Divorce Grounds
FAMILY LAW (DIVORCE) ACT 1996
REVISED
Updated to 1 August 2022
AN ACT TO MAKE PROVISION FOR THE EXERCISE BY THE COURTS OF THE JURISDICTION CONFERRED BY THE CONSTITUTION TO GRANT DECREES OF DIVORCE, TO ENABLE THE COURTS TO MAKE CERTAIN PRELIMINARY AND ANCILLARY ORDERS IN OR AFTER PROCEEDINGS FOR DIVORCE, TO PROVIDE, AS RESPECTS TRANSFERS OF PROPERTY OF DIVORCED SPOUSES, FOR THEIR EXEMPTION FROM, OR FOR THE ABATEMENT OF, CERTAIN TAXES (INCLUDING STAMP DUTY) AND TO PROVIDE FOR RELATED MATTERS. [27th November, 1996]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Annotations
Modifications (not altering text):
C1
Basis of calculation of period of living apart for purposes of Act in relation to certain foreign marriages provided (16.11.2015) by Marriage Act 2015 (35/2015), s. 12(5), S.I. No. 504 of 2015.
Recognition of certain foreign marriages
12. …
(5) Where the marriage under the law of a place other than the State of two persons of the same sex is recognised and the two persons concerned live apart from one another, the period or periods during which they live apart from one another shall, for the purposes of the Judicial Separation and Family Law Reform Act 1989, the Family Law (Divorce) Act 1996, or any other enactment, be calculated from the date (notwithstanding that it occurs before the date, under subsection (2), that the marriage falls to be recognised) on which they begin to live apart.
…
C2
Functions transferred and references to “Department of Equality and Law Reform” and “Minister for Equality and Law Reform” construed (8.07.1997) by Equality and Law Reform (Transfer of Departmental Administration and Ministerial Functions) Order 1997 (S.I. No. 297 of 1997), arts. 3, 4 and sch., in effect as per art. 1(2).
3. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 4 of this Order are hereby transferred to the Department of Justice.
(2) References to the Department of Equality and Law Reform contained in any Act or any instrument made thereunder and relating to any administration and business transferred by paragraph (1) of this Article shall, on and after the commencement of this Order, be construed as references to the Department of Justice.
4. (1) The functions vested in the Minister for Equality and Law Reform
( a ) by or under any of the Acts mentioned in the Schedule to this Order, and
( b ) by virtue of the Justice (Transfer of Departmental Administration and Ministerial Functions) Order, 1993 (S.I. No. 34 of 1993).
are hereby transferred to the Minister for Justice.
(2) References to the Minister for Equality and Law Reform contained in any Act or instrument made thereunder and relating to any functions transferred by this Article shall, on and after the commencement of this Order, be construed as references to the Minister for Justice.
…
SCHEDULE
Acts, functions under which are transferred from the Minister for Equality and Law Reform to the Minister for Justice.
…
Family Law (Divorce) Act 1996 (No. 33 of 1996)
…
Editorial Notes:
E1
Proceedings under Act included in definition of family law proceedings (1.01.2018) by Mediation Act 2017 (27/2017), s. 2(1), S.I. No. 591 of 2017.
E2
Rights and incumbrances, for purposes of Land and Conveyancing Law Reform Act 2009 (27/2009), s. 117, confirmed to include claims under Act (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 117(4)(a), S.I. No. 356 of 2009.
E3
Central Authority authorised to act on behalf of a maintenance creditor under Act by Maintenance Act 1994 (28/1994), s. 4(2)(a), as substituted (1.12.1999) by Jurisdiction of Courts and Enforcement of Judgments Act 1998 (52/1998), s. 22(2), S.I. No. 353 of 1999, and subsequently substituted (10.03.2012) by Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 (7/2012), s. 2(1)(b), commenced on enactment.
E4
Exemption from deduction of income tax for payments made pursuant to an order under Act (other than under s. 17) provided (from year 1997-1998) by Taxes Consolidation Act 1997 (39/1997), s. 1027, commenced as per s. 1097.
PART I
Preliminary and General
Short title and commencement.
1.—(1) This Act may be cited as the Family Law (Divorce) Act, 1996.
(2) This Act shall come into operation on the day that is 3 months after the date of its passing.
Interpretation.
2.—(1) In this Act, save where the context otherwise requires—
“the Act of 1964” means the Guardianship of Infants Act, 1964;
“the Act of 1965” means the Succession Act, 1965;
“the Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act, 1976;
“the Act of 1989” means the Judicial Separation and Family Law Reform Act, 1989;
“the Act of 1995” means the Family Law Act, 1995;
F1[…]
F2[“Act of 2018” means the Domestic Violence Act 2018;]
F3[“civil partnership” has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]
“conveyance” includes a mortgage, lease, assent, transfer, disclaimer, release and any other disposition of property otherwise than by a will or a donatio mortis causa and also includes an enforceable agreement (whether conditional or unconditional) to make any such disposition;
“the court” shall be construed in accordance with section 38;
“decree of divorce” means a decree under section 5;
“decree of judicial separation” means a decree under section 3 of the Act of 1989;
“decree of nullity” means a decree granted by a court declaring a marriage to be null and void;
“dependent member of the family”, in relation to a spouse, or the spouses, concerned, means any child—
(a) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1991, or in relation to whom both spouses are in loco parentis, or
(b) of either spouse or adopted by either spouse under those Acts, or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the family,
who is under the age of 18 years or if the child has attained that age—
(i) is or will be or, if an order were made under this Act providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years, or
(ii) has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully;
“family home” has the meaning assigned to it by section 2 of the Family Home Protection Act, 1976, with the modification that the references to a spouse in that section shall be construed as references to a spouse within the meaning of this Act;
“financial compensation order” has the meaning assigned to it by section 16;
“Land Registry” and “Registry of Deeds” have the meanings assigned to them by the Registration of Title Act, 1964;
“lump sum order” means an order under section 13 (1) (c);
“maintenance pending suit order” means an order under section 12;
“member”, in relation to a pension scheme, means any person who, having been admitted to membership of the scheme under its rules, remains entitled to any benefit under the scheme;
“pension adjustment order” means an order under section 17;
“pension scheme” means—
(a) an occupational pension scheme (within the meaning of the Pensions Act, 1990), or
(b) (i) an annuity contract approved by the Revenue Commissioners under section 235 of the Income Tax Act, 1967, or a contract so approved under section 235A of that Act,
(ii) a trust scheme, or part of a trust scheme, so approved under subsection (4) of the said section 235 or subsection (5) of the said section 235A, or
(iii) a policy or contract of assurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972,
or
F4[(bb) a PRSA contract within the meaning of Part X of the Pensions Act, 1990, or]
(c) any other 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, that is to say:
(i) benefits for a person who is a member of the scheme or arrangement (“the member”) upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving, or upon the ceasing of, the relevant employment,
(ii) benefits for the widow, widower or dependants of the member, or for any other persons, on the death of the member;
“periodical payments order” and “secured periodical payments order” have the meanings assigned to them by section 13;
“property adjustment order” has the meaning assigned to it by section 14;
F3[“registration”, with respect to a civil partnership, includes entering into a relationship of a class of legal relationships that is the subject of an order made under section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]
“trustees”, in relation to a scheme that is established under a trust, means the trustees of the scheme and, in relation to a pension scheme not so established, means the persons who administer the scheme.
(2) In this Act, where the context so requires—
(a) a reference to a marriage includes a reference to a marriage that has been dissolved under this Act,
(b) a reference to a remarriage includes a reference to a marriage that takes place after a marriage that has been dissolved under this Act,
(c) a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under this Act,
(d) a reference to a family includes a reference to a family as respects which the marriage of the spouses concerned has been dissolved under this Act,
(e) a reference to an application to a court by a person on behalf of a dependent member of the family includes a reference to such an application by such a member and a reference to a payment, the securing of a payment, or the assignment of an interest, to a person for the benefit of a dependent member of the family includes a reference to a payment, the securing of a payment, or the assignment of an interest, to such a member,
and cognate words shall be construed accordingly.
(3) In this Act—
(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,
(b) a reference to a Part or section is a reference to a Part or section of this Act unless it is indicated that reference to some other enactment is intended,
(c) a reference to a subsection, paragraph, subparagraph or clause is a reference to the subsection, paragraph, subparagraph or clause of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.
Annotations
Amendments:
F1
Deleted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 47(a)(i), S.I. No. 532 of 2018.
F2
Inserted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 47(a)(ii), S.I. No. 532 of 2018.
F3
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 150, S.I. No. 648 of 2010.
F4
Inserted (7.11.2002) by Pensions (Amendment) Act 2002 (18/2002), s. 57(2), S.I. No. 502 of 2002.
Repeal.
3.—Section 14 (2) of the Censorship of Publications Act, 1929, is hereby repealed.
Expenses.
4.—The expenses incurred by the Minister for Equality and Law Reform, the Minister for Health or the Minister for Justice in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
PART II
The Obtaining of a Decree of Divorce
Grant of decree of divorce and custody etc., of children.
5.—(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that—
(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, F5[at least two years during the previous three years],
(b) there is no reasonable prospect of a reconciliation between the spouses, and
(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,
the court may, in exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.
F6[(1A) For the purposes of this section—
(a) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and
(b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.]
(2) Upon the grant of a decree of divorce, the court may, where appropriate, give such directions under section 11 of the Act of 1964 as it considers proper regarding the welfare (within the meaning of that Act), custody of, or right of access to, any dependent member of the family concerned who is an infant (within the meaning of that Act) as if an application had been made to it in that behalf under that section.
Annotations
Amendments:
F5
Substituted (1.12.2019) by Family Law Act 2019 (37/2019), s. 3(1)(a), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).
F6
Inserted (1.12.2019) by Family Law Act 2019 (37/2019), s. 3(1)(b), S.I. No. 585 of 2019, subject to transitional provision in subs. (2).
Editorial Notes:
E5
Power granted to Court, in proceedings relating to subs. (2), to direct the HSE to undertake an investigation of a child’s circumstances by Child Care Act 1991 (17/1991), s. 20(1), as substituted (9.01.1998) by Children Act 1997 (40/1997), s. 17, commenced as per s. 1(2), and as amended (1.01.2005) by Health Act 2004 (42/2004), s. 75 and sch. 7 part 6, S.I. No. 887 of 2004.
Safeguards to ensure applicant’s awareness of alternatives to divorce proceedings and to assist attempts at reconciliation.
6.—(1) In this section “the applicant” means a person who has applied, is applying or proposes to apply to the court for the grant of a decree of divorce.
(2) If a solicitor is acting for the applicant, the solicitor shall, prior to the institution of the proceedings concerned under section 5—
(a) discuss with the applicant the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged,
(b) discuss with the applicant the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse F7[, give to the applicant the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the applicant of the matters referred to in sections 10 and 11 of the Mediation Act 2017], and
(c) discuss with the applicant the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.
(3) Such a solicitor shall also ensure that the applicant is aware of judicial separation as an alternative to divorce where a decree of judicial separation in relation to the applicant and the other spouse is not in force.
(4) If a solicitor is acting for the applicant—
(a) the originating document by which the proceedings under section 5 are instituted shall be accompanied by a F7[statutory declaration made by the solicitor] indicating, if it be the case, that he or she has complied with subsection (2) and, if appropriate, subsection (3) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2), and, if appropriate, to make the applicant aware of judicial separation,
(b) if the solicitor has complied with paragraph (a), any copy of the originating document aforesaid served on any person or left in an office of the court shall be accompanied by a copy of the F7[statutory declaration] aforesaid.
(5) F8[…]
(6) The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members are qualified to assist the parties involved in effecting a reconciliation, such register to show the names of members of those organisations and procedures to be put in place for the organisations involved to regularly update the membership lists.
Annotations
Amendments:
F7
Substituted (1.01.2018) by Mediation Act 2017 (27/2017), s. 26(a)(i)-(iii), S.I. No. 591 of 2017.
F8
Deleted (1.01.2018) by Mediation Act 2017 (27/2017), s. 26(a)(iv), S.I. No. 591 of 2017.
Safeguards to ensure respondent’s awareness of alternatives to divorce proceedings and to assist attempts at reconciliation.
7.—(1) In this section “the respondent” means a person who is the respondent in proceedings in the court under section 5.
(2) If a solicitor is acting for the respondent, the solicitor shall, as soon as may be after receiving instructions from the respondent in relation to the proceedings concerned under section 5—
(a) discuss with the respondent the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to effect a reconciliation between spouses who have become estranged,
(b) discuss with the respondent the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse F9[, give to the respondent the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the respondent of the matters referred to in sections 10 and 11 of the Mediation Act 2017], and
(c) discuss with the respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.
(3) Such a solicitor shall also ensure that the respondent is aware of judicial separation as an alternative to divorce where a decree of judicial separation is not in force in relation to the respondent and the other spouse.
(4) If a solicitor is acting for the respondent—
(a) the memorandum or other document delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent in proceedings under section 5 shall be accompanied by a F9[statutory declaration made by the solicitor] in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2) and, if appropriate, to make the applicant aware of judicial separation,
(b) if paragraph (a) is complied with, any copy of the document aforesaid given or sent to the other party to the proceedings or his or her solicitor shall be accompanied by a copy of the relevant F9[statutory declaration] aforesaid.
(5) F10[…]
Annotations
Amendments:
F9
Substituted (1.01.2018) by Mediation Act 2017 (27/2017), s. 26(b)(i)-(iii), S.I. No. 591 of 2017.
F10
Deleted (1.01.2018) by Mediation Act 2017 (27/2017), s. 26(b)(iv), S.I. No. 591 of 2018.
Adjournment of proceedings to assist reconciliation or agreements on the terms of the divorce.
8.—(1) Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of a reconciliation between the spouses concerned and, accordingly, may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses, if they both so wish, to effect such a reconciliation with or without the assistance of a third party.
(2) Where, in proceedings under section 5, it appears to the court that a reconciliation between the spouses cannot be effected, it may adjourn or further adjourn the proceedings for the purpose of enabling attempts to be made by the spouses, if they both so wish, to reach agreement, with or without the assistance of a third party, on some or all of the terms of the proposed divorce.
(3) If proceedings are adjourned pursuant to subsection (1) or (2), either or both of the spouses may at any time request that the hearing of the proceedings be resumed as soon as may be and, if such a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.
(4) The powers conferred by this section are additional to any other power of the court to adjourn proceedings.
(5) Where the court adjourns proceedings under this section, it may, at its discretion, advise the spouses concerned to seek the assistance of a third party in relation to the effecting of a reconciliation between the spouses or the reaching of agreement between them on some or all of the terms of the proposed divorce.
Non-admissibility as evidence of certain communications relating to reconciliation, separation or divorce.
9.—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 or a divorce (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.
Effect of decree of divorce.
10.—(1) Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and a party to that marriage may marry again.
(2) For the avoidance of doubt, it is hereby declared that the grant of a decree of divorce shall not affect the right of the father and mother of an infant, under section 6 of the Act of 1964, to be guardians of the infant jointly.
CIVIL REGISTRATION ACT
Sch. 1, Part 6
PART 6
Particulars of Decrees of Divorce to be Entered in Register of Decrees of Divorce
Section 59.
Court by which the decree was granted.
Year and record number of the proceedings.
Forenames, surnames and birth surnames of the parties to the proceedings.
Personal public service numbers of the parties to the proceedings.
Date and place of marriage.
Date of the decree.
Date of registration.
Forename(s) and surname of officer of Courts Service specified in section 59(1).
Sch. 1, Part 6A
F295[PART 6A
Particulars to be Entered in Register of Dissolutions
Section 59J.
Court by which the decree was granted.
Year and record number of the proceedings.
Forenames, surnames and birth surnames of the parties to the proceedings.
Personal public service numbers of the parties to the proceedings.
Date and place of civil partnership registration.
Date of the decree.
Date of registration of the decree.
Forenames and surname of officer of Courts Service.]
Annotations
Amendments:
F295
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 25(c), S.I. 648 of 2010.