My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Friday, November 27, 2009
A Paradigm Shift?
Family Law is one of the most stressful areas of legal practise not because the law involved is especially difficult or the procedures for application to court inordinately intricate, but simply because the lawyer is dealing with a highly stressed client for the duration of their relationship with one another. Whether we acknowledge it or not this has an enormous impact on our own psyches as people. If we have had life experience that enables us to empathise with such clients, there are specific dangers inherent in this, namely the potential to over identify. This in turn will prevent objectivity making it difficult to direct the client or to negotiate with a colleague in any reasonable way. I am not one of those lawyers who thinks that we should be entirely unemotional to be effective. I find that if I can emotionally relate to a client as well as intellectually I work better and harder for that client. As in so many things it is a question of balance. For many family lawyers and indeed any professionals working with families there is also the danger of an unexamined reliving of one’s own life situation and interpreting a client’s issues through that prism. These dangers are particularly acute if they are unrealised. If we regard ourselves as a different order of being to our clients, distance ourselves with no specific training on how to do that effectively and at the same time be able to connect with the client and confine our role to legal advice then we will frequently be at cross purposes with our clients. Clients cannot compartmentalise themselves and their issues into neat packages designed to meet our professional criteria. We must make our professional criteria mould to the client’s needs. For very many of us family lawyers it is the struggle to meet our client’s real needs within the system in which we work that causes us such stress and at times genuine heartache. Such lawyers should welcome the opportunity to learn and embrace a new way of solving the sometimes difficult and intricate problems arising from a family breakdown. All you have to lose is your frustration and stress .....your choice!
Wednesday, November 25, 2009
Making a Will...
It is important not to wait until you are sick or dying to make a will. This is because a will needs to be carefully thought through and planned both from a family perspective and from a tax perspective. This is unlikely to happen when you are sick or dying.
If you become separated and/or divorced, it is very important to revisit the terms of a previously made will because your status has now changed and it may be advisable to alter the provisions and terms of the will and to rethink same. If you become or are a single parent it is extremely important to make a will.
All wills, no matter your particular circumstances, need careful planning and advice and you should take legal advice. The actual drafting of a will and the execution of it to ensure that it meets legal requirements is complicated. Many a homemade will has fallen because of the very strict requirements. Our advice would be that saving money in this way is false economy when it involves such an important document and you should consult with a solicitor.
Husbands and Wives are required by law to leave at least 1/3rd of their assets to the other. Property in joint names is excluded since under law it falls to the survivor automatically. If a husband or wife dies without making a will, 2/3 rds of the deceased property goes to the surviving spouse by law and 1/3 is divided equally among the children. If there are no children and no will everything will go to the surviving spouse. On the face of it this may seem fair enough however, it does not take account of any particular circumstances that may exist in individual cases and will not suit many families.
Children do not have an automatic right of inheritance from their parents in the same way that spouses do from each other as outlined above. However, the law does provide protection for children. Children can make an application to the court challenging the terms of a will where there is none or limited provision made under the will for them. Many such cases are successful. However, such an application can often lead to serious family disputes which frequently carry on long after the case itself has resolved. A court dispute will also incur substantial costs all of which could be avoided with proper planning.
Unmarried parents have no inheritance obligations against each other as the law presently stands however if the Civil Partnership Bill becomes legislation this will change. The children of unmarried parents have the same inheritance rights as children born to married parents, ie they have the same right to make a claim against either parent’s estate.
Wednesday, November 11, 2009
The Civil Partnership Bill 2009 if enacted would establish a statutory civil partnership registration scheme for couples in same sex relationships. The provision to register a civil partnership is confined to same sex couples. Co-habiting opposite sex couples come under separate provisions and I will come back to those in a later paragraph. Returning to same sex couples, however, such registration would have the effect of conferring rights, protections and obligations on those couples very similar to those of married couples. Areas covered include, but are not limited to, the home in which the couple reside, pensions, maintenance, violence and inheritance. The Bill defines who qualifies as a civil partner for the purposes of registration. It also sets out the manner in which civil partnerships may be dissolved. Clearly there is no obligation to register and even if a couple are not registered the Bill still seeks to provide protections for such a couple in the event of their relationship breaking down. Such provisions apply both to cohabiting same sex and opposite sex couples. In one crucial respect however, the Bill differs from matrimonial legislation and rights consequent thereon, it makes no provision for children living with same sex couples. This is a glaring omission. Such children will have no voice in the event of a breakdown of the couple’s relationship and their needs will have no legislative recognition. For example, a child/children who have grown up in a same sex couple relationship from a very early age and who find themselves some years later without any contact with the non biological parent because of a relationship breakdown may suffer unnecessary hardship as a result. Constitutional provisions are cited as the reason for this but that explanation is simply not good enough and somewhat of a cop out. The rights of children must always be a priority no matter the difficulties. Since the Bill has yet to be enacted there is still a small window to try and effect change here for those interested .
For those who are unregistered, the Bill proposes the establishment of a redress scheme. This would enable a financially dependent partner to apply to court for various reliefs arising out of the death of a partner or the end of that relationship. The bill also makes express provision for the recognition of cohabitation agreements. Such agreements would set out the manner in which the couples affairs are to be dealt with in the event of a dissolution and would enable them to contract out of the legislation.
The definition of co- habitees does not include couples who live together and are relatives. Co-habitees are couples of same or opposite sex who are in an intimate and committed relationship who are not related within a probited degree of relationship and who are not married to one another or registered as civil partners. Under the provisions of the Redress Scheme, the Bill, if enacted, will allow cohabitees, whether same or opposite sex, to apply for maintenance, protection of shared property/home, pensions and succession (inheritance) rights. The normal domestic violence provisions will also be extended to co-habitees. Some relief is presently afforded under our Domestic Violence legislation to non marital couples but this has been widely criticised as not being broad enough and restricted in unpalatable ways. It is after all in the public interest that everyone would be safe in their own homes and protected from domestic violence, whether married or not. This Bill finally leaps that hurdle. Rights under the Redress Scheme will arise after 3 years in the case of a couple without children and 2 years in the case of a couple with children.
The Bill will go into its second stage this month as mentioned already. In its present form it is likely to be keenly debated. It falls short of providing equality between married couples and unmarried couples and is probably best described as a half way house. It does however provide a much needed legal safety net albeit somewhat less far reaching that might be hoped.
It is worth noting that same sex couples and co-habiting opposite sex couples can avail themselves of the wonderful opportunities now available under the provisions of alternative dispute resolution. The time to enter into such agreements is when you are embarking on the adventure of your relationship. This is when you will want to do the best by one another and when your reasoning powers will not be impaired by the vulnerabilities that are dominant when the relationship breaks down. This is the opportunity to make proper provisions for any dependent children. The collaborative model in particular offers a fantastic opportunity to couples embarking on a committed relationship to enter into a legally binding agreement. Collaborative practitioners are committed to interest based bargaining rather than position based bargaining and to enhancing communication rather than fracturing it. They are specifically trained in such skills as well as their legal skills. Most collaborative solicitors are also mediators and bring those skills to bear on the issues. Collaborative solicitors work with each other in a co-operative and team like manner to bring about solutions and resolutions rather than to escalate disputes. There is no correspondence and no positioning and all business is conducted on a face to face basis. No work is undertaken without discussion and transparency is a hall mark for everyone in the process. Besides the lawyers, collaborative practise also extends to other professionals who can be employed by the team on a needs basis such as communication specialists (collaborative coaches) child specialists and financial specialists. All team members including the parties work together in a non-hierarchical structure but to a well laid out and co-ordinated plan. No all solicitors are collaboratively trained. For a list of qualified practitioners consult the website www.acp.ie.
Friday, November 6, 2009
The First 7-Way Collaboration ....
My first collaborative case was a positive experience in many respects. Our definition of success at that time might well have been largely confined to whether or not we brought the case home. I cannot put my hand on my heart though and say it was a transformative experience. I had a great client who was exceedingly grateful that she was afforded an opportunity to settle her affairs in a non-confrontational manner so I was very lucky. I have asked myself many times since then whether or not my niggling sense of disappointment about that and many cases since then is based on my own unreasonable expectations of this process, that is until very recently.
Meanwhile, I did my research into the coaches and found out who they were and tried to get a handle on what they might contribute. I attended sufficient workshops and read books and acquired a good idea of what they might contribute. We trained mental health professionals in Cork and started to work with them. We tried many permutations and combinations and still I was dissatisfied. Then about 18 months ago my colleague Helen Collins and I set up the West Cork Collaborative Practice Group. At the time of its inception the WCPG (now called “Pathways”) was unique in that it had more members from the non-legal community than from the legal community. From the outset this set a different tone and standard in West Cork than elsewhere. Helen like myself was convinced from the time of her training that coaches were an essential ingredient without which we should not practise however, I did persuade her to take a case with me for which we had one coach, the much lamented late Cormac Lankford. Cormac like ourselves was dipping his toe into the water and he was operating as a sole coach without the faintest idea of the one coach model which it subsequently emerged was quite different to what we were doing at the time. In any event Helen and I did bring that case home. Still we were not entirely happy....
Pathways talked at length about the need for all of us to be confident that we were saying the same things to the clients and how we might structure that. We also spoke a great deal about screening, finding out which clients were suitable for the process and which were not. We all believe in this way of working and so we want it to succeed both for our clients and for ourselves. As practitioners working in a tight community, we are conscious that failure for whatever reason does not send out the right signal. As a result of these discussions we decided on a way of practicing in West Cork. It is our experience that family law clients tend to come to lawyers first rather than to any other practitioners. We collaborative lawyers were then trying to interest the client in this way of working as well as screen them for suitability, give legal advice and manage them emotionally. As a package this did not work and so we decided that a better way of handling this would be for the lawyers to see if the clients were interested or not, give them a handle on what would be involved in this work and then refer them to a coach who would do the screening before the clients signed up for anything. This works for our point of view and from the client’s point of view. For us, it means that we lawyers have another opinion as to client’s suitability but most importantly the difficulties we are likely to encounter in this particular collaboration. This affords us an opportunity to plan and strategise to maximise the possibilities of success. From the client’s point of view it is a far less expensive way emotionally and financially of finding out if they are suitable to do this kind of work then starting it and then discovering their lack of suitability. Another unintended bonus of this method is that it allows us lawyers to offer a client a viable and inexpensive way for them to get their spouse to explore this option. It is much easier to persuade a reluctant spouse to go to a coach to talk about the marriage than to go to a Solicitor or lawyer. Once the coaches have reported back to each other and to the lawyers about the clients, the lawyers and the coaches can then work out a case strategy. Quite often the clients will continue with the coaches for a few weeks or more to do a personal mission statement and a joint mission statement. This is another Pathways practise and it is invaluable. The experience of doing a mission statement focuses the clients on what is important to them individually and as a couple. It is their first exercise in trying to agree something and it starts the dialogue between them which will then continue with their lawyers. The mission statement is sent to the lawyers and the lawyers work can then commence. At that stage the clients will sign the Participation Agreement but the reality is they have already heavily invested in the process emotionally at that stage. Later, when you find yourselves in difficult choppy waters in the course of the collaboration which you invariably do, being able to re-read the mission statement to the clients can have a great effect in bringing them back to basics. When Helen and I work together, we like to sometimes just wind up a meeting by reading the mission statement.
Every community have its own cultural norms and difficulties and an important task for each practise group is to look at the personal difficulties that their group will encounter and try and find practises that meet those cultural norms and difficulties.One such that we experience here in West Cork and which may be common to all cultures are the “people outside the tent”. People outside the tent are generally family members or friends who do not understand the collaborative process and when their loved one talks to them find it difficult to get a handle. Such people are naturally concerned for their loved one and quite often angry with the partner for the hurt they are causing and as such they will usually position strongly to the detriment of the collaborative process.
We have talked about this problem and have come up with a solution. We invite the adult children of the couple or extended family eg in laws, parents or best friends to come and meet with both lawyers and coaches before we start so we can explain the process to them and what the couple will be trying to achieve and the sort of support they might give. This acknowledges to those people the importance they have in the life of their loved ones and tends to mollify them somewhat and it explains the process to them and ensures their understanding. An unintended though obvious benefit is that it extends the knowledge of collaborative process further into the community.
An important part of the extended family and network understanding would be that just because this process makes sense and has high aspirations , it does not mean that the couple who are engaged in the process will always be well behaved and rational in their approach. People are people no matter what process they are involved with and this is emotional stuff.
Another issue that concerned us very early on was how the advent of a third party love interest in the middle of a collaboration had the potential to destabilise the process. After much discussion we decided that an intimate relationship arising either before or during the process which was not known by the other party had to be disclosed in the same way as financial matters are disclosed. However, even with the disclosure if there are no coaches it may still prove too difficult for the lawyers to handle the emotions that flow from this event.
Several cases and many learning outcomes later, I had still not arrived at that elusive transformative experience until Helen and I decided to take on a case that caused us much trepidation. We had no expectations of this case and in fact our whole focus from the outset was just to get these clients from A to B which as far as we were concerned would in itself be a major achievement. This was a marriage of long duration within a tight knit small East Cork community. The hurts of the marriage were very deep for Hannah, the wife. The husband, John, in contrast could not see any reason why the marriage was ending. He had little insight into his wife’s hurt and if he had knowledge of it he certainly had no sympathy with it. He was not a man given to self reflection. He was a man deeply devoted to his two children. He worked extremely hard and always had and felt he had fulfilled his part of the marriage contract fully. Hannah, as is often common in these situations, felt unappreciated and disrespected. She felt that there was no real communication between them. She decided to return to her former profession which she had stopped on marriage as was common at that time. She found in work the stimulation she had been lacking and started to come out of herself and integrate in her community. John saw no reason for the return to work and was threatened by it. Ultimately Hannah decided to call time on the marriage. This perhaps compounded a sense of growing victimisation on John’s part and that combined with his natural personality made him a very difficult client to handle. Much of what he heard from us about the process made little or no sense to him and I think he thought that much of it was only so much hocus pocus. He just wanted to get it over with since this is where he found himself not from any choice on his part. Persuading this man that he needed a coach was very difficult indeed but we succeeded. In the beginning, John found it difficult to see the point of the coaches especially the idea that he needed to attend with them regularly. He went in the beginning, got together with his wife and did their joint mission statement and I gather from the coaches that was no picnic but then his attitude was well thats that, I am finished with them and now the lawyers need to finish up this show.
When we told him that we were planning on keeping the coaches involved in each meeting, I thought he would leave but he stayed with a great deal of fussing and opposition. She, by contrast, had no difficulty with the idea of the coaches and fully understood why we needed them but at the same time could be extremely positional when it came to property and financial issues and did not recognise this in herself. She had been uninvolved in the family business or finances to any great degree and that lack of understanding made her wary of her husband and money and translated into her adopting strong positions around the finances. Getting her to communicate with him in a non-aggressive way about money was very hard. And so we started. At the first meeting John announced that he was taking on a new partner in the business. This was the first anybody heard of this including his own solicitor and it did not press the right buttons with the wife. We decided we needed a financial specialist and then we had the job of persuading him that we needed a financial specialist. We succeeded with the help of the coaches. The second and third meetings had to re-scheduled two and three times while John went incommunicado for reasons that were never made quite clear but which did not inspire confidence in Hannah. While this was going on Hannah was threatening me that she was going to walk if he did not show up to the next meeting. With the help of the coaches the show stayed on the road. At the 3rd meeting John said that his business was doing extremely badly and he had now decided to close it. At this point we decided that we needed the financial specialist at every meeting from that point forward. That was the best decision we ever made. Bringing a male financial specialist balanced the energy at the meetings. Put more simply, John had another man to relate to which for a man like him was key. Prior to this John would come to every meeting with a “puss on him”. This is an Irish expression for a sour face. Hannah would come with an expression of scepticism. It did not make for happy encounters. Being surrounded by a gaggle of women only compounded John’s sense of the whole business being a lot of old.... but when the FS appeared that all changed. The FS was a man slightly older than John who was clearly a man’s man but who also clearly thought this process was worth pursuing. John’s demeanour changed remarkably over the next 3 meetings. He became more forthcoming which in turn made Hannah less suspicious. Hannah was able to have many of her financial questions answered by the FS who did not mind a bit being quizzed unlike John who saw his wife’s questions as accusations of dishonesty.
Both parties started to relax. And then the miracle, the transformative moment, John made a gesture towards his wife that none of us would ever have thought possible and from that point on even though none of us dared to speak it, we knew we would bring it home. In the end, we did not just bring it home though the 7 of us cooked up a storm for this couple and their family. Our combined energies created a truly deep and lasting resolution. At our last meeting John turned around and said that he could now see how different this process was but what we did not tell him was, so could we!
Thursday, November 5, 2009
What to do ????- The breakdown of a marriage or a relationship?
What are my options? There are a number of ways to sort out your family matters. I have listed them below with a short explanation of each:
Solicitor Negotiated Separation Agreement
Two firms of solicitors representing each of you hammer out a deal by telephone conversations, correspondence and maybe a meeting to finalise. The manner of negotiation will be adversarial in style. It generally starts with correspondence which sets out each side’s position in styles ranging from openly aggressive to detached professional. Once the positions are established, one side generally suggests that an attempt be made to negotiate by suggesting a meeting or putting forward a proposal. Each side will then try and get the better deal for their client by inflating or deflating their positions until a deal is arrived at. The cost of this way of resolving your family situation varies widely as sometimes a deal can be obtained relatively quickly and sometimes it can many months. Costs calculations are largely made up of a combination of time and effort spent on your case.
Collaborated Family Law Settlement
Collaboration is a relatively new way of resolving family disputes. To work in this way your solicitor must be specifically trained. To find out who is trained you should access the website of the Association of Collaborative Practitioners (www.acp.ie). Collaborative Solicitors will work in a team- like way with both of you. First of all you will meet with your own solicitor and spend some time with him/her discussing how this process works and deciding if it is suitable for you. Then if everyone is comfortable, you and your partner/spouse will come together with your respective solicitors for a series of round table meetings. In between times the solicitors will meet with each other and with each of you to establish your needs and the needs of your family moving forward so that solutions can be arrived at. This way of working is non-adversarial and solution orientated. Bargaining is on the basis of each of your needs rather than by taking a stance or position. It aims to preserve civility and respect between you allowing for productive future communication. This has enormous benefit where children are concerned or where there are extensive family networks, friendships or work relationships that must be preserved. Collaboration is a cost effective way of working both emotionally and financially.
Mediated Family Settlement
A mediator is appointed by both of you to help you to resolve matters. The mediator must be neutral and does not give advice. The mediators job is to ensure that both of you get means and opportunity to be heard by each other and to establish your requirements going forward. This process enables both of you to arrive at solutions to your difficulties. Mediators are specifically trained in the art of mediation but they may come from varied walks of life. Many solicitors are now mediators . The important thing here is to establish that your mediator is an accredited member of the Irish Mediators Institute.
This is also referred as litigation. It is expensive and is generally not family friendly. The process of going to court very often gives rise to belligerent correspondence which inflames rather than dampens emotions. The court process tends to be long drawn out. These factors can make this a very hard road for children who are often in the background rather than the foreground of their parents’ concerns during this period. Judicial Separations or Divorces must be dealt with by the Circuit Court. The District Court can deal with maintenance matters, issues concerning children and domestic violence. Property, inheritance matters, pensions, insurances and any other issues involved in a separation will be dealt with by either the Circuit or the High Court.
Selecting a Solicitor