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Recent Supreme Court Ruling re Repossession Proceedings relating to Residential Property

Lender cannot repossess where breach of the moratorium required by the code of conduct on mortgage arrears, supreme court says

 

The Supreme Court has said failure to comply with the moratorium provisions of the Central Banks Code of Conduct on Mortgage Arrears by a lender can prevent a home being repossessed in a recent decision of Irish Life and Permanent Plc, Gemma and Kevin Dunne and Dylan Dunphy [2015] IESC 46.

The Supreme Court heard appeals of two cases against Irish life and Permanent Plc which were referred by the High Court Judge. The Dunnes had defaulted on repayments due to Irish Life and Permanent Plc and it appeared that Irish Life and Permanent Plc were entitled to recover possession of the property. As the Dunne were not legally represented and did not enter an appearance to the proceedings, there would be no enquiry that the lender had complied with the Code of Conduct on Mortgage Arrears. Judge Hogan referred these 2 cases on appeal due to various different views taken by High Court Judges on the question of legal status and consequence of compliance by lenders with the Code of Conduct on Mortgage Arrears in relation to repossession.

The Supreme Court was asked to consider:-

  1. As there is no sanction for failure by a lender to comply with the Code of Conduct on Mortgage Arrears does non-compliance with the Code affect a lenders entitlement to obtain repossession of a property
  2. If a lender has not complied with the Code of Conduct on Mortgage Arrears, depending on the type of breach can the Court refuse to make an Order for repossession and can any breach be rectified by a period adjourning or postponing the proceedings.

The Supreme Court said that regulated financial institutions must obey the Code of Conduct on Mortgage Arrears which forms part of the law pursuant to Section 117 (1) of the Central Bank Act 1989. When a lender is applying for a Court order for repossession of a private residence of a homeowner the Court may have to consider a situation where a lender is in breach of the Code. The Court said if an application for repossession brought by a lender is in clear breach of the moratorium that a Court could not aid the lender in these actions which are clearly in unlawful and in breach of the Code of Conduct on Mortgage Arrears and could not make an order for repossession in those circumstances. However the Court clarified that it will not have a role in deciding whether particular proposals should be accepted by the lender or in formulating a lenders policy in relation to mortgage arrears and in applying these or assessing as to whether these are reasonable as this is not its role. All proceedings for repossession should now contain a statement that the proceedings were commenced outside of the moratorium period. If the moratorium does not apply then this should be explained and a Court can consider what evidence it needs to be satisfied that there was no breach of the moratorium by a lender.

 

This is a summary of a recent decision and does not constitute legal advice. If you require any further information in relation to this matter please contact Davnet@amoryssolicitors.com.

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Children and Family Relationships Act 2015

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he willautomatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

If you would like to discuss any aspect of this further, please contact Davnet@amoryssolicitors.com.

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Record Award for Mother who Suffered Nervous Shock

The High Court made a record award to a mother whose only son was killed in a road traffic accident. In Purcell –v- Long [2015] IEHC385 €225,000 was awarded as general damages for pain and suffering to date and into the future which is a substantial increase in compensation previously awarded by the Courts for nervous shock/psychiatric injury.

Summary

The mother was informed of the death of her son and said she never recovered from the shock. She suffered an acute stress reaction, became profoundly depressed and suicidal as a result and never recovered from this. The mother had previously suffered moderate depression and had periods of time on medication. The Defendant’s doctor said the mother had a recurring depressive disorder and she was a vulnerable person at the time of the accident. He was also of the view that the mother would have remained prone to depressive episodes regardless of the loss of her son.
The decision

Mr. Justice Barr found that the mother suffered severe nervous shock as a result of the death of her son, and severe depression as a result. Her previous psychiatric history had rendered her vulnerable to further injury when she received the distressing news of the death of her only son. He accepted that the mother will require heavy medication, will not be fit for employment and will suffer from depression into the future. She was awarded damages of €125,000 to date, and €100,000 damages for the future.

As the mother was a vulnerable person at the time of the injury, the Defendant is responsible for the extent of the injury inflicted on her under the “eggshell skull rule” in law.

This is a summary of a recent legal development and comprehensive legal advice should be obtained if an injury has occurred. If you have a personal injury or medical negligence claim and have any question, please contact Davnet@amoryssolicitors.com

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Children and Family Relationships Act 2015

This Act has overhauled family law to update provisions in relation to guardianship, custody, and access to children, and in relation to adoption, IVF and other types of assisted human reproduction. The Act does not deal with surrogacy.

The Act will be commenced in stages in the coming months. A number of changes which will be put in place are set out below:

  • A father is a guardian of a child where he is a parent who is married or in a civil partnership. Where an unmarried father is a parent and has been living with the mother for a minimum of 12 months (after the Act comes into operation), including 3 consecutive months after the child’s birth, he will automatically be a guardian of the child. An unmarried father can be appointed a guardian by a Court or where the mother agrees to the appointment of the father as a guardian and a statutory declaration is signed to this effect, or where he has rights and responsibilities equivalent to guardianship under the law of another State. This is a significant development as there was previously no automatic right of guardianship for unmarried fathers in Ireland.
  • A father of a child includes a male adopter but does not include an unmarried father who is not a guardian of a child under the Guardianship of Infants Act 1964.
  • The best interests of the child are paramount in relation to guardianship, access or custody of a child. A Court will now take into account the views of the child, and has powers to appoint an expert to inform the Court of the child’s views, on behalf of the child.
  • For the first time a Court can appoint a guardian who is not a parent who has been living with a parent of the child for more than 3 years and shared responsibility of the child day to day for more than two years. The Court can also appoint a person a guardian who is providing the child’s day to day care for more than 12 months continuously, where the child has no parent or guardian who is willing or able to be a guardian. This type of guardian may have rights which are limited by Court order.
  • A temporary guardian can be appointed for a child if a guardian is incapable of acting due to illness or injury. Guardianship continues until the guardian dies, child reaches 18 or marries. Guardians can be removed by a Court.
  • Relatives seeking access to a child no longer have to seek leave to obtain access from a Court.
  • Relatives and persons in loco parentis can apply for custody of a child.
  • A parent or guardian who has been unreasonably denied access or custody by another parent may apply to court for an Enforcement Order which is a “fast-track” procedure to make sure the parties comply with the Court Orders in place and can provide for the expenses of the party who has been unreasonably denied access or custody.

This is a summary of recent changes to guardianship, custody and access under the Children and Family Relationships Act 2015 which will shortly be in place.

If you would like to discuss any aspect of this further, please contact Davnet@amoryssolicitors.com.

Consequences of Failing To Make Full And Frank Disclosure Of Assets In Divorce Proceedings

You may have read court factsheets, or heard from your solicitors, about a duty to fully and frankly disclose all your assets, debts and financial resources during your divorce proceedings.  But what does this mean? And why is it important?

Full and Frank Disclosure

Full and Frank Disclosure essentially means providing the other party and the Court with a true and accurate statement of your assets and all of your financial interests. In Divorce proceedings disclosure is made by both spouses by way of a statement on oath of all monies and assets s/he has received or earned, usually in the last two years before the court application or hearing.  This would include disclosure of an inheritance or employee share benefits for example, either spouse received during that time frame.

Disclosing new assets does not automatically mean your spouse will share in those assets.  The Court has absolute discretion as to how assets are dealt with and will consider the circumstances surrounding the acquisition of each and every asset.

Full and Frank Disclosure and the Court’s Duty – Why it is important

There are strict rules that require both spouses in divorce proceedings to make full and frank disclosure of their financial affairs at the outset of proceedings and to continue to do so until the final conclusion of the matter (section 38(6) Family Law (Divorce) Act 1996).

The Court has a statutory and Constitutional obligation (Article 41.3.2. and s. 5 Family Law (Divorce Act 1996) to consider what constitutes proper provision for the spouses and their dependants at the time when it is asked to grant a decree of divorce, or to order that a settlement – in the context of divorce proceedings –  constitutes proper provision.  This it can only do when it is fully familiar with the true financial position of each spouse.

Effect of Failure to make Full and Frank Disclosure – The Consequences

If a Court finds that one spouse has deliberately hidden assets from the other the impact of a Court decision could be very significant.

If such a finding is made, the Court could find that the non-disclosing spouse cannot be relied upon and could decide that the reality of that spouse’s financial position will never be known. In such a situation, a Court could make a decision of what the non-disclosing spouse’s assets are on the ‘balance of probabilities’ and award the lion’s share of the property of which the court is aware to the other spouse.

This is even more likely if the non-disclosing spouse is otherwise a financially savvy person and ‘expected to know better’. In those circumstances a Court is less likely to believe that a simple, innocent mistake was made and would not allow a non-disclosing spouse to benefit from his/her concealment.

In cases where a concealment of assets has been proved at the time a divorce Decree was granted, the Court has jurisdiction to re-open the divorce proceedings on the application of the other spouse (who has discovered new information), and to set aside the existing orders and make new orders in their place. A costs order can be made against the non-disclosing spouse which could run to hundreds of thousands of euros.

Recent Supreme Court Case

In a recent Supreme Court case, reported in the press in July 2014 a husband was found to have ‘consciously and deliberately’ concealed assets to the value of approximately €5.6 million from a former wife during divorce proceedings.  The Divorce Decree was handed down in 2001.  The Wife subsequently discovered the existence of the assets and issued High Court proceedings setting the Divorce Decree aside and seeking further relief.  The Supreme Court awarded €2.26 million euro to his former wife.  This was in circumstances where the original Divorce order was made in 2001 and the former husband had remarried.  The Supreme Court decided against setting aside the original divorce decree in 2001.

Summary

Where a party to family law or divorce proceedings has not disclosed all relevant financial circumstances, the best thing to do is to file an amended financial statement, or updating affidavit, drawing the attention to the new circumstances. It is far better to be open and upfront about the new information than find you are telling the court (and your lawyer!) this for the first time, under cross examination, in the witness box, fourteen years after a Decree of Divorce was made.

In today’s digital world, there is almost nothing which cannot be uncovered either by subpoenas issued to banks, examining loan applications, reviewing an HR file from an employer to see where the remuneration goes, looking at superannuation statements to see if any superannuation was rolled out into another fund, and the list goes on.

Do not disclose at your peril!

(c)  2015

 

Deirdre Farrell , solicitor and AITI CTA Tax Consultant, Amorys Solicitors 01 213 59 40

Changes to the In Camera Rule in Family Law Proceedings in Ireland

Up until the introduction of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 (“the 2013 Act”) which became operative in January 2014 members of the public and media were excluded from the hearings of family law and child care cases which are heard otherwise than in public or “in camera”. Previously, it was thought that the right of the family to privacy as protected in the Constitution of Ireland could only be protected by the absolute prohibition on members of the press from attending such hearings.  However the public also has a constitutionally protected right to see justice being administered in public and this right is essential to the effective operation of a democratic state.  Until January 2014 the balance between protecting the family’s right to privacy and the public’s right to see justice being administered in public was thought only to have been achieved by the blanket prohibition on members of the press from attending family law and child care hearings.

 

The net effect of the “old” “In Camera” Rule

The net effect of the “old” in camera rule was that family law and child care proceedings were not adequately reported on and there was sparse information available to parties facing family law and child care proceedings to help them know how their case would be dealt with by a court.  In addition, the “old” “in camera” rule was said to be instrumental in hindering complaints to professional bodies about the quality of representation and preventing the disclosure of orders to third parties where this is absolutely necessary (i.e. prospective purchasers of family homes).  The balance between the two rights referred to above was seen to go further than reasonably necessary to protect the right of the family to privacy.

 

The modified “In Camera” Rule

In an effort to address the perceived imbalance of the two rights the 2013 Act now permits bona fide members of the media to attend family and child care hearings and to report on same.  The “modified” “in camera” rule specifically prohibits publication of material that could lead the public to identify the parties to such proceedings.

Under the 2013 Act a Court is permitted to make an order excluding members of the press entirely where it considers such an order necessary (i) to preserve the anonymity of the parties or any child to the proceedings; (ii) by reason of the nature or circumstance of the case; or (iii) as it may be otherwise necessary in the interests of justice.  The foregoing three grounds are very broad however the 2013 Act states that when making such an order, the Court shall have regard to the desirability of promoting public confidence in the administration of justice and to any other matter that appears to be relevant.  Accordingly the 2013 Act guides a Court to make an order that would restrict the public’s right to transparency in the administration of justice in as less a way as possible.

 

Will my family law case be reported on in a newspaper or academic publication?

It is ultimately for the member of the press or their superiors to decide whether or not to publish a report or an article on your family law or child care case.

As explained above members of the press are restricted from publishing any material which would be likely to lead members of the public to identify the parties to your case.   A breach of this provision is a criminal offence and on conviction on indictment (in the Circuit or High Court) it can result in a fine up to €50,000 or a term of imprisonment of up to 12 months, or to both.    The severity of these sanctions is a strong incentive for the media to protect your anonymity.  A member of the press can unilaterally decide to publish a material which it considers to fall outside of the above restriction unless it is prohibited by a court order.

If you have a concern that the publication of a report on all or any aspect of your case will identify you or members of your family, disclose certain personal or commercially sensitive information or hinder you or any of your witnesses from giving evidence you should apply to the court for an order restricting the publication at the first available opportunity, or discuss doing so with your solicitor.  As explained above, when making an order the Court shall have regard to the desirability of promoting public confidence in the administration of justice and in this regard, it is likely to be more amenable to making an order restricting reporting of certain aspects of your case rather than an absolute prohibition on same.

 

How do I go about making an application to restrict the reporting of my family law or child care case?

Such an application can be made to the Court at any time during a hearing of your case be it a motion date (hearing in relation to a matter before trial) or the full trial.  Such an application is usually made by raising the issue with the judge at the outset of the hearing.  There are currently no formal court rules as to how to make such an application however new rules regulating such applications are expected to be introduced soon.

 

When will a Court grant an order restricting a report of my family law or child care case?

A Court can take into account any matter that it considers relevant to protect the interests of the family and children.  The 2013 Act provides that restrictions may be made in order to protect personal and commercially sensitive information.  Personally sensitive information is generally considered to be a party or a child’s medical history, tax affairs, high net worth or sexual orientation.

 

© May 2014

 

If you have any queries re the above contact Deirdre Farrell, Solicitor, AITI Chartered Tax Adviser , Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18. Ph: 01 213 59 40 .