Tipp FM Legal Slot – 9th April 2013
John M. Lynch on Family Law
What changes have been brought about by the Civil Partnership Act?
Last week Gillian O’Mahony spoke on the show about Cohabitants and the rights and duties given to cohabiting couples since the Civil Partnership Act 2010 was introduced on 1st January 2011.
The Civil Partnership Act is two-fold and it also provides for the civil registration of same-sex partnerships and the manner in which civil partnerships may be dissolved.
What does the civil partnership mean for same-sex couples?
The Civil Partnership Act provides legal recognition for same-sex couples in Ireland for the first time.
The Act acknowledges for the first time that groups other than married, opposite-sex couples can form relationships which are state recognised and given certain rights.
Effectively the civil partnership is akin to marriage for opposite sex couples with virtually all the same statutory rights and obligations conferred upon the civil partners including maintenance, property, succession, pensions, social welfare and tax.
Civil Partnership is an alternative to marriage offered to couples of the same sex. Same sex couples can be civilly partnered if they comply with the various requirements of the Act, such as:
- Both partners are of the same sex
- Neither partner is married or in another civil partnership
- Parties must not be close relatives
- Three months’ notice must be given to the registrar
- Ceremony is conducted by the registrar of births deaths and marriages
- Two witnesses must be present at the ceremony
What inheritance rights do Civil Partners have?
Anyone who has been civilly partnered should be aware that the ceremony revokes a will – many couples have been together for many years and may have already made wills – they will be automatically revoked so wills should be updated.
In terms of the inheritance rights that are bestowed or granted to civil partners they are almost identical to the rights that are enjoyed by spouses.
In summary a civil partner will have:
- Entitlement to a legal right share in the estate of his/ her deceased civil partner. i.e. a civil partner cannot be excluded.
- If a civil partner dies intestate, the surviving partner will be entitled to the whole estate where there are no children.
- If there are children the surviving civil partners is entitled to two thirds and between them.
- If there are children only surviving the civil partner then the children take the estate between them.
What inheritance rights do Children of Civil Partners have?
They have the same rights and entitlements as children of a marriage. In an intestacy situation they will share the estate with the surviving civil partner. If the deceased civil partner made a will and the child is not satisfied about the provision that was made for them, the child can challenge the will by making a section 117 application.
One significant difference between the treatment of the children of a civil partnership and a marriage is that where you have an intestacy situation in civil partnership the children of the deceased civil partner can take a section 117 application – a similar provision does not exist for children of a marriage – section 117 is only an option if there is a will.
Access, Custody, Maintenance, Guardianship
Who is maintenance payable for?
There is a legal responsibility in Ireland on both spouses to maintain each other and on parents to maintain their children in accordance with their means.
Do one or both parents have to provide maintenance for their children?
Both parents have a responsibility to support their children financially. This applies to all parents, whether married, separated, living together or if they have never lived together. Child maintenance is payable for a child up to the age of 18 or to the age of 23 if the child is in full time education.
If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit on the maintenance payments.
A standard rate of child maintenance payment does not exist here currently but the District Court has the power to award maintenance of up to €150 per week per child and up to €500 per week per spouse and if someone is seeking higher maintenance than this they will have to apply through the Circuit Court.
If someone is not working, will they still have to pay maintenance?
Yes. I have seen cases where the Judge will award up to €40 per week child maintenance out of someone’s Social Welfare.
Does a parent who pays maintenance gain any rights over the children?
No. Paying maintenance does not give a parent any rights of guardianship or access.
Can access be denied without maintenance?
Access cannot be dependent on maintenance therefore if an ex-partner does not pay maintenance s/he may still be granted access. A child’s welfare takes priority, which means having both parents in his/her life.
What is Spousal Maintenance?
A married person can seek maintenance following the breakdown of the marriage. The obligation to maintain and support a husband/wife continues even if the person paying the maintenance remarries and takes on the responsibility for the support of a new spouse and dependent children. Subject to the terms of any agreement reached or to the terms of a court order, a husband/wife only stops being responsible for the maintenance and support of the person receiving the maintenance when that person dies or remarries.
Surprisingly, recent report findings showed that spousal maintenance is not the norm in Ireland.
If custody is given to a father, does spousal maintenance apply to the father?
At Lynch Solicitors we deal with situations where a mother pays maintenance to a father. The rights are the same, irrespective of whether the father or the mother is financially dependent on the other.
Is there Legal Aid for someone who wants to go to Court for Maintenance?
There is free legal aid granted to anyone who is earning less than €18,000 per year.
If a couple is not married, but cohabiting are they entitled to maintenance?
Prior to January 2010 parties were only entitled to spousal maintenance if they were married.
This all changed with the Civil Partnership Act. Under the Civil Partnership Act a cohabiting couple must have lived together in an intimate and committed relationship for five years or two years if the parties have children together.
A cohabiting couple does not have automatic rights. They must show financial dependency as a result of the relationship and its demise and it is a matter for the Courts to decide who “qualifies” as a cohabiting couple. The Court does, if the parties qualify, have the power to award maintenance to an ex-partner.
When a marriage/relationship breaks down how is the question of maintenance i.e. financing the needs of children and the dependant spouse, arranged?
There are a number of options available:
- In situations where parents are unmarried or separated, they can agree between themselves what maintenance is paid and they can agree the method of payment etc.
- Alternatively, each parent can engage their Solicitor who will attempt to negotiate an agreement. Both parents can then sign this agreement which can later be made a rule of court. A rule of court means that these agreements have the same effect as a maintenance order
- If the parties cannot agree upon maintenance, either party can apply to court for a maintenance order and in these circumstances the Judge decides what maintenance is to be paid.
How does the Court decide on the level of maintenance?
The Judge will look at the individual circumstances of each case and the Judge will decide what maintenance would be appropriate. Each party will have filed in Court an Affidavit of Means setting out their income and expenditure and the Judge will look at each of these in detail and it comes down to needs versus resources. What does one party need and what can the other party afford.
Basically the calculation of how much maintenance is to be paid in any particular case is ultimately a matter for the court to decide, and each case will stand on its own facts. There is no set formula and the Court must attempt to strike a balance in all circumstances and will also take into account all matters it considers proper.
When a Maintenance Order is made, how is the money paid?
The maintenance can be paid by standing order directly between the parties’ bank accounts or it can be paid through the District Court Office. The advantage of it being paid through the District Court Office is that the District Court Clerk will monitor the payments and will pursue the payer if he/her defaults. The District Court records all payments so a print out of these is available to either party on request.
What recourse is there if maintenance is not paid as required?
In cases where a spouse fails to comply with a court order and does not pay the amount awarded, an Attachment of Earnings Order can be sought from the court. This order results in the maintenance amount being deducted at source by the spouse’s employer- The employer has to comply with this otherwise he would be held in contempt of court.
If the spouse is self-employed, an Enforcement Summons can be applied for. When that person comes before the Court the Judge can if he has no Defence, imprison him or her for a maximum period of three months.
Can a maintenance order be varied?
Yes, you can apply to the Court to have the maintenance order varied if there is a change in circumstances e.g. the paying party loses his/her job. However, you are liable for the amount under the original order until such time as it is varied by the Court.
Who will be in Court when my maintenance application is being heard by the Judge?
All Family Law proceedings are heard in-camera which means that they are heard in private, this means that no of the public are allowed to sit in the Court room during the hearing of family law cases. The only people that will be present are both parties, their Solicitors, the Judge and the Court Clerk.
Can a mother look for maintenance for the children if the father is not on the birth certificate?
Yes, being on the birth certificate is irrelevant to these types of applications.
What does Guardianship mean?
Guardianship means the rights and duties of parents in respect of the upbringing of their children. It includes the duty to maintain and properly care for the child and it refers to the decisions which must be made during the child’s lifetime which relate to the general lifestyle and development of the child. Being a Guardian requires a person to partake in the important decisions in a child’s life e.g. education, religion and general rearing.
Who can be Guardian?
The natural mother is automatically guardian. If the mother and father are married at the time of the birth of the child the father is automatically guardian.
How can an unmarried father be appointed Guardian?
The natural father who is not married to the mother can apply to the Court to be appointed Guardian of the child. However, the easiest route to appoint a father a guardian is if the mother agrees to his appointment, both parties can sign a statutory declaration in front of a Solicitor appointing the father guardian.
An unmarried father has to take positive action in order to become Guardian of his children. This involves either:
- Marrying the mother of the child subsequent to the birth
- Making an application to the Court to be appointed Guardian under section 6A of the Guardianship of Infants Act 1964
- Asking the mother to sign a Declaration consenting to both parents being joint Guardians.