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The Story behind the Irish Parental Equality Legacy Project

A conversation explaining how the “Legacy Project” came about at a meeting back in Nov 2003 and after many years of distraction how it is finally taking shape…..

The vision of the “Legacy Project” is the core objective of this latest reinvention of the Parental Equality site.

The work and ideals of the Parental Equality and supporting organisations are part of the alternative history of Ireland and are still being reinvented and felt throughout Ireland in the homes, courts and on the streets.

The vision of this project is to capture the Legacy in a historical website that will educate and inform not only historians, students. politicals but maybe even individuals that are facing the awful situation of not being allowed to have the equal rights to parent your child/ren.

If you wish to support this project and/or if you have “evidenced based” material which can embellish this project for the benefit of future generations of parents and their children and grandparents then please email irishparentalequality@gmail.com.

DOES IT MATTER?

This is a foreward by Liam O'Gogain from 2002. In reality how much has changed for Fathers since?

As chairman of Parental Equality I welcome you to our  website.

Parental Equality is celebrating 10 years of work in support of shared parenting issues since being founded in 1992. In those ten years there have been enormous changes in Ireland.

We now have legalized Divorce, some 40% of births outside of marriage, a substantive increase in family Law activity (20% of all civil legal actions) and a huge industry of professionals who eke their living from the fallout of family separations.

Technology has been a central driver in change. Mobile phones are now standard. Being on the web as you are now is increasingly the norm. The Freedom of Information Act now allows a citizen to have access to information which was at best a black art in the past.

The landscape against which support groups such as PE operates is also greatly changed. Whereas at one time voluntary groups were all well meaning unpaid caring people who did their best with very little funds and no one expected miracles form such groups, there has been a huge shift towards a Professional Voluntary sector with over 70% of workers in this area being paid. Unfortunately funding for these salaries (often from taxpayer’s monies) is concentrated on those groups within the Golden Circle of political correctness This process has raised the expectation of callers to the various services. Callers expect helplines to be 24/7/365 and they expect a range of supports without having to contribute for these supports.  Parental Equality is largely unfunded. We get some small grant aid which could not even support the maintenance of this website. For most of our work we rely of the incredible level of commitment of a small band of doo-ers who have risen above their own personal problems and reached out to help others. On your behalf I thank all the PE volunteers and wish for them and their children good health and happiness.

 

Parental Equality have been at the leading edge of promoting change in the family law system and in challenging the culture of “Sole custody to the Mother, with subservient and controlled access to the Father”. This discriminatory approach to parental roles has led to a colony of single parent families, led almost exclusively by mothers, where children have very little experience of enriched relationships with their loving fathers. The Irish State has now become substitute father to countless thousands of children, with spiraling costs to the exchequer (and thus the taxpayer, due to single parent welfare payments), as a direct result of a policy of isolating and demonising men in general and in driving fathers away from their children in the event of relationship breakdown.

The sobering fact is that within 2 years of relationship breakdown, some 50% of fathers lose contact with their children. At the same time the level of male depression, male suicide and societal violence, infanticide etc., is on the increase.

It seems apparent to me that the government Family Social Policy of the last two decades has as one would say “added to the problems rather than contributing to a solution”

Parental Equality believe that when relationships break down the default solution should be one of shared Joint custody with equal social, tax, educational and welfare  supports for both mothers and fathers. PE have living working models to prove that a policy of true equality which treats mothers and fathers with Parity of Esteem as parents and which supports shared parenting as a core value creates a WIN-WIN-WIN-WIN-WIN outcome:-

 

  1. Children Win by retaining and developing deeply loving and engaged relationships with both their mothers and fathers and their respective extended families. This removes the longer term trauma of future reconnections with their father and his families. It also removes the need for the children to take sides and provides greater security for their upbringing.

 

  1. Mothers win by not being left as sole custodians and effective sole guardians of their children’s welfare.  Mothers sharing parenting experience the same opportunity for personal development and for career opportunity as the fathers of the children. The level of stress is reduced for mothers by not having to pursue fathers for maintenance, which mothers often say re-enlivens the bitterness and arguments and prevents them from moving on.  The culturally enforced martyrdom of single motherhood and the stigmas which are sometimes attached with sole parenting are removed. In this environment, if single mothers meet other single fathers it is likely that those fathers have themselves an involved commitment with their own children and therefore any new relationship is more likely to be based on an equality of expectation and resources.

 

  1. Fathers win by having parity of esteem as parents. Instead of trying to deal with the emotional trauma of expecting to be treated as second class parents, subservient to the whims of the mother and often repositioning their expectation of themselves and their engagement with their children, fathers can plan to rebalance their career and family life commitments for the benefit of themselves and their children. By having equal access to state child benefits, equal and positive support from the statutory services in dealing with the whole range of parenting issues, fathers will experience a release of loving energy which recognition of their role will bring and this energy will be positively available for their children.

 

  1. Grandparents, uncles, aunts and cousins will all win. No longer the embarrassment of children and their grandparents and cousins etc, when they meet in the street, in school etc. The present discrimination in favour of maternal grandparents and extended families, while isolating the fathers side of the family will no longer be necessary. Grandparents who are generally completely innocent and often unaware of the parents conflicts and who end up cut off as result of family separations can now be assured of secure long term relationships with their grandchildren. In this space grandparents can provide the wisdom and ease of age, the vital linkages through the family genealogy, and a comforting ear for the problems of growing children.

 

  1. Society wins by the maintenance of the familial and communal bonds which shared parenting brings with it. Families are best able to impart communal values and to maintain a sense of good behaviour and to look out for their own, instead of abdicating to the state the day to day responsibility for their children. With a reduction in the exchequer spending on maintenance, the consequent reduction in spending on adversarial court hearings and costs of social workers reports etc, the taxpayers monies can then be directed into productive family support, which can benefit children and their parents.

 

In conclusion, The philosophy of building a shared parenting culture is about improving the Quality of Life for all of  our citizens. There are those who, I believe, because of their baggage or blindness, or because of the toxic incentives which encourage them to stoke the male-female divide in order to increase their own financial gain from the hurt of others, will continue to say that Joint Custody and shared parenting cannot work. Because of the huge investment in the present model of sole custody-feckless father-martyr-mother metaphor, these people do not want change even if it’s for the better. Using vast sums of taxpayers funds they carry out and use research results not as a learning and discovery tool but rather as a way of buttressing their prior prejudices. To those who say that shared parenting cannot work I say “Get out of the way of those who are actually doing it successfully”.

 

If you would like to be involved in building solutions for our children’s futures, then I encourage you to become involved with us in Parental Equality. Whatever you skills there is something you can contribute and remember:- PE needs you and can only develop with your participation. So let’s hear from you.

 

Regards

Liam O Gogain

(Chairman PE)

11th June 2002

Family Law Course (2002)

1.   Introduction to Family Law & The Legal System

l  Constitution

l System of Courts
4 courts (supreme, high, circuit, district)

l Separation of Powers
Oireachtas / Council of State / Judiciary

l Court Procedures
Family Law Procedures, Normal Procedures

l Legal Structures
Solicitors/Barristers/Code of Practice

 Constitution

 System of Courts

 Separation of Powers

 Court Procedures

 

Module 2:

Family Law Foundation Course

Marriage/Separation/Divorce

Marriage

Civil Marriage

  • Both parties must be over 18 years of age (can be waived by High Court Order)
  • One Party must be male and the other female (from birth)
  • Both parties must be of sound mind
  • Unrelated by blood or marriage
  • Give free consent
  • Give 3 months notice (can apply for waiver – S. 33 of Family law Act, 1995)

Church Marriage

  • State Marriage – Registry Office

Separation 1: By Agreement

Deed of Separation

  • Also called ‘A Separation Agreement’
  • Legally binding contract when lodged with a Court (made a Rule of Court)
  • Will cover various issues including:
    • Live apart
    • Children
    • Maintenance
    • Family Home
    • Other Property
    • Inheritance/Succession
    • Pensions
    • Any other matters
  • Can be
    • Negotiated directly between parties
    • Negotiated via solicitors
    • Negotiated at Mediation
  • Such agreements are normally made a Rule of Court
  • Does not give spouses a right to re-marry
  • Advantages of Separation Agreement:
    • Can be done up quickly
    • Cheaper than Court
    • Spouses have contract
    • Less hostility

Separation 2: Judicial

  • Court decides on all issues ie children, property finances etc in absence of agreement by parties
  • Must apply on one or more of the following grounds
    • Adultery
    • Behaviour
    • Desertion
    • Lived apart one year (respondent consents)
    • Lived apart three years (consent not required)
    • No normal marital relationship for one year
  • Circuit Court or High Court
  • Requirements of solicitor
    • Reconciliation
    • Names and addresses
    • Mediation
    • Separation Agreement
  • Court can adjourn for any of above
  • Decree of separation
  • Ancillary Orders
    • Children
    • Maintenance
    • Family Home
    • Other Property
    • Inheritance/Succession
    • Pensions
    • Safety/Barring
    • Any other matters
  • Preliminary Orders
    • Maintenance
    • Barring/Protection
    • Custody/Access
    • Assessments
    • Protection of name or money
    • Protection of goods or money
  • Interim – until decree of judicial separation
  • In Camera – relatively informal
  • Appeals
  • Costs
  • Reconciliation

Nullity

  • Means marriage can be treated as though it never took place
  • Based on circumstances pertaining at the time of the marriage – ie some defect or impediment existed
  • Church annulment does not allow for re-marriage in Irish Law
  • State annulment means parties can legally marry/re-marry

Grounds for nullity:

  • Lack of capacity –
    • One party married to someone else
    • Parties of the same sex
    • One or both under 18 and did not have court consent
  • Non-observance of certain formalities e.g. did not give the Registrar of Marriages three months notice of intention to marry.
  • Absence of consent-
    • Under duress – e.g. threats
    • Under undue influence – e.g. pressure from a parent
    • A party did not at the time intend to fulfil a fundamental part of the contract e.g. did not intend to have sexual relations and this was not aggreed
    • Party insane at the time of the marriage and not capable of consenting.
  • Impotence
    • One party unable to perform the complete sexual act. Necessary to establish psychological or physical causes of impotence which are incurable
  • Inability to form and sustain a relationship.
    • One party, unknown to the other party, suffered from manic depression or schizophrenia at the time of the marriage
    • One party extremely immature at the time of the marriage
    • One party homosexual.
  • Effects of a decree of nullity:
    • The parties are free to marry
    • Neither party can claim spousal maintenance from the other
    • The decree does not affect the rights of the parties dependent children
    • Neither party can claim a share in the estate of the other party.

Mediation

For parties who have already decided to separate

  • Not marriage counselling
  • Not legal advice service
  • Voluntary
  • Can deal with all issues eg children, property finances etc
  • State mediation services and private mediators
  • Mediator facilitates parties – does not impose solutions
  • Works only if both parties are committed to making it work
  • Final agreement is property of the spouses – not mediators
  • Average about six sessions
  • Cannot be used as evidence in Court

Divorce

Decree of divorce ends an existing marriage. Must be granted by Circuit Court or High Court. Cannot be done simply by agreement between parties.

Can reach agreement on terms of divorce.

  • Solicitor: Required by law to give advice about
    • Counselling services to bring about reconciliation
    • Mediation services
  • Grounds for divorce;
    • Spouses have lived apart for period or periods amounting to at least four years during the previous five years.
    • No reasonable prospect of reconciliation
    • Court must be satisfied that proper provision has been made for the spouses and dependent children.
  • Ancillary orders:
    • As in Judicial separation
  • Re – marriage:
    • Decree of divorce gives parties right to re-marry.
  • If a party re-marries
    • Cannot claim maintenance for themselves from former spouse (but can claim maintenance in respect of dependent children
    • Cannot apply for share of the estate of former spouse when that spouse dies
    • Cannot obtain a property adjustment order in his/her favour.
  • Foreign divorce:
    • Foreign divorce may be recognised if granted in a country where either spouse was domiciled.
    • Can apply to court for declaration as to the validity of a foreign divorce.
  • If foreign divorce is valid;-
    • Entitled to remarry
    • May be entitled to apply for financial and property orders against former spouse provided applicant has not remarried
    • May seek protection under domestic violence legislation
    • Not entitled to inherit from the estate of former spouse
    • Not entitled to protection given to spouses in respect of family home.
  1. Domestic Violence
  • Definition: Domestic violence is any form of physical, sexual or psychological violence which puts the safety or welfare of a family member at risk.
  • Domestic Violence Act, 1996 is now the Principal Act dealing with domestic violence
  • Explain difference between 'civil' law and 'criminal' law
  • Prior to 1976 only civil law remedy was the injunction
  • 'Injunctions' could not be obtained in the District court, could be obtained in the Circuit court but usually in the High Court.
  • Other option was assault prosecutions under criminal law
  • Family Law (Maintenance of Spouses and Children) Act 1976 gave courts power to grant Barring Order - Spouses only
  • Repealed and replaced by Family Law (Protection of Spouses and Children) Act 1981 - contained more elaborate measures to deal with spousal misconduct - also spouses only
  • That Act has now been repealed by Domestic Violence Act, 1996
  • Main features of the 1996 Act.
  • Not confined to spouses bur can be invoked by former spouses and co-habitees in certain circumstances.
  • Orders available: main types Safety Order and Barring Order. Also Protection Order and Interim Barring Order.
  • Applications can be made by persons themselves and/or for a 'dependant' person and can also be made by Health Boards.
  • Barring Order:
  • Safety Order:
  • Protection Order:
  • Interim Barring Order:
  • Who can apply?
  • Welfare

 

 

5.Property

 

  • Before legislation - Common Law.
  • Husband obliged to provide his wife with necessities (food, clothing, medical etc.)
  • Married women had no contractual capacity. Couldn't own property.
  • Husband was liable for any contract entered into or debts incurred by her.
  • All property owned by her at the time of marriage or acquired thereafter became his - exception; paraphenalia (clothing and other personal items0
  • Reverted to her upon his death.
  • Over time women's contractual capacity was developed and extended by legislation. The Married Women's Property Acts (1865, 1870, 1874, 1882, 1884, 1893 and 1907).
  • Property acquired by a wife after 1882 and property belonging to a woman after that date was her separate property
  • She had the same legal protection and security of her property as a single woman
  • There were still constraints on her 'contractual capacity' including her right to dispose of her property.
  • The Married Women's Status Act, 1957 - husband and wife were separate persons for all purposes of acquisition of property.
  • Married women can acquire, hold and dispose of property
  • Capable of contracting and being personally liable in respect of own contracts and debts.

 

Feminist view: Wives still did not have equality in property ownership due to predominance of husband as sole or main income earner.

Subsequent case law ……where a wife made a substantial direct or indirect monetary contribution to the acquisition of property held in husbands sole name she could acquire ownership right proportionate  to her contribute.

 

Family Home

The Family Home is the major property asset of most families - a major issue of dispute.

 

Commission on the Status of Women, 1972: the vast majority of homes were still in the husband's name and they argued that the wife's right of residency was not adequately protected.

Husband's did however have an enforceable 'common law' obligation to support a wife including providing 'a roof over her head'. It could be invoked to prevent a husband from selling without providing suitable alternative accommodation.

 

Family Home Protection Act, 1976

Defines family home as: "…primarily a residence in which a married couple normally reside". This has been further interpreted to include: "….a dwelling in which a spouse whose protection is in issue ordinarily resides or ordinarily resided before leaving".

The Act does not generally apply to business premises - exception is where part of the business premises is used as a dwelling.

A farmhouse and gardens are part of the family home. Other lands, used for commercial or agricultural purposes, are outside the remit of the Act.

 

Purpose of the Act:

  1. To ensure that an owning spouse does not sell or dispose of any interest in the home without the consent of the non-owning spouse (this includes re-mortgaging).
  2. Provides the right to obtain an order to protect the home so as to prevent its loss or being rendered uninhabitable - such orders may provide for a transfer of a spouse ownership interest to the other spouse.
  3. Provides for compensation from a spouse whose actions deprive a spouse of the right to reside in the home.

 

The 1976 Act does not create an automatic right of ownership!

In 1991 the Supreme Court rejected the case that the contribution made by a wife in the home should give her a beneficial interest in the home.

 

Matrimonial Home Bill 1993:  Prescribed automatic joint ownership.

Never became an Act. President Mary Robinson referred it to the Supreme Court. Bill declared repugnant to the Constitution.

 

 

Module 6:

Family Law Foundation Course

Finances

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

parentalequality.ie

 

 

Maintenance

  • Maintenance is defined as the financial support paid by a person for the benefit of a dependant spouse and/or children. Spouses are required to maintain each other according to their respective means and needs.
  • Maintenance payment s can be paid (1) at fixed intervals (2) by lump sum or (3) both.
  • Even if living together spouses can apply for maintenance from each other.
  • A party cannot contract out of maintenance rights.
  • Parents, married or not, custodial or non-custodial have a duty to maintain their child(ren) if (a) under 18 (b) under 23 in full-time education or (c) dependent on parents due to disability.
  • In certain circumstances a person other than a parent may make application for maintenance e.g. legal guardians, Health Boards
  • District Court max. £200 p.w. for a spouse; £60 p.w. per child and £5000 lump sum.
  • Maintenance may be paid through the District Court Clerk who passes it on to the spouse
  • An attachment of earnings order directs an employer to deduct maintenance from the employees earnings and pass it on to the Court Clerk or the receiving party. It can only apply if the paying spouse is an employee.
  • An enforcement order may be applied and if not complied with a prison sentence may be imposed. A prison sentence does not clear the debt.
  • Applications can be made for variation of maintenance orders - usually where there is a change of circumstances.
  • It is possible to enforce maintenance orders transnationally in certain countries (Maintenance Orders Act 1994).
  • In making a maintenance order a court must have regard to the income, earning capacity, property, other financial resources, dependant children of the parties as well as other dependant children of either of the spouses.
  • Earnings of a new partner are not taken into account unless it is proven that he/she makes a contribution which reduces expenditure.

 

Taxation

  • Separated couples are still spouses. May be taxed as married couple or single persons.
  • Divorced spouse is a single person and is taxed as such.
  • A separated parent is entitled to lone parents tax relief if a child spends one overnight a year with them. Gives total tax relief almost equivalent to the married tax allowance.
  • Maintenance orders pre-June 1983 a husband paid tax on maintenance to his wife.
  • Since June 1983 - maintenance paid to a spouse is tax deductable; maintenance received from a spouse is taxable (Finance Act 1983).

 

 

Life Assurance

  • A spouse may be ordered to take out an insurance policy for the benefit of the other spouse and children.
  • A court may assign the benefit of an existing policy to a spouse or other family members.
  • The court may order a spouse to pay the premiums on a policy.

Succession

  • If there is no will the surviving spouse receives two-thirds of the deceased's estate with the remainder divided between the children.
  • If there is no surviving spouse the estate is divided equally among the children.
  • Since 1987 a child born to parents who are not married has the right to inherit from its father (Status of Children Act 1987). They may share this right equally with any children of its parents marriage.
  • A parent is not obliged to make provision for a child when making a will. But a court can make an order to provide for a child if it is of the opinion that the parent has failed to make proper provision for the child in accordance with his/her means.
  • Adopted children have the same inheritance rights as natural children.
  • Spouses can waive succession rights on separation or can apply to the courts to have them extinguished.
  • Succession rights are usually extinguished on divorce. Children's inheritance rights are not affected.

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