S.I. No. 225/1994 - Circuit Court Rules (No. 1) of 1994.

S.I. No. 225 of 1994.

CIRCUIT COURT RULES (NO. 1) OF 1994.

We, the Circuit Court Rules Committee, constituted pursuant to the provisions of section 69 of the Courts of Justice Act, 1936 , and section 12 of the Courts of Justice Act, 1947 , by virtue of the powers conferred on us by section 66 of the Courts of Justice Act, 1924 , and section 70 of the Courts of Justice Act, 1936 , (as applied by section 48 of the Courts (Supplemental Provisions) Act, 1961 ) and section 27 of the Courts (Supplemental Provisions) Act, 1961 , and of all other powers enabling us in this behalf, do hereby, with the concurrence of the Minister for Justice, make the annexed Rules of Court.

Dated this 31st day of January, 1994.

(Signed): Frank Spain.

(Chairman of the Circuit Court Rules Committee).

Michael A. Moriarty,

Kieran O'Connor,

Anne Dunne,

Fergal Foley,

Gerard J. Doherty,

Joe Deane,

Michael Quinlan (Secretary).

I concur in the making of the above Rules of Court.

Dated this 2nd day of June, 1994.

Signed: MÁIRE GEOGHEGAN-QUINN,

Minister for Justice.

CIRCUIT COURT RULES (NO. 1) 1994.

1. These Rules may be cited as the Circuit Court Rules (No. 1), 1994 and shall come into operation on the 22nd day of August, 1994.

2. The Order referred to in these Rules shall be added to and construed together with those orders contained in the Circuit Court Rules, 1950, as amended.

ORDER 78. JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 .

1. In this Order "the Act" means the Judicial Separation and Family Law Reform Act, 1989 (No. 6 of 1989). These Rules shall be substituted for the Rules contained in Circuit Court Rules (No. 1) of 1991 ( S.I. No. 159 of 1991 ) which are hereby revoked, subject only to the provisions contained in rule 2 hereof.

Transitional.

2. All applications made or proceedings taken before these Rules shall have come into operation but which are in accordance with the then existing Rules and practice of the Court shall have the same validity as applications made or proceedings taken in accordance with these Rules.

Venue.

3. An application under this Order shall be brought in the venue. county where any party to the proceedings ordinarily resides or carries on any profession, business or occupation.

Commencement of Proceedings.

4. All proceedings under this Order shall be instituted by the issue out of the office of the County Registrar for the county in question of an Application in the format and manner hereinafter provided. Upon issue, the Application shall be served in a manner provided for hereunder.

Form of Proceedings.

5. Every such Application shall be in numbered paragraphs setting out the relief sought and the grounds relied upon in support of the application. The Application shall be in accordance with the form set out in Appendix Number 1 herein or such modification thereof as may be appropriate and must, in all cases, include the following details:

(i) the date and place of marriage of the parties;

(ii) the names and ages and dates of birth of any dependent children of the marriage;

(iii) the family home and/or other residence of the parties including, if relevant, details of former family homes/residences to include details of the manner of occupation/ ownership thereof;

(iv) the basis of jurisdiction under the Act;

(v) the occupation(s) of each party;

(vi) the grounds relied upon for each and every relief sought;

(vii) each section of the Act under which relief is sought.

6. The Application shall be dated and shall bear the name, address and description of the Applicant and an address for service of proceedings, and shall be signed by the party's Solicitor, if any, or, where the Applicant does not have a Solicitor, by that party personally.

Filing and Entry.

7. On the issuing of an Application the original thereof shall be filed, together with the appropriate certificate (pursuant to section 5 of the Act), and the County Registrar shall thereupon enter same. The County Registrar shall, at the time of issuing, indicate thereon the date on which the Application is to come before the Court as hereinafter outlined.

Service.

8. All Applications shall be served by registered post on the Respondent at his last-known address or alternatively shall be served personally on the Respondent by any person over the age of eighteen years. An Affidavit of Service of every Application shall be filed before the return date, failing which the Court may dismiss or adjourn or otherwise deal with the Application as to it seems proper. All other pleadings may be served by ordinary pre-paid post.

Procedure on Dublin Circuit.

9. This Rule shall apply only to the Dublin Circuit. Every Application shall state the date upon which it shall be returned before the Court for the purposes of fixing a date for the hearing thereof. The Application shall be served on the Respondent not later than 10 clear days in in advance of the return date for the fixing of a date for hearing.

Procedure on Circuits other than the Dublin Circuit.

10. This Rule shall not apply to the Dublin Circuit. Every Application shall be returned to such date at the next sitting of the Court for the County in question for the hearing of family law matters as provided for in the Act and as shall be indicated by the County Registrar at the time of issuing of the Application. The Application may be heard on that date in default of an Appearance or Answer or on such other date as the Court may fix.

Appearance.

11. If a Respondent intends to contest the Application, or any part thereof, under the Act, he shall enter an Appearance in the Office within 14 days of the service upon him of the Application and shall serve a copy of the Appearance on the Applicant's Solicitors or, where appropriate, on the Applicant. The Appearance shall bear an address for service of any interlocutory applications and shall be signed by the Respondent's Solicitor or, if the Respondent does not have a Solicitor, by the Respondent personally.

Answer.

12. (a) A Respondent shall at the same time as entering an Appearance, or within 14 clear days from the date of service of the Appearance, or such further time as may be agreed between the parties or allowed by the Court, serve an Answer, together with the appropriate certificate (pursuant to section 6 of the Act), on the Applicant, or the Applicant's Solicitor, if any, and on the County Registrar in the form set out in Appendix Number 2 herein or such modification thereof as may be appropriate.

(b) If a party fails to serve such Answer within the specified time or such further time as may be agreed between the parties or allowed by the Court, such party shall not be entitled to defend the application save as permitted by the Court upon such terms as the Court may determine are appropriate.

Affidavit of Means.

13. Without prejudice to the right of each party to make application to the Court for an Order of Discovery pursuant to the Rules of this Honourable Court, in any case where financial relief under the Act is sought ancillary to the decree of Judicial Separation, the parties are to exchange an Affidavit of Means with the other in respect of which the following rules shall be applicable—

(a) the Affidavit shall be filed in the Circuit Court Office and served on the other party within 14 clear days of the service of the Respondent's Answer;

(b) either party may request the other party to vouch any or all items referred to therein within 14 days of the request;

(c) in the event of a party failing to exchange an Affidavit of Means or to properly vouch the matters set out therein the Court shall on application grant an Order for Discovery.

14. The Affidavit of Means shall set out in schedule form details of the party's income, assets, debts and other liabilities wherever situated and from whatever source and shall be in accordance with the form set out in Appendix Number 3 herein or such modification thereof as may be appropriate. If a party fails to serve such Affidavit within the specified time or such further time as may be agreed between the parties or allowed by the Court such party shall not be entitled to pursue or defend as appropriate such claim for any ancillary relief under the Act save as permitted by the Court upon such terms as the Court may determine are appropriate.

Counterclaim.

15. A Counterclaim, if any, brought by a Respondent shall be served in the same manner and subject to the same time limits as are provided for the service of an Answer, in accordance with the provisions of these Rules, and shall

(i) outline the basis for a decree of judicial separation, if sought;

(ii) specify any additional grounds upon which the Respondent intends to rely in support of any ancillary reliefs claimed;

and

(iii) set out in numbered paragraphs the reliefs sought pursuant to the Act and shall be in the form set out in Appendix Number 2 herein or such modification thereof as may be appropriate.

Evidence.

16. Save where the Court otherwise directs, every application under this Order shall be heard on oral evidence.

Interim and Interlocutory Applications.

17. An application for Preliminary Orders under the Act or any other interlocutory relief shall be by Notice of Motion. In any case where the Court is satisfied that the delay caused by proceeding by Motion on Notice under this Order would or might entail serious harm or mischief, the Court may make an Order ex parte as it shall consider just. Urgent applications under this Rule may be made to a Judge at any time or place approved by him, by arrangement with the County Registrar for the County in question.

18. If on the date for hearing of any Application under this Order the matter is not dealt with by the Court for any reason, and, in particular, on foot of an adjournment sought by either party, the other party, whether consenting to the adjournment or not, may apply for, and the Court may grant, such interim or interlocutory relief as to it shall seem appropriate without the necessity of service of a Notice of Motion.

Hearing of Interim or Interlocutory Applications.

19. Any interim or interlocutory application shall be heard on Affidavit save that the Deponent of any grounding Affidavit must be available to the Court to give oral evidence or to be cross-examined as to this Honourable Court shall seem appropriate, save that a Motion for Discovery Shall be heard on a Notice of Motion only.

Further Reliefs.

20. Where either party wishes at any time after the hearing of the Application to seek further relief as provided for in the Act or to vary or discharge Orders previously made by the Court that party shall issue a Notice of Motion to re-enter or to vary or discharge as the case may be grounded upon an Affidavit seeking such relief.

Costs.

21. The costs as between party and party may be measured by the Judge, and if not so measured shall be taxed, in default of agreement by the parties, by the County Registrar according to such scale of costs as may be prescribed. Any party aggrieved by such taxation may appeal to the Court and have the costs reviewed by it.

General.

22. The Court may, upon such terms (if any) as it may think reasonable, enlarge or abridge any of the times fixed by these rules for taking any step or doing any act in any proceeding, and may also, upon such terms as to costs or otherwise as it shall think fit, declare any step taken or act done to be sufficient, even though not taken or done within the time or in the manner prescribed by these rules.

AND THE PLAINTIFF CLAIMS:

1. A Decree of Judicial Separation pursuant to (here identify the particular clause(s) in section 2 (1) relied upon.)

2. (Insert in numbered paragraphs the particular sections under which ancillary relief is sought and the nature of the relief.)

AND TAKE NOTICE that if you intend to dispute the claim of the Applicant or any part thereof you must within 14 days of the service of this Application upon you enter an Appearance in the Circuit Court Office, (insert address of Office) and serve a copy of same on the Applicant or on his/her solicitor at the address provided below.

AND FURTHER TAKE NOTICE that at the same time as you enter an Appearance as aforesaid, or within 14 days of entering such Appearance, you must file with the County Registrar in the Circuit Court Office at (insert address of Office) an Answer in the form prescribed by the Rules of this Court and serve a copy of same on the Applicant or on his/her solicitor at the address provided below.

AND FURTHER TAKE NOTICE that, in any cases where financial relief is sought by either party, within 14 days of the service of an Answer as aforesaid, you must file with the aforementioned County Registrar in the Circuit Court Office an Affidavit of Means in the manner prescribed by the Rules of this Court and exchange a copy of same as provided by the Rules of this Court on the Applicant or on his/her solicitor at the address provided below.

TAKE NOTICE that it is in your interest to have legal advice in regard to these proceedings. If you cannot afford a private solicitor, you may be entitled to legal aid provided by the State at a minimum cost to you. Details of this legal aid service are available at the following address:

Legal Aid Board,

47 Upper Mount Street,

Dublin 2.

Telephone No: 6615811

where you can obtain the addresses and telephone numbers of the Legal Aid Centres in your area.

COUNTERCLAIM.

AND TAKE NOTICE that the Respondent will rely upon the following matters in support of the Counterclaim:

1. (Here outline the basis upon which a decree of judicial separation is sought by the respondent, if appropriate.)

2. (Here outline the basis upon which the Respondent intends to rely in support of any ancillary relief(s).

AND TAKE NOTICE that the Respondent counterclaims as follows:

1. A Decree of Judicial Separation pursuant to (here identify the particular clause(s) in Section 2 (1) relied upon, if such relief is sought.)

2. (Insert in numbered paragraphs the particular sections under which ancillary relief is sought and the nature of the relief.)

1. I say that I am the Applicant/Respondent (delete as appropriate) in the above entitled proceedings and I make this Affidavit of Means from facts within my own knowledge save where otherwise appears and whereso appearing I believe the same to be true. I beg to refer to the pleadings already had herein.

2. I set out in Schedule 1 hereto details of all the assets in which I am legally or beneficially entitled and the manner in which such assets are held.

3. I set out in Schedule 2, Part 1 hereto all income presently received and receivable by me and in Schedule 2, Part 2 details of all other monies and/or benefits received by me in the past 12 months.

4. I set out in Schedule 3 hereto, details of all my debts and liabilities.

5. I set out in Schedule 4 hereto details of my weekly personal outgoing and expenditure.

SCHEDULE 1.

Assets.

(Here set out in numbered paragraphs all assets whether held in the Applicant's/Respondent's sole name or jointly with another or in the sole name of another and held on trust for the Applicant/Respondent, the manner in which the assets are held, whether they are subject to a mortgage or other charge or lien, and such further and other details as are appropriate, including the names of any bank, building society or other financial institution in which any of the aforementioned assets are deposited or held and details of any pension scheme and/or insurance policy to which the Applicant/Respondent subscribes or shall benefit from. Also set out any other details relevant to the ownership and/or enjoyment of any asset(s) above referred to.)

SCHEDULE 2, PART 1.

Income.

(Here set out in numbered paragraphs all income presently received and receivable and the source of such income, including details of all deductions from such income whether by way of PAYE, PRSI, Social Welfare or otherwise and such further and other details as are appropriate.)

SCHEDULE 2, PART 2.

Monies and Benefits Received.

(Here set out in numbered paragraphs details of all monies and/or benefits received over the past 12 months from whatever source, including, inter alia, any sums received by way of pension, dividends or other interest payments receivable, gifts, inheritance or as the result of any court action or cessation of employment.)

SCHEDULE 3.

Debts and Liabilities.

(Here set out in numbered paragraphs all debts and liabilities and the person(s) to whom such debts and/or liabilities are due.)

SCHEDULE 4.

Personal Expenditure.

(Here set out in numbered paragraphs the Applicant's/Respondent's expenditure on such personal items as food, rent and/or mortgage, transport, medical, clothing, holiday, entertainment and such other items as are appropriate in the circumstances and indicate clearly whether such sums are on a weekly, monthly or yearly basis.)

EXPLANATORY NOTE.

These Rules which come into operation on the 22nd day of August 1994 provide for procedures in relation to making applications to the Circuit Court under the Judicial Separation and Family Law Reform Act, 1989 . These Rules are in substitution for the Rules contained in Circuit Court Rules (No. 1) of 1991 ( S.I. No. 159 of 1991 ) which are hereby revoked.