NON – EU DIVORCES AND THEIR RECOGNITION IN IRELAND

It is becoming apparent that the Civil Registration Service is refusing to recognise more and more non EU Divorces. This is often based on their belief that the evidence provided to them does not unequivocally point to the conclusion that either party to the divorce had the required domicile.

So what is domicile and why is it relevant?

Domicile is a complex legal concept based on the notice of a person’s permanent home. Generally there are three types of domicile. An individual is born with a domicile and this is called their domicile of origin. If a child is born into a married couple his/her domicile is that of their father. If the child is born into an unmarried couple then the domicile is that of their mother. Domicile of dependency attaches to minors and again is determined in the same manner as domicile of choice which is dependant upon where that person’s home is. Domicile of choice is particularly interesting in that it can vary from one area to another depending on the movements of the person and it is in this context that the factual circumstances of the person in question are important. The relevant legislation in Ireland is the “Domicile and Recognition of Foreign Divorces Act, 1986”. Section 5 (1) of this act states that “ a divorce will be recognised if granted in the country where either spouse is domiciled”.

Generally no issues arise where either spouse is born in a country and continues to reside there at the time the divorce application was made. However, difficulties do arise where either spouse may be a national of a country but no longer reside there. In those circumstances the Civil Registration Service often require proof that while the person may not have been living in that country they were deemed to have retained their domicile there. Proofs to be given to the Registration office include bank accounts, family connections, property and of course your intentions of returning to that country in the foreseeable future.

If the Civil Registration Office has refused to recognise your Divorce whether it is a EU or non-EU Divorce then please feel free to contact me at laura[at]brophysolicitors.ie and we can discuss the options open to you.

Laura Gillen
Brophy Solicitors

THE CHILDREN AND FAMILY RELATIONSHIP BILL: THE GOOD FATHER TEST

The Children and Family Relationship Bill aims to create a legal structure to deal with modern families in a changing society. For the most part, I welcome the proposed changes and accept that they are certainly a step in the right direction particularly towards reaching equal rights for fathers and mothers. To say however that we have reached equality or indeed anywhere near it, is simply untrue. 

The Irish Constitution places great importance on the family and defines it as “the natural, primary and fundamental unit group of society” (Art. 41). However, the Courts have narrowly interpreted the constitutional family as only including marital families. Cohabiting couples, lone parents, unmarried fathers and grandparents are excluded from this definition. While unmarried mothers are recognised as the automatic guardians of their children, the same rights do not flow to unmarried fathers. Currently in Ireland under section 22(2)(a) of the Civil Registration Act 2004, where a child is born to unmarried parents, they must make a written request to the Registrar for joint registration of the birth. The father must sign a declaration that he is the father of the child. Both the mother and the father must attend at the Registrar’s office to sign the register. Alternatively, it is also possible to register both names of non-marital parents on the birth certificate if an application is made to the courts by the mother or the father and accompanied by a written declaration by the applicant that the man is the father of the child and a statutory declaration by the mother that the man is the father of the child.

The revised provision specifies that an unmarried father will automatically become a guardian of his child. Sounds great, doesn’t it? However it would appear that the courts will simultaneously be deciding whether or not a father is fit to be a guardian based on his relationship with the mother. Yes you read that correctly ‘based on his relationship with the mother’! 

The father will only automatically be a guardian of your child if the father lives with the child’s mother for at least 12 months, including 3 months following the child’s birth. What happens when the relationship breaks down, for whatever reason, and mum says dad only lived with us for 10 months? Do we make an application to an already backlogged District Court trying to prove the father resided in the house for more than 12 months? 

If the father passes the “12 month residency with mum test”, then we automatically assume dad is a super father and make him a joint guardian? What happens when mum makes it impossible for dad to live with her, or the relationship breaks down or dad moves elsewhere with his work - does this mean he is an undeserving father and not entitled to be a guardian of his child? 

It is of course important to have safeguards in place to avoid the automatic granting of guardianship to unmarried fathers where it may not be in the best interests of the child. This is especially crucial for example where the mother has been a victim of domestic violence and/or has become pregnant through rape. It is proposed that the Court may on application by a guardian or a proposed guardian make an order terminating the guardianship of a guardian appointed under the conditions in which automatic guardianship is granted, where the court is satisfied that it is in the best interests of the child that such guardianship be terminated, and:-

(a) the guardian whose guardianship is to be terminated consents to the termination,

(b) the guardian whose guardianship is to be terminated is unable or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child,

(c) the guardian whose guardianship is to be terminated has failed in his duty towards the child to such extent that the safety or welfare of the child is likely to be prejudicially affected if the guardianship is not terminated, or

(d) for substantial reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so.

A father’s commitment to his child surely cannot be linked to a father’s commitment to his child’s mother. As a strong advocate of father’s rights I believe this is just another hurdle in the long and difficult journey many fathers have to take.

For further queries, please feel free to email me at laura[at]brophysolicitors.ie

Laura Gillen

GETTING A FOREIGN DIVORCE AND PROVING DOMICILE

It is becoming apparent that the Civil Registration Service is refusing to recognise more and more non EU Divorces. The refusal is often based on their belief that the evidence provided to them does not unequivocally point to the conclusion that either party to the divorce had the required domicile. 

So what is domicile and why is it relevant?

Domicile is a complex legal concept based on the notice of a person’s permanent home. Generally there are three types of domicile. An individual is born with a domicile and this is called their domicile of origin. If a child is born into a married couple his/her domicile is that of their father. If the child is born into an unmarried couple then the domicile is that of their mother. Domicile of dependency attaches to minors and again is determined in the same manner as domicile of choice which is dependant upon where that person’s home is. Domicile of choice is particularly interesting in that it can vary from one area to another depending on the movements of the person and it is in this context that the factual circumstances of the person in question are important. The relevant legislation in Ireland is the “Domicile and Recognition of Foreign Divorces Act, 1986”. Section 5 (1) of the Act states that “a divorce will be recognised if granted in the country where either spouse is domiciled”. 

Generally no issues arise where either spouse is born in the country and continues to reside there at the time the divorce application was made. Difficulties do arise however where either spouse may be a national of the country but no longer reside there. In those circumstances the Civil Registration Service often require proof that while the person may not have been living in that country, they were deemed to have retained their domicile there. Proofs to be given to the Registration office include bank accounts, family connections, property and of course your intention to return to that country in the foreseeable future. 

If the Civil Registration Office has refused to recognise your Divorce then please feel free to contact me at laura[at]brophysolicitors.ie and we can discuss the options open to you.

Laura Gillen

Brophy Solicitors

THE THINGS YOU LEARN ON MATERNITY LEAVE

It is truly amazing how much I know now that I didn’t know 6 months ago. How many of you could be blindfolded and tell the difference between a Costa Americano and a Starbuck’s Americano? Who would have guessed that the important “ten minute tummy-time everyday” is for your baby and has nothing to do with me doing sit-ups! Did you know that thriving is the new word for fat?

I really could go on and on but this is a newsletter purporting to give legal information and so I will narrow my new-found knowledge to Maternity Leave, Parental Leave and Force Majeure Leave. It really is amazing how much time you can stay off- work (I say off-work loosely, any parent out there knows there is no such thing!)

Rather than go through the legislation on each of the above I think it is better illustrated by example, so here goes:-

Mary has a baby on 14th of January, 2012. Her basic maternity leave of 26 weeks started on 1st of January 2012. She is employed and therefore entitled to a state benefit of approximately €230 per week for 26 weeks. Mary is not entitled to a salary from her employer unless specifically stated in her contract of employment. 

Her basic maternity leave expires on 30th of June 2012. However she is entitled to a further 16 weeks unpaid leave and therefore does not return to work until 19th of October 2012. Mary now wishes to use her annual leave before returning to work. Mary is entitled to 21 days paid annual leave per year and so does not need to return to work until November 19th. Mary realises she is also entitled to take all bank holidays accrued since January (1st January, St. Patrick's Day, Easter Monday, first Monday in May, June, August ,last Monday in October) and so she wont be returning until 28th of November, 2012. Mary called into Brophy Solicitors and they also advised her of her right to Parental Leave of 14 weeks. Mary is now due back to work on 6th March 2013. On the morning of the 6th of March her baby is sick and so she takes her 3 days Force Majeure Leave and returns to work the 9th of March 2013. 

So 15 months later Mary returns to work with all her employment rights and entitlements still intact. It should be noted that Mary was well advised in relation to the written notice periods she had to give to her employer.

Mary is now ready for her second child.

If you are an employer/employee seeking advice in relation to any aspect of employment law, please do not hesitate to contact me.

Laura Gillen

Brophy Solicitors

A Foreign Divorce Order - What A Relief!

It is understandable why some couples seek a divorce order in other countries. In Mauritius for example once you have been married for 2 years you can make an application for a Divorce by mutual consent and the only criteria is that you must wait 3 months from when the application was made to when the Divorce Order is given. Of course for that divorce to be recognised in Ireland issues relating to domicile must be taken into consideration. 

I have been quite successful in recent applications to the courts to have divorces obtained in EU and non- EU countries recognised in Ireland. However the question of relief orders following divorces outside the State is one that is cropping up more frequently. Many clients think that because they obtained a divorce or separation outside of Ireland then they are not entitled to make an application for ancillary orders. This is not so. 

When a foreign divorce or separation is recognised in the state, section 23 of the Family Law Act, 1995 enables the Court to make a whole range of ancillary orders similar to that which are available had you received your divorce or separation in Ireland. It is important to note however that a spouse who has remarried cannot apply for relief under section 23. 

The purpose of section 23 is to provide for a situation where an Irish Court feels that the outcome achieved in foreign proceedings has been unfair or unjust and no remedy is available to the applicant within the foreign jurisdiction. 

However the Court may only make a relief order where it is satisfied that pursuant to Section 27, Family Law Act, 1995:

1. Either of the spouses was domiciled in the State at the date of the application for relief, or was so domiciled on the date the foreign divorce or legal separation took effect; or

2. Either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid; or

3. Either of the spouses had a beneficial interest in land situate in the State on the date of the institution of the proceedings.

If you have queries relating to divorces or separations outside the state, please feel free to send me an email on laura[at]brophysolicitors.ie

Laura Gillen

Brophy Solicitors

“IT’S ALL FUN AND GAMES UNTIL …”

It’s that time of year again; the kids have returned to school and you are drinking a coffee that is still warm. It has been an enjoyable summer packed full of activities of days at the park, beaches and anywhere else that could keep the kids entertained for more than 10 minutes. The kids have had a great time but you feel worn out, all this watching and minding; trying to prevent accidents or injuries is hard work – really hard work! Ever wondered how the teachers manage to do it at lunchtime? How can they look after a class full of 4 year olds or supervise 22 twelve year olds during a rowdy football game? What happens if your child seriously injurers himself or herself during lunch break?

Dealing with claims of personal injuries in the school yard is increasing year on year. The Injuries Board conducted a report in 2010 and found that children between the ages of 3 and 7 are most likely to sustain playground type injuries. But as every parent knows, unless you have eyes on the back of your head it’s very difficult to keep an eye on kids all of the time – so at what point does a school become liable for your son or daughters’ injury?

Teachers have a duty of care towards their pupils. The standard of care is that similar to a prudent parent who exercises reasonable care. Teachers must take reasonable care to ensure that their students do not meet with foreseeable injury. Failure on the part of the school to fulfil its duty may render the school liable to compensate a pupil who suffers injury as a result of an accident. Before determining liability the courts look at the age of the children, the activity being carried out and the level of supervision given. There are two main areas where accidents have occurred in schools and these involve supervision in the school yard and supervision of children leaving the school at the end of the day. In a case in 2000, the child had been bitten by a stray dog in the schoolyard. The court held that the school failed to have some form of supervision and the plaintiff was awarded damages. In another case a 5 year old was swinging on a swing. She swung too high and fell off injuring her back, the court found that there was inadequate supervision and awarded the plaintiff damages.

The level of supervision expected of teachers has been discussed in the courts in recent years and it is now established that the test is that of a careful parent. In other words schoolteachers ought to take such care of the pupils as a careful parent would take of their own children.

You can contact me for further information or advice regarding any aspect of this and I will be happy to assist.

Laura Gillen
Brophy Solicitors

‘NO NAME, NO NUMBER’ – DEALING WITH HIT AND RUN ACCIDENTS

Most of us know what to do when we are in an accident involving another vehicle, but what happens when the other vehicle does not stop? Or you fail to get insurance details? Or you are given false contact details? How do you pursue compensation when the other party is literally untraceable?

This week’s article is prompted by a number of queries I received recently about what to do in circumstances involving hit and run accidents. 

Clients often think that because they are not able to locate the driver of the vehicle they can not make a claim for injuries sustained. This is not true - there are avenues available to you to take a claim despite not knowing how to locate the owner of the vehicle or indeed not even knowing the type of vehicle!

So here’s what you need to do should you find yourself as the unfortunate victim of a hit and run accident.

• Seek immediate medical assistance. No matter how minor you may feel your injuries are it is always best to err on the side of caution.
• Report the incident to the Gardaí as soon as possible after the accident occurs. Wait at the scene of the accident but remove yourself from any immediate danger.
• Give the Gardaí as much information as possible and take photographs of the scene if possible.

The Motor Insurers Bureau of Ireland (MIBI) compensates victims of accidents caused by uninsured and unidentified vehicles. This main function of MIBI is regulated by the terms of an Agreement with the Minister for Transport (2004). This Agreement gives rights to a person who sustains loss or is injured in a motor accident caused by an uninsured or untraced motorist.

All insurance companies underwriting motor insurance in Ireland must - by law - be members of MIBI and contribute to funding for claims in proportion to market share.

The terms of the 2004 Motor Insurers Bureau are very strict. Claims can fail unless you comply with these strict terms. The claimant must be aware of his/her obligations before making a claim. If you are not aware, then your claim could fail. You should contact me at Brophy Solicitors immediately and particularly in advance of submitting any claim to the InjuriesBoard.ie which involves an uninsured or untraceable driver.

You can email me at laura[at]brophysolicitors.ie or telephone me at 01 6797930.

Laura Gillen

Brophy Solicitors

NON LEGAL DIVORCE SERVICES – A WORD OF WARNING!

You may think that I am biased and perhaps I am but anyone who was in the family law courts this morning will surely re-consider employing a non-legal ‘do it yourself’ type of divorce service. 

The County Registrar announced that she was entirely unhappy with the way in which these companies were dealing with married couples seeking a divorce. She said that she felt they were making a mockery of the court system by standardising family law civil bills, affidavits of means etc. She went on to say that while she did appreciate the costs involved in employing qualified solicitors, it was money well spent in circumstances where solicitors will at all times act in safeguarding their client’s best interests. 

Regardless of whether you want a quick divorce or a divorce on consent, you really should consult a solicitor who will explain and advise you as to the best course of action given your circumstance. More often than not employing a solicitor will allow for a divorce to be obtained within the shortest possible time.The courts attitude to these services is that they are not representing your best interests and you would be well advised to seek proper legal advice. 

Please feel free to email me at laura[at]brophysolicitors.ie or telephone the office to make an appointment.

Laura Gillen

Brophy Solicitors

LIMPING MARRIAGES –EU DIVORCES

One could be forgiven for thinking that a “limping marriage” is a term used to describe a marriage in serious difficulties or a symptom of an injured marriage! 

 However the term “limping marriage” developed as a result of marriages being recognised in one EU country and not in another. Prior to 2005, different approaches taken by different EU countries meant that your marriage and/or a subsequent Divorce could be recognised in some countries but not in others. However on the 1st of March 2005 Council Regulation (EC) 2201/2003 (Brussels II bis) was introduced with the aim of harmonising the law in this area. In other words, if a divorce/marriage is recognised in one EU country then it should be recognised in all subject to certain criteria as set out below.

The Regulation states (Article 3) that a court can make a decision on a matter regarding divorce, separation or marriage annulment:

 (a) In whose territory:
- The spouses are habitually resident or
- The spouses were last habitually resident, insofar as one of them still resides there, or
- The respondent is habitually resident, or
- In the event of a joint application, either of the spouses is habitually resident, or
- The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- The applicant is habitually resident if he or she reside there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

 (b) Of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

The main factor in all of this is the concept of habitual residence. Unfortunately this is not defined in the legislation. In Ireland habitual residence requires not only an intention to reside in a place but also a physical presence in that place for a considerable period of time. Habitual residency is only considered when looking at a Divorce Order obtained in an EU state (with the exception of Denmark). For all other countries the question is determined by domicile of the parties.

 The consequences of an invalid foreign divorce can be vast and costly and may ultimately lead to a subsequent marriage being declared null. If you find yourself in a situation that you wish to remarry or are concerned about your future husband/wife’s previous divorce order you should make an appointment to me to discuss. You can contact me directly at laura[at]brophysolicitors.ie or by telephone to arrange an appointment. 

 

Laura Gillen,

Brophy Solicitors
 

“CONSCIOUS UNCOUPLING” AND FOREIGN DIVORCES

Gwyneth Paltrow has yet again hit the front pages for apparently re-coupling following a “conscious uncoupling” from husband Chris Martin. No one knows for sure whether Ms Paltrow was conscious or unconscious when she re-coupled and to be perfectly honest I am not sure anyone really cares. However I did wonder what our judges would think if I made an application to have the “conscious uncoupling” recognised in Ireland. I deal with numerous applications to have divorces obtained in other countries recognised in Ireland and below is a simple summary of what the judges take into consideration.

Granting a divorce in Ireland is no simple process. There are stringent conditions to be complied with before the courts will grant a divorce. Many of my clients obtain divorces in other countries but face problems when trying to re-marry in Ireland. The validity of a second marriage rests solely on the validity of the original divorce. It is therefore important to be aware of the requirements necessary to constitute a valid foreign divorce. 

The two main pieces of law that need to be considered within this area are the Domicile and Recognition of Foreign Divorces Act, 1986 (the 1986 Act) and Council Regulation 2201/2003 (Brussels II bis). Brussels II bis governs the status and recognition of divorces granted in EU countries with the exception of Denmark and the 1986 act governs Denmark and all other non-EU countries.

At its very simplest, a divorce obtained in any country prior to 1st March 2005 was subject to either party being domiciled in the country granting the divorce at the time of instigating the proceedings (prior to 1986 both parties needed to be domiciled in the country granting the divorce). This is still the case with a divorce obtained outside the EU or Denmark.

Divorces obtained in EU countries since March 2005 must adhere to Article 3 of the Brussels II bis which states that a country has jurisdiction to determine divorce

(a) in whose territory

- if the parties are habitually resident or
- were habitually resident and one of the parties still resides there, or
- if a joint application either party is habitually resident
- the applicant is habitually resident if her/she resided there for at least one year prior to the application
- the applicant is habitually resident if he/she resides in that country for at least 6 months and is either a national of the member state or as in UK/Ireland has his/her domicile there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the domicile of both spouses.

If you have consciously un-coupled and obtained a divorce in another country, and want it recognised in Ireland or want to get re-married in Ireland, please do not hesitate to me at laura[at]brophysolicitors.ie 

 

Laura Gillen

Brophy Solcitors

 

SLIPPING, TRIPPING, FALLING

I could easily write an article on the day in the life of my two year old son under this heading. Thankfully he is far too young to realise he could potentially sue me for leaving my high heels and handbag lying around the place.

Slipping, tripping and falling reduces significantly once you leave the toddler years behind you however it can happen and oftentimes through no fault of your own. If you sustain an injury by virtue of a slipping, tripping and/or falling accident you should do the following:-

1. Seek medical attention.

2. Take a note of the exact location of the accident, time of day and weather conditions if applicable. Photographs should also be taken if possible. It is surprising how easily an uneven surface can be removed or repaired!

3. Make a note of any witnesses and their contact details

4. Report the incident to the relevant person (property owner, member of staff etc.)

The question then becomes, who is responsible for your accident? I am a personal injury solicitor and I can assist you in determining who is responsible for any injuries you may have sustained. The majority of my caseload involving these types of accidents can be divided into two separate areas.

1. Indoor Injuries

Loose cables, uneven surfaces, insufficient lighting, extremely hot water in taps, loose mats, wet floors etc.

2. Outdoor Injuries

Cracks in pavements, not properly maintained road surfaces, uneven surfaces etc.

If you have been involved in an accident and you feel you are not to blame, please feel free to call me at any stage or send an email to laura[at]brophysolicitors.ie

 

 

Laura Gillen

Brophy Solicitors

A LITTLE BIT OF KNOWLEDGE CAN BE DANGEROUS!

Sometimes people can cherry pick sections of legislation to meet their own needs, but unless expert advice is sought, this can be a costly lesson. Sometimes the loophole you think you found is in reality, a noose. 

A recent example of this came before the Labour Court (28th February 2014) where employers were ordered to pay €9,701.40 to an employee after they placed her on Health and Safety Leave ( as per Section 18 of the Maternity and Protection Act) shortly after she announced she was three months pregnant. 

In August 2011 Mary was hired as salon manager so that the two owners, her employers could concentrate on the beauty treatment side of their business. In December 2011, Mary announced she was three months pregnant. In line with good practise, on the 9th December, her employers called Mary into a risk assessment meeting in line with Health and Safety obligations. The completed form identified a few small risks (such as moving/lifting items) but nothing that could not be easily accommodated or that represented a significant proportion of Mary’s employment.

Up to this point, the salon had acted completely in compliance with employment legislation. However, four days later, her employers called Mary back into a meeting and immediately placed her on Health and Safety Leave. Under this legislation an employer is only obliged to pay an employee for the first three weeks of absence. Health and Safety Leave is used in circumstances where (i) there are risks that the employer can not remove and (ii) that there is no suitable alternative role for the employee. Mary’s assessment form clearly showed that she was, as are other hairdressers, able to continue to work during her pregnancy and the salon owners erred in placing her on Health and Safety Leave. Mary was awarded compensation and her full 20 weeks pay earned. 

Pregnancy is essential to society and thankfully legislation ensures that women are no longer penalised in the workforce for having a family. Employers need to be mindful of their obligations, or as this case proves, pay a hefty price.

Laura Gillen

Brophy Solicitors

INJURY CLAIMS AND SOCIAL MEDIA

If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees. ~Khalil Gibran, Sand and Foam

In the age of social media, we all need to be aware of the saying ‘that the spoken word can never be unspoken’ especially as increasingly we play out our lives on public platforms.

Many defendants are now rigorously defending cases that may have previously been settled and they will use all the tools available to discredit claimants or disprove their claims. Facebook, Twitter, Instagram and many other sites can leave a permanent record of your activities and lifestyle and can and can been used in evidence against you!

The Civil Liability and Courts Act 2004 was enacted to discourage people from bringing false or exaggerated claims in personal injury cases and cases have been dismissed where it has be proven that there has been false and misleading evidence submitted.

In December 2012, a plaintiff alleged that as a result of a road traffic accident on 17th November 2005 he suffered an injury to his left hand, his left knee and his right foot. He was taken by ambulance to hospital and went on to have an operation and was immobilised for approximately three months thereafter. The plaintiff then had further surgery to remove a piece of plastic from his hand. It was accepted by the court that his injuries were of a serious nature.

However, in the course of giving evidence, the defendants questioned the plaintiff on his hobby of “car-drifting”. The plaintiff stated that he had to give up this hobby and he repeated this assertion to medical attendants when assessed for the purposes of the case. However, in the course of evidence, it became clear that the plaintiff had not in fact given up this hobby and photographs and videos were produced showing the plaintiff engaging in this and other activities. 

In his written judgment, Mr. Justice Smyth stated that he was satisfied that the plaintiff's claim for loss of earnings and loss of activities was deliberately exaggerated. He was also satisfied as a matter of probability that the plaintiff himself knew that the information was false and misleading and dismissed the claim in its entirety. Facebook was used as evidence against another plaintiff whereby it was alleged that he "overstated his injuries" and engaged in "an act of dishonesty" when he denied he participated in a charity parachute jump six months after the incident according Ms Justice Mary Irvine. His facebook page was used to discredit his claim and his case was ultimately dismissed under Section 26 of The Civil Liability and Courts Act 2004 and he faced a large legal fee from the defendant insurance company.

If you have any questions about a potential injury claim please feel free to contact me at laura{at}brophysolicitors.ie and I will be happy to access your case.

Laura Gillen

Brophy Solicitors

EMPLOYMENT TERMINATION PAYMENTS

Employment Termination Payments (EFPs) are lump sum payments made to employees on the termination of their employment contract.

Firstly payments made to departing employees essentially fall into 3 different categories; 

(1) Statutory Redundancy, 

(2) Ex-gratia Termination Payments, and 

(3) payments made on foot of a legal obligation, e.g. a payment required via the Employee’s employment contract.

In general, any payments falling into the third category (i.e. non-ex-gratia payments) are taxable in full and are effectively treated the same as a bonus for PAYE/PRSI purposes. The Tax Reliefs and Exemptions available for termination payments only apply to payments falling within the first two categories.

However the European Commission has today officially asked Ireland to amend its legislation arguing that the rules lead to a higher tax burden for individuals who work in another member state for an Irish company. According to the Commission, the law as it stands is contrary to the free movement of workers and failure to comply will lead to the matter being referred to the European Court of Justice. As it stands, to compute the tax relief on such payments Irish law takes into account only the number of years service for the company while in Ireland and it does not take into consideration the number of years service in the same company based in other member states. 

It will be interesting to see how this unfolds!

Laura Gillen

Brophy Solicitors

STRAIN INJURY: EMPLOYER'S OBLIGATIONS

Repetitive strain injury, or RSI, is an umbrella term used to described work related musculoskeletal (muscles, tendons, ligaments, cartilage, bone) disorder affecting the neck, shoulder, arm, wrist and hand. The most obvious cause of RSI is repetitive movements, which can cause inflammation of the tendons of the hand or forearm. This is more particularly true if the movements are carried out in an awkward posture without suitable rest periods. The main risk factors include:- poor posture, handling load, lack of variation in tasks performed, maladjusted chair, stress, or insufficient rest. The risk of RSI increases with age. Studies have also shown that women are more susceptible as are those who are unfit. 

We often get clients coming into us who feel they are suffering from repetitive strain injury as a result of poor work practices or employer’s breaches of health and safety regulations. Employers are required to carry out risk assessments for all hazardous procedures and should be able to identify those jobs with a risk of RSI and thereafter to provide adequate breaks. In additional employers are expected to provide proper training in the relevant procedures to ensure that employees are carrying out the work in the safest manner possible. Failure to do so may mean that an employer will be held liable to pay damages. 

If you believe that your injury has been caused by dangerous working practices and that you have suffered as a result of your employer’s failure to provide a safe system of work, please feel free to contact our office to contact me. I am a solicitor who specialises in personal injury compensation claims and I will be happy to meet with you to discuss your claim.

Laura Gillen

Brophy Solicitors

THEY SAID I DON’T NEED A SOLICITOR!

All too often clients involved in personal injury claims seek urgent legal assistance in relation to their claims. When I ask why they left it so late to come to a solicitor the answer is all too familiar – “they said I don’t need a solicitor”. Oftentimes clients feel that they are put under pressure to accept a fast settlement offer from an insurance company to avoid the “huge” legal fees if they involve the solicitors!

Solicitors, like myself, who specialise in personal injury are well placed to advise you if a settlement offer is fair and to let you know what options are available to you if it isn’t. Your solicitor represents your interests and will make every effort to get the best possible outcome for your case. 

In Ireland the majority of claims must now be taken to the Injuries Board. The most common pitfalls encountered in this process are as follows:- 

- Failing to submit the claim within the timeframe allowed

- Failing to submit sufficient detail on the claim form

- Sending in a report from a consultant or GP that is not up-to date or fails to address your injuries and how they affect you.

- Accepting the Injuries Board claim only to realise your injuries did not improve as had anticipated by your doctors report

- Submitting documentation that may be considered misleading resulting in your claim being dismissed and even criminal prosecution.

This is just a small number of common pitfalls. Sometimes it may not always be necessary to instruct a solicitor however more often than not it is in your best interests to proceed with an experienced solicitor.

If you have been involved in a car accident, accident at work or slipped, tripped and fell through no fault of your own, then please do not hesitate to contact me at laura@brophysolicitors.ie

Laura Gillen

Brophy Solicitors

INCREASE IN PERSONAL INJURY CLAIMS

A recent report released by the Injuries Board indicates that both the number of claims and the amount of compensation awarded has increased in 2013. Figures released by the Injuries Board suggest a 2% increase in the number of claims being made. The average compensation awarded increased from €21,502 to €22,349 in 2013.

A breakdown of the type of claims and where they occurred indicate that minor road traffic claims have increased significantly particularly within the Dublin and surrounding areas with Roscommon having the lowest personal injury claims as a percentage of the population. 

The report also suggests that motor claims and public liability claims are top of the list, followed by employer liability claims.

So what does this suggest? Is Ireland developing a “claims culture”? Or do we need to make our roads safer? I do not have the answer unfortunately but I can answer any queries you may have following a road traffic accident, accident at work or any injury sustained through no fault of your own. Feel free to contact me by telephone or at laura@brophysolicitors.ie

Laura Gillen

Brophy Solicitors