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33 1996

FAMILY LAW (DIVORCE) ACT, 1996

PART V

Miscellaneous

Powers of court in relation to transactions intended to prevent or reduce relief.

37. —(1) In this section—

disposition” means any disposition of property howsoever made other than a disposition made by a will or codicil;

relief” means the financial or other material benefits conferred by an order under section 12 , 13 or 14 , paragraph (a) or (b) of section 15 (1) or section 16 , 17 , 18 or 22 (other than an order affecting an order referred to in subsection (1) (e) thereof) and references to defeating a claim for relief are references to—

(a) preventing relief being granted to the person concerned, whether for the benefit of the person or a dependent member of the family concerned,

(b) limiting the relief granted, or

(c) frustrating or impeding the enforcement of an order granting relief;

reviewable disposition”, in relation to proceedings for the grant of relief brought by a spouse, means a disposition made by the other spouse concerned or any other person but does not include such a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in good faith and without notice of an intention on the part of the respondent to defeat the claim for relief.

(2) (a) The court, on the application of a person (“the applicant”) who has instituted proceedings that have not been determined for the grant of relief, may—

(i) if it is satisfied that the other spouse concerned or any other person, with the intention of defeating the claim for relief, proposes to make any disposition of or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining that other spouse or other person from so doing or otherwise for protecting the claim,

(ii) if it is satisfied that that other spouse or other person has, with that intention, made a reviewable disposition and that, if the disposition were set aside, relief or different relief would be granted to the applicant, make an order setting aside the disposition.

(b) Where relief has been granted by the court and the court is satisfied that the other spouse concerned or another person has, with the intention aforesaid, made a reviewable disposition, it may make an order setting aside the disposition.

(c) An application under paragraph (a) shall be made in the proceedings for the grant of the relief concerned.

(3) Where the court makes an order under paragraph (a) or (b) of subsection (2), it shall include in the order such provisions (if any) as it considers necessary for its implementation (including provisions requiring the making of any payments or the disposal of any property).

(4) Where an application is made under subsection (2) with respect to a disposition that took place less than 3 years before the date of the application or with respect to a disposition or other dealing with property that the other spouse concerned or any other person proposes to make and the court is satisfied—

(a) in case the application is for an order under subsection (2) (a) (i), that the disposition or other dealing concerned would (apart from this section) have the consequence, or

(b) in case the application is for an order under paragraph (a) (ii) or (b) of subsection (2), that the disposition has had the consequence,

of defeating the applicant's claim for relief, it shall be presumed, unless the contrary is shown, that that other spouse or other person disposed of or otherwise dealt with the property concerned, or, as the case may be, proposes to do so, with the intention of defeating the applicant's claim for relief.

Jurisdiction of courts and venue.

38. —(1) Subject to the provisions of this section, the Circuit Court shall, concurrently with the High Court, have jurisdiction to hear and determine proceedings under this Act and shall, in relation to that jurisdiction, be known as the Circuit Family Court.

(2) Where the rateable valuation of any land to which proceedings in the Circuit Family Court under this Act relate exceeds £200, that Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.

(3) The jurisdiction conferred on the Circuit Family Court by this Act may be exercised by the judge of the circuit in which any of the parties to the proceedings ordinarily resides or carries on any business, profession or occupation.

(4) The Circuit Family Court may, for the purposes of subsection (2) in relation to land that has not been given a rateable valuation or is the subject with other land of a rateable valuation, determine that its rateable valuation would exceed, or would not exceed, £200.

(5) Section 32 of the Act of 1989 shall apply to proceedings under this Act in the Circuit Family Court and sections 33 to 36 of that Act shall apply to proceedings under this Act in that Court and in the High Court.

(6) In proceedings under section 13 , 14 , 15 (1) (a), 16 , 17 , 18 or 22

(a) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and

(b) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned,

such particulars of his or her property and income as may reasonably be required for the purposes of the proceedings.

(7) Where a person fails or refuses to comply with subsection (6), the court on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.

Exercise of jurisdiction by court in relation to divorce.

39. —(1) The court may grant a decree of divorce if, but only if, one of the following requirements is satisfied—

(a) either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned,

(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date.

(2) Where proceedings are pending in a court in respect of an application for the grant of a decree of divorce or in respect of an appeal from the determination of such an application and the court has or had, by virtue of subsection (1), jurisdiction to determine the application, the court shall, notwithstanding section 31(4) of the Act of 1989 or section 39 of the Act of 1995, as the case may be, have jurisdiction to determine an application for the grant of a decree of judicial separation or a decree of nullity in respect of the marriage concerned.

(3) Where proceedings are pending in a court in respect of an application for the grant of a decree of nullity or in respect of an appeal from the determination of such an application and the court has or had, by virtue of section 39 of the Act of 1995, jurisdiction to determine the application, the court shall, notwithstanding subsection (1), have jurisdiction to determine an application for the grant of a decree of divorce in respect of the marriage concerned.

(4) Where proceedings are pending in a court in respect of an application for the grant of a decree of judicial separation or in respect of an appeal from the determination of such an application and the court has or had, by virtue of section 31 (4) of the Act of 1989, jurisdiction to determine the application, the court shall, notwithstanding subsection (1), have jurisdiction to determine an application for the grant of a decree of divorce in respect of the marriage concerned.

Notice of proceedings under Act.

40. —Notice of any proceedings under this Act shall be given by the person bringing the proceedings to—

(a) the other spouse concerned or, as the case may be, the spouses concerned, and

(b) any other person specified by the court.

Custody of dependent members of family after decree of divorce.

41. —Where the court makes an order for the grant of a decree of divorce, it may declare either of the spouses concerned to be unfit to have custody of any dependent member of the family who is a minor and, if it does so and the spouse to whom the declaration relates is a parent of any dependent member of the family who is a minor, that spouse shall not, on the death of the other spouse, be entitled as of right to the custody of that minor.

Social reports in family law proceedings.

42. —Section 47 of the Act of 1995 shall apply to proceedings under this Act.

Cost of mediation and counselling services.

43. —The cost of any mediation services or counselling services provided for a spouse who is or becomes a party to proceedings under this Act, the Act of 1964 or the Act of 1989 or for a dependent member of the family of such a spouse shall be in the discretion of the court concerned.

Determination of questions between persons formerly engaged to each other in relation to property.

44. —Where an agreement to marry is terminated, section 36 of the Act of 1995 shall apply, as if the parties to the agreement were married to each other, to any dispute between them, or claim by one of them, in relation to property in which either or both of them had a beneficial interest while the agreement was in force.

Amendment of Act of 1989.

45. —The Act of 1989 is hereby amended—

(a) in section 3 (2) (a), by the substitution of the following subparagraph for subparagraph (i):

“(i) is satisfied that such provision exists or has been made, or”,

(b) in section 7, by the deletion of subsection (7), and

(c) by the insertion of the following section before section 8:

“Non-admissibility as evidence of certain communications relating to reconciliation or separation.

7A.—An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.”.

Amendment of Act of 1965.

46. —Section 117 (6) of the Act of 1965 is hereby amended by the substitution of “6 months” for “twelve months”.

Amendment of Pensions Act, 1990.

47. —The Pensions Act, 1990 , is hereby amended as follows:

(a) in subsection (4) (a) (inserted by the Pensions (Amendment) Act, 1996) of section 5, by the substitution of “paragraph (c) or (cc) of section 10 (1)” for “section 10 (1) (c),”,

(b) subsection (4) (inserted by the Pensions (Amendment) Act, 1996) of section 5 shall apply and have effect in relation to section 17 as it applies and has effect in relation to section 12 of the Act of 1995 with the modifications that—

(i) the reference to the said section 12 shall be construed as a reference to section 17 ,

(ii) the reference in paragraph (c) to the Family Law Act, 1995, shall be construed as a reference to the Family Law (Divorce) Act, 1996,

(iii) the references to subsections (1), (2), (3), (5), (6), (7), (8), (10) and (25) of the said section 12 shall be construed as references to subsections (1), (2), (3), (5), (6), (7), (8), (10) and (25), respectively, of section 17 , and

(iv) the reference to section 2 of the Act of 1995 shall be construed as a reference to section 2 ,

and

(c) in section 10 (1), by the substitution for paragraph (cc) (inserted by the Pensions (Amendment) Act, 1996) of the following paragraph:

“(cc) to issue guidelines or guidance notes generally on the operation of this Act and on the provisions of the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996, relating to pension schemes (within the meaning of section 2 of the Family Law Act, 1995 and section 2 of the Family Law (Divorce) Act, 1996);”.

Amendment of Criminal Damage Act, 1991.

48. Section 1 (3) of the Criminal Damage Act, 1991 , is hereby amended—

(a) in paragraph (a), by the insertion after “1976,” of the following:

“or a dwelling, within the meaning of section 2 (2) of the Family Home Protection Act, 1976 , as amended by section 54 (1) (a) of the Family Law Act, 1995, in which a person, who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996, or under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State, ordinarily resided with his or her former spouse, before the dissolution”,

and

(b) in paragraph (b), by the substitution of the following subparagraph for subparagraph (i):

“(i) is the spouse of a person who resides, or is entitled to reside, in the home or is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996, or under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State, and”.

Amendment of Criminal Evidence Act, 1992.

49. Section 20 of the Criminal Evidence Act, 1992 , is hereby amended in section 20—

(a) by the insertion of the following definition:

“‘decree of divorce’ means a decree under section 5 of the Family Law (Divorce) Act, 1996 or any decree that was granted under the law of a country or jurisdiction other than the State and is recognised in the State;”,

and

(b) by the substitution of the following definition for the definition of former spouse:

“‘former spouse’ includes a person who, in respect of his or her marriage to an accused—

(a) has been granted a decree of judicial separation, or

(b) has entered into a separation agreement, or

(c) has been granted a decree of divorce;”.

Amendment of Powers of Attorney Act, 1996.

50. —The Powers of Attorney Act, 1996, is hereby amended—

(a) in section 5 (7), by the substitution of the following paragraph for paragraph (a):

“(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,”,

(b) in Part I of the Second Schedule, by the insertion of the following paragraph:

“2A. The expiry of an enduring power of attorney effected in the circumstances mentioned in section 5 (7) shall apply only so far as it relates to an attorney who is the spouse of the donor.”.

Amendment of Act of 1996.

51. —The references in sections 2 and 3 of the Act of 1996 to a spouse shall be construed as including references to a person who is a party to a marriage that has been dissolved under this Act or under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State.

Amendment of Act of 1995.

52. —The Act of 1995 is hereby amended—

(a) in section 8—

(i) in subsection (1), by the insertion of “or at any time thereafter” after “separation”,

(ii) in paragraph (c) (i) of that subsection, by the insertion of “or” after “so specified”, and

(iii) in subsection (4), by the substitution of “the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned” for “either of the spouses concerned”,

(b) in section 9 (1), by the insertion of “or at any time there-after” after “separation”,

(c) in section 10—

(i) in subsection (1), by the insertion of “or at any time thereafter” after “separation”, and

(ii) by the insertion after subsection (2) of the following subsection:

“(3) Subsection (1) (a) shall not apply in relation to a family home in which, following the grant of a decree of judicial separation, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.”,

(d) in sections 11 (2) (a), 12 (23) (b) and 25 (1), by the substitution of “proper provision, having regard to the circumstances,” for “adequate and reasonable financial provision”, in each place where it occurs,

(e) in section 12—

(i) in subsection (1), in the definition of “relevant guidelines”, by the substitution of “paragraph (c) or (cc) of section 10 (1)” for “section 10 (1) (c)”, and

(ii) in subsection (18), by the substitution of “40” for “41”,

(f) in section 15—

(i) in subsection (5), by the substitution of “10 (1) (a)” for “10 (1) (a) (ii)”, and

(ii) by the insertion of the following subsection after subsection (5):

“(6) This section shall not apply in relation to a family home in which, following the grant of a decree of judicial separation, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.”,

(g) by the insertion of the following section after section 15:

“Orders for provision for spouse out of estate of other spouse.

15A.—(1) Subject to the provisions of this section, where, following the grant of a decree of judicial separation, a court makes an order under section 14 in relation to the spouses concerned and one of the spouses dies, the court, on application to it in that behalf by the other spouse (‘the applicant’) not more than 6 months after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased spouse under section 8, 9, 10 (1) (a), 11 or 12 for any reason (other than conduct referred to in subsection (2) (i) of section 16 of the applicant).

(2) The court shall not make an order under this section if the applicant concerned has remarried since the granting of the decree of judicial separation concerned.

(3) In considering whether to make an order under this section the court shall have regard to all the circumstances of the case including—

(a) any order under paragraph (c) of section 8 (1) or a property adjustment order in favour of the applicant, and

(b) any devise or bequest made by the deceased spouse to the applicant.

(4) 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 court had not made an order under section 14.

(5) Notice of an application under this section shall be given by the applicant to the spouse (if any) of the deceased spouse concerned and to such (if any) other persons as the court may direct and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by the spouse of the deceased spouse and any other such persons as aforesaid.

(6) The personal representative of a deceased spouse in respect of whom a decree of judicial separation has been granted shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.

(7) Where the personal representative of a deceased spouse in respect of whom a decree of judicial separation has been granted gives notice of his or her death to the other spouse concerned (‘the spouse’) and—

(a) the spouse intends to apply to the court for an order under this section,

(b) the spouse has applied for such an order and the application is pending, or

(c) an order has been made under this section in favour of the spouse,

the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.

(8) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.

(9) Nothing in subsection (7) or (8) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.

(10) On granting a decree of judicial separation or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers it just to do so, make an order that either or both spouses shall not, on the death of either of them, be entitled to apply for an order under this section.”,

(h) in section 16 (1)—

(i) by the insertion of “15A,” after “14,”,

(ii) by the substitution of “exists or will be made” for “is made”, and

(iii) by the substitution of “proper” for “adequate and reasonable”,

(i) in section 18, in subsection (1) (h), by the insertion of “insofar as such application is not restricted or excluded by section 12 (26)” after “section 12”,

(j) in section 25—

(i) in subsection (1), by the substitution, as respects applications under that section made after the commencement of the Family Law (Divorce) Act, 1996, of “6 months” for “12 months”, and

(ii) by the substitution of the following subsections for subsection (7):

“(7) The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.

(8) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State gives notice of his or her death to the other spouse concerned (‘the spouse’) and—

(a) the spouse intends to apply to the court for an order under this section,

(b) the spouse has applied for such an order and the application is pending, or

(c) an order has been made under this section in favour of the spouse,

the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.

(9) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.

(10) Nothing in subsection (8) or (9) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.”,

(k) in section 29, by the insertion of the following subsection after subsection (10):

“(11) In this section a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996.”,

(l) in section 35 (1)—

(i) by the insertion in the definition of “relief”, of “15A,” after “13,”, and

(ii) by the insertion in that definition, after paragraph (a), of the following paragraph:

“(aa) an order under section 11 (2) (b) of the Act of 1964 or section 5, 5A or 7 of the Act of 1976, or”,.

(m) in section 36—

(i) in subsection (7) (a) (i), by the insertion of “or dissolved”, after “annulled”, and

(ii) in subsection (8), after paragraph (c), by the insertion of the following paragraph:

“(cc) either of the parties to a marriage that has been dissolved under the law of the State,”,

(n) in section 38 (7), by the insertion of “15A,” after “14,”,

(o) in section 43—

(i) in paragraph (a), by the substitution of the following subparagraph for subparagraph (ii):

“(ii) in the definition of ‘dependent child’ the substitution of ‘18’ for ‘sixteen’ and ‘23’ for ‘twenty-one’, and”,

and

(ii) by the substitution of the following paragraph for paragraph (e):

“(e) in section 23, after subsection (2), the insertion of the following subsections:

‘(3) In proceedings under this Act—

(a) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and

(b) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned,

such particulars of his or her property and income as may reasonably be required for the purpose of the proceedings.

(4) Where a person fails or refuses to comply with subsection (3), the Court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.’.”,

and

(p) in section 47—

(a) in subsection (6), by the substitution of “This section” for “Subsection (1)”, and

(b) in subsection (7), by the substitution of “(1) (b)” for “(2)”.

Amendment of Maintenance Act, 1994.

53. —The Maintenance Act, 1994 (as amended by the Act of 1995), is hereby amended—

(a) in section 3, in subsection (1), by the insertion of the following definition:

“‘the Act of 1996’ means the Family Law (Divorce) Act, 1996;”,

(b) in section 4, by the substitution of the following paragraph for paragraph (a) of subsection (2):

“(a) For the purposes of section 8 of the Enforcement of Court Orders Act, 1940 , the Act of 1976, the Act of 1988, the Act of 1993 (as amended by this Act), the Act of 1995, the Act of 1996 and this Act, the Central Authority shall have authority to act on behalf of, as the case may be, a maintenance creditor or claimant, within the meaning of section 13 (1), and references in those enactments to a maintenance creditor or such a claimant shall be construed as including references to the Central Authority.”,

(c) in section 14—

(i) in subsection (1) (c), by the substitution of the following subparagraph for subparagraph (i):

“(i) if the amount of the maintenance sought to be recovered exceeds the maximum amount which the District Court has jurisdiction to award under the Act of 1976 or the request is for a relief order (within the meaning of the Act of 1995) or a maintenance pending suit order, a periodical payments order, a secured periodical payments order or a lump sum order (within the meaning, in each case, of the Act of 1996), make an application to the Circuit Court,”,

and

(ii) by the substitution of the following subsection for subsection (3):

“(3) An application referred to in subsection (1) (c) shall be deemed to be an application for a maintenance order under section 5 or section 5A or 21A (inserted by the Status of Children Act, 1987 ) of the Act of 1976, or the appropriate order referred to in subsection (1) (c) (i), as may be appropriate, and to have been made on the date on which the request of the claimant for the recovery of maintenance was received by the Central Authority of the designated jurisdiction concerned.”.

Acts Referred to

Adoption Acts, 1952 to 1991

Capital Acquisitions Tax Act, 1976

1976, No. 8

Capital Gains Tax Acts

Censorship of Publications Act, 1929

1929, No. 21

Criminal Damage Act, 1991

1991, No. 31

Criminal Evidence Act, 1992

1992, No. 12

Defence Act, 1954

1954, No. 18

Domestic Violence Act, 1996

1996, No. 1

Enforcement of Court Orders Act, 1940

1940, No. 23

Family Home Protection Act, 1976

1976, No. 27

Family Law Act, 1995

1995, No. 26

Family Law (Maintenance of Spouses and Children) Act, 1976

1976, No. 11

Finance (1909-10) Act, 1910

1910, c. 8

Finance Act, 1972

1972, No. 19

Finance Act, 1983

1983, No. 15

Finance Act, 1993

1993, No. 13

Finance Act, 1994

1994, No. 13

Guardianship of Infants Act, 1964

1964, No. 7

Income Tax Act, 1967

1967, No. 6

Income Tax Acts

Insurance Act, 1989

1989, No. 3

Judicial Separation and Family Law Reform Act, 1989

1989, No. 6

Maintenance Act, 1994

1994, No. 28

Partition Act, 1868

1868, c. 40

Partition Act, 1876

1876, c. 17

Pensions Act, 1990

1990, No. 25

Pensions (Amendment) Act, 1996

1996, No. 18

Powers of Attorney Act, 1996

1996, No. 12

Registration of Title Act, 1964

1964, No. 16

Social Welfare Acts

Status of Children Act, 1987

1987, No. 26

Succession Act, 1965

1965, No. 27