{"id":11563,"date":"2022-04-25T19:56:34","date_gmt":"2022-04-25T19:56:34","guid":{"rendered":"http:\/\/legalblog.ie\/?p=11563"},"modified":"2024-03-13T07:59:41","modified_gmt":"2024-03-13T07:59:41","slug":"misc-divorce-js","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/misc-divorce-js\/","title":{"rendered":"Asset Division Issues"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><ul class='ez-toc-list-level-3' ><li class='ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Asset_Division\" title=\"Asset Division\">Asset Division<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Divorce_Clean_Break\" title=\"Divorce &amp;\u00a0 Clean Break\">Divorce &amp;\u00a0 Clean Break<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Criteria\" title=\"Criteria\">Criteria<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Assets_Considered\" title=\"Assets Considered\">Assets Considered<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#UK_One-Third_Rule\" title=\"UK One-Third Rule\">UK One-Third Rule<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#UK_%E2%80%9CBig_Money%E2%80%9D_Cases\" title=\"UK &#8220;Big Money&#8221; Cases\">UK &#8220;Big Money&#8221; Cases<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Non-Disclosure\" title=\"Non-Disclosure\">Non-Disclosure<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Change_of_Circumstances\" title=\"Change of Circumstances\">Change of Circumstances<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/#Variations_during_Financial_Crisis\" title=\"Variations during Financial Crisis\">Variations during Financial Crisis<\/a><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#FAMILY_LAW_DIVORCE_ACT_1996\" title=\"FAMILY LAW (DIVORCE) ACT 1996\">FAMILY LAW (DIVORCE) ACT 1996<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Preliminary_and_Ancillary_Orders_in_or_after_Proceedings_for_Divorce\" title=\"Preliminary and Ancillary Orders in or after Proceedings for Divorce\">Preliminary and Ancillary Orders in or after Proceedings for Divorce<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Preliminary_orders_in_proceedings_for_divorce\" title=\"Preliminary orders in proceedings for divorce.\">Preliminary orders in proceedings for divorce.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Maintenance_pending_suit_orders\" title=\"Maintenance pending suit orders.\">Maintenance pending suit orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Periodical_payments_and_lump_sum_orders\" title=\"Periodical payments and lump sum orders.\">Periodical payments and lump sum orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Property_adjustment_orders\" title=\"Property adjustment orders.\">Property adjustment orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Miscellaneous_ancillary_orders\" title=\"Miscellaneous ancillary orders.\">Miscellaneous ancillary orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-17\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Financial_compensation_orders\" title=\"Financial compensation orders.\">Financial compensation orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-18\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Pension_adjustment_orders\" title=\"Pension adjustment orders.\">Pension adjustment orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-19\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Orders_for_provision_for_spouse_out_of_estate_of_other_spouse\" title=\"Orders for provision for spouse out of estate of other spouse.\">Orders for provision for spouse out of estate of other spouse.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-20\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Orders_for_sale_of_property\" title=\"Orders for sale of property.\">Orders for sale of property.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-21\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Provisions_relating_to_certain_orders_under_sections_12_to_18_and_22\" title=\"Provisions relating to certain orders under sections 12 to 18 and 22.\">Provisions relating to certain orders under sections 12 to 18 and 22.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-22\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Retrospective_periodical_payments_orders\" title=\"Retrospective periodical payments orders.\">Retrospective periodical payments orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-23\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Variation_etc_of_certain_orders_under_this_Part\" title=\"Variation, etc., of certain orders under this Part.\">Variation, etc., of certain orders under this Part.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-24\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Restriction_in_relation_to_orders_for_benefit_of_dependent_members_of_family\" title=\"Restriction in relation to orders for benefit of dependent members of family.\">Restriction in relation to orders for benefit of dependent members of family.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-25\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Method_of_making_payments_under_certain_orders\" title=\"Method of making payments under certain orders.\">Method of making payments under certain orders.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-26\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Stay_on_certain_orders_the_subject_of_appeal\" title=\"Stay on certain orders the subject of appeal.\">Stay on certain orders the subject of appeal.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-27\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Orders_under_Acts_of_1976_1989_and_1995\" title=\"Orders under Acts of 1976, 1989 and 1995.\">Orders under Acts of 1976, 1989 and 1995.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-28\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Amendment_of_section_3_of_Act_of_1976\" title=\"Amendment of section 3 of Act of 1976.\">Amendment of section 3 of Act of 1976.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-29\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Transmission_of_periodical_payments_through_District_Court_clerk\" title=\"Transmission of periodical payments through District Court clerk.\">Transmission of periodical payments through District Court clerk.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-30\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Application_of_maintenance_pending_suit_and_periodical_payment_orders_to_certain_members_of_Defence_Forces\" title=\"Application of maintenance pending suit and periodical payment orders to certain members of Defence Forces.\">Application of maintenance pending suit and periodical payment orders to certain members of Defence Forces.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-31\" href=\"https:\/\/legalblog.ie\/misc-divorce-js\/2\/#Amendment_of_Enforcement_of_Court_Orders_Act_1940\" title=\"Amendment of Enforcement of Court Orders Act, 1940.\">Amendment of Enforcement of Court Orders Act, 1940.<\/a><\/li><\/ul><\/li><\/ul><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Asset_Division\"><\/span>Asset Division<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Irish courts have held that all of a spouse\u2019s assets are potentially subject to property adjustment orders in judicial separation and divorce. Unlike many other jurisdictions, pre-marriage assets or those inherited from family are not excluded.<\/p>\n<p>However, the source of the assets may be relevant in the exercise of the judicial discretion. Where, for example, a house has been inherited with strong family connections, this may be factor against the other spouse being granted a direct interest.<\/p>\n<p>Family settlements entered into after marriage have been varied. Accordingly trusts through which property is indirectly controlled, typically settled as a discretionary trust established after marriage may be the subject of variation order where family assets are held through it. Where assets are promised to be left on a legal basis, \u00a0to a party to a marriage, they may be the subject of an appropriate order. There must be some evidence of actual promise, inducement or representation that this is the case. Where a parent has made a will, it may be revoked.<\/p>\n<p>Disposals of assets within three years before commencement of proceedings may be adjusted.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Divorce_Clean_Break\"><\/span>Divorce &amp;\u00a0 Clean Break<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The courts have held that parties may be living apart even though they are living in the same household. Consideration must be given to the mental and intellectual attitude of the parties.\u00a0 They may be held to be separate if the circumstances so show.<\/p>\n<p>The Irish divorce legislation requires proper provision rather than and does not provide for the same clean break, quick principle applied in other jurisdictions. The statutory policy is opposed to the concept of a clean break. The policy is not only clear on the face of the statutes, but was most widely discussed and is a subject of considerable debate around the legislation. However, the courts have taken a view that while a clean break right has not been established, the objective of achieving certainty and stability in obligations between the parties is desirable where the circumstances permit.<\/p>\n<p>In a number of cases with very large assets, equal division was not required. A benchmark of a third might be a useful benchmark to fairness. While it is appropriate to value assets which could be valued at the date of trial, an order may be made which takes account\u00a0 of a change in the value of assets after separation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Criteria\"><\/span>Criteria<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The court looks at the role of the spouse in the family in particular. This includes the \u00a0spouse&#8217;s role in relation to the welfare of the family and contribution to looking after the home and caring for the family.<\/p>\n<p>It must also have regard to the effect on \u00a0the earning capacity of each of the spouses of the matrimonial responsibilities assumed by each and the degree to which the future earning capacity of a spouse was impaired by reason of the spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care of the family.<\/p>\n<p>A long-lasting marriage, especially in the primary childbearing and rearing years of a women&#8217;s life, carries significant weight especially if the wife has been the major homemaker and family carer.<\/p>\n<p>Principles of certainty and consistency are subject to the necessity and fairness. Consequently, each case must be considered on its own facts in light of the principles set out in the law so as to achieve a just result. The absence of a clean break in the Irish law does not exclude a lump sum, where this was fair in the circumstances.<\/p>\n<p>In some cases, judges have indicated that where there was a lengthy partnership of complimentary roles, a reasonably equal division of accumulated assets might be appropriate.<\/p>\n<p>In cases involving \u00a0businesses and corporate assets, the corporate cost of payment of large lump sums should be factored in, in terms of tax , costs, fees and liabilities.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Assets_Considered\"><\/span>Assets Considered<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>What is required by proper provision may change if the circumstances change or the order cannot be complied with. Although, the courts will take account of fall in asset value, if this is attributable to risky \u00a0investment behavior by a spouse, this may operate as a factor against the spouse.<\/p>\n<p>A number of cases arose during the financial crisis where there was dramatic falls in property value. The court held that where orders are impossible to comply with, they may need to be revisited.<\/p>\n<p>The courts have held that where trusts have been created in the past which are not reviewable, the courts may take them into account in deciding the division of the assets.<\/p>\n<p>The fact that assets are inherited may be taken into account as a factor leaning against their being divided equally.<\/p>\n<p>The formulation under the Divorce Act is similar to but different to that in respect of divorce. The judicial separation legislation requires adequate and reasonable provision, whereas divorce legislation requires proper provision.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"UK_One-Third_Rule\"><\/span>UK One-Third Rule<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Historically, the English courts operated a so-called one third rule, by which the wife received one third of her husband\u2019s income as maintenance plus one third of her husband\u2019s capital and income. This was used as a starting point where the marriage had lasted for many years and the wife had spent a considerable time bringing up children. A lesser amount might be granted if the marriage lasted for a short time and\/or where there were no children.<\/p>\n<p>The Irish Supreme Court had indicated that the concept of a third share as a check on fairness may be useful in some cases, but it has no application in most cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means; if such a sum could only be achieved by the sale of assets which would destroy a business, future income of the parties; or if it related to a property brought solely by one party to the marriage or other relevant circumstances. It may not be applicable to a situation where wealth has been created by one party through his or her endeavors to which the other party has no claim otherwise.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"UK_%E2%80%9CBig_Money%E2%80%9D_Cases\"><\/span>UK &#8220;Big Money&#8221; Cases<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The House of Lords changed its approach, in so-called &#8220;big money cases&#8221; departing from th previous \u00a0reasonable requirements guideline. It indicated the courts should depart from equality only, where there was good reason to do so.<\/p>\n<p>Financial needs should not be the only factor where the resources available exceeded needs, they stressed the work and value of a homemaker spouse. There should be no presumption of equal division but this should \u00a0be a yardstick. The House of Lords indicated the court should take into consideration the acquisition, property acquired during the marriage or before it. In that case, the spouse was awarded 40% of the total assets.<\/p>\n<p>Subsequent cases have emphasised that case has not authority for an equal division \u00a0of assets in England and Wales. One effect of the judgment was that the role of the spouse as homemaker should be equivalent to that of the earning spouse.<\/p>\n<p>The English approach had been which based on clean break provisions in the legislation. Provisions which enable clean break led to a practice of providing lump sums large enough to provide for future reasonable requirements, where available.<\/p>\n<p>he Irish courts have rejected the UK approach. The Irish legislation does not contemplate a clean break to the same extent as the UK legislation. The Irish courts do not emphasise a single payment to meet a wife&#8217;s reasonable requirements under the Irish Divorce Act.<\/p>\n<p>Proper provision is to be made in accordance with the statutory guidelines. However this does not prejudice the fact that proper provision may require a third to a half of assets in appropriate cases where there is no limitation on resources.<\/p>\n<p>The discretion set out in the divorce legislation for judges is not unfettered. There are mandatory guidelines. The judge shall give reasons for the way in which the decision is exercised.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Non-Disclosure\"><\/span>Non-Disclosure<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The failure by the parties to disclose their assets fully may debar them from relief or be held against them. Where a separation agreements have been entered on foot of fraudulent information, the courts will readily make awards to rectify the effect of the non-disclosure. The courts will assess the difference in \u00a0consequence of the information deficit and \u00a0may make a lump sum accordingly.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Change_of_Circumstances\"><\/span>Change of Circumstances<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Even where divorce and separation agreements are stated to be final, an\u00a0 application may be made for variation where there is a significant change of circumstances. Serious illness, windfall of changing needs or financial disasters, may constitute such circumstances.<\/p>\n<p>If one spouse acquires wealth after a separation unconnected with a joint project during marriage, this does not in itself give the other spouse a right to further assets. If one spouse becomes significantly wealthier after concluding a separation agreement, there is no right for the other spouse to obtain more assets or money. The Court will look at all the circumstances and make proper provision without and not redistribute wealth.<\/p>\n<p>The standard of living of a dependent spouse is to be similar to that enjoyed when the marriage ended, where possible. Needs such as a debilitating illness are a factor to be considered. Inherited assets are not to be treated as assets as joint marital assets. Each case should be considered specifically.<\/p>\n<p>Spouses should not be compensated for their own incompetence or indiscretion to the detriment of the other spouse. Any exceptional change in the value of the assets, which was unforeseen at the time of judicial separation, is a relevant factor.<\/p>\n<p>Misbehavior, or misconduct is not generally a factor allowing for variation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Variations_during_Financial_Crisis\"><\/span>Variations during Financial Crisis<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Proper provision generally requires that the spouse has, where possible, enough assets to provide alternative accommodation and have a proper level of maintenance.<\/p>\n<p>The courts during the financial crisis permitted variations of property adjustment orders where one partner&#8217;s spouse&#8217;s assets, income and ability to service debt had been radically affected by the financial or in particular property market collapse.<\/p>\n<p>Although separation agreements freely entered are to be enforced, courts considered that it may be appropriate to contemplate a variation order to reflect new events. A property adjustment order under the Family Law Act 1995 cannot be varied but a new order can be made. Accordingly, a property adjustment order could be made.<\/p>\n<p><!--nextpage--><\/p>\n<h2>FAMILY LAW (DIVORCE) ACT 1996<\/h2>\n<p>PART III<\/p>\n<h4>Preliminary and Ancillary Orders in or after Proceedings for Divorce<\/h4>\n<p>Annotations<\/p>\n<p>Editorial Notes:<\/p>\n<p>E6<br \/>\nCertain 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).<\/p>\n<p>E7<br \/>\nCertain 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).<\/p>\n<p>E8<br \/>\nCertain 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).<\/p>\n<p>E9<br \/>\nPrevious 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).<\/p>\n<h4>Preliminary orders in proceedings for divorce.<\/h4>\n<p>11.\u2014Where 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\u2014<\/p>\n<p>F11[(a) a safety order, barring order, interim barring order or protection order under the Act of 2018,]<\/p>\n<p>(b) an order under section 11 of the Act of 1964,<\/p>\n<p>(c) an order under section 5 or 9 of the Family Home Protection Act, 1976.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F11<br \/>\nSubstituted (1.01.2019) by Domestic Violence Act 2018 (6\/2018), s. 47(b), S.I. No. 532 of 2018.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E10<br \/>\nPower granted to Court, in proceedings relating to subs. (b), to direct the HSE to undertake an investigation of a child\u2019s 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).<\/p>\n<h4>Maintenance pending suit orders.<\/h4>\n<p>12.\u2014(1) Where an application is made to the court for the grant of a decree of divorce, the court may make an order for maintenance pending suit, that is to say, an order requiring either of the spouses concerned to make to the other spouse such periodical payments or lump sum payments for his or her support and, where appropriate, to make to such person as may be specified in the order such periodical payments for the benefit of such (if any) dependent member of the family and, as respects periodical payments, for such period beginning not earlier than the date of the application and ending not later than the date of its determination, as the court considers proper and specifies in the order.<\/p>\n<p>(2) The court may provide that payments under an order under this section shall be subject to such terms and conditions as it considers appropriate and specifies in the order.<\/p>\n<h4>Periodical payments and lump sum orders.<\/h4>\n<p>13.\u2014(1) 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 or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse, or, as the case may be, the spouse concerned, make one or more of the following orders, that is to say\u2014<\/p>\n<p>(a) a periodical payments order, that is to say\u2014<\/p>\n<p>(i) an order that either of the spouses shall make to the other spouse such periodical payments of such amount, during such period and at such times as may be specified in the order, or<\/p>\n<p>(ii) an order that either of the spouses shall make to such person as may be so specified for the benefit of such (if any) dependent member of the family such periodical payments of such amount, during such period and at such times as may be so specified,<\/p>\n<p>(b) a secured periodical payments order, that is to say\u2014<\/p>\n<p>(i) an order that either of the spouses shall secure, to the satisfaction of the court, to the other spouse such periodical payments of such amounts, during such period and at such times as may be so specified, or<\/p>\n<p>(ii) an order that either of the spouses shall secure, to the satisfaction of the court, to such person as may be so specified for the benefit of such (if any) dependent member of the family such periodical payments of such amounts, during such period and at such times as may be so specified,<\/p>\n<p>(c) (i) an order that either of the spouses shall make to the other spouse a lump sum payment or lump sum payments of such amount or amounts and at such time or times as may be so specified, or<\/p>\n<p>(ii) an order that either of the spouses shall make to such person as may be so specified for the benefit of such (if any) dependent member of the family a lump sum payment or lump sum payments of such amount or amounts and at such time or times as may be so specified.<\/p>\n<p>(2) The court may\u2014<\/p>\n<p>(a) order a spouse to pay a lump sum to the other spouse to meet any liabilities or expenses reasonably incurred by that other spouse before the making of an application by that other spouse for an order under subsection (1) in maintaining himself or herself or any dependent member of the family, or<\/p>\n<p>(b) order a spouse to pay a lump sum to such person as may be specified to meet any liabilities or expenses reasonably incurred by or for the benefit of a dependent member of the family before the making of an application on behalf of the member for an order under subsection (1).<\/p>\n<p>(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 such amounts as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.<\/p>\n<p>(4) The period specified in an order under paragraph (a) or (b) of subsection (1) shall begin not earlier than the date of the application for the order and shall end not later than the death of the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned.<\/p>\n<p>(5) (a) Upon the remarriage F12[or registration in a civil partnership] of the spouse in whose favour an order is made under paragraph (a) or (b) of subsection (1), the order shall, to the extent that it applies to that spouse, cease to have effect, except as respects payments due under it on the date of the remarriage F12[or civil partnership registration].<\/p>\n<p>(b) If, after the grant of a decree of divorce, either of the spouses concerned remarries F12[or registers in a civil partnership], the court shall not, by reference to that decree, make an order under subsection (1) in favour of that spouse.<\/p>\n<p>(6) (a) Where a court makes an order under subsection (1) (a), it shall in the same proceedings, subject to paragraph (b), make an attachment of earnings order (within the meaning of the Act of 1976) to secure payments under the first mentioned order if it is satisfied that the person against whom the order is made is a person to whom earnings (within the meaning aforesaid) fall to be paid.<\/p>\n<p>(b) Before deciding whether to make or refuse to make an attachment of earnings order by virtue of paragraph (a), the court shall give the spouse concerned an opportunity to make the representations specified in paragraph (c) in relation to the matter and shall have regard to any such representations made by that spouse.<\/p>\n<p>(c) The representations referred to in paragraph (b) are representations relating to the questions\u2014<\/p>\n<p>(i) whether the spouse concerned is a person to whom such earnings as aforesaid fall to be paid, and<\/p>\n<p>(ii) whether he or she would make the payments to which the relevant order under subsection (1) (a) relates.<\/p>\n<p>(d) References in this subsection to an order under subsection (1) (a) include references to such an order as varied or affirmed on appeal from the court concerned or varied under section 22.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F12<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 151, S.I. No. 648 of 2010.<\/p>\n<h4>Property adjustment orders.<\/h4>\n<p>14.\u2014(1) 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 or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make a property adjustment order, that is to say, an order providing for one or more of the following matters:<\/p>\n<p>(a) the transfer by either of the spouses to the other spouse, to any dependent member of the family or to any other specified person for the benefit of such a member of specified property, being property to which the first-mentioned spouse is entitled either in possession or reversion,<\/p>\n<p>(b) the settlement to the satisfaction of the court of specified property, being property to which either of the spouses is so entitled as aforesaid, for the benefit of the other spouse and of any dependent member of the family or of any or all of those persons,<\/p>\n<p>(c) the variation for the benefit of either of the spouses and of any dependent member of the family or of any or all of those persons of any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses,<\/p>\n<p>(d) the extinguishment or reduction of the interest of either of the spouses under any such settlement.<\/p>\n<p>(2) An order under paragraph (b), (c) or (d) may restrict to a specified extent or exclude the application of section 22 in relation to the order.<\/p>\n<p>(3) If, after the grant of a decree of divorce, either of the spouses concerned remarries F13[or registers in a civil partnership], the court shall not, by reference to that decree, make a property adjustment order in favour of that spouse.<\/p>\n<p>(4) Where a property adjustment order is made in relation to land, a copy of the order certified to be a true copy by the registrar or clerk of the court concerned shall, as appropriate, be lodged by him or her in the Land Registry for registration pursuant to section 69 (1)(h) of the Registration of Title Act, 1964, in a register maintained under that Act or be registered in the Registry of Deeds.<\/p>\n<p>F14[(4A) Where a property adjustment order lodged under subsection (4) and registered pursuant to section 69(1)(h) of the Registration of Title Act 1964 or in the Registry of Deeds has been complied with, the Property Registration Authority shall, on being satisfied that the order has been complied with\u2014<\/p>\n<p>(a) cancel the entry made in the register under the Registration of Title Act 1964, or<\/p>\n<p>(b) note compliance with the order in the Registry of Deeds.]<\/p>\n<p>(5) Where\u2014<\/p>\n<p>(a) a person is directed by an order under this section to execute a deed or other instrument in relation to land, and<\/p>\n<p>(b) the person refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to do so,<\/p>\n<p>the court may order another person to execute the deed or instrument in the name of the first-mentioned person; and a deed or other instrument executed by a person in the name of another person pursuant to an order under this subsection shall be as valid as if it had been executed by that other person.<\/p>\n<p>(6) Any costs incurred in complying with a property adjustment order shall be borne, as the court may determine, by either of the spouses concerned, or by both of them in such proportions as the court may determine, and shall be so borne in such manner as the court may determine.<\/p>\n<p>(7) This section shall not apply in relation to a family home in which, following the grant of a decree of divorce, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F13<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 152, S.I. No. 648 of 2010.<\/p>\n<p>F14<br \/>\nInserted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14\/2008), s. 75(a), S.I. No. 274 of 2008.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E11<br \/>\nForm of application for cancellation of Property Adjustment Order pursuant to section prescribed (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rule 103, in effect as per rule 1.<\/p>\n<p>E12<br \/>\nForm of application for cancellation of Property Adjustment Order pursuant to section prescribed (1.11.2009) by Registration of Deeds Rules 2009 (S.I. No. 350 of 2009), rule 3, in effect as per rule 2.<\/p>\n<p>E13<br \/>\nMethod for application for cancellation of Property Adjustment Order pursuant to section prescribed (1.11.2009) by Land Registration Rules 2009 (S.I. No. 349 of 2009), rule 5, in effect as per rule 2.<\/p>\n<p>E14<br \/>\nProcedure for application for registration of an order of Court pursuant to section prescribed (1.05.2008) by Registration of Deeds Rules 2008 (S.I. No. 52 of 2008), rule 14(2), in effect as per rule 1.<\/p>\n<h4>Miscellaneous ancillary orders.<\/h4>\n<p>15.\u2014(1) 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 or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders:<\/p>\n<p>(a) an order\u2014<\/p>\n<p>(i) providing for the conferral on one spouse either for life or for such other period (whether definite or contingent) as the court may specify of the right to occupy the family home to the exclusion of the other spouse, or<\/p>\n<p>(ii) directing the sale of the family home subject to such conditions (if any) as the court considers proper and providing for the disposal of the proceeds of the sale between the spouses and any other person having an interest therein,<\/p>\n<p>(b) an order under section 36 of the Act of 1995,<\/p>\n<p>(c) an order under section 5, 7 or 9 of the Family Home Protection Act, 1976,<\/p>\n<p>F15[(d) an order under section 6, 7, 8 or 10 of the Act of 2018,]<\/p>\n<p>(e) F16[under section 31 of the Land and Conveyancing Law Reform Act 2009],<\/p>\n<p>(f) an order under section 11 of the Act of 1964,<\/p>\n<p>and, for the purposes of this section, in paragraphs (b), (c) and (d), a reference to a spouse in a statute referred to in paragraph (b), (c) or (d) shall be construed as including a reference to a person who is a party to a marriage that has been dissolved under this Act.<\/p>\n<p>(2) The court, in exercising its jurisdiction under subsection (1) (a), shall have regard to the welfare of the spouses and any dependent member of the family and, in particular, shall take into consideration\u2014<\/p>\n<p>(a) that, where a decree of divorce is granted, it is not possible for the spouses concerned to reside together, and<\/p>\n<p>(b) that proper and secure accommodation should, where practicable, be provided for a spouse who is wholly or mainly dependent on the other spouse and for any dependent member of the family.<\/p>\n<p>(3) Subsection (1) (a) shall not apply in relation to a family home in which, following the grant of a decree of divorce, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F15<br \/>\nSubstituted (1.01.2019) by Domestic Violence Act 2018 (6\/2018), s. 47(c), S.I. No. 532 of 2018.<\/p>\n<p>F16<br \/>\nSubstituted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27\/2009), s. 8 and sch. 1, S.I. No. 356 of 2009.<\/p>\n<h4>Financial compensation orders.<\/h4>\n<p>16.\u2014(1) Subject to the provisions of this section, 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 or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers\u2014<\/p>\n<p>(a) that the financial security of the spouse making the application (\u201cthe applicant\u201d) or the dependent member of the family (\u201cthe member\u201d) can be provided for either wholly or in part by so doing, or<\/p>\n<p>(b) that the forfeiture, by reason of the decree of divorce, by the applicant or the member, as the case may be, of the opportunity or possibility of acquiring a benefit (for example, a benefit under a pension scheme) can be compensated for wholly or in part by so doing,<\/p>\n<p>make a financial compensation order, that is to say, an order requiring the other spouse to do one or more of the following:<\/p>\n<p>(i) to effect such a policy of life insurance for the benefit of the applicant or the member as may be specified in the order,<\/p>\n<p>(ii) to assign the whole or a specified part of the interest of the other spouse in a policy of life insurance effected by that other spouse or both of the spouses to the applicant or to such person as may be specified in the order for the benefit of the member,<\/p>\n<p>(iii) to make or to continue to make to the person by whom a policy of life insurance is or was issued the payments which that other spouse or both of the spouses is or are required to make under the terms of the policy.<\/p>\n<p>(2) (a) The court may make a financial compensation order in addition to or in substitution in whole or in part for orders under section 13, 14, 15 or 17 and in deciding whether or not to make such an order it shall have regard to whether proper provision having regard to the circumstances exists or can be made for the spouse concerned or the dependent member of the family concerned by orders under those sections.<\/p>\n<p>(b) An order under this section shall cease to have effect on the re-marriage F17[, registration in a civil partnership] or death of the applicant in so far as it relates to the applicant.<\/p>\n<p>(c) The court shall not make an order under this section in favour of a spouse who has remarried F17[or registered in a civil partnership].<\/p>\n<p>(d) An order under section 22 in relation to an order under paragraph (i) or (ii) of subsection (1) may make such provision (if any) as the court considers appropriate in relation to the disposal of\u2014<\/p>\n<p>(i) an amount representing any accumulated value of the insurance policy effected pursuant to the order under the said paragraph (i), or<\/p>\n<p>(ii) the interest or the part of the interest to which the order under the said paragraph (ii) relates.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F17<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 153, S.I. No. 648 of 2010.<\/p>\n<h4>Pension adjustment orders.<\/h4>\n<p>17.\u2014(1) In this section, save where the context otherwise requires\u2014<\/p>\n<p>\u201cthe Act of 1990\u201d means the Pensions Act, 1990;<\/p>\n<p>\u201cactive member\u201d in relation to a scheme, means a member of the scheme who is in reckonable service;<\/p>\n<p>\u201cactuarial value\u201d means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such 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 thereafter in accordance with normal life expectancy on the assumption that the member concerned of the scheme, at the effective date of calculation, is in a normal state of health having regard to his or her age;<\/p>\n<p>\u201capproved arrangement\u201d, 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;<\/p>\n<p>\u201ccontingent benefit\u201d means a benefit payable under a scheme, other than a payment under subsection (7) to or for one or more of the following, that is to say, the widow or the widower and any dependants of the member spouse concerned and the personal representative of the member spouse, if the member spouse dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the scheme;<\/p>\n<p>F18[&#8220;defined contribution scheme&#8221; has the same meaning as in the Pensions Act 1990;]<\/p>\n<p>\u201cdesignated benefit\u201d, in relation to a pension adjustment order, means an amount determined by the trustees of the scheme concerned, in accordance with relevant guidelines, and by reference to the period and the percentage of the retirement benefit specified in the order concerned under subsection (2);<\/p>\n<p>\u201cmember spouse\u201d, in relation to a scheme, means a spouse who is a member of the scheme;<\/p>\n<p>\u201cnormal pensionable age\u201d 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 such rules providing for early retirement on grounds of ill health or otherwise;<\/p>\n<p>\u201coccupational pension scheme\u201d has the meaning assigned to it by section 2 (1) of the Act of 1990;<\/p>\n<p>\u201creckonable service\u201d means service in relevant employment during membership of any scheme;<\/p>\n<p>\u201crelevant guidelines\u201d means any relevant guidelines for the time being in force under paragraph (c) or (cc) of section 10 (1) of the Act of 1990;<\/p>\n<p>\u201crelevant employment\u201d, 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;<\/p>\n<p>\u201cretirement benefit\u201d, in relation to a scheme, means all benefits (other than contingent benefits) payable under the scheme;<\/p>\n<p>\u201crules\u201d, in relation to a scheme, means the provisions of the scheme, by whatever name called;<\/p>\n<p>\u201cscheme\u201d means a pension scheme;<\/p>\n<p>\u201ctransfer amount\u201d shall be construed in accordance with subsection (4);<\/p>\n<p>\u201cundertaking\u201d has the meaning assigned to it by the Insurance Act, 1989.<\/p>\n<p>(2) Subject to the provisions of this section, where a decree of divorce (\u201cthe decree\u201d) has been granted, the court, if it so thinks fit, may, in relation to retirement benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf at the time of the making of the order for the decree or at any time thereafter during the lifetime of the member spouse by either of the spouses or by a person on behalf of a dependent member of the family, make an order providing for the payment, in accordance with the provisions of this section, to either of the following, as the court may determine, that is to say\u2014<\/p>\n<p>(a) the other spouse and, in the case of the death of that spouse, his or her personal representative, and<\/p>\n<p>(b) such person as may be specified in the order for the benefit of a person who is, and for so long only as he or she remains, a dependent member of the family, of a benefit consisting, either, as the court may determine, of the whole, or such part as the court considers appropriate, of that part of the retirement benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme and has accrued at the time of the making of the order for the decree and, for the purpose of determining the benefit, the order shall specify\u2014<\/p>\n<p>(i) the period of reckonable service of the member spouse prior to the granting of the decree to be taken into account, and<\/p>\n<p>(ii) the percentage of the retirement benefit accrued during that period to be paid to the person referred to in paragraph (a) or (b), as the case may be.<\/p>\n<p>(3) Subject to the provisions of this section, where a decree of divorce (\u201cthe decree\u201d) has been granted, the court, if it so thinks fit, may, in relation to a contingent benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf not more than one year after the making of the order for the decree by either of the spouses or by a person on behalf of a dependent member of the family concerned, make an order providing for the payment, upon the death of the member spouse, to either of the following, or to both of them in such proportions as the court may determine, that is to say\u2014<\/p>\n<p>(a) the other spouse, and<\/p>\n<p>(b) such person as may be specified in the order for the benefit of a dependent member of the family,<\/p>\n<p>of, either, as the court may determine, the whole, or such part (expressed as a percentage) as the court considers appropriate, of that part of any contingent benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme.<\/p>\n<p>(4) Where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the spouse in whose favour the order is made shall be entitled to the application in accordance with subsection (5) of an amount of money from the scheme concerned (in this section referred to as a \u201ctransfer amount\u201d) equal to the value of the designated benefit, such amount being determined by the trustees of the scheme in accordance with relevant guidelines.<\/p>\n<p>(5) Subject to subsection (17), where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the trustees of the scheme concerned shall, for the purpose of giving effect to the order\u2014<\/p>\n<p>(a) on application to them in that behalf at the time of the making of the order or at any time thereafter by the spouse in whose favour the order was made (\u201cthe spouse\u201d), and<\/p>\n<p>(b) on the furnishing to them by the spouse of such information as they may reasonably require,<\/p>\n<p>apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines either\u2014<\/p>\n<p>(i) if the trustees and the spouse so agree, in providing a benefit for or in respect of the spouse under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or<\/p>\n<p>(ii) in making a payment either to\u2014<\/p>\n<p>(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or<\/p>\n<p>(II) in the discharge of any payment falling to be made by the trustees under any such other approved arrangement,<\/p>\n<p>as may be determined by the spouse.<\/p>\n<p>(6) Subject to subsection (17), where the court makes an order under subsection (2) in relation to a defined contribution scheme and an application has not been brought under subsection (5), the trustees of the scheme may, for the purpose of giving effect to the order, if they so think fit, apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines, in making a payment to\u2014<\/p>\n<p>(a) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or<\/p>\n<p>(b) in the discharge of any payment falling to be made by the trustees under such other approved arrangement,<\/p>\n<p>as may be determined by the trustees.<\/p>\n<p>(7) Subject to subsection (17), where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2), and<\/p>\n<p>(b) the member spouse concerned dies before payment of the designated benefit concerned has commenced,<\/p>\n<p>the trustees shall, for the purpose of giving effect to the order, within 3 months of the death of the member spouse, provide for the payment to the person in whose favour the order was made of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.<\/p>\n<p>(8) Subject to subsection (17), where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2), and<\/p>\n<p>(b) the member spouse concerned ceases to be a member of the scheme otherwise than on death,<\/p>\n<p>the trustees may, for the purpose of giving effect to the order, if they so think fit, apply, in accordance with relevant guidelines, the transfer amount calculated in accordance with those guidelines either, as the trustees may determine\u2014<\/p>\n<p>(i) if the trustees and the person in whose favour the order is made (\u201cthe person\u201d) so agree, in providing a benefit for or in respect of the person under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or<\/p>\n<p>(ii) in making a payment, either to\u2014<\/p>\n<p>(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or<\/p>\n<p>(II) in the discharge of any payment falling to be made under such other approved arrangement,<\/p>\n<p>as may be determined by the trustees.<\/p>\n<p>(9) Subject to subsection (17), where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2) in favour of a spouse (\u201cthe spouse\u201d),<\/p>\n<p>(b) the spouse dies before the payment of the designated benefit has commenced,<\/p>\n<p>the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the transfer amount calculated in accordance with relevant guidelines.<\/p>\n<p>(10) Subject to subsection (17), where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2) in favour of a spouse (\u201cthe spouse\u201d), and<\/p>\n<p>(b) the spouse dies after payment of the designated benefit has commenced,<\/p>\n<p>the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the actuarial value, calculated in accordance with relevant guidelines, of the part of the designated benefit which, but for the death of the spouse, would have been payable to the spouse during the lifetime of the member spouse.<\/p>\n<p>(11) Where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2) for the benefit of a dependent member of the family (\u201cthe person\u201d), and<\/p>\n<p>(b) the person dies before payment of the designated benefit has commenced,<\/p>\n<p>the order shall cease to have effect in so far as it relates to that person.<\/p>\n<p>(12) Where\u2014<\/p>\n<p>(a) the court makes an order under subsection (2) or (3) in relation to an occupational pension scheme, and<\/p>\n<p>(b) the trustees of the scheme concerned have not applied the transfer amount concerned in accordance with subsection (5), (6), (7), (8) or (9), and<\/p>\n<p>(c) after the making of the order, the member spouse ceases to be an active member of the scheme,<\/p>\n<p>the trustees shall, within 12 months of the cessation, notify the registrar or clerk of the court concerned and the other spouse of the cessation.<\/p>\n<p>(13) Where the trustees of a scheme apply a transfer amount under subsection (6) or (8), they shall notify the spouse (not being the spouse who is the member spouse) or other person concerned and the registrar or clerk of the court concerned of the application and shall give to that spouse or other person concerned particulars of the scheme or undertaking concerned and of the transfer amount.<\/p>\n<p>(14) Where the court makes an order under subsection (2) or (3) for the payment of a designated benefit or a contingent benefit, as the case may be, the benefit shall be payable or the transfer amount concerned applied out of the resources of the scheme concerned and, unless otherwise provided for in the order or relevant guidelines, shall be payable in accordance with the rules of the scheme or, as the case may be, applied in accordance with relevant guidelines.<\/p>\n<p>(15) Where the court makes an order under subsection (2), the amount of the retirement benefit payable, in accordance with the rules of the scheme concerned to, or to or in respect of, the member spouse shall be reduced by the amount of the designated benefit payable pursuant to the order.<\/p>\n<p>(16) (a) Where the court makes an order under subsection (3), the amount of the contingent benefit payable, in accordance with the rules of the scheme concerned in respect of the member spouse shall be reduced by an amount equal to the contingent benefit payable pursuant to the order.<\/p>\n<p>(b) Where the court makes an order under subsection (2) and the member spouse concerned dies before payment of the designated benefit concerned has commenced, the amount of the contingent benefit payable in respect of the member spouse in accordance with the rules of the scheme concerned shall be reduced by the amount of the payment made under subsection (7).<\/p>\n<p>(17) Where, pursuant to an order under subsection (2), the trustees of a scheme make a payment or apply a transfer amount under subsection (5), (6), (7), (8), (9) or (10), they shall be discharged from any obligation to make any further payment or apply any transfer amount under any other of those subsections in respect of the benefit payable pursuant to the order.<\/p>\n<p>(18) A person who makes an application under subsection (2) or (3) or an application for an order under section 22 (2) in relation to an order under subsection (2) shall give notice thereof to the trustees of the scheme concerned 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 any person to whom notice of the application has been given under this section or section 40.<\/p>\n<p>(19) An order under subsection (3) shall cease to have effect on the death or remarriage F19[or registration in a civil partnership] of the person in whose favour it was made in so far as it relates to that person.<\/p>\n<p>(20) The court may, in a pension adjustment order or by order made under this subsection after the making of a pension adjustment order, give to the trustees of the scheme concerned such directions as it considers appropriate for the purposes of the pension adjustment order including directions compliance with which occasions non-compliance with the rules of the scheme concerned or the Act of 1990; and a trustee of a scheme shall not be liable in any court or other tribunal for any loss or damage caused by his or her non-compliance with the rules of the scheme or with the Act of 1990 if the non-compliance was occasioned by his or her compliance with a direction of the court under this subsection.<\/p>\n<p>(21) The registrar or clerk of the court concerned shall cause a copy of a pension adjustment order to be served on the trustees of the scheme concerned.<\/p>\n<p>(22) (a) Any costs incurred by the trustees of a scheme under subsection (18) or in complying with a pension adjustment order or a direction under subsection (20) or (25) shall be borne, as the court may determine, by the member spouse or by the other person concerned or by both of them in such proportion as the court may determine and, in the absence of such determination, those costs shall be borne by them equally.<\/p>\n<p>(b) Where a person fails to pay an amount in accordance with paragraph (a) to the trustees of the scheme concerned, the court may, on application to it in that behalf by the trustees, order that the amount be deducted from the amount of any benefit payable to the person under the scheme or pursuant to an order under subsection (2) or (3) and be paid to the trustees.<\/p>\n<p>(23) (a) The court shall not make a pension adjustment order in favour of a spouse who has remarried F19[or registered in a civil partnership].<\/p>\n<p>(b) The court may make a pension adjustment order in addition to or in substitution in whole or in part for an order or orders under section 13, 14, 15 or 16 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether proper provision, having regard to the circumstances, exists or can be made for the spouse concerned or the dependent member of the family concerned by an order or orders under any of those sections.<\/p>\n<p>(24) Section 54 of the Act of 1990 and any regulations under that section shall apply with any necessary modifications to a scheme if proceedings for the grant of a decree of divorce to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of divorce in the proceedings.<\/p>\n<p>(25) For the purposes of this Act, the court may, of its own motion, and shall, if so requested by either of the spouses concerned or any other person concerned, direct the trustees of the scheme concerned to provide the spouses or that other person and the court, within a specified period of time\u2014<\/p>\n<p>(a) with a calculation of the value and the amount, determined in accordance with relevant guidelines, of the retirement benefit, or contingent benefit, concerned that is payable (or which, but for the making of the order for the decree of divorce concerned, would have been payable) under the scheme and has accrued at the time of the making of that order, and<\/p>\n<p>(b) with a calculation of the amount of the contingent benefit concerned that is payable (or which, but for the making of the order for the decree of divorce concerned, would have been payable) under the scheme.<\/p>\n<p>(26) An order under this section may restrict to a specified extent or exclude the application of section 22 in relation to the order.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F18<br \/>\nSubstituted (14.04.2008) by Social Welfare and Pensions Act 2008 (2\/2008), s. 31, S.I. No. 84 of 2008.<\/p>\n<p>F19<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 154, S.I. No. 648 of 2010.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E15<br \/>\nInformation to be furnished in relation to pension adjustment orders prescribed (27.04.2007) by Trust Racs (Disclosure of Information) Regulations 2007 (S.I. No. 182 of 2007), reg. 14, in effect as per reg. 1(2).<\/p>\n<p>E16<br \/>\nInformation to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 17, in effect as per reg. 1(2)(c), as amended (12.06.2012) by Occupational Pension Schemes (Disclosure of Information) (Amendment) (No. 3) Regulations 2012 (S.I. No. 203 of 2012), reg. 3(h).<\/p>\n<p>E17<br \/>\nPensions Board allocated function to issue guidelines or guidance notes generally on the operation of Pensions Act 1990 (25\/1990) and on the provisions of this Act relating to pension schemes (within the meaning of s. 2) by Pensions Act 1990 (25\/1990), s. 10(1)(cc), as substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 47(c), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 148, S.I. No. 648 of 2010.<\/p>\n<p>E18<br \/>\nMinister granted power to make regulations specifying guidelines for purposes of section by Pensions Act 1990 (25\/1990), s. 5(4), as amended (27.02.1997) by Family Law (Divorce) Act 1996 (33\/1996), s. 47(a) and (b), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 148, S.I. No. 648 of 2010. Power to make regulations under Pensions Act 1990 (25\/1990), s. 5, as amended, was exercised (27.02.1997) by Pension Schemes (Family Law) Regulations 1997 (S.I. No. 107 of 1997), in effect as per reg. 1(2), and (18.07.2012) by Pension Schemes (Family Law) (Amendment) Regulations 2012 (S.I. No. 254 of 2012).<\/p>\n<p>E19<br \/>\nPrevious affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2005 (S.I. No. 633 of 2005), reg. 17, commenced as per reg. 1(2)(d); revoked (1.06.2006) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(2), in effect as per reg. 1(2)(b).<\/p>\n<p>E20<br \/>\nPrevious affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.10.1998) by Occupational Pension Schemes (Disclosure of Information) (No. 2) Regulations 1998 (S.I. No. 349 of 1998), reg. 15, in effect as per reg. 1(2)(a); revoked (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(1)(c), in effect as per reg. 2(1)(c).<\/p>\n<h4>Orders for provision for spouse out of estate of other spouse.<\/h4>\n<p>18.\u2014(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 (\u201cthe applicant\u201d) 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).<\/p>\n<p>(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.<\/p>\n<p>(3) In considering whether to make an order under this section the court shall have regard to all the circumstances of the case including\u2014<\/p>\n<p>(a) any order under paragraph (c) of section 13 (1) or a property adjustment order in favour of the applicant, and<\/p>\n<p>(b) any devise or bequest made by the deceased spouse to the applicant.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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 (\u201cthe spouse\u201d) and\u2014<\/p>\n<p>(a) the spouse intends to apply to the court for an order under this section,<\/p>\n<p>(b) the spouse has applied for such an order and the application is pending, or<\/p>\n<p>(c) an order has been made under this section in favour of the spouse,<\/p>\n<p>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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F20<br \/>\nInserted (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.<\/p>\n<h4>Orders for sale of property.<\/h4>\n<p>19.\u2014(1) Where the court makes a secured periodical payments order, a lump sum order or a property adjustment order, thereupon, or at any time thereafter, it may make an order directing the sale of such property as may be specified in the order, being property in which, or in the proceeds of sale of which, either or both of the spouses concerned has or have a beneficial interest, either in possession or reversion.<\/p>\n<p>(2) The jurisdiction conferred on the court by subsection (1) shall not be so exercised as to affect a right to occupy the family home of the spouse concerned that is enjoyed by virtue of an order under this Part.<\/p>\n<p>(3) (a) An order under subsection (1) may contain such consequential or supplementary provisions as the court considers appropriate.<\/p>\n<p>(b) Without prejudice to the generality of paragraph (a), an order under subsection (1) may contain\u2014<\/p>\n<p>(i) a provision specifying the manner of sale and some or all of the conditions applying to the sale of the property to which the order relates,<\/p>\n<p>(ii) a provision requiring any such property to be offered for sale to a person, or a class of persons, specified in the order,<\/p>\n<p>(iii) a provision directing that the order, or a specified part of it, shall not take effect until the occurrence of a specified event or the expiration of a specified period,<\/p>\n<p>(iv) a provision requiring the making of a payment or payments (whether periodical payments or lump sum payments) to a specified person or persons out of the proceeds of the sale of the property to which the order relates, and<\/p>\n<p>(v) a provision specifying the manner in which the proceeds of the sale of the property concerned shall be disposed of between the following persons or such of them as the court considers appropriate, that is to say, the spouses concerned and any other person having an interest therein.<\/p>\n<p>(4) A provision in an order under subsection (1) providing for the making of periodical payments to one of the spouses concerned out of the proceeds of the sale of property shall, on the death or remarriage F21[or registration in a civil partnership] of that spouse, cease to have effect except as respects payments due on the date of the death or remarriage F21[or civil partnership registration].<\/p>\n<p>(5) Where a spouse has a beneficial interest in any property, or in the proceeds of the sale of any property, and a person (not being the other spouse) also has a beneficial interest in that property or those proceeds, then, in considering whether to make an order under this section or section 14 or 15 (1) (a) in relation to that property or those proceeds, the court shall give to that person an opportunity to make representations with respect to the making of the order and the contents thereof, and any representations made by such a person shall be deemed to be included among the matters to which the court is required to have regard under section 20 in any relevant proceedings under a provision referred to in that section after the making of those representations.<\/p>\n<p>(6) This section shall not apply in relation to a family home in which, following the grant of a decree of divorce, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F21<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 156, S.I. No. 648 of 2010.<\/p>\n<h4>Provisions relating to certain orders under sections 12 to 18 and 22.<\/h4>\n<p>20.\u2014(1) In deciding whether to make an order under section 12, 13, 14, 15 (1) (a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.<\/p>\n<p>(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:<\/p>\n<p>(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,<\/p>\n<p>(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage F22[or registration in a civil partnership] of the spouse or otherwise),<\/p>\n<p>(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,<\/p>\n<p>(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,<\/p>\n<p>(e) any physical or mental disability of either of the spouses,<\/p>\n<p>(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,<\/p>\n<p>(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,<\/p>\n<p>(h) any income or benefits to which either of the spouses is entitled by or under statute,<\/p>\n<p>(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,<\/p>\n<p>(j) the accommodation needs of either of the spouses,<\/p>\n<p>(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,<\/p>\n<p>(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.<\/p>\n<p>(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.<\/p>\n<p>(4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:<\/p>\n<p>(a) the financial needs of the member,<\/p>\n<p>(b) the income, earning capacity (if any), property and other financial resources of the member,<\/p>\n<p>(c) any physical or mental disability of the member,<\/p>\n<p>(d) any income or benefits to which the member is entitled by or under statute,<\/p>\n<p>(e) the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,<\/p>\n<p>(f) the matters specified in paragraphs (a), (b) and (c) of subsection (2) and in subsection (3),<\/p>\n<p>(g) the accommodation needs of the member.<\/p>\n<p>(5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F22<br \/>\nInserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24\/2010), s. 157, S.I. No. 648 of 2010.<\/p>\n<h4>Retrospective periodical payments orders.<\/h4>\n<p>21.\u2014(1) Where, having regard to all the circumstances of the case, the court considers it appropriate to do so, it may, in a periodical payments order, direct that\u2014<\/p>\n<p>(a) the period in respect of which payments under the order shall be made shall begin on such date before the date of the order, not being earlier than the time of the institution of the proceedings concerned for the grant of a decree of divorce, as may be specified in the order,<\/p>\n<p>(b) any payments under the order in respect of a period before the date of the order be paid in one sum and before a specified date, and<\/p>\n<p>(c) there be deducted from any payments referred to in paragraph (b) made to the spouse concerned an amount equal to the amount of such (if any) payments made to that spouse by the other spouse as the court may determine, being payments made during the period between the making of the order for the grant of the decree aforesaid and the institution of the proceedings aforesaid.<\/p>\n<p>(2) The jurisdiction conferred on the court by subsection (1) (b) is without prejudice to the generality of section 13 (1) (c).<\/p>\n<h4>Variation, etc., of certain orders under this Part.<\/h4>\n<p>22.\u2014(1) This section applies to the following orders:<\/p>\n<p>(a) a maintenance pending suit order,<\/p>\n<p>(b) a periodical payments order,<\/p>\n<p>(c) a secured periodical payments order,<\/p>\n<p>(d) a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires the payment of any such instalments to be secured,<\/p>\n<p>(e) an order under paragraph (b), (c) or (d) of section 14 (1) in so far as such application is not restricted or excluded pursuant to section 14 (2),<\/p>\n<p>(f) an order under subparagraph (i) or (ii) of section 15 (1) (a),<\/p>\n<p>(g) a financial compensation order,<\/p>\n<p>(h) an order under section 17 (2) insofar as such application is not restricted or excluded pursuant to section 17 (26),<\/p>\n<p>(i) an order under this section.<\/p>\n<p>(2) Subject to the provisions of this section and section 20 and to any restriction or exclusion pursuant to section 14 (2) or 17 (26) and without prejudice to section 16 (2) (d), the court may, on application to it in that behalf\u2014<\/p>\n<p>(a) by either of the spouses concerned,<\/p>\n<p>(b) in the case of the death of either of the spouses, by any other person who has, in the opinion of the court, a sufficient interest in the matter or by a person on behalf of a dependent member of the family concerned, or<\/p>\n<p>(c) in the case of the remarriage of either of the spouses, by his or her spouse,<\/p>\n<p>if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, by order vary or discharge an order to which this section applies, suspend any provision of such an order or any provision of such an order temporarily, revive the operation of such an order or provision so suspended, further vary an order previously varied under this section or further suspend or revive the operation of an order or provision previously suspended or revived under this section; and, without prejudice to the generality of the foregoing, an order under this section may require the divesting of any property vested in a person under or by virtue of an order to which this section applies.<\/p>\n<p>(3) Without prejudice to the generality of section 12 or 13, that part of an order to which this section applies which provides for the making of payments for the support of a dependent member of the family shall stand discharged if the member ceases to be a dependent member of the family by reason of his or her attainment of the age of 18 years or 23 years, as may be appropriate, and shall be discharged by the court, on application to it under subsection (2), if it is satisfied that the member has for any reason ceased to be a dependent member of the family.<\/p>\n<p>(4) The power of the court under subsection (2) to make an order varying, discharging or suspending an order referred to in subsection (1) (e) shall be subject to any restriction or exclusion specified in that order and shall (subject to the limitation aforesaid) be a power\u2014<\/p>\n<p>(a) to vary the settlement to which the order relates in any person\u2019s favour or to extinguish or reduce any person\u2019s interest under that settlement, and<\/p>\n<p>(b) to make such supplemental provision (including a further property adjustment order or a lump sum order) as the court thinks appropriate in consequence of any variation, extinguishment or reduction made pursuant to paragraph (a),<\/p>\n<p>and section 19 shall apply to a case where the court makes such an order as aforesaid under subsection (2) as it applies to a case where the court makes a property adjustment order with any necessary modifications.<\/p>\n<p>(5) The court shall not make an order under subsection (2) in relation to an order referred to in subsection (1) (e) unless it appears to it that the order will not prejudice the interests of any person who\u2014<\/p>\n<p>(a) has acquired any right or interest in consequence of the order referred to in subsection (1) (e), and<\/p>\n<p>(b) is not a party to the marriage concerned or a dependent member of the family concerned.<\/p>\n<p>(6) This section shall apply, with any necessary modifications, to instruments executed pursuant to orders to which this section applies as it applies to those orders.<\/p>\n<p>(7) Where the court makes an order under subsection (2) in relation to a property adjustment order relating to land, a copy of the order under subsection (2) certified to be a true copy by the registrar or clerk of the court concerned shall, as appropriate, be lodged by him or her in the Land Registry for registration pursuant to section 69 (1) (h) of the Registration of Title Act, 1964, in a register maintained under that Act or be registered in the Registry of Deeds.<\/p>\n<p>F23[(8) Where a property adjustment order lodged under section 14(4) and duly registered pursuant to section 69(1)(h) of the Registration of Title Act 1964 is varied, discharged, suspended or revived by an order under subsection (2) and the second-mentioned order has been duly lodged for registration pursuant to subsection (7), the Property Registration Authority shall\u2014<\/p>\n<p>(a) amend or cancel the entry made in the register, pursuant to section 14(4), under the Registration of Title Act 1964 accordingly, or<\/p>\n<p>(b) note the position in the Registry of Deeds.]<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F23<br \/>\nInserted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14\/2008), s. 75(b), S.I. No. 274 of 2008.<\/p>\n<p>Editorial Notes:<\/p>\n<p>E21<br \/>\nForm of application for cancellation of Property Adjustment Order pursuant to section prescribed (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rule 103, in effect as per rule 1.<\/p>\n<p>E22<br \/>\nProcedure for application for registration of an order of Court pursuant to section prescribed (1.05.2008) by Registration of Deeds Rules 2008 (S.I. No. 52 of 2008), rule 14(2), in effect as per rule 1.<\/p>\n<h4>Restriction in relation to orders for benefit of dependent members of family.<\/h4>\n<p>23.\u2014In deciding whether\u2014<\/p>\n<p>(a) to include in an order under section 12 a provision requiring the making of periodical payments for the benefit of a dependent member of the family,<\/p>\n<p>(b) to make an order under paragraph (a) (ii), (b) (ii) or (c) (ii) of section 13 (1),<\/p>\n<p>(c) to make an order under section 22 varying, discharging or suspending a provision referred to in paragraph (a) or an order referred to in paragraph (b),<\/p>\n<p>the court shall not have regard to conduct by the spouse or spouses concerned of the kind specified in subsection (2) (i) of section 20.<\/p>\n<h4>Method of making payments under certain orders.<\/h4>\n<p>24.\u2014(1) The court may by order provide that a payment under an order to which this section applies shall be made by such method as is specified in the order and be subject to such terms and conditions as it considers appropriate and so specifies.<\/p>\n<p>(2) This section applies to an order under\u2014<\/p>\n<p>(a) section 11 (2) (b) of the Act of 1964,<\/p>\n<p>(b) section 5, 5A or 7 of the Act of 1976,<\/p>\n<p>(c) section 7, 8 or 24 of the Act of 1995, and<\/p>\n<p>(d) section 12, 13, 19 or 22.<\/p>\n<h4>Stay on certain orders the subject of appeal.<\/h4>\n<p>25.\u2014Where an appeal is brought from an order under\u2014<\/p>\n<p>(a) section 11 (2) (b) of the Act of 1964,<\/p>\n<p>(b) section 5, 5A or 7 of the Act of 1976,<\/p>\n<p>(c) section 7, paragraph (a) or (b) of section 8 (1) or section 24 of the Act of 1995, or<\/p>\n<p>(d) section 12, paragraph (a) or (b) of section 13 (1) or paragraph (a), (b) or (c) of section 22 (1),<\/p>\n<p>the operation of the order shall not be stayed unless the court that made the order or to which the appeal is brought directs otherwise.<\/p>\n<h4>Orders under Acts of 1976, 1989 and 1995.<\/h4>\n<p>26.\u2014(1) Where, while an order (\u201cthe first-mentioned order\u201d), being\u2014<\/p>\n<p>(a) a maintenance order, an order varying a maintenance order, or an interim order under the Act of 1976,<\/p>\n<p>(b) an order under section 14, 15, 16, 18 or 22 of the Act of 1989,<\/p>\n<p>(c) an order under section 8, 9, 10, 11, 12, 13, 14, 15 or 18 of the Act of 1995,<\/p>\n<p>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.<\/p>\n<p>(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.<\/p>\n<h4>Amendment of section 3 of Act of 1976.<\/h4>\n<p>27.\u2014Section 3 (1) of the Act of 1976 is hereby amended by the insertion in the definition of \u201cantecedent order\u201d after paragraph (k) (inserted by the Act of 1995) of the following paragraph:<\/p>\n<p>\u201c(l) a maintenance pending suit order under the Family Law (Divorce) Act, 1996, or a periodical payments order under that Act;\u201d.<\/p>\n<h4>Transmission of periodical payments through District Court clerk.<\/h4>\n<p>28.\u2014Notwithstanding anything in this Act, section 9 of the Act of 1976 shall apply in relation to an order (\u201cthe relevant order\u201d), 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\u2014<\/p>\n<p>(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,<\/p>\n<p>(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<\/p>\n<p>(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,<\/p>\n<p>and with any other necessary modifications.<\/p>\n<h4>Application of maintenance pending suit and periodical payment orders to certain members of Defence Forces.<\/h4>\n<p>29.\u2014The 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.<\/p>\n<h4>Amendment of Enforcement of Court Orders Act, 1940.<\/h4>\n<p>30.\u2014The 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.<\/p>\n<p>Annotations<\/p>\n<p>Editorial Notes:<\/p>\n<p>E23<br \/>\nPrevious 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.<\/p>\n<p>ome.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-11563\" data-postid=\"11563\" class=\"themify_builder_content themify_builder_content-11563 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Asset Division The Irish courts have held that all of a spouse\u2019s assets are potentially subject to property adjustment orders in judicial separation and divorce. Unlike many other jurisdictions, pre-marriage assets or those inherited from family are not excluded. However, the source of the assets may be relevant in the exercise of the judicial discretion. 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