What do I have to do to get a Divorce in Ireland?

What do I have to do to get a Divorce in Ireland

The process for obtaining a Divorce in Ireland is governed by the Family Law (Divorce) Act 1996 as amended by the Family Law (Divorce) Act 2019.

Under the 1996 Act one had to be living sperate and apart from his/her Spouse for a period of four years. As a result of the 2019 Act a number of significant changes were made namely:

  1. The period of four years was reduced to two years i.e. if you can demonstrate to the satisfaction of the Court that you have been living separate and apart from your Spouse for a period of two years prior to the institution of proceedings (as opposed to when the matter comes to be dealt with by the Court) then you qualify for a Divorce provided that the other conditions are met.
  2. The legislation provided that the period of two years “living sperate and apart” can include periods of time where the couple where living under the one roof. The Court will usually scrutinise the circumstances of which the couple lived “separate and apart” if they were living under the one roof and they will need to be satisfied that there was no intimacy during that period, the parties did not socialise together, did not spend any time together (other than is necessary in relation to the parenting of their children) and generally lived separate lives from each other within the family home.

The other factors that need to be satisfied are:

  1. The parties must have been living in the jurisdiction i.e. in Ireland for a period of one year prior to the institution of proceedings.
  2. The Court must be satisfied (usually obtained by way of evidence from one of the parties) that there is no prospect of reconciliation.
  3. The Court has to be satisfied that the terms agreed by parties (or directed by the Court if the parties cannot agree) amount to “proper provision”. The Act sets out various factors to be taken into account when assessing proper provision. These factors are very wide and ultimately each case depends on its own circumstances.

If you require any advice or we can be of any assistance in relation to any Family Law aspect, please don’t hesitate to contact Brendan Dillon or Erika Coughlan on 01-2960666.

How quickly can I get separated in Ireland ?

How quickly can I get separated in Ireland ?

In Ireland in order to be separated you can put in place a separation agreement, or you can go through a Court process.

 

If everything has been agreed, then the quickest way to solve all matters is to put in place a Separation Agreement which is a binding legal agreement between the parties usually drafted with the assistance of legal advice.

The main drawback of Separation Agreements and why they are generally not used is twofold:

 

  1. They are much harder to enforce i.e. they do not form part of a Court Order so you cannot go to Court for breach of a Court Order.
  2. If either of the parties have pensions and have reached agreement in relation to the pensions, then the Trustees of the pension scheme will not be bound by the terms of the Separation Agreement. For instance, if on foot of a Separation Agreement a wife is to get 50% of the husband’s pension retirement benefits, on the husband’s retirement the Trustees may not regard itself bound by the terms of the Separation Agreement and not pay out the 50% to the wife.

Court Separation

 A Court Separation, otherwise known as a Judicial Separation, is the most common method by which parties obtain a separation. In order to obtain a Court Separation there must have been no normal marital relationship between the parties for a period of twelve months prior to the issuing of proceedings i.e. lodging of papers to start the process in the Court office. There are exceptions to this twelve month requirement i.e. if the other party has behaved in an unreasonable fashion or if there has been adultery.

The timeframe for a Court Separation will be necessary if the parties cannot agree what should happen on foot of the Separation as clearly a Separation Agreement can only be put in place if the parties are at idem on all issues.

The timeframe for the length of time a contested Court application would take place varies from county to county. In Dublin one would have to allow for a period of twelve to eighteen months for a contested application to be finalised.

If on the other hand the parties have reached agreement, they can enter into Consent Terms which can then be presented to the Court and ask the Judge to rule them. If the Judge rules them (as would normally be the case) then they have the force of a Court Order. It is also possible to make any pension agreements which have been reached between the parties an Order of Court and these can then be served on the Trustees of the pension scheme and are binding on the Trustees. This means that any agreements in relation to pensions will be implemented by the Pension Trustees as intended by the parties.

The timeframe for a consent Judicial Separation is significantly shorter than a contested application and if the parties reach agreement and finalise Court terms, they could have a Court Order obtained within a matter of months.

 

If you require any further advice in relation to any family law matter, please don’t hesitate to contact Brendan Dillon or Erika Coughlan on 01-2960666.

Collaborative Law Conference

Collaborative Law Conference

 

Brendan Dillon and Erika Coughlan were delighted to attend a Conference hosted by the Association of Collaborative Practitioners on Friday and Saturday, 16th and 17th of September. The Conference comprised training in the area of Collaborative Law and was moderated by Californian based Collaborative Lawyer Pauline Tesler who has been providing interdisciplinary collaborative divorce services to family law clients since the early 1990s.

Collaborative family law is a relatively new concept in resolving family law disputes. However, it is an internationally proven process that has a very high success rate. It involves both parties being represented by solicitors and often with mental health coaches/therapists whose role is to assist the couple working through the issues during a series of joint meetings. Very often the parties are also assisted by an independent financial consultant.

The hallmark of collaborative family law process is trust and transparency. Trust between the parties and the professional advisors and transparency in relation to disclosure.

It offers couples the opportunity to work through their family law difficulties with dignity and fairness and is particularly important in ensuring the impact of the separation/divorce onto their children is minimised to the greatest extent.

If you are separating and would like to resolve your marital difficulties in a safe and respectful fashion with your spouse assisted by experienced professionals do not hesitate to contact us on 01 2960 666 or info@dillon.ie for further information.

 

 

Jurisdiction of Courts in Family Law

Jurisdiction of Courts in Family Law

 

What Courts in Ireland deal with Family Law.

In Ireland there are five different layers within the Court system namely the District Court, Circuit Court, High Court, Court of Appeal and Supreme Court.

The vast majority of Court Separations and Divorce applications take place in the Circuit Court.

The District Court does have jurisdiction i.e. (power) to deal with Family Law matters but only in relation to interim matters such as domestic violence applications i.e. Protection Orders, Safety Orders and Barring Orders as well as interim Maintenance and Custody/Access arrangements.

Usually when proceedings have been filed for either a Separation or a Divorce in the District or High Court the District Court would not deal with interim applications relating to matters such as Domestic Violence, Custody/Maintenance although the attitude of Judges varies from Court to Court, and this may not always be the case. A District Court cannot deal with an application for Separation or Divorce as it is not within its jurisdiction.

As stated above Circuit Courts throughout the Country deal with a vast majority of Separation/Divorces.

In “ample resources” cases where property assets exceed €3million, either of the parties can decide when issuing proceedings to issue them in the High Court.

There may be circumstances where the value of the parties’ property does not exceed €3million where other assets such as business assets etc bring the value of the overall assets over €3million. In those circumstances the parties can still elect to issue proceedings in the Circuit Court if they wish in order to save costs. The cost of issuing and conducting proceedings through the High Court is generally significantly higher than in the Circuit Court.

Decisions of the Circuit Court can be appealed to the High Court and decisions of the High Court can be appealed to the Court of Appeal. In relation to appeals from the Circuit Court to the High Court it is a completely new hearing and the High Court conduct the case without regard to evidence given in the Circuit Court.

By contrast in appeals from the High Court to the Court of Appeal, there is no rehearing of the evidence as the Court of Appeal does not hear evidence. Instead, the Court of Appeal’s task is to assess whether the High Court Judge was correct or erred in law on its conclusions in relation to the decision it made.

 

For further information or advice in relation to any Family Law matter please do not hesitate to contact either Brendan Dillon or Erika Coughlan on 01-2960666.

Rights of Shareholders and responsibilities

Rights of Shareholders and responsibilities

The vast majority of companies in Ireland are run by two or a small number of shareholders.

 

Very often the businesses continue without any incident or disagreement but from time to time issues arise within a Company which causes shareholders to check their rights.

 

The rights for shareholders are enshrined in:

 

  1. Company Law i.e. the 2014 Companies Act
  2. The Company’s Constitution i.e. their rules
  3. A Shareholders’ Agreement – a private agreement between the shareholders

In general, the main shareholder rights can be summarised as follows:

 

  1. The right to vote

All shareholders have equal voting rights unless there are specific classes of shares created which give certain shareholders more greater voting rights than others.

 

  1. The right to reserve copies of financial information – this is usually in the form of the financial statements of a company at an AGM.

 

  1. Pre-emption Rights – i.e. the right to be given the opportunity to purchase new shares in the same proportion as the existing shareholders based on their existing shareholding.

 

  1. The right to seek to have the Company wound up.

A disgruntled shareholder who believes that the Company is not operated in a fair manner also has rights. In those circumstances a disgruntled shareholder can bring an application to Court to have the Company sold or to wind up the Company on just and equitable grounds. In order to succeed in such an application, the aggrieved shareholder must prove that the act/conduct complained of is designed to advance the interests of the majority shareholders i.e. mere dissent is not enough.

A very interesting recent case in the area of shareholder oppression was Mascarenhas -v- Karim where the Court of Appeal upheld the High Court in making a finding of oppression. What is interesting about this case is that the person against whom the aggrieved shareholder complained was not in fact a director or Shareholder but a spouse of an existing shareholder/director. The Court also made an interesting Order by giving the oppressed shareholder the right to buy out the shares of the majority. This is very often not a practical option for reasons of the unaffordability for a minority shareholder to buy out the majority shareholder’s shares.

This firm acted in a seminal shareholder oppression case a number of years ago in the case of Vantage Resources -v- Hamill where we successfully defended a claim by a minority shareholder that he had been oppressed.

 

For further advice on this or any issue relating to Shareholder disputes or Company Law matter please contact Brendan Dillon on 01-2960666.

 

Introduction of Sick Leave Act 2022

 

Introduction of Sick Leave Act 2022

The regulation of sick leave has usually been a matter of contract between an employer and employee.

 

For the first time legislation is now being enacted to give employees a statutory entitlement to sick days i.e. to the payment of up to 70% or a maximum of €110 per day for up to three days a year in 2022. This will increase in the ensuring years on the following basis:

 

  1. 2023 – 5 days
  2. 2024 – 7 days
  3. 2025 – 10 days

In order for an employee to qualify the employee must satisfy two conditions:

 

  1. The employee must have had 13 weeks continuous service.
  2. The employee must provide a medical certificate in relation to the day(s) being claimed for.

An employer can seek an exemption from the Labour Court if he can satisfy that there has been severe financial difficulties which prevents him from being able to afford to comply with such a scheme.

The failure by an employer to recognise the statutory entitlement of employees can give right to a complaint to the WRC which could result in an award of up to four weeks remuneration to the employee.

Employers are strongly advised to keep records of all applications made to them under the scheme and for these records to be kept for a minimum of four years.

For advice on this and any other employment related matter please do not hesitate to contact one of the Solicitors in the office on 01-2960666.

5 Tips for Employers

5 Tips for Employers

Who would be an employer? !

 

On a weekly if not monthly basis we hear about new employment related legislation being enacted.

 

There are huge responsibilities and onerous obligations on employers, in this article we try and highlight some of the more pressing factors and issues that employers should take into account in their relationship with their employees:

 

  1. Contract of employment

 Make sure that the contract is up to date and fit for purpose .For instance ,the new Sick Leave Act 2022 has been enacted and there should be provision in your employment Contract for this Act .Similarly, other relevant legislation should be covered by the Act including data protection, whistle blowing, disciplinary policies etc.

Contracts of employment should also deal with issues such as the right to put an employee on garden leave during notice, confidentiality, intellectual property and restrictive covenants i.e. the restriction on an employee in competing with the employer for a reasonable period of time following termination. The absence of such a suitably worded restrictive covenant can create huge difficulties for employers.

 

  1. Independent contractor

 Employers often fall into the trap of entering into an independent contractor agreement with somebody who effectively to all intents and purposes can be categorised as an employee.

From a Revenues perspective if the independent “contractor” does not do work for anybody else, works the same hours as an employee, has the same rights as an employee then it is likely that the contractual arrangement will be treated as an employment contract and Revenue may seek backdated PRSI payments from the employer.

 

  1. Terminating the employment contract

 Employers regularly fall into the trap of not following fair procedures or the terms of their own employment contract when seeking to terminate the employment of employees. It is very important to follow the termination provisions in your own employment contracts and also to follow fair procedures. Legal advice should always be taken when terminating an employment relationship.

 

  1. HR Issues

 These are changing all of the time and it is very important that employers maintain their policies and procedures up to date to deal with a whole variety of ever-changing issues relating to data protection, email/internet use, social media use, whistle blowing, grievance procedures etc.

 

  1. Retirement age

 The insistence in employment contracts of a retirement age of say 65 can be challenged by employees as being discriminatory and employers to be very careful that any retirement age be objectively justified.

 

 

For advice on these and any other employment related issues please do not hesitate to contact Brendan Dillon or Pauline Horkan on 01-2960666

 

Justice delayed/Justice denied/Plaintiffs be aware

Justice delayed/Justice denied/Plaintiffs be aware

 

A recent High Court case highlights the increasing willingness on the part of the Court to dismiss claims where there has been an inordinate delay on the part of the plaintiff in progressing his or her claim.

In a recent judgement of the High Court the issue of delay was examined in a case of Patrick Rooney -v- The HSE.

The Plaintiff underwent a medical procedure in May 2014 and brought proceedings by way of a personal injury summons in March 2016. It issued the proceedings against the HSE, but this was not served until 11 months later namely in February 2017.

The Plaintiff had issued the proceedings on a protective basis i.e. it did not have an independent medical report. The Supreme Court many years ago determined that in bringing professional negligence proceedings Solicitors must obtain an expert report from a professional expert witness confirming that there is a prima facia case of negligence. Sometimes the plaintiff’s solicitors may be put in a position whereby they have to issue proceedings in order to avoid the case being statute barred with a view to obtaining the expert report as soon as possible after that.

The Defendant’s Solicitors wrote several times to the Plaintiff’s solicitors seeking further details in relation to the nature of the Plaintiff’s claim but it would appear that no detailed reply was provided by the Plaintiff’s solicitor.

In February 2020, just before Covid, the Defendants’ Solicitors issued a motion seeking dismissal of the Plaintiff’s claim. There was significant delay in this motion being dealt with by the Court because of the closure of the courts as a result of Covid and indeed the Motion was struck out in the September 2020 as it would appear that the Defendant’s solicitors did not attend. A further motion was issued in March 2021.

The matter came before the Court, and it was heard by Mr. Justice Simons.

There is a case in 1996 called Primor PLC -V- Stokes Kennedy Crowley which set out the factors to be considered by the Court when deciding if it should strike out a case based on delay and these three factors are as follows:

 

  1. Whether the delay can be considered to be inordinate having regard to the nature of the proceedings and all the relevant circumstances i.e. if a case is more complicated it may well be that the delay may not be regarded as inordinate.
  2. If the answer to question 1 is yes, the Court then has to consider whether the delay can be excused and in this regard if for instance the case is particularly complicated and there are extenuating circumstances the Court may decide that the delay is justified.
  3. If it is a case that the delay cannot be excused the Court still has to consider whether the balance of justice would favour the dismissal of proceedings and in making this decision the Court has to have regard to all of the circumstances of the case including whether the Defendant acted in any way by way of acquiescence to the delay.

In the particular case in question Mr. Justice Simons found that there had been an ordinate delay. He found that the delay could not be excused, and he further found that balance of justice favoured the Defendant given the length of time since the alleged negligence took place i.e. 2014. Because this was a medical negligence case the Defendant also had to establish that on the balance of probabilities there was a real and substantial risk of an unfair trial or unjust result if the proceedings were to continue.

In making his decision Mr. Justice Simons took the following factors into account namely:

 

  1. That there was a failure to provide proper replies to particulars of the claim. This is a statutory requirement under the Civil Liability and Courts Act 2004.
  2. The Plaintiff failed to obtain an independent expert report.
  3. The Plaintiff and his Solicitors were guilty of an inordinate and inexcusable delay in progressing the proceedings for no reasonable cause of action had been disclosed against the HSE.

It may well be that the Plaintiff effectively put his/her head in the sand and did not progress this case and give proper instructions to his/her solicitor. The difficulty for Solicitors in cases such as this is that they may well allow cases to go on but if a case is struck out the Solicitor is left in a situation where they may be vulnerable to a claim for negligence by their client particularly if the Solicitor has not warned the client that ongoing delay may result in the proceedings being struck out. On the other hand, Plaintiffs may not realise that if their Solicitor is not acting in an efficient and proactive fashion that there is a danger that their case be struck out and there is an onus on them to ensure that they are fully informed, and the case is progressing with reasonable speed and efficiency.

There are lessons to be learned from this and other recent cases and there is no doubt that the Courts are less forgiving of Plaintiffs and their Solicitors in lengthy delays in progressing their claims.

 

If you have any queries in relation to this or any other litigation matter please do not hesitate to contact Brendan Dillon or one of the other solicitors in the office on 01-2960666.

 

Important case on the duty of disclosure in Bankruptcy

Important case on the duty of disclosure in Bankruptcy

Ireland has become noticed for having a relatively benign bankruptcy regime as a result of a dramatic transformation of our Bankruptcy Laws over the last decade or so. From a position of having a draconian regime where bankrupts could not get out of bankruptcy for 12 years the period is now a very manageable 12 months.
Applications for bankruptcy are made on an ex parte (i.e. one party only basis) .There is a significant onus on the Applicant to fully disclose all relevant financial details to the Court.This was recently highlighted in a case involving an applicant Oliver Kruuda who is an Estonian National who brought an application for bankruptcy in the Irish Courts. This application was challenged by a creditor on the basis that he had not disclosed the existence of existing Estonian proceedings nor had he disclosed certain relevant financial information.

In making a decision as to whether to set aside a bankruptcy the Court takes into account the following three factors:
1. Non-disclosure of material facts/information.
2. How culpable was the person who failed to make the disclosure.
3. The overall circumstances of the case.

The Court set aside the bankruptcy based on non-disclosure but also addressed the issue of jurisdiction i.e. whether the Irish Court had jurisdiction in circumstances where a creditor complained that there were already existing Estonian proceedings. It was very clear to the Irish Court that the proceedings in Estonia were categorised as “main insolvency proceedings” and as a result the High Court decided that it would not have dealt with the bankruptcy on jurisdictional grounds had it known this when the ex parte application was made. This is the first time that an adjudication Order for bankruptcy has been set aside for non disclosure in the application of a creditor.

For further information or advice on this or other related matters please contact Brendan Dillon or one of our other Solicitors on 01-2960666

Looking at an alternative to traditional insolvency mechanisms

A recent PWC report highlighted a number of concerning developments in relation to Irish Businesses such as:
1. There have been 18% more business failures in the first half of 2022 compared to
2021.
2. There have been 17% more insolvencies per 10,000 companies in quarter 2 in 2022
than in the corresponding period in 2021.
3. There have been 58% in SME Liquidations in quarter 2 in 2022 compared to quarter 1
2022.

Interestingly there are four times more liquidations per 10,000 companies in the UK compared to Ireland. This may be directly related to the fact that the subsidies given to businesses in the UK were withdrawn at a much earlier stage than in Ireland. It is fair to say that insolvencies are still at record low levels, but Irish businesses are having to contend with significant challenges such as:
1. The easing out of the EWSS.
2. Having to discharge warehoused Revenue debt.
3. The onset of high inflation.
4. The onset of high energy costs.
5. Increasing interest rates.

In May 2022 over 90,000 businesses were still availing of warehousing schemes with €2.96billion in tax debt still owing i.e. an average of €32,000 per business. In this context it is important that businesses focus on monitoring cashflow, assessing,working capital, assessing funding resources and planning for the future.
We are all aware of the traditional insolvency options such as receivership, liquidation and examinership. A new option which was introduced last year but to date rarely used known as SCARP (the small company administrative rescue procedure). This is a scheme which is similar to examinership but does not involve many of the elements of examinership which created enormous costs for companies entering into examinership. SCARP applies to companies that have a turnover of less than €12million, have a balance sheet of less than €6million and have less than 50 employees.
Two big advantages of SCARP are speed and costs. The scheme lasts for 42 days, there is no need for a court application and there is no requirement for an independent’s accountant report.

SCARP may not be the panacea for all difficulties encountered by companies who are seeking protection in circumstances where they run into financial difficulties. For example there may
be issues with landlords repudiating leases and creditors challenging the process. However, this scheme is one that has significant merit particularly given the hugely decreased
costs compared to examinership.

For further information on this or any other company law matter please do not hesitate to contact Brendan Dillon or one of the other Solicitors in the firm on 01-2960666.