PART 3
Registration of Civil Partnership
7.
Amendment of section 2 of Act of 2004.
7.—
(1)
Section 2(1) of the Act of 2004 is amended—
(a)
by inserting the following definitions:
“‘Act of 2010’ means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;
‘civil partner’ has the meaning assigned to it by the Act of 2010;
‘civil partnership registration’ means registration under section 59D;
‘civil status’ means being single, married, separated, divorced, widowed, in a civil partnership
or being a former civil partner in a civil partnership that has ended by death or
been dissolved;
‘dissolution’ means dissolution of a civil partnership under section 110 of the Act of 2010;”,
(b)
by substituting the following definition for the definition “decree of divorce”:
“‘decree of divorce’ has the meaning assigned to it by the Family Law (Divorce) Act 1996;”,
(c)
by substituting the following definition for the definition “decree of nullity”:
“‘decree of nullity’—
(a)
in the case of a decree of nullity of marriage, has the meaning assigned to it by
the Family Law (Divorce) Act 1996, and
(b)
in the case of a decree of nullity of civil partnership, has the meaning assigned
to it by the Act of 2010;”,
(d)
in the definition of “event”, by substituting “divorce, decree of nullity, civil partnership registration or dissolution” for “divorce or decree of nullity”,
(e)
in the definition of “registrar”—
(i)
by inserting the following paragraph after paragraph (a):
“(aa)
in relation to a civil partnership registration or intended civil partnership registration,
or the register of civil partnerships, means a registrar within the meaning of section
17,”,
(ii)
in paragraph (d), by substituting “,” for “, and”, and
(iii)
by substituting the following paragraphs for paragraph (e):
“(e)
in relation to a decree of nullity of marriage or the register of decrees of nullity
of marriage, means the Courts Service,
(f)
in relation to a decree of dissolution, or the register of decrees of dissolution,
means the Courts Service, and
(g)
in relation to a decree of nullity of a civil partnership or the register of decrees
of nullity of civil partnerships, means the Courts Service,”.
(2)
Section 2(2) of the Act of 2004 is amended—
(a)
in paragraph (d), by substituting “,” for “, or”,
(b)
in paragraph (e) by substituting “sex, or” for “sex.”, and
(c)
by inserting the following paragraph after paragraph (e):
“(f)
one of the parties to the marriage is, or both are, already party to a subsisting
civil partnership.”.
(3)
Section 2 of the Act of 2004 is amended by inserting the following subsection after
subsection (2):
“(2A)
For the purposes of this Act, there is an impediment to a civil partnership registration
if—
(a)
the civil partnership would be void by virtue of the Third Schedule,
(b)
one of the parties to the intended civil partnership is, or both are, already party
to a subsisting civil partnership,
(c)
one or both of the parties to the intended civil partnership will be under the age
of 18 years on the date of the intended civil partnership registration,
(d)
one or both of the parties to the intended civil partnership does not give free and
informed consent,
(e)
the parties are not of the same sex, or
(f)
one of the parties to the intended civil partnership is, or both are, married.”.
8.
Amendment of section 8 of Act of 2004.
8.—
Section 8(1) of the Act of 2004 is amended—
(a)
in paragraph (b), by inserting “of marriage” after “nullity”,
(b)
by inserting the following paragraphs after paragraph (b):
“(bb)
to extend the Civil Registration Service to civil partnership registration, wherever
occurring in the State,
(bbb)
to extend the Civil Registration Service to decrees of dissolution and decrees of
nullity of civil partnerships, wherever granted in the State,”,
(c)
in paragraph (e), by inserting “of marriage” after “nullity”, and
(d)
by inserting the following paragraphs after paragraph (e):
“(ee)
to establish and maintain registers and indexes for the purposes of the registration
of civil partnerships,
(eee)
to establish and maintain registers and indexes for the purpose of the registration
of decrees of dissolution of civil partnerships and of decrees of nullity of civil
partnerships,”.
9.
Amendment of section 13 of Act of 2004.
9.—
Section 13(1) of the Act of 2004 is amended—
(a)
in paragraph (f), by substituting “decrees of divorce),” for “decrees of divorce), and”, and
(b)
by substituting the following paragraphs for paragraph (g):
“(g)
a register of all decrees of nullity of marriage (which shall be known, and is referred
to in this Act, as the register of decrees of nullity of marriage),
(h)
a register of all civil partnership registrations taking place in the State (which
shall be known, and is referred to in this Act, as the register of civil partnerships),
(i)
a register of all decrees of dissolution (which shall be known, and is referred to
in this Act, as the register of decrees of dissolution), and
(j)
a register of all decrees of nullity of civil partnerships (which shall be known,
and is referred to in this Act, as the register of decrees of nullity of civil partnerships).”.
10.
Amendment of section 17 of Act of 2004.
10.—
Section 17 of the Act of 2004 is amended—
(a)
in paragraph (1)(b), by substituting “deaths, marriages and civil partnerships” for “deaths and marriages”, and
(b)
in subsection (13), by substituting “, marriages and civil partnerships” for “and marriages”.
11.
Amendment of section 22 of Act of 2004.
11.—
Section 22(3)(b) of the Act of 2004 is amended by inserting “of marriage” after “nullity”.
12.
Amendment of section 23 of Act of 2004.
12.—
Section 23(3)(b) of the Act of 2004 is amended by inserting “of marriage” after “nullity”.
13.
Amendment of section 37 of Act of 2004.
13.—
Section 37 of the Act of 2004 is amended by inserting “or civil partner” after “relative” wherever it occurs.
14.
Amendment of section 46 of Act of 2004.
14.—
Section 46(7) of the Act of 2004 is amended by substituting “civil status” for “marital status”.
15.
Amendment of section 59 of Act of 2004.
15.—
Section 59(2) of the Act of 2004 is amended by inserting “of marriage” after “nullity” wherever it appears.
16.
Insertion of new Part 7A of Act of 2004.
16.—
The Act of 2004 is amended by inserting the following Part after section 59:
“PART 7A
Registration of Civil Partnerships
Definitions (Part 7A).
59A.—
In this Part—
‘civil partnership registration form’ means a form prescribed under section 59C;
‘register’ means the register of civil partnerships.
Notification of civil partnerships.
59B.—
(1)
A civil partnership registered in the State, after the commencement of this section,
between persons of any age shall not be valid in law unless the persons concerned—
(a)
notify any registrar in writing in a form for the time being standing approved by
an tArd-Chláraitheoir of their intention to enter into a civil partnership not less than 3 months
prior to the date on which the civil partnership is to be registered, and
(b)
attend at the office of that registrar, or at any other convenient place specified
by that registrar, at any time during normal business hours not less than 5 days (or
a lesser number of days that may be determined by that registrar) before that date
and make and sign a declaration in his or her presence that there is no impediment
to the registration of the civil partnership.
(2)
Notwithstanding paragraph (a) of subsection (1), the Circuit Court or the High Court may, on application to it
by the persons wishing to enter into a civil partnership, order that the registration
be exempt from that paragraph if the Court is satisfied, after a hearing held otherwise
than in public, that there are serious reasons for the exemption and that the exemption
is in the interests of those persons.
(3)
The jurisdiction conferred on the Circuit Court by this section shall be exercised
by a judge of the circuit in which either of the parties to the intended civil partnership
concerned ordinarily resides or carries on any profession, business or occupation
or where the place at which the civil partnership concerned is intended to be registered
is situate.
(4)
A court fee shall not be charged in respect of an application under subsection (2).
(5)
Except in the circumstances that may be prescribed, a notification referred to in
paragraph (1)(a) shall be delivered by both of the parties to the intended civil partnership, in
person, to the registrar.
(6)
The notification shall be accompanied by the prescribed fee and any other documents
and information that an tArd-Chláraitheoir may specify.
(7)
The requirements specified in subsections (1) and (5) are declared to be substantive
requirements for registering a civil partnership.
(8)
When, in relation to an intended civil partnership, a registrar receives a notification
under paragraph (1)(a) and any other documents or information specified under subsection (6), he or she
shall, as soon as reasonably practicable, notify in writing each of the parties to
the intended civil partnership and the registrar who is to register the civil partnership
of the receipt.
(9)
A notification under subsection (8) shall not be construed as indicating the registrar’s approval of the proposed civil partnership.
(10)
The registrar may require each party to an intended civil partnership to provide him
or her with the evidence relating to that party’s forename, surname, address, civil status, age and nationality that an tArd-Chláraitheoir may specify.
(11)
An tArd-Chláraitheoir may, if so authorised by the Minister, publish, in the form and manner that
the Minister may direct, notice of notifications of intended civil partnerships under
subsection (1), but a notice under this subsection shall not contain the personal
public service number of a party to the intended civil partnership.
Civil partnership registration form.
59C.—
(1)
A registrar to whom a notification is given under section 59B, or who receives a copy
of an exemption order under subsection (2) of that section, who is satisfied that
that section has been complied with shall complete a civil partnership registration
form for the intended civil partnership.
(2)
Before the registration of a civil partnership, the registrar shall give a copy of
the civil partnership registration form to one of the parties to the intended civil
partnership.
(3)
When the parties wish to register a civil partnership, one of them shall give the
civil partnership registration form to the registrar who is to register the civil
partnership for examination by him or her.
(4)
A civil partnership registration form is valid only for a period of 6 months from
the date on which it is completed. If the parties do not register the civil partnership
during that period and wish to have their civil partnership registered, they shall
again comply with section 59B.
(5)
The Minister may prescribe the civil partnership registration form.
Civil partnership registration.
59D.—
(1)
The parties shall orally make the declarations referred to in subsection (3), and
sign the civil partnership registration form in the presence of each other, the registrar
and two witnesses professing to be 18 years or over. The declarations shall be made
and the signature of the civil partnership registration form shall be in a place that
is open to the public, unless an tArd-Chláraitheoir or a superintendent registrar—
(a)
is satisfied on the basis of a certificate of a registered medical practitioner that
one or both of the parties is too ill to attend at a place that is open to the public,
and
(b)
gives approval to the registrar that signature of the form take place at another place
chosen by the parties and agreed to by the registrar.
(2)
The registrar shall be satisfied that the parties understand the nature of the civil
partnership and the declarations specified in subsection (3).
(3)
Each party to the civil partnership shall make the following declarations:
(a)
a declaration that he or she does not know of any impediment to the civil partnership
registration;
(b)
a declaration of his or her intention to live with and support the other party; and
(c)
a declaration that he or she accepts the other party as a civil partner in accordance
with the law.
(4)
The requirements of subsections (1) to (3) are declared to be substantive requirements
for civil partnership registration.
(5)
The parties may, before signing the civil partnership registration form, take part
in a ceremony in a form approved by an tArd-Chláraitheoir in which the declarations are made in a place open to the public and in
the presence of the registrar and the witnesses.
(6)
(a)
The witnesses shall sign the form after the parties to the civil partnership have
done so, and the registrar shall countersign the form.
(b)
The parties’ civil partnership shall be taken to be registered upon the counter-signature of the
registrar.
(c)
As soon as practicable after the signatures and counter-signature, the registrar shall
give the parties a copy of the form referred to in paragraph (a), enter the particulars in relation to the civil partnership in the register and
register the civil partnership in a manner that an tArd-Chláraitheoir may direct.
(7)
Where an tArd-Chláraitheoir is satisfied that a duly signed civil partnership registration form has
been lost, destroyed or damaged, he or she may direct the appropriate registrar—
(a)
to complete another civil partnership registration form and arrange, insofar as it
is practicable to do so, for its signature by the persons referred to in subsection
(1), and
(b)
when it has been so signed, to enter the particulars in relation to the civil partnership
specified in the form in the register and to register the civil partnership in a manner
as an tArd-Chláraitheoir may direct.
(8)
The Minister may provide by regulations for the correction of errors in entries in
the register and for the causing of corrected entries to be entered in the register
and for the retention of the original entries in the register.
(9)
Where an tArd-Chláraitheoir is satisfied that an entry in the register relates to a civil partnership
in relation to which section 59B(1) was not complied with (other than where there
has been an exemption ordered under subsection (2) of that section)—
(a)
an tArd-Chláraitheoir shall direct a registrar to cancel the entry,
(b)
the registrar shall cancel the entry, and
(c)
an tArd-Chláraitheoir shall notify the parties.
Places and times for registration of civil partnerships.
59E.—
(1)
A civil partnership may be registered only at a place and time chosen by the parties
to the civil partnership with the agreement of the registrar and, if the place chosen
is not the office of a registrar or a place referred to in section 59D(1)(b), the approval of the place by the Executive, and the question whether to give or
withhold the approval, shall be determined by the Executive by reference to the matters
that the Minister may specify.
(2)
Where a registrar registers a civil partnership at a place other than the office of
a registrar, the parties shall pay to the registrar a fee in the amount that the Executive
may determine.
(3)
When a registrar incurs travel or subsistence expenses in connection with registering
a civil partnership at a place other than his or her office, the parties shall pay
to the registrar an amount in respect of the expenses, calculated by reference to
a scale that the Executive may draw up.
(4)
An amount payable under subsection (2) or (3) may be recovered by the registrar from
the parties as a simple contract debt in any court of competent jurisdiction.
Objections.
59F.—
(1)
A person may, at any time before a civil partnership registration, lodge with any
registrar an objection in writing that contains the grounds on which the objection
is based.
(2)
If the registrar who receives an objection under subsection (1) is not assigned to
the same registration area as the registrar to whom the notification was given under
section 59B (or, where there has been an exemption ordered under subsection (2) of
that section, the registrar who is to register the civil partnership)—
(a)
the receiving registrar shall refer the objection to the Superintendent Registrar
of the registration area to which the other registrar is assigned,
(b)
the Superintendent Registrar shall direct a registrar assigned to that area to perform
the function conferred by this section on the receiving registrar,
(c)
the registrar who receives the direction shall comply with it, and
(d)
references in this section to the registrar who receives an objection shall be construed
as references to the registrar who receives the direction and this section shall apply
and have effect accordingly.
(3)
If the registrar who receives an objection under subsection (1) is satisfied that
the objection relates to a minor error or misdescription in the relevant notification
under section 59B which would not constitute an impediment to the civil partnership,
the registrar shall—
(a)
notify the parties to the intended civil partnership registration of the objection,
(b)
make the appropriate enquiries,
(c)
if the civil partnership registration form has been given to one of the parties, request
its return and correct it and the notification and make any necessary corrections
to any other records relating to the civil partnership, and
(d)
give the corrected civil partnership registration form to one of the parties to the
civil partnership.
(4)
If the registrar who receives an objection under subsection (1) believes that the
possibility of the existence of an impediment to the intended civil partnership registration
needs to be investigated, he or she shall refer the objection to an tArd-Chláraitheoir for consideration and, pending the decision of an tArd-Chláraitheoir, he or she shall—
(a)
notify the parties to the intended civil partnership registration that—
(i)
an objection has been lodged and the grounds on which it is based,
(ii)
the objection is being investigated, and
(iii)
the civil partnership registration will not proceed until the investigation is completed,
(b)
if the civil partnership registration form has not been issued, suspend its issue,
(c)
if the civil partnership registration form has been issued, request the party to the
intended civil partnership registration to whom it was given to return it to the registrar,
and
(d)
notify the proposed registrar of the civil partnership, if a different registrar is
intended to register the civil partnership, that an objection is being investigated,
and direct him or her not to register the civil partnership until the investigation
is completed.
(5)
A registrar shall comply with a direction under paragraph (4)(d).
(6)
Where an objection is referred to an tArd-Chláraitheoir pursuant to subsection (4), he or she shall make a decision on the objection
as soon as practicable.
(7)
In a case referred to in subsection (4), if an tArd-Chláraitheoir decides that no impediment to the intended civil partnership exists, he
or she shall advise the registrar to that effect and the registrar shall—
(a)
notify the parties to the civil partnership that no impediment to the civil partnership
exists,
(b)
issue or re-issue the civil partnership registration form to one of those parties,
and
(c)
notify the person who lodged the objection that no impediment to the civil partnership
exists.
(8)
In a case referred to in subsection (4), if an tArd-Chláraitheoir decides that there is an impediment to the intended civil partnership, he
or she shall advise the registrar to that effect and of the reasons for the decision
and the registrar shall—
(a)
notify the parties to the civil partnership—
(i)
that the registration of the civil partnership will not proceed, and
(ii)
of the decision of an tArd-Chláraitheoir and of the reasons for it,
and
(b)
take all reasonable steps to ensure that the registration does not proceed.
(9)
If, notwithstanding the steps taken by the registrar pursuant to paragraph (8)(b), the civil registration proceeds, the entry in the register is invalid and any person
who becomes aware of that entry into the register shall notify an tArd-Chláraitheoir of it.
(10)
When an tArd-Chláraitheoir becomes aware of an entry referred to in subsection (9)—
(a)
an tArd-Chláraitheoir shall direct a registrar to cancel the entry and notify the parties and
the registrar who made the entry of the direction, and
(b)
the registrar shall comply with the direction and cancel the entry and ensure that
the cancelled entry is retained in the register.
(11)
A party to a proposed civil partnership may appeal to the Circuit Court against the
decision of an tArd-Chláraitheoir under subsection (8) in relation to the civil partnership.
(12)
The jurisdiction conferred on the Circuit Court by subsection (11) may be exercised
by a judge of the circuit in which either of the parties to the intended civil partnership
ordinarily resides or carries on any profession, business or occupation or the place
at which civil partnership concerned had been intended to be registered is situate.
(13)
A person who has lodged an objection under subsection (1) may withdraw the objection,
but an tArd-Chláraitheoir may, if he or she considers it appropriate to do so, investigate or complete
his or her investigation of the objection and issue any directions to the registrar
concerned in relation to the matter that he or she considers necessary.
(14)
An objection on the ground that the civil partnership would be void by virtue of the
incapacity of one or both of the parties to give informed consent shall be accompanied
by a certificate supporting the objection made by a registered medical practitioner.
Where interpretation required.
59G.—
If a party or a witness to a civil partnership registration does not have sufficient
knowledge of the language of the registration to understand the registration documents
or the declarations, the parties shall have an interpreter present who shall—
(a)
before the parties make the declarations, sign, in the presence of the registrar,
a statement to the effect that the interpreter understands and is able to converse
in the language in respect of which he or she is to act as interpreter and give the
statement to the registrar, and
(b)
immediately after those declarations are made, give the registrar a signed certificate
written in the language of the registration, to the effect that the interpreter has
faithfully acted as interpreter.
Effect of registration.
59H.—
The parties to a registered civil partnership shall be taken to be civil partners
of each other as soon as the registrar has countersigned the civil partnership form
as required by section 59D(6)(a), regardless of whether the registrar has performed the actions required of him or
her under section 59D(6)(c), and all duties and benefits that accrue to civil partners under the Act of 2010 or any other law accrue to them.
Effect of this Part.
59I.—
This Part shall have effect notwithstanding any statutory provision that conflicts
with it.”.
17.
Insertion of new Part 7B of Act of 2004.
17.—
The Act of 2004 is amended by inserting the following Part before section 60:
“PART 7B
Registration of Decrees of Dissolution of Civil Partnership and Decrees of Nullity
of Civil Partnership
Registration of decrees of dissolution and decrees of nullity of civil partnership.
59J.—
(1)
When a court grants a decree of dissolution, an officer of the Courts Service authorised
in that behalf by the Courts Service shall, as soon as may be, enter or cause to be
entered in the register of decrees of dissolution of civil partnership the particulars
in relation to the matter set out in Part 6A of the First Schedule.
(2)
When a court grants a decree of nullity of civil partnership, an officer of the Courts
Service authorised in that behalf by the Courts Service shall, as soon as may be,
enter or cause to be entered in the register of decrees of nullity of civil partnership
the particulars in relation to the matter set out in Part 7A of the First Schedule.
(3)
An officer of the Courts Service authorised in that behalf by the Courts Service may
amend or cancel or cause to be amended or cancelled an entry in the register referred
to in subsection (1) or (2).
(4)
The Courts Service shall notify an tArd-Chláraitheoir of an amendment or cancellation under subsection (3).
(5)
This section has effect notwithstanding any statutory provision that conflicts with
it.”.
18.
Amendment of section 60 of Act of 2004.
18.—
Section 60(1) of the Act of 2004 is amended—
(a)
in paragraph (a), by substituting “death, marriage or civil partnership” for “death or marriage”, and
(b)
by inserting “, the parties to the civil partnership” before “or the person”.
19.
Amendment of section 64 of Act of 2004.
19.—
Section 64 of the Act of 2004 is amended by inserting the following subsections after
subsection (7):
“(8)
If an tArd-Chláraitheoir is satisfied that an entry in the register of civil partnerships relates
to a civil partnership of a class referred to in subsection (9)—
(a)
an tArd-Chláraitheoir shall direct a registrar to cancel the entry and notify the parties to the
civil partnership and the registrar who registered it of the direction, and
(b)
the registrar shall comply with the direction and ensure that the cancelled entry
is retained in the register.
(9)
The classes referred to in subsection (8) are:
(a)
a civil partnership, as respects which one or more of the requirements specified in
subsections (1) and (5) of section 59B were not complied with (other than where there
has been an exemption ordered under subsection (2) of that section); and
(b)
a civil partnership to which there was an impediment within the meaning of section
2(2A).”.
20.
Amendment of section 65 of Act of 2004.
20.—
Section 65(1)(a) of the Act of 2004 is amended by substituting “death, marriage or civil partnership”, for “death or marriage”.
21.
Amendment of section 66 of Act of 2004.
21.—
Section 66(1) of the Act of 2004 is amended by substituting “marriages, civil partnerships, decrees of divorce, decrees of nullity of marriage,
decrees of dissolution or decrees of nullity of civil partnership” for “marriages, decrees of divorce, or decrees of nullity”.
22.
Amendment of section 69 of Act of 2004.
22.—
Section 69 of the Act of 2004 is amended—
(a)
in subsection (4), by inserting “, civil partnership” after “marriage”,
(b)
by inserting the following subsection after subsection (9):
“(9A)
A registrar who, without reasonable cause, fails or refuses to give a civil partnership
registration form to one of the parties to an intended civil partnership in respect
of which he or she has received a notification under section 59B(1)(a), or a copy of an exemption order under section 59B(2), commits an offence.”,
(c)
in subsection (10)—
(i)
by inserting the following paragraph after paragraph (f):
“(fa)
registers or is a party to a civil partnership in respect of which, to his or her
knowledge, subsection (1) or (5) of section 59B is not complied with, (other than
where there has been an exemption ordered under subsection (2) of that section),”,
(ii)
by inserting in paragraph (h) “or 59F” after “58”,
(iii)
by inserting in paragraph (i) “, or 59B(1)(b)” after “46(1)(b)”,
(iv)
by substituting in paragraph (i), “false or misleading,” for “false or misleading, or”,
(v)
by substituting in paragraph (j) “form, or” for “form,”, and
(vi)
by inserting the following paragraph after paragraph (j):
“(k)
not being a registrar, deletes or alters information in relation to the parties to
a civil partnership on a civil partnership registration form,”.
23.
Amendment of section 70 of Act of 2004.
23.—
Section 70(2) of the Act of 2004 is amended by substituting “(9), (9A),” for “(9),”.
24.
Amendment of section 73 of Act of 2004.
24.—
Section 73 of the Act of 2004 is amended—
(a)
in subsection (1)—
(i)
by inserting the following paragraph after paragraph (d):
“(dd)
civil partnerships,”;
(ii)
by inserting “of marriage” after “nullity” in paragraph (f);
(iii)
by inserting the following paragraphs after paragraph (f):
“(ff)
decrees of dissolution,
(fff)
decrees of nullity of civil partnership,”,
(b)
in paragraph (3)(a), by inserting “of marriage, civil partnership, decree of dissolution, decree of nullity of civil
partnership,” after “nullity” wherever it appears, and
(c)
in subsection (7), by inserting “of marriage, civil partnership, decree of dissolution, decree of nullity of civil
partnership,” after “nullity”.
25.
Amendment of First Schedule to Act of 2004.
25.—
The First Schedule to the Act of 2004 is amended—
(a)
by substituting “civil status” for “marital status” wherever it appears,
(b)
in Part 5, by substituting “If deceased was married or a civil partner, the profession or occupation of spouse
or civil partner.” for “If deceased was married, the profession or occupation of spouse.”,
(c)
by inserting the following Part after Part 6:
“PART 6A
Section 59J.
Particulars to be Entered in Register of Dissolutions
Court by which the decree was granted.
Year and record number of the proceedings.
Forenames, surnames and birth surnames of the parties to the proceedings.
Personal public service numbers of the parties to the proceedings.
Date and place of civil partnership registration.
Date of the decree.
Date of registration of the decree.
Forenames and surname of officer of Courts Service.”,
(d)
by inserting “of Marriage” at the end of the title to Part 7, and
(e)
by inserting the following Part after Part 7:
“PART 7A
Particulars to be Entered in Register of Decrees of Nullity of Civil Partnership
Section 59J.
Court by which the decree was granted.
Year and record number of the proceedings.
Forenames, surnames and birth surnames of the parties to the proceedings.
Personal public service numbers of the parties to the proceedings.
Date and place of civil partnership registration.
Declaration of court.
Date of the decree.
Date of registration.
Forenames and surname of officer of Courts Service.”.
26.
New Third Schedule to Act of 2004.
26.—
The Act of 2004 is amended by inserting the following Schedule after the Second Schedule:
“THIRD SCHEDULE
Prohibited Degrees of Relationship
Section 2.
A person may not enter a civil partnership with someone within the prohibited degrees
of relationship, as set out in the table below. Relationships within that table should
be construed as including relationships in the half-blood (e.g. sibling includes a
sibling where there is only one parent in common, etc.), and all the relationships
include relationships and former relationships by adoption.
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A man may not enter a civil partnership with his:
|
A woman may not enter a civil partnership with her:
|
|
Grandfather
|
Grandmother
|
|
Grandparent’s brother
|
Grandparent’s sister
|
|
Father
|
Mother
|
|
Father’s brother
|
Mother’s sister
|
|
Mother’s brother
|
Father’s sister
|
|
Brother
|
Sister
|
|
Nephew
|
Niece
|
|
Son
|
Daughter
|
|
Grandson
|
Granddaughter
|
|
Grandnephew
|
Grandniece
|
”.
PART 4
Shared Home Protection
27.
27.—
In this Part—
“conduct” includes an act and a default or other omission;
“conveyance” includes a mortgage, lease, assent, transfer, disclaimer, release, another disposition
of property otherwise than by a will or a donatio mortis causa, and an enforceable agreement, whether conditional or unconditional, to make one
of those conveyances;
“dwelling” means a building or part of a building occupied as a separate dwelling and includes—
(a)
a garden or other land usually occupied with the building that is subsidiary and ancillary
to it, is required for amenity or convenience and is not being used or developed primarily
for commercial purposes,
(b)
a structure that is not permanently attached to the ground, and
(c)
a vehicle or vessel, whether mobile or not, occupied as a separate dwelling;
“interest” means any estate, right, title or other interest, legal or equitable;
“mortgage” includes an equitable mortgage, a charge on registered land and a chattel mortgage;
“rent” includes a conventional rent, a rentcharge within the meaning of section 2(1) of
the Statute of Limitations 1957 and a terminable annuity payable in respect of a loan
for the purchase of a shared home;
“shared home” means—
(a)
subject to paragraph (b), a dwelling in which the civil partners ordinarily reside; and
(b)
in relation to a civil partner whose protection is in issue, the dwelling in which
that civil partner ordinarily resides or, if he or she has left the other civil partner,
in which he or she ordinarily resided before leaving.
28.
Alienation of interest in shared home.
28.—
(1)
Where a civil partner, without the prior consent in writing of the other civil partner,
purports to convey an interest in the shared home to a person except the other civil
partner, then, subject to subsections (2), (3), and (8) to (14) and section 29, the purported conveyance is void.
(2)
Subsection
(1) does not apply to a conveyance if it is made by a civil partner in pursuance of an
enforceable agreement made before the civil partners’ registration of their civil partnership.
(3)
A conveyance is not void by reason only of subsection (1) if—
(a)
it is made to a purchaser for full value,
(b)
it is made by a person other than the civil partner to a purchaser for value, or
(c)
its validity depends on the validity of a conveyance in respect of which a condition
mentioned in subsection (2) or paragraph (a) or (b) is satisfied.
(4)
If any question arises in any proceedings as to whether a conveyance is valid by reason
of subsection (2) or (3), the burden of proving the validity is on the person alleging it.
(5)
In subsection (3),“full value” means value that amounts or approximates to the value of that for which it is given.
(6)
In this section, “purchaser” means a grantee, lessee, assignee, mortgagee, chargeant or other person who in good
faith acquires an estate or interest in property.
(7)
For the purposes of this section, section 3 of the Conveyancing Act 1882 shall be
read as if the words “as such” wherever they appear in paragraph (ii) of subsection (1) of that section were omitted.
(8)
Subject to subsection (9), proceedings may only be instituted to have a conveyance declared void by reason only
of subsection (1) if they are instituted before the expiration of 6 years from the date of the conveyance.
(9)
Proceedings referred to in subsection (8) may be instituted by a civil partner who was in actual occupation of the shared home
during the whole period that begins with the date of the conveyance and ends immediately
before the institution of the proceedings, even if 6 years have expired from the date
of the conveyance.
(10)
Subsection (8) is without prejudice to the rights of civil partners to seek redress for contraventions
of subsection (1) otherwise than by proceedings referred to in that subsection.
(11)
A conveyance is deemed not to be and never to have been void by reason of subsection
(1) unless—
(a)
it has been declared void by a court by reason of subsection (1) in proceedings instituted in accordance with subsection (8) on or after the date on which this section commences, or
(b)
subject to the rights of any other person concerned, it is void by reason of subsection (1) and the parties to the conveyance or their successors in title so state in writing
before the expiration of 6 years from the date of the conveyance.
(12)
A copy of a statement made for the purpose of paragraph (b) of subsection (11) and certified by the parties concerned or their successors in title to be a true
copy shall, before the expiration of the 6 years referred to in that paragraph, be
lodged by the parties or their successors with the Property Registration Authority
for registration in the Land Registry or Registry of Deeds as appropriate.
(13)
A person who institutes proceedings to have a conveyance declared void by reason of
subsection
(1) shall, as soon as may be, cause relevant particulars of the proceedings to be entered
as a lis pendens under and in accordance with the Judgements (Ireland) Act 1844 in any form that the
rules of court may provide.
(14)
A general consent given in writing by a civil partner, after the commencement of this
section, to any future conveyance of any interest in a shared home or a former shared
home is deemed, for the purposes of subsection
(1), to be a prior consent in writing if the deed for the conveyance is executed after
the date of the consent.
Annotations:
Editorial Notes:
E10
Charging orders made under Housing (Miscellaneous Provisions) Act 2014 (21/2014), s. 26, and charges arising under such orders confirmed not conveyances
for purposes of section (1.01.2016) by Housing (Miscellaneous Provisions) Act 2014 (21/2014), s. 26(12), S.I. No. 482 of 2015.
29.
Consent of civil partner.
29.—
(1)
Where the civil partner whose consent is required under section 28 omits or refuses to consent, the court may, subject to this section, dispense with
the consent.
(2)
The court shall not dispense with the consent unless the court considers that it is
unreasonable for the civil partner to withhold consent, taking into account all the
circumstances, including—
[(a) the respective needs and resources of the civil partners and of any dependent
child of the civil partners, and]
(b)
in a case where the civil partner whose consent is required is offered alternative
accommodation, the suitability of that accommodation having regard to the respective
degrees of security of tenure in the shared home and the alternative accommodation.
(3)
The court shall dispense with the consent of a civil partner whose consent is required
if—
(a)
the civil partner cannot be found after reasonable inquiries, and
(b)
the court is of the opinion that it would be reasonable to do so.
(4)
The court may give the consent on behalf of a civil partner whose consent is required
if—
(a)
a consultant psychiatrist, within the meaning of the Mental Health Act 2001, certifies that the civil partner is incapable of giving consent, and
(b)
the court is of the opinion that it would be reasonable to do so.
Annotations:
Amendments:
F4
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 136, S.I. No. 12 of 2016.
30.
Conduct leading to loss of shared home.
30.—
(1)
Where it appears to the court, on the application of a civil partner, that the other
civil partner is engaging in conduct that might lead to the loss of any interest in
the shared home or might render it unsuitable for habitation as a shared home, with
the intention of [depriving the applicant or a dependent child of the civil partners of his or her residence] in the shared home, the court may make any order that it considers proper, directed
to the other civil partner or to any other person, for the protection of the shared
home [in the interest of the applicant or such child].
(2)
Where it appears to the court, on the application of a civil partner, that the other
civil partner has [deprived the applicant or a dependent child of the civil partners of his or her residence] in the shared home by conduct that resulted in the loss of any interest in it or
rendered it unsuitable for habitation as a shared home, the court may order the other
civil partner or any other person to pay to the applicant the amount that the court
considers proper [to compensate the applicant or such child] for their loss or make any other order directed to the other civil partner or to
any other person that may appear to the court to be just and equitable.
Annotations:
Amendments:
F5
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 137, S.I. No. 12 of 2016.
31.
Payment of outgoings on shared home.
31.—
(1)
Any payment or tender made or any other thing done by one civil partner in or towards
satisfaction of any liability of the other civil partner in respect of rent, mortgage
payments or other outgoings affecting the shared home shall be as good as if made
or done by the other civil partner, and shall be treated by the person to whom the
payment is made or the thing is done as though it were made or done by the other civil
partner.
(2)
Nothing in subsection
(1) affects any claim by the first-mentioned civil partner against the other to an interest
in the shared home by virtue of the payment made or thing done.
32.
Adjournment of proceedings by mortgagee or lessor for possession or sale of shared
home.
32.—
(1)
The court may adjourn proceedings in an action brought by a mortgagee or lessor in
relation to non-payment against a civil partner and claiming possession or sale of
the shared home if it appears to the court that—
(a)
the other civil partner is capable of paying to the mortgagee or lessor the arrears
(other than the arrears of principal or interest or rent that do not constitute part
of the periodical payments due under the mortgage or lease) of money due under the
mortgage or lease within a reasonable time, and future periodical payments falling
due under the mortgage or lease, and that the other civil partner desires to pay the
arrears and periodical payments, and
(b)
it would be just and equitable to do so, in all the circumstances and having regard
to the interests of the mortgagee or lessor, the respective interests of the civil
partners and the terms of the mortgage or lease.
(2)
In considering whether to adjourn the proceedings under this section, and if so, for
what period and on what terms, the court shall have regard in particular to whether
the other civil partner has been informed, by or on behalf of the mortgagee or lessor
or otherwise, of the non-payment of any of the sums in question.
33.
Modification of terms of mortgage or lease as to payment of capital sum.
33.—
The court may by order declare, on application by a civil partner, that a term of
a mortgage or lease by virtue of which a sum is due, other than periodical payments
due under the mortgage or lease, is of no effect for the purpose of proceedings under
section 32, if, after the proceedings have been adjourned under that section it appears to the
court that—
(a)
all arrears (other than the arrears of principal or interest or rent that do not constitute
part of the periodical payments due under the mortgage or lease or money due under
the mortgage or lease) and periodical payments due as of the date of the order have
been paid off, and
(b)
the periodical payments subsequently falling due will continue to be paid.
34.
Restriction on disposal of household chattels.
34.—
(1)
The court may, on the application of a civil partner, by order prohibit, on the terms
it may see fit, the other civil partner from disposing of or removing household chattels,
if the court is of the opinion that there are reasonable grounds to believe that the
other civil partner intends to do so and that it would [make it difficult for the applicant or a dependent child of the civil partners to
reside] in the shared home without undue hardship if the household chattels were disposed
of or removed.
(2)
Where proceedings for the dissolution of a civil partnership have been instituted
by a civil partner, neither civil partner shall sell, lease, pledge, charge or otherwise
dispose of or remove any of the household chattels in the shared home until the proceedings
have been finally determined, unless—
(a)
the other civil partner has consented to the disposition or removal, or
(b)
the court before which the proceedings have been instituted, on application by the
civil partner who desires to make the disposition or removal, permits the civil partner
to do so, with or without conditions.
(3)
Without prejudice to any other civil or criminal liability, a civil partner who contravenes
subsection
(2) commits an offence and is liable on summary conviction to [a class D fine] or to imprisonment for a term not exceeding 6 months or to both.
(4)
The court may order, on the application of a civil partner, that the other civil partner
provide household chattels or a sum of money to the applicant, so as to [place the applicant or a dependent child of the civil partners] as nearly as possible in the position that prevailed before—
(a)
the other civil partner contravened an order under subsection (1) or (2), or
(b)
the other civil partner sold, leased, pledged, charged or otherwise disposed of or
removed the number or proportion of the household chattels in the shared home that
made or is likely to [make it difficult for the applicant or a dependent child of the civil partners to
reside] in the shared home without undue hardship.
(5)
In proceedings under this section, the court may make an order that appears to it
to be proper in the circumstances, directed to a third person who has been informed
in writing by a civil partner before the proceedings were taken, with respect to a
proposed disposition to the third person by the other civil partner.
(6)
For the purposes of this section, “household chattels” means personal property ordinarily used in a household and includes garden effects
and domestic animals, but does not include money or any chattels used by either civil
partner for business or professional purposes.
Annotations:
Amendments:
F6
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 138, S.I. No. 12 of 2016.
F7
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(a), commenced on enactment.
35.
35.—
In any proceedings under or referred to in this Part, each of the civil partners as
well as any third person who has or may have an interest in the proceedings may be
joined—
(a)
by service of a third-party notice by an existing party to the proceedings, or
(b)
by direction of the court.
36.
Registration of notice of existence of civil partnership.
36.—
(1)
A civil partner may lodge with the Property Registration Authority a notice stating
that he or she is the civil partner of a person having an interest in property or
land.
(2)
A notice under subsection
(1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.
(3)
No stamp duty or fee shall be payable in respect of any such notice.
(4)
The fact that notice of a civil partnership has not been registered under subsection
(1) shall not give rise to any inference as to the non-existence of a civil partnership.
37.
Restriction of section 59(2) of Registration of Title Act 1964.
37.—Section 59(2) of the Registration of Title Act 1964 (which refers to noting upon the register provisions of any enactment restricting
dealings in land) does not apply to this Part.
38.
Creation of joint tenancy in shared home exempt from fees.
38.—
No land registration fee, Registry of Deeds fee or court fee shall be payable on any
transaction creating a joint tenancy between civil partners in respect of a shared
home where the home was immediately prior to such transaction owned by either civil
partner or by both civil partners otherwise than as joint tenants.
Annotations:
Editorial Notes:
E11
Instruments creating a joint tenancy between civil partners under section confirmed
excluded from e-stamping system (7.07.2012) by Stamp Duty (E-stamping of Instruments and Self-Assessment) Regulations 2012 (S.I. No. 234 of 2012), reg. 3 and sch. 1 par. 2(b), in effect as per reg. 1(2).
39.
39.—
(1)
A person commits an offence if he or she—
(a)
has an interest in premises,
(b)
is required in writing by or on behalf of a person proposing to acquire the interest
to give information necessary to establish if the conveyance of that interest requires
a consent under section 28
(1), and
(c)
knowingly gives information that is false or misleading in any material particular.
(2)
A person who commits an offence under subsection
(1) is liable—
(a)
on summary conviction, to [a class C fine] or to imprisonment for a term not exceeding 12 months, or to both, or
(b)
on conviction on indictment, to imprisonment for a term not exceeding 5 years.
Annotations:
Amendments:
F8
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(b), commenced on enactment.
40.
Protection of certain tenancies.
40.—
The Residential Tenancies Act 2004 is amended—
(a)
in section 3(2)(h) and section 35(4) by inserting “, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse” wherever it appears, and
(b)
in section 39(3)(a)(i), by inserting “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse”.
41.
Protection of certain tenancies.
41.—
(1)
In this section, “Act of 1982” means the Housing (Private Rented Dwellings) Act 1982.
(2)
Section 9 of the Act of 1982 is amended in subsection (2) by inserting “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse” wherever it appears.
(3)
Section 16(1) of the Act of 1982 is amended by inserting “or of the tenant or the tenant’s civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “dwelling” where it lastly occurs.
(4)
Section 22 of the Act of 1982 is amended by inserting “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse” wherever it appears.
42.
Amendment of Civil Legal Aid Act 1995.
42.—Section 28(9)(c)(i) of the Civil Legal Aid Act 1995 is amended by substituting “or proceedings arising out of a dispute between spouses as to the title to or possession
of any property, proceedings under Part 4 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, or proceedings arising out of a dispute between civil partners within the meaning
of that Act as to the title to or possession of any property;” for “or proceedings arising out of a dispute between spouses as to the title to or possession
of any property;”.
PART 5
Maintenance of Civil Partner
43.
43.—
(1)
In this Part—
“antecedent order” means—
(a)
a maintenance order,
(b)
a variation order,
(c)
an interim order,
(d)
an order under section 48 insofar as it is deemed under that section to be a maintenance order, or
(e)
an order for maintenance pending suit under section 116 or a periodical payments order or secured periodical payments order under Part 12;
“attachment of earnings order” means an order under section 53;
“desertion” includes conduct on the part of one civil partner that results in the other civil
partner, with just cause, leaving and living separately and apart from the first civil
partner;
“earnings” means any sums payable to a person—
(a)
by way of wages or salary (including any fees, bonus, commission, overtime pay or
other emoluments payable in addition to wages or salary or payable under a contract
of service), and
(b)
by way of pension or other like benefit in respect of employment (including an annuity
in respect of past services, whether or not rendered to the person paying the annuity,
and including periodical payments by way of compensation for the loss, abolition or
relinquishment, or diminution in the emoluments, of any office or employment);
“interim order” means an order under section 47;
“maintenance creditor”, in relation to an order under this Part, or to proceedings arising out of the order,
[means the person who] applied for the order;
“maintenance debtor” means a person who is required by an order referred to in any of paragraphs (a) to (e) of the definition “antecedent order” to make payments;
“maintenance order” means an order under section 45;
“normal deduction rate” and “protected earnings rate” have the meanings respectively assigned to them in section 53;
“variation order” means an order under section 46 varying a maintenance order.
(2)
Subject to section 59, the relationship of employer and employee shall be regarded as subsisting between
two persons if one of them as a principal and not as a servant or agent pays earnings
to the other.
(3)
References in this Part to a District Court clerk include references to his or her
successor in the office of District Court clerk and to any person acting on his or
her behalf.
Annotations:
Amendments:
F9
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 139, S.I. No. 12 of 2016.
44.
Commencement of periodical payments.
44.—
A periodical payment under an order under this Part shall commence on the date that
is specified in the order, which may be before or after the date on which the order
is made but not earlier than the date of the application for the order.
45.
45.—[(1) (a) Subject to subsection (3), where it appears to the court, on application to it by a civil partner, that the
other civil partner has failed to provide maintenance for the applicant civil partner
and any dependent child of the civil partners that is proper in the circumstances,
the court may make an order that the other civil partner make to the applicant periodical
payments for the support of the applicant and the dependent child of the civil partners,
for the period during the lifetime of the applicant, of the amount and at the times
that the court may consider proper.
(b) Subject to subsection (3), where a civil partner—
(i) is dead,
(ii) has deserted, or has been deserted by, the other civil partner, or
(iii) is living separately and apart from the other civil partner,
and there is a dependent child of the civil partners (not being a child who is being
fully maintained by either civil partner), then, if it appears to the court, on application
to it by any person, that the surviving civil partner or, as the case may be, either
civil partner has failed to provide such maintenance for the dependent child of the
civil partners as is proper in the circumstances, the court may make an order that
that civil partner make to that person periodical payments, for the support of the
dependent child, for such period during the lifetime of that person, of such amount
and at such times, as the court may consider proper.
(c) A maintenance order or a variation order shall specify each part of a payment
under the order that is for the support of a dependent child of the civil partners
and may specify the period during the lifetime of the person applying for the order
for which so much of a payment under the order as is for the support of a dependent
child of the civil partners shall be made.]
(2)
The court shall not make a maintenance order for the support of an applicant where
he or she has deserted and continues to desert the other civil partner unless, having
regard to all the circumstances, including the conduct of the other civil partner,
the court is of the opinion that it would be unjust in all the circumstances not to
make a maintenance order.
[(3) The court, in deciding whether to make a maintenance order and, if it decides
to do so, in determining the amount of any payment, shall have regard to all the circumstances
of the case, including—
(a) the income, earning capacity, property and other financial resources of—
(i) the civil partners and any dependent child of the civil partners, and
(ii) any other dependent child of which either civil partner is a parent,
including income or benefits to which either civil partner or any such child is entitled
by or under statute with the exception of a benefit or allowance or any increase in
such benefit or allowance in respect of any dependent child granted to either parent
of such child,
(b) the financial and other responsibilities of—
(i) the civil partners towards each other and towards any dependent child of the civil
partners and the needs of any such child, including the need for care and attention,
(ii) each civil partner as a parent towards any other dependent child, and the needs
of any such child, including the need for care and attention, and
(iii) each civil partner towards any former spouse or civil partner,
and
(c) in relation to a maintenance order or part of a maintenance order for the benefit
of the civil partner, the conduct of each civil partner, if that conduct is such that,
in the opinion of the court, it would in all the circumstances be unjust to disregard
it.]
Annotations:
Amendments:
F10
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 140, S.I. No. 12 of 2016.
46.
Discharge, variation and termination of maintenance order.
46.—
(1)
The court may discharge a maintenance order at any time after one year from the time
it is made, on the application of [the person for whose support it provides], where it appears to the court that, having regard to the maintenance debtor’s record of payments pursuant to the order and to the other circumstances of the case,
[the person for whose support it provides] will not be prejudiced by the discharge.
(2)
The court may discharge or vary a maintenance order at any time, on the application
of either party, if it thinks it proper to do so having regard to any circumstances
not existing when the order was made (including the conduct of each of the civil partners,
if that conduct is conduct that the court believes is conduct that it would in all
the circumstances be unjust to disregard), or, if it has been varied, when it was
last varied, or to any evidence not available to that party when the maintenance order
was made or, if it has been varied, when it was last varied.
(3)
Notwithstanding subsections (1) and (2), the court shall, on application to it, discharge the part of a maintenance order
that provides for the support of a maintenance creditor where it appears to it that
the maintenance creditor has deserted and continues to desert the maintenance debtor
unless, having regard to all the circumstances (including the conduct of the maintenance
debtor) the court is of the opinion that it would be unjust to do so.
[(4) That part of a maintenance order which provides for the support of a dependent
child shall stand discharged when the child ceases to be a dependent child by reason
of his or her attainment of the age of 18 years or 23 years, as the case may be, and
shall be discharged by the court, on application to it under subsection (1) or (2), if it is satisfied that the child has for any reason ceased to be a dependent child
for the purposes of the order.
(5) Desertion by, or conduct of, a civil partner shall not be a ground for discharging
or varying any part of a maintenance order that provides for the support of a dependent
child of the civil partners.]
Annotations:
Amendments:
F11
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 141(a), S.I. No. 12 of 2016.
F12
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 141(b), S.I. No. 12 of 2016.
47.
47.—
On an application to the court for a maintenance order, the court, before deciding
whether to make or refuse to make the order, may make an order for the payment to
the applicant by the maintenance debtor, for a definite period specified in the order
or until the application is adjudicated upon by the court, of a periodical sum that,
in the opinion of the court, is proper, if it appears to the court proper to do so
having regard to [the needs of the persons for whose support the maintenance order is sought and the
other circumstances] of the case.
Annotations:
Amendments:
F13
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 142, S.I. No. 12 of 2016.
48.
Orders in respect of certain agreements between civil partners.
48.—
(1)
On application by one or both of the civil partners, the court may make an order under
this section if it is satisfied that to do so would adequately protect [the interests of the civil partners and any dependent child of the civil partners].
(2)
An order under this section may make a rule of court a provision in an agreement in
writing entered into by the civil partners—
(a)
by which one civil partner undertakes to make periodical payments towards the maintenance
of [the other civil partner or of any dependent child of the civil partners or of both
that other civil partner and any dependent child of the civil partners], or
(b)
governing the rights and liabilities of the civil partners towards one another in
respect of the making or securing of payments (other than payments referred to in
paragraph
(a)) or the disposition or use of any property.
(3)
An order under subsection (2)(a) is deemed to be a maintenance order for the purposes of [sections 50 and 51, Part 6 and section 140].
Annotations:
Amendments:
F14
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 143, S.I. No. 12 of 2016.
49.
Preservation of pension entitlements.
49.—
(1)
On application to it by either of the civil partners in an application under section 48, the court may make an order directing the trustees of a pension scheme of which
either or both of the civil partners are members not to regard the separation of the
civil partners as a ground for disqualifying either of them for the receipt of a benefit
under the scheme that would normally require that the civil partners be residing together
at the time when the benefit becomes payable.
(2)
The applicant shall give notice of an application under subsection (1) to the trustees of the pension scheme and, in deciding whether to make an order under
subsection (1), the court shall have regard to any order made, or proposed to be made, by it in
relation to the application by the civil partner or civil partners under section 48 and any representations made by those trustees in relation to the matter.
(3)
The court may determine the manner in which the costs incurred by the trustees under
subsection (2) or in complying with an order under subsection (1) are to be borne, including by either of the civil partners or by both of them in
the proportions that the court may determine.
(4)
In this section,
“pension scheme”
has the meaning assigned to it by section 109.
50.
Transmission of payments through District Court clerk.
50.—
(1)
Where the court makes a maintenance order, a variation order or an interim order,
the court shall—
(a)
direct that payments under the order be made to the District Court clerk, unless the
maintenance creditor requests the court not to do so and the court considers that
it would be proper not to do so, and
(b)
in a case in which the court has not given a direction under paragraph
(a), direct, at any time after making the order and on the application of the maintenance
creditor, that the payments be made to the District Court clerk.
(2)
Where payments to the District Court clerk under this section are in arrear, the District
Court clerk shall, if the maintenance creditor so requests in writing, take the steps
that he or she considers reasonable in the circumstances to recover the sums in arrear
whether by proceedings for an attachment of earnings order or otherwise.
(3)
The court, on the application of the maintenance debtor and having afforded the maintenance
creditor an opportunity to oppose the application, may discharge a direction under
subsection (1), if satisfied that, having regard to the record of the payments made to the District
Court clerk and all the other circumstances, it would be proper to do so.
(4)
The District Court clerk shall transmit any payments made by virtue of this section
to the maintenance creditor.
(5)
Nothing in this section affects any right of a person to take proceedings in his or
her own name for the recovery of a sum payable, but not paid, to the District Court
clerk by virtue of this section.
(6)
References in this section to the District Court clerk are references to the District
Court clerk in the District Court district that may be determined from time to time
by the court concerned.
51.
Lump sum maintenance orders.
51.—
(1)
The court may, [on making a maintenance order or a variation order], order the maintenance debtor in addition to, or instead of such an order, to make
a lump sum payment or lump sum payments to the maintenance creditor of such amount
or amounts and at such time or times as may be specified in the order.
(2)
The amount or aggregate amount of a lump sum payment or of lump sum payments to a
maintenance creditor under an order under this section shall be—
(a)
if the order is instead of an order for the making of periodical payments to the maintenance
creditor, such amount as the court considers appropriate having regard to the amount
of the periodical payments that would have been made, and the periods during which
and the times at which they would have been made, but for this section, and
(b)
if the first-mentioned order is in addition to an order for the making of periodical
payments to the maintenance creditor, such amount as the court considers appropriate
having regard to the amount of the periodical payments and the periods during which
and the times at which they will be made.
[(2A) Where the court makes an order under subsection (1) that is for the benefit of a child, the court may specify in the order the manner
in which, or purpose for which, the payment or payments referred to in that subsection
are to be applied, including in providing suitable accommodation for the child to
whom the order relates.]
(3)
The amount or aggregate amount of a lump sum payment or of lump sum payments provided
for in an order of the District Court under this section shall not exceed [€15,000].
Annotations:
Amendments:
F15
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 144(a), S.I. No. 12 of 2016.
F16
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 144(b), S.I. No. 12 of 2016.
F17
Substituted (3.02.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 21(a), S.I. No. 566 of 2013.
52.
52.—
The court may, [on making a maintenance order or a variation order] or at any time after making such an order, on application to it by any person having
an interest in the proceedings, order the maintenance debtor concerned to secure it
to the maintenance creditor concerned.
Annotations:
Amendments:
F18
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 145, S.I. No. 12 of 2016.
[Failure to make payments to be contempt of court
52A
52A. (1) Subject to this section it shall be contempt of court for a maintenance debtor
to fail to make a payment due under an antecedent order.
(2) As respects a contempt of court arising pursuant to this section, a judge of the
District Court shall, subject to this section, have such powers, including the power
to impose a sanction, as are exercisable by a judge of the High Court in relation
to contempt of court in proceedings before the High Court.
(3) Where a payment under an antecedent order made by the District Court has not been
made, the maintenance creditor may apply to the District Court clerk concerned for
the issue of a summons directing the maintenance debtor to appear before the District
Court.
(4) A summons referred to in subsection (3) shall—
(a) be issued by the District Court clerk concerned,
(b) contain a statement that failure to make a payment in accordance with the order
concerned constitutes a contempt of court and giving details of the consequences of
the court finding that a contempt of court has taken place including in particular
the possibility of imprisonment,
(c) state that the maintenance debtor may be arrested if he or she fails to appear
before the District Court as directed in the summons, and
(d) be served on the maintenance debtor personally, or in such other manner authorised
by a judge of the District Court.
(5) If the maintenance debtor fails, without reasonable excuse, to appear before the
court in answer to the summons, the judge of the District Court, on the application
of the maintenance creditor, shall, if satisfied that the debtor was served with the
summons, issue a warrant for the arrest of the maintenance debtor.
(6) A maintenance debtor arrested pursuant to a warrant issued under subsection (5) shall be brought as soon as practicable before the District Court.
(7) Where a maintenance debtor is arrested and brought before the District Court under
subsection (6), the judge shall fix a new date for the hearing of the summons and direct that the
creditor be informed by the District Court by notice in writing of the date so fixed,
and shall explain to the debtor in ordinary language—
(a) that he or she is required to attend before the court at the date next fixed for
the hearing of the summons,
(b) that failure to attend may in itself constitute a contempt of court and the consequences
of such contempt, including in particular the possibility of imprisonment, and that
such contempt and the consequences which may follow are in addition to the consequences
arising by reason of failure to make a payment under the antecedent order, and
(c) that he or she is entitled to apply for legal advice and legal aid under the Civil Legal Aid Act 1995.
(8) At the hearing of the summons, before hearing evidence from any party the judge
shall explain to the debtor in ordinary language—
(a) the consequences, and in particular the possibility of imprisonment, which may
follow a failure to make a payment in accordance with an antecedent order, and
(b) unless the maintenance debtor has already been so informed under subsection (7), that he or she is entitled to apply for legal advice and legal aid under the Civil Legal Aid Act 1995.
(9) On the hearing of the summons, having given to the maintenance debtor the explanations
referred to in subsection (8), having given the maintenance debtor an opportunity to apply for legal advice and
legal aid, and having heard such evidence as may be adduced by the maintenance creditor
and the maintenance debtor, if the judge is satisfied that the payment concerned has
not been made, and—
(a) that the failure to make the payment concerned is due to—
(i) the inability of the maintenance debtor to make the payment concerned by reason
of a change in his or her financial circumstances which occurred since the antecedent
order or an order varying that order was last made (whichever is the later), or
(ii) some other reason not attributable to any act or omission of the maintenance
debtor,
the judge may, where he or she believes that to do so would improve the likelihood
of the payment concerned being made within a reasonable period, adjourn the hearing—
(I) to enable the outstanding payment to be made, or
(II) to enable an application to be made for an attachment of earnings order under
section 53,
(b) that the failure to make the payment concerned is due to the inability of the
maintenance debtor to make the payment concerned by reason of a change in his or her
financial circumstances which occurred since the antecedent order or an order varying
that order was last made (whichever is the later) the judge may, where the antecedent
order was made by the District Court, treat the hearing as an application to vary
the antecedent order, and having heard evidence as to the financial circumstances
of both the maintenance debtor and the maintenance creditor, make an order varying
the antecedent order.
(10) Where on the hearing of the summons, having given to the maintenance debtor the
explanations referred to in subsection (8), having given the maintenance debtor an opportunity to apply for legal advice and
legal aid, and having heard such evidence as may be adduced by the maintenance creditor
and the maintenance debtor, the judge is satisfied that the payment concerned has
not been made and that the failure to make the payment concerned is not due to—
(a) the inability of the maintenance debtor to make the payment concerned by reason
of a change in his or her financial circumstances which occurred since the antecedent
order or an order varying that order was last made (whichever is the later), or
(b) some other reason not attributable to any act or omission of the maintenance debtor,
the judge may treat the failure by the maintenance debtor to make the payment concerned
as constituting contempt of court and the judge may deal with the matter accordingly.
(11) Where a maintenance debtor to whom subsection (7) applies does not attend court on the date fixed for the hearing of the summons the
judge may treat such failure to attend court as constituting contempt of court and
the judge may deal with the matter accordingly.
(12) In this section ‘financial circumstances’ means, in relation to a person—
(a) the amount of the person’s annual income,
(b) the aggregate value of all property (real and personal) belonging to the person,
(c) the aggregate of all liabilities of the person including any duty (moral or legal)
to provide financially for members of his or her family or other persons,
(d) the aggregate of all monies owing to the person, the dates upon which they fall
due to be paid and the likelihood of their being paid, and
(e) such other circumstances as the court considers appropriate.
(13) This section does not apply unless the antecedent order concerned was actually
made by the District Court.]
Annotations:
Amendments:
F19
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 146, S.I. No. 12 of 2016.
[Certificate of outstanding payments
52B
52B. Where, pursuant to section 50, a court has made a maintenance order, a variation order or an interim order and
directed that payments under the order be made to the District Court clerk, in any
proceedings under this Act or under the Enforcement of Court Orders Acts 1926 to 2009,
a certificate purporting to be signed by the relevant District Court clerk as to the
amount of monies outstanding on foot of such order shall, until the contrary is shown,
be evidence of the matters stated in the certificate.]
Annotations:
Amendments:
F20
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 146, S.I. No. 12 of 2016.
PART 6
Attachment of Earnings
53.
Attachment of earnings order.
53.—
(1)
For the purposes of this Part—
“attachment of earnings order” means an order directing that an employer deduct from the maintenance debtor’s earnings, at the times specified in the order, periodical deductions of the appropriate
amounts specified in the order, having regard to the normal deduction rate and the
protected earnings rate;
“court” means—
(a)
the High Court, in respect of an application under this Part made by a person on whose
application the High Court has made an antecedent order,
(b)
the relevant Circuit Court, in respect of an application under this Part made by a
person on whose application that court has made an antecedent order, and
(c)
the District Court, in respect of an application under this Part made by—
(i)
a person on whose application the District Court has made an antecedent order, or
(ii)
a District Court clerk to whom payments are required to be made under an antecedent
order;
“employer” includes a trustee of a pension scheme under which the maintenance debtor is receiving
periodical pension benefits;
“normal deduction rate” means the rate at which the court considers it reasonable that the earnings to which
the attachment of earnings order relates should be applied in satisfying the antecedent
order, not exceeding the rate that appears to the court to be necessary for—
(a)
securing payment of the sums falling due from time to time under the antecedent order,
and
(b)
securing payment within a reasonable period of any sums already due and unpaid under
the antecedent order and any costs incurred in proceedings relating to the antecedent
order payable by the maintenance debtor;
“protected earnings rate” means the rate below which, having regard to the needs of the maintenance debtor,
the court considers it proper that the relevant earnings should not be reduced by
a payment made in pursuance of the attachment of earnings order.
(2)
The court may, on application to it on that behalf, make an attachment of earnings
order if it is satisfied that the maintenance debtor is a person to whom earnings
fall to be paid and that the order is desirable to secure payments under an antecedent
order and any amendments, variations and affirmations of it.
(3)
The court that makes an antecedent order, or an order that makes, varies or affirms
on appeal an antecedent order, shall make an attachment of earnings order in the same
proceedings if it is satisfied of the things mentioned in subsection
(2).
(4)
A person to whom an attachment of earnings order is directed shall pay the amounts
ordered to be deducted—
(a)
in the case of a relevant antecedent order that is an enforceable maintenance order,
to the District Court clerk specified in the order for transmission to the maintenance
creditor, and
(b)
in any other case, as specified in the order, to the maintenance creditor or to the
District Court clerk specified in the order for transmission to the maintenance creditor.
(5)
Before deciding whether to make or refuse to make an attachment of earnings order,
the court shall give the maintenance debtor an opportunity to make representations,
and shall have regard to any representations made, relating to whether the maintenance
debtor—
(a)
is a person to whom earnings fall to be paid, and
(b)
would make the payments to which the relevant order relates.
(6)
The court shall include in an attachment of earnings order the particulars required
so that the person to whom the order is directed may identify the maintenance debtor.
(7)
Payments under an attachment of earnings order are in lieu of payments of the like
amount under the antecedent order that have not been made and that, but for the attachment
of earnings order, would fall to be made under the antecedent order.
54.
Compliance with attachment of earnings order.
54.—
(1)
The court registrar or court clerk specified in the attachment of earnings order shall
cause the order to be served on the person to whom it is directed and on any person
who subsequently becomes the maintenance debtor’s employer and of whom the registrar or clerk becomes aware.
(2)
The service may be effected by leaving the order or a copy of it at the person’s residence or place of business in the State, or by sending the order or a copy of
it, by registered prepaid post, to that residence or place of business.
(3)
A person to whom an attachment of earnings order is directed shall comply with it
if it is served on him or her but is not liable for non-compliance before 10 days
have elapsed since the service.
(4)
If a person to whom an attachment of earnings order is directed is not the maintenance
debtor’s employer or ceases to be the maintenance debtor’s employer, the person shall, within 10 days from the date of service or the date
of cesser, give notice of that fact to the court.
(5)
The person shall give to the maintenance debtor a statement in writing of the total
amount of every deduction made from a maintenance debtor’s earnings in compliance with an attachment of earnings order.
55.
Application of sums received by District Court clerk.
55.—
Payments made to a District Court clerk under an attachment of earnings order shall,
when transmitted by the clerk to the maintenance creditor, be deemed to be payments
made by the maintenance debtor so as to discharge—
(a)
firstly, any sums payable under the antecedent order, and
(b)
secondly, any costs in proceedings relating to the antecedent order payable by the
maintenance debtor when the attachment of earnings order was made or last varied.
56.
Statement as to earnings.
56.—
(1)
In relation to an attachment of earnings order or an application for one, the court
may, before or at the hearing or while the order is in force, order—
(a)
the maintenance debtor to give to the court, within a specified period, a signed statement
in writing specifying—
(i)
the name and address of every employer of the maintenance debtor,
(ii)
particulars as to the maintenance debtor’s earnings and expected earnings, and resources and needs, and
(iii)
particulars for enabling the employers to identify the maintenance debtor,
(b)
a person appearing to the court to be an employer of the maintenance debtor to give
to the court, within a specified period, a statement signed by the person, or on his
or her behalf, of specified particulars of the maintenance debtor’s earnings and expected earnings.
(2)
Notice of an application for an attachment of earnings order served on a maintenance
debtor may include a requirement that the maintenance debtor give to the court, within
the period and in the manner specified in the notice, a statement in writing of the
matters referred to in subsection (1)(a) and of any other matters which are or may be relevant to the determination of the
normal deduction rate and the protected earnings rate to be specified in the order.
(3)
In any proceedings in relation to an attachment of earnings order, a statement given
to the court in compliance with an order under paragraph (a) or (b) of subsection (1) or with a requirement under subsection (2) is admissible as evidence of the facts stated in it and a document purporting to
be such a statement is deemed, unless the contrary is shown, to be a statement so
given.
57.
Notification of changes of employment and earnings.
57.—
Where an attachment of earnings order is in force—
(a)
the maintenance debtor shall notify in writing the court that made the order of every
occasion on which he or she leaves employment, or becomes employed or re-employed,
not later than 10 days after doing so,
(b)
the maintenance debtor shall, on any occasion on which he or she becomes employed
or re-employed, include in the notification particulars of his or her earnings and
expected earnings, and
(c)
any person who becomes an employer of the maintenance debtor and who knows that the
order is in force and by which court it was made shall, within 10 days of the later
of the date of becoming an employer of the maintenance debtor and the date of acquiring
the knowledge, notify the court in writing that he or she has become such an employer,
and include in the notification a statement of the debtor’s earnings and expected earnings.
58.
Power to determine whether particular payments are earnings.
58.—
(1)
Where an attachment of earnings order is in force, the court that made the order shall,
on the application of the maintenance debtor’s employer, the maintenance debtor or the person to whom payments are being made under
the order, determine whether payments or portions of payments being made to the maintenance
debtor that are of a class or description specified in the application are earnings
for the purpose of the order.
(2)
Where an application is made by the employer under subsection
(1), the employer is not liable for non-compliance with the order as respects any payments
or portions of payments of the class or description specified by the application that
he or she makes while the application, a determination in relation to it or an appeal
from the determination is pending.
(3)
Subsection (2) does not apply if the employer subsequently withdraws the application or abandons
the appeal.
59.
Persons in service of State, local authority, etc.
59.—
(1)
This section applies when a maintenance debtor is in the service of the State, a local
authority within the meaning of the Local Government Act 1941, a harbour authority within the meaning of the Harbours Acts 1946 to 2005, the Health
Service Executive, [an education and training board], a committee of agriculture established by the Agriculture Act 1931, or another body if his or her earnings are paid directly out of moneys paid by the
Oireachtas or from the Central Fund, or is a member of either House of the Oireachtas.
(2)
For the purposes of this Part, the following officers are regarded as being the employers
of the maintenance debtor and the earnings paid to the maintenance debtor out of the
Central Fund or out of moneys provided by the Oireachtas are regarded as having been
paid by them:
(a)
in the case where the maintenance debtor is employed in a department, office, organisation,
service, undertaking or other body, its chief officer, or any other officer that may
be designated from time to time by the Minister of the Government by whom that body
is administered;
(b)
in the case where the maintenance debtor is in the service of an authority or body,
its chief officer; and
(c)
in any other case, where the maintenance debtor is paid out of the Central Fund or
out of moneys provided by the Oireachtas, the Secretary of the Department of Finance
or any other officer that may be designated from time to time by the Minister for
Finance.
(3)
A question that arises in proceedings for or arising out of an attachment of earnings
order as to which body employs a maintenance debtor may be referred to and determined
by the Minister for Finance, but he or she is not obliged to consider the reference
unless it is made by the court.
(4)
A document purporting to contain a determination by the Minister for Finance under
subsection (3) and to be signed by an officer of that Minister shall, in any proceedings mentioned
in that subsection, be admissible in evidence and be deemed, unless the contrary is
shown, to contain an accurate statement of that determination.
Annotations:
Amendments:
F21
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72(1) and sch. 6 item 56, S.I. No. 211 of 2013.
60.
Discharge, variation and lapse of attachment of earnings order.
60.—
(1)
The court that made an attachment of earnings order may, if it thinks fit, on the
application of the maintenance creditor, the maintenance debtor or the District Court
clerk on whose application the order was made, make an order discharging or varying
that order.
(2)
The employer on whom an order varying an attachment of earnings order is served shall
comply with it but is not liable for non-compliance before 10 days have elapsed since
the service.
(3)
If an employer affected by an attachment of earnings order ceases to be the maintenance
debtor’s employer, the order lapses insofar as that employer is concerned, except as respects
deductions from earnings paid by the employer after the cesser and payment to the
maintenance creditor of deductions from earnings made at any time by that employer.
(4)
The lapse of an order under subsection
(3) does not prevent its remaining in force for other purposes.
61.
Cesser of attachment of earnings order.
61.—
(1)
An attachment of earnings order ceases to have effect upon the discharge of the relevant
antecedent order, except as regards payments under the attachment of earnings order
in respect of any time before the date of the discharge.
(2)
The clerk or registrar of the court that made the attachment of earnings order shall
give notice of a cesser to the employer.
62.
62.—
(1)
Where an attachment of earnings order has been made, any proceedings commenced under
section 8(1) of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order lapses and any warrant or order
issued or made under that subsection ceases to have effect.
(2)
An attachment of earnings order ceases to have effect on the making of an order under
section 8(1) of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order.
63.
63.—
(1)
A maintenance creditor who fails to obtain a sum of money due under an attachment
of earnings order, or the District Court clerk to whom the sum falls to be paid, may
sue for the sum as a simple contract debt in any court of competent jurisdiction,
if the failure to obtain the sum is caused by—
(a)
a person failing, without reasonable excuse, to comply with section 54(3) or (4), or 57, or an order under section 56 or 60(2), or
(b)
a person, without reasonable excuse, giving a false or misleading statement under
section 56(1) or notification under section 57.
(2)
A person who gives to a court a statement pursuant to section 56 or a notification under section 57 that he or she knows to be false or misleading commits an offence and is liable on
summary conviction to [a class C fine] or to imprisonment for a term not exceeding six months or to both.
(3)
A person who contravenes section 54(5) commits an offence and is liable on summary conviction to [a class E fine].
Annotations:
Amendments:
F22
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(c)(i), commenced on enactment.
F23
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(c)(ii), commenced on enactment.
PART 10
Miscellaneous Consequences of Civil Partnership Registration
97.
Ethics and conflict of interests.
97.—
(1)
For the purposes of determining matters concerning ethics and conflicts of interests
under any rule of law or enactment—
(a)
with respect to a person, a reference to a
“connected per
son”
or a
“connected relative”
of that person shall be construed as including the person’s civil partner and the child of the person’s civil partner who is ordinarily resident with the person and the civil partner,
and
(b)
a declaration that must be made in relation to a spouse of a person shall also be
made in relation to a civil partner of a person.
(2)
Without limiting the generality of subsection (1), the Acts specified in Part 1 of the Schedule are amended as indicated in that Schedule.
98.
Amendment of Mental Health Act 2001.
98.—
(1)
In this section, “Act of 2001” means the Mental Health Act 2001.
(2)
Section 2(1) of the Act of 2001 is amended by inserting the following definition:
“‘civil partner’ means a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”.
(3)
Section 9 of the Act of 2001 is amended—
(a)
in paragraph (1)(a), by inserting “or civil partner” after “spouse”,
(b)
in paragraphs (2)(b) and (f), by inserting “or civil partner” after “spouse”, and
(c)
in subsection (8), by inserting the following definition:
“‘civil partner’ in relation to a person, does not include a civil partner of the person who is living
separately and apart from the person or in respect of whom an application or order
has been made under the Domestic Violence Acts 1996 and 2002 as amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”.
(4)
Section 10(3)(c) of the Act of 2001 is amended by inserting “, a civil partner” after “spouse”.
(5)
Section 14(3)(a) of the Act of 2001 is amended by inserting “, a civil partner” after “spouse”.
(6)
Section 24(1) of the Act of 2001 is amended by inserting “, civil partner” after “spouse”.
99.
99.—
(1)
A benefit under a pension scheme that is provided for the spouse of a person is deemed
to provide equally for the civil partner of a person.
(2)
Without limiting the generality of subsection (1), the Acts specified in Part 2 of the Schedule are amended as indicated in that Schedule.
(3)
In this section “pension scheme” has the meaning assigned to it by section 109.
100.
100.—
The Pensions Act 1990 is amended—
(a)
in section 65(1) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by deleting the definition of “marital status” and inserting the following definition:
“‘civil status’ means civil status within the meaning of the Civil Registration Act 2004 as amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”,
(b)
in section 66(2)(a)(ii) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by substituting “civil status” for “marital status” in subparagraph (a)(ii),
(c)
in section 66(2)(b) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by substituting “civil status” for “marital status” wherever it appears,
(d)
in section 67(1)(b) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by substituting “civil status” for “marital status” wherever it appears,
(e)
in section 72 (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by substituting “civil status” for “marital status” wherever it appears, and
(f)
in section 75(1) (substituted by section 22(1) of the Social Welfare (Miscellaneous Provisions) Act 2004), by substituting “civil status” for “marital status”.
101.
Amendment of Criminal Damage Act 1991.
101.—Section 1 of the Criminal Damage Act 1991 (as amended by the Family Law (Divorce) Act 1996) is amended by inserting the following subsection after subsection (3):
“(3A)
A reference to any property belonging to another, however expressed, shall be construed
as a reference to a shared home as respects an offence under section 2, 3(a) or 4(a) if—
(a)
the property is either a shared home or a dwelling, within the meaning of section 27 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, in which a person who was a civil partner in a civil partnership that has been dissolved
under that Act ordinarily resided with his or her former civil partner before the
dissolution, and
(b)
the person charged—
(i)
is the civil partner, or was the civil partner until the dissolution of their civil
partnership, of a person who resides, or is entitled to reside, in the home, and
(ii)
is the subject of a protection order or barring order or is excluded from the home
pursuant to an order under the Domestic Violence Act 1996 as amended by Part 9
of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or another order of a court.”.
102.
Amendment of Employment Equality Act 1998.
102.—
(1)
In this section, “Act of 1998” means the Employment Equality Act 1998.
(2)
Section 2(1) of the Act of 1998 is amended—
(a)
by inserting the following definition:
“‘civil status’ means being single, married, separated, divorced, widowed, in a civil partnership
within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or
been dissolved;”;
(b)
by deleting the definition “marital status”; and
(c)
by inserting, in paragraphs (a) and (b) of the definition “member of the family”, “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse” wherever it appears.
(3)
The Act of 1998 is amended by substituting “civil status” for “marital status” wherever it appears.
103.
Amendment of Equal Status Act 2000.
103.—
(1)
In this section, “Act of 2000” means the Equal Status Act 2000.
(2)
Section 2(1) of the Act of 2000 is amended—
(a)
by inserting the following definition:
“‘civil status’ means being single, married, separated, divorced, widowed, in a civil partnership
within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or
been dissolved;”,
(b)
by deleting the definition “marital status”, and
(c)
by inserting, in the definition “near relative”, “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse”.
(3)
The Act of 2000 is amended by substituting “civil status” for “marital status” wherever it appears.
104.
Amendment of Powers of Attorney Act 1996.
104.—
(1)
In this section, “Act of 1996” means the Powers of Attorney Act 1996.
(2)
Section 5 of the Act of 1996 is amended—
(a)
by inserting, in subsection (4)(b), “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse”, and
(b)
by inserting the following subsection after subsection (7):
“(7A)
An enduring power in favour of a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 shall, unless the power provides otherwise, be invalidated or, as the case may be,
cease to be in force if subsequently—
(a)
a decree of nullity or a decree of dissolution of the civil partnership is granted
or recognised under the law of the State,
(b)
a written agreement to separate is entered into between the civil partners, or
(c)
a protection order, interim barring order, barring order or safety order is made against
the attorney on the application of the donor, or vice versa.”.
(3)
Section 6(7)(b)(iii)(II) of the Act of 1996 is amended by inserting “or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010” after “spouse”.
(4)
The First Schedule to the Act of 1996 is amended by inserting the following paragraph
after paragraph 3(1)(a):
“(aa)
the donor’s civil partner, within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;”.
(5)
Part I of the Second Schedule to the Act of 1996 is amended by inserting the following
paragraph after paragraph 2A (inserted by the Family Law (Divorce) Act 1996):
“2B.
The expiry of an enduring power of attorney effected in the circumstances mentioned
in section 5(7A) shall apply only so far as it relates to an attorney who is the civil
partner of the donor.”.
(6)
Part II of the Second Schedule to the Act of 1996 is amended by inserting the following
paragraph after paragraph 3:
“4.
The expiry of an enduring power of attorney effected in the circumstances mentioned
in section 5(7A) shall apply only so far as it relates to an attorney who is the civil
partner of the donor.”.
106.
Determination of questions between civil partners in relation to property.
106.—
(1)
Either civil partner may apply to the court in a summary manner to determine a question
arising between them as to the title to or possession of property.
(2)
The court may, on application to it under subsection
(1)—
(a)
make the order it considers proper with respect to the property in dispute (including
an order that the property be sold or partitioned), and as to the costs consequent
on the application, and
(b)
direct the inquiries, and give the other directions, it considers proper in relation
to the application.
(3)
A civil partner or a child of a deceased person who was a civil partner before death
may make an application under subsection
(1) when he or she is of the view that the conditions specified in subsection
(4) are present.
(4)
The conditions for an application under subsection
(3) are:
(a)
the applicant claims that the other civil partner has possessed or controlled—
(i)
money to which, or a share of which, the applicant was beneficially entitled whether
because it represented the proceeds of sale of property to which, or to an interest
in which, the applicant was beneficially entitled or for any other reason, or
(ii)
property other than money to which, or to an interest in which, the applicant was
beneficially entitled;
and
(b)
the money or the property has ceased to be in the possession or under the control
of the other civil partner or the applicant does not know whether it is still in the
possession or under the control of the other civil partner.
(5)
If the court is satisfied on an application under subsections (1) and (3) of the matters specified in subsection (6), the court may make an order under subsection (2) in relation to the application and may, in addition to or in lieu of that order,
make an order requiring the other civil partner to pay to the applicant—
(a)
a sum in respect of the money to which the application relates, or the applicant’s proper share of it, or
(b)
a sum in respect of the value of the property other than money, or the applicant’s proper share of it.
(6)
For the purposes of subsection
(5), the court must be satisfied that—
(a)
the other civil partner possesses or controls, or has possessed or controlled, money
or other property referred to in subsection (4)(a)(i) or (ii), and
(b)
the other civil partner has not made to the applicant a payment or disposition other
than a testamentary disposition that would have been appropriate in the circumstances.
(7)
A person (other than the applicant or the other civil partner) who is a party to proceedings
under this section shall be treated as a stakeholder only, for the purposes of costs
or any other matter.
(8)
In this section, references to a civil partner include references to—
(a)
a personal representative of a deceased civil partner, and
(b)
either of the parties to a void civil partnership, whether or not it has been the
subject of a decree of nullity granted under section 107.
PART 12
Dissolution of Civil Partnership
Annotations:
Amendments:
F26
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 149(a)(iv) and (b)(iii), S.I. No. 12 of 2016.
F27
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015, s. 149(a)(i), (ii), (iii) and (b)(i), (ii), S.I. No. 12 of 2016.
Editorial Notes:
E12
Certain disposals made by virtue of or in consequence of an order made under Part
on or following a decree of dissolution confirmed exempt from capital gains tax by
Taxes Consolidation Act 1997 (39/1997), s. 1031O(1)(a), as inserted (for year of assessment 2011 and subsequent
years of assessment) by Finance (No. 3) Act 2011 (18/2011), s. 1(1), in effect as per s. 5(8)(c), and substituted (for year of assessment
2011 and subsequent years of assessment) by Finance Act 2013 (8/2013), s. 103(1)(f), commenced as per s. 103(3)(a).
109.
109.—
(1)
In this Part—
[‘Act of 1964’ means the Guardianship of Infants Act 1964;]
“court” shall be construed in accordance with section 140;
“decree of dissolution” means a decree under section 110;
“decree of nullity” means a decree granted by a court under section 107 declaring a civil partnership to be void;
“financial compensation order” means an order under section 120;
“lump sum order” means an order under [paragraph (c) or (ca) of section 117(1)]
“maintenance pending suit order” means an order under section 116;
“member” in relation to a pension scheme, means a person who, having been admitted to membership
of the scheme under its rules, remains entitled to any benefit under the scheme;
“pension adjustment order” means an order under sections
121
to 126
;
“pension scheme” means—
(a)
an occupational pension scheme within the meaning of the Pensions Act 1990,
(b)
an annuity contract approved by the Revenue Commissioners under section 784 of the Taxes Consolidation Act 1997, or a contract so approved under section 785 of that Act,
(c)
a trust scheme, or part of a trust scheme, approved under section 784(4) or 785(5) of the Taxes Consolidation Act 1997,
(d)
a policy or contract of assurance approved by the Revenue Commissioners under Chapter
1 of Part 30 of the Taxes Consolidation Act 1997, or
(e)
another scheme or arrangement, including a personal pension plan and a scheme or arrangement
established by or pursuant to statute or instrument made under statute other than
under the Social Welfare Acts, that provides or is intended to provide either or both
of the following:
(i)
benefits for a person who is a member of the scheme or arrangement upon retirement
at normal pensionable age or upon earlier or later retirement or upon leaving or upon
the ceasing of the relevant employment, and
(ii)
benefits for the widow, widower or dependants of the person referred to in subparagraph
(i), for his or her civil partner or the person that was his or her civil partner until
the death of the person referred to in subparagraph
(i) or for any other persons, on the death of that person;
“periodical payments order” means an order under [paragraph (a) or (aa) of section 117(1)];
“property adjustment order” means an order under section 118;
“secured periodical payments order” means an order under [paragraph (b) or (ba) of section 117(1)];
“shared home” has the meaning assigned to it in Part 4
, with the modification that the references to a civil partner in that Part shall
be construed as references to a civil partner within the meaning of this Part;
“trustees”, in relation to a scheme that is established under a trust, means the trustees of
the scheme and, in relation to a pension scheme not established under a trust, means
the persons who administer the scheme.
(2)
In this Part, where the context so requires—
(a)
a reference to a civil partnership includes a reference to a civil partnership that
has been dissolved under this Part,
(b)
a reference to a registration in a new civil partnership includes a reference to a
registration in a civil partnership that takes place after a civil partnership that
has been dissolved [under this Part,]
(c)
a reference to a civil partner includes a reference to a person who was a civil partner
in a civil partnership that has been dissolved [under this Part, and]
[(d) a reference to an application to a court by a person on behalf of a dependent
child of the civil partners includes a reference to such an application by such a
child 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 child of the civil partners
includes a reference to a payment, the securing of a payment, or the assignment of
an interest, to such a child.]
Annotations:
Amendments:
F26
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 149(a)(iv) and (b)(iii), S.I. No. 12 of 2016.
F27
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015, s. 149(a)(i), (ii), (iii) and (b)(i), (ii), S.I. No. 12 of 2016.
[Dissolution of civil partnership on marriage
109A
109A. Notwithstanding any provision of this Part, a civil partnership subsisting between
two persons immediately before their marriage to each other shall stand dissolved
on and from the date of that marriage.]
Annotations:
Amendments:
F28
Inserted (16.11.2015) by Marriage Act 2015 (35/2015), s. 11, S.I. No. 504 of 2015.
Editorial Notes:
E13
The section heading is taken from the amending provision in the absence of one included
in the amendment.
110.
Grant of decree of dissolution.
[110. (1) Subject to the provisions of this Part, the court may, on application to it in
that behalf by either of the civil partners, grant a decree of dissolution in respect
of a civil partnership if it is satisfied that—
(a) at the date of the institution of the proceedings, the civil partners have lived
apart from one another for a period of, or periods amounting to, at least two years
during the previous three years, and
(b) provision that the court considers proper having regard to the circumstances exists
or will be made for the civil partners and any dependent child of the civil partners.
(2) Upon the grant of a decree of dissolution, the court may, where appropriate, give
such directions under section 11 of the Act of 1964 as it considers proper regarding
the best interests (within the meaning of that Act) or custody of, or right of access
to, any dependent child of the civil partners concerned who is under the age of 18
years as if an application had been made to it in that behalf under that section.]
Annotations:
Amendments:
F29
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 150, S.I. No. 12 of 2016.
Editorial Notes:
E14
In proceedings to which subs. (2) applies, court may adjourn proceedings and direct
an investigation of the child’s circumstances as provided by Guardianship of Infants Act 1964 (7/1964), s. 20(d); as inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 175(c), S.I. No. 12 of 2016.
111.
Adjournment of proceedings to assist reconciliation, mediation or agreements on terms
of dissolution.
111.—
(1)
The court may adjourn or further adjourn proceedings under section 110 at any time for the purpose of enabling the civil partners to attempt, if they both
so wish, with or without the assistance of a third party—
(a)
to reconcile, or
(b)
to reach agreement on some or all of the terms of the proposed dissolution.
(2)
Either or both of the civil partners may at any time request that the hearing of proceedings
adjourned under subsection
(1) be resumed as soon as may be and, if that request is made, the court shall, subject
to any other power of the court to adjourn proceedings, resume the hearing.
(3)
The powers conferred by this section are additional to any other power of the court
to adjourn proceedings.
(4)
The court may, at its discretion when adjourning proceedings under this section, advise
the civil partners to seek the assistance of a mediator or other third party in relation
to the civil partners’ proposed reconciliation or reaching of an agreement between them on some or all of
the terms of the proposed dissolution.
112.
Non-admissibility as evidence of certain communications.
112.—
The following are not admissible as evidence in any court:
(a)
an oral or written communication between either of the civil partners and a third
party, whether or not made in the presence or with the knowledge of the other civil
partner, for the purpose of—
(i)
seeking assistance to effect a reconciliation, or
(ii)
reaching agreement between them on some or all of the terms of a dissolution;
and
(b)
any record of such a communication, made or caused to be made by either of the civil
partners concerned or the third party.
113.
Effect of decree of dissolution.
113.—
Where the court grants a decree of dissolution, the civil partnership is thereby dissolved
and either civil partner may register in a new civil partnership or marry.
Annotations:
Amendments:
F30
Inserted by Children and Family Relationships Act 2015 (9/2015), s. 151, not commenced as of date of revision
Modifications (not altering
text):
C3
Prospective affecting provision: section designated as subs. (1) and subs. (2) inserted
by Children and Family Relationships Act 2015 (9/2015), s. 151, not commenced as of date of revision.
113.—[(1)] Where the court grants a decree of dissolution, the civil partnership is thereby
dissolved and either civil partner may register in a new civil partnership or marry.
[(2) For the avoidance of doubt, it is hereby declared that the grant of a decree of
dissolution shall not affect the rights of the parents of a child, under section 6
or 6B of the Act of 1964, to be guardians of the child jointly.]
114.
114.—
An order made under any of sections
115
to 128
that refers to a civil partner shall be construed as including a person who was a
civil partner until the dissolution of the civil partnership under this Part.
115.
Preliminary orders in proceedings for dissolution.
115.—
Where an application is made to the court for the grant of a decree of dissolution,
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 any other Act,
if it appears to the court to be proper to do so, make one or more of the following
orders:
(a)
a safety order, a barring order, an interim barring order or a protection order under
the Domestic Violence Acts 1996 and 2002, as amended by Part 9
[of this Act;]
(b)
an order under section 30[or section 34; and]
[(c) an order under section 11 of the Act of 1964.]
Annotations:
Amendments:
F31
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 152(a) and (b), S.I. No. 12 of 2016.
F32
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 152(c), S.I. No. 12 of 2016.
Editorial Notes:
E15
In proceedings to which para. (c) applies, court may adjourn proceedings and direct
an investigation of the child’s circumstances as provided by Guardianship of Infants Act 1964 (7/1964), s. 20(d); as inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 175(c), S.I. No. 12 of 2016.
116.
Maintenance pending suit orders.
116.—[(1) Where an application is made to the court for the grant of a decree of dissolution,
the court may make an order requiring either of the civil partners to make to the
other 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 any dependent child of the civil partners that the court considers
proper and specifies in the order.]
(2)
Periodical payments ordered under subsection
(1) may be for the period beginning not earlier than the date of the application and
ending not later than the date of its determination that the court specifies in the
order.
[(3) The court may provide that payments under this section shall be subject to such
terms and conditions as it considers appropriate and specifies in the order.]
Annotations:
Amendments:
F33
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 153(a), S.I. No. 12 of 2016.
F34
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 153(b), S.I. No. 12 of 2016.
117.
Periodical payments and lump sum orders.
117.—
(1)
On granting a decree of dissolution or at any other time after granting the decree,
the court, on application to it in that behalf [by either of the civil partners concerned or by a person on behalf of a dependent
child of the civil partners may], during the lifetime of either of the civil partners, make one or more of the following
orders:
(a)
an order that either of the civil partners make to the other the periodical payments
in the amounts, during the period and at the times that may be specified in the order;
[(aa) an order that either of the civil partners make to such person as may be specified
in the order for the benefit of any dependent child of the civil partners the periodical
payments in the amounts, during the period and at the times that may be specified
in the order;]
(b)
an order that either of the civil partners secure to the other, to the satisfaction
of the court, the periodical payments of the amounts, during the period and at the
times that [may be specified in the order;]
[(ba) an order that either of the civil partners secure, to the satisfaction of the
court, to such person as may be specified in the order for the benefit of any dependent
child of the civil partners the periodical payments in the amounts, during the period
and at the times that may be specified in the order;]
(c)
an order that either of the civil partners make to the other a lump sum payment or
lump sum payments of the amount or amounts and at the time or times that [may be specified in the order; and]
[(ca) an order that either of the civil partners make to such person as may be specified
in the order for the benefit of any dependent child of the civil partners a lump sum
payment or lump sum payments in the amount or amounts and at the time or times that
may be specified in the order.]
[(2) The court may order a civil partner to pay a lump sum—
(a) to the other civil partner to meet any liabilities or expenses reasonably incurred
by the other civil partner in maintaining himself or herself or any dependent child
of the civil partners before the making of an application by the other civil partner
for an order under subsection (1), or
(b) to such person that may be specified in the order to meet any liabilities or expenses
reasonably incurred by or for the benefit of a dependent child of the civil partners
before the making of an application on behalf of the dependent child of the civil
partners for an order under subsection (1).]
(3)
An order under this section for the payment of a lump sum may provide for the payment
of the lump sum by instalments of the amounts that may be specified in the order and
may require the payment of the instalments to be secured to the satisfaction of the
court.
(4)
The period specified in an order under subsection
(1)
(a) or
(b) shall begin not earlier than the date of the application for the order and shall
end not later than the death of the first civil partner to die.
[(4A) The period specified in an order under subsection (1)(aa) or (ba) shall begin not earlier than the date of the application for the order and shall
end not later than the death of the civil partner against whom the order was made
or the death of the dependent child of the civil partners in whose favour the order
was made, whichever first occurs.]
(5)
An order made under subsection
(1)
(a) or
(b) ceases to have effect on the date of entry into a new civil partnership or marriage
of the civil partner in whose favour the order was made, except as respects payments
due under it on that date.
(6)
The court shall not make an order under this section in favour of a civil partner
who has entered into a new civil partnership or has married.
(7)
The court that makes an order under [paragraph (a) or (aa) of subsection (1)] shall, in the same proceedings, make an attachment of earnings order under Part 6
to secure payments under the order if it is satisfied, after taking into consideration
any representations on the matter made to it by the civil partner ordered to make
payments under that subsection, that—
(a)
the order is desirable to secure payments under an order under [paragraph (a) or (aa) of subsection (1)] and any variations and affirmations of that order, and
(b)
the person against whom the attachment of earnings order is made is a person to whom
earnings fall to be paid.
Annotations:
Amendments:
F35
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 154(a)(i), (iii) and (v), S.I. No. 12 of 2016.
F36
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 154(a)(ii), (iv) and (vi), S.I. No. 12 of 2016.
F37
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 154(b), S.I. No. 12 of 2016.
F38
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 154(c), S.I. No. 12 of 2016.
F39
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 154(d), S.I. No. 12 of 2016.
118.
Property adjustment orders.
118.—
(1)
On granting a decree of dissolution or at any other time after the decree is granted,
the court, on application to it in that behalf by [either of the civil partners or by a person on behalf of a dependent child of the
civil partners may], during the lifetime of either of the civil partners, make one or more of the following
orders:
(a)
an order transferring specified property in which a civil partner has an interest
either in possession or reversion from that civil partner [to the other, to any dependent child of the civil partners or to any other specified
person for the benefit of such a child];
(b)
an order settling specified property in which a civil partner has an interest either
in possession or reversion for the benefit [of the other and of any dependent child of the civil partners or any or all of those
persons], to the satisfaction of the court;
(c)
an order varying an ante-registration or post-registration settlement made by the
civil partners, including one made by will or codicil, for the benefit of [one of the civil partners and of any dependent child of the civil partners or any
or all of those persons]; and
(d)
an order extinguishing or reducing the interest of either of the civil partners under
such a settlement.
(2)
An order under subsection
(1)
(b),
(c) or
(d) may restrict to a specified extent or may exclude the application of section 131 in relation to the order.
(3)
If, after the grant of the decree of dissolution, either of the civil partners registers
in a new civil partnership or marries, the court shall not make an order under subsection
(1) in favour of that civil partner.
(4)
The registrar or clerk of the court that makes an order under subsection
(1) in relation to land shall lodge with the Property Registration Authority a copy of
the order certified to be a true copy for registration in the Registry of Deeds or
Land Registry, as appropriate.
(5)
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.
(6)
The court may order a person other than the person directed by an order under subsection
(1) to execute a deed or instrument in the name of the person who had been directed to
do so if—
(a)
that person refuses or neglects to comply with the direction, or
(b)
the court considers it necessary to do so for another reason.
(7)
A deed executed by a person in the name of another person pursuant to an order under
subsection
(6) is as valid as if it had been executed by the person who had been originally directed
to do so.
(8)
The court may determine the manner in which the costs incurred in complying with an
order under this section are to be borne, including by one or the other of the civil
partners or by both of them in the proportions that the court may determine.
(9)
This section does not apply in relation to a shared or family home in which, following
the grant of a decree of dissolution, either of the civil partners resides with a
new civil partner or spouse.
Annotations:
Amendments:
F40
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 155, S.I. No. 12 of 2016.
Editorial Notes:
E16
Form prescribed for application for cancellation of a Property Adjustment Order pursuant
to section (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rl. 103, in effect as per rl. 1.
119.
Miscellaneous ancillary orders.
119.—
(1)
On granting a decree of dissolution or at any other time after it is granted, the
court, on application to it in that behalf by [either of the civil partners or a person on behalf of a dependent child of the civil
partners may], during the lifetime of either of the civil partners, make one or more of the following
orders:
(a)
an order providing for the conferral on one civil partner, either for life or for
another specified definite or contingent period that the court may specify, of the
right to occupy the shared home to the exclusion of the other civil partner;
(b)
an order directing the sale of the shared home subject to the conditions that the
court considers proper and providing for the disposition of the proceeds of the sale
between the civil partners and any other person with an interest in it;
(c)
an order under section 30,
33,
34 or 106;
(d)
an order under the Domestic Violence Acts 1996 and 2002 as amended by [Part 9
;]
[(e) an order under section 31 of the Land and Conveyancing Law Reform Act 2009; and]
[(f) an order under section 11 of the Act of 1964]
(2)
The court, in exercising its jurisdiction under subsection
(1)
(a) or
(b) shall have regard to the [welfare of the civil partners and any dependent child of the civil partners] and, in particular, shall take into consideration—
(a)
that, where a decree of dissolution is granted, it is not possible for the civil partners
to reside together, and
(b)
that proper and secure accommodation should, where practicable, be provided for a
civil partner who is wholly or mainly dependent on the [other civil partner and for any dependent child of the civil partners].
(3)
Subsections
(1)
(a) and
(b) do not apply in relation to a shared or family home in which, following the grant
of a decree of dissolution, either of the civil partners resides with a new civil
partner or spouse.
Annotations:
Amendments:
F41
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 156(a)(i)-(iii) and (b), S.I. No. 12 of 2016.
F42
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 156(a)(iv), S.I. No. 12 of 2016.
120.
Financial compensation orders.
120.—
(1)
If the court is of the view that one of the reasons set out in subsection
(2) exists, the court, on application to it [in that behalf by either of the civil partners or by a person on behalf of a dependent
child of the civil partners], during the lifetime of either of the civil partners, may make, on granting a decree
of dissolution or at any time after granting it, one or more of the following orders:
[(a) an order, on the application of either of the civil partners, requiring the other
civil partner to effect a policy of life insurance for the benefit of the applicant
civil partner or a dependent child of the civil partners;]
[(aa) an order, on the application of a person on behalf of a dependent child of the
civil partners, requiring either of the civil partners to effect such a policy of
life insurance for the benefit of the dependent child;]
[(b) an order, on the application of one civil partner, requiring the other civil partner
to assign to the applicant civil partner, or to such person as may be specified in
the order for the benefit of a dependent child of the civil partners, the whole or
a specified part of the interest in a policy of life insurance that the other civil
partner has effected or that both of the civil partners have effected;]
[(ba) an order, on the application of a person on behalf of a dependent child of the
civil partners, requiring either civil partner or both civil partners to assign to
a person specified in the order for the benefit of the dependent child of the civil
partners the whole or a specified part of the interest in a policy of life insurance
that either civil partner has effected or that both of the civil partners have effected;
and]
[(c) an order—
(i) on the application of a civil partner, requiring the other civil partner, or
(ii) on the application of a person on behalf of a dependent child of the civil partners,
requiring either or both of the civil partners,
to make or to continue to make to the person by whom a policy of life insurance is
or was issued the payments which he or she or both of the civil partners is or are
required to make under the terms of the policy.]
(2)
The reasons referred to in subsection
(1) are:
(a)
the financial security of the [applicant civil partner or the dependent child of the civil partners] can be provided for if the order is made; and
(b)
the forfeiture by the [applicant civil partner or the dependent child of the civil partners, as the case
may be,] of the opportunity of acquiring a benefit (for example a benefit under a pension
scheme) by reason of the decree of dissolution can be compensated wholly or partly
by making the order.
(3)
The court may make an order under subsection
(1) in addition to or in substitution in whole or in part for orders under sections
117
,
118
,
119
or 121 and, in deciding whether or not to make the order, the court shall have regard to
whether proper provision, having regard to the circumstances, exists, or can be made,
[for the civil partner concerned or any dependent child of the civil partners concerned] by orders under those sections.
(4)
An order made under subsection
(1) ceases to have effect on the entry into a new civil partnership, marriage or [death of the applicant civil partner in whose favour the order was made in so far
as it relates to him or her].
(5)
The court shall not make an order under this section in favour of a civil partner
who has entered into a new civil partnership or has married.
(6)
An order under section 131 in relation to an order made under subsection
(1)
(a) or
(b) may make the provision that the court considers appropriate in relation to the disposal
of—
(a)
an amount representing any accumulated value of the insurance policy effected pursuant
to the order under subsection
(1)
(a), or
(b)
the interest or part of the interest to which the order under subsection
(1)
(b) relates.
Annotations:
Amendments:
F43
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 157(a)(i), (ii), (iv) and (vi), S.I. No. 12 of 2016.
F44
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 157(a)(iii) and (v), S.I. No. 12 of 2016.
F45
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 157(b)-(d), S.I. No. 12 of 2016.
121.
Pension adjustment orders.
121.—
(1)
In this section and sections
122
to 126
—
“Act of 1990” means the Pensions Act 1990;
“active member” in relation to a scheme, means a member of the scheme who is in reckonable service;
“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision
for any revaluation of the benefit) under a scheme calculated by reference to appropriate
financial assumptions and making due allowance for the probability of survival to
normal pensionable age and beyond in accordance with normal life expectancy on the
assumption that the member, at the effective date of calculation, is in a normal state
of health having regard to his or her age;
“approved arrangement”, in relation to the trustees of a scheme, means an arrangement whereby the trustees,
on behalf of the person for whom the arrangement is made, effect policies or contracts
of insurance that are approved of by the Revenue Commissioners with, and make the
appropriate payments under the policies or contracts to, one or more undertakings;
“contingent benefit” means a benefit payable under a scheme, other than a payment under section 123
(4), to or for the benefit of the surviving civil partner, any dependants of the member
civil partner or the personal representative of the member civil partner, if the member
civil partner dies while in relevant employment and before attaining any normal pensionable
age provided for under the rules of the scheme;
“defined contribution scheme” has the meaning assigned to it by section 2(1) (as amended by section 29(1)(a)(ii) of the Social Welfare and Pensions Act 2008) of the Act of 1990;
“designated benefit” in relation to a pension adjustment order, means an amount determined by the trustees
of a scheme, in accordance with relevant guidelines and by reference to the period
and the percentage of the retirement benefit specified in an order under subsection (2);
“member civil partner” in relation to a scheme, means a civil partner who is a member of the scheme;
“normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits
under the rules of the scheme on retirement from relevant employment, disregarding
any rules providing for early retirement on grounds of ill health or otherwise;
“occupational pension scheme” has the meaning assigned to it by section 2(1) of the Act of 1990;
“reckonable service” means service in relevant employment during membership in any scheme;
“relevant guidelines” means any relevant guidelines for the time being in force under section 10(1)(c) or (cc) (as amended by section 5 of the Pensions (Amendment) Act 1996, section 47(c) of the Family Law (Divorce) Act 1996, section 13(b) of the Pensions (Amendment) Act 2002 and section 37 of the Social Welfare and Pensions Act 2007) of the Act of 1990;
“relevant employment” in relation to a scheme, means any employment, or any period treated as employment,
or any period of self-employment to which a scheme applies;
“retirement benefit”, in relation to a scheme, means all benefits, other than contingent benefits, payable
under the scheme;
“rules”, in relation to a scheme, means the provisions of the scheme by whatever name called;
“scheme” means a pension scheme;
“transfer amount” shall be construed in accordance with subsection
(4);
“undertaking” has the same meaning as “‘insurance undertaking’ or ‘undertaking’” in section 2(1) (as inserted by section 3(1) of the Insurance Act 2000) of the Insurance Act 1989.
[(2) On granting a decree of dissolution or at any other time after it is granted,
the court, on application to it in that behalf by either of the civil partners or
by a person on behalf of a dependent child of the civil partners, may during the lifetime
of a member civil partner, make an order providing for the payment, in accordance
with this section and sections 122 to 126, to—
(a) the other civil partner, or
(b) a person specified in the order for the benefit of a dependent child of the civil
partners for so long as that child remains a dependent child of the civil partners,
of a benefit consisting of the part of the benefit that is payable (or that, but for
the making of the decree, would have been payable) under the scheme and has accrued
at the time of the making of the decree, or of the part of that part that the court
considers appropriate.]
(3)
The order under subsection
(2) shall specify—
(a)
the period of reckonable service of the member civil partner prior to the granting
of the decree to be taken into account, and
(b)
the percentage of the retirement benefit accrued during the period to be paid to [the other civil partner or to the person on behalf of the dependent child of the civil
partners, as the case may be].
(4)
Where the court makes an order under subsection
(2) in favour of a civil partner and payment of the designated benefit concerned has
not commenced, the civil partner is entitled to the application in accordance with
section 123(1) of an amount of money from the scheme (in this subsection referred to as a “transfer amount”) equal to the value of the designated benefit as determined by the trustees of the
scheme in accordance with relevant guidelines.
[(5) On granting a decree of dissolution or at any time within one year after it is
granted, the court, on application to it in that behalf by either of the civil partners
or by a person on behalf of a dependent child of the civil partners, may make an order
providing for the payment, on the death of the member civil partner, to—
(a) the other civil partner, or
(b) a person specified in the order for the benefit of a dependent child of the civil
partners,
of that part of a contingent benefit that is payable (or that, but for the making
of the decree, would have been payable) under the scheme, or of the part of that part,
that the court considers appropriate.]
(6)
The court shall not make an order under this section in favour of a civil partner
who has registered in a new civil partnership or has married.
(7)
The court may make an order under this section in addition to or in substitution in
whole or in part for an order under section 117,
118
,
119
or 120
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 civil partner who is not a [member or for a dependent child of the civil partners concerned under] those sections.
(8)
An order under this section may restrict to a specified extent or exclude the application
of section 131 in relation to the order.
Annotations:
Amendments:
F46
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 158(d), S.I. No. 12 of 2016.
122.
Procedural provisions respecting pension adjustment orders.
122.—
(1)
A person who makes an application under section 121(2) or
(5) or an application for an order under section 131(2) in relation to an order under section 121(2) shall give notice of the application to the trustees of the scheme. The court shall,
in deciding whether to make the order and in determining the provisions of the order,
have regard to representations made by the persons to whom notice has been given under
this section or section 141.
(2)
An order referred to in subsection
(1) ceases to have effect on the entry into a new civil partnership, marriage or death
of the [applicant civil partner in whose favour the order was made in so far as the order
relates to him or her].
[(2A) Where the court makes an order under section 121(2), or under section 131(3) in relation to an order under section 121(2), for the benefit of a dependent child of the civil partners and the child dies before
payment of the designated benefit has commenced, the order shall cease to have effect
in so far as it relates to him or her.]
(3)
The court may, in making an order referred to in subsection
(1), give to the trustees of the scheme any directions that it considers appropriate,
including a direction that would require the trustees not to comply with the rules
of the scheme or the Act of 1990.
(4)
The registrar or clerk of the court that makes an order referred to in subsection
(1) shall cause a copy of the order to be served on the trustees of the scheme.
Annotations:
Amendments:
F47
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 159(a), S.I. No. 12 of 2016.
F48
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (/2015), s. 159(b), S.I. No. 12 of 2016.
123.
Rules respecting payments under schemes.
123.—
(1)
Subject to section 124(4), the trustees of a scheme in respect of which an order has been made under section 121(2) shall, where the conditions set out in subsection
(2) are present, apply, in accordance with relevant guidelines, the transfer amount calculated
in accordance with those guidelines—
(a)
if the trustees and the civil partner so agree, in providing a benefit for or in respect
of the civil partner that is of the same actuarial value as the transfer amount, or
(b)
in making a payment, at the option of the civil partner—
(i)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(ii)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(2)
The conditions referred to in subsection
(1) are:
(a)
the court has made an order under section 121(2) in favour of the civil partner;
(b)
payment of the designated benefit has not commenced;
(c)
the civil partner has applied to the trustees in that behalf; and
(d)
the civil partner furnishes the information that the trustees require.
(3)
Subject to section 124(4), trustees of a defined contribution scheme in respect of which an order has been
made under section 121(2) may, if the civil partner has not made an application under subsections
(1) and (2), apply in accordance with relevant guidelines the transfer amount calculated in accordance
with those guidelines to make a payment, at their option—
(a)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(b)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(4)
Subject to section 124(4), the trustees of a scheme in respect of which an order has been made under section 121(2) shall, within 3 months of the death of a member civil partner who dies before the
payment of the designated benefit has commenced, [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.
(5)
Subject to section 124(4), the trustees of a scheme in respect of which an order has been made under section 121(2) may, if the member civil partner ceases to be a member otherwise than on death, apply,
in accordance with relevant guidelines, the transfer amount under the scheme, at their
option—
[(a) if the trustees and the person in whose favour the order was made so agree, in providing
a benefit for or in respect of that person that is of the same actuarial value as
the transfer amount, or]
(b)
in making a payment, either—
(i)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(ii)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(6)
Subject to section 124(4), the trustees of a scheme in respect of which an order has been made under section 121(2) shall, within 3 months of the death of the civil partner who is not the member and
who dies before payment of the designated benefit has commenced, provide for the payment
to the personal representative of that civil partner of an amount that is equal to
the transfer amount calculated in accordance with relevant guidelines.
(7)
Subject to section 124
(4), the trustees of a scheme in respect of which an order has been made under section 121(2) shall, within 3 months of the death of the civil partner who is not the member and
who dies after payment of the designated benefit has commenced, provide for the payment
to the personal representative of that civil partner of an amount that is equal to
the actuarial value, calculated in accordance with relevant guidelines, of the part
of the designated benefit that, but for the death of that civil partner, would have
been payable to him or her during his or her lifetime.
(8)
The trustees of a scheme in respect of which an order has been made under section 121(2) or
(5) shall, within 12 months of the member civil partner’s ceasing to be a member, notify the registrar or clerk of the court and the other
civil partner of the cessation, if the trustees have not applied the transfer amount
in accordance with any of subsections
(1) to
(6).
(9)
The trustees of a scheme who apply a transfer amount under subsection
(3) or (5) shall notify the [person in whose favour the order was made] and the registrar or clerk of the court, giving particulars to [that person] of the scheme and the transfer amount.
Annotations:
Amendments:
F49
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 160, S.I. No. 12 of 2016.
124.
Payments further to orders under section 121
.
124.—
(1)
A benefit payable pursuant to an order made under section 121(2), or a contingent benefit payable pursuant to an order made under section 121(5), is payable out of the resources of the scheme and, unless the order or relevant
guidelines provide otherwise, in accordance with the rules of the scheme and those
guidelines.
(2)
The amount of retirement benefit payable to the member civil partner, or the amount
of contingent benefit payable to or in respect of the member civil partner, in accordance
with the rules of the relevant scheme shall be reduced by the designated benefit or
contingent benefit payable pursuant to an order made under section 121(2) or
(5), as the case may be, [to the other civil partner or other person concerned].
(3)
The amount of contingent benefit payable in accordance with the rules of the scheme
in respect of a member civil partner who dies before the payment of the designated
benefit payable pursuant to an order under section 121(2) has commenced shall be reduced by the amount of the payment made under section 123(4).
(4)
Trustees who make a payment or apply a transfer amount under any of subsections
(1) to
(7) of section 123 are discharged from any obligation to make further payment or apply another transfer
amount under any of those subsections in respect of the benefit payable pursuant to
the order made under section 121(2).
(5)
A trustee is not liable for any loss or damage caused by complying with a direction
referred to in section 122(3) rather than the rules of the scheme or the Act of 1990.
Annotations:
Amendments:
F50
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 161, S.I. No. 12 of 2016.
125.
125.—
(1)
The court may determine the manner in which the costs incurred by the trustees of
a scheme further to an order under section 121 are to be borne, [including by the member civil partner or by the other person concerned or by both
of them] in the proportions that the court may determine, and in default of a determination,
the civil partners shall bear those costs equally.
(2)
The court may, on application to it by the trustees, order that an amount ordered
to be [paid by a person] under subsection
(1) that has not been paid be deducted from any benefits [payable to the person]—
[(a) pursuant to an order made under section 121, if the person is the beneficiary of the order; and]
[(b) pursuant to the scheme, if the person is the member civil partner.]
Annotations:
Amendments:
F51
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 162, S.I. No. 12 of 2016.
126.
Other provisions for orders under section 121
.
126.—
(1)
Section 54 of the Act of 1990 and regulations made under that section apply with any
necessary modifications to a scheme if proceedings for the grant of a decree of dissolution
to which a member civil partner is a party have been instituted, and continue to apply
notwithstanding the grant of the decree of dissolution.
(2)
For the purposes of this section and sections
121
to 125
, the court may, of its own motion, and shall, if so requested by either of the civil
partners or another concerned person, direct the trustees of the scheme to provide
the civil partners or the other person and the court, within a specified period—
(a)
with a calculation of the value and amount, determined in accordance with relevant
guidelines, of the retirement benefit or contingent benefit that is payable or that,
but for the making of the order for the decree of dissolution, would have been payable
under the scheme and has accrued at the time of making the order, and
(b)
with a calculation of the amount of the contingent benefit that is payable or that,
but for the making of the order for the decree of dissolution concerned, would have
been payable, under the scheme.
127.
Applications for provision from estate of deceased civil partner.
127.—
(1)
A civil partner may, after the death of his or her civil partner but not more than
6 months after representation is first granted under the Succession Act 1965 in respect of that civil partner’s estate, apply for an order under this section for provision out of the estate.
(2)
The court may by order make the provision for the applicant that the court considers
appropriate having regard to the rights of any other person having an interest in
the matter, if the court is satisfied that proper provision in the circumstances was
not made for the applicant during the lifetime of the deceased for any reason other
than conduct by the applicant that, in the opinion of the court, it would in all the
circumstances be unjust to disregard.
(3)
The court shall not make an order under this section in favour of a civil partner
who has registered in a new civil partnership, or has married, since the granting
of the decree of dissolution.
(4)
In considering whether to make an order under this section, the court shall have regard
to all the circumstances of the case, including—
(a)
any order made under section 117(1)(c) or a property adjustment order made under section 118 in favour of the applicant, and
(b)
any devise or bequest made by the deceased in favour of the applicant.
(5)
The total value for the applicant of the provision made by an order referred to in
subsection
(4)(a) on the date on which that order was made and an order made under this section shall
not exceed any share of the applicant in the estate of the deceased civil partner
to which the applicant was entitled or, if the deceased civil partner died intestate
as to the whole or part of his or her estate, would have been entitled, if the civil
partnership had not been dissolved, under the Succession Act 1965 as amended by Part 8.
(6)
The applicant shall give notice of an application under this section to any spouse
or other civil partner of the deceased and to any other persons that the court may
direct and, in deciding whether to make the order and in determining the provisions
of the order, the court shall have regard to any representations made by any of those
persons.
(7)
The personal representative of a deceased civil partner in respect of whom a decree
of dissolution has been granted shall make a reasonable attempt to ensure that notice
of the death is brought to the attention of the other civil partner concerned and,
where an application is made under this section, that personal representative shall
not, without leave of the court, distribute any of the estate of the deceased civil
partner until the court makes or refuses to make an order under this section.
(8)
A civil partner shall notify the personal representative of the deceased civil partner
not later than one month after receipt of the notice referred to in subsection
(7) if the other civil partner—
(a)
intends to apply for an order under this section,
(b)
has applied for an order under this section and the application is pending, or
(c)
has successfully obtained an order under this section.
(9)
If the civil partner does not notify the personal representative as required by subsection (8), the personal representative may distribute the assets of the deceased civil partner
or any part of them amongst the persons entitled to them and is not liable to the
civil partner for that distribution.
(10)
Nothing in this section prejudices the rights of the civil partner to follow assets
into the hands of a person who has received them.
(11)
On granting a decree of dissolution or at any other time after it is granted, the
court, on application to it in that behalf by either of the civil partners, may make
an order that either or both of the civil partners may not, on the death of either
of them, apply for an order under this section, if the court considers it just to
do so.
(12)
In this section, “civil partner” means a civil partner whose civil partnership has been dissolved.
128.
Orders for sale of property.
128.—
(1)
The court may make an order directing the sale of property specified in the order
if—
(a)
the property is property in which, or in the proceeds of sale of which, either or
both of the civil partners has a beneficial interest, either in possession or reversion,
and
(b)
the court makes or has made a secured periodical payments order, a lump sum order
or a property adjustment order.
(2)
The court shall not exercise its jurisdiction under subsection
(1) in a way that would affect a civil partner’s right to occupy the shared home by virtue of an order under this Act.
(3)
An order under subsection
(1) may contain the consequential and supplementary provisions that the court considers
appropriate, including provisions—
(a)
specifying the manner of sale and some or all of the conditions applying to the sale
of the property,
(b)
requiring the property to be offered for sale to a person or class of persons specified
in the order,
(c)
directing that the order, or a specified part of it, not take effect until the occurrence
of a specified event or the expiration of a specified period,
(d)
requiring the making of a payment or payments, whether periodically or in a lump sum,
to a specified person out of the proceeds of the sale of the property, and
(e)
specifying the manner in which the proceeds of the sale of the property are to be
disposed of between the civil partners and other persons.
(4)
A provision in an order under subsection
(1) requiring the making of periodical payments to one of the civil partners out of the
proceeds of the sale ceases to have effect on the registration in a new civil partnership,
marriage or death of that civil partner, except as respects payments due under it
on the date of the registration, marriage or death.
(5)
The court shall, in considering whether to make an order under this section or section 118or 119 with respect to a property in which a civil partner has a beneficial interest or
in the proceeds of sale of which the civil partner has a beneficial interest, give
to a person who also has a beneficial interest in the property or proceeds an opportunity
to make representations with respect to the making and contents of the order.
(6)
The representations made under subsection
(5) are deemed to be included in section 129 as matters to which the court is required to have regard in proceedings under a provision
referred to in that section.
(7)
This section does not apply in relation to a shared or family home in which, following
the grant of a decree of dissolution, either of the civil partners resides with a
new civil partner or spouse.
129.
Provisions relating to certain orders.
129.—
(1)
In deciding whether to make an order under section 116, 117, 118, 119(1)(a) or (b), 120, 121 to 126, 127 or 131, and in determining the provisions of the order, the court shall ensure that the provision
that the court considers proper having regard to the circumstances exists or will
be made [for the civil partners and any dependent child of the civil partners concerned].
(2)
In deciding whether to make an order referred to in subsection
(1) and in determining the provisions of the order, the court shall, in particular, have
regard to the following matters:
(a)
the income, earning capacity, property and other financial resources that each of
the civil partners has or is likely to have in the foreseeable future;
(b)
the financial needs, obligations and responsibilities that each of the civil partners
has or is likely to have in the foreseeable future, whether in the case of the registration
of a new civil partnership or marriage or otherwise;
[(c) the standard of living enjoyed by the civil partners and any dependent child of
the civil partners before the proceedings were instituted or before the civil partners
commenced to live apart;]
(d)
the age of the civil partners, the duration of their civil partnership and the length
of time during which the civil partners lived with each other after registration of
their civil partnership;
(e)
any physical or mental disability of either of the civil partners;
[(f) the contributions that each of the civil partners has made or is likely to make
in the foreseeable future to the welfare of the civil partners and any dependent child
of the civil partners, including any contribution made by each of them to the income,
earning capacity, property and financial resources of the other, and any contribution
made by either of them by looking after the shared home or caring for the other civil
partner or any dependent child of the civil partners;]
(g)
the effect on the earning capacity of each of the civil partners of the civil partnership
responsibilities assumed by each during the period when they lived with one another
after the registration of their civil partnership and the degree to which the future
earning capacity of a civil partner is impaired by reason of that civil partner having
relinquished or foregone the opportunity of remunerative activity in order to look
after [the shared home or to care for the other civil partner or any dependent child of the
civil partners];
(h)
any income or benefits to which either of the civil partners is entitled by or under
statute;
(i)
the conduct of each of the civil partners, if that conduct is such that, in the opinion
of the court, it would in all the circumstances be unjust to disregard;
(j)
the accommodation needs of both of the civil partners;
(k)
the value to each of the civil partners of any benefit (for example, a benefit under
a pension scheme) which, by reason of the decree of dissolution, a civil partner will
forfeit the opportunity or possibility of acquiring; and
(l)
the rights of any person other than the civil partners but including a person with
whom either civil partner is registered in a new civil partnership or to whom the
civil partner is married, or any child to whom either of the civil partners owes an
obligation of support.
(3)
In deciding whether to make an order under a provision referred to in subsection
(1) and in determining the provisions of the order, the court shall have regard to the
terms of any separation agreement that the parties have entered into and that is still
in force.
[(3A) In deciding whether to make an order referred to in subsection (1) in favour of a dependent child of the civil partners concerned and in determining
the provisions of such an order, the court shall, in particular, have regard to the
following matters:
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources
of the child;
(c) any physical or mental disability of the child;
(d) any income or benefits to which the child is entitled by or under statute;
(e) the manner in which the child was being, and in which the civil partners concerned
anticipated that the child would be, educated or trained;
(f) the matters specified in paragraphs (a), (b) and (c) of subsection (2) and subsection (3) ;
(g) the accommodation needs of the dependent child.]
(4)
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.
Annotations:
Amendments:
F52
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 163(a) and (b), S.I. No. 12 of 2016.
F53
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 163(c), S.I. No. 12 of 2016.
130.
Retrospective periodical payment orders.
130.—
The court may, if, having regard to all the circumstances of the case, it considers
it appropriate to do so, in a periodical payments order, direct that—
(a)
the period in respect of which payments under the order are to be made begins on a
specified date that is before the date of the order but after the date of the institution
of the proceedings for the grant of the decree of dissolution,
(b)
without prejudice to section 117(1)(c), any payments under the order in respect of the period before the date of the order
be paid in one sum and before a specified date, and
(c)
the civil partner making the payments referred to in paragraph
(b) deduct a specified amount equal to any payment made by that civil partner to the
other civil partner during the period between the making of the order for the grant
of the decree of dissolution and the institution of the proceedings.
131.
Variations etc., of certain orders.
131.—
(1)
This section applies to the following orders:
(a)
a maintenance pending suit order;
(b)
a periodical payments order;
(c)
a secured periodical payments order;
(d)
a lump sum order if and insofar as it provides for the payment of the lump sum by
instalments or requires the payment of instalments to be secured;
(e)
an order under section 118(1)(b),
(c) or
(d) to the extent that the application of this section is not restricted or excluded
pursuant to section 118(2);
(f)
an order under section 119(1)(a) or (b);
(g)
a financial compensation order;
(h)
an order under section 121
(2), to the extent that the application of this section is not restricted or excluded
pursuant to section 121
(8); and
(i)
an order under this section.
(2)
Any of the following persons may apply under this section with respect to an order
referred to in subsection
(1):
(a)
either of the civil partners concerned;
(b)
in the case of the death of a civil partner, another person who has, in the opinion
of the court, sufficient interest [in the matter or a person on behalf of a dependent child of the civil partners concerned]; and
(c)
in the case of the registration of a new civil partnership or the marriage of either
of the civil partners, his or her new civil partner or spouse.
(3)
Subject to this section and section 129 and to any restriction or exclusion pursuant to section 118(2) or 121(8), and without prejudice to section 120(6), the court may, on application under subsection (2) and 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—
(a)
vary or discharge the order,
(b)
suspend any provision of the order,
(c)
suspend temporarily any provision of the order,
(d)
revive the operation of a suspended provision,
(e)
further vary an order previously varied under this section, and
(f)
further suspend or revive the operation of a provision previously suspended or revived
under this section.
(4)
An order under this section may require the divesting of property vested in a person
under an order referred to in subsection
(1).
[(4A) Without prejudice to the generality of section 116 or 117, that part of an order to which this section applies which provides for the making
of payments for the support of a dependent child of the civil partners shall stand
discharged if he or she ceases to be a dependent child of the civil partners by reason
of his or her attainment of the age of 18 years or 23 years, as the case may be, and
shall be discharged by the court, on application to it under subsection (2), if it is satisfied that the child has for any reason ceased to be a dependent child
of the civil partners.]
(5)
The court’s power under subsection
(3) to vary, discharge or suspend an order referred to in subsection (1)(e) is subject to any restriction or exclusion specified in that order and is a power—
(a)
to vary the settlement to which that order relates in any person’s favour or to extinguish or reduce any person’s interest under that settlement; and
(b)
to make the supplemental provision, including a further property adjustment order
or a lump sum order, that the court thinks appropriate in consequence of any variation,
extinguishment or reduction made under paragraph (a).
(6)
Section 128 applies, with the necessary modifications, to a case where the court makes an order
under subsection (5) as it applies to a case where the court makes a property adjustment order.
(7)
The court shall not make an order under subsection (5) if it appears to the court that the order could prejudice the rights of a person
who is not a [civil partner concerned or a dependent child of the civil partners concerned] and has acquired a right or interest in consequence of the order referred to in subsection (1)(e).
(8)
This section applies, with any necessary modifications, to instruments executed pursuant
to orders referred to in subsection (1) as it applies to those orders.
(9)
The registrar or clerk of the court shall, as appropriate, lodge a copy of an order
made under subsection
(3) in relation to a property adjustment order relating to land, which he or she has
certified to be a true copy, with the Property Registration Authority for registration
in the Registry of Deeds or Land Registry, as appropriate.
(10)
Where a property adjustment order lodged under section 118(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 (3) and the second-mentioned order has been duly lodged for registration pursuant to
subsection (9), the Property Registration Authority shall—
(a)
amend or cancel accordingly the entry made in the register, pursuant to section 118(4), under the Registration of Title Act 1964, or
(b)
note the position in the Registry of Deeds.
Annotations:
Amendments:
F54
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 164(a) and (c), S.I. No. 12 of 2016.
F55
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 164(b), S.I. No. 12 of 2016.
Editorial Notes:
E17
Form prescribed for application for cancellation of a Property Adjustment Order pursuant
to section (1.02.2013) by Land Registration Rules 2012 (S.I. No. 483 of 2012), rl. 103, in effect as per rl. 1.
Restriction in relation to orders for benefit of dependent children of civil partners
131A
[131A. The court shall not have regard to the conduct of the civil partner or civil partners
concerned of the kind specified in section 129(2)(i) in deciding whether—
(a) to include in an order under section 116 a provision requiring the making of periodical
payments for the benefit of a dependent child of the civil partners,
(b) to make an order under paragraph (aa), (ba) or (ca) of section 117(1), or
(c) to make an order under section 131 varying, discharging or suspending a provision referred to in paragraph (a) or an order referred to in paragraph (b).]
Annotations:
Amendments:
F56
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 165, S.I. No. 12 of 2016.
Editorial Notes:
E18
The section heading is taken from the amending section in the absence of one included
in the amendment.
132.
Method of making payments under certain orders.
132.—
(1)
This section applies to an order under section 45, 47, 116, 117, 128 or 131.
(2)
The court may by order provide that a payment under an order referred to in subsection (1) be made by the method specified in the order and be subject to the specified terms
and conditions that the court considers appropriate.
133.
Stay on certain orders being appealed.
133.—
The operation of an order being appealed shall not be stayed unless the court that
made the order or to which the appeal is brought directs otherwise, in the case of
an appeal brought from an order under section 45, 47, 116,[117(1)(a), (aa), (b) or (ba)] or 131(1)(a), (b) or (c).
Annotations:
Amendments:
F57
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 166, S.I. No. 12 of 2016.
134.
Transmission of periodical payments through District Court clerk.
134.—
Notwithstanding anything in this Part, section 50 applies in relation to a maintenance pending suit order, a periodical payments order
or a secured periodical payments order, or one of those orders affected by an order
under section 131, with all necessary modifications, including—
(a)
the reference in section 50(4) to the maintenance creditor shall be construed as a reference to the person to whom
payments under the relevant order are required to be made;
(b)
the other references in section 50 to the maintenance creditor shall be construed as references to the person on whose
application the relevant order was made; and
(c)
the references in section 50(3) to the maintenance debtor shall be construed as a reference to the person by whom
payments under the relevant order are required to be made.
135.
Application of maintenance pending suit and periodical payment orders to certain members
of Defence Forces.
135.—
(1)
The reference in section 98(1)(h) of the Defence Act 1954 to an order for payment of alimony shall be construed as including a reference to
a maintenance pending suit order, periodical payments order or secured periodical
payments order made under this Act.
(2)
The references in section 99 of the Defence Act 1954 to a wife shall be construed as including a reference to a civil partner within the
meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
136.
Amendment of Enforcement of Court Orders Act 1940.
136.—
The references in subsections (1) and (7) of section 8 of the Enforcement of Court Orders Act 1940 to an order shall be construed as including references to a maintenance order, a
variation order, a maintenance pending suit order and a periodical payments order
made under this Act.
137.
Powers of court in relation to transactions intended to prevent or reduce relief.
137.—
(1)
In this section—
“disposition” means a disposition of property, other than a disposition by will or codicil;
“relief” means the financial or other material benefits conferred by an order under section 116, 117, 118, 119(1)(a), (b) or (c), 120,121 to 126, 127, or 131 (other than an order affecting an order referred to in section 131(1)(e)), and references to defeating a claim for relief are references to—
[(a) preventing the relief being granted to the person concerned, whether for the benefit
of the person or of a dependent child of the civil partners concerned,]
(b)
limiting the relief granted, or
(c)
frustrating or impeding the enforcement of an order granting relief;
“reviewable disposition”, in relation to proceedings for the grant of relief brought by a civil partner, means
a disposition made by the other civil partner or another person, but does not include
a disposition made for valuable consideration (other than on registration in a new
civil partnership or marriage) to a person who, at the time of the disposition, acted
in good faith and without notice of an intention on the part of the other civil partner
to defeat the claim for relief.
(2)
The court, on application made by a person who makes it during the proceedings instituted
for the grant of relief, may—
(a)
if satisfied that the other civil partner concerned or another person, with the intention
of defeating the claim for relief, proposes to make a disposition of or transfer out
of the jurisdiction or otherwise deal with property, make the order that it thinks
fit for the purpose of restraining the other civil partner or person from doing so
or otherwise for protecting the claim, or
(b)
if satisfied that the other civil partner or person has, with that intention, made
a reviewable disposition and that, if the disposition were set aside, relief or different
relief would be granted to the applicant,
make an order setting aside the disposition.
(3)
Where the court has granted relief and the court is satisfied that the other civil
partner or person has, with the intention referred to in subsection (2)(a), made a reviewable disposition, it may make an order setting aside the disposition.
(4)
A court that makes an order under subsection
(2) or
(3) shall include in the order any provisions that it considers necessary for the implementation
of the order, including provisions requiring the making of any payments or the disposal
of any property.
(5)
In proceedings on an application made under subsection
(2) or
(3) with respect to a disposition that took place less than 3 years before the date of
the application or with respect to a disposition or other dealing with property that
is proposed to be made, there is a presumption, unless the contrary is shown, that
the other civil partner or person disposed of or otherwise dealt with the property
or proposes to do so with the intention of defeating the applicant’s claim for relief if—
(a)
in a case referred to in subsection (2)(a), the disposition or other dealing would, apart from this section, have that consequence,
or
(b)
in any other case, the disposition has had that consequence.
(6)
An application shall not be made for an order setting aside a disposition by reason
only of subsection (2)(b) or (3) after the expiration of 6 years from the date of the disposition.
Annotations:
Amendments:
F58
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 167, S.I. No. 12 of 2016.
138.
Cost of mediation and counselling services.
138.—
The costs of mediation services or counselling services provided for a civil partner
who is or becomes party to proceedings [under this Part or under the Act of 1964, or for a dependent child of the civil partners
of such a civil partner] are in the discretion of the court.
Annotations:
Amendments:
F59
Substituted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 168, S.I. No. 12 of 2016.
Annotations:
Editorial Notes:
E21
Certain gifts or inheritances taken by virtue or in consequence of order made under
Part confirmed
exempt from capital acquisitions tax by Capital Acquisitions Tax Consolidation Act
2003 (1/2003), s. 88A, as inserted (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); and as amended (31.03.2012)
by Finance Act 2012 (9/2012), s. 107 and sch. 3 item 31, commenced on enactment.
171.
171.—
In this Part—
“cohabitant” has the meaning assigned to it in section 172;
“court” means the High Court, the Circuit Court or the District Court;
“dependent child”, in relation to a cohabitant or a couple of cohabitants, means any child of whom
both the cohabitants are the parents and who is—
(a)
under the age of 18 years, or
(b)
18 years of age or over and is—
(i)
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)
incapable of taking care of his or her own needs because of a mental or physical disability.
172.
Cohabitant and qualified cohabitant.
172.—
(1)
For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same
or the opposite sex) who live together as a couple in an intimate and committed relationship
and who are not related to each other within the prohibited degrees of relationship
or married to each other or civil partners of each other.
(2)
In determining whether or not 2 adults are cohabitants, the court shall take into
account all the circumstances of the relationship and in particular shall have regard
to the following:
(a)
the duration of the relationship;
(b)
the basis on which the couple live together;
(c)
the degree of financial dependence of either adult on the other and any agreements
in respect of their finances;
(d)
the degree and nature of any financial arrangements between the adults including any
joint purchase of an estate or interest in land or joint acquisition of personal property;
(e)
whether there are one or more dependent children;
(f)
whether one of the adults cares for and supports the children of the other; and
(g)
the degree to which the adults present themselves to others as a couple.
(3)
For the avoidance of doubt a relationship does not cease to be an intimate relationship
for the purpose of this section merely because it is no longer sexual in nature.
(4)
For the purposes of this section, 2 adults are within a prohibited degree of relationship
if—
(a)
they would be prohibited from marrying each other in the State, or
(b)
they are in a relationship referred to in the Third Schedule to the Civil Registration Act 2004 inserted by section 26 of this Act.
(5)
For the purposes of this Part, a qualified cohabitant means an adult who was in a
relationship of cohabitation with another adult and who, immediately before the time
that that relationship ended, whether through death or otherwise, was living with
the other adult as a couple for a period—
(a)
of 2 years or more, in the case where they are the parents of one or more dependent
children, and
(b)
of 5 years or more, in any other case.
(6)
Notwithstanding subsection
(5), an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant
if—
(a)
one or both of the adults is or was, at any time during the relationship concerned,
an adult who was married to someone else, and
(b)
at the time the relationship concerned ends, each adult who is or was married has
not lived apart from his or her spouse for a period or periods of at least 4 years
during the previous 5 years.
173.
Application for redress in respect of economically dependent qualified cohabitant.
173.—
(1)
A qualified cohabitant may, subject to any agreement under section 202, apply to the court, on notice to the other cohabitant, for an order under sections
174
, 175
and 187
or any of them.
(2)
If the qualified cohabitant satisfies the court that he or she is financially dependent
on the other cohabitant and that the financial dependence arises from the relationship
or the ending of the relationship, the court may, if satisfied that it is just and
equitable to do so in all the circumstances, make the order concerned.
(3)
In determining whether or not it is just and equitable to make an order in all the
circumstances, the court shall have regard to—
(a)
the financial circumstances, needs and obligations of each qualified cohabitant existing
as at the date of the application or which are likely to arise in the future,
(b)
subject to subsection
(5), the rights and entitlements of any spouse or former spouse,
(c)
the rights and entitlements of any civil partner or former civil partner,
(d)
the rights and entitlements of any dependent child or of any child of a previous relationship
of either cohabitant,
(e)
the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the
degree of commitment of the parties to one another,
(f)
the contributions that each of the cohabitants made or is likely to make in the foreseeable
future to the welfare of the cohabitants or either of them including any contribution
made by each of them to the income, earning capacity or property and financial resources
of the other,
(g)
any contributions made by either of them in looking after the home,
(h)
the effect on the earning capacity of each of the cohabitants of the responsibilities
assumed by each of them during the period they lived together as a couple and the
degree to which the future earning capacity of a qualified cohabitant is impaired
by reason of that qualified cohabitant having relinquished or foregone the opportunity
of remunerative activity in order to look after the home,
(i)
any physical or mental disability of the qualified cohabitant, and
(j)
the conduct of each of the cohabitants, if the conduct is such that, in the opinion
of the court, it would be unjust to disregard it.
(4)
The court may order that notice be given to any other person that it specifies and
may hear the other person on the terms and in respect of the matters it thinks fit
in the interests of justice before making an order referred to in this section.
(5)
The court shall not make an order referred to in this section in favour of a qualified
cohabitant that would affect any right of any person to whom the other cohabitant
is or was married.
(6)
The court may, on the application of the qualified cohabitant or the other cohabitant,
if it considers it proper to do so having regard to any change in the circumstances
of the case and to any new evidence, including any change in the circumstances occasioned
by a variation by another order of the court made in favour of a person to whom the
other cohabitant is or was married, by order—
(a)
vary or discharge an order under section 175 or 187
,
(b)
suspend any provision of such an order,
(c)
suspend temporarily any provision of such an order,
(d)
revive the operation of a suspended provision,
(e)
further vary an order previously varied under this section, or
(f)
further suspend or revive the operation of a provision previously suspended or revived
under this section.
(7)
Where the court makes an order under section 174, 175
(1)(c) or 187
in favour of a qualified cohabitant, the court may, in the same proceedings or at
any later date, on the application of either of the qualified cohabitants concerned,
order that either or both of them shall not, on the death of the other, be entitled
to apply for an order under section 194.
(8)
If the order under section 174, 175
(1)(c) or 187
referred to in subsection
(7) has been made but not yet executed at the time that the order is made under subsection
(7), the order under subsection
(7) shall not take effect until the execution of that other order.
174.
Property adjustment orders.
174.—
(1)
An order under this section may provide for one or more of the following matters:
(a)
the transfer by either of the cohabitants to or for the benefit of the other, of specified
property in which the cohabitant has an interest either in possession or reversion;
(b)
the settlement to the satisfaction of the court of specified property in which the
cohabitant has an interest either in possession or reversion, for the benefit of the
other cohabitant or of a dependent child;
(c)
the variation for the benefit of either of the cohabitants or of a dependent child
of an agreement referred to in section 202 (subject to section 202(4)) or another settlement (including one made by will or codicil) made on the cohabitants;
and
(d)
the extinguishment or reduction of the interest of either of the cohabitants under
an agreement referred to in section 202 (subject to section 202(4)).
(2)
Before making an order under this section, the court shall have regard to whether
in all the circumstances it would be practicable for the financial needs of the qualified
cohabitant to be met by an order made under section 175 or 187, having regard to all the circumstances, including the likelihood of a future change
of circumstances of either of the qualified cohabitants.
Annotations:
Editorial Notes:
E22
Certain property transfers between civil partners pursuant to an order under section
exempted from stamp duty by Stamp Duties Consolidation
Act 1999 (31/1999), s. 97A; as inserted (1.01.2011) by Finance (No.
3) Act 2011 (18/2011), s. 2 and sch. 2 item 11, commenced as per s. 5(8)(d); and as amended (31.03.2012)
by Finance Act 2012 (9/2012), s. 107 and sch. 3 item 31, commenced on enactment.
175.
Compensatory maintenance orders.
175.—
(1)
The court, on application to it in that behalf by the qualified cohabitant, may, during
the lifetime of either of the cohabitants, make one or more of the following orders:
(a)
an order that either of the cohabitants make to the other the periodical payments
in the amounts, during the period and at the times that may be specified in the order;
(b)
an order that either of the cohabitants secure to the other, to the satisfaction of
the court, the periodical payments of the amounts, during the period and at the times
that may be specified in the order; and
(c)
an order that either of the cohabitants make to the other a lump sum payment or lump
sum payments of the amount or amounts and at the time or times that may be specified
in the order.
(2)
The court may order a qualified cohabitant to pay a lump sum to the other qualified
cohabitant to meet any liabilities or expenses reasonably incurred by the other qualified
cohabitant in maintaining himself or herself before the making of an application by
the other qualified cohabitant for an order under subsection
(1).
(3)
An order under this section for the payment of a lump sum may provide for the payment
of the lump sum by instalments of the amounts that may be specified in the order and
may require the payment of the instalments to be secured to the satisfaction of the
court.
(4)
The period specified in an order under subsection
(1)(a) or
(b) shall begin not earlier than the date of the application for the order and shall
end not later than the date of death of the first qualified cohabitant to die.
(5)
An order made under subsection
(1)(a) or
(b) ceases to have effect on the marriage or registration in a civil partnership, or
in a legal relationship that is the subject of an order under section 5, of the qualified cohabitant in whose favour the order was made, except as respects
payments due under it on the date of the marriage or registration.
(6)
The court shall not make an order under this section in favour of a qualified cohabitant
who has married or registered in a civil partnership, or in a legal relationship that
is the subject of an order under section 5.
(7)
The court that makes an order under subsection
(1)(a) shall, in the same proceedings, make an attachment of earnings order under section 176 to secure payments under the order if it is satisfied, after taking into consideration
any representations on the matter made to it by the qualified cohabitant ordered to
make payments under that subsection, that—
(a)
the order is desirable to secure payments under an order under subsection
(1)
(a) and any variations and affirmations of that order, and
(b)
the person against whom the attachment of earnings order is made is a person to whom
earnings fall to be paid.
176.
Attachment of earnings order.
176.—
(1)
For the purposes of this section and sections
177
to 186
—
“antecedent order” means an order under section 175;
“attachment of earnings order” means an order directing that an employer deduct from the maintenance debtor’s earnings, at the times specified in the order, periodical deductions of the appropriate
amounts specified in the order, having regard to the normal deduction rate and the
protected earnings rate;
“employer” includes a trustee of a pension scheme under which the maintenance debtor is receiving
periodical pension benefits;
“maintenance creditor” in relation to an attachment of earnings order, means the qualified cohabitant who
applied for the order;
“maintenance debtor” means a qualified cohabitant who is required by an antecedent order to make payments;
“normal deduction rate” means the rate at which the court considers it reasonable that the earnings to which
the attachment of earnings order relates should be applied in satisfying an antecedent
order, not exceeding the rate that appears to the court to be necessary for—
(a)
securing payment of the sums falling due from time to time under the antecedent order,
and
(b)
securing payment within a reasonable period of any sums already due and unpaid under
the antecedent order and any costs incurred in proceedings relating to the antecedent
order payable by the maintenance debtor;
“protected earnings rate” means the rate below which, having regard to the needs of the maintenance debtor,
the court considers it proper that the relevant earnings should not be reduced by
a payment made in pursuance of the attachment of earnings order.
(2)
The court may, on application to it in that behalf, make an attachment of earnings
order if it is satisfied that the maintenance debtor is a person to whom earnings
fall to be paid and that the order is desirable to secure payments under the antecedent
order and any amendments, variations and affirmations of it.
(3)
The court that makes an antecedent order, or an order that makes, varies or affirms
on appeal an antecedent order, shall make an attachment of earnings order in the same
proceedings if it is satisfied of the things mentioned in subsection
(2).
(4)
A person to whom an attachment of earnings order is directed shall pay the amounts
ordered to be deducted to the maintenance creditor or to the District Court clerk
specified in the order for transmission to the maintenance creditor.
(5)
Before deciding whether to make or refuse to make an attachment of earnings order,
the court shall give the maintenance debtor an opportunity to make representations,
and shall have regard to any representations made, relating to whether the maintenance
debtor—
(a)
is a person to whom earnings fall to be paid, and
(b)
would make the payments to which the relevant order relates.
(6)
The court shall include in an attachment of earnings order the particulars required
so that the person to whom the order is directed may identify the maintenance debtor.
(7)
Payments under an attachment of earnings order are in lieu of payments of the like
amount under the antecedent order that have not been made and that, but for the attachment
of earnings order, would fall to be made under the antecedent order.
177.
Compliance with attachment of earnings order.
177.—
(1)
The court registrar or court clerk specified in the attachment of earnings order shall
cause the order to be served on the person to whom it is directed and on any person
who subsequently becomes the maintenance debtor’s employer and of whom the registrar or clerk becomes aware.
(2)
The service may be effected by leaving the order or a copy of it at the person’s residence or place of business in the State, or by sending the order or a copy of
it, by registered prepaid post, to that residence or place of business.
(3)
A person to whom an attachment of earnings order is directed shall comply with it
if it is served on him or her but is not liable for non-compliance before 10 days
have elapsed since the service.
(4)
If a person to whom an attachment of earnings order is directed is not the maintenance
debtor’s employer or ceases to be the maintenance debtor’s employer, the person shall, within 10 days from the service or the date of cesser,
give notice of that fact to the court.
(5)
The person shall give to the maintenance debtor a statement in writing of the total
amount of every deduction made from a maintenance debtor’s earnings in compliance with an attachment of earnings order.
178.
Application of sums received by clerk.
178.—
Payments made to a court clerk under an attachment of earnings order shall, when transmitted
by the clerk to the maintenance creditor, be deemed to be payments made by the maintenance
debtor so as to discharge—
(a)
firstly, any sums payable under the antecedent order, and
(b)
secondly, any costs in proceedings relating to the antecedent order payable by the
maintenance debtor when the attachment of earnings order was made or last varied.
179.
Statement as to earnings.
179.—
(1)
In relation to an attachment of earnings order or an application for one, the court
may, before or at the hearing or while the order is in force, order—
(a)
the maintenance debtor to give to the court, within a specified period, a signed statement
in writing specifying—
(i)
the name and address of every employer of the maintenance debtor,
(ii)
particulars as to the debtor’s earnings and expected earnings, and resources and needs, and
(iii)
particulars for enabling the employers to identify the maintenance debtor,
(b)
a person appearing to the court to be an employer of the maintenance debtor to give
to the court, within a specified period, a statement signed by the person, or on his
or her behalf, of specified particulars of the debtor’s earnings and expected earnings.
(2)
Notice of an application for an attachment of earnings order served on a maintenance
debtor may include a requirement that the maintenance debtor give to the court, within
the period and in the manner specified in the notice, a statement in writing of the
matters referred to in subsection
(1)(a) and of any other matters which are or may be relevant to the determination of the
normal deduction rate and the protected earnings rate to be specified in the order.
(3)
In any proceedings in relation to an attachment of earnings order, a statement given
to the court in compliance with an order under paragraph
(a) or
(b) of subsection
(1) or with a requirement under subsection
(2) is admissible as evidence of the facts stated in it and a document purporting to
be such a statement is deemed, unless the contrary is shown, to be a statement so
given.
180.
Notification of changes of employment and earnings.
180.—
Where an attachment of earnings order is in force—
(a)
the maintenance debtor shall notify in writing the court that made the order of every
occasion on which he or she leaves employment, or becomes employed or re-employed,
not later than 10 days after doing so,
(b)
the maintenance debtor shall, on any occasion on which he or she becomes employed
or re-employed, include in the notification particulars of his or her earnings and
expected earnings, and
(c)
any person who becomes an employer of the maintenance debtor and who knows that the
order is in force and by which court it was made shall, within 10 days of the later
of the date of becoming an employer of the maintenance debtor and the date of acquiring
the knowledge, notify the court in writing that he or she has become an employer,
and include in the notification a statement of the debtor’s earnings and expected earnings.
181.
Power to determine whether particular payments are earnings.
181.—
(1)
Where an attachment of earnings order is in force, the court that made the order shall,
on the application of the maintenance debtor’s employer, the maintenance debtor or the person to whom payments are being made under
the order, determine whether payments or portions of payments being made to the maintenance
debtor that are of a class or description specified in the application are earnings
for the purpose of the order.
(2)
Where an application is made by the employer under subsection
(1), the employer is not liable for non-compliance with the order as respects any payments
or portions of payments of the class or description specified by the application that
he or she makes while the application, a determination in relation to it or an appeal
from the determination is pending.
(3)
Subsection
(2) does not apply if the employer subsequently withdraws the application or abandons
the appeal.
182.
Persons in service of State, local authority, etc.
182.—
(1)
This section applies when a maintenance debtor is in the service of the State, a local
authority within the meaning of the Local Government Act 1941, a harbour authority within the meaning of the Harbours Acts 1946 to 2005, the Health
Service Executive, [an education and training board], a committee of agriculture established by the Agriculture Act 1931, or another body if his or her earnings are paid directly out of moneys paid by the
Oireachtas or from the Central Fund, or is a member of either House of the Oireachtas.
(2)
For the purposes of sections
176
to 186
, the following officers are regarded as being the employers of the maintenance debtor
and the earnings paid to the maintenance debtor out of the Central Fund or out of
moneys provided by the Oireachtas are regarded as having been paid by them:
(a)
in the case where the maintenance debtor is employed in a department, office, organisation,
service, undertaking or other body, its chief officer, or any other officer that may
be designated from time to time by the Minister of the Government by whom that body
is administered;
(b)
in the case where the maintenance debtor is in the service of an authority or body,
its chief officer; and
(c)
in any other case, where the maintenance debtor is paid out of the Central Fund or
out of moneys provided by the Oireachtas, the Secretary of the Department of Finance
or any other officer that may be designated from time to time by the Minister for
Finance.
(3)
A question that arises in proceedings for or arising out of an attachment of earnings
order as to which body employs a maintenance debtor may be referred to and determined
by the Minister for Finance, but he or she is not obliged to consider the reference
unless it is made by the court.
(4)
A document purporting to contain a determination by the Minister for Finance under
subsection
(3) and to be signed by an officer of that Minister shall, in any proceedings mentioned
in that subsection, be admissible in evidence and be deemed, unless the contrary is
shown, to contain an accurate statement of that determination.
Annotations:
Amendments:
F65
Substituted (1.07.2013) by Education and Training Boards Act 2013 (11/2013), s. 72(1) and sch. 6 item 56, S.I. No. 211 of 2013.
183.
Discharge, variations and lapse of attachment of earnings order.
183.—
(1)
The court that made an attachment of earnings order may, if it thinks fit, on the
application of the maintenance creditor, the maintenance debtor or the clerk on whose
application the order was made, make an order discharging or varying that order.
(2)
The employer on whom an order varying an attachment of earnings order is served shall
comply with it but is not liable for non-compliance before 10 days have elapsed since
the service.
(3)
If an employer affected by an attachment of earnings order ceases to be the maintenance
debtor’s employer, the order lapses insofar as that employer is concerned, except as respects
deductions from earnings paid by the employer after the cesser and payment to the
maintenance creditor of deductions from earnings made at any time by that employer.
(4)
The lapse of an order under subsection
(3) does not prevent its remaining in force for other purposes.
184.
Cesser of attachment of earnings order.
184.—
(1)
An attachment of earnings order ceases to have effect upon the discharge of the relevant
antecedent order, except as regards payments under the attachment of earnings order
in respect of any time before the date of the discharge.
(2)
The clerk or registrar of the court that made the attachment of earnings order shall
give notice of a cesser to the employer.
185.
185.—
(1)
Where an attachment of earnings order has been made, any proceedings commenced under
subsection (1) of section 8 of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order lapses and any warrant or order
issued or made under that subsection ceases to have effect.
(2)
An attachment of earnings order ceases to have effect on the making of an order under
section 8 of the Enforcement of Court Orders Act 1940 for the enforcement of the relevant antecedent order.
186.
186.—
(1)
A maintenance creditor who fails to obtain a sum of money due under an attachment
of earnings order, or the clerk to whom the sum falls to be paid, may sue for the
sum as a simple contract debt in any court of competent jurisdiction, if the failure
to obtain the sum is caused by—
(a)
a person failing, without reasonable excuse, to comply with section 177(3) or
(4), or 180
, or an order under section 179 or 183
(2), or
(b)
a person, without reasonable excuse, giving a false or misleading statement under
section 179(1) or notification under section 180.
(2)
A person who gives to a court a statement pursuant to section 179 or a notification under section 180 that he or she knows to be false or misleading commits an offence and is liable on
summary conviction to [a class C fine] or to imprisonment for a term not exceeding six months or to both.
(3)
A person who contravenes section 177(3) commits an offence and is liable on summary conviction to [a class E fine].
Annotations:
Amendments:
F66
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(d)(i), commenced on enactment.
F67
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(d)(ii), commenced on enactment.
187.
Pension adjustment orders.
187.—
(1)
In this section and sections
188
to 192—
“Act of 1990” means the Pensions Act 1990;
“active member” in relation to a scheme, means a member of the scheme who is in reckonable service;
“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision
for any revaluation of the benefit) under a scheme calculated by reference to appropriate
financial assumptions and making due allowance for the probability of survival to
normal pensionable age and beyond in accordance with normal life expectancy on the
assumption that the member, at the effective date of calculation, is in a normal state
of health having regard to his or her age;
“approved arrangement”, in relation to the trustees of a scheme, means an arrangement whereby the trustees,
on behalf of the person for whom the arrangement is made, effect policies or contracts
of insurance that are approved of by the Revenue Commissioners with, and make the
appropriate payments under the policies or contracts to, one or more undertakings;
“contingent benefit” means a benefit payable under a scheme, other than a payment under section 189(4), to or for the benefit of the surviving qualified cohabitant (if the scheme so permits)
or to or for the benefit of, any dependants of the member qualified cohabitant or
the personal representative of the member qualified cohabitant, if the member qualified
cohabitant dies while in relevant employment and before attaining any normal pensionable
age provided for under the rules of the scheme;
“defined contribution scheme” has the meaning assigned to it by section 2(1) (as amended by section 29(1)(a)(ii) of the Social Welfare and Pensions Act 2008) of the Act of 1990;
“designated benefit” in relation to a pension adjustment order, means an amount determined by the trustees
of a scheme, in accordance with relevant guidelines and by reference to the period
and the percentage of the retirement benefit specified in an order under subsection
(2);
“member qualified cohabitant” in relation to a scheme, means a qualified cohabitant who is a member of the scheme;
“normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits
under the rules of the scheme on retirement from relevant employment, disregarding
any rules providing for early retirement on grounds of ill health or otherwise;
“occupational pension scheme” has the meaning assigned to it by section 2(1) of the Act of 1990;
“reckonable service” means service in relevant employment during membership in any scheme;
“relevant guidelines” means any relevant guidelines for the time being in force under section 10(1)(c) or (cc) (as amended by section 5 of the Pensions (Amendment) Act 1996, section 47(c) of the Family Law (Divorce) Act 1996, section 13(b) of the Pensions (Amendment) Act 2002 and section 37 of the Social Welfare and Pensions Act 2007) of the Act of 1990;
“relevant employment” in relation to a scheme, means any employment, or any period treated as employment,
or any period of self-employment to which a scheme applies;
“retirement benefit”, in relation to a scheme, means all benefits, other than contingent benefits, payable
under the scheme;
“rules”, in relation to a scheme, means the provisions of the scheme by whatever name called;
“scheme” means—
(a)
an occupational pension scheme within the meaning of the Pensions Act 1990,
(b)
an annuity contract approved by the Revenue Commissioners under section 784 of the Taxes Consolidation Act 1997, or a contract so approved under section 785 of that Act,
(c)
a trust scheme, or part of a trust scheme, approved under section 784(4) or 785(5)
of that Act,
(d)
a policy or contract of assurance approved by the Revenue Commissioners under Chapter
1 of Part 30 of the Taxes Consolidation Act 1997, or
(e)
another scheme or arrangement, including a personal pension plan and a scheme or arrangement
established by or pursuant to statute or instrument made under statute other than
under the Social Welfare Acts, that provides or is intended to provide either or both
of the following:
(i)
benefits for a person who is a member of the scheme or arrangement upon retirement
at normal pensionable age or upon earlier or later retirement or upon leaving or upon
the ceasing of the relevant employment, and
(ii)
benefits for the widow, widower or dependants of the person referred to in subparagraph
(i), for his or her civil partner or the person that was his or her civil partner until
the death of the person referred to in subparagraph
(i), for his or her qualified cohabitant or the person that was his or her qualified
cohabitant until the death of the person referred to in subparagraph
(i) or for any other persons, on the death of that person;
“transfer amount” shall be construed in accordance with subsection
(4);
“undertaking” has the same meaning as “‘insurance undertaking’ or ‘undertaking’” in section 2(1) (as inserted by section 3(1) of the Insurance Act 2000) of the Insurance Act 1989.
(2)
The court, on application to it in that behalf by either of the qualified cohabitants,
may, during the lifetime of a member qualified cohabitant, make an order providing
for the payment, in accordance with this section and sections 188 to 192, to the other qualified cohabitant of a benefit consisting of the part of the benefit
that is payable under the scheme and has accrued at the time of the making of the
order, or of the part of that part, that the court considers appropriate.
(3)
The order under subsection
(2) shall specify—
(a)
the period of reckonable service of the member qualified cohabitant to be taken into
account, and
(b)
the percentage of the retirement benefit accrued during the period to be paid to the
other qualified cohabitant.
(4)
Where the court makes an order under subsection
(2) in favour of a qualified cohabitant and payment of the designated benefit concerned
has not commenced, the qualified cohabitant is entitled to the application in accordance
with section 189(1) of an amount of money from the scheme (in this subsection referred to as a “transfer
amount”) equal to the value of the designated benefit as determined by the trustees of the
scheme in accordance with relevant guidelines.
(5)
The court, on application to it in that behalf by either of the qualified cohabitants,
may make an order providing for the payment, on the death of the member qualified
cohabitant, to the other qualified cohabitant of that part of a contingent benefit
that is payable under the scheme, or of the part of that part, that the court considers
appropriate.
(6)
In deciding whether or not to make a pension adjustment order, the court shall have
regard to whether proper provision, having regard to the circumstances, exists or
can be made for the qualified cohabitant who is not a member under section 175.
188.
Procedural provisions respecting pension adjustment orders.
188.—
(1)
A person who makes an application under section 187(2) or
(5) shall give notice of the application to the trustees of the scheme. The court shall,
in deciding whether to make the order and in determining the provisions of the order,
have regard to representations made by the persons to whom notice has been given under
this section.
(2)
An order referred to in subsection
(1) ceases to have effect on the entry into a civil partnership, marriage or death of
the person in whose favour the order was made.
(3)
The court may, in making an order referred to in subsection
(1), give to the trustees of the scheme any directions that it considers appropriate,
including a direction that would require the trustees not to comply with the rules
of the scheme or the Act of 1990.
(4)
Notwithstanding subsection
(3), a direction given under that subsection shall not permit a payment under section 187(5) unless the scheme concerned expressly provides for payments of contingent benefits
to cohabitants.
(5)
The registrar or clerk of the court that makes an order referred to in subsection
(1) shall cause a copy of the order to be served on the trustees of the scheme.
189.
Rules respecting payments under schemes.
189.—
(1)
Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, where the conditions set out in subsection
(2) are present, apply, in accordance with relevant guidelines, the transfer amount calculated
in accordance with those guidelines—
(a)
if the trustees and the qualified cohabitant so agree, in providing a benefit for
or in respect of the qualified cohabitant that is of the same actuarial value as the
transfer amount, or
(b)
in making a payment, at the option of the qualified cohabitant—
(i)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(ii)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(2)
The conditions referred to in subsection
(1) are:
(a)
the court has made an order under section 187(2) in favour of the qualified cohabitant;
(b)
payment of the designated benefit has not commenced;
(c)
the qualified cohabitant has applied to the trustees in that behalf; and
(d)
the qualified cohabitant furnishes the information that the trustees require.
(3)
Subject to section 190(4), trustees of a defined contribution scheme in respect of which an order has been
made under section 187(2) may, if the qualified cohabitant has not made an application under subsections
(1) and
(2), apply in accordance with relevant guidelines the transfer amount calculated in accordance
with those guidelines to make a payment, at their option—
(a)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(b)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(4)
Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of a member qualified cohabitant who dies before
the payment of the designated benefit has commenced, provide for the payment to the
other qualified cohabitant of an amount that is equal to the transfer amount calculated
in accordance with relevant guidelines.
(5)
Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) may, if the member qualified cohabitant ceases to be a member otherwise than on death,
apply, in accordance with relevant guidelines, the transfer amount under the scheme,
at their option—
(a)
if the trustees and the other qualified cohabitant so agree, in providing a benefit
for or in respect of that qualified cohabitant that is of the same actuarial value
as the transfer amount, or
(b)
in making a payment, either—
(i)
to another occupational pension scheme whose trustees agree to accept the payment,
or
(ii)
to discharge another payment falling to be made by the trustees under any such other
approved arrangement.
(6)
Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of the qualified cohabitant who is not the member
and who dies before payment of the designated benefit has commenced, provide for the
payment to the personal representative of that qualified cohabitant of an amount that
is equal to the transfer amount calculated in accordance with relevant guidelines.
(7)
Subject to section 190(4), the trustees of a scheme in respect of which an order has been made under section 187(2) shall, within 3 months of the death of the qualified cohabitant who is not the member
and who dies after payment of the designated benefit has commenced, provide for the
payment to the personal representative of that qualified cohabitant of an amount that
is equal to the actuarial value, calculated in accordance with relevant guidelines,
of the part of the designated benefit that, but for the death of that qualified cohabitant,
would have been payable to him or her during his or her lifetime.
(8)
The trustees of a scheme in respect of which an order has been made under section 187(2) or
(5) shall, within 12 months of the member qualified cohabitant’s ceasing to be a member, notify the registrar or clerk of the court and the other
qualified cohabitant of the cessation, if the trustees have not applied the transfer
amount in accordance with any of subsections
(1) to
(6).
(9)
The trustees of a scheme who apply a transfer amount under subsection
(3) or
(5) shall notify the qualified cohabitant who is not the member and the registrar or
clerk of the court, giving particulars to that qualified cohabitant of the scheme
and the transfer amount.
190.
Payments further to orders under section 187
.
190.—
(1)
A benefit payable pursuant to an order made under section 187(2), or a contingent benefit payable pursuant to an order made under section 187(5), is payable out of the resources of the scheme and, unless the order or relevant
guidelines provide otherwise, in accordance with the rules of the scheme and those
guidelines.
(2)
The amount of retirement benefit payable to the member qualified cohabitant, or the
amount of contingent benefit payable to or in respect of the member qualified cohabitant,
in accordance with the rules of the relevant scheme shall be reduced by the designated
benefit or contingent benefit payable pursuant to an order made under section 187(2) or (5), as the case may be, to the other qualified cohabitant.
(3)
The amount of contingent benefit payable in accordance with the rules of the scheme
in respect of a member qualified cohabitant who dies before the payment of the designated
benefit payable pursuant to an order under section 187(2) has commenced shall be reduced by the amount of the payment made under section 189(4).
(4)
Trustees who make a payment or apply a transfer amount under any of subsections
(1) to (7) of section 189 are discharged from any obligation to make further payment or apply another transfer
amount under any of those subsections in respect of the benefit payable pursuant to
the order made under section 187(2).
(5)
A trustee is not liable for any loss or damage caused by complying with a direction
referred to in section 188(3) rather than the rules of the scheme or the Act of 1990.
191.
191.—
(1)
The court may determine the manner in which the costs incurred by the trustees of
a scheme further to an order under section 187 are to be borne, including by one or the other of the qualified cohabitants or by
both of them in the proportions that the court may determine, and in default of a
determination, the qualified cohabitants shall bear those costs equally.
(2)
The court may, on application to it by the trustees, order that an amount ordered
to be paid by a qualified cohabitant under subsection
(1) that has not been paid be deducted from any benefits payable to the qualified cohabitant—
(a)
pursuant to an order made under section 187, if the qualified cohabitant is the beneficiary of the order; and
(b)
pursuant to the scheme, if the qualified cohabitant is the member qualified cohabitant.
192.
Value of benefit calculation.
192.—
For the purposes of this section and sections
187
to 191
, the court may, of its own motion, and shall, if so requested by either of the qualified
cohabitants or another concerned person, direct the trustees of the scheme to provide
the qualified cohabitants or the other person and the court, within a specified period
of time—
(a)
with a calculation of the value and amount, determined in accordance with relevant
guidelines, of the retirement benefit or contingent benefit that is payable or that
would have been payable under the scheme and has accrued at the time of making the
order, and
(b)
with a calculation of the amount of the contingent benefit that is payable or that
would have been payable, under the scheme.
193.
Mediation and other alternatives to proceedings.
193.—
(1)
The court may adjourn or further adjourn proceedings under section 173 at any time for the purpose of enabling the cohabitants to attempt, if they both
so wish, with or without the assistance of a third party—
(a)
to reconcile, or
(b)
to reach agreement on some or all of the terms of a possible settlement between them.
(2)
Either or both of the cohabitants may at any time request that the hearing of proceedings
adjourned under subsection
(1) be resumed as soon as may be and, if a request is made, the court shall, subject
to any other power of the court to adjourn proceedings, resume the hearing.
(3)
The powers conferred by this section are additional to any other power of the court
to adjourn proceedings.
(4)
The court may, at its discretion when adjourning proceedings under this section, advise
the cohabitants to seek the assistance of a mediator or other third party in relation
to the cohabitants’ proposed reconciliation or reaching of an agreement between them on some or all of
the terms of a possible settlement.
194.
Application for provision from estate of deceased cohabitant.
194.—
(1)
A qualified cohabitant may, after the death of his or her cohabitant but not more
than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.
(2)
Notwithstanding subsection
(1), a qualified cohabitant shall not apply for an order under this section where the
relationship concerned ended 2 years or more before the death of the deceased, unless
the applicant—
(a)
was in receipt of periodical payments from the deceased, whether under an order made
under section 175 or pursuant to a cohabitants’ agreement or otherwise,
(b)
had, not later than 2 years after that relationship ended, made an application for
an order under section 174, 175
or 187
and either—
(i)
the proceedings were pending at the time of the death, or
(ii)
any such order made by the court had not yet been executed,
or
(c)
had, not later than 2 years after the relationship ended, made an application for
an order undersection 174, 175
or 187
, the order was made, an application under section 173(6) was subsequently made in respect of that order and either—
(i)
the proceedings in respect of that application were pending at the time of the death,
or
(ii)
any such order made by the court under section 173(6) in favour of the qualified cohabitant who is the applicant under this section had
not yet been executed.
(3)
The court may by order make the provision for the applicant that the court considers
appropriate having regard to the rights of any other person having an interest in
the matter, if the court is satisfied that proper provision in the circumstances was
not made for the applicant during the lifetime of the deceased for any reason other
than conduct by the applicant that, in the opinion of the court, it would in all the
circumstances be unjust to disregard.
(4)
In considering whether to make an order under this section, the court shall have regard
to all the circumstances of the case, including—
(a)
an order made under section 173(6), 174
, 175
or 187
in favour of the applicant,
(b)
a devise or bequest made by the deceased in favour of the applicant,
(c)
the interests of the beneficiaries of the estate, and
(d)
the factors set out in section 173(3).
(5)
The court shall not make an order under this section where the relationship concerned
ended before the death of the deceased and—
(a)
the court is not satisfied that the applicant is financially dependent on the deceased
within the meaning of section 173(2), or
(b)
the applicant has married or registered in a civil partnership, or in a legal relationship
of a class that is the subject of an order under section 5.
(6)
The applicant shall give notice of an application under this section to the personal
representative of the deceased, any spouse or civil partner of the deceased and to
any other persons that the court may direct and, in deciding whether to make the order
and in determining the provisions of the order, the court shall have regard to any
representations made by any of those persons.
(7)
The total value for the applicant of the provision made by an order referred to in
subsection
(4)(a) on the date on which that order was made and an order made under this section shall
not exceed any share of the applicant in the estate of the deceased qualified cohabitant
to which the applicant would have been entitled if the qualified cohabitants had been
spouses or civil partners of each other.
(8)
If the qualified cohabitant does not notify the personal representative as required
by subsection
(6), the personal representative may distribute the assets of the deceased qualified
cohabitant or any part of them amongst the persons entitled to them and is not liable
to the qualified cohabitant for that distribution.
(9)
Nothing in this section prejudices the rights of the qualified cohabitant to follow
assets into the hands of a person who has received them.
(10)
An order under this section shall not affect the legal right of a surviving spouse.
(11)
For the purposes of this section, “net estate”, with respect to the estate of a person, means the estate that remains after provision
for the satisfaction of—
(a)
other liabilities of the estate having priority over the rights referred to in paragraphs
(b) and
(c),
(b)
any rights, under the Succession Act 1965, of any surviving spouse of the person, and
(c)
any rights, under the Succession Act 1965, of any surviving civil partner of the person.
195.
195.—
Proceedings under this Part other than proceedings under sections
173
(6) and 194
, shall, save in exceptional circumstances, be instituted within 2 years of the time
that the relationship between the cohabitants ends, whether through death or otherwise.
196.
(I)
(II)
(I)
(II)
196.—
(1)
Subject to the other provisions of this section, the Circuit Court has concurrent
jurisdiction with the High Court to hear and determine applications for orders for
redress referred to in section 173 and orders for provision from the estates of deceased cohabitants under section 194.
(2)
The District Court, and the Circuit Court on appeal from the District Court, have
concurrent jurisdiction with the High Court to hear and determine applications for
orders for redress referred to in section 173 and orders for provision from the estates of deceased cohabitants under section 194, except that—
(a)
they do not have jurisdiction to make such an order for periodical payments at a rate
greater than €500 per week,
(b)
they do not have jurisdiction to make such an order in a matter in relation to which
the High Court has made such an order, and
(c)
the District Court does not have jurisdiction to make such an order in a matter in
relation to which the Circuit Court has made such an order otherwise than on appeal
from the District Court.
(3)
The court shall only exercise its jurisdiction to hear and determine an application
for an order for redress referred to in section 173 if both of the cohabitants concerned were ordinarily resident in the State throughout
the one-year period prior to the end of their relationship, and either of the cohabitants—
(a)
is domiciled in the State on the date on which the application is made, or
(b)
is ordinarily resident in the State throughout the one-year period that ends on that
date.
(4)
The court shall only exercise its jurisdiction to hear and determine an application
for an order for provision from the estate of a deceased cohabitant under section 194 if—
(a)
in the case where the relationship concerned ended before the death of the deceased,
each of the cohabitants concerned was ordinarily resident in the State throughout
the one-year period prior to the end of their relationship and—
(i)
each of the cohabitants concerned was ordinarily resident in the State throughout
the one-year period that ended on the date of the death of the deceased,
(ii)
on the date of the death of the deceased, the applicant was in receipt of periodical
payments from the deceased, whether under an order made under section 175 or pursuant to a cohabitants’ agreement or otherwise,
(iii)
the applicant had, not later than 2 years after that relationship ended, made an application
for an order under section 174, 175
or 187
and either—
(I)
the proceedings were pending at the time of the death, or
(II)
any such order made by the court had not yet been executed,
or
(iv)
the applicant had, not later than 2 years after the relationship ended, made an application
for an order under section 174, 175
or 187
, the order was made, an application under section 173(6) was subsequently made in respect of that order and either—
(I)
the proceedings were pending at the time of the death, or
(II)
any such order made by the court under section 173(6) in favour of the applicant had not yet been executed,
and
(b)
in any other case, each of the cohabitants concerned was ordinarily resident in the
State throughout the one-year period that ended on the date of the death of the deceased.
(5)
The jurisdiction conferred on the Circuit Court may be exercised by the judge of the
circuit in which a party to the application ordinarily resides or carries on a business,
profession or occupation.
(6)
The Circuit Court shall transfer, to the High Court, proceedings on applications for
orders for redress referred to in section 173, on application to it by a party to the application for the order concerned, if land
to which the proceedings relate—
(a)
has a rateable valuation that exceeds €254, or
(b)
has not been given a rateable valuation or is the subject with other land of a rateable
valuation, if the Circuit Court determines that the rateable valuation would exceed
€254.
(7)
An order made or act done in the course of the proceedings before a transfer under
subsection
(6) is valid unless discharged or varied by the High Court.
196A
[Orders under Family Law (Maintenance of Spouses and Children) Act 1976
196A. The court may, on the application of a party to proceedings under this Part, make
an order under section 5A or 5B of the Family Law (Maintenance of Spouses and Children) Act 1976, where applicable, in respect of the other party to the proceedings.]
Annotations:
Amendments:
F68
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 172, S.I. No. 12 of 2016.
197.
197.—
(1)
In proceedings under this Part, each of the qualified cohabitants shall give to the
other the particulars of his or her property or income that may be reasonably required
for the purposes of the proceedings.
(2)
The court may direct a person who fails or refuses to comply with subsection
(1) to comply with it.
(3)
A qualified cohabitant who fails or refuses to comply with subsection
(1) or a direction under subsection
(2) commits an offence and is liable on summary conviction to [a class C fine], or to imprisonment for a term not exceeding 6 months, or to both.
Annotations:
Amendments:
F69
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 61(e), commenced on enactment.
198.
198.—
(1)
Proceedings under this Part shall be as informal as is practicable and consistent
with the administration of justice.
(2)
A judge sitting to hear and determine proceedings under this Part, and a barrister
or solicitor appearing in the proceedings, shall not wear a wig or a gown.
199.
199.—
Subject to the provisions of section 40 of the Civil Liability and Courts Act 2004, proceedings under this Part shall be heard otherwise than in public.
Annotations:
Editorial Notes:
E23
Section included in definition of ‘relevant enactment’ for purposes of Civil Liability and Courts Act 2004 (31/2004), Part 3 Ch. 2, by Civil Liability and Courts Act 2004 (31/2004), s. 39, as amended (11.01.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013
(32/2013), s. 4, S.I. No. 5 of 2014.
200.
200.—
The costs in proceedings under this Part are at the discretion of the court.
201.
201.—
(1)
Rules of court shall provide for the documentation required for the commencement of
proceedings under this Part in a summary manner.
(2)
Rules of court may make provision, in cases where one or both of the parties to an
application under section 175 or 187
, or to an application to vary an order under one of those sections, is or was married,
for—
(a)
the adjournment of those proceedings or any proceedings for the financial support
of the person to whom the party is or was married,
(b)
the postponement of an order made under any of the proceedings referred to in paragraph
(a), or
(c)
any other procedure reasonably required in order to ensure that that party’s financial circumstances are taken into account in the proceedings.
202.
Validity of certain agreements between cohabitants.
202.—
(1)
Notwithstanding any enactment or rule of law, cohabitants may enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship
ends, whether through death or otherwise.
(2)
A cohabitants’ agreement is valid only if—
(a)
the cohabitants—
(i)
have each received independent legal advice before entering into it, or
(ii)
have received legal advice together and have waived in writing the right to independent
legal advice,
(b)
the agreement is in writing and signed by both cohabitants, and
(c)
the general law of contract is complied with.
(3)
Subject to subsection
(4), a cohabitants’ agreement may provide that neither cohabitant may apply for an order for redress
referred to in section 173, or an order for provision from the estate of his or her cohabitant under section 194.
(4)
The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious
injustice.
(5)
An agreement that meets the other criteria of this section shall be deemed to be a
cohabitants’ agreement under this section even if entered into before the cohabitation has commenced.
203.
Amendment of section 39 of Residential Tenancies Act 2004.
203.—Section 39(3)(a)(ii) of the Residential Tenancies Act 2004 is amended by substituting “was the tenant’s cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and lived with the tenant” for “cohabited with the tenant as husband and wife”.
204.
Amendment of section 47 of Civil Liability Act 1961.
204.—
The definition of “dependant” in section 47(1) (as substituted by section 1 of the Civil Liability (Amendment) Act 1996) of the Civil Liability Act 1961 is amended by substituting the following for paragraph (c):
“(c)
a person who was not married to or a civil partner of the deceased but who, until
the date of the deceased’s death, had been living with the deceased as the deceased’s cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 for a continuous period of not less than three years,”.
205.
Amendment of Powers of Attorney Act 1996.
205.—
Paragraph 3(1) of the First Schedule of the Powers of Attorney Act 1996 is amended—
(a)
in subparagraph (h) by substituting “blood;” for “blood.”, and
(b)
by inserting the following:
“(i)
the donor’s qualified cohabitant, within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.”.
206.
Transitional provision - redress orders.
206.—
An order for redress referred to in section 173 shall only be made if the application for it is made with respect to a relationship
that ends, whether by death or otherwise, after the commencement of this section but
the time during which two persons lived as a couple before the commencement date is
included for the purposes of calculating whether they are qualified cohabitants within
the meaning of this Part.
207.
Transitional provision - agreements.
207.—
Nothing in section 202(2) prevents a court from enforcing an agreement entered into between two persons before
the commencement of this Part.
