Circuit Court has the same jurisdiction as the High Court to hear divorce, judicial separation and nullity applications. Most family law applications are brought in the Circuit Court. If complicated issues are involved, the case may be brought in the High Court. Most family cases are heard in private. This is referred to as being heard in camera.
When dealing with family matters, the Circuit Court is referred to as the Circuit Family Court. As with other Circuit Court cases, there is a right of appeal against the decision to the High Court. Point of law may be referred to a so-called case stated to the [Court of Appeal].
In divorce matters, where the property value exceeds €3 million, the matter must be brought in the High Court unless the parties consent to its being brought in the Circuit Court.
Family Law Civil Bill
Proceedings for divorce, judicial separation, relief after foreign divorce or separation, nullity declarations of marital status and determination of property matters, together with relief in judicial separation and divorce matters, are instituted by a Family Law Civil Bill in the prescribed form.
The various family law Civil Bills for divorce, separation, nullity, property disputes, provision from the estate of a spouse, guardianship and maintenance require certain details prescribed by the respective rules in each case. The particulars specified in legislation must be incorporated into the relevant Civil Bill.
An application for leave to issue proceedings is required in relation to relief after a foreign divorce or separation outside the State. A unilateral application is made for consent to the issue of the proceedings.
An application may be made in behalf of a dependent person for relief on his or her behalf.
Family law Civil Bills are served by registered post at the respondent’s last known address. If the respondent wishes to contest the application, he must enter an appearance within 10 days in the specified format.
A defence must be entered within a further 10 days. The documents are served on the applicant (or in most cases) his or her solicitor and where prescribed, a copy is filed in the Circuit Court office.
In practice, there is scope for the extension of time for an appearance and defence. This would be usually permitted by court order in the absence of consent.
In filing a defence, an affidavit of means and affidavits of welfare in compliance with the rules are required. The notice must be served on trustees of pension schemes where pension issues arise.
Default of Appearance
Where the respondent fails to enter an appearance or file a defence, an application can be made for an order in default. Prior to issuing a motion, the applicant must give at least 14 days written notice to the respondent of the intention to apply for judgment in default of defence.
If a defence is filed, then an application for judgment may not be sought. A respondent may make a counterclaim for independent relief and orders. This may shall be included in the defence.
The court may on a motion for judgment and on hearing such verbal evidence as may be given, make orders in the terms sought in the Family Civil Bill, or may give permission to the respondent to defend the claim(s) in whole or in part,
Once a defence has been entered on a Family Civil Bill, the applicant or other party may serve a notice of trial or notice to fix a date for trial, depending on the practice in the Circuit concerned.
Save where the court otherwise directs, parties who are on notice of the proceedings such as pension scheme trustees, may make an affidavit of representation.
A certificate in relation to mediation is required in judicial separation and divorce matter. Affidavits of means and welfare must also be filed where applicable.
An affidavit of means must be vouched in the manner prescribed by each party. The affidavit of means must set out details in the format prescribed of income, assets, debts, expenditure and liabilities from whatsoever source. Where pension relief is sought, details in relation to the pension scheme must be filed.
An affidavit of welfare applies in relation to applications affecting children. It must be given in the format specified in the rules.
Interim orders and preliminary orders may be made in the context of the proceedings on foot of an application by motion. The application may be for interim orders, such as in relation to maintenance, guardianship and the appointment of medical and psychiatric assessors. Application may be made for discovery and inspection in the same way as in general civil proceedings.
Costs in proceedings may be measured by the judge and if not measured may be taxed in default of agreement by the County Registrar or in accordance with a scale of cost which may be prescribed.
Case progression rules have been introduced for family matters in the Circuit Court. The purpose of case progression is to ensure that the proceedings are prepared for trial in a manner which is just expeditious, likely to minimise the cost and time and ensure that court resources are used optimally.
The County Registrar must list a case progression hearing a person not less than 70 days after the filing of the defence and the requisite affidavits. The parties are summoned to attend, and a questionnaire is furnished to the parties.
And the initial date for an application for judgment in default of appearance or defence before him or her, the County Registrar may have made such enquiries are necessary that the motion is not contested, transfer the matter to the court list of motions.
If the motion is contested, he may appoint a date for case progression. At the case progression hearing, he may give time for entry of an appearance, the filing of defence and affidavit of means and of welfare.
Case Progression Hearing
An applicant or the respondent may apply to the County Registrar for a case progression hearing. Each party must lodge with the County Registrar, and serve on the other party, at least seven days before the date fixed for the case progression hearing, a case questionnaire to be completed.
The County Registrar must maintain a record which may be in electronic form of all case progression proceedings. A copy of the record is placed on file and is available to the parties to the proceedings.
A case progression hearing may be adjourned, to enable an order made or direction to be given to be complied with.
At the hearing, the County Registrar may fix the time and mode of trial and r may give directions as to the service of notice of trial. He may make directions in respect of arrangements for the trial.
At the case progression hearing, the County Registrar shall
- establish the steps remaining to be taken to prepare the case for trial.
- fix a timetable for the completion of the preparation of the case for trial.
- adopt a timetable proposed by the parties if reasonable.
- make orders in relation to pleadings, statements of issues, particular of discovery and inspection
At the hearing, the County Registrar might give directions for the vouching of items referred to in the affidavit of means where there is a dispute in relation to vouching of particular items or their adequacy.
The order may direct expert witnesses to consult with each other and identify the issues in respect of which they intend to give evidence and/or reach an agreement where possible and consider any matter which the County Registrar or judge may direct them to consider.
Witnesses may be required in a memorandum to be jointly submitted and delivered to give particulars of the outcome of the consultation within such time as the County Register shall specify. The outcome is not to be binding on the parties.
Case Progression Issues
A case progression hearing may be adjourned from time to time for the purpose of allowing any steps directed by the County Registrar or other matters required to be done, to be carried out. Where there has been undue delay or default in carrying out a step, the matter may be listed for the next sitting of the court. Where the County Registrar so concludes, he must furnish a report to the court setting out the delay and default.
Solicitors appearing for the parties or the parties themselves must attend the case progression hearings and any adjournment. The parties may be ordered to attend even if represented. Parties attending must be sufficiently familiar with the proceedings and have authority from their client to deal with matters that are likely to arise. Counsel’s fees are allowed only where the County Registrar so certifies.
Costs may be awarded in connection with a case progression hearing as between the party. Cost may be awarded against the party where a case progression hearing cannot conveniently proceed by reason of a failure of a party to be prepared for the hearing or by reason of default and complying with an order or direction.
In a family Civil Bill case, court evidence is given verbally. The hearing is in private.
The parties may agree in relation to all the reliefs and orders to be made, in which event they may apply to have the agreement embodied in a court order.