Legal Aid
Means Test
How to Apply
The application form can be printed out and posted to the Legal Aid Board, or you can apply online.
To apply online you will need to have certain information to hand as listed here.
Making a Will
It is always a good idea to make a will. If you are a single parent, and the sole guardian of your child or children, it is particularly important. When you make a will, you choose an executor; someone trustworthy and competent who can look after your affairs after you die. That person ensures that your will is complied with.
If you are joint guardian of your children with their other parent, then that parent becomes responsible for looking after them in the event of your premature death.
Nominating Guardians
If you are sole guardian, you can nominate people to become guardian to your child or children in the event of your death. It is a good idea to discuss this with the person or people you nominate before you name them in your will. You can also name other people who should be guardian in the event that the first named person cannot take up the role for whatever reason.Providing for this eventuality in your will means that, should something happen to you, people you choose can step in straight away to look after and protect your children.
Division of your Estate and Trustees
If you die and you have children, but no spouse or civil partner, then your estate (any property and/or assets) will be divided evenly between your children. If the children are minors when you die, then the estate will be managed by trustees until they are old enough to receive it. You can appoint trustees to look after your children’s inheritance for them until they are old enough to access it. The trustees’ responsibilities might also include providing an allowance to your children’s guardians to cover their care costs, or to pay their school fees, for example.
Your Home and Outstanding Mortgage
Your home, if you own it or are buying it, is most likely your most valuable asset. If you have adequate mortgage protection cover, any outstanding amount on your mortgage will be paid off if you die.
Do you need a solicitor?
While it is not essential to have the assistance of a solicitor to make a will, it is advisable. A solicitor can ensure that the will is drafted properly and legally and that your wishes as stated can be carried out.
Witnessing
Your will must be signed in front of two witnesses. A witness cannot be someone who will benefit under your will, or the spouse or civil partner of anyone who will benefit. A witness must also be over 18 years of age.
You can change your will at any time before you die, provided you are of sound mind.
Collaborative Law
Collaborative law is a form of alternative dispute resolution, or ADR. Other dispute resolution mechanisms included mediation. Unlike mediation, collaborative law is lead by legal professionals. It is a way to resolve a dispute or difference between people, using legal professionals, but without going to court.
Collaborative law is a specialist area within family law that is not yet heavily used in Ireland, but is in development. To resolve an issue using this approach, it would be important to find solicitors who are properly trained in collaborative law. In this process, each partner has a separate solicitor who is trained in Collaborative Law.
All negotiations to resolve the dispute take place in meetings that are attended by each partner and their solicitor. The number of meetings necessary will depend on the complexity of the issues to be agreed, and how easily settlements or solutions can be found. Like mediation, the process relies on people being open and honest with each other, and to work in good faith to a resolution of the issue or issues.
The collaborative law process can be less stressful and less acrimonious than going to court, and can be better suited to resolving matters that arise in family law disputes such as access and parenting matters.
What is Guardianship?
Guardianship is a legal term for the rights and responsibilities that a parent has in relation to their child.
These responsibilities include the duty to financially maintain and care for the child. They also include the right to make decisions in important areas of the child’s life such as how they are educated, the school they attend, consent to medical treatment, where they live, and any religion they might follow.
Guardians are required to give consent when obtaining a passport for a child, and also must consent to a child leaving the country for any reason. They may also have a right to be involved in other aspects of a child’s life and in matters affecting the child’s welfare.
Who can be a guardian?
Married Parents
Where parents are married, both parents are automatically joint guardians of their child. This does not change after separation or divorce, regardless of who has primary care of the children (that is, regardless of where the children live most of the time).
Unmarried Parents
When the child’s parents are not married, the mother is automatically the child’s sole legal guardian. There are some exceptions to this as a result of the Child and Family Relationships Act 2015. That act provides that the father becomes joint guardian under certain circumstances as follows:
- An unmarried father automatically becomes the guardian of his child if he has lived with the child’s mother for 12 consecutive months, including at least 3 months with the mother and child following the child’s birth.
- If there is disagreement about whether the parents have been cohabiting for the required time, including the 3 months following the child’s birth, then an application can be made to the court to make a declaration about this.
If the mother agrees to joint guardianship
Where the parents are not married, and the requirements to allow automatic guardianship for the father are not met, the father can become joint guardian with the mother if the mother agrees. To do this, both parents must sign a joint statutory declaration which must be signed in the presence of either a Peace Commissioner or Commissioner for Oaths. A declaration must be made for each child where there is more than one child.
The statutory instrument containing the declaration is here: SI 210 of 2020 (pdf). This is an important legal document, and once finalized should be kept safely by both parties.
If the mother does not agree to joint guardianship
When a child’s mother does not agree that the child’s father may be appointed as joint legal guardian, the father can apply to the District Court to be appointed as one. It would be a good idea to get some legal advice about this; however legal representation is not necessary. It is important to note that the father’s name does not need to be on the child’s birth certificate to apply for guardianship.
Can a step-parent, civil partner or cohabitee become a guardian?
A step parent, civil partner or a person who has cohabited with a partner for a period of at least 3 years can apply to the court to become a guardian of their partner’s child. To apply, they must have been in a co-parent role to the child for over 2 years.
Can a step-parent, civil partner or cohabitee become a guardian?
Family members such as grandparents and others who have acted in “loco parentis” (in the place of the parent) may apply to court for guardianship. If the person has cared for a child on a day to day to basis, continuously for 12 months, and there is no parent or guardian able or willing to exercise the rights and responsibilities for the child, then they may apply for guardianship. This may be a grandparent caring for their grandchild or a foster parent caring for a child.
This is a brief outline of the issue of guardianship. It is not offered as legal advice and is not intended as a substitute for consultation with a legal advisor. It is essential that anyone dealing with these issues seeks legal advice in order to decide how best to proceed in the individual circumstances.
Maintenance Orders – The Practicalities
- To seek maintenance the applicant will present at the District court at the public counter and they will get a case number
- They will need to give the full name and address of the respondent
- They will be called to the interview room to meet with 1 staff member. They will be encouraged not to bring children with them for this meeting
- A summons will be sent to the respondent with the date for court and they will sign to say they received the summons
- The applicant will complete a statement of means and a copy will be shared with the judge and the respondent
- All cases listed for the day will arrive at 10am
- There are 4/5 courts running on the day
- The ‘call over’ will take place where everyone who is presenting for court that day will identify themselves and say if there is anything pressing the judge should be aware of, such as they have a mediated agreement.
- Prisoners will be called first
The Court Hearing
- All cases listed for the day will arrive at 10am.
- There may be 4 -5 courts running on the day.
- The ‘call over’ will then take place. The ‘call over’ is ‘in camera’ which means members of the public cannot be present. Everyone who is presenting for court that day will identify themselves and say if there is anything the judge should be aware of (this might be that the parties have mediated an agreement).
- Once your case number is called (only your initials will be used to call your case), the Judge, the applicant, the respondent, along with any legal representatives, and the registrar will be the only people in the court room.
- The case will not be heard unless both the applicant and the respondent are present.
- Children will not be allowed in the court room.
- A ‘statement of arrangements’ will be required from both parties. This is a document which sets out the arrangements for the children such as where they live, who they live with, what access arrangements are in place, where they go to school etc. The form can be accessed at courts.ie. You must complete this form if you are seeking maintenance, as well as the Statement of Means.
- Both forms must be brought to court on the day and they will be filed in the court.
- If an order for maintenance is made by the court, and the respondent does not pay, then you must, as the applicant, return to court and seek a new application and start the process again.
Family Law Matters and Legal Representation
Court Reports in Family Law
A change to the Irish Constitution, following the 2012 referendum, made it a requirement (in circumstances where children are of requisite age and maturity) for the “voice of the child” to be heard by the court in proceedings which affect them. The judge must take their views into account, while always focusing on the best interest of the child. The best interest of the child may not always be the same thing as what the child wants, but the child’s view will be heard.
Article 42A, which was inserted into the Irish Constitution, strengthens the position of children in legal proceedings, and gives them rights of their own, including in family law cases.
Article 42A includes the following statement:
For more information visit:
One of the ways the court will hear information about the views of the child is through particular reports it can order to help with its decision making.
The main reports are set out below:
Section 47 Reports
Section 47 of the Family Law Act provides for “Social Reports in Family Law Proceedings”. Section 47 reports are intended to provide the court with information, in writing, about anything affecting the welfare of someone the family law case is about – they are usually about the children and will generally include recommendations to the Court that assist the Court in making orders in relation to matters affecting children. Section 47 reports are mainly used as part of Circuit Court proceedings. There are no regulations setting out who can conduct Section 47 reports, neither are there any minimum qualifications required of persons who carry out these reports.
Section 32 Reports
Section 32 of the Children and Family Relationships Act 2015 provides that the court can request an expert report on any matter affecting the welfare of the child, and can appoint an expert to determine and convey a child’s views. There are regulations which set out who can be an expert for the purposes of a section 32 report, and the qualifications and experience they must have.
Section 20 Reports
Section 20 reports are carried out by the HSE/Tusla by Social Workers under the Child Care Act 1991. Tusla may also commission an outside agency or individual to carry out aSection 20 report. Section 20 reports are concerned with the welfare of the child and any involvement the family may have with Tusla, including any supports provided or planned.
Children meeting with the Judge
Sometimes judges will meet with children in their chambers to speak with them directly, if they think this would be in the child’s best interests. This will depend on the children’s ages and level of maturity.
Enforcement Order
If a parent or guardian has been granted access or custody to a child, and that access or custody has been unreasonably denied, an “enforcement order” may be obtained.
This is a new provision of the Guardianship of Infants Act 1964 (Section 18A), inserted by section 60 of the Children and Family Relationships Act 2015.
Legal aid is available to take proceedings for an enforcement order subject to the normal rules.
See the Legal Aid Board website for more information on Enforcement Orders for access and custody.
Further information
How to decide custody and access
- arranged informally between the parents,
- worked out in mediation, and then made a rule of court, or
- the arrangements can be decided by the Court.
Benefits of Access and Custody Arrangements by Agreement
In general, if arrangements for custody and access can be made by agreement, or in mediation, it is a calmer and less stressful process than going to court.Mediation can be particularly helpful in coming to an agreement on these issues.
Deciding by agreement, whether between the parents or using a mediator, allows the parents to decidewhat is best for their family in its new form. The agreement can then be made an order of the court and becomes legally binding.
The alternative is to hand these decisions over to the Court which has no knowledge of your family but must make decisions about it if you cannot.
Legally Binding Arrangements
Arrangements for custody and access for separating and divorcing couples become legally binding when either the deed of separation (separation) or decree absolute (divorce) is formalised.
Where the parents were not married, the access and custody orders provide certainty about the arrangements and are binding, that is, the parents must comply with them.
If Court Orders are in place, but are not complied with by the parties, they can be brought back to the court for being in breach of the order. Orders can be varied by the court if circumstances change.
Custody and Access – Legal Issues
Custody
Custody is having responsibility for the day-to-day care of a child or children. Deciding about custody is deciding where the child or children will live, and with whom.
Where one parent has the majority of the care of the children, that is, when the children spend more than 50% of their time with one parent, that parent is sometimes referred to as having the “primary care” of the children, with the other parent having “access”.
In some cases, after marriage breakdown, custody is shared equally, with children living between two homes.
Where custody cannot be agreed informally between the parents, or as part of a mediation process, a parent can apply to the District Court for a Custody Order.
Custody and Guardianship
Custody is not the same thing as guardianship. Guardianship is the legal responsibility of parents to make decisions about their children such as decisions about health, education, and religion.
Married parents are automatically joint legal guardians of their children. This remains the case regardless of who the children live with, and after separation and divorce. In exceptional circumstances one parent may awarded sole guardianship.
Unmarried fathers are not automatically joint guardians with the mother, even if their name is on the child’s birth certificate, however they can apply for guardianship. There is more information in our section on guardianship. If the mother of the child agrees, both parents can swear a declaration making the father joint legal guardian with the mother. This declaration must be done on the proper form statutory declaration (SI 210 of 2020) and must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths. If there is more than one child, a separate statutory declaration should be made for each.
Access
Where one parent spends less time than the other with the children, the term “access” is often used to describe their right to spend time with the children and the arrangement for it.
Unmarried fathers, regardless of whether they share guardianship with the mother, can apply to the court to have access with their child. The application is made to the District Court which will decide on the Access Order. The Access Order may include details of where access will take place, how long it will be for, and who can be present.
In some circumstances the Court may state that the access must be supervised by another named adult, this is referred to as Supervised Access.
An Access Order can also be granted to certain relatives in some circumstances if they make application to the court. Grandparents can apply to the District Court for access.
Same Sex Couples
If your same sex relationship breaks down and you wish to have contact with the child of your former partner (where you are not a registered parent and guardian) you can apply to the District Court for access to the child. The Children and Family Relationships Act, 2015, provides, at Section 55, that a person with whom a child lives, or has lived, can apply to the District Court for access to the child.
Grandparents
The Guardianship of Infants Act, 1964, was amended (by Section 9 of the Children’s Act 1997) to allow a relative, such as a grandparent or grandparents, to apply to the District Court for access to children.
Court Reports
As part of the decision-making process about custody and access, the court may order that certain reports are done to establish the views of the child or children. A suitably qualified expert interviews members of the family, including the children, and writes a report for the court which includes recommendations. The report forms part of the decision-making process. The various reports are described in our Court Reports section.
How to decide custody and access
Enforcement Orders
Pensions can be very valuable assets, and if you or your spouse/civil partner/qualified cohabitant have been paying into a pension for a long time, it could represent a significant amount in terms of the overall assets of the family.
Pension entitlements of the parties to a divorce or separation need to be set out in a court order, and there is a specific procedure for doing this. Your solicitor will be able to advise you on this. Pension rights cannot be shared out without a court order – a separation agreement cannot share out pension rights.
It is important to take advice about pensions and to decide what will happen, including securing the relevant court orders. This is particularly important where there are children and/or other dependents.
For more information see the Pensions Authority guide ‘A Brief Guide to the Pension Provisions of the Family Law Acts’ and talk to your solicitor.
When you are preparing for a judicial separation or divorce, you will have to look at any assets you may have (property, savings and/or investments); as these will be divided between the parties.
You will also need to look at your income, and your outgoings in order to come up with a budget for the family, and to assess what maintenance may be payable.
To allow for decisions to be made on financial matters, each person must make an affidavit of their means, that is, they must make a listing of all of their income and anything they own or have a share in, and swear that it is an accurate account.
The affidavit document is available on the Courts service website.
The affidavits of means will be used to negotiate the division of assets and to decide on maintenance amounts payable.
Separation and Divorce
Types of Separation
When a marriage or civil partnership ends,there are practical things that need to be decided such as the division of any property and money; where everyone will live, how much time the children will spend with each parent, where that will happen, and how shared parenting will work.Attending to the emotional needs of everyone in the family will also be very important.
Separation can happen completely informally and by agreement in some circumstances, but it is better to put things on a formal, legal footing once everything is agreed.
There are two main ways to affect a legal separation:
- Legal Separation by Agreement: where agreement is reached on the matters listed above. This can be done using mediation, or through solicitors’ or
- Judicial Separation: where a judge makes the decisions on these areas following legal representation by both parties.
Divorce
In Ireland, it is necessary to apply to the court for a divorce.
The couple must have lived apart from one another for at least 2 years of the previous 3 years. This 2 year time period applies since 1 December 2019. Before that, the requirement was that people lived apart for 4 out of the previous 5 years.
The Family Law Act allows “living apart” to include situations where people are living in the same home but are not living as a couple in an intimate and committed relationship.
A decree of divorce, once granted, allows both parties to remarry. It does not change joint legal guardianship of any children of the marriage.
Where there is a Deed of Separation in place, this can be used as the basis for the divorce if both parties agree it.
Division of shared assets
Pensions
Family Law
In this section we provide some information on legal matters that may arise for people who are parenting alone, and for parents and guardians who are separating, or have separated, following relationship breakdown.
It is important to note that the content here is not legal advice, and that it may be necessary to seek legal advice. Contact information for organisations which offer legal advice is provided.
