My Blog

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, December 22, 2017

Grandparents – the force that binds.

Grandparents can be the glue that binds families together or they can be a divisive and destructive force.  No where does this apply more poignantly than where there is breakdown or strife in their children’s matrimonial or family relationship.  In my experience when grandparents take up the cudgels for their individual adult children or take sides in a family dispute, it never ends well for the grandparents particularly.  After the dust has settled the vast majority of parents have to rub together somehow for the sake of their children, but estranged spouses specifically if the estranged non-relative spouse is the custodial parent can retain animosity for a very long time towards their in laws now outlaws so to speak.
Just as tact and diplomacy is required in negotiating the parenting relationship from a grandparenting perspective so to is it required in the breakdown of such relationships.  Being supportive of your son or daughter in such situations is not something that should include alienating the other party to the point where you will not have contact with your grandchildren.  Reaching out to the grandchildren through the parent with whom they reside whether that be your adult child or not, is key to maintaining those vital relationships.   Of course, you should do so with your adult child’s full knowledge and consent. 
When a relationship breaks down, children can be forgotten in the conflict.  Of course, everyone pays lip service to the importance of the children but reality is somewhat different 9 times out of 10.  Parents argue in front of their children or in earshot of them.  Parents have inappropriate conversations about the other party with friends and relatives in the children’s presence or in earshot.  Parents deny access for no good reason or are in mean and spiteful to each other for no good reason.  They refuse to give one another passports to take the children on holidays and play brinkmanship up to the last minute all but ruining the holiday for all concerned.  They play hurtful games with each other not responding to texts about where they are taking the children on holidays, allowing the children to have phone contact and not advising of their plans on time or at all.  These are only some of the behaviours I can name – there many more.  Whether or not such parents have any conscious awareness that in seeking to hurt one another, they are also hurting and wounding their children is not entirely clear but the grandparents being a little more distant can see it clearly. Parents locked into this sort of dynamic often view the world through a black and white lense, you are either on their side or not.  The children sit on the sidelines watching getting upset and confused.  It is in this situation that the grandparents both paternal and maternal particularly if they have been close to their grandchildren, can play a vital emotionally supportive role for their grandchildren. 
Research here and abroad shows that grandparents of the noncustodial parent can often be sidelined post divorce/separation. It is important not to allow this to happy for the sake of the grandchildren as well as your own.  A willingness to help will go a long way.  Being a single parent is very difficult even if that is all you have ever been however, growing into that role when you have had another parent is very hard indeed so help with child care enabling parents to continue to work at a vulnerable time, taking children after school or collecting them from school, having them for some of the holidays so that a parent can get a break, would all be most welcome. Having an open door policy for the grandchildren themselves particularly if you live close by or are on the way home from school, would give the children much needed continuity in a changing environment and provide them with the unconditional consistent love they need.  Grandparents who develop early emotional bonds with grandchildren will find they last.  The middle generation is of vital importance in determining closeness.  When grandparents and their adult children are close then closeness with grandchildren comes naturally and easily.
One of the things that I have found most interesting in my reading on the role of grandparents and reflection on it, is that there is a whole language around this that I was not aware of.  The Grandmother Hypothesis for example is a fascinating theory that women often live a lengthy live post menopause because of the important nurturing role they play in grandchildren’s lives.  Another one is Intergenerational Solidarity which refers to the broad reasons why some grandparents manage to get close to their grandchildren and others do not – things such as geographical closeness, flexibility when it comes to technology and using it for communication, frequency of contact and grandparents function within the extended family.  It is important to note however, that caring for your grandchildren as a childminder does not determine closeness.  In this area, it is the relationship itself that determines the closeness rather than any function as such.  Another great phrase is “Ex-Kin Keeper Role”.  This refers to the non-relative custodial parent.  Grandparents can be a conciliatory and stabilising force if they have the wellbeing of their grandchildren to the fore and the wish to stay in contact with them.  Their role can be summed up in Distract and Reassure. 

I have long thought that in collaborative family law practise we should extend our role to provide a communication forum for grandparents with the separating parents and indeed extended family (ie aunts uncles etc) as to how they can help and be a bridge for future communication ensuring the transition for all the family to the benefit of the children.  

Monday, December 11, 2017

Homelessness and Relationship breakdown

I am all in favour of long term strategies to get to the root of a social problem.  On the other hand, when I see an immediate and pressing need, it seems to me that I have to respond to what is in front of me albeit not a long term or satisfactory response.  This pragmatic streak has always caused me to have theoretic difficulties with many of my more idealistic reforming friends who see me as shoring up a tired and unworkable system with this approach. Rationally, I know they are right but when an individual need presses itself upon you, are you supposed to turn away because it does not fit with long term strategies?  I am prepared to live with my inconsistencies!
Such a difficulty is presented with homelessness.  Focus Ireland say we have a broken housing system. Trying to get your head around that is very difficult especially when the complexities which give rise to the problem are so many and so intricate.  As the crisis seems to just get worse and worse, I get overcome with the enormity of it and a feeling of hopelessness.  I think a lot of people feel like this about national and international crises and we assuage our feelings of helplessness by throwing some money at the problem, particularly, around Christmas.  Don’t get me wrong, I am not at all adverse to helping people with a donation for a coffee or sandwich though I have heard people say “Oh they will just spend it on drink”.  So judgemental as if everyone homeless including the 3194 children were all drunks and drug addicts.  However, we cannot just sit on our hands wondering what we might do and then doing nothing really because it is all too big.  We cannot allow more people to die on the streets while our government sits idly by doing what seems to be way too little way too slowly and making inhumane comments like our problem is small compared to other countries.  When have we not seen ourselves as special?  We Irish might be idiotic in our self-regard but we have never seen ourselves as the same as everyone else.  We see ourselves as the most welcoming, the most-friendly, the best educated young population, the best place to raise children, the funniest, the most intelligent, the most literary, the most charitable and I could go on and on.  It must be because Leo Vradkar does not understand this about us that he made such an insensitive comment!  Yesterday, a Cork woman died on our streets who was 40 years old.  She was homeless and I do not know her story.  I do know that 40 is too young to die and the circumstances of her death might have been avoidable as they might have been for all the other people who have died on our streets in the last few years.  Since I heard this I am trying to find an angle for me to establish a foothold within this problem so that I can have a perspective on it which is not just about throwing money at the odd homeless person who crosses my path.
I work in the area of marital and relationship breakdown.  A large number of organisations working with homelessness, identify homelessness and family or relationship breakdown as connecting factors.  Few enough identify divorce/separation or breakdown as the only cause but as one of the contributing causes leading to homelessness. Post marital or relationship breakdown many people find themselves on the private rental market.    In Cork as in most other areas of the country the rental market is rapidly growing out of people’s financial reach and these are people who are working, let alone those who find themselves newly poor or those on welfare.  We can rant about greed and the lack of regulation of the private rental sector and we would probably be right on both counts but that does not solve the immediate difficulty for the person suddenly homeless.   Right now, it is true that the biggest increase in the homeless statistics are families as opposed to single adults with a rising number of children.  Of those families the majority are single parent led and of those the majority are led by women.  How did those women get into this situation?  Many by virtue of domestic violence.  At this time the powers that be do not count the women who are in refuges as homeless which has resulted in such women being discriminated against when it comes to housing. Abuse victims can find it hard to be put on the housing list and they can also have a difficulty showing they are homeless as they are sometimes joint owners of a home or renters of property.  That is something that we can rectify easily.  Family Lawyers can lobby to change this and to ensure that all national agencies involved with families compile statistics on domestic violence which will help us form realistic policies.  Traveller and migrant women face particular difficulties that place them in risk situations that can easily be identified and catered for once recognised as present.
There is little doubt that increased investment in social housing is vital but that takes time.  We also need provision of short term accommodation spaces to include provision for women only particularly women who have been subjected to domestic violence and rape.  We need a referendum which would put the right to housing in the Constitution thereby making sure that Governments cannot ignore this issue despite their term of office being only 4 years.
Research in Canada shows that post separation/divorce/breakdown 40% of women are in a worse economic situation than previously and are three times more likely to live in poverty.  Women leaving marriages often face challenges that are most common to them as women such as a broken career pattern, children living with them and their needs, care of elderly, unequal labour market particularly in the lower paid sector, refusal of landlords in Ireland to accept social welfare rental supplement and so on.  In addition, the trauma caused by relationship breakdown can bring on a mental crisis.
Settlements in marital breakdown or relationship breakdown do not have to virtually pro forma.   We can tailor them to your needs.  It is important that people understand that the family home does not have to be sold post separation or divorce.  There is no legal requirement to do so.  It is also not true that the wife gets to stay in the family home and the man must inevitably leave.  Courts will look at individual circumstances and needs which is why there are no hard and fast rules in the legislation governing these areas but Judges do have to be guided by case law (court hearings in higher courts) and what the family law statutes indicate the should take into account.  It is possible, however, to reach settlement agreements and happily there ae now a range of ways to achieve that.  Collaboration is one of them and it combines lawyers who have mediation skills, collaborative skills per se and lawyer skills in one package working in a team.  Mediation is another method which is a very adaptable style of working and can be reconfigured to suit individual family needs.  We also offer Managed Negotiation, lawyer assisted mediation and settlement talks as ways of coming to solutions without going to court.  A calm approach which takes advice at an early stage is key and keeps legal costs down.  The Legal Aid Board has many trained mediators and collaborators and people availing of their services should ask about them.  Private lawyers also offer this service but clearly at a cost, however, that cost is a lot less than going to court and the emotional cost is considerably less

Tuesday, November 28, 2017


We associate Christmas for the most part with families and most especially children. Being a parent in a recent divorce or separation can be particularly challenging at this time of the year. Children look forward to Christmas for months in advance and depriving them of this joy by making them dread this time of year is something no parent would want. 
It is particularly important to have the conversation about time over Christmas early. Early is not two weeks before, it is 3 months before. Unfortunately, many people leave it until December to talk about this and by then it is way too late. Arrangements have been made and if there is a profound disagreement, the courts will not entertain you at this point as their lists are already full. 
Too often the conversation about Christmas happens flush with Christmas when emotions are running high and it is difficult for that conversation to take place in an even handed way. If you have the conversation earlier when the days are not so cold and no Christmas decorations have appeared, it is an easier talk. 
How should you start the conversation? Before embarking on this, however, ask yourself – what kind of relationship do I have with my ex? Is it civil or do we fight at the drop of a hat, maybe we have not spoken in years and maybe all our communication is by text? Depending on the answer to these questions, you might, if the relationship is civil, for instance, ask him or her for coffee to discuss a child related matter. On the other hand, if you are ‘daggers drawn’ then such a conversation might not be feasible but perhaps a well-crafted letter might be considered or alternatively the assistance of some mediators or collaborators to help you both to work out an agreement. The benefit of using mediation or collaboration to assist with such a discussion is that it could lead to an overall improvement in your communication as parents which can only benefit your children. I am a mediator and a collaborative lawyer and I sometimes ask my clients to let me review their written communications before they send them, not so that I can change them, but so that I can, with an objective eye, remove anything likely to inflame rather than calm. I always say to my clients, whether they are writing a text or a letter, that they should not write anything they could not imagine a Judge reading or they would not want a Judge reading. 
If you are lucky enough to have a civil relationship with your ex or to be on speaking terms at least, then you might well want guidance on how to broach this conversation once you have got them to the café. A mediation trick is to use what we call the commonality to open the subject.  Commonality is what we i.e. you and ex have in common and given the topic here, that is your children. So, you start each and every conversation with your children. Why would you do that?  People soften when they talk about their children and that will make the conversation flow better on both sides. Having talked about school, sports or recent achievements, it is a very good idea to emphasize what a good job you think the other parent has done with the children and that you know how much he or she loves them. It is then a good idea to say how much you love your children and try and get an explicit acknowledgement from the other parent that they know that is so. You may have to travel around the houses a bit in this conversation. Once you have that acknowledgement you might then say how much you miss your children and how much you would like to spend some time with them over Christmas. It is never helpful in this type of conversation to talk about rights. No matter how tempting, do not approach this from a rights perspective. The only rights that a Judge is likely to take seriously in this context, are the children’s rights. Women have no difficulty showing emotion generally, but many men do however, when men show emotion around their children and express themselves from their heart, it can be the breakthrough that is needed between parents at loggerheads. Now obviously if you and your ex are ‘daggers drawn’ or have not communicated in any form for a long time or only by text, then such a conversation might prove too difficult, so I suggest that you seek help early i.e. early September at the latest and see if mediation or collaboration might be an option. When you do reach agreement by whatever means whether you and your ex do it together or with the assistance of a mediator or collaborator, the agreement needs to be written up signed and witnessed. Collaborators will do this automatically since lawyers are involved in collaboration and generally speaking mediators will also send their clients to solicitors to draft the agreement. There is a danger, however, that if you sort things out yourselves that you might not write it up and that would be a mistake. 

While I say that September is the optimum time for this conversation, I would still encourage you to try and get something sorted even if you have not tended to it until now – at least try and use whatever assistance you can get by way of collaborators or mediators.  

Hurricane Harvey

 Reading the news in the last few days, I note that the reality for many people caught up in Hurricane Harvey is that they will never again be able to go back to their homes which will, it seems, have to be demolished.  Of course, there are far worse things that can happen but it is still pretty devastating.  When we hear about something like a flood, earthquake or a tornado and the destruction that follows natural disasters, we are brought face to face with the human price of such terrible events.  But people lose their homes as a normal part of life every day of the week.  Marital or relationship breakdown is a normal part of life.  Sometimes, the consequences of relationship breakdown can be avoidable with a little bit of forward thinking or as we, alternative dispute resolution practitioners (mediators, collaborators etc) like to say future planning.
One of the questions family lawyers get asked all the time is what will happen to our house or will our house have to be sold?  It is not inevitable that the house would have to be sold and it is not inevitable that it should go to one or other of the parties, leaving the other with nothing.  In fact, that latter scenario rarely happens these days in any situation.  However, with rents spiraling out of control and some marital or family houses still in negative equity, it can be a rough ride to figure out what to do when the relationship breaks down? 

Experienced family lawyers will discuss a menu of options with their respective clients.  Collaboration is one such option amongst several which works with you and your partner/spouse to calmly review all the options available and select what makes sense for the family as a whole. Everyone is part of the discussion at the same time and everyone is resolution focussed.  We call it the synergy of team and it can be transformative.  Difficult life decisions and hard choices are best handled sensitively with a dedicated team.   Don’t despair when presented with such a situation, take some time and get the right advice.   

Wednesday, August 30, 2017


The World is holding its breath while North Korea taunts the US President.   Headlines tell the World, meaning, the Donald, to exercise restraint.  President Trump does not appear from experience so far to do restraint.  How easy is it for any of us to exercise restraint?  Not very easy at all particularly if we are in a crisis of some sort and particularly one which touches us right at our core. 
I know from practising family law over many years that restraint is a virtue in short supply in this area at any rate.  And yet restraint is key to our coming out the other side of relationship breakdown intact and with our family and values intact.  What happens if we don’t exercise restraint?  Complete chaos to put it in a nutshell.  If a partner tells you that he or she is seeing someone else, will it help to thrash their car, clothes, lock them out of the house, scream and rant in front of children – no, of course, it won’t!  It is nonetheless a fairly typical response. It is, however, a damaging response particularly for children.

What can we do in the event of a relationship breakdown to ensure we do not “lose it” with disastrous consequences, and that we behave with restraint?  Well, first of all, we should acknowledge that we need help to deal with this. A good lawyer is essential, as is a good counsellor.  Pick a lawyer who is not going to escalate the row as all that will do is cost you more money than it needs to and alienate everyone so that healing is nearly impossible.  Your lawyer should be able to tell you all about the fabulous alternatives that are now available instead of going to court.  Alternatives, such as mediation, collaboration, managed negotiation.  There are many and varied ways of practising each of these processes or “actions” as I like to call them. It is important that you pick the right one for you with the help of your team.  Of course, your lawyer will also know all about the traditional routes as well, however, these tend to be expensive and not always suitable. You should make an informed decision, calmly.  As well as your lawyer, you need a good counsellor to see you through. Talk to your lawyer about this.  

Thursday, February 2, 2017

Dogs and new tricks

If you are unfortunate enough to have your marriage end when you are in your 50s or 60s and sometimes even 70s then with that stick in the mud attitude, your road ahead will be much tougher than it needs to be. However, if you still see life as a journey with learning involved in every crisis and at every juncture, then marital breakdown does not need to be harder for you than for others half your age. Family breakups are always tough but we can make them harder than they need to be. Remember the Borg in Star Trek who said “Resistance is Futile”? It is not so much that you should not resist, as that you should be resilient and to a degree flexible in your approach to this and probably every crisis in your life. And so, marital breakdown does not have to be a screaming match with everyone behaving at their very worst. It does not have to involve families divided and endless prolonged conflict. There are other ways of doing this. We call them alternative dispute resolution methods. It should be said, however, that a lot of people when hearing of alternative methods will denounce them as rubbish and declare that everyone knows that people behave badly in these situations and that is just the way it is! That may be because they also believe that old dogs cannot learn new tricks or it may be that they have a very limited view/experience of their own ability to behave or the ability of the human race in general to act for the greater good.
Alternative dispute resolution methods are such things as collaboration, conciliation and mediation as well as managed negotiation to name a few. They are alternative because they are alternative to going to court. Since Irish family law is conducted in private, i.e., “in camera”, meaning members of the public are not admitted, very few people have any idea of how this branch of law is conducted and what happens in family court. That is a good and a bad thing but that is another article. Unfortunately, it is too late after the court experience to wish you had tried one of the alternative routes. I am over 30 years in private practice and 25 of those are as a family law specialist. For most of my 25 years in family law, I have been a litigation specialist. However, in the past 8-10 years I have explored the alternatives and I have qualified as a practitioner in many of those methods of practice. First of all, I can assure people that collaboration, mediation and managed negotiation do work and work well for those willing to give it their best shot. Secondly, it is a far superior way of resolving matrimonial/family disputes for the vast majority of people than going to court. Thirdly, with the right team, any couple are capable of resolving their dispute alternatively.
Why not court? There are a number of reasons. First Judges are almost always under time constraints which means that you will almost certainly not get the hearing time you would like to get. Second, a Judge is just one person with all that one person’s baggage. Of course, a Judge is going to administer the law and have regard to the precedents but that said, family law is a unique area in that everyone comes from a family and has a particular experience of family which they bring into the situation like it or not. That is true of all practitioners of family law whether they are Judges, barristers or solicitors but in my experience, only those who have worked in alternative dispute resolution have a healthy self-awareness of that fact. Thirdly, your case is likely to be mostly about people ie your family, children etc., and extended family and situations, ie money, houses and schools, rather than law as such and reviewing your particular situation under the strait jacket of the law may not yield the kind of solution best suited to your situation. Cases with complicated legal issues and/or the kind of fraught situation that requires a judicial input should be brought to court. There are situations that will always require a Judge and a court hearing. Most people in a family breakup do not require that kind of intervention. Fourth, this is your life and you deserve the best that money can buy.
There is always resistance to change which I suspect accounts for the popularity of such sayings as – you cannot teach an old dog new tricks. We should not close our minds to the possibility that there might be a better way of doing things. The resistance to change comes not just from people in breakup situations but also from their families and friends as well as legal practitioners for many and varied reasons. I think that for extended family and friends it can be very difficult indeed. Some of them may have gone through the experience themselves and be unaware of alternative methods and therefore, will not recommend the alternatives. It should be pointed out that friends who have separated or divorced themselves can sometimes re-enact their own case through their separating friend particularly if their case was highly conflictual or did not resolve to their liking. Such parties on hearing of alternative more civilised methods of dispute resolution will advise to “get a real solicitor” generally meaning someone who would fight over two flies going up a wall. Apart from the damaging impact that ongoing or high octane conflict can have on families, on the separating parties themselves and on their children, it is important to bear in mind that the higher the level of conflict, the greater the cost. When a child is attacked, or hurt, a parent rushes in to try and remove the hurt. In a marital breakdown, parents will have the same instinct where their own adult children are concerned. That is not always helpful in the situation as it may serve to polarise the sides more than has already taken place and accordingly escalate conflict.
Collaborative family law practice requires a team like approach to work effectively. For a team to be effective that team should be familiar with one another’s styles of working, have worked together successfully in the past, be highly trained and skilled and above all, trust one another. Such a team can achieve miracles as long as everyone involved is open to that possibility. Even if there are no “miracles” there are invariably peaceful and lasting solutions which because they are the product of the team and the team includes the couple themselves, will ensure co-parenting and civility going forward.
Practitioners of collaborative family law often refer to it as “cost effective” which has a different meaning to “cheap” for those sensitive to the nuances of language. Collaborative family law is not cheap and when we say it is cost effective we mean “bang for your buck”. The process works around you rather than you trying to fit into a court framework and schedule. It concerns itself while you are present only with you unlike a typical court day where you will mill around with many other separating couples all competing for the available space and time of the court on that particular day. The process will listen to whatever you have to say and work with you to articulate whatever you feel you need to say unlike the court which will pre-determine what is important and actively silence that not deemed of relevance to the court. The process will last as long as or as short as your particular situation requires unlike the court which will allot a set time for your case and will not welcome much variation in that time table.
Collaborative family practice is not easy. Like all voyages of self-discovery it is sometimes envigorating, occasionally tortious, by times satisfying and always difficult. In my experience, there is very little worth doing in life that is not difficult. It is speedier in an overall sense than going to court but because you participate in the process directly as opposed to having a process enacted upon you, it can feel slower and more intense at the time. You can go through somewhere between 6 and 10 meetings on average spanning 3-9months or you can go to court and from the time you first consult to the preparation, issuing and serving of court papers (ie proceedings) to the date for hearing (trial date) it will take somewhere between 18 months to 2 years. In cost terms, each meeting will seem expensive but when you put the cost together with the fees and expenses involved with going to court, it generally works out the collaboration is less expensive but you also get far more value for your money. And so, you can be a wise old dog or just an old dog – it is your choice!