The Legal Position of Marriage in Ireland [Get yer latest thread titles here]

Pherekydes wrote: »

I can't see why anyone would be upset by what lazygal's said. I also can't see where anyone has implied they're upset.

It's a great thread, with many interesting points raised (mostly by your good self) and answered (mostly by lazygal).

It's a real coming-of-age thread for the forum.

lazygal:
Anyone think the article should stay? Anyone?

lazygal wrote: »

Did you think this could happen, CDfm?:D[/font]

lazygal wrote: »

I know you're divorced, CDfm, would you have gotten married if you'd had a class on this with me before hand?!:D

Pherekydes wrote: »

This is not correct. Once a decree is made absolute a spouse can have no interest in any property owned by their ex-spouse, much less any future property, unless a contrary intention appears in a will.

The Corinthian wrote: »

As CDfm pointed out, there is no such thing as a clean break settlement in Ireland. Future earnings can be included in final decrees, for a start.

Home barring orders become family law issue
Sunday, August 11, 2002
By Kieron Wood


The Act says that an application may only be heard ex parte "in exceptional cases" where the court considers it "expedient in the interests of justice". The court is not supposed to grant an interim barring order unless there is "an immediate risk of significant harm to the applicant".
Despite the strictures imposed by the legislation, figures released by the Courts Service last week indicate that of 1,159 applications for interim barring orders last year, only 36 were refused. The number of interim barring orders granted has risen sharply from 170 in 1996 to 543 in 1997 and 677 in 1998. The figure topped 1,000 in 1999.
The statistics are not broken down according to the sex of the applicant, and there is no way of establishing how many cases are brought by women and how many by men, because the cases are heard in private. But the view of practitioners is that the vast majority of those who apply for interim barring orders are women.
Last week's Supreme Court challenge was brought by a man whose wife had successfully obtained an interim barring order against him on the basis of her unchallenged evidence.
Michael O'Kennedy SC, who acted on behalf of the appellant, argued that the man's personal constitutional rights had been infringed because the court had come to a decision which had immediate effect without hearing the evidence of both sides.
This is not the first time there has been criticism of the Domestic Violence Act. In May 1999 the law reform committee of the Law Society published a report calling for changes to the ex parte procedure.
The committee proposed that the District Court rules be changed to require any applicant for an interim barring order to swear an affidavit. It said that the respondent should automatically be provided with a note of all the evidence given at the ex parte hearing, and that the barring summons should be served personally, rather than by post.
The report accepted that ex parte applications for interim barring orders were "vital for the protection of victims in exceptional circumstances", but pointed out that "the `information' subsequently received by the respondent may not contain all the evidence tendered in court during the interim ex parte hearing".
The committee drew attention to the Circuit Court rules which direct that "any ex parte application should be on affidavit, and if for some reason it is not, the respondent should be provided with a note of the evidence given at the hearing".
Despite the rules, the report said, "Frequently respondents find themselves coming into court to defend proceedings, though they are not aware of the statements made by the applicant which led to the granting of the order."
Amen, a group which highlights the problem of domestic violence by women against men, said: "Under the 1996 act, people can be barred from their home at a hearing at which they are not present and are not even aware is taking place. In many parts of the country it can take months (or even a year) before they get a chance to prove their innocence and are free to return to their family home.
"To further compound the injustices of the interim barring order provisions, respondents are not even informed as to what allegations are made against them.
"We are aware that respondents can get a copy of the statement of information made when the interim order was granted from court offices -- when these are available -- though members of the public are not aware of this. Some solicitors tell men that they are not entitled to this information. It is also our experience that some court staff are not aware that they are obliged to give copies of these statements to respondents on request.
"Personal service of summons should be required in all cases. We are aware of many cases where mail is interfered with where parties are still living together.
"The two recommendations of the Law Society would go some way towards ameliorating the injustices inherent in ex parte orders, but there are much more serious and fundamental questions to be addressed. These orders effectively give individual citizens the power to impose the most severe and draconian penalties on other citizens without having to provide any proofs or evidence -- and in circumstances where the other citizen does not even have the right to defend himself or herself.
"The legislation which makes provision for these orders contains no checks or balances and provides no safeguards against abuse.
"No penalties are provided for those who abuse -- and are clearly seen to abuse -- these awesome powers. There can be no doubt that these provisions involve a serious violation and denial of human rights and civil liber- ties.
"Research shows that practices vary widely between judges. The penalty imposed in these cases -- being barred from the family home -- is in many respects as severe as imprisonment.
"Our society, which purports to have certain standards of civil liberties and human rights, would not tolerate imprisonment of its citizens on the basis of uncorroborated allegations in an open public court. It is therefore unacceptable that, in the secrecy of the in camera family courts, equally draconian penalties are being imposed on citizens without any evidence against them."
A spokesman for Amen told The Sunday Business Post: "We are of the view that the interim barring order provision in the 1996 act is contrary to the spirit of the Constitution, particularly Article 40, which deals with personal rights.
"It is also an attack on the family rights and property rights of those who are evicted from their homes in this way.
"It is undoubtedly a denial of basic civil liberties (the presumption of innocence until proven guilty and the right to be heard), and we believe it is contrary to the UN Declaration on Human Rights and the European Convention on Human Rights.
"It is difficult to understand why organisations such as the Irish Council for Civil Liberties are not opposed to this provision giving courts the power to remove a man from his home at a trial at which he is not present and where, in most cases, he is not even aware the trial is taking place.
"It is our experience that these orders are being given out on request. The applicant's word is accepted without any supporting evidence in many cases.
"Many of the men who are evicted from their homes in this way remain out for months before being granted a hearing. We are aware of one man who was out of his home on an interim barring order for more than two years before his case was heard. There is another who is out since last December and is still awaiting a date for a hearing.
"The absence of any statutory penalties for those who are clearly seen to abuse this provision further compounds the inherent injustice and facilitates abuse."


The relaxation of the in camera rule and the Supreme Court judgment in Keating versus the Attorney General -- expected in October -- are likely to effect major changes to the practice of family law in the Irish courts.