Legal FAQs

Family Law

 QUESTION 1: I live with my partner for the past five years, we are not married. What does the Civil Partnership Act mean for Cohabitants?


 ANSWER:
The Civil Partnership Act 2010, also known as the Cohabitants Act, came into effect on 1 January 2011. It makes changes to the law pertaining to same sex couples and certain cohabitants. The Act deals mainly with civil partnerships, which can be registered by same sex couples.

Under the act there are certain rights and obligations of cohabitants. A cohabitant is one of two adults who live together as a couple in an intimate and committed relationship. There are certain financial orders which can only be awarded to Qualified Cohabitants after the break-up of the relationship. A Qualified Cohabitant is an adult who was in a relationship of cohabitation and who immediately before the end of the relationship was living with the other adult as a couple for

  • Two years or more where there are dependent children
  • Five years or more in all other circumstances

If either party was married to another at the time the cohabitation relationship ends then they are exempted from claiming under the Act.

There are a range of orders which a Qualified Cohabitant can apply to the court for. Such orders include maintenance payments, pension adjustment orders, property adjustment orders etc. In order to successfully claim any of these reliefs a Qualified Cohabitant would have to prove that

  • They are financially dependent on their former partner
  • That such a dependence arises from the relationship or the end of the relationship
  • That it is just and equitable for the court to make such an order

The second half of the abovementioned Act which deals with Cohabitants is not entirely clear and raises certain questions. One such question includes what happens when one partner buys a property, pays all the bills and their other partner lives in the property for a period of in excess of five years and then the relationship ends?  From reading the Act it appears that this partner can claim that they are a Qualified Cohabitant and therefore are entitled to certain orders, such as income, property etc.

To protect Cohabitants interests, the Act allows couples to enter into ‘opt out’ contracts, meaning that the provisions of the Act do not apply. The Law Society has suggested that a contract should be entered into whereby each cohabitant declares how much they are willing to pay towards household expenses and waive all rights to claim against the other cohabitant for pension adjustment orders etc on the ending of the relationship. However for such contracts to be valid

  • Each cohabitant must seek independent legal advice or else they must receive legal advice together and waive in writing their right to seek independent legal advice
  • The contract must be in writing and must be signed by both parties, free of coercion or undue influence
  • The existing laws pertaining to valid contracts applies

It is presumed that such contracts can still be examined by a court in a claim for relief by a Cohabitant.

The Act certainly appears to have many grey areas which need clarification, otherwise couples will find themselves in court fighting cohabitation claims.

 QUESTION 2: I recently broke up with my partner. We have a 3 year old son. My former partner will not let me see my son. I am willing to pay maintenance towards the upkeep of my child. She recently served a summons on me for maintenance. What are the options open to me?


 ANSWER:
Firstly, I would advise you to try to reach an amicable compromise with the mother of your son, or alternatively to seek mediation.

Failing this, the two main issues for consideration in your situation are:

– you will have to serve a summons on your former partner to attend the local District Court under the Guardianship of Infants Act, 1964 to arrange access to see your son

–  you will have to attend court to answer the summons regarding maintenance served on you under the Family Law Act, 1976.

The procedure involves attending at your local Solicitor who will take detailed instructions from you. An Access Summons will have to be drafted and served by registered post on the Respondent. The summons will be returnable for the next available Family Law District Court date.

On the court date in question you will attend court together with your Solicitor. Prior to the case being heard, the Judge will list out all the cases. This is known as the call over and it enables the Judge to ascertain which cases are being heard and which have settled or are in negotiations to settle. It may well be the case that the Solicitor on the other side engages in settlement talks with a view to settling the case prior to the Judge hearing it. The actual hearing of the case is held in the Judge’s private chambers and therefore confidentiality is preserved. The full title of the case is not mentioned in court, only the initials of the Applicant and Respondent.

The Applicant commences by outlining to the Judge what they are seeking. In this case you are seeking an order as regards access to see your son and you are answering a summons regarding maintenance payments.

The overriding concern of the Judge is to ensure that the ‘best interests’ of the child are being served and that ‘proper provisions’ are in place. It is extremely unusual for a court to refuse a parent access with his child. A maintenance order is one that compels the father of a child to make periodic payments to the other of such amount and at such times as the court directs. Section 6 of the Family Law Act, 1976 provides for the variation of orders, and a change in the amount can be made if there is a change of circumstances, of which there must be evidence.

It is important to note that whatever the Judge directs regarding the custody, right of access or maintenance of an infant is a court order and any person who fails or refuses to give up the infant or to allow access to the infant as required shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €254.00 or to imprisonment not exceeding six months or to both.

 QUESTION 3: My husband and I have broken up after he had extra marital affairs and he has been living elsewhere for the last six years. Am I entitled to a divorce? What are the consequences of divorce?


 ANSWER:
Divorce in Ireland comes within the ambit of The Family Law (Divorce) Act, 1996. A decree of divorce is generally granted in the Circuit Court or, on occasion, in the High Court. The Circuit Court has jurisdiction to hear cases where the property both real (land and houses) and personal (shares, cars etc.) concerned has a combined market value of less than €3 million. In order to be granted a decree of divorce one of the following factors must be present:

  1. Either of the spouses concerned must be domiciled within the State on the date of initiating proceedings OR
  2. Either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date

On any application for divorce, the courts will seek to ensure that certain grounds are satisfied before a decree of divorce is granted. These grounds are detailed in section 5(1) of the 1996 Act and are as follows:

  1. At the date of initiating proceedings the spouses must have lived apart from one another for at least four years during the previous five years. You have stated that your husband has been living elsewhere for the past six years, however even if during this time your husband had returned to the family home for brief periods, this would not prevent you from being granted a decree of divorce.

The courts have also determined that an individual can be living apart from his or her spouse whilst still residing under the same roof.

  1. There is no reasonable prospect of reconciliation between husband and wife. Section 8(1) of the 1996 Act states that ‘the court shall give consideration to the possibility of reconciliation between the spouses concerned and, accordingly may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses if they both so wish, to effect a reconciliation with or without the assistance of a third party’. The important phrase in this section is ‘if they both so wish’. Prior to filing an application for a decree of divorce, the solicitors representing the applicant and the respondent must file section 6 and section 7 certificates, which certify that they have discussed with their clients the possibility of
  • reconciliation and the contact details of persons trained to deal with same
  • mediation and the contact details of persons trained to deal with same
  • effecting a separation by means of a deed of agreement
  1. Such provision as the court considers proper having regard to the existing circumstances of the other spouse, any dependent members of the family etc.

When applying to the Circuit Court for a decree of divorce, the following documentation must be submitted:

  1. Family Law Civil Bill, which sets out your name, address, how many years you are married, how many years you have been living apart, how many children you have etc.
  2. A Sworn Statement of Means which details your income, outgoings, assets etc.
  3. A statement relating to the welfare of the children of the marriage
  4. Section 6 or section 7 certificates

In relation to your husband having had extra marital affairs, grounds for divorce in Ireland do not include any reference to the conduct or behaviour of the parties. However same may become relevant when a court is making ancillary relief orders e.g. pension adjustment orders, financial compensation orders, transfer of property other than the family home etc.

Some implications of a decree of divorce include the following:

  • The granting of a decree of divorce shall not affect the right of either parent of a child to remain as joint guardians of that child.
  • A divorced person ceases to be a spouse for the purposes of the Succession Act 1965 and the Family Home Protection Act 1976.
  • There will be certain consequences pertaining to tax

You will note that there are a number of grounds to satisfy before being granted a decree of divorce. The facts which you have supplied are limited and a solicitor will need further information in order to advise you. As in most areas of law, no two cases are the same and therefore it is recommended that you speak with a solicitor to discuss your circumstances, options and possible remedies.

Personal Injury

 QUESTION 1: I recently suffered injuries in a car accident. It was an accident in which my car was rear ended. I want to make a claim for compensation. How do I proceed?


 ANSWER:
When a person suffers a personal injury in a Motor Accident, Workplace Accident or a Public Liability Accident then they must proceed by making a claim through the Injuries Board, previously known as the Personal Injury Assessment Board, which was set up under the Personal Injury Assessment Board Act, 2003. The person making the claim is known as the Claimant and the person deemed responsible for the accident is known as the Respondent.

It is important to note that there is a strict time limit of two years from the date of the accident within which to make a claim to the Injuries Board. After this time has elapsed your claim becomes statute barred.

An initiating letter must be sent to the Respondent setting out where and when the accident took place. A Form A must be completed. This together with a medical report from a Doctor, usually your treating Doctor, together with an application fee in the sum of €45.00 are submitted to the Injuries Board. When completing the Form A great care must be taken to ensure that it is filled in correctly and that the Respondent is correctly named i.e. their correct name is submitted or in the event of a Company, that the correct legal title and registered address of the Company are submitted. Correct legal titles become particularly relevant if a case is released from the Injuries Board and one is subsequently issuing court proceedings.

Once the Injuries Board acknowledge receipt of the application and confirm that same is completed for the purpose of section 50 of the PIAB Act, 2003 the time for initiating subsequent proceedings stops. The Statute will not begin to run again until six months after the case is released.

Once the claim is completed for the purpose of section 50 of the PIAB Act, 2003 the Injuries Board will write to the Respondent asking if they consent to having the Injuries Board assessing the claim. The Respondent has 90 days to consent or decline. If the Respondent consents, then the Injuries Board assesses the case. However if the Respondent declines, the Injuries Board will issue an Authorisation allowing the Claimant to commence legal proceedings in the applicable court.

If the Injuries Board assesses the case, then in due course they will issue an Assessment. If both the Claimant and the Respondent accept the assessment, an Order to Pay issues to the Respondent giving them 28 days within which to issue a cheque to the Claimant. If either party decline the assessment then an Authorisation issues.

A person who has suffered a personal injury should never proceed without instructing a Solicitor. There are a number of reasons for this. A Solicitor has intimate knowledge of the workings of the Injuries Board process and/or subsequent legal proceedings. For example, a Solicitor will ensure that the medical report is adequate. In road traffic cases, a Garda Abstract Report may be required, or in cases where the Respondent is uninsured, a claim will also have to be made to the Motor Insurers Bureau of Ireland. A Solicitor will advise on the quantum of any assessment issued by the Injuries Board and whether this adequately compensates a person for the injuries suffered.  An assessment should never be accepted if the future prognosis is unknown.  All claims for loss of earnings must be certified and vouched receipts in respect of all special damages must be submitted.  Bear in mind that each claim commencing with an Injuries Board application may very well end up in the Courts. These are just a few, among the many other reasons, as to why a Solicitor should always be instructed when making or considering making a claim for Personal Injuries.

Will

 QUESTION 1: I am a 60 year old man and I do not have a will made. What exactly is a will and what is the procedure involved in making a will?


 ANSWER:
A will is a legal document in which a person (more commonly referred to as a testator or testatrix)  sets out their wishes in relation to the devolution of both their real and personal property upon their death. Real property relates to land and houses whereas personal property relates to shares, jewellery, car etc.

When a person dies having made a will they are said to have died testate. When a person dies having no will made they are said to have died intestate. The most important reason for making a will is that it is a clear legal document which allows a person to provide for the devolution of their property. In addition, the administration of the estate is quicker and less expensive.

It is important to remember that a will only takes effect at the date of death of the testator/testatrix. In this regard if one leaves their jewellery to their child and subsequently sells the jewellery during their own lifetime then this bequest of the jewellery to their child lapses. A will can be amended, or destroyed and made again as many times as a person wants up until the date of death.

As part of a will, you will appoint two executors who are charged with the duty of extracting a Grant of Probate. They are the persons entitled to take out a grant of probate to the estate of the deceased. The executor’s powers and duties arise at the date of death of the testator. The testator should always consider very carefully the responsibilities that he may be placing on appointed executors. The solicitor will explain who can be appointed as an executor, whether a family member can be appointed as an executor etc.

The procedure involved in making a will is relatively straight forward. A person first needs to decide who they wish to leave their property to. They then need to attend at a solicitor’s office where the solicitor will explain the legal practicalities associated with making, drafting and executing a will- some examples of this follow:

  • If you are married with no children and you have made a will, your husband/wife is entitled to 1/2 of your estate through his/her legal right share. This is reduced to 1/3 if you have children.
  • If you are married with no children but have not made a will, your husband/wife is entitled to your entire estate. If you have children, the spouse is entitled to 2/3 of the estate.
  • There are also other considerations to be taken into account if the testator has children including section 63 advancement, section 98 etc. All of this will be explained by the solicitor.

The solicitor will also explain the procedure involved in signing the will. The testator must sign his signature in the presence of two witnesses who must be present at the same time. Each of these witnesses must in turn attest by their signature the signature of the testator in the presence of the testator.

The original will is then kept in a fire proof safe in the solicitor’s office and a copy of the signed and witnessed will is given to the client.

Conveyancing Law

 QUESTION 1: I am a farmer in a rural area. I use a number of rights of way over neighbouring lands for many years. I recently heard that a new law is being brought in that may affect these rights of way.


 ANSWER:
The Act which you are referring to is the Land and Conveyancing Law Reform Act 2009. This act came into effect on the 1st December 2009 and has significantly altered the law pertaining to the acquisition of easements. Easements encompass rights in relation to land whereby one owner of land has an entitlement to enjoy rights over land owned by another person e.g. the right to access one’s own land/house by travelling across land/laneway belonging to another, the right to bring water onto your land by having water pipes laid on land belonging to another person, a right to discharge waste water through pipes located on land belonging to another person etc. The ownership of easements may be transferred when selling land to another person or when inheriting land.

Prior to the introduction of this act, one could acquire rights of way as follows:

  • The owner of the right of way could formally, in writing, grant the right of way to the person using the right of way.
  • By long periods of usage known as perscription. The user of the right of way had to establish that they had used the right of way continuously for a period of 20 years and that such usage was affected without force, without secrecy and without the written or oral consent of the owner of the right of way. Rights of way can and should be registered in the Land Registry- however, most have not been.

The introduction of the new Act has changed the law pertaining to rights of way. The requisite period of usage has been reduced from 20 years to 12 years. At the end of 12 years one does not automatically acquire a right of way. It merely gives one an entitlement to apply for a right of way.

To acquire the right of way, one needs to get the written consent of the owner of the right of way. A right of way with a map attached will have to be drafted by a solicitor and registered in the Land Registry. However, if the owner of the right of way refuses to consent to the registration of the right of way then the user of the right of way will have to apply to the Circuit Court for an order. Evidence will have to be adduced that the user of the right of way has been using same for the requisite period of time without force, without secrecy and without written or oral consent. This order will then have to be registered in the Land Registry.

Persons currently using rights of ways which have not been registered in the Land Registry have until the 1st of December 2012 to register these rights. If these are not registered by the above date, then they will become extinct and the new time limit to establish the right of way will commence from the 1st December 2009. This, in effect, means that one cannot legally establish a right of way until the period of 12 years from the 1st December 2009 has elapsed (i.e. until the 1st December 2021). If the existing right of way is not registered in the Land Registry before the 1st December 2012, then the owner of the right of way may end ones usage of the right of way during the period from the 1st December 2012 to the 1st December 2021.

The introduction of this act may have serious ramifications for the users of right of ways who do not register such rights before the 1st December 2012. In this regard if you use a right of way over another person’s land then it is fundamentally important that you consult your solicitor to ascertain as to how the introduction of the Land and Conveyancing Law Reform Act 2009 may affect you.

 QUESTION 2: I am in the process of negotiating a price on a second hand property. I have never bought a property before. I am not getting a mortgage. What is the legal procedure involved?


 ANSWER:
Generally a person finds a property to purchase through an Auctioneer. They then instruct a Solicitor to act on their behalf and to attend to the various legal requirements pertaining to purchasing a property. The Solicitor will begin by explaining the procedures involved and at the outset the solicitor will send the client a letter detailing the legal costs and outlays associated with the transfer together with anti-money laundering legislation in compliance with section 68(8) of the Solicitors Amendment Act 1994.

The Solicitor will carry out any pre-contract enquiries e.g. finance, planning documentation etc. and will advise the client in writing to have an independent survey carried out on the property. The Solicitor for the Vendor will prepare and send Contracts in duplicate together with title documentation to the Purchaser’s Solicitor. The Purchaser’s Solicitor will then check the terms of the contract and peruse the title documentation. If amendments are required to be made to the contract then same must be approved by the Vendors Solicitor.

Once terms of contract are agreed and explained to the client, the client signs the contract. The executed contracts in duplicate are sent to the Vendors Solicitor. The Vendors Solicitor then has his client sign both copies and one part is returned to the Purchaser’s Solicitor. Binding Contracts now exist. It is very important that at this stage that the Purchaser has insurance over the property. The remainder of the title documentation is then sent to the Purchaser’s Solicitor.

The next step involves the Purchaser’s Solicitor raising Requisitions on Title. These Requisitions are sent to the Vendor’s Solicitor to be answered. When returned the Purchaser’s Solicitor peruses these replies and, if satisfied, drafts the purchase deed and sends same to the Vendors Solicitor for approval. An appointment to close the sale is then arranged. Searches are obtained and these are explained by the Vendors Solicitor on closing. At closing, the remainder of the purchase monies are handed over in exchange for the keys to the property.

The next step involves registering the purchase deed in the Land Registry or the Registry of Deeds. Further documentation has to be drafted at this stage. If no loan has been obtained then the title deeds remain with the Solicitor for safekeeping or are given to the client.

There are a number of other matters which may need to be attended to throughout the process e.g. rights of ways, burdens, raising rejoinders etc. Your Solicitor will explain all matters arising as the transfer progresses.

 QUESTION 3: I own a 50 acre farm. I have farmed it for the past 20 years. The farm originally belonged to my wife’s grandfather. My wife died 8 years ago. We had no children. Recently, I discovered that the farm is registered in the Land Registry in my late wife’s grandfather’s name. What do I need to do to have the farm registered in my name?


 ANSWER:
At the outset a solicitor will need to take more facts from you and ascertain the most appropriate manner in which to proceed. From the facts supplied, it appears that a Section 49 application is required.

A Section 49 application is made when an applicant is claiming entitlement to property on the basis of adverse possession of the said property rendering the interest of the legal owner statute barred. Adverse possession occurs when a person is in sole occupation of property without acknowledgement to the legal owner and his occupation is inconsistent with the title of the legal owner. Statute barred means that the applicant has been in possession for the required statutory period and the legal owner has not, within that time period, taken the requisite action to reclaim their rights

In order to acquire title, the applicant must be in exclusive possession of the property for 12 years. However, this is reduced to 6 years where the property is the estate of a deceased person.

Section 49 applications take a considerable amount of time before being concluded. A significant amount of work is involved. Proofs must be lodged with the Land Registry as well as an application form, LR Form 5. This, in essence, is a sworn affidavit of the applicant outlining the facts of the application. Notices must then be served on all affected parties and objections may ensue from these parties, thereby delaying the application.  Affected parties include registered owners, personal representatives of registered owners, next of kin if the registered owner died intestate (without having made a will) etc.

The Land Registry raise preliminary requisitions which are a series of detailed questions emanating from the facts set out in the affidavit pertaining to the said property. Examination of the legal title must commence with the registered owner, in this case your late wife’s grandfather. As this person is deceased, all information pertaining to his successors of title must be examined. A Section 62 certificate must be lodged- this is a certificate relating to registration of title based on possession. A map of the property will in most cases have to be lodged. An indemnity will need to be signed by the applicant, indemnifying the Land Registry against any claims brought by persons stating an entitlement to the property in question.

Whether a Section 49 application is the appropriate course of action depends on the merits of each individual case and an examination of the facts must be undertaken.

 QUESTION 4: What is the position with the new Property Tax & with not paying it?


 ANSWER:
Local Property Tax (LPT) is a tax payable on the market value of residential properties in Ireland. A half year charge will apply for the year 2013. From 2014 onwards LPT will apply on a full year basis. The tax will come into effect from 1st July, 2013.

A residential property is any building (or part of a building) which is used as, or is suitable for use as a residence.

All owners of Irish property will be liable for the tax, regardless of their place of residence. If you are a tenant in a property then you will not be liable for the tax unless you hold a long term lease of a residential property which is for a duration of twenty years plus.

The tax is a self-assessed tax, charged on the market value of all residential properties. The amount that you will pay will depend on the market value of your property on the 1st May, 2013. The market value on 1st May, 2013 will form the basis of the calculation of tax for the years 2013, 2014, 2015 & 2016. Revenue will issue a LPT Return to all residential property owners in March, 2013 for completion and return. Owners will be obliged to value their properties, calculate the LPT liability, confirm payment option and submit a return by the deadline, which was 28th May, 2013.  Property values are organised into bands up to €1million. The tax liability is calculated by applying 0.18% to the mid-point of the relevant band. Residential properties valued over €1million are assessed on the actual market value at 0.18% on the first million and at 0.25 on the balance.

Property owners had to:

  1. Decide on the current market value of their property
  2. Calculate the LPT liability due
  3. Select a method of payment
  4. Submit the completed Return.

In the event that a person cannot pay the LPT tax then a system of deferral is available. However, an inability to pay and certain specified conditions must be adhered to first.

In the event that a person does not submit a Return then the Revenue will pursue the matter for the estimated amount of tax. The methods that Revenue will collect the tax are as follows:

  1. Mandatory deduction from 1st July, 2013 from your employment income
  2. Attachment to your bank account
  3. Referral of debt to a Solicitor to collect
  4. Withhold any refund due of other taxes

In addition, due to the fact that a person will have a Revenue debt, they will not acquire a Tax Clearance Certificate. Interest charges at 8% per annum apply to late payment of LPT & penalties may also apply. In the event that a person wishes to sell their property then any unpaid LPT will attach to the property and that person will not be able to sell without first paying all LPT due together with interest and penalties due.

Once a return has been filed on time, a payment method selected and honoured , then interest will not arise. In the event that one selects a phased payment option then interest will also not apply.

 QUESTION 5: I live in a rural community. My family home is on a ½ acre site. I have a septic tank. Could you please explain the situation regarding septic tanks.


 ANSWER:
On the 27th January 2011 the Houses of the Oireachtas passed the Water Services (Amendment) Bill 2011, giving effect to the measure, by 76 votes to 34. Ireland, as a member of the European Union, had to pass the Bill and comply with a European Court of Justice ruling to improve ground water quality, as they were facing a lump sum penalty of 2.7 million Euro and a daily fine of more than €26,000.00 per day, if the legislation was not enacted.

The Water Services (Amendment) Bill 2011 requires all septic tanks to be registered and upgraded, if same is deemed necessary. The problem lies with the fact that that there are no standards to access the upgraded works by nor is there any financial assistance to householders to carry out these necessary works. This leaves a grey area regarding the criteria the Inspectors will use and the subsequent policing measures. The Local Authority will sub-contract the work out to private operators. The criteria involved in defining such areas will be one of the key issues to be resolved, as will the volume of the inspections.

Homeowners will have to ensure that no roof water or surface water run-off enters the sewage treatment system. All grey water from washing machines and sinks must be treated in the sewage treatment system.

A registration fee of €50.00 will apply which covers the registration for a period of 5 years. However recently the Minister for the Environment Phil Hogan announced that the registration fee is reduced to €5.00 for those householders with septic tanks, who register within the first three months of the scheme, which comes into operation on 31st March 2012 i.e. register before 30th June 2012. After the three months have expired the original €50.00 fee will apply.

The first inspection is free. Subsequent inspections will cost €200.00 each time, on top of the cost of any necessary upgrade works. The Bill does provide for householders to appeal the result of the inspection. Following an inspection which indicates that septic tank system is not operating or maintained properly or is endangering human health or the environment, a householder will receive an advisory notice from the Local Authority. The inspection regime will be operated under the Environmental Protection Agency (EPA). If a householder is dissatisfied with this advisory notice, he can apply to the Local Authority for a re-inspection. A fee will be payable for this but will be refunded if the advisory notice is cancelled as a result of the re-inspection.

The Government has stated that the whole process must take place within ‘existing budgetary provisions’. The Government went no further than this. This may well be construed to mean that there is no financial support for the carrying out of any remedial works deemed necessary.

Another issue exists regarding suitability of sites for septic tanks. Many homeowners installed septic tanks without the approval of Local Authorities or, in certain cases with the approval of Local Authorities that should never have been granted. It may be the case that an inspection deems a site unsuitable for a septic tank, regardless of remedial works being carried out. These are serious concerns for a lot of people living in rural Ireland and further clarification regarding the Water Services (Amendment) Bill 2011 is required from the Government.