The Circuit Family Court – Practice & Procedure FAMILY LAWYERS ASSOCIATION
11th November 2021
[Speaking notes -Keith Walsh Solicitor]
Introduction:
1. Wider angle – decimation of civil litigation practice for general practice with reductions in
Personal injuries litigation – survey most solrs firms believe individual fees will drop by 2/3
per case.
Will these firms migrate into family law ?
Is family law part of the new general practice along with conveyancing, probate, general
litigation
2. The solicitor – barrister model works
3. Some general comments from E. Davy which I quote in agreement:
‘The appropriate practice and procedure in Separation and Divorce cases should not be
followed blindly and rigidly. Everything should be seen in the context of the big picture and
in any family law case the big picture depends on what the client wants and what is
realistically achievable for the client. Each and every client is unique and each has his own
unique set of circumstances. The first consultation in a family law case is crucial and should
be used to establish the special Solicitor/client relationship. Indeed the Solicitor/client
relationship is the kernel of any family law case. In any family law case the client is usually
encountering the worst personal crisis of his or her life. The client has many needs however
the Solicitor can only fulfil one need which is that of a legal advisor.’
Divorce cases can be put into a number of different categories:
a) Straightforward uncontested Divorce Applications. However it is important to note that
even in these cases the Court requires Affidavits of Means from both parties. These cases
can be expedited for Ruling by issuing a Motion seeking Judgment in default.
b) Contested cases which, with proactive involvement from legal advisors, can be settled and
should be settled at an early stage once a full financial disclosure has been exchanged and
valuations (if appropriate) have been obtained.
c) Cases where one or more issue are likely to be very contentious and proceed to a full
Hearing.’
4. Why is family law different to other civil litigation:
a. In camera rule
b. No stamp duty
c. Different names:
a. Applicant not Plaintiff
b. Circuit Family Court
d. Specialist code of conduct
e. Defence & Counterclaim filed unlike most other civil litigation
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f. Discharge of solicitor by client seeking to sue or defend any family law proceedings
needs an order of the court unlike non family law proceedings.
g. Case Progression hearings
h. Orders for costs are rare
S.I. No. 22/2019 - Circuit Court Rules (Miscellaneous) 2019
10.(1) Subject to sub-rule (2), a party suing or defending by a Solicitor
shall be at liberty to change his Solicitor, or to discharge his Solicitor and
sue or defend in person, and any party suing or defending in person
shall be at liberty to appoint a Solicitor without an order for the
purpose. Notice of such change, discharge or appointment shall be filed
in the Office, and served on the opposite party, or his Solicitor (if any),
and on the Solicitor discharged.
(2) Notwithstanding sub-rule (1), a party seeking
to discharge his Solicitor and sue or defend in
person in any proceedings to which Order 59 or
59A applies shall not do so without an order of
the Court, such order to be applied for by motion
on notice to the Solicitor
5. Themes – no orders for costs
6. New definition of ‘living apart’
This recent change introduced in the Family Law Act 2019 has harmonised of the concept of
‘living apart’ for spouses living in the same dwelling in the context of applications for both
judicial separation and divorce.
(a) at the date of the institution of the proceedings, the spouses have lived apart from one
another for a period of, or periods amounting to, at least two years during the previous
three years,
(1A) For the
purposes of this
section—
(a) spouses who live in the same dwelling as one another shall be considered as
living apart from one another if the court is satisfied that, while so living in the
same dwelling, the spouses do not live together as a couple in an intimate and
committed relationship, and
(b) a relationship does not cease to be an intimate relationship merely because it is
no longer sexual in nature
Note: section 2(1)(e) was deleted on 1.12.2019 by Family Law Act 2019 (37/2019), s. 2(1)(a)(i), (ii),
(b)(i), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).
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As with the case of desertion, the requirement that the period must be continuous is
qualified by the proviso per s. 2(1) that no account is taken of any period or periods not
exceeding six months during which the couple resumed cohabitation provided that such
period(s) is not counted as part of the period that the couple were living apart. All the act
requires is a period of living apart, but whilst it is silent on the requirement of intention, it
can be assumed that a nonintentional separation caused by illness for example would not
constitute living apart for the purpose of this sub-section.
In MMcA v XMcA (2000) 2 ILRM, in the context of an opposed divorce application,
McCracken J. considered the meaning of ‘living apart’, and stated: ‘just as parties who are
physically separated may in fact maintain their full matrimonial relationship, equally parties
who live under the same roof may be living apart from one another. Whether this is so is a
matter which can only be determined in the light of the facts of any particular case……..the
mental or intellectual attitude of the parties are of considerable relevance’.
7. Divorce - primary legislation – 1996 Act
i. Section 38(1) – concurrent jurisdiction;
ii. Section 38(2) – right to transfer (as amended by Civil Liability and Courts Act, 2004)
◦ “(2) Where the market value of any land to which proceedings in the Circuit Family
Court under this Act relate exceeds €3,000,000, that Court shall, if an application is
made to it in that behalf by any person having an interest in the proceedings,
transfer the proceedings to the High Court, but any order made or act done in the
course of such proceedings before the transfer shall be valid unless discharged or
varied by the High Court by order.”
‘market value’ means, in relation to land, the price that would have been obtained in
respect of the unencumbranced fee simple were the land to have been sold on the
open market, in the year immediately preceding the bringing of the proceedings
concerned, in such manner and subject to such conditions as might reasonably be
calculated to have resulted in the vendor obtaining the best price for the land.”.
Include a clause
The market value of the family home does not exceed €3million
The market value of the property/properties the subject matter of the within
proceedings does not exceed €3million
iii. Venue
Divorce – Section 38(3)
“(3) The jurisdiction conferred on the Circuit Family Court by this Act may be
exercised by the judge of the circuit in which any of the parties to the proceedings
ordinarily resides or carries on any business, profession or occupation.”
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Abbott J. in R.S. and P.S. [2009] IEHC 579, at paras 37,38 considered the
phrase ‘throughout the period of one year’ in the 1989 Act in the context of
considering whether the parties were ordinarily resident in Ireland. Abbott J.
at para 38 appeared to find that in order to be ordinarily resident a person
must be resident in a place for a year, the residence should be one to which
a person intends to return indefinitely despite temporary absences and
there should be some tenure, however slight, of a physical premises, a
residence and the person ordinarily resident on one location has not lost
that ordinary residence by reason of his or her settling in another residence
to the extent that, the residence in which ordinary residence is claimed is
now used as a holiday home. He went on to state that this this does not
mean that the person does not have to be present for 100 % of the time in
the residence. Abbott J. approved his own analyses in R.S. and P.S. in the
later case of E.L. and S.K. [2011] IEHC 557, para 12, a matrimonial case,
when considering the issue of an application for security for costs by the
wife. He stated that in R.S. and P.S. ‘it was abundantly clear that ‘..ordinary
residence would be primarily determined on the basis of the residence to
which a person always intended to return notwithstanding regular and
somewhat sustained absences.’
iv. section 38(6) and (7) – disclosure obligations
(6) In proceedings under section 13, 14, 15 (1) (a), 16, 17, 18 or 22—
(a) each of the spouses concerned shall give to the other spouse and to, or to a
person acting on behalf of, any dependent member of the family concerned, and
(b) any dependent member of the family concerned shall give to, or to a person
acting on behalf of, any other such member and to each of the spouses concerned,
such particulars of his or her property and income as may reasonably be required for
the purposes of the proceedings.
(7) Where a person fails or refuses to comply with subsection (6), the court on
application to it in that behalf by a person having an interest in the matter, may
direct the person to comply with that subsection.
v. Exercise of jurisdiction by court in relation to divorce.
39.—(1) The court may grant a decree of divorce if, but only if, one of the following
requirements is satisfied—
(a) either of the spouses concerned was domiciled in the State on the date of the
institution of the proceedings concerned,
(b) either of the spouses was ordinarily resident in the State throughout the period
of one year ending on that date.
vi. Notice of Proceedings – section 40
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8. Circuit Court Rules
Order 59
Order 59 A
Rule 39. [10][11]
Part III of Order 59 [Case Progression] shall apply, with the necessary modifications,
to civil partnership law proceedings and to cohabitation proceedings, provided that
the references in Order 59, rule 65 to a motion for judgment in default in
accordance with Order 59, rule 34, and a motion for an order in agreed terms in
accordance with Order 59, rule 35, shall in such proceedings be treated as
references respectively to a motion for judgment in default in accordance with
Order 59A, rule 10(1), and a motion for judgment in agreed terms in accordance
with Order 59A, rule 10(6), and the Forms 37L, 37M, 37N, 37W and 37X modified
accordingly shall be used in case progression in civil partnership law proceedings and
in cohabitation proceedings.
[10] Order 59A rule 39 substituted by SI 207 of 2017, effective 14 June 2017.
[11] Order 59A rule 39 substituted by SI 427 of 2018, effective 31October 2018
Family Law Civil Bill
Accompanying documents
Respondent documents
No return date
Case Progression – Dublin and outside Dublin
Interim and interlocutory reliefs
Disclosure
ISSUES IN PRACTICE & PROCEDURE
1. Compliance with section 6 and 7 of the Family Law (Divorce) Act 1996
2. Section 150
3. Dividing up issues and mediating some of the case
4. Case Progression
5. Delays
6. Changes coming down the track
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Options for getting your Divorce or Separation on for hearing quicker in the Dublin Family Circuit
& the leapfrog option
The Circuit Courts have been sitting and dealing with urgent matters throughout the pandemic and
many Separation and Divorce cases have been dealt with while priority was given to domestic
violence cases. However there remains a significant backlog of family law cases in the Dublin Circuit
for hearing, motions to be listed and case progressions hearings to be allocated dates whether new
case progressions which date from February 2020 or case progression hearings which started prior
to that date but were adjourned during the pandemic.
On Friday 7th May 2021 the Courts Services announced that family law business in the Dublin Family
Circuit was restarting. A three day list to fix dates was held over 5,6 and 7th May 2021 which
allocated dates for hearing in the Trinity and Michaelmas terms as well as some dates outside those
terms. Case progression hearings commenced from the 12th May 2021 and motions before the
County Registrar started on 20th May 2021. All these sittings are taking place in person. A further list
to fix dates will be scheduled during the Trinity term which will allocate dates for the Michaelmas
term. These measures will address the backlog of cases but there will be much activity and work
required to have cases moved on in the coming weeks and months. Solicitors should check the legal
diary and the courts service website regularly for updates.
This article examines the procedures available to practitioners who wish to have their family law
cases in the Circuit Family Court in Dublin listed for hearing.
Until 14th June 2017 the procedure for for having a case listed for case progression was the same in
all circuits. However new Circuit Court Rules were introduced by S.I. 207 of 2017 which consolidated
and reorganised Order 59 and changed the procedure for case progression in Dublin only. Three
main changes were made to the case progression system in Dublin:
1. A leapfrog option was introduced which permitted both parties by agreement to bypass case
progression and move the case directly to the list to fix dates by application to the court
office,
2. The manner in which cases were listed for case progression hearings was changed, it ceased
to be automatic
3. Where a case was in case progression but the parties have complied with all outstanding
matters then the case can be transferred to the list to fix dates on application to the court
office.
A. Bypassing Case Progression Hearing [Dublin Circuit only ]
A Case progression hearing is not required after the filing of a Defence where both parties (i) agree
and (ii) have certified completion of pre-case progression steps in Dublin Circuit only O59r38.
A notice to fix a date for trial can be filed without the necessity for case progression where a
Defence has been filed and both parties have certified compliance with the pre-case progression
steps using the appropriate forms as contained in the new rules- form 37X and 37W. The Applicant
can serve the notice any time after the Defence and form has been filed and served. The Respondent
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can file the notice if the Applicant has not done so within 10 days of filing and service of the Defence
(and provided both parties have certified completion of pre-case progression steps). O59r39.
A notice to fix a date for trial is not a notice of trial and so the date on the notice to fix a date for trial
will be the date of the list to fix dates in the Dublin .The notice to fix a date for trial must be issued
and served on the other side and where pension relief sought, on the trustees of the pension
scheme. The minimum notice for a notice to fix a date for trial is 10 days.
B. Listing matters for Case Progression Hearings [Dublin Circuit only ]
In Dublin once a Defence is filed a Case Progression Summons does not automatically issue fixing a
date for a case progression hearing within 70 days. In all circuits except Dublin the filing of a Defence
triggers the automatic issue of a summons for case progression from the court office. Instead the
following options are open to parties in Dublin:
1. Where both parties have lodged a duly signed joint certificate of completion of the pre-case
progression steps as set out in Form 37W then the County Registrar must list a case
progression hearing and issue a Case Progression Summons (Form 37L) for the next available
date
or
2. Where one party has lodged a certificate of completion by that party of the pre-case
progression steps in Form 37W and has given the opposing party not less than 14 days’
written notice of his completion of the pre-case progression steps and his intention to apply
for a case progression hearing and calling on that party to complete the pre-case
progression steps, then the County Registrar must list a case progression hearing and issue a
Case Progression Summons (Form 37L) for the next available date following the expiry of 21
days from the date of issue of the Summons.
The most common method used to commence case progression in Dublin has been using
Form 37 W and the 14 day notice rather than the joint certificate of completion.
3. If neither party has caused the case progression summons to issue, within 6 months after the
date for filing by the Respondent of his Defence, his Affidavit of Means and, where required his
Affidavit of Welfare, the proceedings shall be listed before the Court for an explanation of the
delay in proceeding with case progression, and the Court may make such orders and give such
directions as it considers appropriate, which may include striking out the proceedings including
any counterclaim or directing the issue of a Summons for case progression by the County
Registrar.
C. Removal of cases from Case Progression (where it has commenced) and fixing date for
hearing -Dublin Circuit only O59r74
Where during the course of case progression, both parties, not less than seven weeks before any
adjourned case progression hearing date, jointly certify completion of the pre-case progression
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steps (in Form 37W) and compliance in full with all orders made and directions given in case
progression and readiness for trial by completing new Form 37X and attaching copies of every
order made and direction given in case progression, the proceedings shall be listed before the
County Registrar to fix a date for hearing, notwithstanding that the case progression hearing is
adjourned to a later date.
The County Registrar must, save in exceptional circumstances to be identified in any order made, fix
a date for the hearing by the Court of the proceedings and vacate any adjourned date for the case
progression hearing.
One other way of getting your case listed in the list to fix dates is to request the Circuit Family Judge
to transfer any case before it for a motion or other application to transfer the case directly to the list
to fix dates. This transfer is usually only done where both sides agree.
The measures introduced by the Courts Service will address the backlog of family law cases in the
Dublin Circuit as restrictions ease but much activity and work will be required to move cases on in
the coming weeks and months. The procedures for having cases listed for hearing without the need
for case progression where all the vouching and other preparatory work has been done should be
used where possible. In addition as cases can be allocated dates for hearing directly from case
progression hearings, the sooner a case is put into case progression, the sooner it will ultimately get
resolved. Solicitors should check the legal diary and the courts service website regularly for updates.
Keith Walsh is a family law solicitor in Dublin and author of Divorce and Judicial Separation
Proceedings in the Circuit Court: A Guide to Order 59 published by Bloomsbury.
