Tipp FM Legal Slot – 8th January 2013
Andrea Gleasure on Reviewing Your Family Circumstances[soundcloud id=’167065638′]
During the post-holiday period; Christmas and summer, we see an increase in separations and family law matters.
Before Christmas we advised separated and divorced parents on how best to make access arrangements for the Christmas period. Today I will discuss various elements of family law disputes, particularly the most distressing part of family law disputes – dealing with children.
Remind us again, what is ADR (Alternative Dispute Resolution) and why is it suited to Family Law disputes?
In sensitive family law matters ADR (Alternative Dispute Resolution) should be exhausted before going down the court route. ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for the individuals who are already involved in stressful situation.
ADR, instead of Court, is more confidential and versatile, faster and less costly and better for maintaining relationships if people reach a mutually acceptable decision.
There are many forms of ADR including structured negotiation, collaborative law, mediation and arbitration. Mediation is usually the chosen method in family law disputes.
Mediation is a swift, cost efficient method of dispute resolution. It is based on the principle that most people can resolve their own disagreements if given the right encouragement. Mediation is a non-adversarial method of dispute resolution, which means that the people involved own the resolution. It is a negotiation between the people involved in the dispute instead of negotiation between their solicitors and barristers. Mediation facilitates the wishes of all parties involved in order to produce an appropriate result.
Why and how can two people who are at loggerheads come to an agreement?
The people in dispute don’t necessarily have to be in the same room. There can be two separate rooms and if they are working well they can be brought together to deal with their dispute in a civil way. The Mediator asks the parties about points at issue. The function of mediator is to facilitate an agreement between the parties, not to decide the outcome for them.
What happens if one person/party is completely unreasonable?
If mediation doesn’t work, the Mediator gives a recommendation. If mediation does not resolve the dispute the Court will attempt to act in the best interests of the child.
Will the child ever be asked what s/he wants?
There’s a big movement towards the child’s voice being heard. Generally, if the child is mature and at certain age, the Court will take their wishes into account.
Why is the area of Guardianship so important, particularly for unmarried fathers?
A lot of fathers are unaware that if they are not married to the mother of their child/children, they have no guardianship rights per se. Fathers must proactively apply for guardianship. This poses no problems if the parties are consenting; a declaration is simply signed by mother to state that the father is guardian. This is the most efficient way of doing it without going to Court.
Guardianship does not mean custody or day-to-day care of the child. Effectively, if the mother dies, it means there is another responsible adult to take care of the child.
However, if the mother does not think the father is a good parent the issue of guardianship can be resolved in Court. The Court will grant guardianship where the father is, in fact, involved in the child’s life and will continue to be so.
What happens If a parent who pays maintenance is now unemployed?
A situation I often see arising is where a parent becomes unemployed and maintenance becomes an issue. While the Courts are very reluctant to wipe out maintenance they will reduce it where the parent’s financial situation changes. This can cause further difficulty between the parents and I always advise that access should not depend on maintenance. The courts take a very dim view of using access as a negotiating term for either paying or receiving maintenance.
A solicitor receives a phone call from a mother stating the father of her child has arrived to collect the child but he has not paid any maintenance. Should the father be allowed to spend time with his child? The Courts are of the view that it is in the best interests of the child to spend time with both parents and that children shouldn’t be used as a negotiation tool.
Is maintenance tied to guardianship, custody and access?
This is an area of concern all year round. The courts take the view that, with it comes to custody, access and guardianship the best interests of the child is the most important consideration. The courts now invariably take the view that it is in the best interests of the child to spend time with both parents. It is also worthwhile stating that it is in the parties’ interests to reach agreement between themselves rather than having a court imposed arrangement.
If the parties cannot reach agreement between themselves or by mediation they may have no choice but to go to court. When going to court It is important to realise that as a court of law and fact – the court can only make a decision when they are in possession of all the facts. You should therefore make sure that you can prove any allegation or support and the fact that you want the judge to take into account.
Mixing money with the child’s welfare is not advisable.
The Courts consider two issues in this regard:
- Is it more beneficial for a child to have a relationship with a father?
- Is it, therefore, right to deny the child that right simply because a parent is failing to deal with maintenance?
According to the Courts – you don’t mix the two.
More generally, what kind of agreements can be put in place in Family Law matters?
There are many forms of different agreements which can be made between the parties when you are dealing with family circumstances – co-habitation agreements, separation agreements, prenuptial agreements, consent divorce and judicial separation agreements and parenting plan.
Like in all areas of law, it is possible to avoid confrontation and sit down and work out an agreement between the parties.
Cohabiting couples can have cohabitation agreements; married couples who are separating can have separation agreements; people who are getting married can have prenuptial agreements; and people who are separating can also have court orders by agreement; and separating parents can incorporate a parenting plan into their separation agreement.
When should a married couple consider a Judicial Separation or a Divorce Decree?
Where marriages have broken down and the parties have agreed that there is no possibility of reconciliation, consideration should be given to applying for judicial separation orders and or a divorce decree.
Orders are essential in areas such as pension rights and also offer the parties a certain amount of finality.
There have been a number of recent Supreme Court judgements which have set down ground rules for inherited property and division of assets on separation, which now need to be taken into account in the context of any current divorce or judicial separation applications.