Chaired by The Honourable Ms Justice Marie Baker

There have been significant developments in family law in recent times. These range from recent case law to provisions in relation to donor assisted human reproduction. A further concern to practitioners is how to protect family farms and family businesses in marital disputes as well as how the New Circuit Court Rules are working in practice. The object of this seminar is to highlight such issues and to alert practitioners to the problems and pitfalls likely to be encountered in day to day practice.

Donor-Assisted Human Reproduction and the Children and Family Relationships Act, 2015
Muriel Walls, Solicitor

The Children and Family Relationships Act, 2015 provides for the first time in this jurisdiction a comprehensive statutory framework for the regulation of donor-assisted human reproduction (DAHR). It is anticipated that these provisions will shortly be commenced. It has been viewed as a much- needed step to provide legal certainty in this complex area of family law. The Act regulates the status of all the participants in DAHR arrangements and the consequences of entering such arrangements. The legislation imposes duties on operators of DAHR facilities to inform all participants of their rights and to collect information about them and the child born as a result of the procedure. It also makes provision for a National Donor Conceived Person Register as well as establishing the right of a donor conceived child to receive information about their genetic origins. 

This section of the seminar will address the following issues:
  • Who is the legal mother of the child?
  • When can the husband, civil partner or co-habitant of the mother be treated as the parent of the child? Are these parties automatically the guardians of the child?
  • Does the donor have any parental rights?
  • The position in relation to anonymous donations
  • Can anonymous gametes, acquired prior to the commencement of the legislation, be used by an intending parent to have a genetic sibling for a child already born to the intending parent? Is there a time limit?
  • Declaration and consents by the intending mother
  • What happens if any of the participants in the process revoke their consent?
  • The position where an embryo was formed for use in a DAHR procedure and the intending mother wishes to proceed but the other intending parent does not
  • Can intending parents who consent to their surplus embryos being used, donate to a specific intending birth mother or to a specific couple?
  • The duties and obligations of clinics under the legislation
  • The right of the donor conceived child to identifying information in relation to the donor
  • The right of the donor to information about the child conceived as a result of the donation
  • What happens when a donor conceived child applies for a birth certificate?
  • Status of donor-conceived children born before the commencement of the legislation
How to Protect the Family Business and the Family Farm in Marital Disputes
Inge Clissmann, Senior Counsel

The rights and obligations emanating from marriage continue even after marital breakdown. This occurs by virtue of the constitutional requirement to ensure that proper provision is made for the financially dependent spouse for the future, both on Judicial Separation and Divorce.
This section of the seminar will provide an overview of the Court’s distribution method in relation to family owned and inherited assets. It will also provide practical tips on how a spouse may seek to protect such assets both prior to and during marriage.
  • The “quasi- inquisitorial” role of the courts: SQ v TQ
  • The principles laid down in G v G
  • Are inherited assets better protected upon marital breakdown?
  • How best to ensure that inherited assets are placed beyond the reach of the other spouse and what your client should seek to avoid: HN v BN
  • The approach of the courts to family held companies upon marital breakdown
  • Did the decision in LOM v NOM open up the possibility of re-distribution of shareholdings in a company for the purposes of making financial provision? Did the court draw a distinction between assets belonging to a company and ownership of company shares which constitute personal property?
  • Might the court direct a spouse to hold a percentage of his/her shareholding in trust for the dependent spouse?: McM v McM and B v B
  • Is there a tendency for a court to disengage one spouse entirely from any control or involvement in the family business following a separation or divorce, despite the parties being equal shareholders and directors of the company? : EH v EH
  • Are the courts reluctant to assign shares outright to a former spouse?:PB v PB
  • Will the courts resist making an order which might ”destabilise” the company? : RL v MS
  • Piercing the corporate veil
  • Are the courts prepared to pierce the corporate veil to obtain company assets (as opposed to company shares) for the benefit of the financially dependent spouse in matrimonial relief proceedings?
  • “Reviewable Dispositions” under the Family Law Act,1995 and the Family Law (Divorce) Act, 1996
  • Is section 37 of the 1996 Act limited to the existence or presumption of an intention to defeat? What is likely to happen if none exists? Are company assets protected by the corporate veil and therefore out of the court’s reach for the purposes of making proper provision?
  • Steps to be considered to protect assets:Pre-Nuptial Agreements: the necessity for frank and reasonable disclosure of each party’s individual circumstances prior to the execution of the agreement; Should both parties obtain separate and independent legal advice in respect of the significance and consequences of the agreement?
    Separate Assets
  • Shareholders agreements – provision for pre-emption rights;
    Discretionary Trusts and Partnerships
A Review of Recent Caselaw
Mary O’ Toole, Senior Counsel

This year, the paper will take up where we left off last year, reviewing recent decisions of the Supreme Court, the Court of Appeal and the High Court concerning a wide range of topics of interest to family law practitioners. Amongst the issues discussed in the papers will be:
  • Polygamy – the issue as to whether an actual polygamous marriage/potentially polygamous marriage can be recognised as valid in Irish law was the subject of a recent Supreme Court judgment.
  • The Court of Appeal have interpreted s.172(5) of the Civil Partnership certain rights and obligations of Cohabitants Act, 2010 on the issue of whether the periods of co-habitation required under the Act can be aggregated, or must be continuous in nature for the purposes of the Act. Essential reading for practitioners.
  • The Court of Appeal have also handed down judgment in a case where they discuss the meaning and relevance of “gross and obvious” conduct in determining provision in Judicial Separation and Divorce proceedings. They also discuss how the Court should deal with assets that are not “fruits of the marriage” in an ample resources case.
  • Last year’s paper looked at two reference judgments from the CJEU. This year the paper looks at both Supreme Court and Court of Appeal judgments following on from those judgments in relation to various provisions of Brussells II Bis.
  • The paper will look at recent High Court judicial review decisions concerning the Child and Family Agency, and investigations into child sexual abuse and how such investigation should be conducted and the rights of the various parties.
  • The paper will also look at two judgments of Mr. Justice Barrett concerning proceedings for recovery of fees, and taxation of costs in a family law case.
  • There are also two interesting High Court judgments on the issue of contempt in family law proceedings which will be reviewed in the paper; one being a Judicial Review of circuit court
    attachment and committal proceedings and one being an application for attachment and committal
    before the High Court.
  • The paper will also look at a judgment of Noonan J. in respect of a Judicial Review of a refusal to grant legal aid in family law related proceedings.
  • It is hoped that by the date of the conference that the Supreme Court will have handed down their judgment in the forthcoming IRM v the Minister for Justice appeal, in relation to whether or not an unborn is a child within the meaning of Article 42 A of the Constitution.
The Circuit Court Rules (Family Law) 2017: How are they Working in Practice?
Aidan Reynolds, Solicitor

Major changes to practice and procedure in the Circuit Family Court came into effect on 14 June last. The Rules are far-reaching and have significant implications for practitioners. They include the ability to fast track cases before the Court for ruling where settlement terms have been arrived at. They also make changes to the case progression process. These are designed to ensure that the compliant party in case progression is not prejudiced or disadvantaged by the actions or inactions of the non-compliant party.
  • Consolidation of Order 59: What forms have been changed and what new forms have been introduced? Implications for your existing precedent Family Law Civil Bill
  • Simplification of guardianship applications
  • Jurisdiction: Must the basis on which jurisdiction is claimed be stated if no party to the proceedings is resident in the country?
  • Should an appearance be entered even where the respondent does not intend to contest the application?
  • Provision to rule settlements by notice of motion: grounding affidavit to exhibit the terms of the consent together with updated affidavit of means; Must the agreement or consent of the non – attending party be verified on affidavit?
  • What are the proofs where an order for pension relief is sought?
  • Affidavit of means: what change has been made to the date from which the affidavit must be vouched?
  • Case Progression: changes to the Rules in Dublin
  • Has the provision in relation to automatic listing for case progression within seventy days been abolished?
  • Do the rules now operate on a default basis? What happens if neither party has done anything within six months of filing the defence or affidavit of means or, where required, the affidavit of welfare? Is the defaulting party at risk of the proceedings being struck out?
  • New ways of listing the matter for a case progression hearing before the County Registrar:Jointly: where both parties have lodged a duly signed joint certificate of completion of pre-case progression steps; Where one party is compliant and the other is not
  • What must the moving party do to ensure that the case is returnable before the County Registrar for case-progression?
  • In what circumstances can a notice of trial be filed without the necessity for case progression?
  • Case progression outside Dublin: what rules apply?