RELATIONSHIP BREAKDOWN-INITIAL STEPS-WHERE TO GO?
Relationships, marriages and families have such enormous significance for us as the fundamental units of our society that we often forget that basically a marriage is a contract and the ending of it will have significant legal consequences.
Accordingly, when a relationship or marriage breaks down there are often a lot of very difficult decisions to be made by the couple separating at a time when they are most vulnerable. If there are children as part of the family or relationship those decisions will be painful and poignant. Discussions and decisions about the children’s future wellbeing, quite apart from all the property and financial decisions, are very hard at a time when there are often significant communication blocks between you and your partner/spouse.
Quite apart from all that, there are the consequential losses following on from a relationship breaking down that no one really thinks about until the dust starts to settle, like extended family and mutual friends. If you can,give yourself time to get some focus before taking advice. A good counsellor will assist you with getting a focus. Obviously, if there is an emergency situation you should take legal advice immediately.
You have a number of options as to how you settle matters consequent on the breakdown. Our legal system is an adversarial system. This means that two opposing stories are put before a judge who has to decide between the two sides as to an outcome.
The judge is confined by the applicable legislation in the manner in which he can determine the dispute or by previous cases taken and the decisions made by other judges. So, the first option is to put your case before a judge called a trial or hearing and be bound by the outcome determined by that judge.
Another option is to have your solicitor ‘hammer out a deal’ with the other solicitor leading to an agreement which can then be ruled by the court or dealt with as a binding contract.
Outside of the adversarial framework there are also a number of options. You and your partner could try and work things out and come to an agreement between yourselves. Generally this is referred to as the kitchen table separation/divorce. It works for a very few people because of communication issues and emotional vulnerability at this time.
Quite often though, people may manage to get one or two things agreed, but not everything; so the effort is not entirely wasted. This is particularly so if the issues that can be resolved are around the children. Keeping children out of legal disputes is extremely desirable for their future wellbeing.
The second option is mediation which is a dispute resolution method, whereby a neutral mediator acts as a facilitator between the two parties in dispute to enable them to come to an agreement about all these issues.
Mediators are skilled communicators who work with the parties in a managed way to assist them to resolve their dispute. If agreements are reached then the parties take the mediated agreement to a Lawyer acting for each of them independently. The lawyers will then advise on the agreement and shape it into a legally binding contract.
The third option is collaboration. Collaborative Law is a dispute resolution process which is managed by collaboratively trained lawyers.
As well as their collaborative training the lawyers frequently have the benefit of mediation training and techniques to assist them with their work. Everyone involved in the process signs a Participation Agreement which sets in place the ground rules for the collaborative process.
Crucially for the solicitors the agreement specifies that should the process break down the lawyers cannot continue to represent the parties and each party must seek representation elsewhere. This ensures that the lawyers will pull hard together to keep the process working for the parties and will keep their focus on resolution rather than pulling against one another or jockeying for advantage.
A number of experts who have been collaboratively trained are on hand to work with the lawyers in the collaborative process as and when required. Bringing all the family systems expertise available to work for resolution within a unified team structure having the common good of the family as the object is unique to the collaborative process. No other process has this structure.
Going to Court
There are some situations in which it is desirable to go to court even in family law disputes and each case has to be looked at on its own merits. What is important is that you, the client, take advice from someone who can offer you all the options and help you to weigh up all the options given your own particular family circumstances. Of course the choice to go to court may not necessarily be yours and you may nonetheless find yourself there because your spouse/partner will not consider any other option.
Our court system is an adversarial system, which means that each side presents their case from the perspective of beating the other side. Judges are then left to decide between the two sides. The judge is bound to determine each case within the terms of the legislation governing the situation having heard the case presented by both sides. Accordingly, your family situation is fitted into the legislation rather than the legislation serving your family.
Most separations and divorces are sought and obtained in the Circuit Family Court. Circuit Court Judges are generally overloaded and have limited time to give to the consideration of any particular case. Going to court is also an expensive option and this expense will put added strain on the family purse which is now expected to stretch to two families rather than support one.
The majority of judges dealing with cases in the Circuit family court will encourage the parties to try and settle their cases rather than go forward in front of the judge. Judges know that the people best placed to know what is right for their family and best for their children are the parties themselves.
However, when you settle your case on the day of the hearing, you settle under pressure which is not the best circumstance in which to resolve matters in a considered way.
The District Court
This is the most accessible court as there is one in nearly every town of any size in the country. It is the court of first instance for many.
The manner in which family law is dealt with varies a great deal from court to court. However, an enlightened system in West Cork assigns a day to family law or sets aside special time for it on each court day. This ensures that family law can be dealt with in a more sensitive and friendly way.
The District Court deals with child issues, maintenance, and violence or abuse matters. The District Court, however, has no power to deal with property, pensions, or to grant separations or divorces.
The Circuit Court
The Circuit Court deals with the majority of separations and divorces. In Cork there is no dedicated family Circuit Court which sits every week. This means that it is not always possible to access the court speedily. It can take quite some time to get the matter to trial. When a case is listed before the Circuit Court it will be on a list with other cases also on for hearing on the same day. Accordingly, the amount of time that the court has to give to any case is limited.
The High Court
Family cases will also come for hearing in the High Court, though generally the cases dealt with in the High Court are cases which are cash and asset-rich. The High Court will assign the time to the case that counsel indicate to the judge it will take, and there will be nothing else in the docket for that time except the case.
The High Court does not sit in Cork constantly. While the High Court does go on circuit, meaning it travels to other cities around the country, every so often the majority of people will apply to the High Court sitting in Dublin, as this will turn out to be the most efficient way of disposing of their case. Clearly if you are coming from elsewhere this will serve to increase already substantial costs.