Circuit Court Rules (Family Law) Affidavit

divorceman

I would appreciate any answer to the following query.
If you are summoned to the circuit court (family law) and the applicant sends you their grounding affidavit which was sworn in front of the solicitor representing the applicant in court.

Is this a breech of the Circuit Court Rules, and should the Judge be informed of such.

maccydoodies

Are you sure it's not the solicitors grounding affidavit?

Acara

maccydoodies wrote: »

Are you sure it's not the solicitors grounding affidavit?

What is a grounding affidavid

Peregrinus

It's a sworn declaration lodge in court in connection with an application to the court, setting out the facts on which the application relies (the grounds" for the application)

Acara

Peregrinus wrote: »

It's a sworn declaration lodge in court in connection with an application to the court, setting out the facts on which the application relies (the grounds" for the application)

Is it unlawful to make false allegations in such a document and what are the penalties for the person making the application

Peregrinus

Acara wrote: »

Is it unlawful to make false allegations in such a document and what are the penalties for the person making the application

Affidatits are sworn documents - i.e. they are made on oath. If you knowingly make false statements on oath to a court about a fact that is material to th proceedings before the court, that's perjury. It's a crime, and the maximum penalty is life imprisonment.

But note that to be guilty of perjury, it's not enough to make a false statement on oath. You must know, at the time you make the statement, that it is false. And it must be a statement that is material to the issue before the court. And to be convicted of perjury, the state has to prove all these things beyond a reasonable doubt.

Acara

Peregrinus wrote: »

Affidatits are sworn documents - i.e. they are made on oath. If you knowingly make false statements on oath to a court about a fact that is material to th proceedings before the court, that's perjury. It's a crime, and the maximum penalty is life imprisonment.

But note that to be guilty of perjury, it's not enough to make a false statement on oath. You must know, at the time you make the statement, that it is false. And it must be a statement that is material to the issue before the court. And to be convicted of perjury, the state has to prove all these things beyond a reasonable doubt.

Thank you for your reply. Who is the guilty party if third party coherses 'applicant' who they know lacks capacity to commit such a serious crime.

Peregrinus

If the applicant lacks mental capacity, which is what I think you're saying, he can't commit the crime.

Acara

Peregrinus wrote: »

If the applicant lacks mental capacity, which is what I think you're saying, he can't commit the crime.

But is it a crime for third party to knowingly take advantage of this lack of capacity and push their own agenda through the courts.

Peregrinus

You're going to have to give us less opinions about peoples' motives and more dispassionately-presented facts before we can say anything that might be useful to you, Acara. Start with what false statement is contained in the affidavit and who made the affidavit, go on to say what kind of proceedings it was lodged in and why the false statement was relevant to those proceedings, and then round off by saying who, connected with the proceedings, knew the statement to be false.

Acara

Peregrinus wrote: »

You're going to have to give us less opinions about peoples' motives and more dispassionately-presented facts before we can say anything that might be useful to you, Acara. Start with what false statement is contained in the affidavit and who made the affidavit, go on to say what kind of proceedings it was lodged in and why the false statement was relevant to those proceedings, and then round off by saying who, connected with the proceedings, knew the statement to be false.

Thank you for sound advice and apologies to original poster if I went off topic.

divorceman

Hi Folks, I am the OP and I found this in Circuit Court Rules, Order: 25

4. No affidavit shall be sufficient if sworn before the Solicitor acting for the party on whose behalf the affidavit is to be used, or before the partner, agent, correspondent or clerk of such Solicitor, or before the party himself.

The person making the Affidavit (The Applicant) swore before a solicitor, and this solicitor represented (The Applicant) in Court. Would I be correct in saying Circuit Court Rules, Order: 25 paragraph 4. (Above) was breached, and If so what can I do about it, as I have to return to Court soon.

Thank you in advance for any constructive answers.

Peregrinus

You can ask the court to strike out the grounding affidavit as being insufficient under Order 25 Rule 4, and then to strike out the Civil Bill as being unsupported by a grounding affidavit.

The other side will ask instead for leave to submit a new grounding affidavit (which will be the same affidavit, sworn before a different solicitor).

If they succeed, there'll be a slight delay while they arrange a new affidavit, and then the case will proceed.

If you succeed, the proceedings will be struck out. But there's nothing to stop them launching new proceedings, supported by a grounding affidavit that complies with Order 25 Rule 4.

So, either way, the short-term outcome is that you delay this matter by some shorter or longer time. But I don't think you are going to alter the long-term outcome.

ohnonotgmail

divorceman wrote: »

Hi Folks, I am the OP and I found this in Circuit Court Rules, Order: 25

4. No affidavit shall be sufficient if sworn before the Solicitor acting for the party on whose behalf the affidavit is to be used, or before the partner, agent, correspondent or clerk of such Solicitor, or before the party himself.

The person making the Affidavit (The Applicant) swore before a solicitor, and this solicitor represented (The Applicant) in Court. Would I be correct in saying Circuit Court Rules, Order: 25 paragraph 4. (Above) was breached, and If so what can I do about it, as I have to return to Court soon.

Thank you in advance for any constructive answers.

are you sure the affidavit was sworn before the solicitor representing the applicant? From my own experience of affidavits (high court not circuit but i'm sure the rules are the same) my solicitor marched me in to the office of the solicitor next door and i swore the affidavit in front of them. A £10 note was exchanged and the job was done. Is that not standard practice?

divorceman

ohnonotgmail wrote: »

are you sure the affidavit was sworn before the solicitor representing the applicant? From my own experience of affidavits (high court not circuit but i'm sure the rules are the same) my solicitor marched me in to the office of the solicitor next door and i swore the affidavit in front of them. A £10 note was exchanged and the job was done. Is that not standard practice?

Thank you ohnonotgmail for your answer
I am 100% positive as the name of the Solicitor is written on the bottom of the Affidavit. Is there anything I can say to the Judge on my return to court as this is a clear breach of the circuit court rules.

ohnonotgmail

you really need to speak to a solicitor

divorceman

I have some more information hopefully someone can help with

The grounding Affidavit was to seek increase in maintenance for 21 year old son who was supposed to return to college in September until December. The Applicant knew her son would not be going back to college as he had signed a work contract from May to December. So the Applicant knowingly made a false statement to the Judge Stating he is in his final year and would be finished in December. The judge approved the increase on the grounds that he would be finished in December. My son has not attended full time education for the last 2 academic years. The ex now says he will return to college in January. This is a scam to prolong maintenance payments from 3 years to 5 years until he reaches 23 years of age. I thought the rule was any child up to the age of 23 MUST be in FULL TIME education to receive maintenance payments.

Peregrinus

This is a quite separate issue from the question of which solicitor took the affidavit.

Your issue here is that one of the statements in the affidavit is incorrect. This would be an issue regardless of which solicitor took the affidavit.

The fact that a statement in the affidavit is incorrect is not enough to found a charge of perjury. For the person who made the affidavit it would be necessary to show that

- at the time she made the affidavit

- she knew

- that the statement in the affidavit was false.

Your son had signed a (presumably, full-time) work contract from May to December. Your ex, I think you are saying, made an affidavit (after he had signed this contract) saying that he would be returning to college in September. I assume, although you don't mention this, that he didn't return to college in September.

OK. The statement that your son would return to college in September has turned out to be incorrect. But can you prove that your wife knew, when she made the affidavit, that it was incorrect? Your son had signed a contract, but can you prove that she knew this? And, if she did know this, can you prove that at the time the affidavit was made your son did not contemplate (or your wife did not beleive that your son contemplated) resigning from his job in September, or negotiation a move to part-time work, or time off to attend lectures, so that he could juggle work and study? The fact that these things didn't, in the event, happen in September, doesn't prove what was in anybody's mind at the time the affidavit was made.

When an event indicated in a grounding affidavit doesn't turn out as predicted, it's generally not a wise or productive course to seek to have the deponent prosecuted for perjury. In your situation, the best course is to go back to court and look for a variation in the maintenance order in light of the circumstance that your son is not, as expected, in full-time education.

ezra_pound

Peregrinus wrote: »

If the applicant lacks mental capacity, which is what I think you're saying, he can't commit the crime.

If they lack mental capacity then the affidavit is invalid.

divorceman

Thank you Peregrinus for your time and effort

You understand exactly where I am with this problem.

I think you are correct to try avoid accusing the ex of perjury. The only way I can actually prove it is if I get a copy of my sons employment contract and a copy of his request for leave of absence from college. The request for leave of absence from college would have been applied for long before the work contract was signed, so they had planned this well in advance of the court hearing. Even though I have asked for a copy of these documents they have refused to supply me with them as it would prove they made a false statement in the affidavit.

Am I be entitled to request a copy of these documents for court?

They did the same thing last year, only in college for 1 semester and working the rest of the year. This is not Full time education. So hopefully the Judge will see the pattern and vary the maintenance.

Acara

divorceman wrote: »

Thank you Peregrinus for your time and effort

You understand exactly where I am with this problem.

I think you are correct to try avoid accusing the ex of perjury. The only way I can actually prove it is if I get a copy of my sons employment contract and a copy of his request for leave of absence from college. The request for leave of absence from college would have been applied for long before the work contract was signed, so they had planned this well in advance of the court hearing. Even though I have asked for a copy of these documents they have refused to supply me with them as it would prove they made a false statement in the affidavit.

Am I be entitled to request a copy of these documents for court?

They did the same thing last year, only in college for 1 semester and working the rest of the year. This is not Full time education. So hopefully the Judge will see the pattern and vary the maintenance.

How much do you pay in maintainance for your son anyway. God I'm sure u're poor son would prefer to work rather than listen to his scabby father drone on about crap really. Why don't you just go and talk to your son about all of this .

divorceman

Acara wrote: »

How much do you pay in maintainance for your son anyway. God I'm sure u're poor son would prefer to work rather than listen to his scabby father drone on about crap really. Why don't you just go and talk to your son about all of this .

I am an Honest person and I did nothing wrong and I am being punished for the last 8 years for being honest. You should not judge people as you do not know their circumstances. If you must know I am paying €150 per week that I don't have while my son and his mother take several foreign holiday per year while I work my ass off to pay for their pleasure.

Acara

divorceman wrote: »

I am an Honest person and I did nothing wrong and I am being punished for the last 8 years for being honest. You should not judge people as you do not know their circumstances. If you must know I am paying €150 per week that I don't have while my son and his mother take several foreign holiday per year while I work my ass off to pay for their pleasure.

That is a very generous student allowance by any standards but in my opinion the real issue is a lack of honesty about what your son is doing. Would it not be more productive to talk about this with your son directly ?

patsypantaloni

There is a recent judgment of the High Court on dependency of adult children for the purposes of maintenance that might be of interest to you OP:
http://www.courts.ie/Judgments.nsf/597645521f07ac9a80256ef30048ca52/6f9fccd265e3514b80257edf004d7d87?OpenDocument

divorceman

Thank you all for your help and valuable information especially Peregrinus. Hopefully all will go well in 2 weeks time.