| | | You are here: Home >> Press Section >> Couples delaying separation due to Credit Crisis, Conference told | | | | Couples delaying separation due to Credit Crisis, Conference told | | Reproduced from Irish Times Article, Monday November 23rd 2009 | by Carol Coulter, Legal Affairs Editor
| | | Fewer Family Law cases are coming to the High Court because of the financial crisis, according to leading Family Law Barrister Gerry Durcan SC.
He told the annual Roundhall Family Law Conference at the weekend that people are putting off the moment when they might separate and some are opting for the Circuit Court, which handles cases involving fewer assets.
“Matrimonial Courts are nothing more than a reflection of what is going on in Society” he told the Irish Times after the conference. “Nothing is predictable at the moment. There is a mini NAMA in each case. People have to find a situation where they use the assets that do exist to trade out the situation where they are”.
Banks are now much more reluctant to release monies to assist in funding settlements, he said. “Traditionally the Banks were willing to co-operate with the release of property. Now they are extremely reluctant to release anything. Should Banks be joined in the Proceedings? There is no consensus, because sometimes the Banks would have first call on any assets. One solution for people is not to bring on cases, because there is nothing to fight about or a lot less to fight about. Increasingly you find the Courts are having to deal with the consequences of debt, rather than with assets.
“If people do separate, they are trying to sell as little as possible, because there is no market. It is difficult to divide up properties because the Banks won’t release securities. The Courts are now reluctant to make lump sum Orders as it is difficult to value anything. Sometimes they are ordering a percentage of whatever the property gets. You have to distinguish between the “can’t pays” and the “won’t pays”. The Courts need to facilitate the “can’t pays”, but not let the “won’t pays” cases off the hook.
The manner in which children have been excluded from the regime of Civil Partnerships in the proposed Civil Partnership Bill is a cause for concern, Conor Power BL told the conference “It also stands in marked contrast to the Decision of the High Court in McD
-v- L where the High Court recognized that a lesbian couple and a child were a family for the purposes of Article 8 of the European Convention on Human Rights” he said.
While that case is on Appeal to the Supreme Court, if the case is upheld it would seem to suggest that the exclusion of children from the ambit of relief in the Civil Partnership Bill is a matter that ought to be revisited”.
He said that while Civil Partnership for same sex couples mirrors marriage in many ways, provision for dissolution of the Civil Partnership differs from Divorce. “The Civil Partnership regime is not constrained by the Constitutional provisions in that regard” he said.
Among the differences were the facts that there is no necessity for those seeking to dissolve the Partnership to show that there is no reasonable prospect of reconciliation, and that Solicitors do not have to advise their clients of alternative dispute resolution. The Court does not have to be satisfied that any provision has been made for any dependent member of the Civil Partnership, he said.
The Bill provides a regime for co-habiting couples, and he said there is a danger that focus on same sex unions would mean the provision for co-habiting couples arguably affecting more people, would not receive proper debate.
He said the regime for co-habiting couples was a redress model where a person was deemed to have opted into legal regulation of the relationship, even without consent to having done so by the passage of time.
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