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Family Law

Family law is different from other areas of law.

Most areas of law are concerned with what happened in the past and Courts are left with the task of making judgments in relation to what has already occurred.

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However family law places an onerous obligation on family law Judges and Courts and family law solicitors to make decisions based on current and future behaviour of the parties and the responsibilities and needs of the parties concerned including children of the parties. Family law solicitors need therefore to advise their clients and be mindful of not just the legal remedies open to their client but also to non legal solutions such as

  • mediation
  • negotiated agreement between the parties through their solicitors and
  • reconciliation.

In fact family law solicitors have a legal duty to advise their clients of non legal solutions to their difficulties in the first instance rather than initiating legal proceedings immediately.

Negotiated agreements, such as separation agreements, may be appropriate in many situations and will generally be a cheaper alternative to issuing legal proceedings and attempting to resolve difficulties through the Courts.

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Agreements between the parties can also be drawn up in respect of

  • maintenance
  • access
  • custody
  • guardianship

and if agreement is reached the agreement can be ruled by the family law Court, that is to say, the Court will make a Court Order in terms of the agreement reached between the parties.

The Family Mediation service, which is a free service for separating couples, should also be used to attempt in the provision of free mediation services by trained counselors/mediators.

Family law client care

A good family law solicitor will ensure to

  • keep you informed throughout the process
  • speak to you in a language you understand with the minimum of legal jargon and an awareness that your family law problem may well be your first encounter with the legal system in Ireland
  • support you on the day that your case comes before family law Court
  • explain in easy to understand language what has occurred and the implications of whatever Court Order has been made.

Good family law solicitors recognise that family law problems can cause a huge degree of stress and upset for people and should be aware of this at all times.

It is important to recognise that good family law solicitors will be supportive and helpful to you on a personal level but they are also legal professionals who have a professional obligation to you as client and in their dealings with colleagues acting for the other party and will advise you as to what is possible and impossible in your particular case.

Children in family law cases

Children should be a prime consideration in family law cases and the best interests of the child(ren) should always be paramount in family law disputes.

As stated at the outset, family law is different because unlike, say litigation or criminal law or business law, it is not a “winner takes all attitude” that will provide the best outcome for all parties concerned. (If you need assistance with any of the issues raised in this article don’t hesitate to contact Solicitors Dublin through our Contact Us page)

By Terry Gorry Google+

The Status of Children Act, 1987 makes provision for declarations of parentage.

This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.

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The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order. These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.

Presumptions of paternity

The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.

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Unmarried parents

In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.

Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.

The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate

  • If both parents agree or
  • If there is a Court order naming him as the father.

However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.

If you are looking for solicitors in Dublin please use the contact form on this site.

By Terry Gorry Google+
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Seeking guardianship by the father of a child in a non-marital situation is a common application before the District Court in Dolphin House, Dublin 2.

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The reason is simple: under the existing law the father of a child in a non-marital relationship is not automatically a guardian of the child, although the mother is.

The father of the child is only automatically a guardian where

  1. He was married to the mother at the time of the child’s birth or
  2. If the parties marry after the birth of the child.

What does guardianship mean?

Guardianship is concerned with the overall care of the child in a global sense and will involve having a say as to

  • Permission of the child to marry
  • Passport forms
  • The general upbringing of the child
  • The child’s medical care
  • The child’s education
  • Acting on behalf of the child in legal proceedings
  • Custody of the child
  • Any property of the child until the child reaches the age of 18.

The natural father, thanks to the Status of Children Act 1987 (section 12), can now apply to the District Court under section 6A of the Guardianship of Infants act 1964 to be appointed a guardian of the child by the Court.

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The first and paramount consideration of the Court in considering such an application will be the welfare of the child (sect. 3 Guardianship of Infants Act 1964).

Guardianship by consent

However where the mother of the child consents there is a procedure under Section 2(4) of the Guardianship of Infants act 1964 where both parties can swear a statutory declaration agreeing for the father to become a joint guardian.

This will not involve a court appearance and can be carried out by the parties themselves by filling out the appropriate form under the Act and can be done regardless of the living arrangements of the parties-that is, they do not have to be living together. (If the father is not registered on the birth certificate then it is likely that the declaration will be rejected by the Registrar pending his registration as father on the register maintained under the Civil Registration Act 2004.

However despite the relative ease with which you can carry out this declaration procedure you should always seek legal advice before signing one.

If you have any questions arising from the above do not hesitate to contact us. You might also be interested in family law solicitors Dublin.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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