THE IRISH DIVORCE ACT – IN SIMPLER TERMS
Ireland’s Family Law (Divorce) Act 1996 has fundamentally affected 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 (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.
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:
(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:
(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:
(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:
(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.
(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:
(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
(ii) for either spouse to secure payments to another person for a dependent child, to the court’s satisfaction
(c) an order
(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:
(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.
(b) If a spouse remarries after the divorce, the court will not make a periodical payments order in his or her favour.
(b) Before making an attachment of earnings order, the court shall take into account the spouse’s views in relation to:
(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:
(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
(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:
(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:
(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:
(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))
(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
(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:
(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
(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.
(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:
(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:
(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:
(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
(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
(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
(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
(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
(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
(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
(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.
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
(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)
(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
(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
(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,
(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,
(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
(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
(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.)