Family Law (Divorce) Act 1996

Amendment of Act of 1995.

52

52.The Act of 1995 is hereby amended—

( a) in section 8—

(i) in subsection (1), by the insertion of “ or at any time thereafter” after “separation”,

(ii) in paragraph ( c) (i) of that subsection, by the insertion of “ or” after “so specified”, and

(iii) in subsection (4), by the substitution of “ the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned ” for “either of the spouses concerned”,

( b) in section 9 (1), by the insertion of “ or at any time there-after” after “separation”,

( c) in section 10—

(i) in subsection (1), by the insertion of “ or at any time thereafter” after “separation”, and

(ii) by the insertion after subsection (2) of the following subsection:

“(3) Subsection (1) ( a) shall not apply in relation to a family home in which, following the grant of a decree of judicial separation, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.”,

( d) in sections 11 (2) ( a), 12 (23) ( b) and 25 (1), by the substitution of “ proper provision, having regard to the circumstances,” for “adequate and reasonable financial provision”, in each place where it occurs,

( e) in section 12—

(i) in subsection (1), in the definition of “ relevant guidelines”, by the substitution of “ paragraph ( c) or ( cc) of section 10 (1) ” for “section 10 (1) ( c)”, and

(ii) in subsection (18), by the substitution of “ 40” for “41”,

( f) in section 15—

(i) in subsection (5), by the substitution of “ 10 (1) ( a) ” for “10 (1) ( a) (ii)”, and

(ii) by the insertion of the following subsection after subsection (5):

“(6) This section shall not apply in relation to a family home in which, following the grant of a decree of judicial separation, either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.”,

( g) by the insertion of the following section after section 15:

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

15A.— (1) Subject to the provisions of this section, where, following the grant of a decree of judicial separation, a court makes an order under section 14 in relation to the spouses concerned and one of the spouses 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 8, 9, 10 (1) ( a), 11 or 12 for any reason (other than conduct referred to in subsection (2) ( i) of section 16 of 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 judicial separation 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 court had not made an order under section 14.

(5) 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.

(6) The personal representative of a deceased spouse in respect of whom a decree of judicial separation 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 judicial separation 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 judicial separation 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.”,

( h) in section 16 (1)—

(i) by the insertion of “ 15A,” after “14,”,

(ii) by the substitution of “ exists or will be made” for “is made”, and

(iii) by the substitution of “ proper” for “adequate and reasonable”,

( i) in section 18, in subsection (1) ( h), by the insertion of “ insofar as such application is not restricted or excluded by section 12 (26)” after “section 12”,

( j) in section 25—

(i) in subsection (1), by the substitution, as respects applications under that section made after the commencement of the Family Law (Divorce) Act, 1996, of “ 6 months” for “12 months”, and

(ii) by the substitution of the following subsections for subsection (7):

“(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.”,

( k) in section 29, by the insertion of the following subsection after subsection (10):

“(11) In this section a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the Family Law (Divorce) Act, 1996.”,

( l) in section 35 (1)—

(i) by the insertion in the definition of “ relief”, of “ 15A,” after “13,”, and

(ii) by the insertion in that definition, after paragraph ( a), of the following paragraph:

“( aa) an order under section 11 (2) ( b) of the Act of 1964 or section 5, 5A or 7 of the Act of 1976, or”,.

( m) in section 36—

(i) in subsection (7) ( a) (i), by the insertion of “ or dissolved”, after “annulled”, and

(ii) in subsection (8), after paragraph ( c), by the insertion of the following paragraph:

“( cc) either of the parties to a marriage that has been dissolved under the law of the State,”,

( n) in section 38 (7), by the insertion of “ 15A,” after “14,”,

( o) in section 43—

(i) in paragraph ( a), by the substitution of the following subparagraph for subparagraph (ii):

“(ii) in the definition of ‘ dependent child’ the substitution of ‘ 18’ for ‘sixteen’ and ‘ 23’ for ‘twenty-one’, and”,

and

(ii) by the substitution of the following paragraph for paragraph (e):

“( e) in section 23, after subsection (2), the insertion of the following subsections:

‘(3) In proceedings under this Act—

( a) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and

( b) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned,

such particulars of his or her property and income as may reasonably be required for the purpose of the proceedings.

(4) Where a person fails or refuses to comply with subsection (3), the Court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.’.”,

and

( p) in section 47—

( a) in subsection (6), by the substitution of “ This section” for “Subsection (1)”, and

( b) in subsection (7), by the substitution of “ (1) ( b) ” for “(2)”.