Gay marriage demand driven by intolerant liberal faction

OPINION: AFTER LAST year’s introduction of civil partnerships for same-sex couples, the debate has swiftly progressed to the question of introducing gay marriage. Several characteristic limitations of the case for doing so are apparent in Kieran Rose’s argument in favour (The Irish Times, April 10th).

A number of self-contradictory or inaccurate arguments must be dispatched before the kernel of the question can be reached.

Public opinion data showing majority support for the introduction of gay marriage is now increasingly cited. This is doubtless accurate.

Public opinion is, however, no more conclusive a reason to legislate for gay marriage today than hostile opinion was good reason to delay reform concerning homosexuality.

Gay activists retrospectively give false legitimacy to the criminalisation of homosexuality in Ireland until 1993 by adducing opinion polling to a debate requiring resolution by reference to the common good. If majority opinion today is good cause to introduce gay marriage, it must have been similarly good cause for the profound imprudence of the law until two decades ago.

That this is absurd betrays not only a shallowness discernible in the case for gay marriage but also what has to be identified as a degree of intellectual dishonesty.

One is as likely to hear both that the Irish public desires the introduction of gay marriage and that the Irish public harbours a dangerous degree of homophobia.

Rose draws on both claims, yet they are clearly self-contradictory.

Separately but similarly, Rose says summarily “the court of public opinion has spoken”. This constitutes an attempt to shut down the debate on gay marriage.

One could appeal to the injustice of this commonplace summary cloture, visible at the recent Fine Gael Ardfheis at which no dissenting voice was allowed speak against the pro-gay marriage motion, but it is wiser to appeal to the imprudence of the imposition of gay marriage by decree rather than by decision.

Closely allied is the frequency with which opponents of gay marriage find their arguments pathologised rather than engaged. This is true despite the existence of gay opponents of gay marriage, such as this writer.

As for claims raised in the name of the gay community, I would prefer if someone with whom I share nothing but sexual orientation did not use that rather uninteresting fact to raise in my name political claims I and others do not share.

Rose states that gay marriage would have “resonance in related areas of difference and inclusion such as ethnic origins”. In short, we are asked to believe that Irish social cohesion through demographic change rests in enough measure to warrant mention on the introduction of gay marriage.

That such arguments can be made with a straight face indicates not only a certain hubris one detects in Irish liberals today.

Perhaps more tellingly, it bespeaks the absence in this country of much willingness in the media or in the political debate to scrutinise Irish liberalism rather than genuflect to it.

In terms of its attitudinal centre of gravity, Ireland has swung from one pole to another in recent decades. Yet comparing today’s Ireland with the Ireland of Archbishop McQuaid reveals that neither the deferential quality of debate in Ireland nor its intellectually undernourished nature have much altered.

The essence of the gay marriage demand is stated by Rose in the assertion that “the right to marry is a basic human right”. So far as claims of justice are concerned, this is the most serious contention that can be raised in support of the introduction of gay marriage.

In Rose’s account, the claim is buttressed by the UN Charter of Human Rights and “other human rights treaties”. Such claims are raised increasingly frequently. They rest on no more than assertion.

Recently, France’s supreme court has found that no discrimination is implied in the distinction between marriage and partnership provisions. The European Court of Human Rights has found there is no right to gay marriage in the European Convention on Human Rights and this does not amount to discrimination.

In considering gay marriage, it is essential to see treating different situations differently in no way constitutes discrimination.

What is more fundamental here is the co-option of human rights language by an increasingly hegemonic strain of intolerant liberalism. Whereas the “right to marriage” as pertaining to couples of the same sex is a recent invention, the right of a child to both a mother and a father where possible is not.

The reason for opposing the unnecessary elevation of civil partnerships to the notional status of marriage is that marriage then loses its nature as the one institution supported by society because it is the family form which on average gives a child the most advantageous upbringing.

It is agreed by most that civil partnerships mostly suffice in practical terms for same-sex couples. Altering the focus of marriage from children to relationships disadvantages future generations to no more necessary end than the further march of an increasingly cavalier and triumphalist liberalism.

Richard Waghorne is a freelance journalist

By Richard Waghorne – Irish Times | Fri, Apr 20, 2012 | Link to Irish Times Article

I was trying to create a family unit that ignored cultural divisions

One day in 2003, Douglas Galbraith discovered that his Japanese wife had left home and taken their two young sons. In writing about their abduction, he sets out a world view he hopes they will read: it might be the only way they will ever know him, he tells RÓISÍN INGLE

THE NOVELIST Douglas Galbraith has two teenage sons but he does not know what they look like. He cannot tell you about their favourite computer games or what television programmes make them laugh. He has not seen them since July 2003, when his Japanese wife took them from their home in Scotland while he was on a short business trip in London. He returned to an empty house to find the pyjamas of Satomi and Mokoto, then aged six and four, in a heap on the floor and a letter on the doormat addressed to his wife confirming her temporary forwarding address in Japan.

The writer of acclaimed literary novels including A Winter In China, Galbraith tells the story of his children’s abduction by their mother in his new memoir My Son, My Son. He says he waited several years before he started to write, determined it would be an objective, intellectual exercise, a work that would not sit comfortably in the “painful lives” section of bookshops.

“If you look at my case in terms of international child-abduction files, it’s a routine story. I wanted to understand it and not just be angry about it and I wanted to connect it to other, much larger things,” says the tall Glaswegian, sitting in a Dublin hotel. “I was very keen not to be writing a misery memoir with their terrible covers and their terrible titles; the ones that sell, sadly, but there you are.”

The book contains everything from his views on the rights of fathers and cultural tyranny to child murder and gender politics. But the grim narrative of the abduction of his children and his subsequent efforts to find them form the core of this beautifully written and at times challenging book.

He likens the initial impact of what happened to him to a bereavement.

“I can’t imagine it would be much worse than if it had been a couple of policemen turning up on the doorstep saying, ‘Prepare yourself, we have the worst possible news’ . . . They were leaving my life as completely as if they had died and I was leaving theirs, so for my boys it is as if their father died when they were aged six and four.”

Filling in the background to the abduction, he says he met his wife, Tomoko, when they were both research students at Cambridge University. She was, he recalls, “a cosmopolitan, impressive, intellectual woman who seemed to have freed herself from any cultural baggage”.

He first noticed this changing when she became pregnant with their elder son. He describes how she gradually began to show disdain for their life in England, discouraging her sons from using English and installing a satellite dish so the family could watch Japanese TV programmes, including weather reports.

“I was unlucky,” he says. “I was trying to create a family unit which ignored cultural divisions . . . It can work brilliantly, but in my case cultural loyalties won out over loyalties to people.” He points out that his is only one side of the story, and that Tomoko might frame things differently. Ultimately, he says, his biggest failing was the one thing he couldn’t do anything about. “I was British, I wasn’t Japanese.”
THE RELATIONSHIPeventually deteriorated to the point where Galbraith says he was staying in the home merely to keep his sons with both of their parents. He had been holding on to their British and Japanese passports as he feared they were at risk of abduction. In the end, Tomoko went to the

Japanese consulate in Edinburgh where officials gave her another set of passports for the children, “no questions asked”. So while the abduction was shocking, it was not exactly unexpected.

“It’s a bit like this phenomenon of people who build their cities at the foot of a volcano,” he says. “You know that you are on your way to being a museum exhibit in Pompeii, so when the volcano erupts your last thought has to be ‘we knew this was coming’.”

His efforts to track them down have involved local police, Interpol, lawyers and trawling through the intricacies of international conventions.

His only success in locating his wife came from posing as someone else and making contact through her old university. This deception, and the fact that Tomoko needed to stay in touch in order to secure her share of the marital home, did result in regular phone calls with his children, but the last call was more than three years ago. Around that time, in a court submission for a case that was never heard, he writes his wife’s justification for the abduction was “(a) she felt like it and (b) because of the poor quality of the sushi in the local Tesco”.

The phone calls stopped when Tomoko received the money from the sale of the house. He sends Christmas and birthday gifts to an address in Osaka where he thinks they live now, a street he has virtually toured thanks to Google Maps. He cannot say whether he will ever see them again. “It depends,” he says, “on how well they have retained the ability to think and act for themselves.”
Galbraith says the book has two readerships: his two children and the rest of the world. He describes his “very adult” book as an “eccentric father substitute which they won’t make head or tail of for a long time . . . but it will allow them to get to know the man through the world view. They will understand my basic values of anti-nationalism and secularism, which don’t appear to have anything to do with the child-abduction story: the reason they are there is so they will be able to read this, if they ever do, and say ‘this is my father and to some extent I know him through this book’. ”

HE HAS NOT, as some other “left behind” parents have done, gone on to have more children. What has held him back is his instinct that as a man he stands a bigger risk of losing everything again should it all go wrong. He has been changed by the experience. “One of the more interesting changes is that I am now more adept at identifying conflicts that are irreducible,” he says mentioning Syria in this context. “I was in a conflict where I had to win or lose. Moderation resulted in me losing.”

His children are now 13 and 15. He is often asked whether he will go to Japan to track them down but he says even if he found them, standing in front of the locked door of an apartment is, to him, a futile gesture. “I want people to understand that the blockage isn’t just physical mileage,” he says. “I could physically go there but I couldn’t force myself on my sons. There needs to be compromise on the part of the person who abducted my children.”

He has accepted that they probably wouldn’t know who he is and that by turning up out of the blue he could make things worse for them. “I just hope they are well and thriving and not thinking about their missing father. My view, though, is that they need contact with their father to have the best chance of not being damaged and of not passing it on to the next generation. I feel my job is to break that cycle of inherited damage.”

He believes it is possible, but not likely, that one day he will get the chance to do that.
My Son, My Son is published by Harvill Secker

By RÓISÍN INGLE – Irish Times | Sat, Apr 14, 2012 | Link to Irish Times Article

Slow to tie the knot; slow to get divorced

THAT’S MEN: Marriage age is at its highest since the 1940s

IN THE 1960s and 1970s, a fellow who courted a girl for 10 years or more was a figure of fun.

Frankie Byrne, Ireland’s favourite agony aunt at the time, chastised such reluctant grooms over the airwaves in her no-nonsense style. Some, I am sure, were inspired to “haste to the wedding” as a result.

Today, it is Frankie who would be out of step with the times. Something odd has happened to us.

On average, men and women in Ireland are over 30 years of age when they get married, according to the 2006 census. I could not find an average age of marriage in the first instalment of 2011 census figures issued in March but other figures on marriage, divorce and so on had not changed significantly – so I assume our grooms and brides to-be are as reluctant as they were five years ago to tie the knot.

All of which means that the marriage age is now at its highest since the 1940s.

I suppose it is hardly surprising, then, that the percentage of people who never marry has been rising steadily since the early 1990s.

We have an image in our heads of the rural bachelor who never gets married and who lives alone in his wee cottage.

Guess what? The proportion of men who never marry is higher in towns and cities than in the countryside, according to the 2011 census.

In all, 25 per cent of men and 23 per cent of women aged 40-49 in urban areas are single. For rural areas the figures were 21 per cent and 13 per cent respectively

However, if the Irish are slow to get married, it seems we are also slow to get divorced. Our marriage breakdown rate is one of the lowest in Europe.

When you are looking at marriage breakdown in Ireland, you have to count separation as well as divorce because the Irish seem more reluctant than many other nations to move on to divorce from separation. Perhaps this has something to do with the four-year wait after the marriage breaks down before a divorce can be obtained.

Perhaps it has something to do with the cost of a divorce. Or couples may not be in a position to sell the family home (which may have a Celtic Tiger mortgage on it) and buy two new homes. Or perhaps it is an overhang from the days when divorce was a taboo. After all, we have had divorce in this State only since 1997.

By the way, the introduction of divorce didn’t lead to any great surge in marriage breakdown as feared by its opponents.

But why the low rate of breakdown?

Is it possible that people who postpone marriage until their early 30s have developed more maturity and are better able to withstand the stresses that are part and parcel of marriage? That seems to make sense.

Whatever the reason, that low breakdown rate is a good thing. Marriage boosts the health and wellbeing of both partners, with men gaining the most. Separation damages the health and wellbeing of both, with the men losing the most.

Marriage breakdown seems to affect the wellbeing of younger people more than it does of older people.

Again, this could be due to the greater maturity of older people: they have been knocked around by life and have learned to cope with painful change.

Some psychologists believe separation may even bring a sense of relief to some older people who have stayed with their partners out of a sense of duty and who finally get to split up with them.

How they get on as singles is another story on which I would love to see some research.

In summary, if Frankie Byrne was around today she would have her work cut out for her.

The Irish trends mentioned in this article are from Families in Ireland by Tom Fahey and Catherine Anne Field. Go to bit.ly/irishfamiliesto read the report.

Padraig O’Morain (pomorain@ireland.com) is accredited as a counsellor by the Irish Association for Counselling and Psychotherapy. His book, Light Mind – Mindfulness for Daily Living, is published by Veritas.

By Padraig O’Morain – Irish Times | Tue, Apr 10, 2012 | Link to Irish Times Article

Right to marry for all key to progressive Republic

LEGAL OPINION: RECENTLY ENACTED cohabitation laws have important legal and financial implications for cohabiting couples. Given that the 2006 census enumerated 121,800 couples living together outside of marriage, the new laws potentially affect a significant number of families. They offer particular protection to financially vulnerable long-term cohabitants in the wake of relationship breakdown.

The new requirements are laid down mainly in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on January 1st, 2011. While the Act affords limited rights to “cohabitants”, enhanced legal protection is offered to a special category of long-term cohabitants called “qualified cohabitants”.

A cohabitant is one of two adults living together in an intimate and committed relationship. They may be opposite-sex or same-sex couples but must not be closely related. They may be married to (or in a civil partnership with) other people, but not each other.

Subject to certain conditions (particularly regarding the duration of cohabitation), cohabitants are automatically recognised in law in a limited range of contexts, including domestic-violence protection and wrongful- death suits. In an important break with the legal position prevailing pre-2011, cohabitants may now also enter into legally binding agreements governing their property and financial interests.

An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.

Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.

Three types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders generally must be sought within two years of the relationship ending. The applicant may first seek maintenance (financial support), to be paid either periodically or in a lump sum. The court may also make an order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Finally, the court may reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs.

There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.

A cohabitant has no automatic entitlement to provision on the death of a partner (though cohabitants may provide for each other by will). A surviving qualified cohabitant may, however, apply to court for provision from the deceased’s estate, if proper provision has not otherwise been made for the survivor. Unless the couple were still in a relationship at the time of death, the survivor must demonstrate financial dependence.

Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.

The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.

Even in respect of qualified cohabitants, the obligations and rights conferred by law are nowhere near as extensive as those applying to either civil partners or spouses. Crucially, redress is predicated on financial dependence, the sole exception being provision from the deceased’s estate where the parties were still a couple at the time of death. Qualified cohabitants with sufficient independent resources will otherwise not qualify for relief, regardless of their contribution to the relationship. Where the qualified cohabitant against whom redress is sought is or was married, moreover, the interests of his spouse or former spouse are prioritised, such that the relief available to the other qualified cohabitant may, in such cases, be quite limited indeed.

Dr Fergus Ryan lectures in law at DIT. He is the author of Annotation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,published by Round Hall

By KIERAN ROSE – Irish Times | Tue, Apr 10, 2012 | Link to Irish Times Article

Implementing Pension Adjustment Orders in England

A problem often faced by family law practitioners is what to do with a pension that is located in another EU state. Will the Trustees of such a pension scheme implement an Irish Pension Adjustment Order? The most practical solution so as to avoid such questions is of course is to leave it alone and to divide the assets in such a way that does not involve trying to divide the pension. However if the particular facts of the case require the pension to be divided then the question arises of how this can be achieved. This article examines the process in England, the most common country in which a foreign pension is likely to be located for historical and practical reasons.

It is necessary to briefly examine the case law on the recognition of Pension Adjustment Orders in other EU states. In the case of Van den Boogaard v Laumenthe question asked of the Court was whether a decision given in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her spouse is excluded from the Brussels Convention on the ground that it relates to property arising out of a matrimonial relationship, or whether it may be covered by the Convention on the ground that it relates to maintenance. The Court answered this question as follows:

“Owing precisely to the fact that on divorce an English Court may, by the same decision, regulate both the matrimonial relationships of the parties and matters of maintenance, the Court from which leave to enforce is sought must distinguish between those aspects of the decision which relate to rights in property arising out of a matrimonial relationship and those which related to maintenance, having regard in each particular case to the specified aim of the decision rendered.

“It should be possible to deduce that aim from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property arising out of a matrimonial relationship, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention.”

“It makes no difference in this regard that payment of maintenance is provided for in the form of a lump sum. The form of payment may also be in the nature of maintenance where the capital sum set is designed to ensure a predetermined level of income.”

It is clear from the above that a Court which is being asked to recognise and enforce an Order must first consider the purpose of the Order. If the purpose of the Order is to provide for the other spouse then it should be enforceable but if the purpose is to divide property then it is not. Given that the purpose of a Pension Adjustment Order is generally to provide maintenance for a spouse after retirement, it should be open to practitioners in most cases to present a strong argument that such an Order should be enforced in another EU state.

However, while the case law would seem to suggest that an Irish Pension Adjustment Order is entitled to recognition by Trustees of English pension schemes, it does not necessarily follow that such Trustees will recognise and implement the Order. If the Trustees refuse to recognise the Irish Order then practitioners are left with three options:

  1. Bring an application pursuant to the Brussels I Regulation to have the Order recognised and enforced.
  2. Bring an application in the English Courts under the Matrimonial and Family Proceedings Act 1984 for a mirror Order of the Irish Pension Adjustment Order.
  3. Enforcement of the Irish Pension Adjustment Order pursuant to Rule 74.3 of the Civil Procedure Rules 1998 which provides for the enforcement in England of judgments made in a different jurisdiction.

The first option above is less straightforward than the other two and advice that I have received from English practitioners is that is simpler and cheaper to make an application under the second or third options.

Myself and my colleague Eugene Davy were involved in a case recently which required the implementation of an Irish Pension Adjustment Order in England. The case demonstrates very well the difficulties that are faced by Irish practitioners in enforcing Pension Adjustment Orders in England.

The outline facts of the case were as follows. The parties were married in England in 1966 and lived there for many years before moving back to Ireland. They separated in 1998 and divorce proceedings were brought by the Applicant husband in 2006. The husband had retired in 2003 and, having worked in England for most of his working life in a senior role, had a very substantial pension there. The Terms of Settlement attached to the Decree of Divorce provided, inter alia, that the wife was to receive half of the retirement benefits. A Pension Adjustment Order in the normal format was not made by the Court in this case however. Instead the Court made an Order in addition to the Decree of Divorce pursuant to section 17(2) of the Family Law (Divorce) Act 1996 awarding the wife 50% of the retirement benefits. It further reflected the understanding of the parties that implementation of the Pension Adjustment Order would involve the Trustees transferring an actuanity calculated pension credit to a fund nominated by her so that she will have the benefit of that fund to provide for her own pension. The Order also dealt with which party should be responsible for the costs of the Trustees in implementing the Order in England. These charges can be relatively high so it is important that they are dealt with within the body of the Order.

On receipt of the Pension Adjustment Order the Trustees were notified of the Order and called upon to confirm that they would implement it. The Trustees duly replied that they would not implement the Order without an Order from an English Court. Solicitors in England were retained and advised that in such circumstances the best way to proceed was to seek a mirror Order under section 13 of the Matrimonial Proceedings Act 1984. In order to make such an application it is necessary to first seek leave of the High Court to bring such an application. In order to bring an application for leave the parties must satisfy jurisdictional requirements under section 15 of the Act as follows:

  1. either of the parties to the marriage must have been domiciled in England and Wales at the date of the application for leave or was so domiciled on date which the divorce was obtained in the overseas country took effect; or
  2. either of the parties was habitually resident in England and Wales throughout the period of one year ending with the application for leave or was so resident throughout the period of one year ending with the date on which the divorce obtained in the overseas country took effect in that country; or
  3. either or both of the parties to the marriage had at the date of the application for leave a beneficial interest in possession in a dwelling house situated in England and Wales which at some point during the marriage was the matrimonial home of the parties to the marriage.

The difficulty faced in this case is that the parties did not satisfy the above jurisdictional requirements and therefore no application could be made under the 1984 Act for a mirror Order. How then to implement the Irish Pension Adjustment Order?

The solution was to enforce the Order using Rule 74.3 of the Civil Procedure Rules. This process is normally used for enforcing a judgement for a debt issued in another jurisdiction and so the application to have the Pension Adjustment Order enforced under these Rules had to somewhat imaginative. In order to apply under the Civil Procedure Rules the following requirements must be met:

  1. An application needs to be made to the High Court (which can be made without notice).
  2. A witness statement in support must be prepared exhibiting the original judgement.
  3. The written evidence in support of the application must state:
    1. The name of the judgement creditor and his or her address.
    2. The name of the judgement debtor and his or her address.
    3. The grounds on which the judgement creditor is entitled to enforce the judgement.
    4. In the case of a money judgement the amount in respect of which it remains unsatisfied.
    5. Where interest is recoverable on the judgement under the law of the state of origin the amount of interest which has accrued to date and the rate of such interest.

 Additionally evidence in support of an application under the Civil Jurisdiction and Judgment Act 1982 must also exhibit:

  1. documents which show that under the state of origin, the judgment is enforceable on the judgment debtor and has been served,
  2. in the case of a judgment in default, a document which establishes that the party in default was served with the document instituting the proceedings or with an equivalent document, and
  3. where appropriate, a document showing that the judgment creditor is in receipt of legal aid in the state of origin.

Given the nature of a Pension Adjustment Order it was not possible to set out the amount to which the debt remains unsatisfied in monetary terms save to say that the Order remained unsatisfied. Obviously no interest was payable whilst the costs of such an application are normally awarded against the judgment debtor in this instance costs were not sought due to the unique nature of the application.

The application was duly granted by the High Court and an Order made under the Civil Jurisdiction in Judgments Act 1982 registering the Irish Pension Adjustment Order as a judgment in England. Pursuant the Rules the Order was then served on the judgment debtor. The Order must be served on the judgment debtor by either:

  1. Delivering it to the judgment debtor personally, or
  2. As provided in the Companies Act 1985 or 2006, or
  3. In such other manner as the Court may direct.

In this case the Order was served on the Trustees of the pension and this qualified as good service under the Companies Act. The Trustees duly confirmed that they would now implement the Irish Pension Adjustment Order in full as the English Order, in their view, validated the Order of the Circuit Family Court in Dublin.

By way of a sidenote, it may be interest to note that the wife was able to transfer her share of the fund to an ARF in Ireland.

This case demonstrates the hoops through which one must jump in order to have an Irish Pension Adjustment Order implemented in England if the Trustees of the scheme do not accept the Order in the first instance. In addition to the delay involved in such a process there are of course additional legal costs in retaining English lawyers to bring the necessary application. It is important that both the costs and the risks involved in making such an application in England be taken into account before a case involving a large English pension is heard or settled in Ireland. It is also important that the Irish Order is worded in such a way as to facilitate its enforcement in England if necessary. Most of all this case shows that if there is a way around dividing an English pension then such a course of action will lead to a quicker, safer and cheaper solution to the division of assets and proper provision.

[1997] ECR 1147

Traditional family unit proves resilient as marriages rise

There has been a slowdown in the rate of increase of cohabiting couples, and Ireland still has one of the highest birth rates in Europe

THE TRADITIONAL Irish family remains remarkably stable, with the numbers getting married on the rise and a slowdown in the rate of increase of cohabiting couples.

The 2011 census results show that overall there were 1.17 million families, up 12 per cent on five years earlier.

Families are defined as couples with or without children, as well as lone parents.

The marital family still accounts for the majority – 70 per cent – of all family units, or just over 870,000 families.

Some of biggest increases in family units were among husbands and wives with children, who made up almost half of all families last year, or just under 560,000 family units.

The number of cohabiting couples has been rising rapidly in recent years. While cohabiting couples are still one of the fastest-growing family units – up 18 per cent – the pace of growth has slowed. They now account for 143,600 family units.

Most cohabitants – 58 per cent – did not have any children, but the average number of children in this family type is rising, up to 0.7 children per cohabiting couple from 0.6 in 2006,

Cohabiting couples with children tend to be younger, indicating that many go on to marry later in life.

The most dramatic increase is among same-sex couples. While the numbers are small, with just over 4,000 same-sex couples recorded as living together, it represents an increase of almost 100 per cent. Of these couples, 230 had children.

Marriage as an institution is on the rise. There were 144,000 more married couples in Ireland than there were five years ago.

The majority of this increase – 132,000 – was among those married for the first time. An additional 11,000 were remarried after the break-up of a previous marriage.

At the same time, there is a continued trend in the number of divorced or separated people.

While the number of divorced people has increased by some 150 per cent since 2002 to just under 86,000, the number of separated people has levelled off and stood at just over 116,000.

Given that divorce in Ireland generally requires a period of separation of up to five years, the numbers are likely to reflect a progression of people moving from separation to divorce.

The overall rate of marital breakdown – that is the number of separated and divorced as a proportion of those ever married – is up from 8.7 per cent to just under 10 per cent over the past five years.

However, this upward trend is unlikely to change Ireland’s position as one of the low-divorce countries of Europe, according to Dr Jane Gray, NUI Maynooth’s head of sociology.

“Irish family patterns are distinctive from those of some other western countries in two respects: the birth rate remains relatively high and the propensity for marriages to dissolve remains comparatively low,” she said.

Census figures also indicate Ireland still has one of the highest birth rates in Europe. In total, some 365,000 children were born in the five years up to 2011, or an average of 73,000 births per year.

This high number of births is due largely to an increase in the number of women of child-bearing age, rather than an increase in the fertility rate. In fact, the fertility rate – the number of children a woman has on average in her lifetime – has been falling steadily since the 1980s and has remained static over the past five years.

Signs that increasing numbers of mothers are delaying childbirth until later in life are confirmed in the latest census figures.

The biggest increase in numbers of children were among mothers in their 30s. In 2006, for example, women in this age group had given birth to 460,000 children. By last year, this rose 11 per cent to almost 511,000.

The average age for a woman giving birth in Ireland in the three months before last year’s census was 31.8, one of the oldest maternal ages across the EU.

The long-running trend in family sizes is also continuing. The average number of children per family was 1.38, down from 1.41 in 2006. This was a less pronounced drop than observed between 1991 and 2006.

There are still some large families, though far fewer in number. Some 1,592 families contained seven or more children.

The number of lone parents, meanwhile, continues to rise. Latest figures show they increased by 14 per cent to 215,300.

However, this not necessarily a rise in the traditional stereotype of young lone parents. Significant numbers were widowed (just under 25 per cent), and separated or divorced (32 per cent). In fact, the proportion of young lone mothers or those with young children was similar to the previous census in 2006.

Irish Times | Fri, Mar 30, 2012 | Link to Irish Times Article

Taking the bitterness out of breaking up

Couples can dismantle their relationships in a civilised manner by adopting a ‘positive plan’ for separation, writes SHEILA WAYMAN

‘BREAKING UP is hard to do. . .” We can all sing along with feeling to the Neil Sedaka song. Separation or divorce is often likened to a bereavement – only worse, some say, because there is not the same sense of closure that a coffin lid brings.

But while we tend to hear about the horror stories, involving personal acts of revenge and gigantic legal bills, couples can and do dismantle their relationships in a civilised manner. And where children are involved, it is, perhaps, the least they can do.

Barrister and family mediator Rachel Fehily believes more people could save themselves time, money and heartache if they were better informed about options and resources before embarking on the painful journey of disengaging as a couple.

She has written a holistic “positive plan” for separation or divorce in Ireland, called Break Up, Don’t Crack Up, that is out this month. It comes not long after the publication of her previous book, Split: True Stories of Relationship Breakdown in Ireland, last November.

As a barrister who went on to specialise in family mediation, did she become disillusioned with the adversarial legal system?

“You begin to notice that the legal system isn’t really solving people’s problems – in all areas of law, not just family law,” she explains. “But it is necessary – there has to be a final arbiter of fact or conflict.”

However, at the pre-legal stage, it is very important that people have other options, says Fehily, who did a one-year course in conflict resolution at UCD and now works solely in mediation.

Intense and articulate, she balances a no-nonsense attitude with compassion for the difficulties humans find themselves in when love grows cold.

“You have a huge duty to your children to resolve things as amicably as possible,” says Fehily, a separated mother of two boys, Harvey (13) and Jack (11). “I feel really strongly about this.”

Couples breaking up tend to link parenting of their children with the division of assets, she explains. “They will say, ‘You are not paying maintenance, so I am not going to let you see our child’, which is so wrong.

“Those two things have to be kept separately and not used as a weapon; the sooner people start to separate those two things in their mind the better.”

Every couple’s separation or divorce is unique to their relationship. “The grounds for battle or conflict fall in different areas for different people. That is why everybody’s conflict resolution mechanism almost needs to be tailor-made for them.”

She would like to see something like the Australian system, where couples have to make a “genuine effort” at mediation to find a solution to their disputes over parenting before going to court, introduced here.

Currently in Ireland, solicitors have to give clients seeking judicial separation or divorce a list of conflict resolution experts. She, and many others working within the legal system, don’t think that’s enough. But the Dolphin House pilot project (see panel, right) seems to be a step in the right direction.

However, when using mediation for issues such as parenting and assets, “it is of utmost importance that people have independent legal advice before they sign up to anything”, says Fehily.

Ask her about the most common mistakes people make when breaking up, and she hardly knows where to start, “there are so many”. She outlines five:

1. Trying to make decisions when they are in huge distress

It is impossible for people to deal with parenting, financial and other long-term issues if emotionally they are not ready. So the first port of call for professional help might be a GP, who can refer you for counselling.

2. Fighting in front of the children

“That is a big mistake,” she stresses. Conflict can sometimes be driven by engaging with the legal process, she acknowledges, but children need to be shielded from this.

3. Automatically going to law and not looking for an alternative

Litigation can be a very long, drawn out and costly process, “and not necessarily give them the solutions they are looking for”, says Fehily.

She advises that it is always in people’s own interests to use peaceful rather than high-conflict means to resolve relationship disputes, such as mediation, counselling or collaborative law – unless there really is no alternative.

4. Neglecting their finances or having an unrealistic view of how their financial situation is going to be resolved

Fehily points out that you are trying to set up two houses, there are children involved and everybody’s living standards are going to be diminished.

“This is a really hard thing for people to get their head around.”

People often think if their ex behaved badly during the marriage, they will do better in court financially.

But Fehily does not believe judges divide assets up on this basis; decisions are based on needs of the family and legal aspects.

“Unless behaviour is abhorrent, I don’t think it is a significant factor,” she says.

5. Failing to move on after the separation agreement is finalised

When people keep revisiting the same conflicts, as if they are on a loop, they are not doing themselves nor their children any good.

They need to go and talk to a professional after a certain period of time if they can’t move on, she suggests.

Not surprisingly, considering the fall-out from messed-up relationships that Fehily encounters in her work, she says people need to think very carefully before they get married – even before they live together.

“I think more people should do pre-marriage courses.”

With increased global mobility, relationships and marriages between people of different nationalities and cultures are becoming much more common, but people need to be aware of the potential pitfalls.

“The big problem is when the relationship breaks down and both parties want to go their separate ways, back to their family and friends, or they want to educate their children in their own language and culture.”

The “nightmare scenario” is where you have married somebody from a country that is not a signatory to the Hague Convention and a child is parentally abducted, she says.

“If you marry somebody and that person’s country is a signatory, it gives you some protection, as that country will enforce custody and access orders made in another signatory country.”

After a break-up, many people, understandably, feel very strongly that they want to go back to their own country.

“It is such a high-conflict decision, that it can be non-negotiable and end up in court and you have to live with the decision that a judge makes,” she says.

“This is why it is so important the legal system gets involved in cases like this. It is almost like the judgment of Solomon, cutting a child in two.

“If your child goes to live in America and you are living in Ireland, that is going to irrevocably change the nature of your relationship with your child forever.”

Break Up, Don’t Crack Upby Rachel Fehily is published by Orpen Press, €14.99

6 steps to get you through break-up

1. I will look after myself.

2. I will put my children first.

3. If possible, I will try alternative dispute resolution.

4. If I have to litigate, I will litigate well.

5. I will not neglect my finances.

6. I will move on to my new life without bitterness and regret.

For more information, see Rachel Fehily’s website, familylawmediator.ie

Together alone; When couples are forced to share a home

Increasingly, couples in relationship difficulties feel they cannot afford to separate during these tough economic times.

“I think it is really dangerous to be forced to live with somebody when you are in a high-conflict situation,” says Rachel Fehily.

“Most murders are domestic – and you wonder how much of it is caused by people who are living in a very high-conflict situation.”

People living like this need to get help. Women’s refuges would be a last resort, she suggests, and the fact that there is no equivalent sanctuary for men is “terrible”.

Relationships Ireland sees many clients in this situation; some attend to find out if the relationship is beyond redemption or if it can be repaired, says counsellor Lisa O’Hara. Others, if they have decided they are no longer a couple, want to see how they can continue to live in the same house.

It is very tricky, “when their internal reality and their external reality is at odds with each other”, says O’Hara, who dedicated a chapter of her recent book, When a Relationship Ends, to this scenario.

Couples need to see where they can draw boundaries within the four walls, starting with the bedroom. “Many couples who are separated will continue to share the same bed,” she explains. “It confuses things a bit.”

If they have children together, they need to look at what stays the same and what’s different. The same applies to their finances. It is almost like the relationship becomes more one of “housemates”.

It is easier to work out if a couple is civilised with each other, keep their children as their main focus and also have a healthy respect for their changed relationship.

However, often the problems that caused the separation in the first place are heightened when they are forced to continue to live together.

Sometimes it is simply not possible, O’Hara adds, and somebody has to move out.

See relationshipsireland.com

Conflict resolution: Taking the mediation route

More than 260 separating couples have reached agreement on family issues through mediation rather than fighting it out in court, during a year-long pilot project making mediation services available at the District Court complex in Dublin’s Dolphin House.

Tomorrow marks the first anniversary of the project, whereby people going into Dolphin House to lodge an application for custody, access and guardianship are encouraged by courts service staff to consider mediation as an alternative to court. They are directed to the fourth floor from where the Family Mediation Service (FMS) operates, free of charge to all.

If the first party is prepared to try mediation and thinks that the other party might be willing too, the FMS invites the other party in for an information session.

If they both agree to try mediation, they are offered a mediation session at Dolphin House without delay. (If legal advice is required, Legal Aid Board personnel are available on the third floor.)

Figures for the Dolphin House project show that between March 21st, 2011, and February 29th, 2012:

First contact information sessions attended:1,144

Second contact information sessions attended: 686

Mediation sessions attended: 740

Agreements reached: 264, plus a substantial number of mediations in progress.

“In addition to the obvious advantages of 264 couples not entering the adversarial system,” says FMS service director Polly Phillimore, “there are many advantages for couples who, by having an opportunity to mediate, may have developed more effective communication and consequentially a less stressful parenting relationship both for themselves but, more importantly, for their children.”

The project is set to continue and it is hoped to extend it to other major centres. She says there has been very positive feedback from clients, many of whom were surprised to be told that there was an alternative to going to court.

The FMS, which is operating on a budget of €2.8 million for 2012, compared with an annual budget of €3.9 million five years ago, sees about 1,500 couples a year.

While the numbers of clients attending its 16 full-time and part-time mediation centres around the State have remained fairly static over the past five years, “the issues and circumstances brought on by the recession have become increasingly complex”, says Phillimore.

Waiting times are generally about two to three months, although they range from one month in Cork and Castlebar, Co Mayo, to six months in Blanchardstown, Co Dublin, and eight months in Wexford.

However, the FMS says that the use of additional, private mediators in recent months is helping to reduce waiting times.

For more information on the Family Mediation Service, see legalaidboard.ie or tel: 01-6344320

By Sheila Wayman – Irish Times | Tue, Mar 20, 2012 | Link to Irish Times Article

Cohabiting couples must consider financial obligations

LEGAL OPINION: RECENTLY ENACTED cohabitation laws have important legal and financial implications for cohabiting couples. Given that the 2006 census enumerated 121,800 couples living together outside of marriage, the new laws potentially affect a significant number of families. They offer particular protection to financially vulnerable long-term cohabitants in the wake of relationship breakdown.

The new requirements are laid down mainly in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, which came into force on January 1st, 2011. While the Act affords limited rights to “cohabitants”, enhanced legal protection is offered to a special category of long-term cohabitants called “qualified cohabitants”.

A cohabitant is one of two adults living together in an intimate and committed relationship. They may be opposite-sex or same-sex couples but must not be closely related. They may be married to (or in a civil partnership with) other people, but not each other.

Subject to certain conditions (particularly regarding the duration of cohabitation), cohabitants are automatically recognised in law in a limited range of contexts, including domestic-violence protection and wrongful- death suits. In an important break with the legal position prevailing pre-2011, cohabitants may now also enter into legally binding agreements governing their property and financial interests.

An enhanced “redress scheme” applies to “qualified cohabitants”, defined as cohabitants who have lived together for at least five years, or two years if they have had a child together. Where either cohabitant is married, neither cohabitant will be treated as a qualified cohabitant unless the married cohabitant has lived apart from his spouse for four of the previous five years.

Under the redress scheme for qualified cohabitants, a court may make various orders if the parties’ relationship ends. To avail of these orders, however, a qualified cohabitant must demonstrate financial dependence. An applicant with sufficient independent means will likely be denied relief.

Three types of court order are available to financially dependent qualified cohabitants following the end of a relationship. These orders generally must be sought within two years of the relationship ending. The applicant may first seek maintenance (financial support), to be paid either periodically or in a lump sum. The court may also make an order allocating part of a qualified cohabitant’s pension entitlements to the applicant. Finally, the court may reassign property, though only if maintenance and pension adjustment orders would not be sufficient to address the applicant’s needs.

There is no automatic right to redress. Whether and to what extent relief will be granted will depend, in particular, on the needs, resources and other obligations of each party.

A cohabitant has no automatic entitlement to provision on the death of a partner (though cohabitants may provide for each other by will). A surviving qualified cohabitant may, however, apply to court for provision from the deceased’s estate, if proper provision has not otherwise been made for the survivor. Unless the couple were still in a relationship at the time of death, the survivor must demonstrate financial dependence.

Notably, couples may opt out of the qualified cohabitants redress scheme by entering into a written cohabitation agreement, although careful steps are required to ensure such agreements are valid.

The Act does not apply to relationships that ended before January 1st, 2011, although time spent living together prior to that date is counted in determining whether a person is a qualified cohabitant from January 2011 onwards.

Even in respect of qualified cohabitants, the obligations and rights conferred by law are nowhere near as extensive as those applying to either civil partners or spouses. Crucially, redress is predicated on financial dependence, the sole exception being provision from the deceased’s estate where the parties were still a couple at the time of death. Qualified cohabitants with sufficient independent resources will otherwise not qualify for relief, regardless of their contribution to the relationship. Where the qualified cohabitant against whom redress is sought is or was married, moreover, the interests of his spouse or former spouse are prioritised, such that the relief available to the other qualified cohabitant may, in such cases, be quite limited indeed.

Dr Fergus Ryan lectures in law at DIT. He is the author of Annotation of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,published by Round Hall

By Fergus Ryan – Irish Times | Mon, Feb 27, 2012 | Link to Irish Times Article

Court refuses permission to move children to Spain

High Court judgment

Neutral Citation IEHC 519

HIGH COURT

Judgment was delivered on April 15th, 2011, by Mr Justice John MacMenamin

JUDGMENT

An application for the relocation of children from Ireland to Spain with their mother, who was separated from their father, was refused as not in the interests of the welfare of the children.

BACKGROUND

The applicant was the Spanish mother of two boys now aged 12 and six years old. The mother came to live in Ireland when she married the boys’ father in 1999. The couple separated in 2007, and obtained a judicial separation the following year. They are joint guardians of the children and have joint custody, with the children spending every second weekend from Friday to Sunday with the father, along with two evenings a week from 3pm to 7pm.

The mother sought to move to Spain with the boys, where she would have the support of her family and better employment prospects. This was opposed by the father.

Mr Justice MacMenamin said the father’s conduct towards the mother “has been far below the standards any wife and mother has a right to expect, and his hostility had been a significant contributory factor to the bad relations between them”. He had been verbally threatening to the mother and had been the subject of a protection order and a safety order, which he had breached, leading to the imposition of a term of imprisonment, which is under appeal. He was unemployed and paying no maintenance.

The mother was living in rented accommodation with no income except the lone parent’s allowance and child benefit.

Despite the tension between the parents, the children were very close to both parents, both of whom played an important part in their lives. These facts had to be considered in the light of constitutional and legal principles.

DECISION

The main focus in the case was the balance to be struck between Articles 40.3 and 41 of the Constitution, he said. Under Article 41 the family was the natural primary unit group of society, and the State guaranteed to protect it. Under Article 40.3 the children had the personal right to have decisions in relation to guardianship and custody taken in the interests of their welfare.

In this and the neighbouring jurisdiction there had been considerable judicial discussion as to whether there was a presumption that a court should give effect to the views of the custodial parent in such cases. The decisions showed that the child’s welfare was the paramount consideration.

A balancing exercise was involved, which must have regard to the constitutional rights of children to have these decisions taken in the interests of their welfare, which included the right to have access to or contact with their parents.

A recent English judgment also emphasised the necessity of obtaining the views of the child having regard to his or her age and maturity.

In this case a consultant psychologist had interviewed the children. He reported that both were cheerful, well cared for, pleasant and friendly. The older boy had special educational needs, but was an insightful, intelligent and articulate boy. The boys clearly had a very close bond with both parents and with each other.

The psychologist’s view was that he could see no reason why the mother’s wish to relocate should be refused. He recommended fortnightly contact meetings alternately in Spain and Ireland. The father did not agree to the parenting plan.

Mr Justice MacMenamin said that such contact, involving the boys travelling from Spain to Ireland every month alone or with another person, and the father travelling and finding accommodation on a monthly basis, was not practical from a logistical or financial point of view. He expressed concern that no adequate expression had been given to the views of the children.

The mother did not consent to his speaking to them and, though she did not have the right to veto it, he did not force the issue.

Mr Justice MacMenamin said he did not think relocation should take place now as it would have the effect of diminishing the father’s relationship with the children. He pointed out that all such orders can be revisited because circumstances can change.

Neil Vaughan Buckley BL, instructed by Brunswick St Law Centre, for the appellant; Gerry Durcan SC and Catherine Lucey Neale BL, instructed by MacCarthy Associates Solicitors, for the respondent.

The full judgment is on courts.ie/Judgments

Irish Times | Mon, Feb 20, 2012 | Link to Irish Times Article