First Previous (PART II Preliminary and Ancillary Orders in or after Proceedings for Judicial Separation) Next (PART IV Declarations as to Marital Status)

26 1995

FAMILY LAW ACT, 1995

PART III

Relief after Divorce or Separation Outside State

Relief orders where marriage dissolved, or spouses legally separated outside State.

23. —(1) This section applies to a marriage that has been dissolved, or as respects which the spouses have been legally separated, after the commencement of this section under the law of a country or jurisdiction other than the State, being a divorce or legal separation that is entitled to be recognised as valid in the State.

(2) (a) Subject to the provisions of this Part, the court may, in relation to a marriage to which this section applies, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family concerned, make any order under Part II (other than an order under section 6 or a maintenance pending suit order) (in this Act referred to as a relief order) that it could have made if the court had granted a decree of judicial separation in relation to the marriage.

(b) Part II shall apply and have effect in relation to relief orders and applications therefor as it applies and has effect in relation to orders under Part II and applications therefor with the modifications that—

(i) subsections (4) and (5) of section 8 , section 10 (1) (c) and section 13 shall not apply in relation to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

(ii) section 15 shall not apply in relation to a family home in which, following the dissolution of the marriage under such a law, either spouse, having remarried, ordinarily resides with his or her spouse, and

(iii) the modifications specified in paragraph (c) and any other necessary modifications.

(c) Section 16 shall apply in relation to a relief order subject to the modifications that—

(i) it shall be construed as including a requirement that the court should have regard to the duration of the marriage,

(ii) the reference in subsection (2) (k) to the forfeiture of the opportunity or possibility of acquiring any benefit shall be construed as a reference to such forfeiture by reason of the divorce or legal separation concerned, and

(iii) the reference in subsection (3) to proceedings shall be construed as a reference to the proceedings for the divorce concerned or, as the case may be, for the legal separation concerned.

(d) Where a spouse whose marriage has been dissolved in a country or jurisdiction other than the State has remarried, the court may not make a relief order in favour of that spouse in relation to a previous marriage of that spouse.

(3) (a) An application shall not be made to the court by a person for a relief order unless, prior to the application, the court, on application to it ex parte in that behalf by that person, has by order granted leave for the making of the first-mentioned application and the court shall not grant such leave unless it considers that there is a substantial ground for so doing and a requirement specified in section 27 is satisfied.

(b) The court may make the grant of leave under this subsection subject to such (if any) terms and conditions as it considers appropriate and specifies in its order.

(c) The court may grant leave under this subsection to a person notwithstanding that an order has been made by a court of a country or jurisdiction other than the State requiring the spouse concerned to make a payment or transfer property to the person.

(d) This subsection does not apply to an application for a relief order made pursuant to a request under section 14 of the Maintenance Act, 1994 .

(4) In determining, for the purposes of this section, the financial resources of a spouse or a dependent member of the family in a case in which payments are required to be made or property is required to be transferred to the spouse or to the member by the other spouse under an order of a court of a country or jurisdiction other than the State or an agreement in writing, the court shall have regard to the extent to which the order or agreement has been complied with or, if payments are required to be made, or property is required to be transferred, after the date of the order made by virtue of this section under Part II , is likely to be complied with.

(5) The period specified in a periodical payments order made by virtue of this section under paragraph (a) or (b) of section 8 (1) shall begin not earlier than the date of the application for the order and shall end not later than the death of either of the spouses concerned or, if the order is made on or after the dissolution of the marriage, the remarriage of the spouse in whose favour the order was made.

(6) (a) Where, by virtue of this section, the court makes a periodical payments order or a secured periodical payments order on or after the dissolution of the marriage concerned, it may direct that the person in whose favour the order is made shall not apply for an order under section 18 extending the period specified in the order and, if the court so directs, such an order under section 18 shall not be made.

(b) Where, by virtue of this section, the court makes a periodical payments order or a secured periodical payments order in favour of a spouse other than on or after the dissolution of the marriage of the spouse and the marriage is dissolved subsequently, the order, if then in force, shall cease to have effect on the remarriage of that spouse, except as respects payments due under it on the date of the remarriage.

(c) If, after the dissolution of a marriage to which this section applies, either of the spouses concerned remarries, the court shall not, by reference to that dissolution, make by virtue of this section such an order as aforesaid, or a property adjustment order, in favour of that spouse.

Maintenance pending relief orders.

24. —(1) Where leave is granted to a person under section 23 (3) for the making of an application for a relief order, the court may, subject to subsection (3), on application to it in that behalf by the person, if it appears to it that a spouse, or a dependent member of the family, concerned is in immediate need of financial assistance, make an order for maintenance pending relief, that is to say, an order requiring the other spouse or either of the spouses, as may be appropriate, to make to the person such periodical payments or lump sum payments for his or her support or, as may be appropriate, for the benefit of the dependent member of the family as it considers proper and, as respects any periodical payments, for such period beginning not earlier than the date of such grant and ending not later than the date of the determination of the application as it considers proper.

(2) The court may, on application to it in that behalf, provide that payments under an order under this section shall be subject to such terms and conditions as it considers appropriate and specifies in the order.

(3) The court shall not make an order under this section in a case where neither of the requirements specified in paragraphs (a) and (b) of section 27 (1) is satisfied.

Orders for provision for spouse out of estate of other spouse.

25. —(1) Subject to the provisions of this section, where a spouse whose marriage has been dissolved in a country or jurisdiction other than the State dies, the court, on application to it in that behalf by the other spouse (“the applicant”) not more than 12 months after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that it was not possible to provide adequate and reasonable financial provision for the applicant during the lifetime of the deceased spouse under sections 8 to 12 for any reason (other than conduct referred to in subsection (2) (i) of section 16 or desertion referred to in subsection (3) of that section by the applicant).

(2) The court shall not make an order under this section if the applicant concerned has remarried since the granting of the decree of divorce concerned.

(3) In considering whether to make an order under this section, the court shall have regard to all the circumstances of the case including—

(a) any order under paragraph (c) of section 8 (1) or a property adjustment order in favour of the applicant, and

(b) any devise or bequest made by the deceased spouse to the applicant.

(4) The provision made for the applicant concerned by an order under this section together with any provision made for the applicant by an order referred to in subsection (3) (a) (the value of which for the purposes of this subsection shall be its value on the date of the order) shall not exceed in total the share (if any) of the applicant in the estate of the deceased spouse to which the applicant was entitled or (if the deceased spouse died intestate as to the whole or part of his or her estate) would have been entitled under the Act of 1965 if the marriage had not been dissolved.

(5) Section 121 of the Act of 1965 shall apply with any necessary modifications to a disposition referred to in subsection (1) of that section in respect of which the court is satisfied that it was made for the purpose of defeating or substantially diminishing the provision which the court would make for the applicant concerned under this section if the disposition had not been made.

(6) Notice of an application under this section shall be given by the applicant to the spouse (if any) of the deceased spouse concerned and to such (if any) other persons as the court may direct and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by the spouse of the deceased spouse and any other such persons as aforesaid.

(7) Where an application is made under this section, the personal representative of the deceased spouse concerned shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.

Appropriateness of making relief orders in State.

26. —The court shall not make a relief order unless it is satisfied that in all the circumstances of the particular case it is appropriate that such an order should be made by a court in the State and, without prejudice to the generality of the foregoing, in deciding whether to make a relief order, the court shall, in particular, have regard to the following matters:

(a) the connection which the spouses concerned have with the State,

(b) the connection which the spouses have with the country or jurisdiction other than the State in which the marriage concerned was dissolved or in which they were legally separated,

(c) the connection which the spouses have with any country or jurisdiction other than the State,

(d) any financial benefit which the spouse applying for the making of the order (“the applicant”) or a dependent member of the family has received, or is likely to receive, in consequence of the divorce or legal separation concerned or by virtue of any agreement or the operation of the law of a country or jurisdiction other than the State,

(e) in a case where an order has been made by a court in a country or jurisdiction other than the State requiring a spouse, or the spouses, concerned to make any payment or transfer any property for the benefit of the applicant or a dependent member of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with,

(f) any right which the applicant or a dependent member of the family has, or has had, to apply for financial relief from a spouse or the spouses under the law of any country or jurisdiction other than the State and, if the applicant or dependent member of the family has omitted to exercise any such right, the reason for that omission,

(g) the availability in the State of any property in respect of which a relief order in favour of the applicant or dependent member of the family could be made,

(h) the extent to which the relief order is likely to be enforceable,

(i) the length of time which has elapsed since the date of the divorce or legal separation concerned.

Jurisdiction of court to make relief orders.

27. —(1) Subject to subsection (2), the court may make a relief order if, but only if, at least one of the following requirements is satisfied:

(a) either of the spouses concerned was domiciled in the State on the date of the application for an order under section 23 (3) in relation to the relief order or was so domiciled on the date on which the divorce or judicial separation concerned took effect in the country or jurisdiction in which it was obtained,

(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on either of the dates aforesaid,

(c) on the date of the institution of the proceedings aforesaid either or both of the spouses had a beneficial interest in land situated in the State.

(2) Subsection (1) does not apply in relation to a case to which the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993, apply or to a relief order that is the subject of a request under section 14 of the Maintenance Act, 1994 .

Restriction of jurisdiction of court to make relief orders.

28. —(1) Where the jurisdiction of the court to make a relief order is conferred by virtue only of section 27 (1) (c), the court may make any of the following relief orders, but no others:

(a) a lump sum order,

(b) a property adjustment order providing for one or more of the matters specified in paragraphs (b), (c) and (d) of section 9 (1),

(c) an order under section 14 ,

(d) an order under section 25 ,

(e) an order directing the sale of the interest of either of the spouses concerned in the family home concerned.

(2) Where, in the circumstances referred to in subsection (1), the court makes one or more lump sum orders, the amount or aggregate amount of the sum or sums to which the order or orders relate shall not exceed—

(a) in case the interest of the spouse liable to make the payment or payments under the order or orders in the family home concerned is sold whether in pursuance of an order of the court or otherwise, the amount of the proceeds of the sale after deduction therefrom of the costs thereof, or

(b) in any other case, such amount as, in the opinion of the court, represents the value of that interest.

(3) The reference in subsection (1) (e) to the interest of either of the spouses concerned shall, in relation to a case where the interest of a spouse in the family home concerned is held under a joint tenancy or a tenancy in common with another person or other persons, be construed as including a reference to the interest of the other person or persons in the home.