Introduction to Family Law D.Skelly: Legal Studies Transition Year Module 2011.

The Irish Constitution Article 41: Family Article 42: Education The Family is the primary and fundamental unit, inalienable and imperscriptable rights. Family = The Natural and Primary educator of the child – re: Moral Intellectual, Physical and Social education. Art. 42.2.1: State recognition of Women in the home. Parents choose Education - includes option to educate in the home. Art. 41.2.2: Mothers not obliged by economic necessity to work / neglect duties in the home. State cannot force parents to send children to a School for their education – Proviso. Art. 41.3.1: State pledge to protect the institution of Marriage. State requires that a child receives a minimum Education. Art. 41.3.2: State dissolve a Marriage only if: Spouse live apart 4 out of the previous 5 years, and There are no reasonable grounds for reconciliation, and Provision for Spouse and children either or both of them or any other person prescribed by Law, and Any further conditions re: Law are complied with Free Primary Education.   Note: Art. 42.5: In exceptional cases where parents fail – physical / Moral reasons – The State can take the place of parents, but always having due regard for the Natural and Imperscriptable rights of the child.

Marriage and Procedure The In-Camera Rule: Art. 34.1: Justice shall be administered in public – save special and limited cases by Law (Matrimonial causes and matters & Minor (Child Proceedings) matters).   Marriage: The Voluntary and Permanent union of one man to one woman to the exclusion of all others for Life. A valid Marriage must satisfy both of the following: Capacity to Marry Procedural Formalities

1. Capacity to Marry Age – FLA 1995. Be over 18 years of age or have a Court Exemption Order if this is not the case. There is no longer any requirement for parental consent to a marriage, irrespective of the ages of the parties concerned. Not within the prohibited degrees either re: Blood or Affinity. Not be related by blood or marriage to a degree that prohibits you in law from marrying each other. If you are related to your proposed spouse by blood or by marriage, you should contact a solicitor to ensure that you do not fall within the prohibited degree of relationship. Relationship must be monogamous-be either single, widowed or divorced in Ireland or have a State Annulment or a valid foreign divorce.

1. Capacity to Marry (Continued) Different sexes. Be of opposite sexes - for legal purposes, a person's gender is deemed to be the one he/she had at birth, even if he/she subsequently had medical procedures to alter his/her gender. Both Parties must understand the nature, purpose and consequences of marriage – and both must freely consent. Free consent may be absent if, at the time of the marriage, a person is suffering from intoxication, brain damage, mental disability, mental instability or insanity to the extent that he/she is not able to understand the implications of marriage. Additionally, if someone agrees to marry because of threats or intimidation, his/her apparent consent may also be invalid and the marriage may be void.

2. Procedural Formalities Required to notify intention to marry unless exempt re: FLA 1995. Requirements re: Roman Catholic Church – if marrying under that Rite – valid if celebrated by an episopally ordained Clergyman. In all other cases – compliance with the Marriages (Ireland) Act 1844 (As amended).

Nullity Marriage can either be Void Abinitio Or Voidable.   A. Void Abinitio: This asserts that the Marriage never legally existed – one receives a Court Decree to state this (a Declaration only but ought to request to remove any doubt re a subsequent Marriage) Reasons: 1. Lack of Capacity: At time of ceremony- Married to another Within the prohibited degrees Same sex One of the Parties is under 18 and no exemption re: FLA 1995.

Nullity Continued 2. Non Observance of the Formalities. Absence of Consent: Mental incapacity. Intoxication Fraud, Mistake, Misrepresentation. Duress, Undue Influence. Limited Purpose. B. Voidable: The Marriage validly subsists until the Decree of Annulment. The grant of the Decree is retrospective – so Parties deemed as if never been married.

Nullity - Burden of Proof. Nullity Continued Reasons: Impotence: Proceedings can only be brought during the lifetime of Both Parties, and proceedings cannot be brought by a Third Party. Incapacity to enter and sustain a proper or normal Marriage relationship: Psychiatric illness / Personality Disorder. Sexual Orientation. Emotional immaturity and incompatibility. Nullity - Burden of Proof. Once Marriage Ceremony – valid – the Onus is on the Petitioner to rebut validity.

Consequences of Nullity (Between the Parties) Invalidates the Marriage. No Constitutional Protections afforded to the Family. Court cannot make any Ancillary Orders re: Property / Finance. No Succession Rights. Property issues do not fall within the realm of the FHPA 1976, but instead are governed by the Law of Property and Equity (May apply re s. 35 FLA 1995 (time limits) re: property owned by them during the purported marriage. Cannot avail of any remedied re: the Domestic Violence Act 1996. Any Separation Agreement entered into is void – as it assumes marriage.

Guardianship and Infants Acts 1964 – 1997. Rights and duties re: upbringing of a Child – A Guardian is responsible for partaking in the important decisions re a Childs Life. The Acts apply to: A Child under 18. Over 18 but under 23and in full time education. Any person re: Mental/Physical disability to the extent that they cannot maintain themselves. Natural Mother and Mother and Father marries to each other. Male / Female adopter. Father not married to Mother at time of the Childs birth, but subsequently by marrying = Guardian also. Father not married to Mother re: Circumstances – s 6A 1964 Act and s 11.4 1964 Act. Testamentary Guardian. Court appointed Guardian.

Legislation: Welfare of the Child (First and Paramount Consideration) Where Father and Mother are married to each other at the time of the Childs Birth – They are deemed Joint Guardians. Court may appoint a Guardian. A Guardian may apply to the Court re: Court directions re any questions affecting the welfare of a Child – s 11 (But this is not enforceable if the parents are living together). A father not married to the Mother at the time of birth of the Child, can obtain Guardianship at a later stage if he marries the Mother. A Father not married to the Mother and therefore not a Guardian may apply to the Court re: Custody and Access. A relative may also apply for access to the Child and also a person who has acted in Loco Parentis. There is no automatic ‘Stay’ on an Order pending Appeal. The Court may appoint a Guardian Ad Litem and Legal Representation for the Child.

Unmarried Fathers & Guardianship A Father not married to the Mother of his Child may acquire Guardianship in the following ways: Marry the Mother. Apply to the Court re s 6A Guardianship Act 1964, in order to be appointed Guardian – In such a case if the Paternity is disputed, the Applicant has to prove re: Balance of Probability – The Court may direct a blood sample to be taken. With the consent of the Mother pursuant to s 2.4 Guardianship and Infants Act 1964 – requirements: Declare that they are Father and Mother of the Child. Agree to the appointment of Father as Guardian. Have entered arrangements re: Custody and if required Access. Make a Statutory Declaration.   Note: The Natural Father NOT married to the Mother is only entitled to apply to the Court for Guardianship – He has NO AUTOMATIC entitlement to that status.