Where one party brings more to the marriage

WHERE ONE PARTY BRINGS MORE TO THE MARRIAGE

 

It is often a matter of dispute in the family law case as to how much weight is given by the court to a situation where one party has brought more assets into the marriage than the other.

Some assistance and clarity was provided by a decision of Judge Binchy in DE v FG 2019 IEHC 83.

An application for both Judicial Separation and Divorce was brought by the husband.   The parties had lived together from 1996, married in 1999 and separated in 2016.    There were three children of the marriage.   The evidence by the parties suggested that the Respondent wife had brought more assets into the marriage than the applicant husband.

Having regard to the particular facts of the case, the trial Judge divided the assets on the basis that the husband would receive assets of an approximate value of €400,000.00 while the wife would continue to retain assets of approximately €500,000.00.

The Court took into the account the fact that the husband was in secure gainful employment and the wife was not. He decided he should be responsible for the ongoing maintenance of the dependent children.

Ultimately the Court must balance the assets, the relevance of the amount of assets brought into the marriage as well as the other factors set out in Section 20 of the Divorce Act in making its decision regarding proper provision.

For any further advices or assistance in many family law matters, please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666

Discovery – a recent Supreme Court decision

 

Discovery – a recent Supreme Court decision

Tobin v Minister for Defence [2019] IESC 57

A recent Supreme Court decision overturned a Court of Appeal decision which held that a High Court discovery order was too broad and placed too great a costs burden on the Defendant. The High Court order was upheld.

What is Discovery?

Discovery is where a party to proceedings seeks to inspect documents held by another party to the dispute which are relevant to the issues in the case.

Legal Discovery Test

The legal test for determining the necessity of discovery is that it must be both relevant and necessary for the fair disposal of the case and to save costs. Two further considerations include proportionality and that more efficient methods of disclosure should be pursued first.

In Tobin, the Supreme Court felt it was not necessary for a requesting party to establish that they have exhausted all other methods before seeking discovery (such as Interrogatories). The Supreme Court also noted that although not all documents discovered make it into evidence at the trial, discovery does have the effect of keeping the parties honest as oral evidence would have to be consistent with the discovered documents.

An interesting point from the Supreme Court decision was that because the Defendant put the Plaintiff on full proof of his claim, the broader discovery was allowed. The same would appear to apply to a Plaintiff who pleads very broadly – they can expect broader discovery orders against them too.

The Impact of the decision

The Court of Appeal decision appeared to suggest a reform in discovery but the Supreme Court decision makes clear that the substantive test for discovery is unchanged and that there is no need to exhaust other methods first.

 

If you have any queries on any aspect of litigation, please contact Niall MacCarthy or Brendan Dillon of this office on (01) 2960666 or niallmaccarthy@dillon.ie

Personal Insolvency Update

 

Personal Insolvency Update

 

Since the insolvency service of Ireland was established in 2013 approximately 8,000 insolvent persons have been returned to solvency according to figures released from the ISI this amounts to the restructure of approximately €10billion in debt.

In addition to this it is clear that the insolvency legislation has acted as the catalyst for financial institutions to enter into approximately €120,000 in former or alternative repayment arrangements with debtors.

It is very welcome that approximately 95% of personal insolvency arrangements have resulted in borrowers staying in their Family Home with an average write-down o €120,000.

It is important to note that Borrowers are entitled to the same protection from the insolvency legislation irrespective of the type of loan company that they are dealing with i.e. where loans may have been bought by a vulture fund their rights are protected.

At present all proposals have to go to Court for approval and there is currently a proposal with government supported by all stakeholders that debt relief notices, debt settlement arrangements and personal insolvency arrangements should be capable of being approved by the insolvency service of Ireland without the need for Court approval provided these have been agreed.

Since the insolvency legislation was initially enacted the three year period for bankruptcy has been reduced to one year .A very important introduction was Section 115A review which prevents the Banks having an exclusive veto.

Approximately 1,100 Section 115A cases have been dealt with in the Circuit in the High Court with approximate figures indicating that 40% of the outcomes have been in favour of debtors.

A free debt advisory service “Abhaile” has been set up which gives distressed borrowers access to a personal insolvency practitioner.

As economic conditions improve however, this may encourage Banks to seek more orders for sales of properties in circumstances where improved financial economic conditions may result in the greater equity in houses and the Section 115A review process may be more necessary.

All in all it is very clear that the insolvency legislation has a huge benefit to many distressed borrowers who come in the absence of this legislation would have been left in a very vulnerable position or with the option of going bankrupt which prior to the legislation would have lasted for a period of 12 years.

 

For any further information please don’t hesitate to contact us on 01-2960666

Merry Christmas from Dillon Solicitors

 

 

Thank you to all our clients for your business in 2019. We continue to work hard at improving our level of expertise and service.

We welcome your feedback, both good and bad, and thank you to the many of you that have taken the time to provide feedback in relation our service.

We look forward to serving your needs in 2020.

Instead of sending Christmas cards we have made boxes for the homeless and made a cash donation as part of our Christmas appeal.

Please note we are closing on Monday the 23rd at 1 pm and will reopen at 9 am on Thursday the 2nd of January.

Finally on behalf of all the team at Dillon Solicitors I want to wish you and yours the merriest of Christmas’s and a New Year full of joy and happiness.

LawNet Awards 2019

 

 

Pauline Horkan and Niall MacCarthy recently attended the annual LawNet conference and gala dinner which was held at Celtic Manor in Wales.

 

 

   

 

 

This year Dillon Solicitors were shortlisted for Best BD/Marketing award.

 

LawNet is a network for quality assured independent law firms and Dillon Solicitors is the sole

Associate Member from the Republic of Ireland. The firm is subject to 2 audits per year to ensure

Compliance with the ISO9001:2015 quality assurance standard and we are proud to have retained this mark since joining LawNet 3 years ago.

 

The annual conference this year comprised excellent talks from international speakers and provided

a fantastic opportunity to interact with similar firms and discuss methods of developing and maintaining high standards of client service.

 

 

Working Time – Employer’s Responsibilities

 

Working Time – Employer’s Responsibilities

Legislation – Organisation of Working Time Act 1997 (The OWT Act)

Q. What does it do? –
A. The Act regulates the rest periods and hours of work for employees

Q. What are the legal break entitlements for employees in a working day?
A. An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.-

Q. Non-compliance with Act, what implications are there –
A. failure to comply with the Act can potentially lead to a fine for employers of up to a sum of €2,500 and a possible claim to the WRC, not to mention reputational damage associated with the ill treatment of employees.

Q. What responsibilities do an Employer owe to an employee under this Act;
A. Records – The employer must keep adequate records of employees’ rest breaks, start and finishing times, hours worked on a daily basis and annual leave taken and these records must be maintained for a period of three years.

Q. How can an employer keep proper records?
A. Different methods can be used such as a clocking –in-system, designated IT systems or paper records, any of which may be accessed by an inspector from the WRC (Workplace Relations Commissioner) if required.

Q. What are an employer’s obligations to an employee for Night Work?
A. An Employer owes additional obligations to Employees who work at least three hours between the hours of midnight and 7a.m. normally or to an employee whose hours of work between midnight and 7a.m. amounts to more than 50% of the employee’s total number of hours worked in a year. If this is the case, the employee is considered a night worker. Night workers cannot work more than eight hours in a 24 hour period which may be averaged out over a period of two months.

Q. What are an employee’s Annual leave entitlements?
A. – four working weeks in a leave year in which the employee works 1,365 hours
– one third of a working week for each month in the leave year in which the employee works at
least 117 hours
– 8% of the hours the employee works in a leave year subject to a maximum of four working
weeks
– Generally an employee can work a maximum average of 48 hours in each period of seven days

Q. Are employees allowed to work outside of office hours
A. An employee may be entitled to a claim under the OWT Act for working outside of hours for eg. sending or receiving e-mails.

Q. What does the European Commissioner’s June 2019 adoption of the Work Life Balance Directive (The Directive) provide
A. The Directive seeks to increase the participation of women in the workforce, particularly through flexible working arrangements and four month’s parental leave.

Caselaw – Keepak V. Grainne O’Hara –

A business executive at a subsidiary of meat producer Kepak, was awarded €7,500 over repeated breaches of the OWT Act having been required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.

Register of Beneficial Owners- deadlines for complying with the Regulations is the 22nd November 2019

 

Register of Beneficial Owners- deadlines for complying with the Regulations is the
22nd November 2019

From 15th November 2016 Irish registered companies (with some minor exceptions) will be required to maintain an internal register of beneficial owners.

A beneficial owner is defined as a “natural person who ultimately owns or controls directly or indirectly a legal entity”

The following information should be recorded internally by each company on their ultimate Register of Beneficial Owners:

– Full name, address, date of birth and nationality
– Statement of the nature and extent of the interest held by each beneficial owner
– Date on which the individuals entered into the Register of Beneficial Owners
– The date on which a person ceased to be a beneficial owner
– If no beneficial owner can be identified the Company must then enter the names of its senior managing officials i.e. Directors or Chief Executive
– PPS number for each UBO must be obtained for onward transmission to the CRBO (Central Register Beneficial Owners) but are not retained in the internal register.
– The Company needs to record changes and beneficial owner details and deliver those details to the Central Register when they occur within a fourteen day period. This is particularly important for the transfer of shares, purchase of shares, redemption of shares, or allotment of shares.

In cases where the beneficial owners are not the direct legal owners there is an obligation on the Company to send a Regulation 7 Notice to each person it believes to be a beneficial owner which sets out all of the particulars which the Company already holds for that individual and ask them to confirm the contents. There is an obligation on the individual to respond within one month confirming or correcting the details and providing any missing information. Please note the Company may also send a Regulation 9 Notice to any third party (such as professional advisor) who it reasonably believes or knows the identity of any beneficial owner and any such third parties have the option to decline replying on the basis of having legal privilege.

It will be the Registrar of Companies that will maintain the Central Register of Beneficial Ownership of Companies which will be maintained completely separate from the Register of Companies

The deadlines for complying with the Regulations is the 22nd November 2019 in order to submit any beneficial ownership information to the Central Registrar. Any future entities incorporated after that date will have five months from the date of incorporation to make the required filings.

The public will have access to the following information for each ultimate beneficial owner:

(a) Name
(b) Month and year of birth (NB Not the day)
(c) Country of residence
(d) Nationality
(e) Statement of the nature and extent of the interest held by the beneficial owner

Penalties
The Company, beneficial owner or third party that it is believes to have information regarding beneficial ownership that fails to comply with the Regulations in relation to an internal register of beneficial owners shall be liable on summary conviction to a Class A Fine (not exceeding €5,000.00) or when conviction is on an indictment to a fine of up to €500,000.00 and possibly a jail term of up to twelve months

Employers Obligations – Sunday Work Entitlements

Employers Obligations – Sunday Work Entitlements

The recent High Court decision in Trinity Leisure Holdings Limited t/a Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova held that an express statement in a contract of employment that working on Sundays was taken into account when setting an employee’s wage discharged the employer’s obligation with regard to Sunday work. It is the first time the High Court considered this area.

The Facts of the Case

The employees worked 2 out of 3 Sundays and their contracts expressly specified an hourly rate “which includes your Sunday premium based on you getting every third Sunday off”. The contract did not explain the Sunday premium in any detail beyond that. The employees argued they did not receive their Sunday entitlements.

The Law

Section 14 (1) of the Organisation of Working Time Act 1997 provides that an employee required to work on a Sunday shall be compensated by the following means, where working that day is not otherwise taken into account when determine their pay;

  • An allowance
  • An increase in the rate of pay
  • Paid time off in lieu
  • Combination of two or more of the above

The Decision

The High Court allowed an Appeal to reverse the Labour Courts decision to award 30% premium for all Sunday hours worked between a certain period of time. The employer argued that the contracts of employment discharged the obligations under the Law outlined above. The High Court noted the wording was clear and not buried in small print. The High Court also held that the Labour Court erred in law by asking the employer to explain by way of breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday.

The Outcome

  1. The burden is now on an employee to prove they were not paid their Sunday entitlement and where a contract states the pay takes into account an obligation to work Sundays, the employee must provide evidence to prove otherwise;
  2. It is not accepted that an employer is required to identify in the contract of employment precisely what element of pay is attributable to Sunday work.

If you have any queries regarding employment law or litigation, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office.

Working Time – Employer’s Responsibilities

 

Working Time – Employer’s Responsibilities

Legislation – Organisation of Working Time Act 1997 (The OWT Act)

What does it do?

The Act regulates the rest periods and hours of work for employees

What are the legal break entitlements for employees in a working day?

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

 

Non-compliance with Act, what implications are there?

failure to comply with the Act can potentially lead to a fine for employers of up to a sum of €2,500 and a possible claim to the WRC, not to mention reputational damage associated with the ill treatment of employees.

 

What responsibilities do an Employer owe to an employee under this Act;

Records – The employer must keep adequate records of employees rest breaks, start and finishing times, hours worked on a daily basis and annual leave taken and these records must be maintained for a period of three years.

 

How can an employer keep proper records?

Different methods can be used such as a clocking –in-system, designated IT systems or paper records, any of which may be accessed by an inspector from the WRC (Workplace Relations Commissioner) if required.

 

What are an employer’s obligations to an employee for Night Work?

An Employer owes additional obligations to Employees who works at least three hours between the hours of midnight and 7a.m. normally or to an employee whose hours of work between midnight and 7a.m. amounts to more than 50% of the employees total number of hours worked in a year. If this is the case, the employee is considered a night worker. Night workers cannot work more than eight hours in a 24 hour period which may be averaged out over a period of two months.

 

What are an employees Annual leave entitlements?

  •  Four working weeks in a leave years in which the employee works 1,365 hours
  • one third of a working week for each month in the leave year in which the employee works at least 117 hours
  • 8% of the hours the employee works in a leave year subject to a maximum of four working weeks
  • Generally an employee can work a maximum average of 48 hours in each period of seven days.

 

Are employees allowed to work outside of office hours?

An employee may be entitled to a claim under the OWT Act for working outside of hours for e.g. sending or receiving e-mails.

 

What does the European Commissioner’s June 2019 adoption of the Work Life Balance Directive (The Directive) provide?

The Directive seeks to increase the participation of women in the workforce, particularly through flexible working arrangements and four month’s parental leave.

Caselaw – Keepak V. Grainne O’Hara –

A business executive at a subsidiary of meat producer Kepak, was awarded €7,500 over repeated breaches of the OWT Act having been required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.