In Ireland, both the Circuit Court and the High Court have power to deal with judicial separation or divorce cases, with the High Court dealing with cases involving very considerable assets or income, or appeals from the Circuit Court. The District Court has jurisdiction to deal with issues relating to the Guardianship, Custody and Access of children, Maintenance and Domestic Violence. Family law cases are held “in camera”, that is, in private and members of the public are not allowed attend, maintaining utmost confidentiality.
The District Court consists of a President and numerous ordinary judges. The country is divided into various districts. The District Court Office will assist parties in completing the forms required for making applications and the various reliefs available. The Court Office will ensure the earliest available hearing date, particularly where emergency relief is sought. The waiting lists in the District Court are generally shorter than those in a Circuit Court and High Court.
The following is a brief outline of the various types of family law business carried out in the District Court and the Orders available:
- Maintenance procedures: The District Court jurisdiction in terms of an award of maintenance to a spouse is limited to a sum of €500 per week and to a sum of €150 per week for the support of a child. An Order not exceeding the sum of €952 can be made in respect of birth expenses of a dependant child and a similar sum in respect of funeral expenses of a dependant child. The court may make a lump sum Maintenance Order in addition to or instead of periodical maintenance payments for the amount or the aggregate of a lump sum payment, provided the Order does not exceed €6,348.69.
- Guardianship, custody and access: The court can make Orders in relation to guardianship, custody and access. The court also allows grandparents who do not have access to the grandchildren to seek access by means of a Court Order. The court deals with disputes that can arise in relation to the issuing of a passport to underage children and where the signature of both guardians on the application form is required. The court deals with disputes regarding parentage, to include the carrying out of blood tests, in cases where there is a paternity dispute.
- Domestic violence: The court adjudicates applications brought under the Domestic Violence Act, 1986 and where parties seek a Barring Order, Safety Order or Protection Order.
The Circuit Court
The Circuit Court consists of the President and a number of ordinary judges. The country is divided into various circuits with one judge assigned to each circuit, except in Dublin and Cork where a number of Judges may be assigned. There are numerous Circuit Court Offices in Ireland with the County Registrar in charge of the work of each office.
The Circuit Family Courts are more formal in nature than the District Family Courts. The court has jurisdiction where property in the case does not exceed a sum of €38,092.04 and where the rateable valuation does not exceed €254.
The Circuit Court and High Court have concurrent jurisdiction in the area of family law. The Circuit Court has jurisdiction in a wide range of family law proceedings to include the following:
- Judicial Separation
- Custody and Access
- Determination of property disputes
- Declaration of marital status
- Declaration of Parentage
- Actions against the estate of a deceased spouse
- Applications to dispense with 3 month notice for period of marriage required.Proceedings in the Circuit Court are commenced by the issue of a Family Law Civil Bill. This document can be obtained from the Circuit Court Family Law Office. The Civil Bill will reference the legislation under which an Order is being sought together with a list of the reliefs claimed. In certain cases, one is required to support the Civil Bill by way of a Grounding Affidavit which will outline in detail the background to the case.
The Respondent has a 10 day period from date of receipt of the Civil Bill in which to file an appearance in the Circuit Court Office i.e. the document stating his/her intention to defend the action. The Respondent is allowed a further 10 day period in which to file his/her Defence.
If no Appearance/Defence is filed, the Applicant can apply to court for Orders to be made in the Respondent’s absence. This application is brought by way of Notice of Motion whereby the Applicant applies to the court for a date to be set to have the matter heard. If the terms of Separation or divorce have been agreed, the parties may apply by way of Notice of Motion to have the matter ruled by the court.
In contested applications, an application must be made to the court for a hearing date to be assigned to the case.
The High Court
The High Court consists of the President and numerous ordinary judges. The High Court sits in Dublin and provincial venues to hear family law matters to include Appeals from the Circuit Court. A matter before the High Court is determined by one Judge. The proceedings are formal in nature. As with the case for the District Court and Circuit Court, all cases are heard “in camera”.
The High Court enjoys extensive family law jurisdiction. The Circuit Court has, in recent years, assumed a more central role in family law proceedings.
- A decision of the District Court can be appealed to the Circuit Court. The Appeal consists of a full re-hearing in the Circuit Court.
- A decision of the Circuit Court can be appealed to the High Court. The Appeal will consist of a full re-hearing in the High Court.
- A decision made by the High Court may be reversed on appeal by the Supreme Court on a point of law. The Supreme Court is generally reluctant to reverse a finding of fact.
The practice directions in operation in both the Circuit Court and High Court provide for each party to litigation to exchange sworn Affidavits of Means. These list the assets, liabilities, income and expenditure of the parties. There is also a requirement to have these Affidavits fully vouched by way of supporting documentation to include for example P60s and bank statements. In the absence of an exchange of Affidavits of Means and supporting documentation on a voluntary basis, the courts have the power to make Orders compelling a party to make proper discovery.
There is no similar procedure in District Court applications. However, in practice, the court expects the parties to have vouched their income and expenditure in any application in relation to maintenance.
The court has the power to grant an interim barring order. The court will make this order in extremely serious cases and where it feels it necessary and expedient to do so in the interests of justice. This procedure dispenses with the requirement to serve any documentation on the Respondent prior to applying for an interim Barring Order. The criteria to be applied are more stringent where one is seeking a Protection Order.
An Garda Siochana have the power of arrest of a party who is in breach of an barring order.
Where a spouse defaults in paying maintenance pursuant to a court order, the Applicant’s spouse can seek to enforce this. There are various options to the court. The court can, for example, make an attachment of earnings against the defaulting party with the result that his/her employers are directed to pay the maintenance and any arrears from the defaulter’s salary to the applicant spouse.
How do I choose?
The jurisdictions of the three courts overlap to a degree. The Applicant must select the court where the proceedings are to be initiated. The choice is influenced by a variety of factors which may include the following:
a. The nature of the issues in dispute and the type of court Orders sought;
b. The jurisdictional competence of the court to grant the Order sought;
c. The legal complexity of the matter;
d. The accessibility of the court;
e. The estimated amount of time that would elapse between the date of issuing of proceedings and the court hearing;
f. The income and asset position of the parties and the value of any property in dispute;
g. The estimated legal costs to be incurred.
In practical terms, the District Court is the least expensive court in terms of costs. Further, its procedures and accessibility ensure relatively speedy hearings.
The issue of court selection in family law proceedings is more complex where a variety of Orders are sought. The practice directions in both the Circuit and High Court are designed to ensure that cases come on for hearing before the court as speedily as possible. One might typically expect a twelve to eighteen month period from date of issuing of court proceedings to the date of hearing.
Current legislation provides that family law proceedings before the courts should be as informal as is practicable and consistent with the administration of justice. Judges and barristers in family law proceedings are prohibited from wearing wigs or gowns. Proceedings have traditionally been conducted by the application of an adversarial procedure. The evidence before the court is furnished by or represented on behalf of the disputing parties and the court adjudicates on the evidence as so heard by it. A party to litigation is not obliged to retain a solicitor or a barrister and can deal with an application himself/herself as a lay litigant. This is more common in the District Court.