In 2008, my mother, brothers and myself were forced to leave our family home when my father became violent. Since then we have lived in another property owned by my mother and my father has remained in the matrimonial home. My parents are still legally married, no annulment or separation has ever been filed. My mother is now looking to reoccupy our family home. Going through the courts is impractical at the moment due to financial constraints. However, a barring order is in place that prevents my father from coming within a certain distance of us. Specifically, I'm wondering what the legal implications would be if my mother was to reoccupy the family home when my father wasn't there and, in a sense, remove him from the property so my mother could live in the property once more.Both of my parents names are XXXXX XXXXX deeds of the property, and as I previously stated, legally they are married but there has been no cohabitation for three and a half years.Also, as my mother owns other properties, does my father have any legal right to occupy these other properties? How could my mother protect herself from my father occupying other properties? is there any way that she could change ownership of these other properties to the likes of myself so that my father would have no entitlement?
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1. At the outset, as your father is living in the family home and his name is XX XXX deeds (with your mothers) it would require a court application to remove him from, or prevent him from living in the family home. In determining what should be done with the family home, it would be necessary for your mother to seek a divorce or separation before the issue would arise of whether your father should leave the family home. Otherwise, it is essentially practically impossible to force him out or to seek to throw him out of the family home, given that he has a half share in it and your mother owns other properties. Be aware that in divorce or separation proceedings, your father will be able to seek an interest in the properties that your mother owns, if he is the "poorer" spouse.2. As regards XXX XXXXX properties, your father has no right to occupy or enter any of these other properties which are in your mother's name. Essentially, as she is the owner in law, he has no rights to them, even if he is married to her. The only way he can seek to have rights in relation to them is to seek a divorce or separation order, in which he can make a claim that "proper provision" be made for him under the divorce laws.3. As regards XXXXX XXXXX properties, there is no difficulty with your mother transferring some or all of these properties to you children. However, be aware that if more than one property is transferred to each child, then a divorce court may seek to reopen the issue of transfer where your father makes an allegation that your mother is seeking to evade the effect of the divorce laws. It is perfectly legitimate for your mother to provide for her children. However, it is not legitimate to seek to evade the divorce laws by transferring all the properties away. Accordingly, your mother should appear to act in a prudent manner and not be seen to simply to act to defeat any claim by your father. Be aware that ultimately, your mother may have to forgo the matrimonial home to your father as part of a divorce settlement if she has several other properties to her name. This may apply even if she is left with only one property of her own having given each of her children a property.
Would it be possible to get a court order to remove him from the family home without divorce/ separation proceedings? If so, how wpuld i go about this? There is another property in both of my parents names that we are willing to let him dwell in. My mother has the full financial responsibility for the children, although, at this stage there is only one child left that is aged under 18. My father pays no maintainence, however, this has never gone through the courts either.Also, technically, if we were to move back into the family home while he was living there, would he be legally able to evict us?
4. I hope I made clear that you cannot throw someone out, or lawfully evict them from a house of which they are owner or even joint owner with another person. This means that you cannot lawfully evict your father from the family home, as he is the owner of the house with your mother. It is not possible to remove him from the house as long as he is owner. The need for a divorce/separation proceeding is necessary as it is the family home. 5. In relation to the other property, your father likewise has the right to live there if he wishes. However, neither you nor your mother can force him to live there. You can only do this by negotiation with him. 6. Finally, seeking to move back into the family home after your mother and you sought barring orders against your father will result in the Gardai being called and you removed. Unless your father agrees to this course of action, once again, it is not something that the law will look kindly upon.
Could you give me some advice then as to how my mother can protect herself if she were to go ahead with a seperation. What would she need to do be the 'poorer spouse' ?
7. You have just asked me about the extent to which your mother can give her property(s) to her children. I regret to say that for your mother, if she has assets, then the day she entered into a marriage with your father, she opened herself to the possibility that her spouse/your father would have a claim to those assets. Her only solution would have been to get your father to have signed a pre-nuptial agreement and even then those are not binding in Ireland. So, your question is slightly perverse. The day for thinking about these issues has largely passed, as your parents got married! Additionally, whilst it is reasonable to provide for a mother to provide for her children, other attempts to thwart your father are likely to be set aside as the courts have set aside trusts created by one spouse when thinking of divorce.
Can you tell me if my father moves another woman into our family home can we object to it? Also, does the fact he has been violent, abusive and committed adultery have any impact on the outcome of divorce proceedings
8. If your father moves another person/woman into the family home, you cannot object to it. Again, as you father is co-owner of the property, he can lawfully invite people of his choosing into his residence. Secondly, there is no notion of fault where divorce proceedings is concerned. Accordingly, the fact your father has been violent, abusive or had sex with another woman other than your mother is not a relevant factor when deciding on a divorce or the financial provision on divorce.Please ACCEPT the answer
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