[00:00:00] Introduction

[00:00:15] Alec – Hello and welcome to the SME Business Show with me, Alec Drew. Each show focuses on a particular topic. And because of that, we bring in an expert on that topic to share their knowledge, insights, and tips to help you with your particular challenges. The topic for today’s show is separation and divorce and I’m delighted to welcome Cillín O’Connell, who is principal of Summit Law, to talk about the topic.

[00:00:39] Cillín – Thank you very much Alec.

[00:00:40] Alec – Let’s just talk about separation and divorce. What are the differences?

[00:00:44] Cillín – With separation Alec, if a couple decides to separate, if they’re no longer willing to live together, they can immediately look to draw up a separation agreement, which basically looks to put together all the assets and make the divisions and look after everything. It might be children, it might be assets, it might be inheritance rights, all those things, but they can’t actually end the marriage. That is where divorce or judicial separation comes into play.

[00:01:09] Alec – The world has changed quite significantly over recent years. So we’re now also talking about cohabitees. Explain that terminology.

[00:01:16] Cillín – A cohabitee would be whereby a couple are living together, but they’re not married. But they’re now in a position whereby they can effectively have the same rights as a married couple. So as an example, if a couple were not married, but they’re living together in a committed and determined as a committed and intimate relationship for at least five years, they qualify effectively as a married couple. Or it’s a two year period if they’re living together, if they have children. So it just gives them the similar rights in certain circumstances as a married couple themselves.

[00:01:50] Alec – How can they avoid a lengthy dispute? Because some people might say, well, I wasn’t with that person for five years. I was only with them for four.

[00:01:58] Cillín – To avoid any sort of dispute, first and foremost, what we recommend, and we’re actually obliged by law to recommend, is counselling.

[00:02:04] Alec – Alright.

[00:02:05] Cillín – If I was to issue proceedings for a client today for either judicial separation or divorce, I actually have to give a certificate that I have given three examples of counselling for clients. But if the counselling isn’t to work, before you go down the legal route, we always suggest mediation.

[00:02:24] Alec – Can we just talk about counselling for a minute? A, where do I find it? What should I be expecting out of counselling?

[00:02:30] Cillín – Well, in terms of counselling, you always look for cancers that are within the locality of the individual. And if somebody’s speaking to me, the first question I always ask is, is the marriage at an end? Or do you feel that it’s worth giving it some further thought and to give it some further examination? And that’s whereby counselling can work. And I’ve known it to work. On a personal level, I’ve seen, I would say, five or six couples who’ve come to me, or individuals, and have recommended counselling, and they’re still together. So that, to me, is brilliant, because we don’t want them going through a costly and lengthy legal dispute if it can be resolved.

[00:03:10] Alec – So really possibly what you’ve seen is maybe an overreaction or some reaction to a situation that possibly a bit of time and the right person could have intervened and sorted out.

[00:03:20] Cillín – The difficulty, and you’re absolutely right, because the difficulty is it’s so emotive, and people get very entrenched sometimes. And if you can have an independent person like a counsellor who’s trained in dealing with a couple’s therapy and matters like that, it might be able to resolve it before you even have to speak to any lawyers at all.

[00:03:39] Alec – I presume there’s some sort of cost involved with this?

[00:03:43] Cillín – What I always recommend is speak to the counsellors from the get go and then you have an idea what their costs are. But it’ll be a lot cheaper than having some sort of protracted dispute, and hopefully it’ll resolve things.

[00:03:55] Alec – You mentioned the whole concept of then mediation. So counselling hasn’t worked out, so we’re now talking about mediation. Take us through that process a bit more and tell us more about it.

[00:04:04] Cillín – Yeah, mediation is very often done by lawyers, but they’re trained accredited mediators. So what would happen would be that the couple would go and they’d make an appointment with the mediator. And again, I would always say to discuss the costs with them beforehand. But the mediator would sit them down, and sometimes they’d meet with them separately, and get an idea of the background of the couples and what their needs are. And because a lot of the time they’re lawyers, they’re going to know, to a large degree, what a court would potentially decide upon. So they can try and advise the couples, this is how we feel is the best solution for you both, and then they could draw up terms. Similar to a separation agreement, but terms which then can be ruled by a court. And the client can then engage us and we can finish the case. It’s again, it’s much simpler and it takes the dispute out of it. It’s what we always recommend.

[00:04:57] Alec – So I’m gathering that the mediators have the ability to diffuse situations by talking to both parties and then being able to help them overcome whatever the blockages were.

[00:05:10]

Absolutely, because while you may not get the parties coexisting together or being on extremely friendly terms, if you can get a situation whereby they’re in agreement that this is the best for themselves, for their family, for their children, it just takes the heat out of what is, and I say it again, the most emotive part of litigation and law that we deal with.

[00:05:34] Alec – What happens when there’s a family business involved? I’m sure you’ve been through some of this.

[00:05:38] Cillín – With a family business, you have to tread very carefully because whereas it’s easy to evaluate an asset of a residential home, for example, or a particular share or a stock, when it comes to a family business, we need to make sure that both sides have it valued correctly. And very often both sides will have their own separate valuations, which can tend to lead to further dispute. So in that instance, you would get an independent, for want of a better word, an arbitrator or shall we say an accountant or valuer to come in and sit down and value the business. It’s the fairest possible solution because you’re trying to again at all times avoid dispute.

[00:06:17] Alec – In terms of time taken over these, what are you recommending that people maybe take a deep breath, stand back?

[00:06:25] Cillín – Well, firstly, with the counselling, if somebody is deciding to do counselling, it obviously needs a number of sessions. So that might be something done over a matter of weeks or months. If that isn’t going to be the solution and we go to mediation, we would recommend mediation for people. And that can be dealt with in a matter of weeks or I’ve known mediation to take a couple of years. But it’s again mediation. If it’s going to take that long, it doesn’t mean you’re in and out of court. You’re not dealing with the legal system. So it is it’s it’s much more cost effective.

[00:06:57] Alec – I’m sure it’s much more cost effective to deal with these things quickly. And again, in terms of mediators, have you any sort of thoughts or suggestions around how to engage with them?

[00:07:09] Cillín – In terms of your mediator, people will sometimes ask me this and they will say, well, Gillian, I’ve engaged a mediator, but is there something I need to make them aware of or is there something I should not tell them? I always say tell them everything because they’re mediators, they’re lawyers. So they’ve they’ve dealt with family law. They know the process inside out. The more information they have, the better solution. They’re going to be able to come up for you because sometimes, again, people take this entrenched view and they feel like if they hold on to something or they don’t disclose it, that it’s somehow going to benefit them at a later stage. Absolutely not. We have to be full and frank in terms of the information we give and it’ll come back to you because it’ll give a better solution.

[00:07:55] Alec – Yes. And do you end up in a situation where saying, well, my solicitors are recommending this mediator. Your solicitors want to recommend that mediator?

[00:08:04] Cillín – Yeah, it does. And what I say is go online and look for an accredited mediator or two or three and then just pick one. I mean, this is why I actually I can recommend mediators to people, but sometimes it’s better for both sides to try and go online and find someone that’s that’s in their area. There are a great many incredibly gifted mediators out there. And as far as I’m concerned, they do they do a great service.

[00:08:30] Alec – Apart from the sort of divorce and separation, what are other key issues that people need to start looking at when it comes to sort of family law that they need to take into consideration?

[00:08:40] Cillín – In the circuit court, for example, is where you would go through a judicial separation or divorce or sometimes in the high court. But if you’re dealing with matters such as access to a child or you’re dealing with maintenance or guardianship, these issues are also family law matters dealt within the district court. And where couples are not married or they’re not even cohabitees. That’s why it’s going to it’s going to be dealt with in the district court. And again, I always sort of say to people that if you’re going to make that application that speak to your lawyer in advance, you see a great deal of individuals who are going to the court and they may not have lawyers with them. And it can be very it can be very tough going up before a judge. And it’s very it’s it’s an it’s an intense situation and it can be very emotive. So if you have a lawyer there to advise you on it, what you can do sometimes reach out to the other party and sometimes if they have a lawyer. And again, you try and mediate it before you go before the judge, because rather than having a protracted dispute on the day. And again, it is it’s very intense if you can try and come to an arrangement and you can get written terms drawn up and then you’re going into the judge to say, judge, we’ve now actually resolved this issue. We do not have to have a hearing on this. Here’s settlement terms. We want you to make this an order of the court. And it just means that the agreement between the parties is now a rule of court. They don’t have to go and give evidence, which is which is very tough for a lot of people to do. And it tries to take the heat out of it because it just means then you don’t want them coming back into the district court and everyone, everyone’s dealt with and they’re happy.

[00:10:19] Alec – Are there court costs involved for the relevant parties?

[00:10:22] Cillín – There would be as well. Now, the the costs for maintenance and maintenance application or they can be safety orders to a certain extent. If some party is saying the other party has been threatening or are abusive in any way, but they’re lower than what they would be for a circuit court matter because they’re strictly they can be a one off matter. If you’re going in for an access or a maintenance, they can sometimes come back to the court and a year or two later. But you’re not incurring calls in between that. We would say to people to speak to your lawyer in advance and get an exact cost for what it’s going to cost for the to attend for the hearing and for the settlement. And that way everyone knows where they stand.

[00:11:03] Alec – What happens if people just don’t have the financial resource to be able to engage with the system?

[00:11:08] Cillín – Well, the good thing about that is they can apply for legal aid and there are many legal aid centres in around the cities and in around the country. And it’s means tested, but they can go in. And if if finances are at issue and they qualify for that, then the lawyer will be appointed to them and they can represent them.

[00:11:28] Alec – In terms of the time process around this, this would seem to maybe drag that out even further.

[00:11:34] Cillín – It can take time. So if you put in your application and it will for certainly for divorce or judicial separation, that can stretch the time. But what I will say for a maintenance application or an arrears, once the person has their legal aid grant certificate, they can actually go in. I won’t say on the day, but there are a lot of lawyers on the panel. You can contact those lawyers and if they’re available, they can represent you and you’re covered. So it’s definitely easier in the lower courts than it would be for judicial separation or divorce. It just it’s it just adds to the time, unfortunately.

[00:12:07] Alec – What happens when one of the parties is now living outside the jurisdiction?

[00:12:10] Cillín – Well, they can be in agreement to it if they’re in agreement to it and they if they have a law and they can instruct that lawyer can represent them and they can go before the court with either their findings or if there’s an agreement. It can be dealt with if it’s disputed. That’s problematic because the judge will most likely want them to give evidence and that’s where it can be lead to to issues and it can stretch it back because the judge will say, I may not want this heard until that person gives evidence and it can be put back for another date as an example.

[00:12:40] Alec – Would that person have to give evidence in person or can it be done over?

[00:12:44] Cillín – Generally with family law it’s done in person. It’s rare where the courts will allow. Done by video evidence by Zoom or whatever it might be because it the difficulty with sort of I’m not going to say it encourages, but it becomes a tactic then that people will say it’s easier for me to be out of the country and to give evidence. I’m not saying anyone wants to give evidence or likes giving evidence, but the courts here in the district court, they tend to want everybody there in person.

[00:13:12] Alec – And again, people have to pay for their own travel so they’d have to fly in and all of those things.

[00:13:18] Cillín – Not easy. And it’s it’s quite common now, especially where people may have started the relationship in Ireland, but as you say, they’re living abroad. And this is whereby we say try and come to a full and final settlement because we don’t want you coming back in every six months or every two years. Because there is a dispute over access or there’s a dispute over maintenance. I’m dealing with a particular case at the moment whereby it’s an access case. And I’m acting for one of the parties who’s living in the UK and the other party and the children are here in Ireland. So the access is it’s cumbersome because that person has to travel by plane to come over to Ireland to collect the children and so on and so forth. So you really have to make sure it’s solidly agreed. And there isn’t an ability for the access to be to be disrupted because it has huge knock on effects for the person who’s traveling.

[00:14:14] Alec – From your experience, does either party have precedent over the others? And you know, you would have thought that mothers would get president over fathers.

[00:14:24] Cillín – What the courts tend to look at are the children. So mom and dad are obviously a very important factor before the courts. But believe it or not, the court’s primary concern is always for the children. I suppose the difficulty is when the children are primarily with one party and in Ireland it is mostly with with with mother and child, shall we say. The courts don’t want to see them separated. But having said that, the courts are very, very focused, particularly with access to make sure that the other party could be the fathers get as much access as possible. And if if if the parent who doesn’t have primary care is coming to court and looking for access, the courts are always amenable to make sure that that happens.

[00:15:11] Alec – Another side of this, of course, is the whole area of maintenance and putting in, I suppose, maintenance agreements. How easy are the courts able to enforce that particularly? Well, either at home or in a different jurisdiction.

[00:15:24] Cillín – If there is a court order in place for maintenance as against one party and if they if they breach that order, the other party can make an application to court to say that they’re in breach of that. They would be brought before the court and they’d have to give an explanation. And if there is a solid explanation whereby they’re in financial difficulty, the courts will always work with that individual on that. What sometimes happens is when it comes to maintenance arrears, the other party simply doesn’t want to feel they shouldn’t pay or does not want to pay. That’s where it becomes difficult. So again, before somebody goes down that route, sometimes people will contact and say, I don’t feel I want to pay that maintenance anymore. Speak to us first.

[00:16:06] Alec – I’ve seen from some of the American TV programs that people can have their driving license taken from them and they can have maintenance orders slapped on their salaries. Do we have anything similar?

[00:16:17] Cillín – We do. It’s not quite as severe as it is in America, but you can have an order made whereby the court will rule that a portion of your salary is given over every month to the maintenance. It could be weekly, it could be monthly, whatever way that’s done. So the courts can make that order. But the other thing is, if, for example, if somebody has missed a court date and or they’re continually missing court dates, they can actually be a bench warrant can be made and they can be arrested and brought to court. So it’s not something that the court’s take lightly. But the judges in the district court will always try and resolve it. They’re there to help. They’re not there to try and punish either side. But what they want to do is try and get it dealt with so that neither side have to come back to court. And that’s what that’s what we always advise.

[00:17:04] Alec – What do you think are the biggest mistakes people make when they sort of engage in the whole process of either separation and divorce?

[00:17:10] Cillín – It is the most emotive thing that people can do. And if you the more entrenched a position you can take, very often if one side feels they’re putting blame on the other side, that they feel that they’re automatically entitled to something further. And again, whether it’s the district court for a maintenance application, whether it’s the divorce courts in the circuit court or the high court, the courts will always look at what’s the best interest of the children first and foremost. And then to try and be as fair and as practical to both sides. Blame isn’t always going to be a winning or losing of a case. It’s about trying to resolve it and to move it on. So this is where I go back to the mediation. Try and resolve it without going through a lengthy legal dispute because it’s going to take time, effort and very often a large amount of money, which should be dictated and spent for the children.

[00:18:07] Alec – At what sort of age are the children’s wishes taken into account or where the children are brought in and asked to talk about how they want things to work out?

[00:18:16] Cillín – That can sometimes be done when they get into their teenage years. We always try and it’s the courts don’t necessarily like to involve children only where necessary. If in the lower courts in the district court, if, for example, there has been a threat or an allegation made, the judges, again, because their primary concern is for the children, can order an independent expert to come in and interview the child because it is very intimidating for a child to have to come into the court sphere. And their particular reports, which are ordered by the court and then that person draws up a report, brings them into the court and gives evidence on that basis. And the judge will make a ruling on that. When it comes to divorce as well, the same rules can apply. But I go back to that. Once that happens, generally things are very, very fraught between the parties. And it can sometimes be the case whereby one side who they could be the primary care can be seen to be trying to influence the child or it can be either side in fairness and the judges feel they have no option but to order these sort of reports. No one ever wants their child involved in legal disputes. So if you can try and avoid that at all costs, again, this is where I talk about mediation beforehand, or if it can’t be mediated and your lawyer is on record, look to try and organize a settlement meeting. Try and meet with the other side and see if you can come to an agreement and just end the dispute.

[00:19:43] Alec – Right, because you could see a situation occurring where maybe one parent is responsible for one child, the other is responsible for the other. And now we’ve got two sides.

[00:19:54] Cillín – When you’re doing any sort of legal dispute when it comes to family law, both sides have to prepare things like an affidavit of means to show what the ring come is. And the court wants to see, number one, what’s in the best interest of the child. If it’s a family home and one party has left the family home, the courts will tend to want the child to reside in the family home. That’s what their surroundings are. And where you have children in multiple homes, for example, again, the courts will look to try and keep those children where they are. It’s their normal surroundings. And then if that can be achieved, then the courts will look at, OK, let’s deal with the parents and what’s in the best interest of both sides from that front. But again, it’s children first and it’s parents afterwards. And sometimes people don’t see that. But it’s very hard because you’re so it’s so emotive.

[00:20:46] Alec – The courts do close for certain times of the year. And does that impact this whole area of law?

[00:20:53] Cillín – With family law, fortunately, the district courts remain open. The difficulty they had with Covid was that the courts got backlogged. Not as many cases were heard. So there is there’s an intense amount of cases that go through the court system each day with family law, particularly in the lower courts. So that’s why you don’t want to arise a situation where you’re waiting all day for your case to be heard and then the judge isn’t able to hear it and it gets knocked back to another date. Try and get a result. Try and come to a settlement. And with with with a judicial separation or divorce case, again, the same rules apply. It can take quite a long time to resolve. So the more the more detail you can put to it, the more things you can you can try and resolve, the better.

[00:21:37] Alec – One final aspect is to cover here is the whole area of safety orders. Maybe you might just talk about that for a minute or two.

[00:21:44] Cillín – If one party feels that they have been threatened or they have been intimidated, it doesn’t actually have to be physical violence, that they can make an application. And it’s done what’s known as ex parte, where the other side aren’t aware of it. They can go in to the local judge and whatever they’re there, wherever they’re based and they can make an application for an interim. There’s there’s a couple of different orders. There’s there’s a safety order and there’s a barring order. But once granted, what would happen is that whoever that order is made against, they cannot either speak to the person or depending on the nature of the order, they cannot approach the person or they have to stay away from the family home and that the case is then heard at a later stage. And unfortunately, they’re they’re they’re a growing part of the law here. And again, speak to your lawyer before you do anything. Let’s see what we can do to try and resolve this, because the difficulty with any safety or barring order is for whoever it’s against. It can have a potential knockback on their job if they have guard abetting for things like that. So it needs to be treated with absolute care.

[00:22:50] Alec – Where can people find out more about you, Cillín and also Summit Law?

[00:22:55] Cillín – Well, obviously there’s our website, summitlaw.ie.

[00:20:45] Alec – Good.

[00:20:45] Cillín – And you’ll see my face, I love you. And we’re based in Dublin 12. But in terms of what we do, we offer a comprehensive service for everything like family law and litigation for probate and also for things like conveyancing, buying and selling and remorgaging homes. But we’re accessible, reach out to us. You can call us, you can email us and we’ll always look to make sure that your interests are looked after.

[00:23:25] Alec – Thanks to Cillín O’Connell, Principal of Sumit Law, for coming into the SME Business Show and sharing so many tips around separation and divorce. Don’t forget to join me, Alex Drew, again the next time where we’ll have another expert sharing their knowledge, insights and tips on topics of interest for you. If any part of this show resonated with you, why not reach out across all of our social media channels, the SME Business Show? Thank you for your company. And I look forward to seeing you again soon.