Each year students from the UCC School of Law Family Law Clinic are required to complete a blog in a specific area of family law.
This provides each student with a novel task, allowing them to research and reflect on a topic they have chosen.
It also provides them and the Clinic with the opportunity to provide information on a topical family law issue of relevance to the general public.
These are some of the blogs which have been completed by past students of the family law clinic.
The Domestic Violence 2018 Act was heralded as a turning point in the fight against domestic violence which the then Minister for Justice Charlie Flanagan described it as having a plague like effect on society. “Protecting and supporting victims” was identified as a key government priority in drafting this legislation. Of note, it introduced the new criminal offence of coercive control which is defined as a persistent pattern of controlling and threatening behaviour which can range from emotional, physical, financial and sexual abuse. However, the capacity for this novel measure to combat the enormity of this issue must be queried.
Unfortunately, it is reported that only three cases from 59 have resulted in conviction equating to a 5% conviction rate. Coercive control is difficult not only as a concept to capture but difficult to measure in law, with a persistent pattern of abuse required to sufficiently prove the offence has occurred. This pattern can only be tracked and recognised as of January 2019 when the 2018 Act commenced, patterns take time to establish which may have contributed to the less than satisfactory performance of the coercive control provisions to date.
It has been suggested by family law practitioners that the definition of “relevant person” restricts the availability of the remedy from many. Under Irish law, parents of adult children are not considered to be a relevant person for the offence of coercive control, which excludes victims of elder abuse from the application of these measures. In contrast with England and Wales where the remedy can be pursued by the State in respect of the abuse of people who are “personally connected”. England and Wales have a higher number of convictions for coercive control with 1,403 convictions from a possible 33,954 which equals a conviction rate of 4%, a level similar to Ireland. The difference in wording allows for more cases to be presented before a court, however, the conviction rate indicates a deeper issue.
How can this be corrected? A UK report from the Home Office, a “review of the controlling or coercive behaviour offence (2021)” indicates that 50% of cases did not progress due to “evidential difficulties” which means a victim did not wish to seek further action after reporting coercive control. Due to the nature of criminal law procedure, the burden of proof required remains high as the crime needs to be proven beyond a reasonable doubt. Although challenging, there are a number of ways in which this evidentiary burden can be ameliorated.
Victims of coercive control are in a precarious position as the offence is less likely to be physical, so the evidence required is different. The evidence required include communications such as emails, phone records, text messages and interactions other digital technology like apps and social media platforms. In addition to other records which support services, medical records, a diary of dates and incidents and or statements made to the Gardaí. Finally, Women’s Aid advises that where available, notes of threats made to the victim, members of the family or other parties can be relied upon. Such evidence is what demonstrates the pattern of abuse.
Increased funding for support agencies can help spread further awareness of the evidence required while additionally continuing to provide the initial frontline support. The research available indicates that the Criminal Justice System needs reform through training, to raise awareness and understanding of non-physical abuse. As first responders, An Garda Siochana need training to better identify elements of coercive control while also explaining to the victim what a prosecution may look like. The judiciary need the ability adjudicate it, but also further understand how coercive control manifests and evolves. The Minister for Justice Helen McEntee did respond to the need for change in February 2022, ensuring that the Judicial Council will now provide workshops for training to raise awareness in relation to domestic, sexual and gender based violence, to begin later in 2022. Without better understanding, the problem will continue and likely deter people from reporting the offence.
Domestic Violence- A lot of work done, and a lot more to do!
Safe Ireland has described domestic abuse as a serious and pervasive problem. It has devastating consequences for its victims, families, friends, and the wider community. The World Health Organisation estimates that over a quarter of women aged 15-49 years who have been in a relationship have been subjected to physical and/or sexual violence by their intimate partner at least once in their lifetime. Furthermore, globally, as many as 38% of all murders of women are committed by intimate partners. Ireland is no exception to these statistics. In response to this worrying trend, the Irish government introduced the Domestic Violence Act 2018. The Act has introduced a wide range of new remedies available to victims of domestic abuse. However, there remains a lack of resources and support for domestic abuse victims in Ireland, which has led to a worrying link between domestic abuse and homelessness.
Overview of DV remedies
The Domestic Violence Act 2018 was introduced to improve the range of remedies and expand the scope of people who can secure protection. Now victims in intimate but not committed relationships who are not cohabiting with their partner can apply for and secure both safety and protection orders which is a significant improvement. This recognises that domestic abuse can occur in all intimate relationships and not just confined to those where people who are married or cohabit together. The Act also introduced the new offence of coercive control. Coercive control occurs when a person persistently engages in controlling or coercive behaviour, which has a severe effect on the victim, and as a criminal offence, a person found guilty is liable to a fine or imprisonment, depending on the severity of the offence. The Act criminalises such acts committed by a spouse, civil partner, or intimate partner, and the victim can make a complaint to the Gardaí if they believe an offence has been committed.
Lack of Resources and Support
While the legislation seeks to reflect best practices internationally, it does little to safeguard access to resources for those victims of intimate partner violence with respect to shelter, housing, and psychological support. The Programme for Government describes an “epidemic of domestic, sexual and gender-based violence.” despite this, few resources have been put in place to address this issue. The National Domestic Violence Intervention Agency (NDVIA) was initially set up in 2003 to work with An Garda Síochána, the Court Service, the HSE and other groups to develop an inter-agency approach to domestic violence. However, after just four years in operation, the NDVIA closed its doors in 2007 due to a lack of funding from the government. The 2022 budget was equally problematic, as despite providing increased funding to Tusla, there is no specified allocation of funds for Domestic, Sexual and Gender-Based Violence. Safe Ireland CEO Mary McDermott has noted that “This lack of funding from the government has severally impacted the ability of these services to provide any adequate shelter or support systems in place for victims of domestic abuse.” This lack of funding has had a direct link to victims of domestic abuse ending up homeless.
Domestic Violence and the Link to Homelessness
Based on its population, Ireland is obligated under the Istanbul Convention to provide 472 beds for victims of intimate partner violence, however, it currently has just 141 beds available. Figures released by Focus Ireland in 2019 stated that women account for 41% of homeless adults in Ireland, which is significantly higher than the European average. There was also a 158% increase in women’s homelessness from 2015 to 2019. Additionally, according to Safe Ireland, approximately 24% of women who have fled intimate partner violence face homelessness, while victims were turned away on 3,256 occasions in 2018 as services were full. In 2020, the Women’s Aid 24hr National Freephone Helpline made 463 calls to refuges on behalf of 288 women. However, 68% of the time, the refuge was full and unable to accommodate the woman and/or children. The situation is even grimmer for male victims. Currently, 95% of the men who contact Men’s Aid are being abused by a female partner, while 5% are in a same-sex relationship, but despite this, there are no beds available for male victims of intimate partner violence to resources, including emergency accommodation and wrap-around services that help them rebuild their lives.
The Domestic Violence Act 2018 is a commendable piece of legislation. The introduction of the new remedies available to victims of domestic abuse is undoubtedly a step in the right direction. This needs to be supported with additional resources and support. There is a need for wrap-around services for victims to support them to re-establish themselves, independent of their abusive partner. Victims of domestic abuse need to know that once they finally make that difficult decision to leave their abuser, they will have a place to stay, and that support will be available to them.
Development of the Domestic Violence Laws in Ireland and current Legislative protections:
Statistically, men are the main perpetrators of domestic and sexual violence, and the victims are mainly women and children, but men can also be victims. There is no specific offence of “domestic violence” in Ireland, so the crimes committed as a domestic abuser are prosecuted under different offences such as murder, assault, rape, stalking, damage, a breach in domestic violence orders and most recently coercive control. In recent years there have been some major developments in the area of domestic violence law in Ireland these include;
The Criminal Justice (Victims of Crime) Act 2017
This Act transposed into Irish Law the EU victims of crime directive which sets the minimum standards on the rights of the victims of the crime. It provides supporting measures for victims of violence once they report a crime and this support continues throughout the investigation phase and the prosecution of the offender. There is a requirement for an individual assessment for victims to establish their needs and protect them adequately, as well as implement special measures to ensure full protection while appearing in court.
The ratification of the Istanbul Convention:
This is a legal framework developed by the Council of Europe to tackle violence against women and domestic violence. The Convention sets the minimum standards for national states to develop integrated policies, prevention, protectionism and support for victims throughout prosecution. It requires that any act of violence against women, whether that is physical or psychological, is seen as a criminal act. It also requires parties to take action to ensure a prompt and effective investigation and prosecution, while also offering them protection for victims during proceedings. This Convention has resulted in the improvement of Irish law by introducing the Domestic Violence Act 2018.
Domestic Violence Act 2018:
The Domestic Violence Act is a major step forward for victims of domestic abuse in Ireland. Its major impact was the extension of the eligibility for protective orders while also introducing the emergency barring order, judicial guidelines, and improved access to court for an emergency barring order application. As a whole, the Act includes a number of measures to enhance the application process for victims. It also requires greater sentences for those committing abuse against their partner.
Key Changes and improvements brought by The Domestic Violence Act 2019:
Offences on Forced Marriages:
Section 38 of the Domestic Violence Act, 2018 has brought a new criminal offence of forced marriages. Child marriage is considered a form of forced marriage as it is impossible for a child to express their full consent to be in a marriage. This section of the Act also covers removing a person from Ireland for the purpose of forcibly committing to a marriage. This law also makes it a criminal offence for people under the age of 18 to marry.
Under Section 39 of the Act, Coercive Control is now considered a criminal offence. This means that behaviour that causes fear of violence, intimidates or upsets a person in the relationship, to the point it affects their everyday life is a criminal offence. Under this new Act penalties for coercive control range from a fine to imprisonment (or both). Victims of Coercive Control often feel that a lack of physical harm means their abuse is not substantial enough to be believed and their abuser cannot be prosecuted. This Act is an acknowledgement by the State of a different type of abuse inflicted on victims. If seeking protection from the Gardaí victims of Coercive Control will need a record of what has happened in order to establish a pattern of abuse examples may include:
- Text messages or emails
- Social Media Platforms
- Records of interactions with services or medical records
- Bank records which show financial control
- Notes of previous threats made to children
- Diary entries with dates of incidents
- Statements made to Gardaí
New Emergency Barring Order:
This is a new order which affords protection to victims of Domestic Violence, the order gives protection for up to 8 days in situations where there is an immediate risk of harm to partners who do not satisfy the property test. The property test means that the person applying for the order who does not own or co-own the owner or does not have their name on the lease can apply for an Emergency Barring Order. A breach of an Order under the new legislation is seen as a Criminal Offence and the Gardaí can arrest and charge a person who breaches such an order.
Although there have been major developments in the Domestic Violence laws in Ireland in the past few years there is still a need for reform. However, there is still legislation in place to protect victims. The Women’s Aid has a 24-hour national freephone helpline (1800 341 900) which provides emotional support to victims of domestic violence. If victims feel like they are in immediate danger, contact the gardaí on 999 or 112.
Eyes wide open
A current popular Netflix series tells us that “Love is Blind”. However, what is also evident is that
marriage, particularly in Ireland, needs to be entered into with eyes wide open as the stakes are high
when it fails.
Marriage is a contract that can be difficult to get out of and potentially has multiple long-term
consequences for both parties. Unfortunately, women are often worst affected, particularly when
they have sacrificed their own careers to take on the homemaker role and/or child-care duties.
People’s experience of divorce varies significantly, as highlighted in Jennifer O’Connell’s recent article
in the Irish Times. For many however, divorce is daunting, and this blog aims to raise awareness
amongst women in particular as to some of the common challenges faced:
- No fault divorce:Ireland has a no-fault divorce regime which means that judges cannot grant
the decree of divorce based on the inappropriate behaviour of one or both parties, including
any act of adultery. An exception occurs when there is evidence of “gross and obvious
misconduct”, meaning behaviour that was so unacceptable the court must take it into
account, but it can only have relevance in respect of the making of financial and property
orders, in respect of the calculation of “proper provision”.
- Legal representation and advice:An Irish study undertaken by Buckley between 1999-2003,
found that women involved in divorce proceedings were more financially vulnerable than
men. While there was found to be a balance between men and women availing of private
legal representation, 80% of the Legal Aid Board clients seeking divorce were women. More
information on the Legal Aid Board services can be found here. A means test is required to
qualify for support and waiting times can vary, depending on location.
- Division of assets, maintenance, and money:The Family Law (Divorce) Act 1996 sets out
twelve factors which the judge must have regard to when making financial orders. The Judge
is not obliged to reference these or explain the reasoning behind whatever orders are made.
Ultimately the test for the court is to secure “proper provision” for both spouses and any
dependent children, meaning Irish judges look at the circumstances of each case and put
together a financial package which they deem to be fair. It is important to note that every
case is different and determined with reference to the assets and incomes of both parties.
The court may also seek evidence of how each person plans to take financial responsibility
for themselves going forward. For some women this may require re-training or seeking
employment having been out of the workforce for some time.
- Moving on:Following divorce, some women may remarry and/or have children with a new
partner. It is important to note that upon entering a second marriage either party is no
longer be entitled to personal maintenance. Also, if a woman proceeds to have a baby with a
new partner prior to her divorce being granted, it is legally assumed that her husband is the
father of the baby, and he will need to sign a legal document stating that he is not. Some
women can run into difficulties here, particularly if the marriage breakdown has been
acrimonious and it may be necessary to take further legal action which can be both timely
In conclusion, Irish women need to be more informed as to the challenging issues they may face
when seeking a decree of divorce, to be aware of the “What If’s” before saying the “I do’s”. As
divorce becomes more common, information is key to bust the myths and to learn lessons from the
lived experiences of others. Further information, advice and support on separation and divorce is
available from the UCC School of Law Family law information website
“Family Court Bill sees Summer Publication”
The Government’s Legislative Agenda for the Summer Session of 2022 has heralded the belated and long-overdue publication of the Family Court Bill 2020 – a reformative piece of legislation that seeks to overhaul Ireland’s ‘no longer fit-for-use’ family law system.
New Summer Deadline
Often understood as ‘the poor relation’ in ministerial circles, the Irish family law structure is one repeatedly critiqued as outdated and insufficient. Such insufficiency is particularly rife in certain rural areas, wherein family District Courts may often only have one sitting a month. Delays and backlogs such as these are commonplace and have no doubt harmfully affected the parties in need of expediency.
On foot of a wealth of calls for reform dating as far back as the 1970s, the Justice Plan 2022 is seen as a capstone to the absence of such meaningful progress. Originally ushered in for a March 2022 deadline for the Bill’s original publication, the Government failed to deliver upon this promise and pushed it to the summer. Amid its pushback, speculation surfaced surrounding a potential lack of suitable resources to accommodate the Bill’s grand proposals; mainly concerning issues of infrastructure and personnel.
What Does the Bill Provide?
In essence, the purpose of the Bill – as stated in the Legislative Programme – is: ‘to establish a Family Court as a separate division within the existing court structures’. Expanding upon this further, the Bill will oversee the installation of a District Family Court, Circuit Family Court and a Family High Court, comprising as separate entities within the courts current framework. The Bill will also provide for regional District and Circuit Family Courts, with an increased capacity for the District Court to hear cases involving judicial separation, divorce, civil partnership, and cohabitation cases.
The aim is to introduce more specialised sittings of the Family District Court, which would sit in fewer locations than the current District Court does, but at a greater frequency.
While the Bill promises long overdue, reformative change, it is not without potential pitfalls.
A submission on the Bill from the Irish Human Rights and Equality Commission notes that apart from the requirement to consult with the judiciary on the matter, there is no requirement on the Courts Service to consult with court users. This includes marginalised groups – or their representative groups – to inform how to best divide the districts into the most accessible geographical locations.
The report also stressed the necessity for judges sitting on these specialised courts to be sufficiently versed on the topic of family law itself, highlighting that the training and competency of family court judges ‘should be knowledge and experience in the rights of the child as judges often lack the training to vindicate the rights of the child to participate in proceedings and have their voice heard’.
These points were reiterated in a February 2022 Dáil discussion by Minister for Justice Helen McEntee, where she acknowledged that both the ‘number’ and the ‘specialisation’ of the judges appointed to these new courts needed increasing. In tandem with this, the Minister also noted that the progress made towards modernising the courts needed preserving:
‘We have moved on from the days when many people would go into a courtroom on a particular date not knowing whether they would be heard that day, and perhaps then having to return to same courtroom only for the same thing to happen several times. We must build on the changes that have happened and on the positive approaches that have been taken in the context of the modernisation programme.’
The Bill is set to be published over the coming weeks.
Guardians ad Litem: Who, What and Why?
Every day in courtrooms across Ireland and the world, judges hear information and make very important decisions about the lives of children including when they get to see their parents and where they lay their heads each night. Even though the children and their fate is often one of the main issues in contentious domestic cases, children are typically not present in the courtrooms and their voices are rarely heard directly by the judges. However, both international children’s rights doctrine and Irish law says their views should be considered, so how can this be accomplished? There are a few common ways: 1) the parents or other related parties can present evidence about the child’s wishes, 2) the child can talk to the judge privately to discuss their wishes and concerns, or 3) the Court can appoint a Guardian ad Litem (GAL) to advocate for the best interests of the child. The third option – engaging a GAL – is arguably the most meaningful and impactful approach.
Who are GALs?
At least how they’re currently written, Irish statutes do not provide much guidance about the role of GALs or their required qualifications. A GAL can a lawyer but often they are not. There is no requirement that they have any specific expertise in child welfare or development, nor do they need any specific training, however, there are agencies in Ireland that provide GAL services which has standardized their work to a certain extent. GALs are appointed at the discretion of the Court, and in family law cases, they are usually paid by the parties.
What can a GAL do?
While a GAL’s specific duties are not listed by Irish statute, case law indicates that their purpose is to investigate and advocate for the child’s best interests. This is achieved by talking to the child and seeing what the child wants, talking to people who know and interact with the child, reviewing relevant records, and attending Court as the child’s representative. It’s important to understand that just because the GAL solicits information from the child about their wishes and even though they share that information with the Court, that does not mean the GAL has to ask the Court to do what the child is requesting. A GAL may retain a solicitor of their own to represent them in a case if they need assistance getting information before the Court. For example, it may be helpful and beneficial for a GAL to have a solicitor of their own if they have need to subpoena witnesses or present evidence other than their own testimony. However, this rarely happens due to limited resources for GALs, let alone solicitors for GALs.
What can’t a GAL do?
A GAL cannot give legal advice to the children they represent or to other parties. They also cannot keep secrets for the child as they are subject to cross-examination and should be held accountable by parents’ counsel and the Court for the positions they take. GAL work is not necessarily social work, and while they may come from similar backgrounds as social care workers, GALs are not responsible for arranging services or visitation for the children they are working with.
Bonus Question: What is the difference between a GAL and a solicitor directly representing a party? A GAL, even if a solicitor by trade, is not in the role of an attorney in the case; they do not represent the child directly. Depending on the age and maturity level of the child, the GAL can ascertain quite a bit from the child about their position. And while it may be the GAL’s job to advise the Court about the child’s wishes, they will not necessarily advocate for what a child wants, especially if the GAL does not agree that it’s in the child’s best interests. In certain cases, especially when children are older teens or have a strong difference of opinion with the GAL, the Court may appoint a solicitor to directly represent the child. That solicitor would be tasked with advocating for what the child wants and could also give legal advice to the child about the case.
Proposed Title: The ‘Poor Relations’ who care for children when parents cannot.
Children and young people benefit from remaining within their own family or kin networks, when their parents lack capacity to provide sufficient or adequate care for them. However, there is little appreciation of the challenges faced by those who take over this important role on a voluntary basis and the State appears to be falling short of recognising the specific needs of families who provide kinship care in Ireland.
The Irish Constitution does not construct an obligation on anyone other than ‘parents’ to take responsibility for the primary care of children within ‘the family’, yet many grandparents, uncles, aunts, cousins, siblings, and members of the extended family network, including friends and former partners, are being invited and entrusted to act in loco parentis to infants, children and young people. This crucial role is provided often in the absence of financial assistance, the provision of any additional supports, or access to independent legal advice about the nature of the responsibility involved.
Although both formal and informal kinship care are in the United Nations Guidelines on Alternative Care (2010), informal kinship care is not explicitly set out in any legislative or policy provisions within Ireland and therefore falls outside the parameters of ‘Alternative Care’ which is provided through Tusla, the Child and Family Agency.
What must be queried is what is the difference between formal foster care and informal kinship care, that validates the provision of specific standards and supports for one form of care, and an absence of any structure or status for the other? Relatives or family friends may take over the care of children informally, because of parental incapacity due to mental health issues, domestic violence, substance misuse, imprisonment, abandonment, or death. Nevertheless, an assessment to become a formal foster carer, is not always an available option for such relatives, mainly because social workers appear to want to keep children ‘out of care’. Other kinship carers, who take on their role through Testamentary Guardianship (through the will of a deceased relative), or by agreement between family members, have little or no visibility at all, in the absence of any specific pathways or processes for informal kinship care.
More information is needed on the prevalence and profile of these families. Data which is published on the numbers of children in care (CIC), includes children and young people in general foster care and those who are placed with relatives in foster care (formal kinship care), but not children and young people being cared for by relatives or family friends in informal kinship care, for which no dataset appears to be currently maintained, in Ireland.
Whatever the circumstances leading to informal kinship care, this cohort of families faces significant inequities, with serious financial and other consequences often arising for those who voluntarily take on a ‘parenting’ role, but who cannot access entitlements and resources which are available within ‘the system’. Kinship carers are not automatically eligible for Parents or Carer’s Leave, or flexible working arrangements, and are not always recognised as caring for additional ‘dependents.’ Children and young people in informal kinship care do not routinely qualify for Medical Cards, Needs Assessments, or Aftercare supports, unlike their counterparts in the formal care system.
As of January 2022, there were 2,590 children living with carers in receipt of the Guardian’s payment, from the Department of Social Protection. This payment is made towards the care of children, where ‘both parents are dead, or one parent is either dead or unknown or has abandoned and failed to provide for the child, and the other parent is unknown or has abandoned and failed to provide for the child’. Not all kinship carers are aware of this payment and in any event, the operational conditions may be challenging for some to meet, particularly if they are attempting to maintain the child’s relationship with their birth parents, (in the best interests of the child) as that contact may be considered by a Deciding Officer as suggesting that a child has not in fact been ‘abandoned’.
If approved for the Guardian’s payment, kinship carers receive a maximum of €192 per child per week, in contrast to the weekly payment which Foster Carers receive from Tusla, which is €325 per child under 12 years of age and €352, for a child over 12.
Without seeking to undermine in any way the dedication and commitment of formal foster carers, surely the intrinsic and distinct advantages of keeping children whose parents are not able to care for them, with relatives or carers already familiar to them, provides a robust basis for kinship families to deserve equal recognition and equitable support, rather than being treated as the ‘poor relations’!
Till death (or divorce) do us part: The need to recognise prenuptial agreements in Ireland
‘If this was the summer of love, then this fall will be the autumn of lawyers’ writes tabloid Refinery29 on foot of the 2018 summer of A-List Celebrity marriages. Whilst prenuptial agreements are nearly guaranteed when it comes to marriage in Hollywood, they are far less common in Irish society as their legal status remains somewhat clouded. Cynics may view them as pre-planned divorce contracts, realists may view them as a smart financial move. In modern Ireland, where the dissolution of marriage is finally permitted and closely regulated, prenuptial agreements are likely to become increasingly utilised.
Historically, Irish courts rejected prenuptial agreements as a threat that they would ‘subvert the sanctity of marriage’. However, since the 1995 referendum removing the constitutional ban on divorce, the legal understanding of marriage no longer attaches a lifelong commitment meaning regulating finances upon breakdown is now a necessity.
The 2007 Report of the Study Group on Prenuptial Agreements declared prenups to be valid and capable of variation under statute. However, their enforceability is undoubtedly challenged by the constitutional requirement that prior to the granting of the divorce decree, a court must ensure that proper provision exists or will be made for the spouses and any children. What is considered ‘proper’ is to be determined by the courts. The Divorce Act does specify factors to guide the court’s discretion, but clearly where a court finds that a prenuptial agreement does not offer proper provision for one of the spouses, it cannot be enforced.
A limited form of statutory prenuptial agreement exists under the Succession Act 1965, where a spouse/civil partner can renounce their legal right-share in a property prior to or during a marriage. This type of prenuptial agreement, however, is not drawn up in contemplation of separation and historically was introduced to protect family farms upon the death of the spouse whose family owns the farm.
Prenuptial agreements however have their shortcomings when it comes to changing circumstances within a marriage. The parties’ circumstances at the beginning of the marriage can have shifted significantly by the time the prenuptial agreement becomes relevant. Consideration must also be given to the oft gendered social expectations of both parties in a marriage as well as the possibility of associated power imbalances. Women are more likely to fulfill the homemaker and child carer role, which may cause them to be financially less well off than men. Irish employment law contributes to this too, as there is very limited provision for paid parental leave for men. Consequently there exists the not unreasonable concern that a prenuptial agreement can be unfair and further impoverish a dependent spouse. Enforcing such an agreement would be contrary to the aim of Irish divorce to make ‘proper provision’. Providing for a dependent spouse necessitates the discretion afforded to a court so as to allow judges to rule out unfair prenuptial agreements.
Conversely, if marriage is to be preserved as the cornerstone of family life, and the autonomy of a family’s decision making is to be respected, then allowing couples to tailor and agree the financial aspects of their marital relationship, including the power to determine what happens in the event of marital breakdown, should be encouraged. The 2007 Report suggests that where a fair and balanced prenuptial agreement is drafted, involving two fully informed and consenting adults who have both sought independent legal advice, it appears too difficult to justify a complete disregard of its contents. Such an agreement certainly has the potential to be regarded as fair, if fair reflects respecting the intentions of the parties. Such an agreement also provides security and predictability. Arguably respecting the agreement of the parties fulfills the legislative aim of proper provision, if the concept of ‘proper’ is to be interpreted as acting in a respectful and appropriate way. Prenups encourage negotiation at the start of the relationship as to an acceptable, agreed outcome should the marriage relationship become irreconcilable. Having this clarity early on in the marriage, can give couples security and an expectation as to the outcome of their divorce, thus reducing the need for litigation.
Evidently, a clearer statement of the law is needed to bring clarity to this area of the law. If drafted in a fair manner with the engagement of independent legal advice for both parties, a fair prenuptial agreement securing proper provision can be reached thus avoiding litigation in the event of marital breakdown.
Challenges with Surrogacy at A Tie of Crisis in Ukraine
Irish couples who have entered surrogacy contracts with Ukrainian women to bear their child are facing a very personal horror in light of the Russian attacks on Ukraine. As reported in the Irish Independent, Irish Families Through Surrogacy (IFTS) have been advised that Ukrainian surrogate mothers to Irish babies who flee their homeland will trigger the surrogacy contract to become void. Ukrainian law provides that, when as regards children born to surrogate women “the contracting couple shall be the parents of that child”. This means that Irish couples have a legal relationship with their child which activates on birth. However, this legal provision, found in the Family Code of Ukraine (Article 123) is intended only to apply to children born in Ukraine.
Surrogacy is unregulated under Irish law, meaning Irish law operates on the principle that whoever gives birth to the child is the child’s legal mother. The only way to transfer parentage is via adoption. If a surrogate baby is born outside of Ukraine, a lengthy and complicated process will have to be completed to reunite the baby with their Irish intended parents, most likely via the intercountry adoption process. This is further limited given that Irish law only recognises intercountry adoption from 10 countries and even then, the process is long, requiring the parents to be approved through a series of state-conducted checks.
Fourteen Irish families were due to have babies through surrogate mothers in Ukraine between February and May, currently leaving them vulnerable with regards to their rights in respect of their child. This number will only increase should Russia’s attacks on Ukraine continue past May. This also leaves Ukrainian surrogates in an extremely vulnerable situation, many of whom engage in surrogacy for financial reasons and who could potentially be trapped with the financial burden of another child in such a traumatic and challenging time for them.
This precarious situation calls for emergency measures by the Irish government to create exceptions for the families of these surrogate children, allowing their surrogate mothers to find safety and refuge in Ireland, without jeopardising the original rights of Irish couples participating in surrogacy contracts. This would allow the children to be born as Irish citizens before being domestically adopted by their intended parents.
More broadly, preliminary measures have been taken by the Irish Government to legislate to recognise domestic surrogacy agreements. On 22nd February 2022, the Dáil approved the publication of the Health (Assisted Human Reproduction) Bill 2022. This Bill, if enacted into law, will establish the AHR Regulatory Authority (AHRRA) which will be responsible for licencing and regulating the provision of domestic altruistic surrogacy. Building upon the Children and Family Relationships Act 2015, the AHRRA will maintain both the new National Surrogacy Register and the already-existing National Donor-Conceived Person Register. The Irish government did previously attempt to create laws recognising surrogacy in the Children and Family Relationships Bill 2014, but this was ultimately stalled due to the complexities surrounding this issue.
When eventually enacted, the domestic regulation of surrogacy will be hugely welcome, given it will reduce the risk of exploitation of children and potentially vulnerable surrogate mothers. It will also reduce the number of Irish nationals going overseas for compensated surrogacy and protect them from the associated risks and pressures of doing so. However, Irish surrogacy law will have its limitations. Only altruistic forms of surrogacy (where no payment can be exchanged) and surrogacy arrangements conducted in Ireland will be recognised. This can be problematic, leading to a shortage of surrogate mothers, and rights violations of children who are not legally recognised in Ireland due to being born as a result of international surrogacy arrangements. A solution proposed for the latter issue, by Senator Mary Seery-Kearney, is the creation of a “green list of countries for whom [Ireland recognises] their standards of human rights”. In this way, the same statutory associated rights and protections can be available to parents and children involved in surrogacy arrangements from “green list” countries.
Surrogacy in Ireland
Surrogacy allows a couple or an individual to have a child through an arrangement where a woman (the surrogate) agrees to carry a child on their behalf. The genetic material of both, one or neither of the intending parents can be used to create the embryo that the surrogate will carry. Surrogacy arrangements can either be domestic (take place in Ireland), or they can be international (the arrangement takes place abroad before the child is taken home to Ireland by the intending parents).
There are two different types of surrogacy arrangements:
Traditional Surrogacy - where the surrogate’s eggs are used to create the baby she would deliver for the intending parent/s and,
Gestational Surrogacy - where the egg of the intending mother, or separate donor is used.
Surrogacy remains unregulated under Irish law. Even if a genetic relationship exists between the intending parents and the child, they may not be the legal parent under Irish law. The person who gives birth is the legal mother of the child, regardless of any rights relinquished by the surrogate. This remains a fundamental obstacle for intending parents in Ireland.
As well as this, under the Status of Children Act 1987, should the surrogate be married at the time of conception, her husband is generally presumed to be the father of the child, unless it can be proven otherwise. This means that along with the surrogate, her husband will be the automatic, although revokable, joint guardian of the child.
This greatly affects the intending parents. Even If the intending mother uses her own eggs, and can prove a genetic relationship to the child, she has no automatic parental rights. This is well established in Irish case law, according to MR v An t-Árd-Chláraitheoir , she can only gain parental rights to the child through adoption. Along with this, until adoption is formalised, the intending mother has no legal connection to the child at the time of birth, meaning she cannot make important decisions in relation to the child, such as birth registration. Without adoption, the intending mother is also not entitled to statutory maternity leave nor maternity benefit. Should the intending father be the genetic father of the child, he can apply for guardianship of the child under the Guardianship of Infants Act 1964, however it is a cumbersome process.
After a period of two years of caring for the child, the intending parents not genetically related to the child can apply for guardianship. If the couple are cohabitating, it is a three year wait. Many difficulties arise should parental rights not be put on legal footing, such as, consent to medical procedures, applying for a passport for the child, inheritance rights, and so on.
In terms of international surrogacy, there is little regulatory consensus internationally on what legal approach to take. A child born through international surrogacy, can travel back to Ireland if an Emergency Travel Certificate (ETC) is issued by the Irish Government. The application can be made by the father or the guardian of the child to the Department of Foreign Affairs. The application requires DNA testing to be carried out to prove the biological link with the intending father. In the absence of a declaration of paternity, the application for the ETC must be made by the surrogate, should she be married, consent must be provided by from her husband.
This lack of surrogacy regulation in Ireland creates a very complicated situation for intending parents. Legislation was recommended in 2005 in the Report of the Commission on Assisted Human Reproduction, proposing that a child born through surrogacy should immediately be presumed the child of the intending parents, and that a national regulatory body should be established. The Assisted Human Reproduction Bill was published in 2017 but as drafted, the Bill will only cover altruistic surrogacy arrangements (no financial reward) it would only be applied to domestic surrogacy arrangements and would only regulate the arrangements that occur after the legislation is enacted.
In 2022, The Health (Assisted Human Reproduction) Bill, was approved by the Cabinet, five years since its drafting. Intending parents still having to wait until the birth of the child until the legal parentage can be transferred to them. This can only happen with the consent of the surrogate and only a minimum of 28 days after the birth. It is mentioned that traditional surrogacy will not be regulated, and international surrogacy is not mentioned at all.
The restrictive approach taken by the State in relation to regulating surrogacy, will likely still encourage intending parents to go abroad, where in some jurisdictions, their legal parentage can be recognised at birth. This will remain unregulated unless the Bill is amended. Ireland has been too slow in its regulation of surrogacy, and current reforms fall short.