For how long can either party drag out a divorce i.e. by not sending in the bank statements in time?
We have received many queries like this where one party frustrates the application for divorce or judicial separation by not submitting their Affidavit of Means or details of their property, assets or income. We are shocked to hear that some solicitors say in response to their clients that there is nothing that can be done.
Firstly, every spouse in proceedings for divorce or judicial separation where orders are sought concerning maintenance, lump sum provision, property, financial compensation orders, succession act rights or pension adjustment orders must submit to the other spouse "such particulars of his or her property and income as may reasonably be required for the purposes of the proceedings". Where a person fails or refuses to comply the court can direct the person to comply. [Sections 38 (7) and (8) of the Family Law Act, 1995 and Sections 38 (6) and (7) of the Family Law (Divorce) Act, 1996]
Secondly, under a new statue law called the Circuit Court Rules (Case Progression in Family Law Proceedings) 2008, S.I. 358 of 2008 the County Registrar can make directions on the vouching of an Affidavit of Means "within 28 days of the date of filing of the Respondent's Affidavit of Means or 21 days before the date fixed for for a case progression hearing, whichever is the earlier".
Where the Respondent has not filed a Defence and a case progression hearing has been listed, each party shall vouch his Affidavit of Means within such time as the County Registrar shall direct. In the event of a party failing to file, serve or properly vouch the items referred to in, their Affidavit of Means as required by the rules the County Registrar can on application by notice of motion or in the course of case progression make an Order allowing more time for the party in default to file or serve an Affidavit of Means and/or vouch (in such manner or on such terms as the Court, or the County Registrar as the case may be, directs) the items referred to in an Affidavit of Means or make an Order for Discovery.
The Court may also make an Order that such party shall not be entitled to pursue or defend as appropriate a claim for any ancillary reliefs under the Acts and may grant Orders under Sections 38 (7) and (8) of the Family Law Act, 1995 in the case of judicial separation and Sections 38 (6) and (7) of the Family Law (Divorce) Act, 1996 in the case of divorce directing the person to comply with such particulars of his or her property and income as may reasonably be required for the purposes of the proceedings.
It is therefore not possible for a spouse or his/her solicitors to hold up proceedings indefinitely. Either spouse or their solicitors can apply to the Courts or the County Registrar to have the defaulting party comply with the Court rules.
Tuesday, 13 October 2009
Friday, 9 October 2009
What is collaborative family law and why are some solicitors now advertising its use?
Collaborative family law is a model for the conduct of family law negotiations. It involves the parties and their respective legal representatives working together for the sole purpose of reaching a settlement in regard to the issues that might divide parties. It is sold on the basis that these four-way meetings with both spouses and their two sets of legal representatives, including solicitors and barristers, all present together represent a better problem solving approach to issues of disagreement than the normal adversarial or hostile approach.
If there is a failure to reach agreement or a threat of legal proceedings then the legal representatives are obliged to withdraw and they are prohibited from ever representing their clients again in contested proceedings. They must then assist with the orderly transfer of the matter to any new legal team hired by the parties.
There are a number of points we would make in relation to this system. Firstly, there seems to be a complete forgetfulness on the part of solicitors that they are duty bound by statue law to assist parties with reconciliation, mediation and settlement by agreement. Their choice of operating the present adversarial and hostile system is entirely of their own making. For some of them to now sell a new approach while their colleagues continue to operate the old adversarial system is nothing short of an acceptance that the system operated by the majority is flawed and has been for some time.
Pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act, 1989 and Sections 6 and 7 of the Family Law (Divorce) Act, 1996 solicitors acting for Applicants and Respondents in applications for judicial separation and divorce must prior to the applications being made
(a) discuss with the Applicant and Respondent the possibility of reconciliation and give them the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and
(b) discuss with the Applicant and Respondent the possibility of engaging in mediation to help effect a separation or a divorce on a basis agreed between the parties and give them the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and
( c) discuss with the Applicant and Respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the parties and providing for their separationWe belive that the legal practicioneers are not doing enough to encourage and assist parties in negotiating a settlement as they are duty bound to do and if they were we would not need a new legal based system.
Secondly, we would say that the pressure of reaching a settlement using the collaborative model now shifts to the legal teams if they wish to remain as representatives and in that scenario who is to say that their focus is more on a settlement at any cost rather than a fair settlement for both parties. Legal writers have critised the free government mediation service in that they have claimed that mediators through lack of training or skills may be unable to control a domineering spouse. The same concern applies here. A spouse who will not agree can exert pressure on the legal teams to either award him/her more or withdraw. Present negotiations by legal teams on the steps of the court are an example of their flawed approach to negotiations and many decisions made in such an atmosphere of hurried negotiations coupled with the threat of another adjournment have produced decisions that are not only unfair but a downright disgrace that has sown the seeds of bitterness between spouses who may have to continue together parenting their children. The change that is needed is in the attitude and practice of the legal profession to family law issues.
Thirdly, the present charges by solicitors and barristers will ensure a nice tidy sum if you are engaged in a series of four-way meetings. Collaborative law may be beneficial but it will cost you.
We believe the governments free mediation service should be improved and extended and given statutory powers to determine issues in regard to the settlement of family law issues including, the family home, custody and access to children, maintenance etc by trained and qualified mediators. If either party wishes to contest their decisions then they should have access to the courts and if the courts find against them then they should pay all costs. The State should be active in providing alternative methods of settling issues relating to marriage than by the use of our extremely busy and costly court system and lining the pockets of solicitors and barristers as they play chess with peoples lives.
We have parents ending up in District Courts being threatened with jail, as if they were criminals, because they will not abide to unfair court decisions sometimes based on allegations by one spouse against the other. And why on earth should consenting couples have to apply through a Circuit Court to obtain a divorce. They married through a marriage registrar should they not be allow end the marriage through the same process. We need a new system alright, one that is far removed from the legal profession.
Collaborative family law is a model for the conduct of family law negotiations. It involves the parties and their respective legal representatives working together for the sole purpose of reaching a settlement in regard to the issues that might divide parties. It is sold on the basis that these four-way meetings with both spouses and their two sets of legal representatives, including solicitors and barristers, all present together represent a better problem solving approach to issues of disagreement than the normal adversarial or hostile approach.
If there is a failure to reach agreement or a threat of legal proceedings then the legal representatives are obliged to withdraw and they are prohibited from ever representing their clients again in contested proceedings. They must then assist with the orderly transfer of the matter to any new legal team hired by the parties.
There are a number of points we would make in relation to this system. Firstly, there seems to be a complete forgetfulness on the part of solicitors that they are duty bound by statue law to assist parties with reconciliation, mediation and settlement by agreement. Their choice of operating the present adversarial and hostile system is entirely of their own making. For some of them to now sell a new approach while their colleagues continue to operate the old adversarial system is nothing short of an acceptance that the system operated by the majority is flawed and has been for some time.
Pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act, 1989 and Sections 6 and 7 of the Family Law (Divorce) Act, 1996 solicitors acting for Applicants and Respondents in applications for judicial separation and divorce must prior to the applications being made
(a) discuss with the Applicant and Respondent the possibility of reconciliation and give them the names and addresses of persons qualified to help effect a reconciliation between spouses who have become estranged, and
(b) discuss with the Applicant and Respondent the possibility of engaging in mediation to help effect a separation or a divorce on a basis agreed between the parties and give them the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged, and
( c) discuss with the Applicant and Respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the parties and providing for their separationWe belive that the legal practicioneers are not doing enough to encourage and assist parties in negotiating a settlement as they are duty bound to do and if they were we would not need a new legal based system.
Secondly, we would say that the pressure of reaching a settlement using the collaborative model now shifts to the legal teams if they wish to remain as representatives and in that scenario who is to say that their focus is more on a settlement at any cost rather than a fair settlement for both parties. Legal writers have critised the free government mediation service in that they have claimed that mediators through lack of training or skills may be unable to control a domineering spouse. The same concern applies here. A spouse who will not agree can exert pressure on the legal teams to either award him/her more or withdraw. Present negotiations by legal teams on the steps of the court are an example of their flawed approach to negotiations and many decisions made in such an atmosphere of hurried negotiations coupled with the threat of another adjournment have produced decisions that are not only unfair but a downright disgrace that has sown the seeds of bitterness between spouses who may have to continue together parenting their children. The change that is needed is in the attitude and practice of the legal profession to family law issues.
Thirdly, the present charges by solicitors and barristers will ensure a nice tidy sum if you are engaged in a series of four-way meetings. Collaborative law may be beneficial but it will cost you.
We believe the governments free mediation service should be improved and extended and given statutory powers to determine issues in regard to the settlement of family law issues including, the family home, custody and access to children, maintenance etc by trained and qualified mediators. If either party wishes to contest their decisions then they should have access to the courts and if the courts find against them then they should pay all costs. The State should be active in providing alternative methods of settling issues relating to marriage than by the use of our extremely busy and costly court system and lining the pockets of solicitors and barristers as they play chess with peoples lives.
We have parents ending up in District Courts being threatened with jail, as if they were criminals, because they will not abide to unfair court decisions sometimes based on allegations by one spouse against the other. And why on earth should consenting couples have to apply through a Circuit Court to obtain a divorce. They married through a marriage registrar should they not be allow end the marriage through the same process. We need a new system alright, one that is far removed from the legal profession.
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