Geraghty Solicitors

The breakdown of a family relationship is one of the most upsetting and distressing situations in a person’s life and not only brings emotional turmoil to all involved, but also leads to significant legal and financial repercussions in a number of areas.
A person who is going through the breakdown of a family relationship will need solid legal and practical advice, from qualified professionals.

At Geraghty & Co. Solicitors we provide highly experienced legal advice on all aspects of Family Law including Collaborative Law Practice and Mediation.

Family Law at Geraghty & Co. is overseen by Donal Geraghty and Brian Macdara Geraghty.
Donal deals with the adversarial side of Family Law, while Brian Macdara works primarily in Mediation and collaborative Law. Brian Macdara is placed on the Private Practitioner Scheme District Court Panel for free legal aid in District Court matters in County Galway.

Family Law areas include:

• Collaborative Law Practice
• Mediation
• Separation Agreement
• Judicial Separation
• Divorce
• Child care issues (Maintenance, Custody & Access)
• Legal Aid Board Private Practitioner Scheme for Family Law Services
• Financial Implications and Taxation Advice

Collaborative Law

Collaborative Law practice is an alternative way to resolve disputes. The aim of Collaborative Law practice is to find a deep, equitable and sustainable solution for people who are in dispute. Collaborative Law practise is a structured, creative and principled process to help parties reach the best agreement possible for them at the time. The approach addresses the needs of all involved, and in family disputes, the needs of the whole family.
Resolution can be achieved through the participation of both parties meeting together at the same table, often with the help of other practitioners including solicitors, financial advisers, child specialists etc.
The resolution is based on an open sharing of all relevant information and a commitment to reach agreement, without the financial and other costs of court litigation. The success and effectiveness of the process depends on the honesty, co-operation and integrity of the participants. It is geared towards the future and towards the wellbeing of all the parties. The essence of the process is that it is in the best interest of the participants to try to resolve the disputes in a non-confrontational way.
At Geraghty & Co. Brian Macdara Geraghty is an active member of the Galway Collaborative Law Practitioners.

Mediation
Mediation is a voluntary and fully confidential process in which an impartial, neutral and balanced independent third party facilitates negotiation and communication and promotes voluntary decision making by the parties to assist them to reach a mutually acceptable solution to resolve a dispute.
The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation.
Your mediator is obliged to acknowledge any bias on issues in discussion. The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
At Geraghty & Co. Brian Macdara Geraghty is a qualified accredited mediator and is currently on the panel of mediator with Friary Law Ireland (Ireland’s largest Mediation Body).

Separation Agreement
A Separation Agreement is a written document drawn up and executed by parties to a marriage where that marriage has broken down and who have decided to separate and live apart and who do not wish to employ the Courts to settle the terms of the separation.
Before a solicitor can assist a party to a marriage in drawing up a Separation Agreement, a solicitor, pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, is under an obligation to discuss with the client:
the possibility of reconciliation and supply the names and addresses of those persons able to bring about such a reconciliation;
the possibility of employing mediation to bring about a separation on an agreed basis and supply the names and addresses of those persons who can provide the mediation service; and
the possibility of effecting a separation by way of a Separation Deed.
The terms of a Separation Agreement invariably deal with the guidance and custody of children; maintenance; property; succession; pensions and so on.

One should also note that an executed Separation Agreement can be made a Rule of Court provided the Separation Agreement contains a provision relating to maintenance payments. If the Separation Agreement is made a Rule of Court, the person paying the maintenance must pay it through the District Court Clerk therefore the District Court Clerk will remain abreast of any default in the maintenance payments.

Finally, one very important point to note regarding Separation Agreements is that once you have executed a valid Separation Agreement, you cannot thereafter go to the Courts in order to obtain a Judicial Separation.   However, a Separation Agreement does not act as a barrier to Divorce Proceedings.

Judicial Separation
Judicial Separation involves an application being made to Court for a Decree of Judicial Separation together with such ancillary orders as are required by the parties.
With Judicial Separation, the Court can make orders in respect of the family home, other properties, lump sum payment orders, maintenance, pension adjustment, custody, access and guardianship.
As with a Separation Agreement, the solicitors for both parties are under legal obligations pursuant to Sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, to discuss with the client, before taking or defending Judicial Separation proceedings:

the possibility of reconciliation and supply the names and addresses of those persons who may be able to facilitate such a reconciliation;
the possibility of employing mediation to bring about a separation on an agreed basis and supply the names and addresses of those persons who can provide the mediation service; and
the possibility of effecting a separation by way of a Separation Deed.

The Judicial Separation and Family Law Reform Act 1989 sets out that a Judicial Separation can only be granted on six grounds:

Where the respondent has committed adultery
Where the respondent is behaving in such a way that the applicant cannot reasonably be expected to live with that person.
There has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the Application.
The spouses have lived apart from one another for a continuous period of at least one year immediately proceeding the date of the Application and the respondent consents to a decree of Judicial Separation being granted.
The spouses have lived apart from one another for a continuous period of at least three years immediately proceeding the date of the Application, where no such consent exists.
The marriage has broken down to the extent  that the Court is satisfied in all the circumstances that a normal marital relationship has not existed between  the spouses for a period of at least one year immediately proceeding the date of the Application.

Once a Court has decided that one of the six grounds exists, there are two further conditions that must be satisfied before it will grant an Order of Judicial Separation:

(1) the welfare of any dependant children of the marriage must be properly catered for
(2) solicitors of the applicant and the defendant must have complied with their legal obligations as outlined above.

All Judicial Separations are heard by the Circuit or High Court and are held in private (as are all family law cases).
The element of fault is still relevant insofar as the granting of a decree of judicial separation (divorce it is of no relevance)

At Geraghty & Co. our Family Law solicitors possess extensive experience and expertise in the areas of Judicial Separation and Divorce. We represent clients in both Circuit and High Court family law proceedings and will ensure your interests and that of your children are properly protected.

Divorce

Divorce is the process whereby the courts grant a decree which effectively dissolves a marriage and allows either spouse to remarry.

Before applying to the Court for a Divorce, all of the following conditions must be met:

(1) Both parties must have been living apart for a period amounting to four out of the previous five years. It is worth noting that the spouses could be living within the same house but be living apart within separate households.

(2) There must be no reasonable prospect of reconciliation between the spouses.

(3) such provision as the court consider proper having regard to the circumstances exist or will be made for spouses and any dependant members of the family, such as children and/ or other dependant relatives.

Divorce proceedings are heard in the Family Circuit Court or the High Court and are held in private.

At Geraghty & Co. our Family Law solicitors possess extensive experience and expertise in the areas of Judicial Separation and Divorce. We represent clients in both Circuit and High Court family law proceedings and will ensure your interests and that of your children are properly protected.

Child care issues (Maintenance, Custody & Access)

Maintenance

Maintenance is the amount of money one spouse pays to the other either for that spouse or for dependent children or both.
The amount of maintenance is dependent upon income and the needs of either party and the support needs of the children. Children are considered dependant if they are under 18 years of age or later if they are involved in full time education.

Maintenance payments are usually paid on a regular basis, usually monthly, but the maintenance can also be paid in a lump sum.
Family needs and the financial position of parties do not remain static and accordingly the law in Ireland allows either party to apply for a maintenance review at any time, notwithstanding previous orders or agreements.

Custody

Custody is the right to the physical care and control of a child. When the parents of a child in Ireland separate and they cannot agree on who should have custody of the child, the court will decide.

When the court is making its decision about who should have custody of the child, the most important factor for it is the welfare of the child. Welfare includes the child’s moral, intellectual, religious, physical and social welfare.

By Irish law, an unmarried mother is the sole guardian of a child born outside of marriage. Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the court in order to become a legal guardian of his child. It is worth noting that it is not necessary for a father to have guardianship before he applies for access or custody.

As a general rule, the courts tend to consider that where the parents of the child are unmarried, it is in the child’s best interests to live with its mother. The unmarried mother has a superior legal position to the unmarried father and in usual circumstances be granted custody.

However, the courts will usually grant a right of access to the unmarried father so that he can have regular contact with his child.

Right of Access

By Irish Law, if you have a right of access to a child, you have the right to spend time with the child and to take the child out for specified periods of time. In some cases you may also have the right to have the child reside with and go on holidays with you during the school holidays and the right to have the child stay overnight in your house on alternate weekends.
When the parents of a child separate and they cannot agree on access rights, the courts will decide. Again the key factor in the court’s decision is always the welfare of the child.

Usually, the courts consider that it is very important for the welfare of a child that it should have a relationship with both its parents, and they are very slow to deny access rights to the natural parent of a child.
At Geraghty & Co. Donal Geraghty and Brian Macdara Geraghty possess extensive experience and expertise in the areas of Maintenance, Custody & Access applications. Brian Macdara is a member of the Legal Aid Board Private Practitioner Scheme for Family Law Services.

Legal Aid Board Private Practitioner Scheme for Family Law Services

The Legal Aid Board under the Private Practitioner Scheme for Family Law Services maintains a panel of private solicitors who provide representation in relation to District Court cases such as domestic violence, maintenance, custody, access and guardianship cases.

At Geraghty & Co. Brian Macdara Geraghty is a member of the Legal Aid Private Practitioner Scheme. You may be entitled to Legal Aid under the Private Practitioner Scheme, this is where the Legal Aid Board will pay a fee to a us to represent you in the District Court.

Financial Implications and Taxation Advice

When married couples in Ireland decide to separate and the separation is likely to be permanent, there are implications for the way in which they are taxed.

Capital Gains Tax

A capital gains tax is chargeable on the gains arising from the disposals of assets. Disposal can be by way of gift or sale. Any form of property (other than Irish currency) including an interest in property (as, for example, a lease) is an asset for capital gains tax purposes. The gain/profit (the difference between the price you paid for the asset and the price you sold it for) is considered taxable income. The tax is payable by the person making the disposal.

Transfers of assets between spouses are exempt from capital gains tax. Transfers of assets between spouses who are separated are exempt from capital gains tax if they are made under a Separation Agreement or a court order.

Similarly transfers of assets between spouses pursuant to a court order in a Divorce Decree are exempt but transfers of assets subsequent to the granting of the Decree that are not ordered by the court are not.
Separating couples should always seek specialist tax advice before entering into arrangements that have capital gains tax implications.
Capital Acquisitions Tax
Capital acquisitions tax is a tax on gifts and inheritances received by a person. The person receiving the gift or inheritance pays the tax. The tax is paid on the open market value of the asset being received.

Transfers of assets between spouses whether by way of gift or inheritance are exempt from capital acquisitions tax. Separation does not affect this exemption but divorce does. Transfers of assets pursuant to a court order in a Divorce Decree are exempt but transfers of assets subsequent to the granting of the Decree of Divorce that are not ordered by the court are not.

Stamp Duty

Stamp duty is a tax most often associated with the transfer of property whether by way of gift or sale. Transfers of property between spouses are exempt from stamp duty. Transfers of property between spouses who are separated or divorced are exempt from stamp duty if they are made pursuant to a court order.

At Geraghty & Co. we posses a wealth of expertise in relation to family law tax advice.