When may a Court grant a divorce?

Benjamin Franklin said nothing is certain except death and taxes.  From a family law point of view nothing is certain except death and divorce since only the death of a spouse or a divorce can end a marriage.  But when may a Court grant a divorce?

The Family Law (Divorce) Act, 1996 governs divorces, and provides that a Court may grant a divorce order only if:

(a)        at the date of the institution of divorce proceedings, the spouses have lived apart from one another for a period of, or periods amounting to at least two years during the previous three years,

(b)        there is no reasonable prospect of a reconciliation between the spouses, and

(c)        proper provision exists or can be made for the spouses and any dependent members of the family if the divorce.

These requirements must be read together, in other words all three must be present for the Court to exercise its discretion to grant a divorce order or not.

According to the Court Services 2020 Annual Report there was an increase of 29% in the number of divorce applications in 2020 compared to 2019.  In 2020 there were 5,266 divorce applications, 1193 more than in 2019.  The reason behind this increase was the reduction in the waiting period for a period of, or periods amounting to at least two years during the previous three years compared to four years during the previous five years prior to the change in December 2019.

Note that the term “living apart” is given a very specific meaning for the purpose of a divorce, and a spouse can satisfy this requirement even if they continue to live together in the same dwelling.  The two-year waiting period is therefore not triggered by actually separating but would generally start much earlier whilst the parties still lived together under the same roof, albeit not as happily married spouses generally would.

The second requirement is effectively the irretrievable breakdown of the marriage.  The Court must be satisfied that there is no reasonable prospect of reconciliation of a normal marriage relationship between them.  This breakdown can be caused by many reasons, for example infidelity, the parties may have lost the love and affection for one another, and also the attitude of the parties towards continuing with the marriage.

Thirdly the parties and their dependents must be properly provided for following the divorce. A Court will for example consider the financial needs of the spouses and dependents and their income, their earning capacity (if any), property and other financial resources to determine if all the parties will be properly provided for after the divorce.  If not, a divorce order will not be granted.

If you need any advice on getting divorced, kindly email Carrie McDermott at carrie.mcdermott@mdmsolicitors.ie or Mornè Gouws at morne.gouws@mdmsolicitors.ie.

Reform of the Occupiers Liability Act 1995 and the Duty of Care

The Occupiers Liability Act 1995 is a governing legislation in respect of the duty a Business owes to a Visitor who enters onto its premises.  The Civil Liability Act 1961 states that for an Occupier of a premises to be relieved from this duty a written Agreement between the Occupier and the Visitor must be entered into.  The law therefore in that regard had been interpreted strongly in favour of the Visitor in the event that any accident befalls the Visitor.  Changes to the law on Duty of Care have been proposed as part of the Government’s general commitment to Insurance reform in Ireland.  Small and medium size Businesses have been complaining for over a decade that Insurance costs are prohibitive to doing business in Ireland and the reform of the Duty of Care contained under the Occupiers Liability Act is part of the Government’s initiative to bring down Insurance costs for business sectors.  There are four proposed changes set out in the Courts and Civil Law (Miscellaneous Provisions) Bill of 2022 which has been introduced by Minister McEntee in recent months.  The four keys areas of reform can be summarised as follows: –

  1. A rebalancing of the Duty of Care owed by Occupiers to Visitors and recreational users.
  2. A change to the standard of clarity in respect of when the Occupier of a property has acted with reckless disregard to a Visitor or Customer.
  3. The circumstances where a Court can impose liability on the Occupier where a person is  unlawfully entered onto a premises for the purposes of committing an offence will be limited.
  4. Where a Visitor or Customer voluntarily assumes a risk such an assumption will be set out in the amendments to the Act and liability arising therefrom will be curtailed.  The proposed Bill will most likely go before the Oireachtas for enactment after the Summer recess break.

For further information please contact MDM Solicitors on 021 239 0620

Distressed Assets: Possession and Damages

PATRICK HENNESSY V KEN TYRELL & EVERYDAY FINANCE DESIGNATED ACTIVITY COMPANY

This case was an emergency interlocutory application by the Plaintiff to prevent the Receiver Ken Tyrell and Everyday Finance from taking possession and selling his lands and from prohibiting an on-line action.  The urgency was that there was an auction scheduled to take place imminently.

By way of background the purchase of the property was funded by a loan from AIB and secured by a Charge over the lands.  The Plaintiff failed to meet his obligations in November 2016 and while he engaged with AIB, the loans were eventually transferred in 2019 to Everyday Finance.  Further engagement ensued between the Plaintiff and Everyday Finance however no resolution was found.

In September 2021 Everyday appointed Ken Tyrell as Receiver.  The Receiver’s power was limited to collection of the rents and profits.  The Plaintiff and his brother had a company called Hennessy Brothers Farming Limited which had licences to farm most of the lands subject to a €50,000 per annum payment which included a licence fee which was not paid over to the Receiver.  The Plaintiffs were unable to pay their debts or secure a restructuring of their debts.

The application for the injunction involved the restraining of the sale in the manner proposed by the Receiver and Everyday.  It was not contested that Everyday had a power of sale or that the power had arisen or that it was exercisable.  The Plaintiff said that he was shocked to be told that his lands were advertised for sale on a website.  The land appeared to have been first advertised for sale in early February 2022 with an auction date for the 24th February 2022 and the advertising campaign appeared to have been limited to those who might stumble on the listing on the website.

The Judge ultimately concluded that he did not believe that damages would be an adequate remedy.   Judge Allen referred to the issue of Everyday attempting to sell the lands with the Plaintiff in possession, but he did not go as far to say that Everyday were not entitled to offer the lands for sale without vacant possession.

Ultimately the Court concluded by granting the Orders sought essentially preventing the sale of the charged lands.  The Court did make directions to ensure the expedient exchange of Pleadings and early Trial date to minimise the risk of injustice to either party.

Vaginal Mesh Implants

If you have been affected by vaginal mesh implants then you are most likely entitled to compensation.  $8 billion paid out globally to date by manufacturers.

 

Vaginal mesh implants were introduced in the late 1990’s as a routine treatment for stress urinary incontinence and pelvic organ prolapse which are common complications following childbirth. These flexible plastic scaffolds have been used widely across Ireland and the UK for many years but have led to life altering complications for many women including nerve damage, pain, vaginal scarring, organ perforation and several reported deaths.

 

It is now widely accepted that up to 25% of women will suffer the consequences of having vaginal mesh inserted. Unfortunately, many of these complications are not initially obvious and may take several years

to manifest. It is also unfortunate that complications have been reported since 2008, yet Irish doctors continued to insert these long after the first FDA warnings appeared. In addition mesh companies engaged in ‘illegal, false and deceptive business practices’ and ‘put profits ahead of the health of millions of women’.

 

MDM Law is dealing with enquiries on behalf of a number of clients who are suffering from complications following such surgeries.  We provide specialist female advice supporting our clients in relation to this issue and work closely with a fully trained urogynaecologist.

 

Our team of exceptional lawyers have extensive experience and knowledge in dealing with this issue.  We take an empathetic sensitive approach and are proud to represent clients in securing compensation for them.

Should you have any queries in respect of this issue please contact us for confidential advices on 0212390620.

 

 

Vaginal Mesh

 

Vaginal Mesh

Have you or a loved one been affected by the vaginal mesh implant scandal?

Transvaginal mesh implant was a popular gynecological procedure carried out on women most commonly for the purposes of treating prolapse or stress urinary incontinence.

Unfortunately, a growing number of women have suffered with serious complications arising from this procedure being carried out and have developed chronic pain and other life altering problems.

For free confidential female led medico legal advice please contact MDM Law on 021 239 0620 or e-mail carrie.mcdermott@mdmsolicitors.ie or deirdre.rafferty@mdmsolicitors.ie