Tipp FM Legal Slot – 1st May 2012
Gillian O’Mahony April 2012 Q&A Review
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Download Q & A Review April topics Notes
Cohabitants
What is the Civil Partnership Act?
The Civil Partnership Act is two-fold as it provides for both the civil registration of same-sex partnerships and also the rights and duties of cohabiting couples whether same sex or opposite sex.
What is a cohabitant?
Cohabitants can fall into a wide variety of categories, ranging from young couples living together either prior to or as an alternative to marriage, to older couples where one or both may be separated or divorced and either unwilling or unable to enter into marriage. Co-habitants can of course be same sex or opposite sex.
How does the Act benefit cohabiting couples?
The Act contains a Cohabitation Redress Scheme which offers protection to a financially dependent party in the event that a cohabiting relationship ends, whether due to relationship breakdown or death. The Act also provides for the rrecognition of cohabitant agreements which enable and encourage cohabitants to regulate their joint financial and property affairs.
“Qualified” cohabitants can apply to the Court for certain remedies such as maintenance, property adjustment orders, pension adjustment orders or provision from the estate of a deceased cohabitant.
Can someone who was in a relationship with someone and if that relationship has broken down simply apply for maintenance or are there requirements that must be met?
The Act effectively puts in place a legal “safety net” for people living in long-term relationships who may be financially vulnerable at the end of a relationship, whether through break-up or bereavement.
Under the provisions of the Act, a cohabiting couple must have lived together in an intimate and committed relationship for five years or two years if the parties have children together and the party looking for redress from the Court must be financially dependent on the other party.
Automatic rights are not conferred on cohabiting couples, but rather the Court will decide each case based on its own circumstances and merits.
Marriage Breakdown
If a marriage breaks down and someone goes to a Solicitor what is the first thing that will happen?
The first thing which we always explore, and in fact we are mandated to advise, is the possibility of mediation and reconciliation. We give clients the names and addresses of people qualified to help in this regard, which includes counsellors & mediators. When we say counselling we mean both marriage counselling and personal counselling.
If a marriage breaks up – what are the options available?
- Deed of Separation
- Judicial Separation
- Divorce
Deed of Separation
Many family disputes arising from marital breakdown may be settled amicably between the spouses.
A Deed of Separation is a document that may be drawn up and executed by the parties to a marriage, where that marriage has broken down and where the parties do not wish to have recourse to the Courts for the purpose of agreeing the terms of the breakdown. A fundamental provision of every separation agreement is an agreement that the parties will live apart.
Usually a Deed of Separation will make provision for custody, access to children, maintenance, division of matrimonial property and Succession Act rights.
The terms will be committed to writing and signed by both parties. The Deed will also attempt to deal with matters that may cause confusion in the future, such as the education of dependent children or the entitlement to apply for passports for dependent children. However, one such provision that a Deed may not make reference to, without first getting Court approval, is that of an alteration of existing pension.
Judicial Separation
Following marital breakdown and a period of separation, a spouse may, under the 1989 Judicial Separation & Family Law Reform Act as amended by the Family Law Act 1995, apply for a Judicial Separation.
The effect of obtaining a Judicial Separation is that both spouses are relieved of the obligation to cohabit with one another.
In granting a Decree of Judicial Separation the Court can make various orders
- Maintenance
- Family Home
- Property – declaratory or adjustment orders
- Barring Orders/Safety Orders
- Custody and access
- Succession rights – Extinguishing the rights that one spouse would have over the estate of the other spouse in the event of his/her death
- Pension adjustment.
- Life Cover
Divorce
Divorce is a fairly recent development in Ireland and the ban was lifted following a very controversial referendum in November 1995 and from 1997 one could apply for a Divorce in Ireland.
On what grounds can you apply for a Divorce?
In order to successfully obtain a Decree of Divorce from an Irish Court, it is necessary to satisfy the Court that:
- You have lived apart for four out of the five previous years.
- There is no reasonable prospect of reconciliation.
- Proper provision will be made for all members of the family.
- Either spouse must be domiciled in Ireland at the date of issue of the proceedings or that either spouse has been ordinarily resident in Ireland for one year before the date of issue of the proceedings.
You say that the parties have to have lived apart for four out of five years – does that mean that they have to live in separate houses?
No, parties can live separate and apart while under the one roof. The parties will have to satisfy the Courts that although they continue to reside in the same home they lead separate lives. They will need to produce evidence as to sleeping arrangements, preparation of meals, caring for children, holidays, payment of Bills and organisation of finances. Often parties continue to reside under the one roof for the sake of the children or simply because they cannot afford to maintain two households until the Divorce is finalised.
Narcolepsy and Swine Flu Vaccine
Last week Gillian discussed narcolepsy and the swine flu vaccine which has been very topical recently – remind listeners again what it is about?
In August 2010 the European Medicines Agency began to investigate a possible link between the swine flu vaccine and narcolepsy, following an increased number of reported cases of narcolepsy among children and adolescents in Finland and Sweden.
The Irish Department of Health also commissioned a study and this report was published last week. The study found that there was a 13 fold risk of narcolepsy in vaccinated compared to unvaccinated individuals.
Is there a name for this vaccine?
Pandemrix® is the name for the vaccine. It was used against the (2009) (swine flu) virus during the H1N1 influenza pandemic. Over 900,000 doses were used in Ireland.
What is narcolepsy?
Narcolepsy following the swine flu vaccination is more prone in children and adolescents. It is a sleep disorder that causes overwhelming and severe daytime sleepiness. People with narcolepsy fall asleep at inappropriate times and places. These daytime sleep attacks may occur with or without warning, and can occur repeatedly in a single day.
What are the main symptoms of narcolepsy?
Narcolepsy is typically characterized by the following four symptoms with varying frequencies:
(i) Excessive daytime sleepiness,
(ii) Cataplexy (sudden and temporary loss of muscle tone often triggered by emotions such as laughter),
(iii) Hallucinations (intense, vivid and sometimes terrifying hallucinations at the beginning and ending of a sleep period),
(iv) Sleep paralysis (paralysis that occurs most often upon falling asleep or waking up; the person is unable to move for a few minutes).
Is Pandemrix® still in use in Ireland?
No. Pandemrix® has not been recommended in Ireland since January 2011. Doctors were requested to return all stocks of Pandemrix® for disposal.
How many affected/cases in Ireland?
To date, the Irish Medicines Board has received 32 reports with confirmation of narcolepsy in individuals who were vaccinated with this vaccine. The IMB is continuing to follow up with specialists where a diagnosis of narcolepsy is considered possible.
What will happen in Ireland?
The Irish Government entered into an arrangement with the manufacturers of this vaccine and under the agreement they agreed to indemnify them if there were any claims arising out of this vaccine. The Government has not indicated yet whether they will or will not set up a similar fund like in Finland.
Under Irish Law those who manufacture or medical products have clear responsibilities to patients – including a duty to ensure that their products will be effective and have as few side-effects as possible. We are currently investigating claims for compensation for children who have been diagnosed with narcolepsy. It will be necessary to engage expert witnesses who will prove to the Court that the vaccination is causally related to these children and adolescents developing narcolepsy. If this is proven each of those affected will be entitled to recover damages under the Liability for Defective Products Act, 1991
What could a person who is affected by narcolepsy from the vaccine recover?
Someone who is affected by this would be entitled to damages for loss of opportunity into the future, loss of earnings as no doubt a disorder like this will effect career opportunities, the injury itself and any other expenses and outlay incurred by the claimant.
DePuy – deadline
How much time do DePuy patients have left to lodge a claim?
There is now less than FOUR MONTHS REMAINING for those affected by the DePuy Hip Recall to lodge a claim.
As many people will be aware, on the 26th August 2010 DePuy Orthopaedics Inc., a division of Johnson & Johnson, announced a worldwide recall of two of it’s metal-on-metal hip replacement devices; the ASR XL acetabular total hip replacement and the ASR hip resurfacing system. Both hip implants were recorded as having “higher than expected failure rates”.
How many patients are affected in Ireland and what is the failure rate?
As matters stand, 3,282 Irish patients were fitted with defective DePuy ASR hip implants. Experts have found “unequivocal evidence” of high failure rates and the ASR total hip implant has now been shown to have a failure rate of up to 50% within six years.
How long have we known about the problem with the DePuy devices?
The problems with the two DePuy devices were known long before the recall. In Australia, the National Joint Replacement Registry (NJRR) reported in 2007 that data for the previous year showed that these devices had twice the risk of failure in comparison to similar devices. In 2008, the NJRR re-confirmed that these devices had a much higher than expected failure rate. Again, in 2009, the NJRR found the same failure results. In 2005, just 2 years after these products were put on the market, a DePuy internal memo set out the company’s concerns of health risks from wear debris of metal-on-metal hip implants.
In December 2009 DePuy Orthopaedics withdrew from the Australian market and in March 2010 DePuy issued an alert about the ASR implants. Despite these developments many Irish patients continued to be implanted with the DePuy devices until the recall of the device in Ireland in August 2010.
Those affected by the DePuy Hip Recall are at risk of serious health implications.
When should patients contact you about lodging a claim?
Immediately! In most cases the deadline for lodging a claim seeking compensation is fast approaching and those affected by the recall need to take precautionary action before the 25th August 2012 to avoid the possibility of your case being out of time.
There is a lot of work involved in lodging your claim so the sooner you start the better.
