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THE IRISH DIVORCE
ACT - IN SIMPLER TERMS
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.
FAMILY
LAW (DIVORCE) ACT 1996
Go to Sections
1-4; 5-19; 10-14; 15-19;
20-24;
25-29; 30-34;
35-39;
40-44; 45-49;
50-53.
Part I - Preliminary
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.)
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