There is much useful information available on the Courts Service website to assist anyone who is contemplating family law proceedings. Whether you wish to seek an Order from the District Court (which sits once a month in Kilkenny) or to simply agree the terms of a Separation Agreement or indeed to commence proceedings in the Circuit Court (which has the power to deal with Judicial Separations and Divorces) it is important that you seek legal advice before proceeding.
All family law proceedings are subject to the in Camera rule, which means that proceedings are conducted in private, and only the officers of the court, the Judge, the parties in question and the clerk are usually allowed to be present during the hearing. Any third party witnesses are usually asked to remain outside the courtroom and enter only for the purpose of giving their evidence, and being cross examined.
**You are entitled to have a Victim Support assistant accompany you, in certain circumstances.
There are a number of remedies available to the parties to a marriage which has broken down. The first issue that parties should be asked to consider is whether or not mediation is possible/feasible. In the event that it is, it is to be recommended in that any resolution to what is normally a complex set of issues, in order to be successful, requires the full focus and complete input of all the parties involved. Only they can fully appreciate the difficulties involved, and are in a position to suggest possible solutions.
In the event that mediation is not possible, or was undertaken but did not yield any agreement, then parties must consider an application to court if they require an Order, or a Separation Agreement where terms regarding property, maintenance, access and other relevant issues can first be negotiated and then hopefully agreed.
In terms of court proceedings, the type of court and venue for the proceedings is dependent on the place of residence of the parties, and the type of application involved.
THE DISTRICT COURT:
The District Court (which sits once a month in Kilkenny) has jurisdiction to deal with applications regarding guardianship, maintenance, arrears of maintenance, access, relocation, and domestic violence. The court commonly has 50 plus cases in its list on any given day, and the sittings usually start at 10.30 a.m.
The court gives priority to applications under the Domestic Violence Acts, so that it is possible to apply on any District Court day for a Protection Order (which is an interim Order given in the absence of the other party) and then have a hearing for either a Safety Order or a Barring Order on the next available Family Law Day, when the other party (the respondent) is present and given the opportunity to put forward their version of the situation.
The District Court also has jurisdiction to deal with Childcare applications, and all of these cases were transferred for hearing to Carlow Courthouse some years ago by the then District Court Judge. Parents and children are entitled to legal representation, and additionally, children are entitled to have a Guardian Ad Litem (who is a person with appropriate qualification and experience in either social care, or psychology) appointed to give them a voice in the proceedings.
THE CIRCUIT COURT:
The Circuit Court (which sits on average about 4 or 5 times per annum) deals mainly with applications for Judicial Separation or Divorce and Nullity. The Court orders made in these types of cases include Property Adjustment Orders (where the court may direct the sale of a particular property or the transfer to a particular party) and Pension Adjustment Orders, as well as maintenance and access provisions.
Both Court procedures oblige parties to prepare Affidavits of Means, and to provide documentation to back up the contents of same. The rules of the Court dictate that documentation must be filed with the Court office and served on the other side, and then a set of mini hearings before a County Registrar establish whether or not all the necessary vouching documentation has been exchanged before the case is transferred into a list of cases, all awaiting a hearing date.
It is recommended when applying to the Circuit Court to have legal representation in the form of a solicitor and a Barrister. Our firm deals solely with Private Family Law clients. Please contact us today to arrange a Consultation.
Depending on the issues, the parties involved, and the circumstances of your case, it may be possible to arrange settlement talks before the hearing of your case, so that the possibility of reaching an agreement between the parties can be explored. If an agreement is reached, the legal representatives will draft a document to reflect what has been agreed, and an application will be made to the Court to have a Consent Order made, whereby the Court itself will adopt the agreed terms and make them an Order of the Court. This has obvious advantages not least of which is the avoidance of an oral hearing and all that comes with it.
There are usually no Orders made by either the District or Circuit Court for costs, which means that ordinarily each party pays their own legal fees. There are some, rare exceptions to this rule, but any departures from this norm would be at the complete discretion of the Court dealing with the particular case.
RIGHT OF APPEAL.
Each party receiving an Order from a District or Circuit Court has the right of appeal within a period of 14 days. Your appeal is to the court of jurisdiction above that in which the Order has issued. So in other words, your appeal in relation to a District Court Order is to the Circuit Court.
If there is ample and justifiable reason for the decision to appeal being made outside of that time frame, then leave can be sought from the relevant court involved for permission to lodge an appeal later than the given time frame. Your legal representative will be in a position to advise you whether or not you should consider an appeal.
In the event that you choose not to proceed to Court for an Order, you may wish to simply agree certain terms with your former partner, and those terms can be signed after the final agreement is reached. Such a document is called a “Separation Agreement”. Your solicitor will contact your former partner’s solicitor, and a process of negotiation can commence, whereby one solicitor will draft the agreement, and the other may suggest amendments. Eventually, a version can be agreed and same can be signed by both parties. Separately, other legal documents will be required in order to transfer property, but the intention to do so can be reflected in the Separation Agreement and signed by the parties. A Separation agreement can contain clauses regarding payment of Maintenance, arrangements for Access to children, the transfer of property, the payment of utilities, mortgage etc. but is dependent for its success on the good will of both parties to follow through and comply with what is contained in the document. Again, your solicitor should be in a position to advise you whether this type of remedy is likely to be successful in your particular case.
Our Family Law Solicitors deal solely with Private Family Law Clients and does not deal with Legally Aided Family Law. Our Family Law Solicitors want to ensure that their Private Practice clients come first. If you wish to arrange a consultation with our Family Law Solicitor today please feel free to Contact Us.