Bankruptcy Act 1988

Avoidance of certain settlements.

(1857, s. 314; 1872, s. 52)

59

59. (1) Any settlement of property, not being a settlement made before and in consideration of marriage F46 [ or civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ], or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, shall—

( a) if the settlor is adjudicated bankrupt within F47 [ 3 years ] after the date of the settlement, be void as against the Official Assignee, and

( b) if the settlor is adjudicated bankrupt at any subsequent time within five years after the date of the settlement, be void as against the Official Assignee unless the parties claiming under the settlement prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement and that the interest of the settlor in such property passed to the trustee of such settlement on the execution thereof.

(2) A covenant or contract made by any person (in this section called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor’s spouse or children, or for the future settlement, on or for the settlor’s spouse or children, of property wherein the settlor had not at the date of the marriage any estate or interest, whether vested or contingent, in possession or remainder, shall, if the settlor is adjudicated bankrupt and the covenant or contract has not been executed at the date of the adjudication, be void as against the Official Assignee, except so far as it enables the persons entitled under the covenant or contract to claim for dividend in the settlor’s bankruptcy under or in respect of the covenant or contract, but any such claim to dividend shall be postponed until all the claims of the other creditors for valuable consideration in money or money’s worth have been satisfied.

F46 [ (2A) A covenant or contract made by any person (in this section called the settlor) in consideration of his or her entry into civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, either for the future payment of money for the benefit of the settlor s civil partner, or for the future settlement, on or for the settlor s civil partner, of property wherein the settlor had not at the date of the registration of the civil partnership any estate or interest, whether vested or contingent, in possession or remainder, shall, if the settlor is adjudicated bankrupt and the covenant or contract has not been executed at the date of the adjudication, be void as against the Official Assignee, except so far as it enables the civil partner entitled under the covenant or contract to claim for dividend in the settlor s bankruptcy under or in respect of the covenant or contract, but any such claim to dividend shall be postponed until all the claims of the other creditors for valuable consideration in money or money s worth have been satisfied. ]

(3) Any payment of money (not being payment of premiums on a policy of life assurance) or any transfer of property made by the settlor in pursuance of a covenant or contract to which subsection (2) applies shall be void as against the Official Assignee in the settlor’s bankruptcy, unless the persons to whom the payment or transfer was made prove that:

( a) the payment or transfer was made more than F47 [ 3 years ] before the date of the adjudication of the settlor, or

( b) at the date of the payment or transfer, the settlor was able to pay all his debts without the aid of the money so paid or the property so transferred, or

( c) the payment or transfer was made in pursuance of a covenant or contract to pay or transfer money or property expected to come to the settlor from or on the death of a particular person named in the covenant or contract, and was made within three months after the money or property came into the possession or under the control of the settlor;

but, in the event of any such payment or transfer being declared void, the persons to whom it was made shall be entitled to claim for dividend under or in respect of the covenant or contract in like manner as if it had not been executed at the date of the adjudication.

(4) In this section “ settlement” includes any conveyance or transfer of property.

Annotations:

Amendments:

F46

Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2011), s. 170 and sch. part 5 item 9, S.I. No. 648 of 2010.

F47

Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 154, S.I. No. 462 of 2013.

Modifications (not altering text):

C21

Application of section restricted (1.09.2008) by Criminal Justice (Mutual Assistance) Act 2008 (7/2008), s. 40(3)(a), S.I. No. 338 of 2008.

Bankruptcy of defendant, etc.

40. —...

(3) Where a person is adjudicated bankrupt and has directly or indirectly made a gift—

(a) no decision as to whether the gift is void shall be made under section 57, 58 or 59 of the said Act of 1988 in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a freezing co-operation order, and

(b) any decision as to whether it is void made under any of those sections after the discharge of the freezing co-operation order shall take into account any realisation under this Act of property held by the person to whom the gift was made.

...