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Rights of Cohabitants in Family Law

By June 7, 2024June 26th, 2024No Comments

In a recent decision of Judge Nuala Jackson, in the case of M v N in late 2023, the Judge had to consider the best interest of the children in making provision for their need in circumstance where it was accepted that the wife had very serious addiction issues.

While the Court accepted that the wife had made significant progress in addressing these, the Court had concerns as to the extent to which sufficient progress had been made in this regard.

In relation to her duties to take the children’s need into account, Judge Jackson referred to section 3(2) of the 1989 Act, which obliges a court to ‘make such provision for the children as is proper in the circumstances’. This is underpinned by section 1(1) of the 1995 Family Law Act, where the Court is obliged to make ‘such provision as exists or will be made for each spouse and any dependent member of the family concerned as is proper having regard to all of the circumstances.

The Judge made the interesting point that by virtue of the fact that this was an appeal from a Circuit Court case, and as result of which this was a de novo hearing, the Court was able to take the ‘significantly altered’ circumstances since the making of the Circuit Court order into account, i.e. in an appeal of a Family Law case, the Court takes into account that circumstances that exist at the time of the making of its decision.

The Court had expressed sympathy for the mother and her addiction difficulties, and did note that she had made significant strides to deal with her difficulties but also had to take into account previous untruths to the Court, as well as the inconsistencies in relation to the evidence given to the Court about the wife’s treatment. He took note of the fact that having attended treatment for alcohol addiction, the wife subsequently drank alcohol with the eldest child who is now an adult. She regarded the respondent wife as having a lack of insight, and in this regard the Judge referred to the respondent’s evidence as to her addiction being in the past tense whereas it was clear to the Court that the addiction issues and challenges relating to same continued.

The Judge made specific reference to the child psychologist’s report that ‘silent acrimony’ is as difficult for the children as constant argument. In light of the assessor’s observations, the children were bonded with and attached to both parents, but that in order to alleviate the friction within the family home that the parties implement a ‘nesting’ arrangement i.e. that for the period that they were with the father, that the mother would move out of the family home, and that for the period that the children were with the respondent wife that the father would move out of the family home.

The Court made orders implementing this ‘nesting’ arrangement even though the father had indicated a preference for the Court not to do so. The Court indicated that the period of time that ‘nesting’ should be in place’ i.e. until summer 2028 was too long, and she directed that the nesting remain in place until December 2026- i.e. a period of two and a half years, at which point in time the family home was to be sold.

The Court was influenced by the recommendation of the assessor that the importance of stability and the facilitation of an ongoing relationship between the children and their mother was best achieved by this nesting arrangement. The children were to be with the children for nine and the wife for five of a 14 day fortnightly cycle.

The Court granted the husband a right of residence in the family home pending sale subject to the nesting order and the period of time where the wife would be in the family home exclusively with the children.

Nesting arrangements are unusual in family law cases, as this requires both parents to have alternative accommodation outside of the family home for the periods where the other parent is looking after the children. However, there was sufficient evidence before the Court that this could be achieved, and it was on this basis that the Court made the appropriate orders, and taking into account the very difficult circumstances which affected the family and the needs for a level of stability to be brought to the children’s lives, and to bring to an end the very difficult friction within the family home. At the time of the making of the order, the wife was not working although she was hoping to go back to work so it was clear that it was not possible for her to be able to acquire by way of purchase another property, which would have clearly influenced the Court’s decision not to sell the family home at that time.

For further information on this or any other family law matter, please do not hesitate to contact Brendan Dillon, Aoife Cathcart or Emma Dillon on 012960666.

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