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6 1989

JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

PART II

Ancillary Financial, Property, Custody and Other Orders

Definitions ( Part II ).

10. —In this Part, save where the context otherwise requires—

conveyance” includes a mortgage, lease, assent, transfer, disclaimer, release and any other disposition of property otherwise than by a will or a donatio mortis causa and also includes an enforceable agreement (whether conditional or unconditional) to make any such conveyance;

dependent child of the family” in relation to a spouse or spouses means any child—

(a) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1988 or in relation to whom both spouses are in loco parentis, or

(b) of either spouse or adopted by either spouse under the Adoption Acts, 1952 to 1988 or in relation to whom either spouse is in loco parentis where the other spouse being aware that he is not the parent of the child has treated the child as a member of the family,

who is under the age of 16 years or if he has attained that age—

(i) is or will be or if an order were made under this Act providing for periodical payments for his support or for the provision of a lump sum would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 21 years, or

(ii) is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully;

dwelling” means—

(a) any building, or

(b) any structure, vehicle or vessel (whether mobile or not),

or part thereof, occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity and convenience of the dwelling;

family home” means, primarily, a dwelling in which a married couple ordinarily reside and comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving;

household chattels” means furniture, bedding, linen, china, earthenware, glass, books and other chattels of ordinary household use or ornament and also consumable stores, garden effects and domestic animals but does not include any chattels used by either spouse for business or professional purposes or money or security for money.

Preliminary orders in judicial separation proceedings.

11. —After an application for a decree of judicial separation has been issued, the court, before deciding whether to grant or refuse to grant such decree, may if it appears to the court proper to do so make any one or more of the following orders—

(a) a barring or protection order pursuant to section 2 or section 3 of the Family Law (Protection of Spouses and Children) Act, 1981 ;

(b) a custody or access order or other order on any question affecting the welfare of an infant pursuant to section 11 of the Guardianship of Infants Act, 1964 ;

(c) an order for the protection of the family home or of any moneys realised from the conveyance of any interest in the family home pursuant to section 5 of the Family Home Protection Act, 1976 ;

(d) an order for the protection of household chattels or any moneys realised from the sale thereof pursuant to section 9 of the Family Home Protection Act, 1976 .

Making of applications for preliminary orders.

12. —A court may make orders under section 11 if sought by the applicant or the respondent without separate proceedings having to be instituted under the Acts referred to in the said section as preliminary orders in proceedings for judicial separation brought under this Act.

Maintenance pending suit, etc.

13. —Where application is made for a judicial separation the court may make an order for maintenance pending suit, that is to say, an order requiring either spouse to make to the other spouse such periodical payments for the support of that other spouse and of such (if any) dependent children of the family, for such period beginning not earlier than the date of the application and ending not later than the date of the determination of that application, as the court considers proper.

Periodical payments and lump sum orders.

14. —(1) On granting a decree of judicial separation or at any time thereafter the court may, on application to it by either spouse, make any one or more of the following orders—

(a) a periodical payments order, that is to say—

(i) an order that either spouse shall make to the other spouse such periodical payments of such amount and at such times as may be specified in the order; or

(ii) an order that either spouse shall make to such person as may be specified in the order for the benefit of a dependent child of the family such periodical payments of such amount and at such time as may be so specified;

(b) a secured periodical payments order, that is to say—

(i) an order that either spouse shall secure to the other spouse to the satisfaction of the court, such periodical payments as may be so specified; or

(ii) an order that a spouse shall secure to such person as may be so specified for the benefit of such dependent child of the family such periodical payments to the satisfaction of the court as may be so specified;

(c) an order that either spouse shall pay to the other spouse such lump sum or sums of such amount and at such time or times as may be so specified;

(d) an order that a spouse shall pay to such person as may be specified for the benefit of a dependent child of the family such lump sum or sums of such amount and at such time or times as may be so specified.

(2) Without prejudice to the generality of subsection (1) (c) or (d) of this section—

(a) an order under this section that a spouse shall pay a lump sum to the other spouse may be made for the purpose of enabling that other spouse to meet any liabilities or expenses reasonably incurred by him or her, before making an application for an order under this section in his or her favour, in maintaining himself or herself or any dependent child of the family;

(b) an order under this section for the payment of a lump sum for the benefit of a dependent child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and

(c) an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

Property adjustment orders.

15. —(1) On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by either spouse, make a property adjustment order, that is to say, any one or more of the following orders—

(a) an order that a spouse shall transfer to the other spouse, to any dependent child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned spouse is entitled, either in possession or reversion;

(b) an order that a settlement of such property as may be so specified, being property to which a spouse is so entitled, be made to the satisfaction of the court for the benefit of the other spouse and of any dependent child of the family or any or all of those persons;

(c) an order varying for the benefit of the spouses and of any dependent child of the family or any or all of those persons any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses;

(d) an order extinguishing or reducing the interest of either of the spouses under any such settlement.

(2) The court may, following the granting of a decree of judicial separation, consider and determine whether an order or orders should be made by it in favour of a spouse under this section on one occasion only unless on that occasion a spouse wilfully conceals information of a material nature relevant to the making of any such order or orders.

Miscellaneous ancillary orders.

16. —On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by either spouse, make any one or more of the following orders:

(a) an order conferring on one spouse either for life or for such other period (definite or contingent) as the court may specify the right to occupy the family home to the exclusion of the other spouse;

(b) an order for the sale of the family home subject to such conditions as the court considers proper;

(c) an order under section 12 of the Married Women's Status Act, 1957 , determining any dispute between the spouses as to the title to or possession of any property;

(d) an order under section 4 , 5 or 9 of the Family Home Protection Act, 1976 ;

(e) an order under section 2 or 3 of the Family Law (Protection of Spouses and Children) Act, 1981 ;

(f) an order for the partition of property or under the Partition Acts 1868 and 1876;

(g) an order under section 11 of the Guardianship of Infants Act, 1964 concerning any dependent child of the family.

Order extinguishing succession rights.

17. —(1) On granting a decree of judicial separation, or at any time thereafter, the court shall, on the application of either spouse, consider whether it should make an order extinguishing the share that either spouse would otherwise be entitled to in the estate of the other spouse as a legal right or on intestacy under the Succession Act, 1965 .

(2) The court shall make an order extinguishing the share that a spouse would otherwise be entitled to in the estate of the other spouse as a legal right or on intestacy under the said Act of 1965 if—

(a) it is satisfied, having regard to the provisions of section 20 , that adequate and reasonable provision of a permanent nature has been made to provide for the future security of the spouse whose succession rights are in question, or

(b) it is satisfied, having regard to the provisions of section 20 , that the case is not one where provision of a permanent nature requires to be made for the future security of the spouse whose succession rights are in question, or

(c) the spouse whose succession rights are in question is not a spouse for the support of whom the court, having had regard to the provisions of section 20 (including subsections (2) (i) and (3)) made an order under section 14 , 15 or 16 (a), or

(d) it is satisfied that the spouse whose succession rights are in question is not a spouse for the support of whom the court would, having regard to the provisions of section 20 (including subsections (2) (i) and (3)), make an order under section 14 , 15 or 16 (a) if an application were made to it in that regard.

Orders for sale of property.

18. —(1) Where the court makes a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in that order, being property in which or in the proceeds of sale of which either or both spouses has or have a beneficial interest, either in possession or reversion.

(2) The power to make an order for sale in the case of a property adjustment order shall not be exercised so as to interfere with a right to occupy the family home conferred by that order.

(3) An order under subsection (1) of this section may contain such consequential or supplementary provisions as the court thinks fit and, without prejudice to the generality of the foregoing provision, may include—

(a) provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and

(b) provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.

(4) Where an order is made under subsection (1) of this section, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.

(5) Where an order under subsection (1) of this section contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a spouse, the order shall cease to have effect on the death of that spouse.

(6) Where a spouse has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not one of the spouses also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 20 .

Additional family home jurisdiction.

19. —The court shall exercise its jurisdiction under section 16 (a) and (b) above as an additional jurisdiction to that which arises under the Family Law (Protection of Spouses and Children) Act, 1981 and the Family Home Protection Act, 1976 and shall in exercising such jurisdiction have regard to the welfare of the family as a whole and in particular shall take into consideration—

(a) that where a decree of judicial separation is granted it is not possible for the spouses to continue to reside together;

(b) that proper and secure accommodation should, where practicable, be provided for a dependent spouse and any dependent child of the family;

(c) the matters referred to in section 20 of this Act.

Provisions relating to maintenance, property and other orders.

20. —(1) In deciding whether to exercise its powers under section 13 , 14 , 15 or 16 (a) or (b) of this Act and, if so, in what manner, the court shall seek to ensure that such provision is made for any spouse and for any dependent child of the family as is adequate and reasonable having regard to all the circumstances of the case.

(2) As regards the exercise of the powers of the court under section 13 , 14 , 15 or 16 (a) or (b) of this Act in relation to a spouse, the court shall in particular have regard to the following matters—

(a) the income, earning capacity, property and other financial resources which each of the spouses has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before proceedings were instituted or before the spouses separated, as the case may be;

(d) the age of each spouse, the duration of the marriage and the length of time the spouses lived together;

(e) any physical or mental disability of either spouse;

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including the contribution made by each spouse to the income, earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family;

(g) the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family;

(h) any income or benefits to which either spouse is entitled by or under statute;

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances be repugnant to justice to disregard it;

(j) the accommodation needs of either spouse.

(3) The court shall not make an order under section 13 , 14 , 15 or 16 (a) or (b) of this Act for the support of a spouse where the spouse has deserted and has continued to desert the other spouse up to the time of the institution of proceedings for a decree of judicial separation unless, having regard to all the circumstances (including the conduct of the other spouse), the court is of opinion that it would be repugnant to justice not to make such order or orders.

(4) As regards the exercise of the powers of the court under section 13 , 14 or 15 of this Act in relation to any dependent child of the family, the court shall in particular have regard to the following matters—

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(d) any income or benefits to which the child is entitled by or under statute;

(e) the manner in which he was being and in which the spouses expected him to be educated or trained;

(f) the considerations mentioned in relation to the spouses in subsection (2) (a), (b), (c) and (e) of this section;

(g) the accommodation needs of the child.

(5) In this section “desertion” includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.

Retrospective maintenance orders.

21. —(1) The court may when making a periodical payments order under section 14 (1) (a) provide that the sum ordered to be paid by it be backdated to the date when the separation application was issued, but no earlier, where it is deemed appropriate that such order be made having regard to all the circumstances of the case and may in so doing order that any arrears of maintenance it accordingly deems to have accumulated be paid by way of a lump sum by a specified date and may in ordering the payment of such lump sum give credit to the spouse ordered to make such payment for any relevant moneys paid by him to the spouse to whom such payment is to be made in the period between the dates when the separation proceedings were issued and a decree of judicial separation was granted.

(2) The jurisdiction conferred on the court to make a lump sum order under subsection (1) of this section is without prejudice to the generality of the jurisdiction to make such order arising under section 14 (1) (c) and 14 (1) (d).

Variation and discharge of financial and property orders.

22. —(1) Where the court has made an order to which this section applies, then subject to the provisions of this section and of section 20 of this Act, the court may, on application to it by either spouse, if it considers it proper to do so having regard to any change in the circumstances and to any new evidence, vary or discharge the order or suspend any provision thereof temporarily, revive the operation of any provision so suspended, and in any appropriate case again vary any such order or again suspend or revive its operation.

(2) This section applies to the following orders—

(a) an order for maintenance pending suit;

(b) a periodical payments order;

(c) a secured periodical payments order;

(d) that part of an order for the payment of a lump sum which provides for the payment of that sum by instalments or requires the payment of such instalments to be secured;

(e) an order in relation to the occupation of the family home, and

(f) an order for the sale of property.

(3) Without prejudice to the generality of section 14 of this Act that part of an order which provides of the support of a dependent child shall stand discharged where the child ceases to be a dependent child of the family by reason of his attainment of the age of sixteen years or twenty-one years, as the case may be, and shall be discharged by the court, on application to it under subsection (1) of this section, if it is satisfied that the child has for any reason ceased to be a dependent child of the family.

(4) The powers exercisable by the court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order.

(5) No property adjustment order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a spouse or in favour of a dependent child of the family) under section 14 of this Act.

(6) Where the spouse liable to make payments under a secured periodical payments order has died, an application under this section relating to that order (and to any order which requires the proceeds of sale of property to be used for securing those payments) may be made by the spouse entitled to payment under the periodical payments order or by the personal representatives of the deceased spouse, but no such application shall, except with the permission of the court, be made after the end of the period of twelve months from the date on which representation in respect of the estate of the deceased is first granted.

(7) The personal representatives of a deceased spouse against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of twelve months referred to in subsection (6) of this section on the ground that they ought to have taken into account the possibility that the court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section.

Child maintenance.

23. —(1) A maintenance or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.

(2) Conduct of the nature referred to in section 20 (2)(i) or 20 (3) or in section 22 shall not be a ground upon which a court shall refuse to make a maintenance order for the support of a dependent child and shall not be a ground for discharging or varying any part of a maintenance order that provides for the support of such child.

Transmission of periodical payments through District Court clerk.

24. —Notwithstanding anything in this Act, the provisions of section 9 of the Family Law (Maintenance of Spouses and Children) Act, 1976 , shall apply in relation to an order for maintenance pending suit, to a periodical payments order or a secured periodical payments order, subject to the modifications that the reference in subsection (4) of the said section 9 to the maintenance creditor shall be construed as a reference to the person to whom payments under the order would be made and the other references in the said section 9 to the maintenance creditor shall be construed as references to the person on whose application the periodical payments order was made.

Amendment of section 3 of Family Law (Maintenance of Spouses and Children) Act, 1976.

25. —(1) Subject to subsection (2) of this section, section 3 (1) of the Family Law (Maintenance of Spouses and Children) Act, 1976 , is hereby amended by the deletion in the definition of “antecedent order” of—

“(i) an order for payment of alimony pending suit or permanent alimony;”

and the substitution of—

“(i) an order for alimony pending suit;

(j) an order for payment of maintenance pending suit under the Judicial Separation and Family Law Reform Act, 1989, or a periodical payments order under that Act”.

(2) Subsection (1) of this section shall not affect the application of the Family Law (Maintenance of Spouses and Children) Act, 1976 , to an order for payment of permanent alimony in force at the commencement of this Act.

Payments to be made without deduction of income tax.

26. —Payments of money pursuant to an order under this Part shall be made without deduction of income tax.

Application of maintenance and periodical payments orders to men of Defence Forces.

27. —The reference in section 98 (1) (h) of the Defence Act, 1954 , to an order for payment of alimony shall be construed as including references to an order for maintenance pending suit, a periodical payments order and a secured periodical payments order.

Amendment of Enforcement of Court Orders Act, 1940.

28. —The references in subsections (1) and (7) of section 8 of the Enforcement of Court Orders Act, 1940 (as amended by section 29 of the Family Law (Maintenance of Spouses and Children) Act, 1976 ), to an order shall be construed as including references to an order for payment of maintenance pending suit and a periodical payments order under this Act.

Voidance of transactions intended to prevent or reduce financial relief.

29. —(1) For the purposes of this section, “financial relief” means relief under any of the provisions of sections 13 , 14 , 15 , 16 (a), 16 (b), 21 and 22 (except subsection (6)) of this Act, and any reference in this section to defeating a person's claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a dependent child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of that person under any of those provisions.

(2) Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person—

(a) if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining the other party from so doing or otherwise for protecting the claim;

(b) if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition;

(c) if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) of this section by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition;

and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial relief in question.

(3) Where the court makes an order under subsection (2) (b) or (c) of this section setting aside a disposition it shall give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).

(4) Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of subsection (2) (b) and (c) of this section unless it was made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant's claim for financial relief.

(5) Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied—

(a) in a case falling within subsection (2) (a) or (b) of this section, that the disposition or other dealing would (apart from this section) have the consequence, or

(b) in a case falling within subsection (2) (c) of this section, that the disposition has had the consequence,

of defeating the applicant's claim for financial relief, it shall be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating the applicant's claim for the financial relief.

(6) In this section “disposition” does not include provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.