Ruling Family Law Terms of Settlement

DSBA President Susan Martin reviews the position and proofs when parties agree consent terms in matrimonial matters

Practitioners may find, during the course of matrimonial proceedings, that agreement can be reached and terms of settlement entered into. It is best practice that these agreed terms of settlement are reduced to writing and signed by both parties and witnessed by their solicitors.

Once this has been attended to, what are the steps necessary in order to achieve a Judicial Separation or Divorce without the necessity of a hearing or going through case progression or the list to fix dates?

While the decision of the Court is final regardless of what terms that the parties agree, on many occasions it is possible for litigants, with the assistance of their family law practitioners, to arrive at excellent draft Orders which are clear and can be implemented.

The Circuit Court Rules provide the procedure required in order to rule Terms of Settlement in matrimonial matters. These are set out at the Circuit Court Rules – Order 59, Rule 35 – Motion for Order in agreed terms. In addition to setting out the requirements under the rules, I have also included a number of other practices and observations which may be helpful.

Once the terms have been agreed, reduced to writing and engrossed, they should be signed by both parties (and witnessed by their solicitors) in triplicate. One copy is given to the Applicant, one to the Respondent and one copy is lodged into court (see below).

There are a number of essential proofs that are required in order to rule terms successfully and efficiently and various elements to be considered in advance of the issue of the Motion and then the hearing.

Preliminary Matters

The Affidavit of Means

Prior to the issue of the motion, a sworn and filed affidavit of means is required for each of the parties, dated within the past six months.

The Pensions

If either or both parties have a pension, it is necessary that a Notice to Trustees, if not already served by the date of settlement, be served fourteen clear days prior to the date of the hearing of the Motion to rule terms. This Notice ought to be served on the opposing party and on the trustees of the pension. This is regardless of whether relief is being claimed by either party. While this may appear to be excessive, the reader should bear in mind that there is no provision in law for a ‘nil’ pension adjustment order and consequently, a formal Order may be required even if no relief has been claimed. This is also because of the discretion that the trustees hold regarding, say, contingent benefit. A pension adjustment order will set out what is required of the trustees.

If the terms of the pension adjustment order have been agreed, then an efficient way to proceed would be for the solicitor to draft the pension adjustment order and have it approved by the trustees and the solicitor for the opposing party. The solicitor then ought to lodge with the Motion, the Notice to Trustees, the Affidavits of Service for the Notices (one to the solicitor for the opposing party, one to the pension trustees), four copies of the draft Pension Adjustment Order and the original letter of approval of the trustees of the draft Order. This letter of approval cannot be in the form of an email or unsigned letter. A letter of approval from the solicitor for the opposing party has also proved of assistance in past applications.

The Grounding Affidavit for the Motion

It is necessary for the Notice of Motion to be grounded on an Affidavit. The Affidavit need not be prolix or record every step in the case but ought to summarise the essential facts. It should also exhibit the original terms of settlement. It is not essential for the affidavit to be sworn by the Applicant/ Respondent. It is usually sufficient for the solicitor to act as deponent given that this is a procedural matter.

The Notice of Motion

The Notice of Motion should refer to the terms of settlement and outline the relief to be sought.

Once the Grounding Affidavit has been filed and the Notice of Motion has been filed and issued, it should be served on the other party’s solicitor. After 11 days have elapsed, an Affidavit of Service should be sworn and filed.

Affidavit of Means (again)

While Order 59(2)(ii) provides that the Affidavit of Means must be dated within six months of the issue of the Notice of Motion, given the discretion afforded to the Court in deciding on proper provision, I have found it helpful to check the date of the Affidavit of Means against the date of the hearing of the Motion. If, for example, the Affidavit of Means was dated 1st December 2022, then it would be in time for the issue of the Motion on 31st May, but, if a date were given in October 2023, by then the Affidavit would be more than 10 months old and this may make for a more difficult scenario for the Court where gaps may appear in the information. The Court has inter alia a discretion pursuant to Order 59(3) to adjourn the application or request further evidence. Consequently, it may make for an easier decision and smoother running of the case where the Affidavits of Means are more recent. While not conclusive, I have found that a useful rule of thumb has been to have the Affidavit of Means dated within three months of the date of the ruling of the terms.

Preparation for the Hearing of the Motion

In advance of the hearing of the Motion, the solicitor for the moving party should prepare a Booklet of Pleadings for the Court, properly indexed, paginated and tabbed. A copy should be available also for the opposing party.

Where one of the parties acts pro se and/or even if they have legal representation if, say, he/she resides overseas or is working overseas, he/she may not wish to attend at the hearing of Motion. If that is the case, then their consent or agreement to the ruling of the terms shall be verified on affidavit or otherwise verified or authenticated in such manner as the Court considers sufficient [see Order 59(35)(4)]. In that instance, the agreement could be witnessed by an independent practitioner or third party. If a practitioner acts for the party who is not attending, then they could prepare an affidavit for the litigant to sign which outlines confirmation of their consent to the terms being ruled and indicates that they are aware that the matter will proceed in their absence. Where the litigant acts pro se, obtaining this affidavit may be more problematic but the solicitor for the opposing party ought to write requesting such an affidavit. If it is not forthcoming but, say, the litigant in person writes a letter or email to the solicitor for the other party, the correspondence could be exhibited in an Affidavit of the solicitor of the moving party. The solicitor for the moving party could file an affidavit exhibiting their request for the above documentation from the lay litigant and any reply received. While the Court does have a discretion on this point, pursuant to the rule cited above, relying solely on the Affidavit of Service may be insufficient.

An alternative to ruling the terms of settlement with a litigant who acts pro se might be to issue a Notice of Motion by Judgment in Default of Appearance/Defence as appropriate but one should bear in mind the potential additional cost in that two court attendances (before the County Registrar, then in the Judges List) will be required along with the affidavits and booklets and other work that must be put into such attendances.