Notice of Motion for Judgement in default

Shewhomustbe...

Hi,
I'm not looking for legal advice, but I'd really appreciate if someone could explain what the consequences of a 'Notice of Motion for Judgement in default' would mean in divorce proceedings.

Also, am I correct in understanding that if both parties come to an agreement there is no need to see a Judge.

Thanks

Milk & Honey

Shewhomustbe... wrote: »

Hi,
I'm not looking for legal advice, but I'd really appreciate if someone could explain what the consequences of a 'Notice of Motion for Judgement in default' would mean in divorce proceedings.

Also, am I correct in understanding that if both parties come to an agreement there is no need to see a Judge.

Thanks

No, a judgement is given to one side and the other cannot put in a defence or counterclaim.

Tom Young

Further to what M&H suggested, your opponent wants you to Appear in Court if you have not already done so - Enter an Appearance - its a document that your solicitor or indeed you can fill out and file stating that you are aware and intend to engage in the legal process.

If that is done already, prepare a Defence, if any and deliver it. Whatever the date endorsed on the Notice of Motion is, turn up to the venue before the appointed time, wait till Court is in session, listen for your case and your solicitor or legal adviser will assist you with the rest.

valleyoftheunos

A notice of Motion for judgment in default can happen where one party has either failed to acknowledge or give a defense to a court case against them. If it is awarded by the judge it means that the side that didn't acknowledge or defend loses automatically.

If a person were facing a court case and it had gotten to the stage where the other side were seeking Judgment in default I would advise that person to speak to a solicitor straight away as there are time limits involved and the case could be decided against them.

Milk & Honey

valleyoftheunos wrote: »

A notice of Motion for judgment in default can happen where one party has either failed to acknowledge or give a defense to a court case against them. If it is awarded by the judge it means that the side that didn't acknowledge or defend loses automatically.

The Plaintiff does not automatically win. They still have to prove their case. Without a defence however the defendant cannot contradict it and is left to seek a direction of cause not shown.

ThreeLineWhip

If no appearance is entered they get judgement marked in the central office or circuit office no need to prove anything to any judge. No motion is needed to be brought to the defendants attention.

For them to be seeking judgement in default of a defence means that someone has entered an appearance but no defence.

Milk & Honey

ThreeLineWhip wrote: »

If no appearance is entered they get judgement marked in the central office or circuit office no need to prove anything to any judge. No motion is needed to be brought to the defendants attention.

For them to be seeking judgement in default of a defence means that someone has entered an appearance but no defence.

Office judgement only happens in relation to a claim for a liquidated sum. All other cases have to be heard by a judge.

Shewhomustbe...

Thanks for all the information.

Hypothetically speaking, and concerning divorce; if the defence was an Affidavit of Means and the date for the defendant to provide it to the plaintiff has been and gone, if the plaintiff files a Motion for Judgement in default is the ruling made by a Judge and in favour of the plaintiff? For example, the plaintiff wants a reduction in maintenance payment, they hear nothing from the defendant, could the Judge rule to reduce the maintenance to amount offered and then grant a divorce? Or indeed reduce maintenance to zero and grant the divorce?

Thanks again, and all hypothetical.

ThreeLineWhip

Judges tend to put off making judgements in family law matters until they can drag the other side into court.

It would not be uncommon to adjourn a couple of times to make sure the other side is aware of the proceedings.

Milk & Honey

Shewhomustbe... wrote: »

Thanks for all the information.

Hypothetically speaking, and concerning divorce; if the defence was an Affidavit of Means and the date for the defendant to provide it to the plaintiff has been and gone, if the plaintiff files a Motion for Judgement in default is the ruling made by a Judge and in favour of the plaintiff? For example, the plaintiff wants a reduction in maintenance payment, they hear nothing from the defendant, could the Judge rule to reduce the maintenance to amount offered and then grant a divorce? Or indeed reduce maintenance to zero and grant the divorce?

Thanks again, and all hypothetical.

A defence wouldn't be an affidavit of means, which is simply evidence. Family law requires a judge to balance the interests of both sides and it is not predictable what might happen. It is not like a commercial dispute where a judge will destroy a party who does not appear. Generally the judge will try and force the party in default in a family dispute to mend their hand.

Shewhomustbe...

Would it be necessary to have to go before a Judge if the defendant agreed to the offered amount of maintenance?
Or if they said they didn't want any at all?
Because, hypothetically, the defendant is not in a financial position to go to court and wishes to settle the matter and have the divorce granted, but is being advised they have to go to court.

ThreeLineWhip

You can both appear unrepresented. They would be no cost in that.

Shewhomustbe...

ThreeLineWhip wrote: »

You can both appear unrepresented. They would be no cost in that.

Really? I thought apart from paying for the time of a solicitor and barrister you were paying for the time of the Judge, and court staff.

Confused as to why it can't simply be agreed upon without the necessity of going to court.

ThreeLineWhip

The stamping fees pay for the courts time in most cases. In family law stamping fees are usually nil anyways.

There is no obligation to use solicitors at all. In a simple uncontested matter I see no reason why you can't just appear and state your case to the judge.

ResearchWill

Shewhomustbe... wrote: »

Really? I thought apart from paying for the time of a solicitor and barrister you were paying for the time of the Judge, and court staff.

Confused as to why it can't simply be agreed upon without the necessity of going to court.

Court time is paid by way of what ever stamp duty is on the court documents, which in reality is very little, if I remember correctly there may not be stamp duty on some family law documents.

It is necessary to go to court because of the Irish constitution, which states

3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that ­

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the five years,

ii. there is no reasonable prospect of a reconciliation between the spouses,

iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with.

dermot_sheehan

A notice of motion for judgement in default is what it says on the tin, an application to court for judgement because the other side have not filed an appearance or a defence.

If however there is consent to a divorce in divorce proceedings, it is often used to bring proceedings before the court to grant the decree of divorce.

So for example if a party has issued divorce proceedings, and everything is agreed, there is no need to force the respondent to file an appearance or enter a defence, the divorce just needs to be ruled before a judge.

The return date is before the County Registrar who in Dublin gives a date for hearing the motion before a judge that day but outside Dublin could be a different date.

If the proceedings are contested the Respondent can ask the County Registrar or judge for time to file an appearance or a defence. If there is consent the Applicant has to give evidence of the marriage (normally by means of the marriage certificate), and provide details of when the parties seperated and that there are no reasonable prospects of reconcilliation.

Any agreement regarding property, maintenance and/or access needs to be given to the judge (this would normally be agreed in writing), who will decide if there has been proper provision and if satisfied grant a divorce.