Family Law Act 1995

Changes to legislation: as of 3 September 2024, this Act is up to date with all changes known to be in force.

This Revised Act is an administrative consolidation of the Family Law Act 1995. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.

All Acts up to and including the Electoral Reform Act 2022 (30/2022), enacted 25 July 2022, and all statutory instruments up to and including the European Union (Decisions in Matrimonial Matters and in Matters of Parental Responsibility and International Child Abduction) Regulations 2022 (S.I. No. 400 of 2022), made 31 July 2022, were considered in the preparation of this Revised Act.

Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to

Number 26 of 1995

FAMILY LAW ACT 1995

Updated to 1 August 2022

ARRANGEMENT OF SECTIONS

Preliminary and General

Preliminary and Ancillary Orders in or after Proceedings for Judicial Separation

Relief after Divorce or Separation Outside State

Declarations as to Marital Status

Number 26 of 1995

FAMILY LAW ACT 1995

Updated to 1 August 2022

AN ACT TO MAKE FURTHER PROVISION IN RELATION TO THE JURISDICTION OF THE COURTS TO MAKE PRELIMINARY AND ANCILLARY ORDERS IN OR AFTER PROCEEDINGS FOR JUDICIAL SEPARATION, TO ENABLE SUCH ORDERS TO BE MADE IN CERTAIN CASES WHERE MARRIAGES ARE DISSOLVED, OR AS RESPECTS WHICH THE SPOUSES BECOME JUDICIALLY SEPARATED, UNDER THE LAW OF ANOTHER STATE, TO MAKE FURTHER PROVISION IN RELATION TO MAINTENANCE UNDER THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976, AND IN RELATION TO MARRIAGE AND TO PROVIDE FOR CONNECTED MATTERS. [2nd October, 1995]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Annotations

Modifications (not altering text):

Certain functions in relation to Act transferred (1.01.2014, establisment day) by Child and Family Agency Act 2013, ss. 6, 82 and sch. 1, S.I. Nos. 502 and 503 of 2013.

Transfer of certain functions of Health Service Executive

82. —(1) The administration and business in connection with the performance of any of the functions transferred by subsection (2) are transferred, on the establishment day, to the Agency.

(2) The functions vested in the Health Service Executive by or under the enactments specified in Schedule 1 shall, on the establishment day, stand transferred to the Agency.

Functions of Health Service Executive Transferred to Agency

Family Law Act 1995

Functions transferred and references to “Department of Equality and Law Reform” and “Minister for Equality and Law Reform” construed (8.07.1997) by Equality and Law Reform (Transfer of Departmental Administration and Ministerial Functions) Order 1997 (S.I. No. 297 of 1997), arts. 3, 4 and sch., in effect as per art. 1(2).

3. (1) The administration and business in connection with the exercise, performance or execution of any functions transferred by Article 4 of this Order are hereby transferred to the Department of Justice.

(2) References to the Department of Equality and Law Reform contained in any Act or any instrument made thereunder and relating to any administration and business transferred by paragraph (1) of this Article shall, on and after the commencement of this Order, be construed as references to the Department of Justice.

4. (1) The functions vested in the Minister for Equality and Law Reform

( a ) by or under any of the Acts mentioned in the Schedule to this Order, and

( b ) by virtue of the Justice (Transfer of Departmental Administration and Ministerial Functions) Order, 1993 (S.I. No. 34 of 1993).

are hereby transferred to the Minister for Justice.

(2) References to the Minister for Equality and Law Reform contained in any Act or instrument made thereunder and relating to any functions transferred by this Article shall, on and after the commencement of this Order, be construed as references to the Minister for Justice.

Acts, functions under which are transferred from the Minister for Equality and Law Reform to the Minister for Justice.

Family Law Act 1995 (No. 26 of 1995)

Editorial Notes:

Act included in definition of “family law proceedings” (1.01.2018) by Mediation Act 2017 (27/2017), s. 2, S.I. No. 591 of 2017.

Rights and incumbrances, for purposes of Land and Conveyancing Law Reform Act 2009 (27/2009), s. 117, confirmed to include claims under Act (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 117(4)(a), S.I. No. 356 of 2009.

Central Authority authorised to act on behalf of a maintenance creditor under Act by Maintenance Act 1994 (28/1994), s. 4(2)(a); as substituted (1.12.1999) by Jurisdiction of Courts and Enforcement of Judgments Act 1998 (52/1998), s. 22(2), S.I. No. 353 of 1999; and substituted (10.03.2012) by Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 (7/2012), s. 2(1)(b), commenced on enactment.

Certain disposals made by virtue or in consequence of certain orders made under Act confirmed exempt from capital gains tax (1997-1998 onwards) by Taxes Consolidation Act 1997 (39/1997), s. 1030, commenced as per s. 1097(1)(c); as amended (10.02.2000) by Finance Act 2000 (3/2000), s. 88(1), commenced as per s. 88(2); and as amended (7.12.2005) by Finance Act 2006 (6/2006), s. 75(1)(b), commenced as per s. 75(2).

Exemption from deduction of income tax for payments made pursuant to an order under Act (other than under s. 12) provided (from year 1997-1998) by Taxes Consolidation Act 1997 (39/1997), s. 1027, commenced as per s. 1097.

Preliminary and General

Short title and commencement.

1.— (1) This Act may be cited as the Family Law Act, 1995.

(2) (a) This Act shall come into operation on such day or days as, by order or orders made by the Minister for Equality and Law Reform under this section, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

(b) An order under paragraph (a) relating to, or in so far as it relates to, section 32 shall not be made without the consent of the Minister for Health.

Annotations

Editorial Notes:

Power pursuant to section exercised (1.08.1996) by Order Entitled Family Law Act 1995 (Commencement) Order 1996 (S.I. No. 46 of 1996).

2. The 1st day of August, 1996 is hereby fixed as the day on which the Family Law Act, 1995 (No. 26 of 1995), shall come into operation.

2.— (1) In this Act, save where the context otherwise requires—

F3 [ "Act of 2018" means the Domestic Violence Act 2018; ]

F4 [ "civil partnership" has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]

F5 [ "cohabitant" shall be construed in accordance with section 172 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and includes a former cohabitant; ]

“” includes a mortgage, lease, assent, transfer, disclaimer, release and any other disposition of property otherwise than by a will or a donatio mortis causa and also includes an enforceable agreement (whether conditional or unconditional) to make any such disposition;

“” shall be construed in accordance with section 38;

“” means a decree under section 3 of the Act of 1989;

“” means a decree granted by a court declaring a marriage to be null and void;

“”, in relation to a spouse, or the spouses, concerned, means any child—

(a) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1991, or in relation to whom both spouses are in loco parentis, or

(b) of either spouse or adopted by either spouse under those Acts or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he or she is not the parent of the child, has treated the child as a member of the family,

who is under the age of 18 years or if the child has attained that age—

(i) is or will be or, if an order were made under this Act providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years, or

(ii) has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully;

“” has the meaning assigned to it by section 2 of the Family Home Protection Act, 1976, with the modification that the references to a spouse in that section shall be construed as references to a spouse within the meaning of this Act;

“” has the meaning assigned to it by section 11;

“” and “” have the meanings assigned to them by the Registration of Title Act, 1964;

“” means an order under section 8 (1) (c);

“” means an order under section 7;

“” means an order under section 24;

“”, in relation to a pension scheme, means any person who, having been admitted to membership of the scheme under its rules, remains entitled to any benefit under the scheme;

“” means an order under section 12;

(a) an occupational pension scheme (within the meaning of the Pensions Act, 1990), or

(b) (i) an annuity contract approved by the Revenue Commissioners under section 235 of the Income Tax Act, 1967, or a contract so approved under section 235A of that Act,

(ii) a trust scheme, or part of a trust scheme, so approved under subsection (4) of the said section 235 or subsection (5) of the said section 235A, or

(iii) a policy or contract of assurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972, or

F6 [ ( bb ) a PRSA contract within the meaning of Part X of the Pensions Act, 1990 , or ]

(c) any other scheme or arrangement (including a personal pension plan and a scheme or arrangement established by or pursuant to statute or instrument made under statute other than under the Social Welfare Acts) that provides or is intended to provide either or both of the following, that is to say:

(i) benefits for a person who is a member of the scheme or arrangement (“the member”) upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving, or upon the ceasing of, the relevant employment,

(ii) benefits for the widow, widower or dependants of the member, or for any other persons, on the death of the member;

“” and “” have the meanings assigned to them by section 8 (1);

“” has the meaning assigned to it by section 9;

F4 [ "registration", with respect to a civil partnership, includes entering into a relationship of a class of legal relationships that is the subject of an order made under section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]

“” means an order under Part II made by virtue of section 23;

“”, in relation to a scheme that is established under a trust, means the trustees of the pension scheme and, in relation to a pension scheme not so established, means the persons who administer the scheme.

(2) In this Act, where the context so requires—

(a) a reference to a marriage includes a reference to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

(b) a reference to a remarriage includes a reference to a marriage that takes place after a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

(c) a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

(d) a reference to a family includes a reference to a family as respects which the marriage of the spouses concerned has been dissolved under the law of a country or jurisdiction other than the State,

(e) a reference to an application to a court by a person on behalf of a dependent member of the family includes a reference to such an application by such a member and a reference to a payment, the securing of a payment, or the assignment of an interest, to a person for the benefit of a dependent member of the family includes a reference to a payment, the securing of a payment, or the assignment of an interest, to such a member,

and cognate words shall be construed accordingly.

(a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

(b) a reference to a Part or section is a reference to a Part or section of this Act unless it is indicated that reference to some other enactment is intended,

(c) a reference to a subsection, paragraph, subparagraph or clause is a reference to the subsection, paragraph, subparagraph or clause of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

Annotations

Deleted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(a), commenced as per s. 25(1).

Deleted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 45(a)(i), S.I. No. 532 of 2018.

Inserted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 45(a)(ii), S.I. No. 532 of 2018.

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 159, S.I. No. 648 of 2010.

Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 89, S.I. No. 12 of 2016.

Inserted (7.11.2002) by Pensions (Amendment) Act 2002 (18/2002), s. 57(1), S.I. No. 502 of 2002.

Modifications (not altering text):

References to adoptions and adopted persons under Adoption Acts 1952 to 1998 to be read as referring to adoptions and adopted persons made under Adoption Act 2010 as provided (1.11.2010) by Adoption Act 2010 (21/2010), s. 156(1), S.I. No. 511 of 2010.

References to adoptions, etc.

156.—(1) Every reference in any Act or in any instrument made under any Act, however expressed, to adoptions or adoption orders or adopted persons under any or all of the Adoption Acts 1952 to 1998 shall be read as a reference to adoptions or adoption orders made under this Act, or persons adopted under an adoption order made under this Act, as the case may be.

Editorial Notes:

Previous affecting provision: definition of “Act of 1996” inserted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(a), commenced as per s. 25(1); deleted as per F-note above.

3.— (1) The enactments specified in the Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.

(2) Notwithstanding subsection (1)—

(a) orders made before the commencement of Part II under a provision of the Act of 1989 repealed by subsection (1) shall continue in force and be treated after such commencement as if made under the corresponding provision of this Act,

(b) (i) orders or decrees made or exceptions granted under section 1 of the Legitimacy Declaration Act (Ireland), 1868, section 1 of the Marriages Act, 1972, or section 12 of the Married Women’s Status Act, 1957, before such commencement shall continue in force after such commencement,

(ii) proceedings instituted under any of those sections before such commencement may be continued and determined after such commencement, and

(iii) orders or decrees made or exceptions granted after such commencement in those proceedings shall be in force,

(c) proceedings instituted before such commencement under a provision of the Act of 1989 repealed by subsection (1) may be continued and determined as if instituted under the corresponding provision of this Act and orders made in those proceedings after such commencement shall be in force and be treated as if made under the corresponding provision of this Act.

4.— The expenses incurred by the Minister for Equality and Law Reform, the Minister for Health or the Minister for Justice in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Preliminary and Ancillary Orders in or after Proceedings for Judicial Separation

Application (sections 6 to 14).

5.— Each of the following sections, that is to say, sections 6 to 14, applies to a case in which proceedings for the grant of a decree of judicial separation are instituted after the commencement of that section.

Preliminary orders in proceedings for judicial separation.

6.— Where an application is made to the court for the grant of a decree of judicial separation, 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—

F7 [ ( a ) an order under section 6 , 7 , 8 or 10 of the Act of 2018, ]

(b) an order under section 11 of the Act of 1964,

Annotations

Substituted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 45(b), S.I. No. 532 of 2018.

Editorial Notes:

Previous affecting provision: para. (a) substituted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(b), commenced as per s. 25(1); substituted as per F-note above.

Maintenance pending suit orders.

7.— (1) Where an application is made to the court for the grant of a decree of judicial separation, 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.

(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.

Periodical payments and lump sum orders.

8.— (1) On granting a decree of judicial separation F8 [ 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:

(a) a periodical payments order, that is to say—

(i) an order that either of the spouses shall make to the other spouse such periodical payments of such amount, during such periods and at such times as may be specified in the order, or

(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,

(b) a secured periodical payments order, that is to say—

(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

(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,

(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 F8 [ or ] ,

(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.

(2) The court may—

(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

(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).

(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.

(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 F9 [ the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned ] .

(5) (a) Upon the remarriage F10 [ 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 F10 [ or civil partnership registration ] .

(b) If, after the grant of a decree of judicial separation, either of the spouses concerned remarries F10 [ 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.

(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.

(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.

(i) whether the spouse concerned is a person to whom such earnings as aforesaid fall to be paid, and

(ii) whether he or she would make the payments to which the relevant order under subsection (1) (a) relates.

(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 18.

Annotations

Inserted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(a)(i) and (ii), commenced as per s. 1(2).

Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(a)(iii), commenced as per s. 1(2).

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 160, S.I. No. 648 of 2010.

Editorial Notes:

Form 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.

Property adjustment orders.

9.— (1) On granting a decree of judicial separation F11 [ 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:

(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;

(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;

(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;

(d) the extinguishment or reduction of the interest of either of the spouses under any such settlement.

(2) An order under paragraph (b), (c) or (d) may restrict to a specified extent or exclude the application of section 18 in relation to the order.

(3) If, after the grant of a decree of judicial separation, either of the spouses concerned remarries F12 [ 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.

(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.

F13 [ (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 —

( a ) cancel the entry made in the register under the Registration of Title Act 1964 , or

( b ) note compliance with the order in the Registry of Deeds. ]

(a) a person is directed by an order under this section to execute a deed or other instrument in relation to land, and

(b) the person refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to do so,

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.

(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.

(7) This section shall not apply in relation to a family home in which, following the grant of a decree of judicial separation either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.

Annotations

Inserted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(b), commenced as per s. 1(2).

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 161, S.I. No. 648 of 2010.

Inserted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 74(a), S.I. No. 274 of 2008.

Editorial Notes:

Form 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.

Procedure 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.

Previous affecting provisions: form of 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; rescinded (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rule 1.

Section 10

Miscellaneous ancillary orders.

10.— (1) On granting a decree of judicial separation F14 [ 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:

(a) an order—

(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 the right to occupy the family home to the exclusion of the other spouse, or

(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,

(b) an order under section 36,

F15 [ ( d ) an order under section 6 , 7 , 8 or 10 of the Act of 2018, ]

(e) an order F16 [ under section 31 of the Land and Conveyancing Law Reform Act 2009 ] ,

(f) an order under section 11 of the Act of 1964.

(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—

(a) that, where a decree of judicial separation is granted, it is not possible for the spouses concerned to continue to reside together, and

(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.

F14 [ (3) Subsection (1)(a) shall not apply in relation to a family home in which, following the grant of a decree of judicial separation, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse. ]

Annotations

Inserted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(c), commenced as per s. 1(2).

Substituted (1.01.2019) by Domestic Violence Act 2018 (6/2018), s. 45(c), S.I. No. 532 of 2018.

Substituted (1.12.2009) by Land And Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.

Editorial Notes:

Previous affecting provision: subs. (1)(d) substituted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(c), commenced as per s. 25(1); substituted as per F-note above.

Section 11

Financial compensation orders.

11.— (1) Subject to the provisions of this section, on granting a decree of judicial separation 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—

(a) that the financial security of the spouse making the application (“”) or the dependent member of the family (“”) can be provided for either wholly or in part by so doing, or

(b) that the forfeiture, by reason of the decree of judicial separation, by the applicant or the dependent, 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,

make a financial compensation order, that is to say, an order requiring either or both of the spouses to do one or more of the following:

(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,

(ii) to assign the whole or a specified part of the interest of either or both of the spouses in a policy of life insurance effected by either 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,

(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 either or both of the spouses is or are required to make under the terms of the policy.

(2) (a) The court may make a financial compensation order in addition to or in substitution in whole or in part for orders under sections 8 to 10 and 12 and in deciding whether or not to make such an order it shall have regard to whether F17 [ 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.

(b) An order under this section shall cease to have effect on the remarriage F18 [ , registration in a civil partnership ] or death of the applicant in so far as it relates to the applicant.

(c) The court shall not make an order under this section if the spouse who is applying for the order has remarried F18 [ or registered in a civil partnership ] .

(d) An order under section 18 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—

(i) an amount representing any accumulated value of the insurance policy effected pursuant to the order under the said paragraph (i), or

(ii) the interest or the part of the interest to which the order under the said paragraph (ii) relates.

Annotations

Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(d), commenced as per s. 1(2).

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 162, S.I. No. 648 of 2010.

Section 12

Pension adjustment orders.

12.— (1) In this section, save where the context otherwise requires—

“”, in relation to a scheme, means a member of the scheme who is in reckonable service;

“” 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;

“”, 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;

“” 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;

F19 [ "defined contribution scheme" has the same meaning as in the Pensions Act 1990 ; ]

“”, 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);

“”, in relation to a scheme, means a spouse who is a member of the scheme;

“” 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;

“” has the meaning assigned to it by section 2 (1) of the Act of 1990;

“” means service in relevant employment during membership of any scheme;

“” means any relevant guidelines for the time being in force under F20 [ paragraph ( c ) or ( cc ) of section 10 (1) ] of the Act of 1990;

“”, 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;

“”, in relation to a scheme, means all benefits (other than contingent benefits) payable under the scheme;

“”, in relation to a scheme, means the provisions of the scheme, by whatever name called;

“” means a pension scheme;

“” shall be construed in accordance with subsection (4);

“” has the meaning assigned to it by the Insurance Act, 1989.

(2) Subject to the provisions of this section, where a decree of judicial separation (“”) 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:

(a) the other spouse and, in the case of the death of that spouse, his or her personal representative, and

(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—

(i) the period of reckonable service of the member spouse prior to the granting of the decree to be taken into account, and

(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.

(3) Subject to the provisions of this section, where a decree of judicial separation (“”) 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:

(a) the other spouse, and

(b) such person as may be specified in the order for the benefit of a dependent member of the family,

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.

(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 “”) equal to the value of the designated benefit, such amount being determined by the trustees of the scheme in accordance with relevant guidelines.

(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—

(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 (“”), and

(b) on the furnishing to them by the spouse of such information as they may reasonably require,

apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines either—

(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

(ii) in making a payment either to—

(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

(II) in the discharge of any payment falling to be made by the trustees under any such other approved arrangement,

as may be determined by the spouse.

(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—

(a) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

(b) in the discharge of any payment falling to be made by the trustees under such other approved arrangement,

as may be determined by the trustees.

(7) Subject to subsection (17), where—

(a) the court makes an order under subsection (2), and

(b) the member spouse concerned dies before payment of the designated benefit concerned has commenced,

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 is made of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.

(8) Subject to subsection (17), where—

(a) the court makes an order under subsection (2), and

(b) the member spouse concerned ceases to be a member of the scheme otherwise than on death,

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—

(i) if the trustees and the person in whose favour the order is made (“”) 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

(ii) in making a payment, either to—

(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

(II) in the discharge of any payment falling to be made under such other approved arrangement,

as may be determined by the trustees.

(9) Subject to subsection (17), where—

(a) the court makes an order under subsection (2) in favour of a spouse (“”), and

(b) the spouse dies before payment of the designated benefit has commenced,

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.

(10) Subject to subsection (17), where—

(a) the court makes an order under subsection (2) in favour of a spouse (“”), and

(b) the spouse dies after payment of the designated benefit has commenced,

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.

(a) the court makes an order under subsection (2) for the benefit of a dependent member of the family (“”), and

(b) the person dies before payment of the designated benefit has commenced,

the order shall cease to have effect in so far as it relates to that person.

(a) the court makes an order under subsection (2) or (3) in relation to an occupational pension scheme, and

(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

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.

(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.

(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.

(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.

(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.

(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).

(17) Where, pursuant to an order under subsection (2), the trustees of a scheme make a payment or apply a transfer amount under subsections (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.

(18) A person who makes an application under subsection (2) or (3) or an application for an order under section 18 (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 F20 [ 40 ] .

(19) An order under subsection (3), shall cease to have effect on the death or remarriage F21 [ or registration in a civil partnership ] of the person in whose favour it was made in so far as it relates to that person.

(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 section.

(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.

(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.

(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.

(23) (a) The court shall not make a pension adjustment order if the spouse who applies for the order has remarried F21 [ or registered in a civil partnership ] .

(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 8, 9, 10 or 11 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether F22 [ 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.

(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 judicial separation to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of judicial separation in the proceedings.

(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—

(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 judicial separation concerned, would have been payable) under the scheme and has accrued at the time of the making of that order, and

(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 judicial separation concerned, would have been payable) under the scheme.

(26) An order under this section may restrict to a specified extent or exclude the application of section 18 in relation to the order.