Family Law (Divorce) Act 1996

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

18

18. (1) Subject to the provisions of this section, where one of the spouses in respect of whom a decree of divorce has been granted dies, the court, on application to it in that behalf by the other spouse (“the applicant”) not more than 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 proper provision in the circumstances was not made for the applicant during the lifetime of the deceased spouse under section 13, 14, 15, 16 or 17 for any reason (other than conduct referred to in subsection (2) (i) of section 20 of the applicant).

(2) The court shall not make an order under this section in favour of a spouse who has remarried F20 [ 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 13 (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) Notice of an application under this section shall be given by the applicant to the spouse F20 [ , civil partner or former civil partner ] (if any) of the deceased spouse F20 [ , civil partner or former civil partner ] 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 F20 [ , civil partner or former civil partner ] of the deceased spouse F20 [ , civil partner or former civil partner ] and any other such persons as aforesaid.

(6) The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted 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.

(7) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted 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.

(8) 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.

(9) Nothing in subsection (7) or (8) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.

(10) On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers it just to do so, make an order that either or both spouses shall not, on the death of either of them, be entitled to apply for an order under this section.

Annotations:

Amendments:

F20

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 155, S.I. No. 648 of 2010.