Divorce & Succession
FAMILY LAW (DIVORCE) ACT 1996
PART III
Preliminary and Ancillary Orders in or after Proceedings for Divorce
Annotations
Editorial Notes:
E6
Certain gifts or inheritances taken by virtue or in consequence of order made under Part confirmed exempt from capital acquisitions tax (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 88(1) and (2)(d), commenced on enactment, as substituted (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 3 and sch. 3 item 21, commenced as per s. 5(8)(e).
E7
Certain transactions between spouses pursuant to an order under Part confirmed exempt from stamp duty (15.12.1999) by Stamp Duties Consolidation Act 1999 (31/1999), s. 97, commenced on enactment, as amended (10.02.2000) by Finance Act 2000 (3/2000), s. 131, commenced as per s. 131(2), and as amended (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 2 and sch. 2 items 7-11, commenced as per s. 5(8)(d).
E8
Certain disposals made by virtue or in consequence of an order made under Part or following a decree of divorce confirmed exempt from capital gains tax (1997-1998 onwards) by Taxes Consolidation Act 1997 (39/1997), s. 1031, commenced as per s. 1097(1)(c), as amended (7.12.2005) by Finance Act 2006 (6/2006), s. 75(1)(c), commenced as per s. 75(2).
E9
Previous affecting provision: certain gifts or inheritances taken by virtue or in consequence of an order made under Part confirmed exempt from capital acquisitions tax (10.05.1997) by Finance Act 1997 (22/1997), s. 142(1) and (2)(d), commenced on enactment; superseded (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 88(1) and (2)(d), commenced on enactment, as substituted (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 3 and sch. 3 item 21, commenced as per s. 5(8)(e).
Preliminary orders in proceedings for divorce.
11.—Where an application is made to the court for the grant of a decree of divorce, the court, before deciding whether to grant or refuse to grant the decree, may, in the same proceedings and without the institution of proceedings under the Act concerned, if it appears to the court to be proper to do so, make one or more of the following orders—
F11[(a) a safety order, barring order, interim barring order or protection order under the Act of 2018,]
(b) an order under section 11 of the Act of 1964,
(c) an order under section 5 or 9 of the Family Home Protection Act, 1976.
Annotations
Amendments:
F11
Substituted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 47(b), S.I. No. 532 of 2018.
Editorial Notes:
E10
Power granted to Court, in proceedings relating to subs. (b), 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).
Orders for provision for spouse out of estate of other spouse.
18.—(1) Subject to the provisions of this section, where one of the spouses in respect of whom a decree of divorce has been granted dies, the court, on application to it in that behalf by the other spouse (“the applicant”) not more than 6 months after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased spouse under section 13, 14, 15, 16 or 17 for any reason (other than conduct referred to in subsection (2) (i) of section 20 of the applicant).
(2) The court shall not make an order under this section in favour of a spouse who has remarried F20[or registered in a civil partnership] since the granting of the decree of divorce concerned.
(3) In considering whether to make an order under this section the court shall have regard to all the circumstances of the case including—
(a) any order under paragraph (c) of section 13 (1) or a property adjustment order in favour of the applicant, and
(b) any devise or bequest made by the deceased spouse to the applicant.
(4) The provision made for the applicant concerned by an order under this section together with any provision made for the applicant by an order referred to in subsection (3) (a) (the value of which for the purposes of this subsection shall be its value on the date of the order) shall not exceed in total the share (if any) of the applicant in the estate of the deceased spouse to which the applicant was entitled or (if the deceased spouse died intestate as to the whole or part of his or her estate) would have been entitled under the Act of 1965 if the marriage had not been dissolved.
(5) Notice of an application under this section shall be given by the applicant to the spouse F20[, civil partner or former civil partner] (if any) of the deceased spouse F20[, civil partner or former civil partner] concerned and to such (if any) other persons as the court may direct and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by the spouse F20[, civil partner or former civil partner] of the deceased spouse F20[, civil partner or former civil partner] and any other such persons as aforesaid.
(6) The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.
(7) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted gives notice of his or her death to the other spouse concerned (“the spouse”) and—
(a) the spouse intends to apply to the court for an order under this section,
(b) the spouse has applied for such an order and the application is pending, or
(c) an order has been made under this section in favour of the spouse,
the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.
(8) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.
(9) Nothing in subsection (7) or (8) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.
(10) On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers it just to do so, make an order that either or both spouses shall not, on the death of either of them, be entitled to apply for an order under this section.
Annotations
Amendments:
F20
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 155, S.I. No. 648 of 2010.
Orders under Acts of 1976, 1989 and 1995.
26.—(1) Where, while an order (“the first-mentioned order”), being—
(a) a maintenance order, an order varying a maintenance order, or an interim order under the Act of 1976,
(b) an order under section 14, 15, 16, 18 or 22 of the Act of 1989,
(c) an order under section 8, 9, 10, 11, 12, 13, 14, 15 or 18 of the Act of 1995,
is in force, an application is made to the court by a spouse to whom the first-mentioned order relates for an order granting a decree of divorce or an order under this Part, the court may by order discharge the first-mentioned order as on and from such date as may be specified in the order.
(2) Where, on the grant of a decree of divorce an order specified in subsection (1) is in force, it shall, unless it is discharged by an order under subsection (1), continue in force as if it were an order made under a corresponding provision of this Act and section 22 shall apply to it accordingly.
Amendment of section 3 of Act of 1976.
27.—Section 3 (1) of the Act of 1976 is hereby amended by the insertion in the definition of “antecedent order” after paragraph (k) (inserted by the Act of 1995) of the following paragraph:
“(l) a maintenance pending suit order under the Family Law (Divorce) Act, 1996, or a periodical payments order under that Act;”.
Transmission of periodical payments through District Court clerk.
28.—Notwithstanding anything in this Act, section 9 of the Act of 1976 shall apply in relation to an order (“the relevant order”), being a maintenance pending suit order, a periodical payments order or a secured periodical payments order or any such order as aforesaid as affected by an order under section 22, with the modifications that—
(a) the reference in subsection (4) of the said section 9 to the maintenance creditor shall be construed as a reference to the person to whom payments under the relevant order concerned are required to be made,
(b) the other references in the said section 9 to the maintenance creditor shall be construed as references to the person on whose application the relevant order was made, and
(c) the reference in subsection (3) of the said section 9 to the maintenance debtor shall be construed as a reference to the person to whom payments under the relevant order are required by that order to be made,
and with any other necessary modifications.
Application of maintenance pending suit and periodical payment orders to certain members of Defence Forces.
29.—The reference in section 98 (1) (h) of the Defence Act, 1954, to an order for payment of alimony shall be construed as including a reference to a maintenance pending suit order, a periodical payments order and a secured periodical payments order.
Amendment of Enforcement of Court Orders Act, 1940.
30.—The references in subsections (1) and (7) of section 8 of the Enforcement of Court Orders Act, 1940 (as amended by section 29 of the Act of 1976 and section 22 of the Act of 1995), to an order shall be construed as including references to a maintenance pending suit order and a periodical payments order.
Annotations
Editorial Notes:
E23
Previous affecting provision: references in Enforcement of Court Orders Act 1940 (23/1940), s. 8(1) and (7) (as previously amended by Family Law (Maintenance of Spouses and Children) Act 1976, s. 29, Family Law Act 1995, s. 22 and this section) to an order was required to be construed as including references to an antecedent order (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 65, S.I. No. 648 of 2010. The 1940 Act, s. 8, is now substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 63, commenced on enactment.