Cohabitant Relief
CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010
Application for redress in respect of economically dependent qualified cohabitant.
173.— (1) A qualified cohabitant may, subject to any agreement under section 202, apply to the court, on notice to the other cohabitant, for an order under sections 174, 175 and 187 or any of them.
(2) If the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make the order concerned.
(3) In determining whether or not it is just and equitable to make an order in all the circumstances, the court shall have regard to—
(a) the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future,
(b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,
(c) the rights and entitlements of any civil partner or former civil partner,
(d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,
(e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another,
(f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,
(g) any contributions made by either of them in looking after the home,
(h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,
(i) any physical or mental disability of the qualified cohabitant, and
(j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.
(4) The court may order that notice be given to any other person that it specifies and may hear the other person on the terms and in respect of the matters it thinks fit in the interests of justice before making an order referred to in this section.
(5) The court shall not make an order referred to in this section in favour of a qualified cohabitant that would affect any right of any person to whom the other cohabitant is or was married.
(6) The court may, on the application of the qualified cohabitant or the other cohabitant, if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, including any change in the circumstances occasioned by a variation by another order of the court made in favour of a person to whom the other cohabitant is or was married, by order—
(a) vary or discharge an order under section 175 or 187 ,
(b) suspend any provision of such an order,
(c) suspend temporarily any provision of such an order,
(d) revive the operation of a suspended provision,
(e) further vary an order previously varied under this section, or
(f) further suspend or revive the operation of a provision previously suspended or revived under this section.
(7) Where the court makes an order under section 174, 175 (1)(c) or 187 in favour of a qualified cohabitant, the court may, in the same proceedings or at any later date, on the application of either of the qualified cohabitants concerned, order that either or both of them shall not, on the death of the other, be entitled to apply for an order under section 194.
(8) If the order under section 174, 175(1)(c) or 187 referred to in subsection (7) has been made but not yet executed at the time that the order is made under subsection (7), the order under subsection (7) shall not take effect until the execution of that other order.
Property adjustment orders.
174.— (1) An order under this section may provide for one or more of the following matters:
(a) the transfer by either of the cohabitants to or for the benefit of the other, of specified property in which the cohabitant has an interest either in possession or reversion;
(b) the settlement to the satisfaction of the court of specified property in which the cohabitant has an interest either in possession or reversion, for the benefit of the other cohabitant or of a dependent child;
(c) the variation for the benefit of either of the cohabitants or of a dependent child of an agreement referred to in section 202 (subject to section 202(4)) or another settlement (including one made by will or codicil) made on the cohabitants; and
(d) the extinguishment or reduction of the interest of either of the cohabitants under an agreement referred to in section 202 (subject to section 202(4)).
(2) Before making an order under this section, the court shall have regard to whether in all the circumstances it would be practicable for the financial needs of the qualified cohabitant to be met by an order made under section 175 or 187, having regard to all the circumstances, including the likelihood of a future change of circumstances of either of the qualified cohabitants.
Annotations
Editorial Notes:
E32
Certain property transfers between civil partners pursuant to an order under section exempted from stamp duty by Stamp Duties Consolidation Act 1999 (31/1999), s. 97A; as inserted (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 2 and sch. 2 item 11, commenced as per s. 5(8)(d); and as amended (31.03.2012) by Finance Act 2012 (9/2012), s. 107 and sch. 3 item 31, commenced on enactment.
Compensatory maintenance orders.
175.— (1) The court, on application to it in that behalf by the qualified cohabitant, may, during the lifetime of either of the cohabitants, make one or more of the following orders:
(a) an order that either of the cohabitants make to the other the periodical payments in the amounts, during the period and at the times that may be specified in the order;
(b) an order that either of the cohabitants secure to the other, to the satisfaction of the court, the periodical payments of the amounts, during the period and at the times that may be specified in the order; and
(c) an order that either of the cohabitants make to the other a lump sum payment or lump sum payments of the amount or amounts and at the time or times that may be specified in the order.
(2) The court may order a qualified cohabitant to pay a lump sum to the other qualified cohabitant to meet any liabilities or expenses reasonably incurred by the other qualified cohabitant in maintaining himself or herself before the making of an application by the other qualified cohabitant for an order under subsection (1).
(3) An order under this section for the payment of a lump sum may provide for the payment of the lump sum by instalments of the amounts that may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.
(4) The period specified in an order under subsection (1)(a) or (b) shall begin not earlier than the date of the application for the order and shall end not later than the date of death of the first qualified cohabitant to die.
(5) An order made under subsection (1)(a) or (b) ceases to have effect on the marriage or registration in a civil partnership, or in a legal relationship that is the subject of an order under section 5, of the qualified cohabitant in whose favour the order was made, except as respects payments due under it on the date of the marriage or registration.
(6) The court shall not make an order under this section in favour of a qualified cohabitant who has married or registered in a civil partnership, or in a legal relationship that is the subject of an order under section 5.
(7) The court that makes an order under subsection (1)(a) shall, in the same proceedings, make an attachment of earnings order under section 176 to secure payments under the order if it is satisfied, after taking into consideration any representations on the matter made to it by the qualified cohabitant ordered to make payments under that subsection, that—
(a) the order is desirable to secure payments under an order under subsection (1) (a) and any variations and affirmations of that order, and
(b) the person against whom the attachment of earnings order is made is a person to whom earnings fall to be paid.
Attachment of earnings order.
176.— (1) For the purposes of this section and sections 177 to 186 —
“antecedent order” means an order under section 175;
“attachment of earnings order” means an order directing that an employer deduct from the maintenance debtor’s earnings, at the times specified in the order, periodical deductions of the appropriate amounts specified in the order, having regard to the normal deduction rate and the protected earnings rate;
“employer” includes a trustee of a pension scheme under which the maintenance debtor is receiving periodical pension benefits;
“maintenance creditor” in relation to an attachment of earnings order, means the qualified cohabitant who applied for the order;
“maintenance debtor” means a qualified cohabitant who is required by an antecedent order to make payments;
“normal deduction rate” means the rate at which the court considers it reasonable that the earnings to which the attachment of earnings order relates should be applied in satisfying an antecedent order, not exceeding the rate that appears to the court to be necessary for—
(a) securing payment of the sums falling due from time to time under the antecedent order, and
(b) securing payment within a reasonable period of any sums already due and unpaid under the antecedent order and any costs incurred in proceedings relating to the antecedent order payable by the maintenance debtor;
“protected earnings rate” means the rate below which, having regard to the needs of the maintenance debtor, the court considers it proper that the relevant earnings should not be reduced by a payment made in pursuance of the attachment of earnings order.
(2) The court may, on application to it in that behalf, make an attachment of earnings order if it is satisfied that the maintenance debtor is a person to whom earnings fall to be paid and that the order is desirable to secure payments under the antecedent order and any amendments, variations and affirmations of it.
(3) The court that makes an antecedent order, or an order that makes, varies or affirms on appeal an antecedent order, shall make an attachment of earnings order in the same proceedings if it is satisfied of the things mentioned in subsection (2).
(4) A person to whom an attachment of earnings order is directed shall pay the amounts ordered to be deducted to the maintenance creditor or to the District Court clerk specified in the order for transmission to the maintenance creditor.
(5) Before deciding whether to make or refuse to make an attachment of earnings order, the court shall give the maintenance debtor an opportunity to make representations, and shall have regard to any representations made, relating to whether the maintenance debtor—
(a) is a person to whom earnings fall to be paid, and
(b) would make the payments to which the relevant order relates.
(6) The court shall include in an attachment of earnings order the particulars required so that the person to whom the order is directed may identify the maintenance debtor.
(7) Payments under an attachment of earnings order are in lieu of payments of the like amount under the antecedent order that have not been made and that, but for the attachment of earnings order, would fall to be made under the antecedent order.
Compliance with attachment of earnings order.
177.— (1) The court registrar or court clerk specified in the attachment of earnings order shall cause the order to be served on the person to whom it is directed and on any person who subsequently becomes the maintenance debtor’s employer and of whom the registrar or clerk becomes aware.
(2) The service may be effected by leaving the order or a copy of it at the person’s residence or place of business in the State, or by sending the order or a copy of it, by registered prepaid post, to that residence or place of business.
(3) A person to whom an attachment of earnings order is directed shall comply with it if it is served on him or her but is not liable for non-compliance before 10 days have elapsed since the service.
(4) If a person to whom an attachment of earnings order is directed is not the maintenance debtor’s employer or ceases to be the maintenance debtor’s employer, the person shall, within 10 days from the service or the date of cesser, give notice of that fact to the court.
(5) The person shall give to the maintenance debtor a statement in writing of the total amount of every deduction made from a maintenance debtor’s earnings in compliance with an attachment of earnings order.
Application of sums received by clerk.
178.— Payments made to a court clerk under an attachment of earnings order shall, when transmitted by the clerk to the maintenance creditor, be deemed to be payments made by the maintenance debtor so as to discharge—
(a) firstly, any sums payable under the antecedent order, and
(b) secondly, any costs in proceedings relating to the antecedent order payable by the maintenance debtor when the attachment of earnings order was made or last varied.
Statement as to earnings.
179.— (1) In relation to an attachment of earnings order or an application for one, the court may, before or at the hearing or while the order is in force, order—
(a) the maintenance debtor to give to the court, within a specified period, a signed statement in writing specifying—
(i) the name and address of every employer of the maintenance debtor,
(ii) particulars as to the debtor’s earnings and expected earnings, and resources and needs, and
(iii) particulars for enabling the employers to identify the maintenance debtor,
(b) a person appearing to the court to be an employer of the maintenance debtor to give to the court, within a specified period, a statement signed by the person, or on his or her behalf, of specified particulars of the debtor’s earnings and expected earnings.
(2) Notice of an application for an attachment of earnings order served on a maintenance debtor may include a requirement that the maintenance debtor give to the court, within the period and in the manner specified in the notice, a statement in writing of the matters referred to in subsection (1)(a) and of any other matters which are or may be relevant to the determination of the normal deduction rate and the protected earnings rate to be specified in the order.
(3) In any proceedings in relation to an attachment of earnings order, a statement given to the court in compliance with an order under paragraph (a) or (b) of subsection (1) or with a requirement under subsection (2) is admissible as evidence of the facts stated in it and a document purporting to be such a statement is deemed, unless the contrary is shown, to be a statement so given.
Notification of changes of employment and earnings.
180.— Where an attachment of earnings order is in force—
(a) the maintenance debtor shall notify in writing the court that made the order of every occasion on which he or she leaves employment, or becomes employed or re-employed, not later than 10 days after doing so,
(b) the maintenance debtor shall, on any occasion on which he or she becomes employed or re-employed, include in the notification particulars of his or her earnings and expected earnings, and
(c) any person who becomes an employer of the maintenance debtor and who knows that the order is in force and by which court it was made shall, within 10 days of the later of the date of becoming an employer of the maintenance debtor and the date of acquiring the knowledge, notify the court in writing that he or she has become an employer, and include in the notification a statement of the debtor’s earnings and expected earnings.
Power to determine whether particular payments are earnings.
181.— (1) Where an attachment of earnings order is in force, the court that made the order shall, on the application of the maintenance debtor’s employer, the maintenance debtor or the person to whom payments are being made under the order, determine whether payments or portions of payments being made to the maintenance debtor that are of a class or description specified in the application are earnings for the purpose of the order.
(2) Where an application is made by the employer under subsection (1), the employer is not liable for non-compliance with the order as respects any payments or portions of payments of the class or description specified by the application that he or she makes while the application, a determination in relation to it or an appeal from the determination is pending.
(3) Subsection (2) does not apply if the employer subsequently withdraws the application or abandons the appeal.
Persons in service of State, local authority, etc.
182.— (1) This section applies when a maintenance debtor is in the service of the State, a local authority within the meaning of the Local Government Act 1941, a harbour authority within the meaning of the Harbours Acts 1946 to 2005, the Health Service Executive, F71[an education and training board], a committee of agriculture established by the Agriculture Act 1931, or another body if his or her earnings are paid directly out of moneys paid by the Oireachtas or from the Central Fund, or is a member of either House of the Oireachtas.
(2) For the purposes of sections 176 to 186 , the following officers are regarded as being the employers of the maintenance debtor and the earnings paid to the maintenance debtor out of the Central Fund or out of moneys provided by the Oireachtas are regarded as having been paid by them:
(a) in the case where the maintenance debtor is employed in a department, office, organisation, service, undertaking or other body, its chief officer, or any other officer that may be designated from time to time by the Minister of the Government by whom that body is administered;
(b) in the case where the maintenance debtor is in the service of an authority or body, its chief officer; and
(c) in any other case, where the maintenance debtor is paid out of the Central Fund or out of moneys provided by the Oireachtas, the Secretary of the Department of Finance or any other officer that may be designated from time to time by the Minister for Finance.
(3) A question that arises in proceedings for or arising out of an attachment of earnings order as to which body employs a maintenance debtor may be referred to and determined by the Minister for Finance, but he or she is not obliged to consider the reference unless it is made by the court.
(4) A document purporting to contain a determination by the Minister for Finance under subsection (3) and to be signed by an officer of that Minister shall, in any proceedings mentioned in that subsection, be admissible in evidence and be deemed, unless the contrary is shown, to contain an accurate statement of that determination.
Annotations
Amendments:
F71
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72(1) and sch. 6 item 56, S.I. No. 211 of 2013.
Discharge, variations and lapse of attachment of earnings order.
183.— (1) The court that made an attachment of earnings order may, if it thinks fit, on the application of the maintenance creditor, the maintenance debtor or the clerk on whose application the order was made, make an order discharging or varying that order.
(2) The employer on whom an order varying an attachment of earnings order is served shall comply with it but is not liable for non-compliance before 10 days have elapsed since the service.
(3) If an employer affected by an attachment of earnings order ceases to be the maintenance debtor’s employer, the order lapses insofar as that employer is concerned, except as respects deductions from earnings paid by the employer after the cesser and payment to the maintenance creditor of deductions from earnings made at any time by that employer.
(4) The lapse of an order under subsection (3) does not prevent its remaining in force for other purposes.
Cesser of attachment of earnings order.
184.— (1) An attachment of earnings order ceases to have effect upon the discharge of the relevant antecedent order, except as regards payments under the attachment of earnings order in respect of any time before the date of the discharge.
(2) The clerk or registrar of the court that made the attachment of earnings order shall give notice of a cesser to the employer.
Other remedies.
185.— (1) Where an attachment of earnings order has been made, any proceedings commenced under subsection (1) of section 8 of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order lapses and any warrant or order issued or made under that subsection ceases to have effect.
(2) An attachment of earnings order ceases to have effect on the making of an order under section 8 of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order.
Enforcement.
186.— (1) A maintenance creditor who fails to obtain a sum of money due under an attachment of earnings order, or the clerk to whom the sum falls to be paid, may sue for the sum as a simple contract debt in any court of competent jurisdiction, if the failure to obtain the sum is caused by—
(a) a person failing, without reasonable excuse, to comply with section 177(3) or (4), or 180 , or an order under section 179 or 183 (2), or
(b) a person, without reasonable excuse, giving a false or misleading statement under section 179(1) or notification under section 180.
(2) A person who gives to a court a statement pursuant to section 179 or a notification under section 180 that he or she knows to be false or misleading commits an offence and is liable on summary conviction to F72[a class C fine] or to imprisonment for a term not exceeding six months or to both.
(3) A person who contravenes section 177(3) commits an offence and is liable on summary conviction to F73[a class E fine].
Annotations
Amendments:
F72
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(d)(i), commenced on enactment. A class C fine means a fine not greater than €2,500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(1), S.I. No. 662 of 2010.
F73
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(d)(ii), commenced on enactment. A class E fine means a fine not greater than €500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 8(1), S.I. No. 662 of 2010.
Pension adjustment orders.
187.— (1) In this section and sections 188 to 192—
“Act of 1990” means the Pensions Act 1990;
“active member” in relation to a scheme, means a member of the scheme who is in reckonable service;
“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of the benefit) under a scheme calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and beyond in accordance with normal life expectancy on the assumption that the member, at the effective date of calculation, is in a normal state of health having regard to his or her age;
“approved arrangement”, in relation to the trustees of a scheme, means an arrangement whereby the trustees, on behalf of the person for whom the arrangement is made, effect policies or contracts of insurance that are approved of by the Revenue Commissioners with, and make the appropriate payments under the policies or contracts to, one or more undertakings;
“contingent benefit” means a benefit payable under a scheme, other than a payment under section 189(4), to or for the benefit of the surviving qualified cohabitant (if the scheme so permits) or to or for the benefit of, any dependants of the member qualified cohabitant or the personal representative of the member qualified cohabitant, if the member qualified cohabitant dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the scheme;
“defined contribution scheme” has the meaning assigned to it by section 2(1) (as amended by section 29(1)(a)(ii) of the Social Welfare and Pensions Act 2008) of the Act of 1990;
“designated benefit” in relation to a pension adjustment order, means an amount determined by the trustees of a scheme, in accordance with relevant guidelines and by reference to the period and the percentage of the retirement benefit specified in an order under subsection (2);
“member qualified cohabitant” in relation to a scheme, means a qualified cohabitant who is a member of the scheme;
“normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits under the rules of the scheme on retirement from relevant employment, disregarding any rules providing for early retirement on grounds of ill health or otherwise;
“occupational pension scheme” has the meaning assigned to it by section 2(1) of the Act of 1990;
“reckonable service” means service in relevant employment during membership in any scheme;
“relevant guidelines” means any relevant guidelines for the time being in force under section 10(1)(c) or (cc) (as amended by section 5 of the Pensions (Amendment) Act 1996, section 47(c) of the Family Law (Divorce) Act 1996, section 13(b) of the Pensions (Amendment) Act 2002 and section 37 of the Social Welfare and Pensions Act 2007) of the Act of 1990;
“relevant employment” in relation to a scheme, means any employment, or any period treated as employment, or any period of self-employment to which a scheme applies;
“retirement benefit”, in relation to a scheme, means all benefits, other than contingent benefits, payable under the scheme;
“rules”, in relation to a scheme, means the provisions of the scheme by whatever name called;
“scheme” means—
(a) an occupational pension scheme within the meaning of the Pensions Act 1990,
(b) an annuity contract approved by the Revenue Commissioners under section 784 of the Taxes Consolidation Act 1997, or a contract so approved under section 785 of that Act,
(c) a trust scheme, or part of a trust scheme, approved under section 784(4) or 785(5) of that Act,
(d) a policy or contract of assurance approved by the Revenue Commissioners under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997, or
(e) another scheme or arrangement, including a personal pension plan and a scheme or arrangement established by or pursuant to statute or instrument made under statute other than under the Social Welfare Acts, that provides or is intended to provide either or both of the following:
(i) benefits for a person who is a member of the scheme or arrangement upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving or upon the ceasing of the relevant employment, and
(ii) benefits for the widow, widower or dependants of the person referred to in subparagraph (i), for his or her civil partner or the person that was his or her civil partner until the death of the person referred to in subparagraph (i), for his or her qualified cohabitant or the person that was his or her qualified cohabitant until the death of the person referred to in subparagraph (i) or for any other persons, on the death of that person;
“transfer amount” shall be construed in accordance with subsection (4);
“undertaking” has the same meaning as “‘insurance undertaking’ or ‘undertaking’” in section 2(1) (as inserted by section 3(1) of the Insurance Act 2000) of the Insurance Act 1989.
(2) The court, on application to it in that behalf by either of the qualified cohabitants, may, during the lifetime of a member qualified cohabitant, make an order providing for the payment, in accordance with this section and sections 188 to 192, to the other qualified cohabitant of a benefit consisting of the part of the benefit that is payable under the scheme and has accrued at the time of the making of the order, or of the part of that part, that the court considers appropriate.
(3) The order under subsection (2) shall specify—
(a) the period of reckonable service of the member qualified cohabitant to be taken into account, and
(b) the percentage of the retirement benefit accrued during the period to be paid to the other qualified cohabitant.
(4) Where the court makes an order under subsection (2) in favour of a qualified cohabitant and payment of the designated benefit concerned has not commenced, the qualified cohabitant is entitled to the application in accordance with section 189(1) of an amount of money from the scheme (in this subsection referred to as a “transfer amount”) equal to the value of the designated benefit as determined by the trustees of the scheme in accordance with relevant guidelines.
(5) The court, on application to it in that behalf by either of the qualified cohabitants, may make an order providing for the payment, on the death of the member qualified cohabitant, to the other qualified cohabitant of that part of a contingent benefit that is payable under the scheme, or of the part of that part, that the court considers appropriate.
(6) In deciding whether or not to make a pension adjustment order, the court shall have regard to whether proper provision, having regard to the circumstances, exists or can be made for the qualified cohabitant who is not a member under section 175.
Procedural provisions respecting pension adjustment orders.
188.— (1) A person who makes an application under section 187(2) or (5) shall give notice of the application to the trustees of the scheme. The court shall, in deciding whether to make the order and in determining the provisions of the order, have regard to representations made by the persons to whom notice has been given under this section.
(2) An order referred to in subsection (1) ceases to have effect on the entry into a civil partnership, marriage or death of the person in whose favour the order was made.
(3) The court may, in making an order referred to in subsection (1), give to the trustees of the scheme any directions that it considers appropriate, including a direction that would require the trustees not to comply with the rules of the scheme or the Act of 1990.
(4) Notwithstanding subsection (3), a direction given under that subsection shall not permit a payment under section 187(5) unless the scheme concerned expressly provides for payments of contingent benefits to cohabitants.
(5) The registrar or clerk of the court that makes an order referred to in subsection (1) shall cause a copy of the order to be served on the trustees of the scheme.
Rules respecting payments under schemes.
189.— (1) Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, where the conditions set out in subsection (2) are present, apply, in accordance with relevant guidelines, the transfer amount calculated in accordance with those guidelines—
(a) if the trustees and the qualified cohabitant so agree, in providing a benefit for or in respect of the qualified cohabitant that is of the same actuarial value as the transfer amount, or
(b) in making a payment, at the option of the qualified cohabitant—
(i) to another occupational pension scheme whose trustees agree to accept the payment, or
(ii) to discharge another payment falling to be made by the trustees under any such other approved arrangement.
(2) The conditions referred to in subsection (1) are:
(a) the court has made an order under section 187(2) in favour of the qualified cohabitant;
(b) payment of the designated benefit has not commenced;
(c) the qualified cohabitant has applied to the trustees in that behalf; and
(d) the qualified cohabitant furnishes the information that the trustees require.
(3) Subject to section 190(4), trustees of a defined contribution scheme in respect of which an order has been made under section 187(2) may, if the qualified cohabitant has not made an application under subsections (1) and (2), apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines to make a payment, at their option—
(a) to another occupational pension scheme whose trustees agree to accept the payment, or
(b) to discharge another payment falling to be made by the trustees under any such other approved arrangement.
(4) Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of a member qualified cohabitant who dies before the payment of the designated benefit has commenced, provide for the payment to the other qualified cohabitant of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.
(5) Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) may, if the member qualified cohabitant ceases to be a member otherwise than on death, apply, in accordance with relevant guidelines, the transfer amount under the scheme, at their option—
(a) if the trustees and the other qualified cohabitant so agree, in providing a benefit for or in respect of that qualified cohabitant that is of the same actuarial value as the transfer amount, or
(b) in making a payment, either—
(i) to another occupational pension scheme whose trustees agree to accept the payment, or
(ii) to discharge another payment falling to be made by the trustees under any such other approved arrangement.
(6) Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of the qualified cohabitant who is not the member and who dies before payment of the designated benefit has commenced, provide for the payment to the personal representative of that qualified cohabitant of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.
(7) Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of the qualified cohabitant who is not the member and who dies after payment of the designated benefit has commenced, provide for the payment to the personal representative of that qualified cohabitant of an amount that is equal to the actuarial value, calculated in accordance with relevant guidelines, of the part of the designated benefit that, but for the death of that qualified cohabitant, would have been payable to him or her during his or her lifetime.
(8) The trustees of a scheme in respect of which an order has been made under section 187(2) or (5) shall, within 12 months of the member qualified cohabitant’s ceasing to be a member, notify the registrar or clerk of the court and the other qualified cohabitant of the cessation, if the trustees have not applied the transfer amount in accordance with any of subsections (1) to (6).
(9) The trustees of a scheme who apply a transfer amount under subsection (3) or (5) shall notify the qualified cohabitant who is not the member and the registrar or clerk of the court, giving particulars to that qualified cohabitant of the scheme and the transfer amount.
Payments further to orders under section 187 .
190.— (1) A benefit payable pursuant to an order made under section 187(2), or a contingent benefit payable pursuant to an order made under section 187(5), is payable out of the resources of the scheme and, unless the order or relevant guidelines provide otherwise, in accordance with the rules of the scheme and those guidelines.
(2) The amount of retirement benefit payable to the member qualified cohabitant, or the amount of contingent benefit payable to or in respect of the member qualified cohabitant, in accordance with the rules of the relevant scheme shall be reduced by the designated benefit or contingent benefit payable pursuant to an order made under section 187(2) or (5), as the case may be, to the other qualified cohabitant.
(3) The amount of contingent benefit payable in accordance with the rules of the scheme in respect of a member qualified cohabitant who dies before the payment of the designated benefit payable pursuant to an order under section 187(2) has commenced shall be reduced by the amount of the payment made under section 189(4).
(4) Trustees who make a payment or apply a transfer amount under any of subsections (1) to (7) of section 189 are discharged from any obligation to make further payment or apply another transfer amount under any of those subsections in respect of the benefit payable pursuant to the order made under section 187(2).
(5) A trustee is not liable for any loss or damage caused by complying with a direction referred to in section 188(3) rather than the rules of the scheme or the Act of 1990.
Costs.
191.— (1) The court may determine the manner in which the costs incurred by the trustees of a scheme further to an order under section 187 are to be borne, including by one or the other of the qualified cohabitants or by both of them in the proportions that the court may determine, and in default of a determination, the qualified cohabitants shall bear those costs equally.
(2) The court may, on application to it by the trustees, order that an amount ordered to be paid by a qualified cohabitant under subsection (1) that has not been paid be deducted from any benefits payable to the qualified cohabitant—
(a) pursuant to an order made under section 187, if the qualified cohabitant is the beneficiary of the order; and
(b) pursuant to the scheme, if the qualified cohabitant is the member qualified cohabitant.
Value of benefit calculation.
192.— For the purposes of this section and sections 187 to 191 , the court may, of its own motion, and shall, if so requested by either of the qualified cohabitants or another concerned person, direct the trustees of the scheme to provide the qualified cohabitants or the other person and the court, within a specified period of time—
(a) with a calculation of the value and amount, determined in accordance with relevant guidelines, of the retirement benefit or contingent benefit that is payable or that would have been payable under the scheme and has accrued at the time of making the order, and
(b) with a calculation of the amount of the contingent benefit that is payable or that would have been payable, under the scheme.
Mediation and other alternatives to proceedings.
193.— (1) The court may adjourn or further adjourn proceedings under section 173 at any time for the purpose of enabling the cohabitants to attempt, if they both so wish, with or without the assistance of a third party—
(a) to reconcile, or
(b) to reach agreement on some or all of the terms of a possible settlement between them.
(2) Either or both of the cohabitants may at any time request that the hearing of proceedings adjourned under subsection (1) be resumed as soon as may be and, if a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.
(3) The powers conferred by this section are additional to any other power of the court to adjourn proceedings.
(4) The court may, at its discretion when adjourning proceedings under this section, advise the cohabitants to seek the assistance of a mediator or other third party in relation to the cohabitants’ proposed reconciliation or reaching of an agreement between them on some or all of the terms of a possible settlement.
Application for provision from estate of deceased cohabitant.
194.— (1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.
(2) Notwithstanding subsection (1), a qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant—
(a) was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,
(b) had, not later than 2 years after that relationship ended, made an application for an order under section 174, 175 or 187 and either—
(i) the proceedings were pending at the time of the death, or
(ii) any such order made by the court had not yet been executed,
or
(c) had, not later than 2 years after the relationship ended, made an application for an order under section 174, 175 or 187 , the order was made, an application under section 173(6) was subsequently made in respect of that order and either—
(i) the proceedings in respect of that application were pending at the time of the death, or
(ii) any such order made by the court under section 173(6) in favour of the qualified cohabitant who is the applicant under this section had not yet been executed.
(3) The court may by order make the provision for the applicant that the court considers appropriate having regard to the rights of any other person having an interest in the matter, if the court is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased for any reason other than conduct by the applicant that, in the opinion of the court, it would in all the circumstances be unjust to disregard.
(4) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case, including—
(a) an order made under section 173(6), 174 , 175 or 187 in favour of the applicant,
(b) a devise or bequest made by the deceased in favour of the applicant,
(c) the interests of the beneficiaries of the estate, and
(d) the factors set out in section 173(3).
(5) The court shall not make an order under this section where the relationship concerned ended before the death of the deceased and—
(a) the court is not satisfied that the applicant is financially dependent on the deceased within the meaning of section 173(2), or
(b) the applicant has married or registered in a civil partnership, or in a legal relationship of a class that is the subject of an order under section 5.
(6) The applicant shall give notice of an application under this section to the personal representative of the deceased, any spouse or civil partner of the deceased and to any other persons that the court may direct and, in deciding whether to make the order and in determining the provisions of the order, the court shall have regard to any representations made by any of those persons.
(7) The total value for the applicant of the provision made by an order referred to in subsection (4)(a) on the date on which that order was made and an order made under this section shall not exceed any share of the applicant in the estate of the deceased qualified cohabitant to which the applicant would have been entitled if the qualified cohabitants had been spouses or civil partners of each other.
(8) If the qualified cohabitant does not notify the personal representative as required by subsection (6), the personal representative may distribute the assets of the deceased qualified cohabitant or any part of them amongst the persons entitled to them and is not liable to the qualified cohabitant for that distribution.
(9) Nothing in this section prejudices the rights of the qualified cohabitant to follow assets into the hands of a person who has received them.
(10) An order under this section shall not affect the legal right of a surviving spouse.
(11) For the purposes of this section, “net estate”, with respect to the estate of a person, means the estate that remains after provision for the satisfaction of—
(a) other liabilities of the estate having priority over the rights referred to in paragraphs (b) and (c),
(b) any rights, under the Succession Act 1965, of any surviving spouse of the person, and
(c) any rights, under the Succession Act 1965, of any surviving civil partner of the person.
Limitation period.
195.— Proceedings under this Part other than proceedings under sections 173 (6) and 194 , shall, save in exceptional circumstances, be instituted within 2 years of the time that the relationship between the cohabitants ends, whether through death or otherwise.
Jurisdiction and venue.
196.— (1) Subject to the other provisions of this section, the Circuit Court has concurrent jurisdiction with the High Court to hear and determine applications for orders for redress referred to in section 173 and orders for provision from the estates of deceased cohabitants under section 194.
(2) The District Court, and the Circuit Court on appeal from the District Court, have concurrent jurisdiction with the High Court to hear and determine applications for orders for redress referred to in section 173 and orders for provision from the estates of deceased cohabitants under section 194, except that—
(a) they do not have jurisdiction to make such an order for periodical payments at a rate greater than €500 per week,
(b) they do not have jurisdiction to make such an order in a matter in relation to which the High Court has made such an order, and
(c) the District Court does not have jurisdiction to make such an order in a matter in relation to which the Circuit Court has made such an order otherwise than on appeal from the District Court.
(3) The court shall only exercise its jurisdiction to hear and determine an application for an order for redress referred to in section 173 if both of the cohabitants concerned were ordinarily resident in the State throughout the one-year period prior to the end of their relationship, and either of the cohabitants—
(a) is domiciled in the State on the date on which the application is made, or
(b) is ordinarily resident in the State throughout the one-year period that ends on that date.
(4) The court shall only exercise its jurisdiction to hear and determine an application for an order for provision from the estate of a deceased cohabitant under section 194 if—
(a) in the case where the relationship concerned ended before the death of the deceased, each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period prior to the end of their relationship and—
(i) each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period that ended on the date of the death of the deceased,
(ii) on the date of the death of the deceased, the applicant was in receipt of periodical payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,
(iii) the applicant had, not later than 2 years after that relationship ended, made an application for an order under section 174, 175 or 187 and either—
(I) the proceedings were pending at the time of the death, or
(II) any such order made by the court had not yet been executed,
or
(iv) the applicant had, not later than 2 years after the relationship ended, made an application for an order under section 174, 175 or 187 , the order was made, an application under section 173(6) was subsequently made in respect of that order and either—
(I) the proceedings were pending at the time of the death, or
(II) any such order made by the court under section 173(6) in favour of the applicant had not yet been executed,
and
(b) in any other case, each of the cohabitants concerned was ordinarily resident in the State throughout the one-year period that ended on the date of the death of the deceased.
(5) The jurisdiction conferred on the Circuit Court may be exercised by the judge of the circuit in which a party to the application ordinarily resides or carries on a business, profession or occupation.
F74[(6) The Circuit Court shall transfer, to the High Court, proceedings on applications for orders for redress referred to in section 173 on application to it by a party to the proceedings, if land to which the proceedings relate has a market value that exceeds €3,000,000.
(6A) In subsection (6) and the following subsection, “market value” means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the making of the application concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.
(6B) Where an application, in relation to land, is brought in the Circuit Court for an order for redress referred to in section 173, and the applicant alleges that the market value of the land concerned does not exceed the monetary amount specified in subsection (6), it shall be presumed, until the contrary is proved, that the market value of the land does not exceed the foregoing amount.]
(7) An order made or act done in the course of the proceedings before a transfer under subsection (6) is valid unless discharged or varied by the High Court.
Annotations
Amendments:
F74
Substituted and inserted (11.01.2017) by Courts Act 2016 (22/2016), s. 2(3), S.I. No. 1 of 2017, as respects proceedings brought after commencement of this section.
F75[Orders under Family Law (Maintenance of Spouses and Children) Act 1976
196A.— The court may, on the application of a party to proceedings under this Part, make an order under section 5A or 5B of the Family Law (Maintenance of Spouses and Children) Act 1976, where applicable, in respect of the other party to the proceedings.]
Annotations
Amendments:
F75
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 172, S.I. No. 12 of 2016.
Particulars of property.
197.— (1) In proceedings under this Part, each of the qualified cohabitants shall give to the other the particulars of his or her property or income that may be reasonably required for the purposes of the proceedings.
(2) The court may direct a person who fails or refuses to comply with subsection (1) to comply with it.
(3) A qualified cohabitant who fails or refuses to comply with subsection (1) or a direction under subsection (2) commits an offence and is liable on summary conviction to F76[a class C fine], or to imprisonment for a term not exceeding 6 months, or to both.
Annotations
Amendments:
F76
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(e), commenced on enactment. A class C fine means a fine not greater than €2,500 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(1), S.I. No. 662 of 2010.
Conduct of proceedings.
198.— (1) Proceedings under this Part shall be as informal as is practicable and consistent with the administration of justice.
(2) A judge sitting to hear and determine proceedings under this Part, and a barrister or solicitor appearing in the proceedings, shall not wear a wig or a gown.
Privacy.
199.— Subject to the provisions of section 40 of the Civil Liability and Courts Act 2004, proceedings under this Part shall be heard otherwise than in public.
Annotations
Editorial Notes:
E33
Section included in definition of ‘relevant enactment’ for purposes of Civil Liability and Courts Act 2004 (31/2004), Part 3 Ch. 2, by Civil Liability and Courts Act 2004 (31/2004), s. 39, as amended (11.01.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 4, S.I. No. 5 of 2014.
Costs.
200.— The costs in proceedings under this Part are at the discretion of the court.
Rules of court.
201.— (1) Rules of court shall provide for the documentation required for the commencement of proceedings under this Part in a summary manner.
(2) Rules of court may make provision, in cases where one or both of the parties to an application under section 175 or 187 , or to an application to vary an order under one of those sections, is or was married, for—
(a) the adjournment of those proceedings or any proceedings for the financial support of the person to whom the party is or was married,
(b) the postponement of an order made under any of the proceedings referred to in paragraph (a), or
(c) any other procedure reasonably required in order to ensure that that party’s financial circumstances are taken into account in the proceedings.