reform Commission’s Report on the Legal Aspects of Family Relationships are under consideration in my Department.
In 1966, the Supreme Court clarified the following aspects of the Irish Constitution:
(i) a natural or biological father is not a member of a family within Article 41;
(ii) a natural or biological father is not a parent within Article 42; and
(iii) a natural or biological father has no personal right in relation to his child which the State is bound to protect under Article 40.3 (The State (Nicolaou) v an Bord Uchtála).
In 1996, the Constitution Review Group acknowledged that “there has been much criticism of the continued constitutional ostracism of natural fathers” and proposed the following solution: “The Review Group considers that the solution [to giving constitutional rights to natural fathers] appears to lie in following the approach of Article 8 of the ECHR [European Convention on Human Rights] in guaranteeing to every person respect for ‘family life’ which has been interpreted to include non-marital family life but yet requiring the existence of family ties between the mother and the father.
This may be a way of granting constitutional rights to those fathers who have, or had, a stable relationship with the mother prior to birth, or subsequent to birth with the child, while excluding persons from having such rights who are only biological fathers without any such relationship. In the context of the Irish constitution it would have to be made clear that the reference to family life included family life not based on marriage”.
We’ve put together a short list of important things to remember covering:
1. Irish Family Law Hearings
2. European Family Law
3. Joint Legal Guardianship
4. Legal Separation and Divorce
5. Role of the District Court in Family Law
6. Role of the Circuit Court in Family Law
7. Maintenance Payments
8. Legal Representation
9. Domestic Violence
10. Hints & Tips
1. Irish Family Law Hearings
All Family Court hearings are heard “in camera’. This means that family law proceedings are not open to the public and only the parties to the case and their representatives and Court staff are permitted to be present. The proceedings cannot be reported or disclosed outside of the Court room.
2. European Family Law
The European Convention of Human Rights was incorporated into Irish Law by the European Convention on Human Rights Act, 2003. European Family Law also applies in Ireland. Under European Law, co-habitees who have lived together for a reasonable period of time have the same rights as a married couple.
3. Rights of Joint Legal Guardianship: Married and Unmarried Fathers
(Download Guardianship consent form)
S.I. No. 5/1998: GUARDIANSHIP OF CHILDREN (STATUTORY DECLARATION) REGULATIONS, 1998.
'The right to custody is one of the rights that arises under the guardianship relationship. Custody is the physical day to day care and control of a child. Even where one parental guardian has custody of a child the other parental guardian is generally entitled to be consulted in relation to matters affecting the welfare of the child'.
The appointment of a natural father as guardian will affect the adoption process.
Note: A father's duty to maintain his child and his right to apply to the court for custody of or access to his child is not contingent on his being made a guardian.
Unmarried fathers do not have any automatic legal rights towards their children. The right to joint legal guardianship can be obtained with the consent of the mother or through application made to the local District Family Court. Married fathers do not have to make an application for joint legal guardianship because this is conferred by virtue of marriage and they are legally entitled to joint legal guardianship.
4. Legal Separation, Judicial Separation and Divorce
The process of separation will involve legal separation or judicial separation and maybe followed by divorce. Alternatively, divorce may be sought where the parties have lived apart for four years. Finality of family separation proceedings can only be reached by obtaining a divorce and signing a deed of waiver.
Family law is an interlocutory process, which means it is ongoing. Divorce does not bring finality to the proceedings unless a deed of waiver is signed. By signing a deed of waiver, the parties agree that neither spouse will have any future claims against the other. Any verbal or other agreement made between two parties concerning family matters, such as child maintenance, custody, access and division of assets, has no standing in law without being in the form of a court order. The only agreement enforceable in law is ‘a court order’.
5. District Court
The maximum maintenance order for children is to the amount of €150.00 per child per week. The maximum maintenance order for a spouse is to the amount of €500.00 per week.
You do not necessarily need legal representation in the District Court if you deem yourself competent to present your case. You may, of course, hire a solicitor to represent you and this is an option that should always be considered.
Applicants and respondents are entitled to seek a written judgment but this must be requested in advance of the court hearing. When applying for a court hearing it is advisable to enquire as to the notice required for seeking a written judgment.
The District Court deals with issues of child maintenance, access and custody issues, and the processing of barring and protection orders.
6. Circuit Court
Proceedings are held in the Circuit Court where all issues of joint assets (everything the parties own), matters concerning children, and matters concerning the finality of relationships are decided upon.
Proceedings which involve joint assets of a combined value exceeding a certain, higher threshold are heard in the High Court. The services of a solicitor and barrister are required for representation in the Circuit Court.
A request should be made for a transcript of court proceedings. This is advisable to enable the parties to understand and rely on what was said and done during the hearing. If an appeal is lodged in the High Court, the transcript constitutes a case history which saves time and expense.
7. Maintenance Payments
Maintenance orders must be paid. In order to seek a variance in the payment due to a change in economic circumstances, an application must be made to the court and “under no circumstances must you unilaterally stop making the payments as stated in a court order”.
Orders can only be amended in a court of law and any alterations made without authority of court will be of no effect. Appeals are always made to a higher court. These monies will keep accumulating whatever your personal reasons for non payment. Any breach of court orders must be reported to an Garda Síochána and their enforcement sought through the courts.
8. Legal Representation
Remember to shop around for a solicitor who specialises in family law. They give you legal advice and represent your interest in all legal matters. Make your instructions clear at the very beginning and what you require of them.
Solicitors are obliged in law, Solicitors (Amendment) Act, 1994, Section 68, to provide a breakdown of their fee structures before taking on your case. They are also obliged by law to inform you of the availability of mediation prior to engaging in court proceedings. They must also inform you of the option of Collaborative Law, where the emphasis is on discussion and agreement between the parties.
Barristers are employed in Circuit Court hearings and higher courts to argue your case. You may ask your solicitor in advance the estimated cost of hiring a barrister.
9. Domestic Violence
The Domestic Violence Act 2003 has important provisions for upholding the rights of victims, male and female, who experience violence in the home.
If you are threatened or feel threatened, report the matter to an Garda Síochána immediately and have the incident entered into the Incident Report Book. The Gardaí have a dedicated team to deal with incidences of domestic violence.
In case of actual physical harm, call them, report to your GP, call on family and friends, take pictures and keep documentary proof. Do not retaliate with verbal or physical abuse. The Act gives judges enough powers to issue a protection order if there is a presumption or perception of perceived violence. This includes psychological, emotional and physical abuse.
10. Whatever Happens . . .
Keep a diary of all events, however trivial they may seem at the time, taking note of time, date, place, and the nature and extent of the abuse experienced. If you feel that your rights are being diminished, or the services on offer are not up to scratch, let your local and national political representatives know.
If you leave family home voluntarily, you may not re-enter without the consent of your spouse. You may also be deemed to have abandoned your family, which may reflect poorly in court. Therefore, try to ensure a legal Separation Agreement is in place prior to leaving your home.
Seek legal advice at the first instance of perceived or actual threats.
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