Family Law Act 1995

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

25

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 F37[6 months] after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that it was not possible to provide F38[proper provision, having regard to the circumstances,] 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 F39[or registered in a civil partnership] since the granting of the decree of divorce concerned.

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

(a) any order under paragraph (c) of section 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) F39[, or civil partner (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 F39[or civil partner] of the deceased spouse and any other such persons as aforesaid.

F40[(7) The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.

(8) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State gives notice of his or her death to the other spouse concerned (the spouse) and

(a) the spouse intends to apply to the court for an order under this section,

(b) the spouse has applied for such an order and the application is pending, or

(c) an order has been made under this section in favour of the spouse,

the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.

(9) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.

(10) Nothing in subsection (8) or (9) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.]

Annotations

Amendments:

F37

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

F38

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

F39

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 167, S.I. No. 648 of 2010.

F40

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

Editorial Notes:

E27

Certain gifts or inheritances taken by virtue or in consequence of orders made under section are exempted from capital acquisitions tax (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 88(1) and (2)(a), commenced on enactment, as substituted (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 3 and sch. 3 item 21, commenced as per s. 5(8)(e).

E28

Previous affecting provision: certain gifts or inheritances taken under orders made under section exempted from capital acquisitions tax (10.05.1997) by Finance Act 1997 (22/1997), s. 142(1) and (2)(a), commenced on enactment; superseded (21.02.2003) by Capital Acquisitions Tax Consolidation Act 2003 (1/2003), s. 88(1) and (2)(a), commenced on enactment, as substituted (1.01.2011) by Finance (No. 3) Act 2011 (18/2011), s. 3 and sch. 3 item 21, commenced as per s. 5(8)(e).