This article first appeared in Irish Tax Review, Vol. 30 No. 2 (2017) © Irish Tax Institute
International Womens Day Seminar on Women as ADR Leaders
International Women’s Day 8th March saw a major conference entitled “Conflict Resolution: Peace, Practice and Perspectives – celebrating Women as ARD Leaders”. It was a collaboration between CI Arb, which is the authority for the regulation, training, promotion of arbitration, mediation and dispute resolution in Ireland, Arbitral Women, a network of women from diverse backgrounds and legal cultures active in international dispute resolution, The Irish Women Lawyers Association and the Law Society. It was Sponsored by the Edward M Kennedy Institute for conflict intervention at NUI Maynooth. There were many delegates from many countries and Muriel Walls made a presentation entitled “Empowering couples to resolve their own family disputes” and the paper is attached.
Landmark Judgement in Surrogacy Case
The High Court gave a landmark judgement in a surrogacy case on 5th March 2013.
The case involved a husband, his wife and her sister. The wife was the genetic mother and the husband was the genetic father of twins. The sister carried the children in her womb and gave birth to the twins. The Chief Registrar of Births refused to register the husband and wife as the legal parents and said the sister was the mother of the children in law.
The husband and the wife applied to the High Court for a declaration that they were the parents of the children. The sister supported their application. The Court heard a number of expert witnesses in the case and ultimately concluded that as the wife was the genetic mother of the children, and the court was satisfied that she was, she should be registered as the mother. The Court noted the “total absence” of any positive legislation on surrogacy and the solicitor for the couple called on the Government to bring in the much needed legislation.
The facts of this case are different to many other surrogacy situations. Firstly all the parties were in Ireland, in many other surrogacy cases couples go abroad. Secondly, the husband and wife were the biological mother and father, in many surrogacy cases, there may be egg and/or sperm donation from a third party. Thirdly, the sister supported their application, in other cases complications can arise if the parties to the “surrogacy agreement” don’t do as they agree and such agreements are unenforceable.
New Family Courts
On Saturday 2nd March a significant Seminar took place at which Minister for Justice Alan Shatter, the Chief Justice Susan Denham and Attorney General Maire Whelan and other speakers outlined the need for a reform of the Courts system, in particular the Superior Courts and the Family Court. At the time of the 1937 Constitution, there were seven high Court judges and the Supreme Court dealt with appeals from these judges. Now there are 36 High Court judges and the Supreme Court simply cannot cope with all the appeals cases coming to it. At the moment there is a four year delay. This has implications not only for the litigants themselves and the issues in their cases bit for the country and commercial life and business. The President of the Law Society said it was like a six lane highway converging on a boreen! At the Seminar the Minister announced a plan to establish a specialised Family Court structure, with specialist judges and support services. The Minister is considering what is the best structure and is consulting with others in that regard.
At Walls & Toomey we believe everyone needs prompt and sound legal advice but not everyone needs to go to Court. The Courts should encourage parties to try to resolve matters between themselves with the help of their lawyers at an early stage. The Courts can then be available to deal with those cases where there may be exploitation or abuse or inequality between the parties.
Messy divorce in the Courts? There is a better way.
Newsletter Winter 2016
Australian wife allowed to return home with children
Relocation cases are always extremely difficult for courts to adjudicate on as they usually mean that one parent or the other is going to see a lot less of their children and so there are no winners in all of this. When the children become habitually resident in one country it can be extremely difficult for one parent to get permission from a court to relocate back to their own country as this will naturally mean that the other parent is going to see a lot less of them and so compelling reasons must be put forward. A case in today’s Irish Independent demonstrates this: http://www.independent.ie/irish-news/courts/mother-wins-fight-to-take-children-to-australia-35252877.html
Proposal to reduce divorce wait to two years
Josepha Madigan, family law Solicitor and TD, has introduced a Private Members Bill to allow the time that you have to be living apart from your spouse before you can apply for a divorce from four years to two. This is a much needed development as society has changed in the 20 years since divorce was introduced. Such a change, which requires a referendum, would mean an end to the two stage separation process that we have in this country which is unfair to spouses and also to the children caught up in a separation. Ironically, same sex couples who entered into Civil Partnerships only had to wait 2 years for a dissolution of their partnership and this reflected the fact that civil partnership was introduced at a time when societal attitudes to break up of relationships had changed. You can view a recent Irish Times article by clicking on the link below.
Cohabit with care!
New rights and obligations relating to couples that cohabit have been introduced pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the Act”) which came into law in January 2011. The rights and obligations for cohabitants in the Act are a radical departure from the pre-existing position whereby cohabiting couples had little or no rights or obligations as against each other. It is important for couples living together to understand their possible new rights and obligations but it is also important for such couples to be aware that it is possible to contract out of the Act as it relates to cohabiting couples.
In order to qualify as a cohabitant a couple, whether same sex or opposite sex, must be living together in a committed relationship for five years, or two years if they have children together. It is important to note that the Act does not confer any automatic rights on such a couple but rather provides a redress scheme, allowing a financially dependant party to the relationship to apply to Court for relief in the event that the relationship breaks down or the other party dies. Previously such a party had no recourse if not married and could therefore be left in a very vulnerable position financially even if the couple had been in a committed relationship for many years.
The Act provides a welcome safety net for cohabitants left in a financially vulnerable position following the end of the relationship. However, on the other hand for a non dependent cohabitant the Act can mean that such a partner (or former partner) in the relationship may, unknown to him or her, have significant obligations to his or her financially dependant cohabitant if the relationship were to break down or if he or she (the non dependant cohabitant) were to die. It is important therefore that couples living together are aware of the new provisions and of their ability to contract out of the Act by means of a Cohabitation Agreement.
The Act makes provision for the recognition of Cohabitation Agreements. Such agreements can deal with issues such as what happens in relation to property, maintenance and other financial aspects of a relationship in the event the relationship breaks down or one party dies. Previously parties could only enter into an agreement in relation to property – now the agreement can deal with all of their financial affairs. Such agreement are only enforceable if they are in writing and if both parties have received independent legal advice and the terms must be negotiated on the basis of full financial disclosure by both parties. The Act does allow a Court the power to undo such an agreement if it is in the interests of justice to do so, although it is arguable that it is possible to contract out of this provision also!
Awareness of the new provisions contained in the Act for cohabiting couples is therefore vital. However, it is equally important that couples are aware of their right to contract out of the Act and to agree between them how to regulate their obligations and rights to one another by means of a Cohabitation Agreement in the event that the relationship ends or one party dies. For many couples it would be far more preferable to be in control of their legal obligations and rights to one another in such circumstances rather than leaving such rights and obligations to be imposed at the discretion of a Judge.
Justin Spain
This article appeared in – The Law Society Gazette | December 2015