Ireland's
Family Law (Divorce) Act 1996 will fundamentally affect the lives of tens of
thousand of people. Yet, like so much legislation, it is drafted in terms which
render it incomprehensible to most of the people who might wish to use it.
Take, for example,
Section 36(b), which says: "Subsection (1) of section 115A of the Finance Act
1993 (which was inserted by the Finance Act 1994 and provides for the abatement
or postponement of probate tax payable by a surviving spouse) shall apply to
property or an interest in property the subject of such an order as it applies
to the share of a spouse referred to in the said section 115A in the estate
of a deceased referred to in that section or the interest of such a spouse in
property referred to in that section, with any necessary modifications"!
The convoluted phrasing
and omission of punctuation marks may make lawyers happy - but it hardly makes
for certainty in the law.
Section 18(4) of the
Act provides (in one sentence of 108 words): "The provision made for the applicant
concerned by an order under this section together with any provision made for
the applicant by an order referred to in subsection (3)(a) (the value of which
for the purposes of this subsection shall be its value on the date of the order)
shall not exceed in total the share (if any) of the applicant in the estate
of the deceased spouse to which the applicant was entitled or (if the deceased
spouse died intestate as to the whole or part of his or her estate) would have
been entitled under the Act of 1965 if the marriage had not been dissolved."
But it doesn't explain clearly whether the third "order" referred to is an order
under s.13(1), s.14 or s.18. More grist to the legal mill.
And s.28 (c) is just
plain wrong: it claims the "maintenance debtor" is the person to whom
payments are required to be made, rather than the person by whom they
are made.
And what about the
Constitutionality of the retrospection in s.52 of the Act, which proposes that
couples judicially separated under the Family Law Act 1995 should now be able
to apply in the future to vary settled orders?
The following guide
was written to help litigants (and lawyers!) make sense of the legislation.
But, given the complexity of some sections of the Act, the guide should be checked
against the original text of the legislation for absolute precision.
s.1 (1) The short title of the Act is the Family Law (Divorce)
Act.
s.1 (2) The Act came
into operation on February 27th 1997.
s.2 (1) Interpretation
section.
s.3 Repeal of s.14
(2) of the Censorship of Publications Act 1929, restricting the media's right
to publish full details of divorce, nullity or separation cases.
s.4 Administration
of the Act to be financed by the Oireachtas.
Part II - Obtaining
a decree of divorce
s.5 (1) The court may grant a divorce where it is satisfied that:
(a) when the proceedings
began, the spouses had lived apart for at least four of the preceding five years,
(b) there is no reasonable prospect of reconciliation and
(c) there is proper provision for the spouses and dependent children
s.5 (2) The court may
give directions concerning the dependent children's welfare, custody and access.
s.6 (1) The person
applying for the divorce is called the applicant.
s.6 (2) Before proceedings
begin, the applicant's solicitor must discuss with him:
(a) the possibility
of reconciliation and give him the names and addresses of people qualified to
help reconcile the couple,
(b) the possibility of mediation to help the couple agree the
basis of their separation or divorce, and give him the names and addresses of
qualified mediators, and
(c) the possibility of a written separation agreement.
s.6 (3) If the couple
are not judicially separated, the applicant's solicitor must tell him about judicial
separation as an alternative to divorce.
s.6 (4) The solicitor
acting for the applicant must:
(a) sign a certificate
confirming he has complied with subsections (2) and, if necessary, (3) and must
hand in that certificate with the original petition, or else the court may adjourn
the application, and
(b) leave a copy of the certificate with any copy of the petition
served on anyone else or left in a court office.
s.6 (5) The certificate
must be in the form required by the rules of court.
s.6 (6) The Minister
may make regulations for the establishment of a Register of Professional Organisations
whose members are qualified to help reconcile spouses. The register would give
the names of members of the organisations and procedures for regular updating
of the membership lists.
s.7 (1) The spouse
who is not the applicant is called the respondent.
s.7 (2) As soon as
any solicitor acting for the respondent receives instructions, he must tell
her about:
(a) the possibility
of reconciliation and give her the names and addresses of people qualified to
help reconcile the couple,
(b) the possibility of mediation to help bring about a separation
or divorce on an agreed basis, and give her the names and addresses of qualified
mediators, and
(c) the possibility of a written separation agreement.
s.7 (3) If the couple
are not already judicially separated, the respondent's solicitor must tell her
about judicial separation as an alternative to divorce.
s.7 (4)The solicitor
acting for the applicant must:
(a) sign a certificate
confirming he has complied with subsections (2) and, if necessary, (3) and must
hand in that document with the original petition, or else the court may adjourn
the application, and
(b) leave a copy of the certificate with any copy of the petition
served on anyone else or left in a court office.
s.7 (5) The certificate
must be in the form required by the rules of court.
s.8 (1) If both spouses
wish, the court may adjourn divorce proceedings at any time, to allow the couple
to consider reconciliation.
s.8 (2) If the court
believes the spouses can't be reconciled, it may adjourn proceedings (if both
spouses wish) to let them try and reach agreement on some, or all, of the terms
of the proposed divorce.
s.8 (3) If proceedings
are adjourned for talks on reconciliation or divorce terms, and one spouse wants
them resumed, the court will resume the proceedings.
s.8 (4) The powers
conferred by s.8 are additional to any other power the court may have to adjourn
proceedings.
s.8 (5) Where the court
does adjourn proceedings under s.8, it may advise the couple to seek the help
of a third party.
s.9 If the couple seek
assistance for the purpose of reconciliation or to reach agreement on the terms
of a divorce or separation, any oral or written communication between either
spouse and a third party (whether or not the other spouse knows about it), and
any record of such a communication by either spouse or the third party, will
not be admissible in evidence.
s.10 (1) A decree of divorce dissolves the marriage and the spouses
are free to remarry.
s.10 (2) A divorce
decree does not affect the right of a father or mother to be joint guardians
of their child.
Part III - Preliminary
and ancillary orders during or after divorce proceedings
s.11 Before the court
grants a divorce, it may make one or more of the following orders without an
application under the relevant Act:
(a) a safety order,
barring order, temporary barring order or protection order,
(b) an order for the custody, access or maintenance of a dependent
child,
(c) an order to protect the family home, its contents or any money
from its sale
s.12 (1) The court may
order either spouse to pay maintenance for the other spouse and any dependent
children from the date of the application until the court's final decision. Alternatively,
a spouse may be ordered to pay lump sums.
s.12 (2) The court
may decide appropriate terms and conditions for such payments.
s.13 (1) When the court
grants the divorce, on an application by either spouse (or on behalf of a dependent
child), the court may make any of the following orders during the lifetime of
either spouse:
(a) a periodical
payments order; that is an order
(i) for one spouse
to make payments to the other, as often, and for as long as, the Court orders
(See s.13(4)) or
(ii) for either spouse to make payments to another person
for the benefit of a dependent child, as often, and for as long as, the
court orders (See s.13(4))
(b) a secured periodical
payments order, that is an order
(i) for one spouse
to secure payments to the other to the court's satisfaction or
(ii) for either spouse to secure payments to another person
for a dependent child, to the court's satisfaction
(c) an order
(i) for one spouse
to make a lump sum payment (or payments) to the other at specified time(s)
or
(ii) for either spouse to make a lump sum payment (or payments)
to another person for a dependent child at specified time(s)
s.13 (2) The court may
order a spouse to pay a lump sum to:
(a) the other spouse
to meet any reasonably liabilities or expenses incurred before that spouse applied
for a periodical payments order or
(b) a specified person to meet any reasonably liabilities or expenses
incurred before a periodical payments application was made on behalf of a dependent
child.
s.13 (3) The court may
order that the lump sum be paid by specified instalments, and that payment be
secured.
s.13 (4) Periodical
payments shall not start before the application for the divorce and shall not
continue beyond the death of either spouse or any dependent child in whose favour
the order is made.
s.13 (5)
(a) Periodical payments
shall stop when a spouse remarries, except for any arrears due.
(b) If a spouse remarries after the divorce, the court will not
make a periodical payments order in his or her favour.
s.13 (6)
(a) At the same time
as a court makes a periodical payments order, subject to any secured order,
it shall make an attachment of earnings order if the spouse earns wages. (See
s.10(2) of the Family Law (Maintenance of Spouses and Children) Act 1976)
(b) Before making an attachment of earnings order, the court shall
take into account the spouse's views in relation to:
(c) whether
(i) he is paid
earnings and
(ii) he would pay the periodical payments.
(d) References to
a periodical payments order include references to an order which has been
appealed or varied (See s.22).
s.14 (1) At any time after
granting a divorce, on an application by either spouse (or on behalf of a dependent
child), the court may - during the lifetime of either spouse - make a property
adjustment order providing for one or more of the following:
(a) the transfer
of property by either spouse to the other spouse, to a dependent child or to
another person for the benefit of a dependent child
(b) the satisfactory settlement of specified property for the
benefit of the other spouse and/or any dependent child
(c) the variation of any pre-marriage or post-marriage settlement
made on the couple (including any settlement in a will), for the benefit of
either spouse and/or any dependent child
(d) the extinguishment or reduction of the interest of either
spouse under such a settlement.
s.14 (2) The court may
restrict or refuse to allow future variations of orders made under paragraphs
(b), (c) or (d).
s.14 (3) If a spouse
remarries after obtaining a divorce, the court will not make a property adjustment
order in his or her favour.
s.14 (4) Where a property
adjustment order relates to land, the registrar or clerk of the court shall
lodge a certified copy of the order in the Land Registry or Registry of Deeds.
s.14 (5) Where a person
(a) is ordered to
execute a deed or document in relation to land and
(b) refuses or fails to do so, (or if the court considers it necessary),
the court may order another
person to execute the deed or document, and that execution shall be valid.
s.14 (6) The court
will apportion any costs in relation to a property adjustment order between
the spouses.
s.14 (7) If a spouse
remarries after a divorce, the court will not make a property adjustment order
in relation to the home where that spouse lives with his or her new partner.
s.15 (1) When the court grants a divorce, on an application by
either spouse (or on behalf of a dependent child), the court may - during the
lifetime of either spouse - make any of the following orders:
(a) an order
(i)giving one
spouse the right to live in the family home for life or any other period,
to the exclusion of the other spouse or
(ii)directing the sale of the family home and the division
of the proceeds between the spouses and anyone else with an interest in
the property (See s.15(2) and s.15(3)).
(b)deciding the ownership
of any property,
(c)dispensing with the consent of a spouse who refuses to agree
to the sale of the home, an order to protect the home, an order relating to
arrears of mortgage or rent, an order restricting the disposal of household
chattels,
(d) safety, barring, interim barring or protection order on
the application of a spouse of the respondent, person who lives with the respondent,
parent of the respondent, co-habitee or health board,
(e) partition of the property,
(f) custody or access or other order relating to the welfare
of a child.
s.15 (2) In relation to
orders under subsection (1)(a), the court shall consider the welfare of the spouses
and any dependent children and, in particular, shall take into consideration:
(a) that a couple
cannot live together after they have divorced and
(b) that dependent children and dependent spouses should be provided
with proper secure accommodation.
s.15 (3) If a spouse remarries
after a divorce, subsection (1)(a) does not apply to the family home where that
spouse lives with his or her new partner.
s.16 (1) At any time
after the court grants a divorce, on an application by either spouse (or on
behalf of a dependent child) during the lifetime of either spouse, if the court
considers:
(a) that the financial
security of the applicant spouse or child can be improved or
(b) that compensation should be made to the applicant or child
for giving up a benefit, such as a pension,
the court may make a financial
compensation order requiring the other spouse to do one or more of the following:
(i) take out
a life insurance policy for the benefit of the applicant or child,
(ii) assign some or all of the benefit of an existing life
insurance policy to the applicant or child,
(iii) continue to pay life insurance premiums. (See s.16(2)(d))
s.16 (2)
(a) The court can
make a financial compensation order as well as (or instead of) all or part of
the orders under sections 13, 14, 15 or 17, but it must take into account whether,
in the circumstances, proper provision exists (or can be made) for the spouse
and child concerned.
(b) A financial compensation order ceases to apply to the applicant
if she dies or remarries.
(c) The court shall not make a financial compensation order in
favour of a spouse who has remarried.
(d) In relation to a life insurance policy, the court may vary
any order concerning the disposal of
(i) an amount
equal to the accumulated value of a policy taken out under subsection (1)(i)
or
(ii) the interest or part-interest in a policy under subsection
(1)(ii).
s.17 (1) Interpretation
section concerning pension adjustment orders.
s. 17 (See Act for
26 complicated subsections on pensions adjustment orders - or buy Divorce
In Ireland by Kieron Wood and Paul O'Shea, O'Brien Press, £8.99;
ISBN: 0-86278-524-3)
s.18 (1) Where a divorced
spouse dies, and on application by the other spouse within six months of the
grant of probate, the court may order that the applicant be provided for out
of the estate, taking into account the rights of anyone else with an interest
in the estate. The court must specify in the order that the deceased spouse
did not make proper provision for the applicant within his lifetime under sections
13-17, having regard to his circumstances, for some reason other than the applicant's
conduct.
s.18 (2) The court
shall not make an order under this section for someone who has remarried.
s.18 (3) Before making
any order, the court shall consider all the circumstances, including:
(a) any property
adjustment order or lump sum payments to the applicant
(b) any bequest made to the applicant by the deceased spouse.
s.18 (4) Taking into account
any lump sum or property adjustment order, the applicant may not receive more
than he or she would have been entitled to under the Succession Act if there had
been no divorce. The value of any lump sum or property adjustment order is taken
as its value on the date of the original order.
s.18 (5) The applicant
must give notice of the application to the spouse of the deceased person and
to anyone else the court may direct, and the court shall take account of their
views.
s.18 (6) The personal
representative of the deceased spouse shall make a reasonable attempt to inform
any potential applicant about the death of the deceased spouse and, if an application
is made, the personal representative shall not dispose of any of the estate
without the court's permission until the court has ruled on the application.
s.18 (7) Where the
personal representative of a deceased spouse has given notice to the surviving
spouse and
(a) the spouse intend
to apply for an order under this section,
(b) the spouse has already applied for an order or
(c) an order has already been made,
the surviving spouse must
notify the personal representative within a month of the notice or else the assets
may be distributed among the people entitled to them.
s.18 (8) In the case
of such a distribution, the personal representative shall not be liable to the
surviving spouse for the assets.
s.18 (9) Even if the
assets have been distributed, the surviving spouse may still try and get them
back.
s.18 (10) At any time
after the court grants a decree of divorce, it may order (on the application
of either spouse) that neither spouse be entitled to apply for an order under
this section.
s.19 (1) At any time
after the court makes a secured periodical payments, lump sum or property adjustment
order, it may order the sale of property in which either of the spouses has
an interest.
s.19 (2) The court
will not order the sale of a family home where it has already ordered that a
spouse should have the right to occupy the home.
s.19 (3)
(a) An order for
sale may contain other appropriate provisions.
(b) An order for sale may also specify:
(i) the manner
and conditions of sale,
(ii) the purchaser(s),
(iii) the date when the order is to come into effect,
(iv) payment(s) to a specified person from the proceeds of
sale, and
(v) the division of the proceeds.
s.19 (4) Periodical payments
to a spouse out of the proceeds of sale shall cease on the death or remarriage
of that spouse, except for any arrears due.
s.19 (5) The court
must take note of representations by anyone other than the spouse who has an
interest in the property or the proceeds of sale.
s.19 (6) This section
does not apply to a family home where a divorced spouse ordinarily lives with
her new spouse.
s.20 (1) The court must ensure that, in all the circumstances,
the spouses and dependent children are properly provided for when making an
order under sections 12, 13, 14, 15 (1)(a), 16, 17, 18 or 22.
s.20 (2) In particular,
the court shall also consider:
(a) the income, earning
capacity, property and other financial resources of each spouse at the time
or in the foreseeable future,
(b) the financial needs, obligations and responsibilities of each
spouse at the time or in the foreseeable future (whether in the case of remarriage
or not),
(c) the standard of living enjoyed by the family before the proceedings
began or the spouses started to live apart,
(d) the age of the spouses, duration of marriage and length of
time they lived together,
(e) any physical or mental disability of either spouse,
(f) the contribution which each spouse has made (or is likely
to make) to the welfare of the family, including contributions to the income,
earning capacity, property and financial resources of the other spouse, and
any contribution made by looking after the home or caring for the family,
(g) the effect of marital responsibility on the earning capacity
of either spouse while they were living together, and particularly the degree
to which a spouse's future earning capacity was affected by giving up the possibility
of paid work to look after the home or care for the family,
(h) any income or benefits to which either spouse is statutorily
entitled,
(i) the conduct of either of the spouses, if it would be unfair,
in all the circumstances, to disregard such conduct,
(j) the accommodation needs of either spouse,
(k) the value to either spouse of any benefit (such as a pension)
which would be lost because of the divorce,
(l) the rights of anyone else, including a new husband or wife.
s.20 (3) The court shall
consider the terms of any separation agreement still in force.
s.20 (4) In relation
to any dependent child, the court shall particularly consider:
(a) his financial
needs,
(b) his income, earning capacity, property or other financial
resources,
(c) any physical or mental disability,
(d) any income or benefits to which he is statutorily entitled,
(e) the parents' proposed education or training of the child,
(f) the matters specified in paragraphs (a), (b) and (c) of subsection
2 and subsection (3),
(g) his accommodation needs.
s.20 (5) The court shall
not make any order under subsection (1) unless it would be in the interests of
justice to do so.
s.21 (1) In an order
for periodical payments, the court may direct that:
(a) payments shall
be backdated to the date proceedings began,
(b) any retrospective payments should be paid in a lump sum by
a set date,
(c) any payments made between the start of proceedings and date
of the decree may be deducted from the lump sum.
s.21 (2) The right to
order retrospective payments does not affect the court's right to order payment
of any other lump sum.
s.22 (1) This section
applies to the following orders:
(a) maintenance pending
suit,
(b) periodical payments,
(c) secured periodical payments,
(d) lump sums by instalments or by secured instalments,
(e) the settlement of specified property and variation or extinguishment
of any settlement,
(f) a right of residence in the family home or for the sale of
the family home and division of the proceeds,
(g) financial compensation,
(h) pension adjustment,
(i) under this section.
s.22 (2) Subject to specified
restrictions, on application by
(a) either spouse,
(b) on the death of either spouse, by anyone else with a sufficient
interest or on behalf of a dependent child or
(c) by a new spouse in the case of remarriage,
in the light of changed
circumstances or new evidence, the court may temporarily or permanently change,
suspend, revive or discharge an order, and may require a person to give up property
obtained under such an order.
s.22 (3) Periodical
payments shall cease when a child reaches the age of 18 (or 23 if in full-time
education) and the court shall discharge such an order if the child has ceased
to be dependent.
s.22 (4) The power
of the court to change an order settling property, or extinguishing or varying
a settlement (subject to any restriction in the order) is a power
(a) to vary the settlement
in favour of anyone or to extinguish or reduce anyone's interest and,
(b) in the light of such variation, to make any appropriate additional
provision (including another property adjustment or lump sum order)
and s.19 will apply to
any variation of an order under subsection (2) and to any property adjustment
order.
s.22 (5) The court
shall not vary an order settling property, or extinguishing or varying a settlement
if it believes such a variation would prejudice the interests of anyone who
(a) has acquired
a right or interest as a result of the original order and
(b) is not a spouse or dependent child.
s.22 (6) This section
will apply to any legal documents executed as a result of any variation orders.
s.22 (7) Where the
court varies a property adjustment order relating to land, the registrar or
clerk of the court shall lodge a certified copy in the Land Registry or Registry
of Deeds.
s.23 The court will
disregard the conduct of spouses when deciding whether to
(a) include a dependent
child in an order for maintenance pending suit,
(b) make an order for periodical payments, secured periodical
payments or a lump sum to a dependent child,
(c) vary such orders.
s.24 (1) The court may
order that payments shall be made by a specified method and subject to appropriate
terms and conditions.
s.24 (2) This section
applies to an order under
(a) s.11 (2)(b) of
the 1964 Act (maintenance for an infant)
(b) ss. 5, 5A or 7 of the 1976 Act (maintenance of spouses and
dependent children and interim order)
(c) ss. 7, 8 or 24 of the 1995 Act (maintenance pending suit,
periodical payments, lump sum orders and maintenance pending relief) and
(d) ss. 12, 13, 19 or 22 of this Act (financial or property orders).s.25
Where there is an appeal against any such order (except in relation to lump sum
payments, property sale or residence orders), there will be no stay on the order
unless the court that made the order (or the appeal court) rules otherwise.
s.26 (1) Where an order
is in force for
(a) maintenance,
variation of maintenance or interim maintenance under the 1976 Act,
(b) periodical or lump sum payments, property adjustment, sale,
transfer or partition, right to occupy the family home or guardianship under
the 1989 Act,
(c) periodical or lump sum payments, property adjustment, sale,
transfer or partition, the right to occupy the family home, guardianship, pension
adjustment, extinction of succession rights or financial compensation under
the 1995 Act
the court may discharge
it if the spouse in whose favour the order was made applies for a divorce or an
order under Part III of this Act.
s.26 (2) If the court
does not discharge the order when it grants a divorce, it will remain in force
and s.22 of this Act will apply to it.
s.27 Amendment of the
interpretation section of the Family Law (Maintenance of Spouses and Children)
Act 1976.
s.28 Orders for maintenance
pending suit, periodical payments or secured periodical payments may be made
through the District Court clerk, with any necessary modifications, including
that
(a) the reference
in s.9(4) of the 1976 Act to the "maintenance creditor" means the person to
whom payments are to be made,
(b) other references in s.9 to the "maintenance creditor" refer
to the person who applied for the order and
(c) the reference in s.9(3) to the "maintenance debtor" means
the person required to make payments under the order.
s.29 The reference to
"alimony" in the Defence Act 1954 includes orders for maintenance pending suit,
periodical payments and secured periodical payments.
s.30 Amendment of Enforcement of Court Orders Act 1940.
Part IV - Income
tax, capital acquisitions tax, capital gains tax, probate tax and stamp duty
s.31 Payments under
this Act (other than pensions) shall be made without deduction of income tax.
s.32 Where a legally-enforceable
maintenance agreement is made in a year of assessment by one spouse for the
benefit of a divorced spouse and
(a) both parties
are resident in the State for tax purposes during that tax year and
(b) neither spouse has remarried,
then both spouses will
be separately assessed for income tax, as if they had not been divorced.
s.33 (1) Stamp duty
will not be chargeable on a property transfer by either or both divorced spouses
to either or both of them (See subsection (3))
s.33 (2) Stamp duty
(normally payable on gifts from one person to another) shall not apply to such
a transfer.
s.33 (3) Subsection
(1)
(a) applies to an
order under Part III of this Act.
(b) does not apply to any property transferred to anyone else.
s.34 Any gift or inheritance
that the court orders one spouse to give to the other shall be exempt from capital
acquisitions tax and shall not be taken into account when computing such a tax.
s.35 (1) If the court orders either spouse to dispose of an asset
to the other spouse on divorce, both spouses shall be treated, for the purposes
of capital gains tax, as if there were no loss or gain on the disposal. (This
does not apply if the asset was part of the stock in the trade of the disposing
spouse or if it is acquired as trading stock by the other spouse.)
s.35 (2) In the case
of any subsequent disposal of the same asset, the spouse making the disposal
will be treated (for capital gains tax purposes) as if the other spouse's acquisition
or provision of the asset was that of the disposing spouse.
s.36 (1) Abatement
or postponement of probate tax payable by a surviving spouse (under s.115A(1)
of the Finance Act 1993) shall apply (with any necessary modifications) to
(a) a spouse who
has been granted an order providing a benefit from the estate of his or her
deceased former spouse and
(b) any property interest which is the subject of such an order,
in the same way as it applies to a person in s.115A who shares in the estate
(or property interest) of a deceased spouse
Part V - Miscellaneous
s.37 (1) Interpretation
section.
s.37 (2)
(a) If proceedings
have not been decided, the court may - on the application of the person
bringing the proceedings -
(i) restrain
anyone from disposing of property or transferring it out of the State with
the intention of defeating the applicant's claim
(ii) set aside any disposition of property which has been
disposed of to defeat the applicant's claim. (This does not apply to a property
bought in good faith from a party to proceedings.) (See s.37(2)(c))
(b) Where proceedings
have been decided, if the court believes the other spouse (or anyone else)
has disposed of property to defeat the applicant's claim, it may set aside
the disposition.
(c) An application under paragraph (a) shall be brought as part
of the relevant proceedings.
s.37 (3) The court shall
include in any order under subsection (2)(a) or (b) anything necessary for the
order to be carried out, including the payment of money or disposition of any
property.
s.37 (4) If the disposition
of any property under subsection (2) took place less than three years before
the application, or where the other spouse proposes to dispose of property and
the court is satisfied that the disposition,
(a) would defeat,
or
(b) has defeated
the applicant's claim,
the court will presume (unless proved otherwise) that the intention was to defeat
the claim.
s.38 (1) The Circuit
Family Court, as well as the High Court, may hear proceedings under this Act.
s.38 (2) Circuit Family
Court proceedings relating to land with a rateable value of more than £200
must be transferred to the High Court on the application of anyone with an interest
in the proceedings, but any order made by the Circuit Court before the transfer
shall be valid unless the High Court decides otherwise. (See s.38(4))
s.38 (3) A Circuit
Court judge may hear proceedings under this Act if any of the parties normally
lives or works in the circuit area.
s.38 (4) If land has
not been given a separate rateable valuation, the Circuit Court may decide its
valuation.
s.38 (5) The Circuit
Court shall hear proceedings under this Act in a different place (or different
times or days) from other proceedings. Wigs and gowns will not be worn by judges
or lawyers. The proceedings will be in camera and as informal as possible, consistent
with the administration of justice.
s.38 (6) In proceedings
under sections 13, 14, 15 (1)(a), 16, 17, 18 or 22,
(a) each spouse shall
give the other spouse and to anyone representing the interests of a dependent
child and
(b) any dependent child shall give any other dependent child,
anyone acting on behalf of such a child and each spouse
any details of property
and income that may reasonably be required.
s.38 (7) If a person
fails to give such details, the court - on an application by anyone with an
interest in the proceedings - may direct him to comply.
s.39 (1) The court
may only grant a decree of divorce if
(a) either spouse
was domiciled in the State on the date the proceedings were instituted or
(b) either spouse was ordinarily resident in the State for one
year ending on that date.
s.39 (2) Where the court
is hearing a divorce petition or appeal, it may grant a decree of judicial separation
or nullity instead.
s.39 (3) Where the
court is hearing a nullity petition or appeal, it may grant a decree of divorce
instead.
s.39 (4) Where the
court is hearing a judicial separation application or appeal, it may grant a
decree of divorce instead.
s.40 Anyone bringing proceedings under this Act must give notice
to
(a) the other spouse(s)
concerned and
(b) anyone else specified by the court.
s.41 Where the court grants
a divorce, it may declare that either of the parents is unfit to have custody
of any dependent children under 18 and, if the other spouse dies, that parent
shall not automatically have a right to the custody of those children.
s.42 The court may
order social reports from a probation officer, health board or anyone else.
s.43 The cost of any
mediation or counselling services for a spouse under this Act or the 1989 Act,
or for a dependent child of such a spouse, shall be at the discretion of the
court.
s.44 Where an engagement
is broken off, the court will have power - as if the couple were married - to
decide any dispute or claim to property in which either had an interest while
they were engaged.
s.45 Amendment of the Judicial Separation and Family Law Reform
Act 1989.
s.46 Amendment of the
Succession Act 1965.
s.47 Amendment of the
Pensions Act 1990.
s.48 Amendment of the
Criminal Damage Act 1991.
s. 49 Amendment of
the Criminal Evidence Act 1992.
s. 50 Amendment of the Powers of Attorney Act 1996.
s.51 Amendment of the
Domestic Violence Act 1996.
s.52 Amendment of the
Family Law Act 1995.
s.53 Amendment of the
Maintenance Act 1994 (as amended by the Family Law Act 1995).
(Note: "Dependent child"
in this synopsis includes those in full-time education up to the age of 23 and
those who are dependent by reason of physical or mental handicap. "He" and "she"
and like words are interchangeable.)
