Background In 1989 there was neither divorce nor a modern system of judicial separation. Divorce a Mensa et Toro was an old procedure that might be granted where it was shown that one party to the marriage was at fault, having committed adultery, cruelty (physical or mental) or “unnatural practices”. Its effect was to relieve the parties of the technical obligation to live together. Limited […]
Maintenance The Child and Family Relationship Act 2015 amends the law on the maintenance of spouses and children to take into account the fact that the unmarried parents of a dependent child may be parents of the same sex. They allow the Court, in certain circumstances, to order payment of maintenance by a cohabitant of a child’s parent for support of the child. The amended […]
Parents & Third Parties The Guardianship of Infants Act applies to custody disputes between parents and third parties. The former Constitutional protection of the family and parental rights was such that it was only in very exceptional circumstances that an outsider would be preferred to a parent. However, exceptionally, where the welfare of the child so requires custody may be given to a third party. […]
Guardians The Child and Family Relationships Acts 2015 amends the Guardianship of Infants Acts to allow the court to appoint step-parents, civil partners and cohabiting partners as guardians; to allow a parent or guardian with custody of a child to nominate a temporary guardian; and to enable wider categories of persons to apply for custody and access. The definition of ‘father’ was amended to exclude […]
Nature of Act’s Rights The Family Home Protection Act 1976 introduced protections for the non-owning spouse. Prior to the legislation, a non-owning spouse was thought at best to have a licence to stay in the family home on the basis of the husband’s general obligation to maintain her. The property could be mortgaged or sold to a third party without the spouse’s consent unless she […]
Place of Marriage The well-established principle is that the formalities of marriage are governed by the place where the marriage ceremony takes place. The validity is determined by the laws of that jurisdiction only. Even if a marriage might be valid in the same circumstances domestically, it would be invalid if not valid in accordance with the laws of the place where the marriage is […]
Procedure The Civil Registration Act has modernised the law in relation to the registration of marriage. Notice must be given to the registrar of the intention to marry at least three months in advance of the intended date. The couple must attend at the registrar’s office or other designated place at least five days before the marriage and sign a declaration to confirm that there […]
Applications The scheme allows qualifying cohabitants who are economically dependent to apply to the court for certain remedies. This includes maintenance, property or pension adjustment orders and orders for provision from the estate of the deceased cohabitant. As with family proceedings generally, the court has the discretion to adjourn the proceedings to allow for mediation and other alternative dispute resolution mechanisms. Adjournments may be made […]
Children’s Referendum Until 2012, the Constitutional provisions for the protection of the marital family were thought to be a factor which would weigh slightly, at least, against the first and paramount interest of the child. The welfare of the child has been the first and paramount consideration under legislation dating back over 50 years. The 2012 amendment of the Constitution, the so-called Children’s Rights Referendum, […]
Background The coroner’s office is an ancient office dating back to the Middle Ages. An inquiry was held at the place of death, typically where there had been a crime, to examine the body and make findings associated with the crime. The Coroner’s Act 1962 put coroners law on a modern footing, repealing numerous old acts dating back 700 years. The Act has been amended, […]
Overview The coroner may arrange for a post-mortem to be conducted at the relevant hospital. This is usually performed by a pathologist. It must not be a doctor or pathologist who is involved in the care of the patient in the final month of his life. It must not be a doctor or pathologist whose opinion might be called into question at the inquest. If […]
Purpose of Inquest The coroner may hold an inquest to establish the cause of death and in other circumstances at his or her discretion. The purpose of an inquest is limited to identifying the facts of death. Blame may not be attributed. An inquest may require a jury who will reach a verdict on the question. The purpose of an inquest shall be to establish: […]
Overview According to the Coroners Act 1962 and the Coroners Amendment Act 2019, there is an obligation to notify a reportable death to the coroner. The obligation applies to certain persons unless they have reasonable cause to believe that certain other persons have already reported the death. The following are reportable deaths: the death of a person which occurred, or may have occurred, either directly […]
Charging Issues The same charge or proceedings may charge offences of assault, ill-treatment, neglect, abandonment or committing all or any of those offences in a manner likely to cause unnecessary suffering to the child’s health or seriously affect his welfare. A person charged with scheduled offences, as set out below, may also be charged with one or more of the above. A person convicted is […]
Overview Brussels II bis deals with jurisdiction in matters of parental responsibility. Parental responsibility is defined as rights and duties relating to the person or property of a child that are given to a natural or legal person by judgment, by operation of law, or by agreement having a legal effect. They include matters of custody and access. Subject to the following, the courts of […]
Openness Openness in adoption has become an increasing feature over the last 20 years. There are biological reasons why it might be necessary to trace parents, such as hereditary diseases, allergies and other inherited risk factors. The previous requirements for absolute confidentiality have been relaxed in practice. Many agencies have facilitated meetings with natural parents and adult children where both consented. Another feature is where […]
Inter-Country Adoptions In stark contrast to earlier times, most adoptions now constitute inter-country adoptions. The Adoption Authority must recognise and register adoptions that satisfy the conditions in the legislation. The Authority maintains the register of foreign adoptions. Within three months of the child entering the State after an inter-country adoption from another state, the adopters must apply to the authority for registration of the child […]
Background Civil partnership legislation has been progressively introduced in Western European countries throughout the start of the 21st century. It was introduced in England and Wales in 2005. It provided recognition for relationships between same-sex couples. It did not go so far as to provide equivalent rights to marriage. However, civil partners are treated like spouses to a very considerable extent. On 1 January 2011, the […]
Asset Division The Irish courts have held that all of a spouse’s assets are potentially subject to property adjustment orders in judicial separation and divorce. Unlike many other jurisdictions, pre-marriage assets or those inherited from family are not excluded. However, the source of the assets may be relevant in the exercise of the judicial discretion. Where, for example, a house has been inherited with strong […]
DAHR Legislation The Child and Family Relationships Act 2015 was the first Irish legislation to make provision for Donor Assisted Human Reproduction (DAHR). It established a national donor-conceived person register. This enables donor-conceived children, donors and parents to trace their identity. A DAHR facility may not acquire anonymous gametes or embryos. They must, when acquiring the gametes or embryos, ascertain the name, date of birth, […]
Overview The Gender Recognition Act 2015 provides for legal recognition of the preferred gender of transgender persons. Recognition is effective from the date of recognition and is not retrospective. The Department of Social Protection is the decision-making authority in relation to the issue of a gender recognition certificate. The Department issues a certificate to the applicant once the relevant conditions and qualifications have been complied […]
Custody & Access On granting a final order of judicial separation or divorce, the court may make orders in relation to custody and access in respect of dependent members of the family, children in particular. They may deal with issues, aspects or matters dealing with the welfare, custody of or access to the child. Custody is the right to immediate physical care and control of […]
Contract Law and Families In principle, it is possible to enter legally binding contracts on most issues. However, certain matters, including many in the family law sphere, are either regulated by statute or common law in the public interest. The terms of marriage and civil partnership are largely prescribed by law. Generally, it is not possible to enter an arrangement analogous to marriage that will […]
Annulment A civil partnership can be annulled if it is shown to be invalid. The application can be made by either partner or by another person who has an interest, e.g., a child after the death of the other. A civil partnership may be potentially annulled on the following grounds: either or both who are already married; either or both who are under 18 years, […]
Background Until 2010 cohabitation in a medium to long-term relationship had no status under Irish laws. Unless the parties in the relationship were married, they enjoyed no succession, maintenance or property rights other than those that would arise between unrelated strangers. The law does not recognise common law relationships. The position applied to same-sex couples and couples of the opposite sex. The Constitution’s protection of […]
Earlier Position Historically, a child of unmarried parents had an inferior legal status. The child was deemed illegitimate and was excluded from rights that would be available to a “legitimate” child whose parents were married. This policy of the common law was designed to promote marriage and penalise the bearing of children outside marriage. The Legitimacy Act 1931 confirmed certain rights of non-marital children. Succession […]
Historical Background Historically, a husband was obliged to maintain his wife and children. He was obliged to provide necessaries for them. Necessaries are those goods and services required for the maintenance of the spouse and children, having regard to their standard of living, position in society and requirements. Until the later years of the 19th century, a wife’s assets passed directly to her husband on […]
Background Before 1952, legal adoption did not exist in Ireland. The 1952 Act placed conditions on the categories of persons who were qualified to adopt or be adopted in terms of age, religion and other criteria. The legislation evolved, with various amendments throughout the 1960s and ’70s. A significant number of cases were heard by the higher courts on adoption, particularly applications to dispense with […]
Common Law Reformed A married woman was not capable of owning separate property under the common law. Her property was deemed owned by her husband. As a corollary to this, a husband was obliged to maintain his wife. She had the authority to pledge his credit for so-called necessaries. The Married Women’s Property Act 1882 repealed the common law rules and enabled a married woman […]
General The District Court has a range of jurisdiction in family matters. Special forms of civil summons apply to various family law proceedings. An appeal lies the Circuit Court from decisions of the District Court in family matters. Family law matters are not heard in public. There are provisions for applications by members of the media in respect of attendance of family proceedings. There are […]
Suitability Prospective adopters may apply to the HSE for assessment of their suitability and eligibility to adopt. Adoption committees may advise and assist the Authority in the performance of its functions and make representations regarding declarations of eligibility and suitability. The Authority may make inquiries and visit the homes of applicants. They may be examined medically. The adoption committee considers the assessment report and recommends […]
Family Welfare Conference A Children and Family Welfare conference may be held on the direction of the Children’s Court or at the initiative of the Health Authority (HSE). The Health Authority (HSE) appoints a person as coordinator to convene the family welfare conference and he or she acts as chairman. The purpose of a family welfare conference is to decide whether a child is in […]
Broad Criteria The judicial separation and divorce legislation set out broadly equivalent criteria to guide the courts in the exercise of their powers for the division of assets on judicial separation and divorce. The court is to have regard to the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future. All income earned and […]
Guardianship of Infants Act The modern position as expressed in the Guardianship of Infants Act and in the Constitution is that the welfare of the child is the first and paramount consideration. This means that it should be the deciding factor but not necessarily the exclusive factor. At common law, the mother of a child born outside marriage was the sole guardian. This remains the […]
Marital Children Before the Adoption Act 1988, it was not possible to adopt children born to married parents. This meant that many children in long-term foster care, who would have benefited from adoption, could not be adopted. The Adoption Act 1988 removed the previous restriction on adopting marital children. The Act seeks to fit within narrow constitutional grounds by providing narrow circumstances in which the […]
Void and Voidable The distinction between a void and voidable marriage is important. A void marriage is void at and from the outset. It is a nullity and deemed always to have been of no effect. A voidable marriage is void only from the date of a decree of nullity. It may become impossible to nullify a voidable marriage by reason of later circumstances. It […]
Orders The judicial separation and divorce legislation each contain significant powers for courts to make awards in relation to the family income and assets. The powers arise only when a court orders a judicial separation or divorce. Where a judicial separation has been granted, and a divorce is later applied for, the orders may, in effect, be reviewed. A judicial separation can be applied for […]