DILEX Family Law

The concept of marriage is that is a legally binding commitment entered into voluntary by two people to the exclusion of all others. In the absence of a Decree of Divorce the marriage lasts for the lifetime of the spouses

The parties must not be within the prohibited degree of relationship with each other either by consanguinity or by affinity - first is decent or second - blood relation.The Marriage has to valid if a ceremony is conducted in a church by priest or civil ceremony by a registrar. They both must be over the age of 18 at the time of marriage. They must give  Notice to the State that they intend to marry. The intended parties must meet with the Registrar and give an indication the date that they wish to marry. The legislation requires that the marriage must take place within 6 months of that intended date, if not it is necessary to give notice again. There must be 2 witnesses to the marriage, the marriage must be entered in to the Births, Marriages and Deaths Department. There is no requirement that the participants must be of the same gender

• Void ab initio 
• Marriage never really existed. 
• Voidable
• This is void from the date of nullity  - this means that the marriage is void from the date that the order is granted.

• There are 3 grounds that you can rely on: Lack of Legally capacity, non observant of formality - normal requirements - haven't followed rules - absent of real consent.
• Standard of proof on the balance of probability - burden of proof always on the party that starts proceedings. Case Law -K-v-K - applicant has to prove that a valid marriage is in place. Griffin -v- Griffin stated that the burden should be very sever and heavy
• Lack of Consent - lack the  legal capacity to marry someone if you are married to someone else - if you fail to give marriage notice under s21 of the Family Law Act 1997 - prohibited degree of relationship to one another.

• a)Giving the required notice period
• b) The person performing the ceremony must be a person authorised to do so 
• c) The ceremony must take place in a place which is open to the public 
• d) The parties must declare that they do not know of any lawful reason why they may not marry,
• and they must declare their acceptance of each other as husband and wife,
• e) Immediately after the ceremony, the parties must sign the register
• f) Their signature must be witnessed by two witnesses and the person performing the ceremony
• must witness the signature of the parties.
• In order to succeed on this ground, the Court must be satisfied that at the time of the ceremony both
• parties were aware of the relevant facts

• In order to prove the ground of impotence, a petitioner must be able to prove that there exists an inability of have “ordinary and complete sexual intercourse”.
• Furthermore, the interpretation of
• what constitutes ordinary and complete sexual intercourse as referred to above, has at its heart the question of whether penetration has taken place, rather than any question of fertility. While a petitioner is not required to go so far as to prove that intercourse is an impossibility, they must
• show at least, that it would only be possible under conditions which it would be unreasonable to expect an individual to endure.
• As to the cause of the problem leading to the impotence, Courts have recognised that this can be
• either a physical difficulty, or a mental/psychological difficulty. Older text books in the area have referred to psychological difficulties as nervousness or hysteria, although this would more properly now be described as recognised medical conditions including vaginismus.
• In addition, the difficulty need not be general, meaning that the individual is incapable of sexual intercourse with any person; it may be limited to the particular spouse
• It must be deemed by the Court to be incurable in so far as either;
• a) A cure is not possible, except possibly by means of a surgical procedure Or,
• b) The spouse refuses to engage in sexual intercourse.

• The District Court, being a Court of local and limited jurisdiction, in general finds its jurisdiction to deal with issues associated with the family in various pieces of legislation. It has exclusive jurisdiction in two areas;
• i. Under the Childcare Act 199141, the District Court has exclusive jurisdiction to deal with applications under this act. These applications are most commonly brought by the HSE, in relation to the taking into their care of children. The process usually begins with an application for an interim care order. This is an order directing that the child the subject of the order be taken into the care of the HSE for a limited period of time, with any extension of such an order being
• subject to a District Court judge being satisfied that the continuation of the order is in the best interests of the child. It is not necessary that the judge who originally made the order hear the application for the extension of the interim care order, although in the Children’s Court in Smithfield, the same judges are usually assigned to that court. Such applications are made on notice to the parent(s)/guardian(s) of the child, although, the act does contains provisions were the HSE can apply for an emergency care order ex parte.
• ii. Under the School Attendance Acts 1926 as amended, prosecutions in relation to truancy are dealt with in the District Court.
• The District Court enjoys concurrent jurisdiction with the Circuit Court in a number of areas;
• i. Under the Guardianship of Infants Act 1964, the District Court has the power to hear and determine applications for guardianship of infants. That act also empowers the Court to deal with applications for access to children. Such applications are most commonly brought in the District Court by non-martial parties, although the act does not preclude such application being brought by married persons.
• ii. Under the Family Law (Maintenance of Spouses and Children) Act 1976, the District Court can hear and make orders in relation to maintenance of spouses and children. The scope of this act was extended to include non-marital couples following its enactment. There is a limit on the amount the Court can award which now stands at € 500 per week for a spouse and € 200 per week per child.
• iii. Under the Domestic Violence Act 1996 the District Court can grant orders under this act including safety orders, protection orders and barring orders. These orders can be granted ex parte on an interim basis or, on notice to the Respondent on an interlocutory basis. An application may be brought by married persons, non-married persons, parents, or by the HSE on behalf of a person that has been subjected to Domestic Violence.

• The Circuit Court as previously mentioned, enjoys concurrent jurisdiction in relation to a number of areas set out above. In addition the Circuit Court exercises concurrent jurisdiction with the High Court in relation to a number of substantive areas of law related to the regulation of marital break down, and a number of other significant areas, and under the Status of Children Act 1987 in relation to applications for declarations of parentage. The substantive areas referred to are as follows;
• i. Under the Judicial Separation and Family Law Reform Act 198947 to grant decrees of Judicial Separation. This decree relieves couple of the obligation to co-habit, and also allows the Court to make orders in relation to ancillary matters relating to the family home, pension entitlements, custody of, guardianship of and maintenance of children, succession rights, other joint assets.
• ii. Under the Family Law (Divorce) Act 1996 the Court has the power to grant decrees of Divorce.
• This decree terminates the marriage between the parties and also allows the Court to make orders in relation to ancillary matters relating to the family home, pension entitlements, custody of, guardianship of and maintenance of children, succession right and other joint assets.
• iii. Under the Family Law Act 1995 the Court has the power to deal with applications for annulments.
• The other significant areas where the Circuit and High Court enjoy concurrent jurisdiction include;
• a) Under the Status of Children Act 1987 in relation to applications for declarations of
• parentage. These applications are often a prelude to/in association with
• b) Proceedings under s. 117 of the Succession Act 1965. These proceedings are brought by offspring of a deceased where they claim that a deceased testator has failed to make proper provision for them.

• At common law, both spouses in a marriage have the right to reside in a family home, however the right of the wife was not enforceable against third parties. Therefore, if a husband sold it or mortgaged it without the wife’s knowledge, then there was no remedy available. In 1972 the Commission on the Status of Women in a report stated that wives in such circumstances needed protection against these eventualities. This ultimately led to the enactment of the Family Home Protection Act 1976 which came into effect on 12/07/1976.
• The Act applies to what is defined in the Act as a family home. This definition is found in s. 2. The family home is defined as;
• a. A dwelling in which a married couple ordinarily reside,
• b. A dwelling in which a spouse requiring protection ordinarily resides or
• c. A former dwelling in which a spouse requiring protection resided before leaving the other spouse.

• The principle protection in the act is to be found in s. 3 (1). This provides that any conveyance of any interest in the family home to any person other than the spouse, without the prior written consent of the other spouse is void. There are a number of elements to this protection which must be considered.
• Firstly, the protection does not extend to contracts to sell the property which are reached prior to the marriage, even if the parties live in the property after marriage and before the completion of the sale.
• Secondly, the restricted transactions are limited to transactions by the spouse. There is no equivalent restriction on a mortgagor conveying the property following repossession. Similarly, an official assignee in bankruptcy can sell or otherwise dispose of a property. Thirdly, the section will not affect the position of a bona fide purchaser for value without notice. This clearly indicates though that the onus is in the purchaser to make the necessary and/or appropriate enquiries as to whether the property is a family home, and if so, if the appropriate prior written consent had been obtained.
• Fourthly, the consent in question must be voluntary and fully informed. This issue arose in the case of B.O.I –v- Smyth [1995] 2 I.R. 459. In this case the Plaintiff sought to enforce a security against the defendant (wife) in relation to the family home. The evidence was to the effect that the wife was brought to the bank by her husband, and presented with documents to sign. Subsequently the bank sought to enforce that mortgage by way of an action for repossession, and the wife defended the proceedings on the basis that she did not consent to the security in question. She argued that she had believed that the family home could not be repossessed. The Court looked at the issue and took the view that to give consent to something is to approve it, and to do that, one must know what one is being called on to approve. The Court in addition took the view that it was irrelevant that the Plaintiff were unaware of the Defendant’s mistaken belief as to the nature of the transaction, as she could have known if a proper explanation of the charge had been given to her by the bank.
• Finally in relation to s. 3 (1), the consent must be given before the transaction which is at issue. It is possible to give consent in general terms to the sale of the family home, although where this is done, it can be withdrawn at any time before the conveyance is completed.