Legal Aid in Family Law Matters

The services of the Legal Aid Board are operated through law centres located throughout Ireland. Legal services for clients in receipt of legal aid are primarily provided by solicitors employed by the Legal Aid Board (“the Board”) working in these law centres.  In certain instances provision of legal services is outsourced to solicitors in private practice. To obtain the services of the solicitor in your local law centre you must satisfy the Board’s financial requirements and must satisfy the Board that your case has merit. An applicant applying for legal advice and / or legal aid in a family law matter must undergo a means test. The applicant will be requested to complete a Statement of Means setting out details of their income and details of all assets owned by them. An assessment will be made by the staff in the law centre to establish if the applicant will qualify for legal aid and also to calculate the amount of contribution to the service which must be paid. The Financial Test To qualify for legal aid in a family law matter the applicant’s disposable income cannot exceed €18,000 and their disposable capital (excluding their home) cannot exceed €320,000. These figures are reviewed from time to time by the Minister for Justice, Equality and Law Reform and the Minister for Finance. Disposable income is the applicant’s gross income from all sources less various allowances in respect of accommodation, dependents, mortgage, tax etcetera. What Contribution is payable? Legal advice and legal aid is not totally without charge in family law matters and a contribution (normally relatively nominal in the context of the value of the services provided) toward the cost of the service must be paid. The applicant will be advised by the law centre of the amount of the contribution required at the outset. Legal advice is verbal or written advice given by a solicitor. Legal advice is provided by solicitors in the law centres. The minimum contribution for legal advice is currently set at €10.  Legal aid is representation by a solicitor in court in relation to a family law matter.  The minimum contribution for legal aid is currently set at €50. How long do you have to wait to see a solicitor? The Board employs a number of solicitors in its law centres throughout Ireland. Once an application has been received by them, an assessment made and legal aid has been granted the applicant is notified in writing of the decision and the applicant’s name is put on a waiting list. The Board is obliged to provide an applicant a consultation with a solicitor within a number of months from the time their application is approved. Services are also provided by solicitors in private practice in certain emergency cases or where an applicant is on the waiting list for some time. When this situation arises the applicant will be notified by the Board that they are entitled to the services of a solicitor in private practice. The applicant will be provided with a list of solicitors on the panel and they may choose one of the solicitors to act on their behalf. The Board will then correspond directly with that solicitor and notify them that they have been chosen to act on behalf of the applicant. The legal...

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Maintenance Payments for Spouses

A married person can seek Maintenance payments from the other spouse following the breakdown of their marriage. The obligation to maintain and support your spouse continues even if the person paying maintenance remarries. There is no clean break from the obligation to support the other spouse following a separation or divorce. Subject to the terms of an Agreement or Court Order a spouse only stops being responsible for the maintenance and support of the other spouse when the spouse receiving the maintenance dies or remarries. Voluntary Maintenance Informal maintenance arrangements can be made between the parties. This will work where both parties are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parties sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €500 per week (which would very rarely arise), and the amount stipulated will depend of the means of each party. If a sum greater than the District Family Court maximum is sought it will be necessary to apply to the Circuit Family Court. If the financial circumstances of either party changes an application can be made to court to have the Order varied by either increasing or decreasing the amount payable.  If the spouse falls into arrears with payments an application can be made to the court for an Enforcement Summons to issue against the offending party. Income Tax Consequences The spouse who is paying maintenance is entitled to a tax deduction for the sum paid in spousal maintenance. The recipient spouse must declare the amount received as part of his or her income for tax purposes. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list for some time they will be notified by the Board that they are entitled to the services of a solicitor in private practice. When this situation arises the applicant will be provided with a list of solicitors on the panel and may choose one of the solicitors to act on their behalf. Legal aid is not totally without charge in family...

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Managing your Affairs in the event of future Mental Incapacity

It is a sad but unavoidable fact of life that many people lose mental capacity.  This prospect is not confined to any one age profile and may affect young or old alike.  The causes are varied (exempli gratia accidents or medical conditions) and while some mental incapacities are temporary, more are permanent.  Upon loss of mental capacity, a person is no longer in a position to look after their own legal/financial affairs or take personal care decisions.  Accordingly, if such decisions are required (exempli gratia sale of an asset to meet the cost of ongoing medical care), a cumbersome application to the High Court is required unless the person who has lost mental capacity previously took steps to organise their affairs. This may be done by putting in place an Enduring Power of Attorney to facilitate the management of legal and financial affairs together with limited personal care decisions in the unfortunate event that at some stage in the future the person loses mental capacity.  It is important to note that the inclusion of a power to take medical decisions is specifically prohibited and cannot be included. The Enduring Power of Attorney appoints a person known as the Attorney to act on the Donor’s behalf.  More than one Attorney may be appointed.   Should the Donor become mentally incapable at some future point in time, then the Attorney must apply for registration of the Enduring Power of Attorney in the Wards of Court Office before they may act on behalf of the Donor. Prior to applying for registration of the Enduring Power of Attorney, the Attorney must give notice in writing of their intention so to do both to the Donor and to other relevant parties and the Donor and these relevant parties notified will then have an opportunity to object to the registration of the Enduring Power of Attorney if they consider that the Donor continues to have mental capacity.  This protection prevents an Attorney from assuming control over the Donor’s property and affairs while the Donor is still fully mentally capable.  Similarly, if subsequent to the registration of an Enduring Power of Attorney, the Donor recovers mental capacity, the Donor may apply to the High Court for an Order cancelling the registration. The Attorney is obliged at all times to act in the best interests of the Donor when exercising their power under the Enduring Power of Attorney and to account for all actions taken.  The power granted to the Attorney may be restricted though this causes some difficulty if a decision is required in respect of which the Attorney has been fettered. Before the Enduring Power of Attorney can be executed both a doctor and a solicitor must certify that at the time that it was executed the Donor understood the nature and effect of putting in place the Enduring Power of Attorney.  Naturally it is vital that the Attorney chosen is worthy of the utmost trust and has the appropriate skills to manage any assets and take personal care decisions The Enduring Power of Attorney does not become effective until it is registered.  It may be revoked at any time up to registration by giving notice of such revocation to the Attorney and other relevant parties.  Thus the Donor, retains complete control of their affairs after...

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Maintenance Payments for Dependent Children

Both parents have a responsibility to financially support their children. In the case of unmarried parents or parents who have separated, one parent usually has custody of the dependent children and looks after their day to day needs. The other parent usually pays money which is called maintenance to the custodian parent to assist with the costs involved of taking care of the children. Paying maintenance does not in itself give a parent access or guardianship rights. Voluntary Maintenance Informal maintenance arrangements can be made between the parents. This will work where both parents are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parents sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid towards the costs involved for the care of the dependent children then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €150 per week, per child but this will depend on the means of each parent. If a sum greater that this is sought it will be necessary to apply to the Circuit Family Court. Contributions towards Christmas, the child’s birthday and back to school expenses may also be sought. How long is Maintenance Payable For? Maintenance may be awarded for a child until the child reaches the age of 18, or if the child remains in full time education until the child reaches the age of 23. If the child has a mental or physical disability such that it will not be possible for the child to maintain him or herself then in such circumstances there is no age limit for seeking maintenance for the support of the dependent child. When a Maintenance Order has been made by the Court either party can apply at a later date to have the amount varied. This means the amount could be increased or decreased. If a party falls into arrears with payments when a Maintenance Order is in place an application can be made to the court for an Enforcement Summons to issue against the offending party. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list...

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Your Rights In Respect of Faulty Goods

When you purchase an item from a shop you have certain legal rights should the item you purchase be faulty. The Sale of Goods and Supply of Services Act, 1980 provides protection to a person who has a complaint with regard to an item which they have purchased for their own use from a business. These rights have been further enhanced by the Consumer Protection Act 2007. What are the Minimum Requirements? When you purchase an item you enter into a contract with the retailer. If the item you purchase turns out to be faulty, the retailer, not the manufacturer, is responsible to you and must resolve your complaint. The law provides that the item must be of a certain minimum standard of quality unless the defect has been specifically brought to your attention. The item must be fit for the purpose intended. It must correspond with the description on the packaging, be of the measurements as stated and correspond with the quantity as described. Items which are purchased during a sale have the same level of protection as those paid for at the full price. What to do when problems arise  If the item is faulty there are certain steps you can take to have the situation rectified. You should immediately contact the retailer and return the goods promptly. Do not attempt to repair the item or arrange for anyone else to repair it. When returning the item you will need to produce proof of purchase. If you were informed of the defect prior to purchasing the item or if you examined the good and should have seen the defect then in such circumstances you will have no grounds for returning the item. Similarly if you misused or damaged the item, changed your mind or bought the item knowing that it was unlikely to do what you had intended then in such circumstances you will have no recourse. If a retailer advertises that if an item purchased from them is faulty that they will issue a refund or replacement and states that this offer is unique to them when in fact the terms are laid down in legislation, the Consumer Protection Act 2007 states that this is deemed to be a prohibited practice as you are entitled to this remedy under the Sale of Goods & Supply of Services Act.  The 2007 Act provides that a notice may be served on the retailer notifying them of the breach and requesting that they comply with the legislation. What remedies are available? Where the item is deemed to be faulty the retailer may offer a repair, refund or replacement. It is at the retailer’s discretion as to which form of redress they offer. However, if a repair is offered and accepted, then it should be permanent. If the same fault occurs again, then you are entitled to seek refund or replacement. The legislation is now over 30 years old and the Minister for Enterprise Trade and Employment is considering a review of this Act.  This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors...

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