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What is Domestic Abuse?

Domestic abuse includes all kinds of physical, sexual, mental, financial and emotional abuse within an intimate relationship. Domestic Abuse can happen to anyone, male or female, It is often overlooked, excused, and denied. This is especially true when the abuse is psychological, rather than physical. Emotional abuse is often minimised, yet it can have a lasting effect.

Noticing and acknowledging the warning signs and symptoms of domestic abuse is the first step to ending it. No person should live in fear of another person. There is help available.

To determine whether your relationship is abusive, answer the questions below. The more "yes" answers, the more likely it is that you're in an abusive relationship.

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What are the signs to look out for ?

Your Inner Thoughts and Feelings

Do you:

  • feel afraid of your partner much of the time?
  • avoid certain topics out of fear of angering your partner?
  • feel that you can't do anything right for your partner?
  • believe that you deserve to be hurt or mistreated?
  • wonder if you're the one who is crazy?
  • feel emotionally numb or helpless?
  • Your Partner's Belittling Behaviour

    Does your partner:

  • humiliate or yell at you?
  • criticise you and put you down?
  • treat you so badly that you're embarrassed for your friends or family to see?
  • ignore or put down your opinions or accomplishments?
  • blame you for her own abusive behaviour?
  • see you as property or a sex object, rather than as a person?
  • Your Partner's Absusive Behaviour or Threats

    Does your partner:

  • have a bad and unpredictable temper?
  • hurt you, or threaten to hurt or kill you?
  • threaten to take your children away or harm them?
  • threaten to commit suicide if you leave?
  • force you to have sex?
  • destroy your belongings?
  • Your Partner's Controlling Behaviour

    Does your partner:

  • act excessively jealous and possessive?
  • control where you go or what you do?
  • keep you from seeing your friends or family?
  • limit your access to money, the phone, or the car?
  • constantly check up on you?
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    What is the Legal situation regarding Domestic Abuse?

    Domestic violence legislation protects spouses and children and offers legal remedies to dependent persons and persons in other domestic relationships where their safety or welfare is at risk because of the conduct of the other person in the relationship. It also gives An Gárda Síochána powers to arrest without warrant where there is a breach of a court order.

    Under the 1996 Domestic Violence Act you* can apply for:

    *A solicitor is not necessary for any of these applications.

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    Who is entitled to get protection under Law ?

    1. Spouses - against your husband or against your wife.
    2. Cohabitants - who are not married but who have been living together for 6 months during the last year. The court will not grant a barring order unless the cohabitees have been living together for six months during a 9 month period. A barring order will not be made against a cohabitee who owns the place of residence or has greater ownership rights than the cohabitee seeking protection.
    3. Parents - can apply for protection against their children who are over 18 years of age.
    4. Children - can obtain protection but must have someone to apply on their behalf e.g. the Health Service or an adult who they trust.
    5. The HSE - can apply for protection against domestic abuse on behalf of a person/ or a person's dependant children where the person cannot apply herself/himself.
    If you are a person who has not lived with the abuser or you have not lived with the person for 6 months during a nine month period you may obtain legal protection through the Non- Fatal Offences Against the Person Act 1997.

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    What is a Protection Order?

    This is a temporary safety order. It is intended to last until the case is heard and a decision made. It does not oblige the respondent to leave the family home.The order will come into effect immediately and will end once the court hearing has been heard and a decision has been made by the Judge.

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    How do I apply for a Protection Order?

    When you are at the Local District Court applying for the Safety Order or the Barring Order, you* can make an application to the Judge for a Protection Order.

    The Judge will grant the Protection Order where he/she believes there is an immediate risk of significant harm to the applicant or any dependent person. The Protection Order states that the abuser must not use or threaten to use violence against the applicant or the dependent children.

    A Protection Order does not require the respondent to leave the family home.

    A Protection Order cannot be applied for on its own. It is granted while waiting for the court hearing of a Safety Order or a Barring Order.

    *No solicitor is required to make an application

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    What is a Safety Order?

    A safety order prohibits the person against whom the order is made (the respondent) from engaging in violence or threats of violence. It does not oblige that person to leave the family home. If the person does not normally live in the family home, it prohibits them from watching or being in the vicinity of where the person applying for the order (the applicant) and dependent children lives. A safety order can be made for up to five years and is renewable.

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    Who can apply for a safety order?

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    How do I apply for a Safety Order?

    To apply for a safety order you* [Applicant] call to your Local District Court Office and inform them you want to make an application for a safety order. When you meet with the Court Clerk you will have to make a statement outlining the circumstances of the abuse.

    A date will then be arranged for the court hearing. You [Applicant] will be given a summons for the court hearing and a summons will be sent to the respondent by ordinary post.

    During the time when you are waiting for the court hearing to grant the safety order - you can apply for a protection order which has immediate effect. If you want a protection order the Judge will hear your case on the day you make the application for the safety order.

    *No solicitor is required to make an application

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    Changes to Safety Order

    The Civil Law (Miscellaneous Provisions) Bill 2011 has passed through both Houses of the Oireachtas. The Bill implements reforms across a range of areas including domestic violence. The Bill amends the Domestic Violence Act 1996 so that a parent may now apply for a safety order against the other parent of the child even when the parents do not live together and may never have lived together. It also affords the protections of the Act to unmarried, opposite - sex and same sex couples who have not registered a civil partnership. In addition, couples will no longer be required to have lived together for a minimum period before one of them can obtain a safety order.

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    What happens at the court hearing?

    All family law cases are held in private. This means that only the people directly involved in the case are allowed into the court room during the hearing.

    The Judge will hear your evidence and then hear the evidence of the respondent. The Judge will then make a decision on whether to grant the order or not. A safety order takes effect from the time the respondent is notified of the order. This can be done verbally, together with the production of a copy of the order. If the respondent is in court when the order is made the respondent is considered to be notified. A copy of the order will be sent to the respondent by ordinary post. In some cases, the Judge may direct the Gardai 'to serve' the order on the respondent This means the Gardai will hand the order directly to the respondent.

    If you are granted a safety order, you show notify the Gardai in your local Garda Station. You can allow the Gardai to take a photocopy. A copy of your order will be sent to the Superintendent of your local Garda Station by registered post the following day.

    It is often worthwhile to have a solicitor for this hearing.

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    What happens if the person [Respondent] Breaches the Safety Order?

    If the person breaks the safety order, they are guilty of an offence. They can be fined up to €1,904.61 or sent to prison for a period up to 12 months, or both.

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    What is an Interim Barring Order?

    An Interim Barring Order is an order of protection that you* can obtain while you are waiting for the court hearing of the Barring Order. The order will come into effect immediately and will end once the court hearing has been heard and a decision has been made by the Judge.

    The interim barring order is valid for 8 working days.

    *No solicitor is required to make an application

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    How to apply for the Interim Barring Order?

    This is a temporary barring order. It is intended to last until the barring order application is heard in court and a decision made.

    Under the Domestic Violence Act, 2002 a full court hearing must take place within eight working days of the granting of an interim barring order.

    The Court must be of the opinion that there are reasonable grounds for believing there is an immediate risk of significant harm to the applicant or any dependent person if the order is not made immediately and the granting of a protection order would not be sufficient to protect the applicant or any dependent person

    To obtain a Barring Order you will follow the same procedure as applying for a Safety Order (see above). However, the criteria for a Barring Order are stricter and the conditions are harsher.

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    What Criteria is involved in getting a Barring Order ?

    Where the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or dependent persons are at risk, it may order the violent party [Respondent] to leave the family home and not return until such time as the court may specify.

    If the person is not residing at the family home - the barring order will prevent the respondent from entering the home.

    The respondent will also be prohibited from:-

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    Who can apply for a Barring Order?

    NOTE: if the applicant is a cohabitee, they must possess an equal or greater beneficial or legal interest in the property from which they seek to bar the respondent before being granted a barring order.

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    How can one apply for a Barring Order?

    To apply for a barring order you* should call to your Local District Court Office and speak to the Court Clerk. When you meet with the Clerk you will have to make a statement outlining the circumstances of the abuse.

    A date will then be fixed for the court hearing. You [applicant] will be given your summons for the court hearing and a summons will be sent to the abuser by ordinary post.

    During the time when you are waiting for the court hearing to grant the Barring Order - you can apply for an Interim Barring Order and like a protection order it has immediate effect. If you want an Interim Barring Order the Judge will hear your case on the day you make the application for the Barring Order.

    *No solicitor is required to make an application

    What happens at the Court Hearing?

    All family law cases are held in private meaning only you, the abuser and the court officials will be present in court. For a Barring Order it is often a good idea to have a Solicitor with you as well as family and friends in the court house who can give evidence if called by the Judge. It can also be important to have evidence such as doctor reports, letters from social workers and photos with you as evidence.

    If your application in the District Court is successful, the abuser can be ordered to leave the family home for 3 years.

    You can get a longer Barring Order or a ³Life Time Barring Order² from the Circuit Court.

    A copy of the Barring Order should be lodged at your local Garda Station immediately.

    If the person breaks the Barring Order they shall be guilty of an offence and can be liable to pay a fine up to ¤1,904.61 or to imprisonment for a term not exceeding 12 months, or both, at the discretion of the court.

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    What should you do if you suspect Domestic Abuse is happening to a friend?

    It may be hard to know what to do or say as your friend might not want to talk about it, but let them know you've noticed something's wrong.

    Encourage them to talk. If they don't want to, wait and keep trying to find another quiet time to raise the subject. When you get them to open up here are some basic guidelines on how you can help and give support:

    1. Be informed.

    The first step you can take to help your friend is to learn more about Domestic Abuse. By reading this, you have taken the first step. Lack of understanding can be one of the greatest barriers that people face in their efforts to end abuse in their lives. People face a lot of myths when trying to access help.

    2. Listen.

    Letting your friend know you care and are willing to listen may be the best help you can offer. Really listen to what they tell you, keep an open mind. Never blame your friend for what's happening. Believe and support them. Give them time to talk, but don't force them to go into detail. Encourage them to express their feelings, whatever they are. Acknowledge that they are in a frightening, dangerous and very difficult situation. Don't try and fix the problem. Don't compare your relationship to theirs.

    3. Guide them to support.

    Share the information you have gathered with them privately. Let them know they are not alone. Tell them that no one deserves to be threatened or beaten, despite what their abuser has told them. Nothing they can do or say can justify the abusers behavior. Do not abandon them if they do not take your 'advice'. It is their life.

    4. Focus on their strengths.

    Abused people live with emotional abuse as well as physical abuse. The abuser probably tells your friend that they are a bad person/mother/father etc. Give your friend the emotional support they need to believe they are a good person. Help them to examine their strengths and skills.

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    What men should do

    Do not leave the family home unless you and your children are in danger.

    If you are being threatened with false allegations be proactive and,

    It is important that the people that surround you are aware of the threat of false allegations being made against you. Caught off guard they may not know who to believe.

    Your abuser will have less power if they are aware that you are willing to stand up against the allegations and that you are willing to let it be known that the allegations may be levelled against you.

    If the threat involves false allegations of you sexually abusing your partner, cease all sexual contact with them.

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    Non-Fatal Offences against the Person Act 1997

    Due to gaps in the domestic violence legislation, some victims may not be able to get protection under the Domestic Violence Act. The Non-Fatal Offences Against the Person Act 1997 may be able to help men or women who are not living with their abuser or who have not been living with the abuser for 6 months out of the last 9 months.

    With regard to domestic violence the 1997 Act states:

    Under the Domestic Violence Act 1996, the victim of the domestic violence makes an application to the court whereas under the Non- Fatal Offences Against the Person Act, it is the Gardai who are responsible for prosecuting.

    A person may make a report at any Garda Station if the person thinks an offence has been committed against them under the Non-Fatal Offences Against the Person Act.

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    What is mediation?

    Mediation is a service to help couples in Ireland who have decided to separate or divorce, or who have already separated, to negotiate their own terms of agreement, while addressing the needs and interests of all involved. Mediation allows people to make their own decisions and not have the courts make it for them.

    How can mediation help?

    The Family Mediation Service encourages the separating couple to co-operate with each other in working out mutually acceptable arrangements on all or any of the following:

    The Family Mediation Service describes the role of the mediator as follows:

    How does the service operate?

    A professionally trained mediator assists the couple to reach their own agreement.

    For an appointment with the Family Mediation Service, both parties must contact the service and confirm their willingness to attend.

    How long does it take?

    Mediation usually takes between two and six sessions. Each session lasts approximately one hour. It all depends on the willingness of the parties.

    What is the Outcome?

    Most mediations end with a written document that sets out all the details of the couple's agreement. This can then be taken to solicitors to be drawn into a Legal Deed of Separation and/or Decree of Divorce.

    What is a family session?

    When a couple has reached an agreement, a session is offered to parents to invite their children in to discuss their new family arrangements.

    What are the advantages of mediation?

    These include:

    NB: This service is for married and non-married couples (including same-sex couples).

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    Separation

    Separation in marriage is not a complete break of the legal union of marriage. Many people confuse the status with one spouse moving out of the physical home, but this is not the case. There are far more criteria that must be met for a legal separation of marriage to occur.

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    Separation Agreement

    Separation Agreements were entered into regularly between parties before the legislation allowing for Judicial Separation and Divorce. They are still useful today. Sometimes a couple comes to an agreement between themselves, through solicitors or mediation. The advantage of a Separation Agreement is that it is confidential and can be concluded quickly and without the need to go to court. One disadvantage of a Separation Agreement is that it can not deal with pensions. Pension adjustment orders must be ruled by the Court as part of a Judicial Separation or Divorce process.

    Separation Agreements will deal with the following:

    A full and final settlement clause may be inserted wherein the parties agree that the Separation Agreement will be final for divorce. This carries great weight with Judges but is still subject to amendments. The actual document drawn up and signed by both parties is often called a "Deed of Separation". When the agreement is signed, it can be made into a rule of court by application to the court. This ensures that all the terms agreed upon regarding the children can be legally enforced where covered by appropriate legislation.

    If agreement can be reached reasonably quickly between the parties and a Separation Agreement drawn up, it is cheaper and less stressful than taking a court case. Many couples formalise their separation in this way.

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    Judicial Separation

    If you and your spouse live in Ireland and have separated or wish to separate and you cannot agree on certain matters, you may wish to apply to the court for a Judicial Separation. When you apply for a judicial separation, the court will decide the issues that you cannot agree on, for example:

    To apply for a Judicial Separation, you are not legally required to use a solicitor or a barrister. In fact, you are free to represent yourself if you wish. However, there are many complex issues such as custody of and access to children, maintenance, tax and property law, which may make it very difficult to apply for a judicial separation without any professional help.

    If you and your spouse disagree about any issue at all, it is strongly advised that you go to see a family law solicitor. Your solicitor should not be the same one as your spouse's.

    You may be entitled to inexpensive legal advice and representation from the Legal Aid Board.

    How to apply for a Judical Seperation?

    Proceedings in the Circuit Court are commenced by lodging an original family law civil bill along with two copies to the Circuit Court office. The original is retained in the office and the copies are returned to the person making the application (the applicant) to be served on the person against whom the application is being made (the respondent).

    The civil bill sets out the main points of the applicant's claim, details of the legislation under which the applicant is making his/her claim and the orders (or reliefs) being sought. The civil bill must be dated and must include the name, address and occupation of the applicant. It must be signed by the applicant's solicitor or, if the applicant does not have a solicitor, by the applicant personally.

    In separation cases, the applicant must file an affidavit of means (where financial relief is sought) and an affidavit of welfare (where there are dependant children) together with a certificate to say that alternative dispute resolution, such as mediation has been considered as an option. Where the applicant is claiming a pension order a notice to trustees must be filed and served.

    Service of proceedings

    The family law civil bill, affidavits of means and welfare are served by the applicant on the respondent in one of the ways allowed by the court rules, that is, by registered prepaid post, by personal service or in such other way as the court or county registrar allows. If you wish to serve documents other than by registered prepaid post or personally you must apply to the court or county registrar ex-parte (that is without informing the respondent) for permission.

    When you have served the civil bill you must endorse service in accordance with the Circuit Court rules and file an affidavit (called an affidavit of service) confirming that the civil bill and affidavits of means and welfare (where appropriate) have been served on the respondent. If you served documents by post you must refer to and include a postal certificate and mark it as an exhibit to the affidavit of service.

    Entering an appearance

    The respondent has 10 days from date of service of the civil bill to file an appearance in the Circuit Court office specified in the civil bill and to deliver a copy of the appearance to the applicant/the applicants solicitor. An appearance is a formal document indicating that the respondent intends to defend the action and to file a defence.

    Lodging a defence

    A further 10 day period is allowed for the respondent to file his or her defence. This must be accompanied by the respondent's affidavits of means and welfare, if appropriate. Further time is allowed where a party is abroad.

    If the respondent does not file an appearance, the applicant can apply to the court by way of notice of motion for judgment in default of appearance - that is, ask the court to grant the orders sought without further recourse to the respondent. If there is an appearance but no defence, the applicant can apply to the court by way of motion for judgment in default of defence. In some cases the matter may be referred to case progression.

    If the terms of a separation have been agreed or a divorce is uncontested the parties can ask the court to 'rule' on the matter.

    Case progression

    If the respondent delivers a copy defence to the applicant and files the original with the Circuit Court office a case progression summons addressed to both the applicant and respondent or their solicitors, will be sent to both parties directing them to appear before the county registrar. The case will be listed before the county registrar not later than 70 days after the date the defence is filed for a case progression hearing. The purpose of case progression is to prepare the proceedings for trial. This reduces delay and cost and ensures that the time and other resources of the court are employed most effectively. Thereafter the matter will be listed for trial or ruling before a judge.

    For the hearing you will need, in addition to the documents previously mentioned, your State marriage certificate (a church certificate is not acceptable).

    When both you and your spouse have filed all of the necessary documents, you will be given a date for the court hearing. The hearing will be held in private and you will need to show the court that you meet the requirements of the Judicial Separation and Family Law Reform Act 1989. If the court is satisfied that you have grounds for a judicial separation, it will grant a decree.

    A decree of judicial separation does not give you the right to remarry.

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    Divorce

    What is divorce?

    A decree of divorce dissolves a marriage and allows each party to remarry.

    What are the Conditions for divorce?

    If your marriage has broken down, and you fulfil certain conditions, you can then apply for a divorce. However, there may be complex issues such as custody of and access to children, maintenance, tax and property law associated with your case, which may make it very difficult to apply for a divorce without any professional help.

    How to apply for a judicial separation or divorce

    To commence proceedings

    Proceedings in the Circuit Court are commenced by lodging an original family law civil bill and two copies in the Circuit Court office. The original is retained in the office and the copies are returned to the person making the application (the applicant) to be served on the person against whom the application is being made (the respondent).

    The civil bill sets out the main points of the applicant's claim, details of the legislation under which the applicant is making his/her claim and the orders (or reliefs) being sought. The civil bill must be dated and include the name, address and occupation of the applicant. It must be signed by the applicant's solicitor or, if the applicant does not have a solicitor, by the applicant personally.

    In divorce and separation cases, the applicant must file an affidavit of means (where financial relief is sought) and an affidavit of welfare (where there are dependant children) together with a certificate to say that alternative dispute resolution has been considered as an option. If the applicant is claiming a pension order a notice to trustees must be served and filed.

    Service of proceedings

    The family law civil bill, affidavits of means and welfare (as appropriate) are served by the applicant on the respondent in one of the ways allowed by the court rules, that is by registered prepaid post, by personal service or in such other way as the court or county registrar allows. If you wish to serve documents other than by registered prepaid post or personally you must apply to the court or county registrar ex-parte (that is without informing the respondent) for permission.

    When you have served the civil bill you must endorse service in accordance with the Circuit Court rules and file an affidavit (called an affidavit of service) confirming that the civil bill and affidavits of means and welfare (where appropriate) have been served on the respondent. If you served documents by postyou must refer to and include a postal certificate and mark it as an exhibit to the affidavit of service.

    Entering an appearance

    The respondent has 10 days from date of service of the civil bill to file an appearance in the Circuit Court office specified in the civil bill and to deliver a copy of the appearance to the applicant/the applicants solicitor. The appearance indicates that he or she intends to defend the action and to file a defence.

    Lodging a defence

    A further 10 day period is allowed for the respondent to file his or her defence. This must be accompanied by the respondent's affidavits of means and welfare, if appropriate. Further time is allowed where a party is abroad.

    If there is no appearance, the applicant can apply to the court by way of notice of motion for judgment in default of appearance - that is, ask the court to grant the orders sought without further recourse to the respondent.

    If there is an appearance but no defence, the applicant can apply to the court by way of motion for judgment in default of defence. In some cases the matter may be referred to case progression.

    If the terms of a separation have been agreed or a divorce is uncontested the parties can ask the court to 'rule' on the matter.

    Case progression

    If the respondent delivers a copy defence to the applicant and files the original with the Circuit Court office a case progression summons addressed to both the applicant and respondent/their solicitors, (if they or either of them is represented by solicitors) will be sent to both parties directing them to appear before the county registrar. The case will be listed before the county registrar not later than 70 days after the date the defence is filed for a case progression hearing. The purpose of case progression is to prepare the proceedings for trial. This reduces delay and cost and ensures that the time and other resources of the court are employed most effectively. Thereafter the matter will be listed for trial or ruling before a judge.

    Other documents

    For the hearing, in addition to the documents previously mentioned, you will need your State marriage certificate (a church certificate is not acceptable).

    What are Ancillary or additional orders?

    In making an order for divorce, the court may also make ancillary or additional orders in relation to matters such as:

    What are the circumstances of Re-marriage?

    A decree of divorce gives the parties a right to remarry.

    A number of matters are affected by a remarriage, for example, a divorced person who remarries:

    What are the circumstances of a foreign divorce?

    Where a person gets a divorce outside Ireland, the divorce may be recognised in Ireland if it was obtained in a country where either spouse was domiciled.

    Domicile is a complicated legal concept. In general terms, however, a person is domiciled in the country where s/he is resident and intends to reside permanently. It is possible to apply to court for a declaration as to the validity of a foreign divorce.

    If a foreign divorce is valid, the divorced person:

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    Nullity of Marriage

    Civil nullity or civil annulment is a legal declaration by the court which states that although two people went through a marriage ceremony, their marriage never actually existed in the eyes of the law or the State.

    Civil annulment is not the same as divorce. Divorce is a legal declaration ending a marriage whereas civil annulment (nullity) is a legal declaration stating that the marriage never existed. If a marriage is annulled, it also means that both people lose any rights they enjoyed as a married person.

    It is important to be aware of the difference between a church annulment and a civil annulment. A church annulment is not recognised by the law and therefore has no legal effect. It does not mean that you can legally remarry - although it may mean that you can remarry in the eyes of the church.

    A person who wishes to obtain an order of nullity of marriage must apply to court.

    The effect of this order is that the marriage never existed in the eyes of the State. Grounds for nullity:-

    A court may grant an order for nullity on the following grounds:

    What is the effect of an order for nullity?

    Where the court grants an order for nullity:

    What does a Church annulment mean?

    A church annulment has no legal standing. Where a person remarries within a church, the law will not recognise that marriage unless an order for divorce or an order for nullity was granted in respect of the first marriage.

    What constitutes an Invalid Marriage?

    It is illegal to be married to more than one person and a person who does so may be prosecuted for bigamy. Where a second marriage is not valid, the parties:

    If an invalid marriage breaks down, the parties do not have the protection that the law gives to spouses. However, the parties may be entitled to avail of domestic violence legislation.

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    Civil Partnership

    Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010

    (July 2010)
    Matheson Ormsby Prentice

    Introduction

    The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ("the Act") has just been passed into law, The Civil Partnership Bill (as it was then known) was published in June 2009, following research and consultation over a number of years on the rights and duties of cohabitating couples in particular.

    Prior to the passing of the Act, unmarried couples had no legal rights or entitlements to lay claim to the assets or estate of their partner. The phrase "common law spouse" had also given many couples the wrong impression that certain entitlements might accrue from their relationship. However, the Act will now introduce very significant changes to the legal status of unmarried couples, both same-sex and opposite-sex.

    The Act deals separately with both the civil registration of same-sex partnerships (Civil Partnership) and the rights and duties of cohabiting couples.

    The largest part of the Act deals with the introduction of Civil Partnership for same-sex couples and sets out the rights and obligations which will arise once a civil partnership has been properly registered. The Act also sets out the manner in which civil partnerships may be dissolved and under what conditions.

    The main effects of the Act are:

    Under the Act, the courts will have power to make a number of extensive preliminary and ancillary financial relief orders upon the dissolution of a civil partnership (similar to those currently available upon Judicial Separation or Divorce). These include maintenance by way of both periodical payments and lump sums, property adjustment orders, orders for the sale of property, pension adjustment orders and orders making provision out of the estate of a civil partner or blocking such provision.

    As with separation and divorce, the orders to be made will depend upon what constitutes fair or proper provision in all the circumstances of the case. The Act also precludes the operation of a "clean break" since the extensive reliefs can be obtained both at the time of the dissolution and subsequently. This has already given rise to difficulties in Judicial Separation and Divorce cases and it is inevitable that similar issues will also arise for civil partners in the future.

    However, one notable difference between the Act and the current legislation on separation and divorce is the absence of any reference in the Act to the position of children or dependents of civil partners, when assessing the provision to be made upon dissolution or as factors to be taken into account in this regard.

    The Act also introduces inheritance rights for civil partners which are equivalent to those of spouses, with regard to both a legal right share on testate succession and rules for distribution on intestacy. The Act, as passed, is silent on the tax and social welfare treatment of civil partners. Any reliefs which may accompany the registration of a civil partnership are unknown as yet. However, it is envisaged that these provisions will feature in future Finance and Social Welfare legislation.

    Cohabiting Couples

    The Act introduces significant changes to the current law relating to cohabiting couples and introduces various rights and obligations for these couples.

    For cohabiting couples (both opposite-sex or same-sex couples who are either unmarried or not registered in a civil partnership), the Act will now impose certain rights and obligations upon these individuals, unless the couple specifically choose to opt out of these protections.

    The Act establishes a "redress" or "safety net" scheme for cohabiting couples. The aim of the redress scheme is to protect an economically dependent or vulnerable party at the end of a long-term cohabiting relationship, whether arising on relationship breakdown or on death. It allows "qualified" cohabitants to apply to court for certain reliefs, including property adjustment orders, compensatory maintenance orders, pension adjustment orders and orders for provision from the estate of a deceased cohabitant. No tax or social welfare reliefs have been made for cohabiting couples under the Act, as passed.

    While these orders are not as extensive as the reliefs currently available to spouses, and now to be extended to civil partners, they mark a very significant change to the current legal position for cohabitants. It is important to note, however, that this is a discretionary relief and there are no automatic rights or entitlements to any orders. The outcome in each case will, therefore, depend on its particular facts and circumstances.

    The Act has defined "qualified cohabitants" as cohabitants residing together as an unmarried couple in an intimate relationship for a period of five years, or two years where there is a child or children of the relationship. In determining what orders, if any, might be made, the economic dependency of the claiming partner is the key factor, although other criteria must also be taken into account, to include the rights of other parties (including any spouses or civil partners in existence), the duration of the relationship and the contributions made by each cohabitant, whether financial or otherwise.

    The Act also makes express provision for the recognition of Cohabitant Agreements enabling (and encouraging) cohabitants to regulate their joint financial affairs and also enabling couples, where they may so decide, to specifically opt out of the redress scheme in their particular circumstances. The Act provides that a Cohabitant Agreement will be valid and enforceable if it is in writing and signed by both cohabitants with the benefit of independent legal advice, in accordance with the standard principles of Contract Law.

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    What is Guardianship

    Guardianship means the rights and duties of parents in respect of the upbringing of their children. A guardian has the right to make all major decisions affecting the child's upbringing, including choice of school, medical treatment, religious matters, health requirements and decisions about leaving the country. Guardians are responsible for the welfare of the child. Welfare includes the moral, intellectual and physical wellbeing of the child and where there is property held on behalf of the child, it includes the proper administration of such property.

    Where a child's parents have not married each other, only the mother is automatically a guardian of her child.

    The father's name in the Register of Births does not give him any guardianship rights in respect of his child.

    How can a father become a joint guardian of his child?

    Where both parents are in agreement about the father becoming a joint guardian then both parents can complete a statutory declaration to this effect in the presence of a peace commissioner, commissioner for oaths or notary public.

    Currently there is nowhere to register this form so it is important to keep it in a safe place and perhaps make an extra copy.

    Where the mother is not in agreement with the father becoming a joint guardian then the father can apply to the district court to become a joint guardian with the mother of his child, whether or not his name is entered in the Register of Births.

    While the mother's views are taken into account by the court in making a decision, the fact that she may not consent does not automatically mean that the court will refuse the order sought by the father. The decision of the court will be made with the interest of the child being the first and paramount consideration.

    Where a father has been appointed a joint guardian then his consent is required for passport applications and for the adoption of the child (by the mother and her husband or by another couple). Guardianship should not be confused with custody, which involves the day to day care of the child.

    Where joint guardians cannot reach an agreement on an issue concerning the child then an application can be made to the court and the court will make a decision in the child's best interest.

    How is Removal of guardianship rights obtained.?

    A father who has been appointed joint guardian by a court or by statutory declaration may be removed from his position as joint guardian if the court is satisfied that this is in the best interest of the child. The only way a mother can give up her guardianship rights is by placing her child for adoption.

    What happens where there is a Marriage following the birth?

    Should the parents of a child marry each other following the birth of their child, then the father automatically becomes a joint guardian with the mother as long as the child has not been adopted. There is therefore no need to apply to the court for joint guardianship rights nor is there any need to adopt the child.

    Where a father is a joint guardian and the mother marries another man, the father remains a joint guardian of the child. Should the mother and her husband wish to adopt the child and the father is a joint guardian, his consent to the adoption is required. Where a father is not a joint guardian he has a right to be consulted. If a father consents to the adoption of his child he relinquishes all legal rights in relation to his child.

    Can other people apply for guardianship?

    Yes, in certain circumstances, for example where a child has no guardian.

    Guardians may also be appointed under a parent's will or by court order. If a guardian appointed by a will (called a 'testamentary guardian') dies or refuses to act, the court can appoint a guardian to act jointly with the surviving parent. Guardians who have been appointed by will or by court order may also be removed.

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    Custody

    Custody is the day to day physical care of a child. Where married parents have separated or divorced, they can decide between themselves on custody arrangements for their children. If they cannot agree, they may apply to the court for a final decision.

    When the court is making its decision about who should have custody of the child, the most important factor for it is the welfare of the child. Welfare includes the child's religious, moral, intellectual, physical and social welfare.

    Where children are born outside of marriage the mother has an automatic right to custody. A father who is not married to the mother of his child can apply to the court for custody in the absence of agreement. It is not necessary for a father to have guardianship rights before he applies for custody.

    In general, the courts tend to consider that where the parents of the child are unmarried, it is in the child's best interests to live with its mother. The unmarried mother has a superior legal position to the unmarried father and will usually be granted custody.

    However, the courts will usually grant a right of access to the unmarried father so that he can have regular contact with his child.

    If an unmarried mother does not want custody of the child and intends to place or has already placed the child for adoption, the unmarried father may still apply for custody. The essential issue for the court in deciding whether the father should have custody will be the welfare of the child. The length of time that the child has been with the adoptive parents will be a very important factor.

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    What is a Parenting Plan?

    A parenting plan is a carefully devised schedule which lays out how to share time with the children. Making decisions about the children's school arrangements, child care, holidays and pocket money can all be part of a parenting plan. It is a plan that is individual to each family and should take into account everyone's needs and interests.

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    What is Access

    If you have a right of access to a child in Ireland, you have the right to spend time with the child and to take the child out for specified periods of time. When applying for Access you may consider looking for your child to reside with and go on holidays with you for a proportion of the school holidays and to have the child stay overnight in your house on weekends.

    When the parents of a child separate and they cannot agree on access rights, the courts will decide. The welfare of the child will be the most important factor. In general, the courts consider that it is very important for the welfare of a child that it should have a relationship with both its parents, and they are slow to deny access rights to the natural parent of a child.

    By law in Ireland, unmarried mothers are the sole guardians of children born outside of marriage. Unless the mother agrees to sign a statutory declaration an unmarried father must apply to the court in order to become a legal guardian of his child.

    A father may apply for access whether or not he is a guardian. He can do this even if his name is not on the child's birth certificate, and even where his application for joint guardianship has been turned down.

    If both guardianship and access are being applied for, then separate applications must be made, but both applications will be heard by the court at the same time.

    Unless there are unusual circumstances, the unmarried mother is usually granted custody of her child and the unmarried father is granted access rights.

    Under Section 9 of the Children Act 1997 a relative such as a grandparent, or someone who has acted in the place of a parent, can apply to the District Court for permission to apply for access.

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    Can Access be granted to Grandparents?

    A grandparent can apply for leave to apply for access through the local District Court under the Children Act 1997. Grandparents are often reluctant to take legal action because of the fear of causing further strains to what already may be a difficult relationship.

    Obtaining access for grandparents is a two tiered process. The first application is to apply for leave to apply for access. This is basically asking for the court's permission to apply for access. The Court, in arriving at the decision at this stage, must always have regard to:

    If you are successful at the first stage then you can make the second application to the District Court for the access itself. Grandparents may:

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    Maintenance

    Maintenance is financial support paid by a person for the benefit of a dependent spouse and / or dependent children.

    Spouses are required to maintain each other having regard to their means and needs. A spouse can apply for maintenance even if living with the other spouse.

    Parents, whether married or not, are responsible for the maintenance of their children.

    A parent, legal guardian, health board or any person holding legal status in relation to a child may apply for maintenance.

    A dependent child is a person under eighteen years, a person under twenty three years who is in full time education or a person dependent on his/her parents due to a disability.

    Where parties cannot agree maintenance, it is necessary to apply to the District or Circuit Court depending on the amount of maintenance being sought.

    At present, the District Court may award any amount up to €500.00 per week for a spouse and €150.00 per week for each child. If greater amounts are sought, it is necessary to apply to the Circuit Court.

    Both the District and Circuit Court can make lump sum orders for maintenance although, at present, the District Court cannot make an order for more than €6,349.00.

    How is Maintenance payable?

    A maintenance order may direct one party to pay maintenance directly to the other party. Alternatively, the court may order that maintenance be paid through the District Court clerk who then passes it on to the receiving party. The advantage of this is that, where maintenance is in arrears, the District Court clerk will try to enforce payment, rather than the receiving party having to do it.

    How is Enforcement of maintenance?

    If the paying party fails to pay maintenance in accordance with a court order, the party who is not receiving the maintenance can apply to court for:

    - an attachment of earnings order. This can only be made if the paying party is employed. The attachment of earnings order directs his / her employer to deduct the maintenance from his / her earnings and send it to the court clerk or the receiving party;

    or

    - an enforcement order for arrears of maintenance. This can be made whether or not the paying party is employed. The court may issue a warrant for the arrest of the paying party.

    Where a person who is entitled to claim maintenance from another applies for social welfare payments, the Department of Social and Family Affairs may require that person to apply for maintenance.

    How can Variation or discharge of maintenance order take place?

    A person paying or receiving maintenance may reapply to the court that made the maintenance order for a variation or discharge of the order. Variation refers to a change in the amount of maintenance, for example, a party might seek a greater amount. Discharging a maintenance order means ending the obligation to pay.

    Generally, these applications are made where there has been a change in either parties' circumstances since the order was first made.

    It is possible to get and enforce a maintenance order against persons living in certain foreign countries.

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    How to Apply for Legal Services?

    General Information about the services provided by the Legal Aid Board and about financial eligibility is available at any law centre or at the Head Office of the Board or www.legalaidboard.ie

    Application form

    Persons seeking legal services from the Board must make an application in writing on the appropriate form. (Application for legal services form - LAA3).

    This form is available from any law centre and on the Board's website (www.legalaidboard.ie) and may be completed in a law centre with the assistance of the staff.

    A separate application form must be used for each matter.

    A completed application form must:

    An application form that is forwarded to a law centre by post will be acknowledged within 14 days.

    Assessment of financial eligibility

    An applicant for legal services is required to complete the statement of income section of the application form and may be required to complete the statement of capital section. More detailed information on financial eligibility is available in Leaflet no 13 or on the Board's website.

    Following full completion of the application form, a decision will be made on an applicant's financial eligibility for legal services. An applicant who is found to be financially ineligible by the law centre may have the matter referred to Head Office for a decision.

    Initial consideration of application

    An applicant is advised when an appointment with a solicitor can be offered. This will depend on the level of demand at the law centre for legal services. Priority appointments are provided for cases such as, domestic violence, child care, child abduction and certain cases where time limits may be about to expire.

    If a priority appointment is not given, the applicant's name will, if necessary, be placed on the waiting list in order of the date of receipt of a completed application form.

    Provision of legal services

    A person who is granted legal advice must pay a contribution before seeing a solicitor.

    Legal advice will be granted unless a person fails to satisfy the means test, or the subject matter is outside the scope of the Civil Legal Aid Act, for example, if it relates to a criminal law matter.

    If court proceedings are considered necessary, an application for a legal aid certificate must be made. A certificate will be granted if the application meets the means and merit tests provided for in the Civil Legal Aid Act 1995. The Certificate must be accepted by the applicant before legal aid is provided. This will require the applicant to sign the legal aid certificate and to pay the appropriate contribution.

    How can Withdrawal of legal services be done?

    Persons in receipt of legal services are expected to be truthful in the information that they provide to the Board and/or their solicitor and to behave reasonably at all times in their dealings with the Board and/or their solicitor, having regard to the particular circumstances of the case. Otherwise legal advice or legal aid or both may be withdrawn and the legally aided person may be liable for the full costs incurred by the Board on their behalf.

    In case of legal aid, you will be assigned a solicitor. Even though you don't have a choice of solicitors you should receive the same standard of representation as a paying client.

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    Questions for your Solicitor

    You should not be afraid to question anything you do not understand or, agree to anything you are not sure of.

    After telling your solicitors about all the facts of your case you could ask the following:

    Write down a list of questions you have and wish to know from your solicitors. Don't be afraid to bring these with you or to question your solicitor if he/she uses terminology that you don't understand.

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    Disclaimer

    No person should rely on the contents of these web pages without first obtaining advice from a qualified professional person. The authors of this website, consultants and editors, expressly disclaim all and any liability and responsibility to any reader of these web pages in respect of anything, and the consequences of anything, done or omitted to be done by any such reader in reliance, whether wholly or partially, upon the whole or any part of the contents of these web pages. Without limiting the generality of the above, no author, consultant and editor shall have any responsibility for any act or omission of any other author, consultant and editor.

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