Family Law Act 1995

Determination of questions between spouses in relation to property.

36

36.(1) Either spouse may apply to the court in a summary manner to determine any question arising between them as to the title to or possession of any property.

(2) On application to it under subsection (1), the court may—

(a) make such order with respect to the property in dispute (including an order that it be sold or partitioned) and as to the costs consequent upon the application, and

(b) direct such inquiries, and give such other directions, in relation to the application,

as the court considers proper.

(3) Either spouse or a child of a deceased spouse (in this section referred to subsequently as “the plaintiff spouse”) may make an application specified in subsection (1) where it is claimed that the other spouse (in this section referred to subsequently as “the defendant spouse”) has had in his or her possession or under his or her control—

(a) money to which, or to a share of which, the plaintiff spouse was beneficially entitled whether by reason of the fact that it represented the proceeds of property to which, or to an interest in which, the plaintiff spouse was beneficially entitled or for any other reason, or

(b) property (other than money) to which, or to an interest in which, the plaintiff spouse was beneficially entitled,

and that either that money or other property has ceased to be in the possession or under the control of the defendant spouse or that the plaintiff spouse does not know whether it is still in the possession or under the control of the defendant spouse.

(4) Where an application under subsection (1) is made by virtue of subsection (3) and the court is satisfied that—

(a) (i) the defendant spouse concerned has had in his or her possession or under his or her control money or other property to which paragraph (a) or (b) of subsection (3) relates, or

(ii) the defendant spouse has in his or her possession or under his or her control property that represents the whole or part of the money or other property aforesaid,

and

(b) the defendant spouse has not made to the plaintiff spouse concerned such payment or disposition (not being a testamentary disposition) as would have been appropriate in all the circumstances,

the court may make an order under subsection (2) in relation to the application and may, in addition to or in lieu of such an order, make an order requiring the defendant spouse to pay to the plaintiff spouse either, as the case may be—

(i) such sum in respect of the money to which the application relates, or the plaintiff spouse’s share thereof, or

(ii) such sum in respect of the value of the property (other than money) referred to in paragraph (a), or the plaintiff spouse’s interest therein,

as the court considers proper.

(5) In any proceedings under this section, a person (other than the plaintiff spouse concerned or the defendant spouse concerned) who is a party thereto shall, for the purposes of costs or any other matter, be treated as a stakeholder only.

(6) This section is without prejudice to section 2 (which prescribes the legal capacity of married women) of the Married Women’s Status Act, 1957.

(7) (a) Where a marriage—

(i) has been annulled F47[or dissolved] under the law of the State, or

(ii) has been annulled or dissolved under the law of a country or jurisdiction other than the State and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,

an application under this section shall not be made by either of the spouses more than 3 years after the date of the annulment or divorce.

(b) Where a marriage is void but has not been so declared under the law of the State or another state, an application shall not be made under this section by either of the spouses more than 3 years after the parties have ceased to be ordinarily resident together.

(8) In this section references to a spouse include references to—

(a) a personal representative of a deceased spouse,

(b) either of the parties to a void marriage, whether or not it has been declared to be void under the law of the State or a country or jurisdiction other than the State,

(c) either of the parties to a voidable marriage that has been annulled under the law of the State,

F47[(cc) either of the parties to a marriage that has been dissolved under the law of the State,]

(d) either of the parties to a marriage that has been annulled under the law of another state and that is, by reason of the annulment, not a subsisting valid marriage under the law of the State, and

(e) either of the parties to a marriage that has been dissolved under the law of another state and that is, by reason of the divorce, no longer a subsisting valid marriage under the law of the State.

Annotations

Amendments:

F47

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

Modifications (not altering text):

C6

Application of section extended with modifications (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 44, commenced as per s. 1(2).

Determination of questions between persons formerly engaged to each other in relation to property.

44.—Where an agreement to marry is terminated, section 36 of the Act of 1995 shall apply, as if the parties to the agreement were married to each other, to any dispute between them, or claim by one of them, in relation to property in which either or both of them had a beneficial interest while the agreement was in force.