FAMILY LAW ACT, 1995

AN ACT TO MAKE FURTHER PROVISION IN RELATION TO THE JURISDICTION OF THE COURTS TO MAKE PRELIMINARY AND ANCILLARY ORDERS IN OR AFTER PROCEEDINGS FOR JUDICIAL SEPARATION, TO ENABLE SUCH ORDERS TO BE MADE IN CERTAIN CASES WHERE MARRIAGES ARE DISSOLVED, OR AS RESPECTS WHICH THE SPOUSES BECOME JUDICIALLY SEPARATED, UNDER THE LAW OF ANOTHER STATE, TO MAKE FURTHER PROVISION IN RELATION TO MAINTENANCE UNDER THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976, AND IN RELATION TO MARRIAGE AND TO PROVIDE FOR CONNECTED MATTERS. [2nd October, 1995]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I Preliminary and General

1. Short title and commencement.

1.—(1) This Act may be cited as the Family Law Act, 1995.

• (2)
• (a) This Act shall come into operation on such day or days as, by order or orders made by the Minister for Equality and Law Reform under this section, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

• (b) An order under paragraph (a) relating to, or in so far as it relates to, section 32 shall not be made without the consent of the Minister for Health.

2. Interpretation.

2.—(1) In this Act, save where the context otherwise requires—

“the Act of 1964” means the Guardianship of Infants Act, 1964;

“the Act of 1965” means the Succession Act, 1965;

“the Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act, 1976;

F1[…]

“the Act of 1989” means the Judicial Separation and Family Law Reform Act, 1989;

F2[…]

F3["Act of 2018" means the Domestic Violence Act 2018;]

F4["civil partnership" has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]

F5["cohabitant" shall be construed in accordance with section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and includes a former cohabitant;]

“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 disposition;

“the court” shall be construed in accordance with section 38;

“decree of judicial separation” means a decree under section 3 of the Act of 1989;

“decree of nullity” means a decree granted by a court declaring a marriage to be null and void;

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

• (a) of both spouses or adopted by both spouses under the Adoption Acts, 1952 to 1991, or in relation to whom both spouses are in loco parentis, or

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

who is under the age of 18 years or if the child has attained that age—

• (i) is or will be or, if an order were made under this Act providing for periodical payments for the benefit of the child or for the provision of a lump sum for the child, would be receiving full-time education or instruction at any university, college, school or other educational establishment and is under the age of 23 years, or

• (ii) has a mental or physical disability to such extent that it is not reasonably possible for the child to maintain himself or herself fully;

“family home” has the meaning assigned to it by section 2 of the Family Home Protection Act, 1976, with the modification that the references to a spouse in that section shall be construed as references to a spouse within the meaning of this Act;

“financial compensation order” has the meaning assigned to it by section 11;

“Land Registry” and “Registry of Deeds” have the meanings assigned to them by the Registration of Title Act, 1964;

“lump sum order” means an order under section 8 (1) (c);

“maintenance pending suit order” means an order under section 7;

“maintenance pending relief order” means an order under section 24;

“member”, in relation to a pension scheme, means any person who, having been admitted to membership of the scheme under its rules, remains entitled to any benefit under the scheme;

“pension adjustment order” means an order under section 12;

“pension scheme” means—

• (a) an occupational pension scheme (within the meaning of the Pensions Act, 1990), or

• (b) (i) an annuity contract approved by the Revenue Commissioners under section 235 of the Income Tax Act, 1967, or a contract so approved under section 235A of that Act,

• (ii) a trust scheme, or part of a trust scheme, so approved under subsection (4) of the said section 235 or subsection (5) of the said section 235A, or

• (iii) a policy or contract of assurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972, or

• F6[(bb) a PRSA contract within the meaning of Part X of the Pensions Act, 1990, or]

• (c) any other scheme or arrangement (including a personal pension plan and a scheme or arrangement established by or pursuant to statute or instrument made under statute other than under the Social Welfare Acts) that provides or is intended to provide either or both of the following, that is to say:

• (i) benefits for a person who is a member of the scheme or arrangement (“the member”) upon retirement at normal pensionable age or upon earlier or later retirement or upon leaving, or upon the ceasing of, the relevant employment,

• (ii) benefits for the widow, widower or dependants of the member, or for any other persons, on the death of the member;

“periodical payments order” and “secured periodical payments order” have the meanings assigned to them by section 8 (1);

“property adjustment order” has the meaning assigned to it by section 9;

F4["registration", with respect to a civil partnership, includes entering into a relationship of a class of legal relationships that is the subject of an order made under section 5 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

“relief order” means an order under Part II made by virtue of section 23;

“trustees”, in relation to a scheme that is established under a trust, means the trustees of the pension scheme and, in relation to a pension scheme not so established, means the persons who administer the scheme.

• (2) In this Act, where the context so requires—

• (a) a reference to a marriage includes a reference to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

• (b) a reference to a remarriage includes a reference to a marriage that takes place after a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

• (c) a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under the law of a country or jurisdiction other than the State,

• (d) a reference to a family includes a reference to a family as respects which the marriage of the spouses concerned has been dissolved under the law of a country or jurisdiction other than the State,

• (e) a reference to an application to a court by a person on behalf of a dependent member of the family includes a reference to such an application by such a member and a reference to a payment, the securing of a payment, or the assignment of an interest, to a person for the benefit of a dependent member of the family includes a reference to a payment, the securing of a payment, or the assignment of an interest, to such a member,

and cognate words shall be construed accordingly.

• (3) In this Act—

• (a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

• (b) a reference to a Part or section is a reference to a Part or section of this Act unless it is indicated that reference to some other enactment is intended,

• (c) a reference to a subsection, paragraph, subparagraph or clause is a reference to the subsection, paragraph, subparagraph or clause of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

3. Repeals.

3.—(1) The enactments specified in the Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.

• (2) Notwithstanding subsection (1)—

• (a) orders made before the commencement of Part II under a provision of the Act of 1989 repealed by subsection (1) shall continue in force and be treated after such commencement as if made under the corresponding provision of this Act,

• (b) (i) orders or decrees made or exceptions granted under section 1 of the Legitimacy Declaration Act (Ireland), 1868, section 1 of the Marriages Act, 1972, or section 12 of the Married Women’s Status Act, 1957, before such commencement shall continue in force after such commencement,

• (ii) proceedings instituted under any of those sections before such commencement may be continued and determined after such commencement, and

• (iii) orders or decrees made or exceptions granted after such commencement in those proceedings shall be in force,

• (c) proceedings instituted before such commencement under a provision of the Act of 1989 repealed by subsection (1) may be continued and determined as if instituted under the corresponding provision of this Act and orders made in those proceedings after such commencement shall be in force and be treated as if made under the corresponding provision of this Act.

4. Expenses.

4.—The expenses incurred by the Minister for Equality and Law Reform, the Minister for Health or the Minister for Justice in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Preliminary and Ancillary Orders in or after Proceedings for Judicial Separation

5. Application (sections 6 to 14).

5.—Each of the following sections, that is to say, sections 6 to 14, applies to a case in which proceedings for the grant of a decree of judicial separation are instituted after the commencement of that section.

6. Preliminary orders in proceedings for judicial separation.

6.—Where an application is made to the court for the grant of a decree of judicial separation, the court, before deciding whether to grant or refuse to grant the decree, may, in the same proceedings and without the institution of proceedings under the Act concerned, if it appears to the court to be proper to do so, make one or more of the following orders—

• F7[(a) an order under section 6, 7, 8 or 10 of the Act of 2018,]

• (b) an order under section 11 of the Act of 1964,

• (c) an order under section 5 or 9 of the Family Home Protection Act, 1976.

7. Maintenance pending suit orders.

7.—(1) Where an application is made to the court for the grant of a decree of judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either of the spouses concerned to make to the other spouse such periodical payments or lump sum payments for his or her support and, where appropriate, to make to such person as may be specified in the order such periodical payments for the benefit of such (if any) dependent member of the family and, as respects periodical payments, for such period beginning not earlier than the date of the application and ending not later than the date of its determination, as the court considers proper and specifies in the order.

• (2) The court may provide that payments under an order under this section shall be subject to such terms and conditions as it considers appropriate and specifies in the order.

8. Periodical payments and lump sum orders.

8.—(1) On granting a decree of judicial separation F8[or at any time thereafter], the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders, that is to say:

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

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

• (ii) an order that either of the spouses shall make to such person as may be so specified for the benefit of such (if any) dependent member of the family such periodical payments of such amount, during such period and at such times as may be so specified,

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

• (i) an order that either of the spouses shall secure, to the satisfaction of the court, to the other spouse such periodical payments of such amounts during such period and at such times as may be so specified, or

• (ii) an order that either of the spouses shall secure, to the satisfaction of the court, to such person as may be so specified for the benefit of such (if any) dependent member of the family such periodical payments of such amounts, during such period and at such times as may be so specified,

• (c) (i) an order that either of the spouses shall make to the other spouse a lump sum payment or lump sum payments of such amount or amounts and at such time or times as may be so specified F8[or],

• (ii) an order that either of the spouses shall make to such person as may be so specified for the benefit of such (if any) dependent member of the family a lump sum payment or lump sum payments of such amount or amounts and at such time or times as may be so specified.

• (2) The court may—

• (a) order a spouse to pay a lump sum to the other spouse to meet any liabilities or expenses reasonably incurred by that other spouse before the making of an application by that other spouse for an order under subsection (1) in maintaining himself or herself or any dependent member of the family, or

• (b) order a spouse to pay a lump sum to such person as may be specified to meet any liabilities or expenses reasonably incurred by or for the benefit of a dependent member of the family before the making of an application on behalf of the member for an order under subsection (1).

• (3) An order under this section for the payment of a lump sum may provide for the payment of the lump sum by instalments of such amounts as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

• (4) The period specified in an order under paragraph (a) or (b) of subsection (1) shall begin not earlier than the date of the application for the order and shall end not later than the death of F9[the spouse, or any dependent member of the family, in whose favour the order is made or the other spouse concerned].

• (5)
• (a) Upon the remarriage F10[or registration in a civil partnership] of the spouse in whose favour an order is made under paragraph (a) or (b) of subsection (1), the order shall, to the extent that it applies to that spouse, cease to have effect, except as respects payments due under it on the date of the remarriage F10[or civil partnership registration].

• (b) If, after the grant of a decree of judicial separation, either of the spouses concerned remarries F10[or registers in a civil partnership], the court shall not, by reference to that decree, make an order under subsection (1) in favour of that spouse.

• (6)
• (a) Where a court makes an order under subsection (1) (a), it shall in the same proceedings, subject to paragraph (b), make an attachment of earnings order (within the meaning of the Act of 1976) to secure payments under the first-mentioned order if it is satisfied that the person against whom the order is made is a person to whom earnings (within the meaning aforesaid) fall to be paid.

• (b) Before deciding whether to make or refuse to make an attachment of earnings order by virtue of paragraph (a), the court shall give the spouse concerned an opportunity to make the representations specified in paragraph (c) in relation to the matter and shall have regard to any such representations made by that spouse.

• (c) The representations referred to in paragraph (b) are representations relating to the questions—

• (i) whether the spouse concerned is a person to whom such earnings as aforesaid fall to be paid, and

• (ii) whether he or she would make the payments to which the relevant order under subsection (1) (a) relates.

• (d) References in this subsection to an order under subsection (1) (a) include references to such an order as varied or affirmed on appeal from the court concerned or varied under section 18.

9. Property adjustment orders.

9.—(1) On granting a decree of judicial separation F11[or at any time thereafter], the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make a property adjustment order, that is to say, an order providing for one or more of the following matters:

• (a) the transfer by either of the spouses to the other spouse, to any dependent member of the family or to any other specified person for the benefit of such a member of specified property, being property to which the first-mentioned spouse is entitled either in possession or reversion;

• (b) the settlement to the satisfaction of the court of specified property, being property to which either of the spouses is so entitled as aforesaid, for the benefit of the other spouse and of any dependent member of the family or of any or all of those persons;

• (c) the variation for the benefit of either of the spouses and of any dependent member of the family or of any or all of those persons of any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses;

• (d) the extinguishment or reduction of the interest of either of the spouses under any such settlement.

• (2) An order under paragraph (b), (c) or (d) may restrict to a specified extent or exclude the application of section 18 in relation to the order.

• (3) If, after the grant of a decree of judicial separation, either of the spouses concerned remarries F12[or registers in a civil partnership], the court shall not, by reference to that decree, make a property adjustment order in favour of that spouse.

• (4) Where a property adjustment order is made in relation to land, a copy of the order certified to be a true copy by the registrar or clerk of the court concerned shall, as appropriate, be lodged by him or her in the Land Registry for registration pursuant to section 69 (1) (h) of the Registration of Title Act, 1964, in a register maintained under that Act or be registered in the Registry of Deeds.

• F13[(4A) Where a property adjustment order lodged under subsection (4) and registered pursuant to section 69(1)(h) of the Registration of Title Act 1964 or in the Registry of Deeds has been complied with, the Property Registration Authority shall, on being satisfied that the order has been complied with—

• (a) cancel the entry made in the register under the Registration of Title Act 1964, or

• (b) note compliance with the order in the Registry of Deeds.]

• (5) Where—

• (a) a person is directed by an order under this section to execute a deed or other instrument in relation to land, and

• (b) the person refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to do so,

the court may order another person to execute the deed or instrument in the name of the first-mentioned person; and a deed or other instrument executed by a person in the name of another person pursuant to an order under this subsection shall be as valid as if it had been executed by that other person.

• (6) Any costs incurred in complying with a property adjustment order shall be borne, as the court may determine, by either of the spouses concerned, or by both of them in such proportions as the court may determine, and shall be so borne in such manner as the court may determine.

• (7) 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.

10. Miscellaneous ancillary orders.

10.—(1) On granting a decree of judicial separation F14[or at any time thereafter], the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders:

• (a) an order—

• (i) providing for the conferral on one spouse either for life or for such other period (whether definite or contingent) as the court may specify the right to occupy the family home to the exclusion of the other spouse, or

• (ii) directing the sale of the family home subject to such conditions (if any) as the court considers proper and providing for the disposal of the proceeds of the sale between the spouses and any other person having an interest therein,

• (b) an order under section 36,

• (c) an order under section 4, 5, 7 or 9 of the Family Home Protection Act, 1976,

• F15[(d) an order under section 6, 7, 8 or 10 of the Act of 2018,]

• (e) an order F16[under section 31 of the Land and Conveyancing Law Reform Act 2009],

• (f) an order under section 11 of the Act of 1964.

• (2) The court, in exercising its jurisdiction under subsection (1) (a), shall have regard to the welfare of the spouses and any dependent member of the family and, in particular, shall take into consideration—

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

• (b) that proper and secure accommodation should, where practicable, be provided for a spouse who is wholly or mainly dependent on the other spouse and for any dependent member of the family.

• F14[(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.]

11. Financial compensation orders.

11.—(1) Subject to the provisions of this section, 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 or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers—

• (a) that the financial security of the spouse making the application (“the applicant”) or the dependent member of the family (“the member”) can be provided for either wholly or in part by so doing, or

• (b) that the forfeiture, by reason of the decree of judicial separation, by the applicant or the dependent, as the case may be, of the opportunity or possibility of acquiring a benefit (for example, a benefit under a pension scheme) can be compensated for wholly or in part by so doing,

make a financial compensation order, that is to say, an order requiring either or both of the spouses to do one or more of the following:

• (i) to effect such a policy of life insurance for the benefit of the applicant or the member as may be specified in the order,

• (ii) to assign the whole or a specified part of the interest of either or both of the spouses in a policy of life insurance effected by either or both of the spouses to the applicant or to such person as may be specified in the order for the benefit of the member,

• (iii) to make or to continue to make to the person by whom a policy of life insurance is or was issued the payments which either or both of the spouses is or are required to make under the terms of the policy.

• (2)
• (a) The court may make a financial compensation order in addition to or in substitution in whole or in part for orders under sections 8 to 10 and 12 and in deciding whether or not to make such an order it shall have regard to whether F17[proper provision, having regard to the circumstances,] exists or can be made for the spouse concerned or the dependent member of the family concerned by orders under those sections.

• (b) An order under this section shall cease to have effect on the remarriageF18[, registration in a civil partnership] or death of the applicant in so far as it relates to the applicant.

• (c) The court shall not make an order under this section if the spouse who is applying for the order has remarried F18[or registered in a civil partnership].

• (d) An order under section 18 in relation to an order under paragraph (i) or (ii) of subsection (1) may make such provision (if any) as the court considers appropriate in relation to the disposal of—

• (i) an amount representing any accumulated value of the insurance policy effected pursuant to the order under the said paragraph (i), or

• (ii) the interest or the part of the interest to which the order under the said paragraph (ii) relates.

12. Pension adjustment orders.

12.—(1) In this section, save where the context otherwise requires—

“the Act of 1990” means the Pensions Act, 1990;

“active member”, in relation to a scheme, means a member of the scheme who is in reckonable service;

“actuarial value” means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such benefit) under a scheme calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and thereafter in accordance with normal life expectancy on the assumption that the member concerned of the scheme, at the effective date of calculation, is in a normal state of health having regard to his or her age;

“approved arrangement”, in relation to the trustees of a scheme, means an arrangement whereby the trustees, on behalf of the person for whom the arrangement is made, effect policies or contracts of insurance that are approved of by the Revenue Commissioners with, and make the appropriate payments under the policies or contracts to, one or more undertakings;

“contingent benefit” means a benefit payable under a scheme, other than a payment under subsection (7) to or for one or more of the following, that is to say, the widow or the widower and any dependants of the member spouse concerned and the personal representative of the member spouse, if the member spouse dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the scheme;

F19["defined contribution scheme" has the same meaning as in the Pensions Act 1990;]

“designated benefit”, in relation to a pension adjustment order, means an amount determined by the trustees of the scheme concerned, in accordance with relevant guidelines, and by reference to the period and the percentage of the retirement benefit specified in the order concerned under subsection (2);

“member spouse”, in relation to a scheme, means a spouse who is a member of the scheme;

“normal pensionable age” means the earliest age at which a member of a scheme is entitled to receive benefits under the rules of the scheme on retirement from relevant employment, disregarding any such rules providing for early retirement on grounds of ill health or otherwise;

“occupational pension scheme” has the meaning assigned to it by section 2 (1) of the Act of 1990;

“reckonable service” means service in relevant employment during membership of any scheme;

“relevant guidelines” means any relevant guidelines for the time being in force under F20[paragraph (c) or (cc) of section 10 (1)] of the Act of 1990;

“relevant employment”, in relation to a scheme, means any employment (or any period treated as employment) or any period of self employment to which a scheme applies;

“retirement benefit”, in relation to a scheme, means all benefits (other than contingent benefits) payable under the scheme;

“rules”, in relation to a scheme, means the provisions of the scheme, by whatever name called;

“scheme” means a pension scheme;

“transfer amount” shall be construed in accordance with subsection (4);

“undertaking” has the meaning assigned to it by the Insurance Act, 1989.

• (2) Subject to the provisions of this section, where a decree of judicial separation (“the decree”) has been granted, the court, if it so thinks fit, may, in relation to retirement benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf at the time of the making of the order for the decree or at any time thereafter during the lifetime of the member spouse by either of the spouses or by a person on behalf of a dependent member of the family, make an order providing for the payment, in accordance with the provisions of this section, to either of the following, as the court may determine, that is to say:

• (a) the other spouse and, in the case of the death of that spouse, his or her personal representative, and

• (b) such person as may be specified in the order for the benefit of a person who is, and for so long only as he or she remains, a dependent member of the family,

of a benefit consisting, either, as the court may determine, of the whole, or such part as the court considers appropriate, of that part of the retirement benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme and has accrued at the time of the making of the order for the decree and, for the purpose of determining the benefit, the order shall specify—

• (i) the period of reckonable service of the member spouse prior to the granting of the decree to be taken into account, and

• (ii) the percentage of the retirement benefit accrued during that period to be paid to the person referred to in paragraph (a) or (b), as the case may be.

• (3) Subject to the provisions of this section, where a decree of judicial separation (“the decree”) has been granted, the court, if it so thinks fit, may, in relation to a contingent benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf not more than one year after the making of the order for the decree by either of the spouses or by a person on behalf of a dependent member of the family concerned, make an order providing for the payment, upon the death of the member spouse, to either of the following, or to both of them in such proportions as the court may determine, that is to say:

• (a) the other spouse, and

• (b) such person as may be specified in the order for the benefit of a dependent member of the family,

of, either, as the court may determine, the whole, or such part (expressed as a percentage) as the court considers appropriate, of that part of any contingent benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme.

• (4) Where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the spouse in whose favour the order is made shall be entitled to the application in accordance with subsection (5) of an amount of money from the scheme concerned (in this section referred to as a “transfer amount”) equal to the value of the designated benefit, such amount being determined by the trustees of the scheme in accordance with relevant guidelines.

• (5) Subject to subsection (17), where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the trustees of the scheme concerned shall, for the purpose of giving effect to the order—

• (a) on application to them in that behalf at the time of the making of the order or at any time thereafter by the spouse in whose favour the order was made (“the spouse”), and

• (b) on the furnishing to them by the spouse of such information as they may reasonably require,

apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines either—

• (i) if the trustees and the spouse so agree, in providing a benefit for or in respect of the spouse under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or

• (ii) in making a payment either to—

• (I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

• (II) in the discharge of any payment falling to be made by the trustees under any such other approved arrangement,

as may be determined by the spouse.

• (6) Subject to subsection (17), where the court makes an order under subsection (2) in relation to a defined contribution scheme and an application has not been brought under subsection (5), the trustees of the scheme may, for the purpose of giving effect to the order, if they so think fit, apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines in making a payment to—

• (a) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

• (b) in the discharge of any payment falling to be made by the trustees under such other approved arrangement,

as may be determined by the trustees.

• (7) Subject to subsection (17), where—

• (a) the court makes an order under subsection (2), and

• (b) the member spouse concerned dies before payment of the designated benefit concerned has commenced,

the trustees shall, for the purpose of giving effect to the order, within 3 months of the death of the member spouse, provide for the payment to the person in whose favour the order is made of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.

• (8) Subject to subsection (17), where—

• (a) the court makes an order under subsection (2), and

• (b) the member spouse concerned ceases to be a member of the scheme otherwise than on death,

the trustees may, for the purpose of giving effect to the order, if they so think fit, apply, in accordance with relevant guidelines, the transfer amount calculated in accordance with those guidelines either, as the trustees may determine—

• (i) if the trustees and the person in whose favour the order is made (“the person”) so agree, in providing a benefit for or in respect of the person under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or

• (ii) in making a payment, either to—

• (I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or

• (II) in the discharge of any payment falling to be made under such other approved arrangement,

as may be determined by the trustees.

• (9) Subject to subsection (17), where—

• (a) the court makes an order under subsection (2) in favour of a spouse (“the spouse”), and

• (b) the spouse dies before payment of the designated benefit has commenced,

the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the transfer amount calculated in accordance with relevant guidelines.

• (10) Subject to subsection (17), where—

• (a) the court makes an order under subsection (2) in favour of a spouse (“the spouse”), and

• (b) the spouse dies after payment of the designated benefit has commenced,

the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the actuarial value, calculated in accordance with relevant guidelines, of the part of the designated benefit which, but for the death of the spouse, would have been payable to the spouse during the lifetime of the member spouse.

• (11) Where—

• (a) the court makes an order under subsection (2) for the benefit of a dependent member of the family (“the person”), and

• (b) the person dies before payment of the designated benefit has commenced,

the order shall cease to have effect in so far as it relates to that person.

• (12) Where—

• (a) the court makes an order under subsection (2) or (3) in relation to an occupational pension scheme, and

• (b) the trustees of the scheme concerned have not applied the transfer amount concerned in accordance with subsection (5), (6), (7), (8) or (9), and

• (c) after the making of the order, the member spouse ceases to be an active member of the scheme,

the trustees shall, within 12 months of the cessation, notify the registrar or clerk of the court concerned and the other spouse of the cessation.

• (13) Where the trustees of a scheme apply a transfer amount under subsection (6) or (8), they shall notify the spouse (not being the spouse who is the member spouse) or other person concerned and the registrar or clerk of the court concerned of the application and shall give to that spouse or other person concerned particulars of the scheme or undertaking concerned and of the transfer amount.

• (14) Where the court makes an order under subsection (2) or (3) for the payment of a designated benefit or a contingent benefit, as the case may be, the benefit shall be payable or the transfer amount concerned applied out of the resources of the scheme concerned and, unless otherwise provided for in the order or relevant guidelines, shall be payable in accordance with the rules of the scheme or, as the case may be, applied in accordance with relevant guidelines.

• (15) Where the court makes an order under subsection (2), the amount of the retirement benefit payable, in accordance with the rules of the scheme concerned to, or to or in respect of, the member spouse shall be reduced by the amount of the designated benefit payable pursuant to the order.

• (16)
• (a) Where the court makes an order under subsection (3), the amount of the contingent benefit payable, in accordance with the rules of the scheme concerned in respect of the member spouse shall be reduced by an amount equal to the contingent benefit payable pursuant to the order.

• (b) Where the court makes an order under subsection (2) and the member spouse concerned dies before payment of the designated benefit concerned has commenced, the amount of the contingent benefit payable in respect of the member spouse in accordance with the rules of the scheme concerned shall be reduced by the amount of the payment made under subsection (7).

• (17) Where, pursuant to an order under subsection (2), the trustees of a scheme make a payment or apply a transfer amount under subsections (5), (6), (7), (8), (9) or (10), they shall be discharged from any obligation to make any further payment or apply any transfer amount under any other of those subsections in respect of the benefit payable pursuant to the order.

• (18) A person who makes an application under subsection (2) or (3) or an application for an order under section 18 (2) in relation to an order under subsection (2) shall give notice thereof to the trustees of the scheme concerned 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 any person to whom notice of the application has been given under this section or section F20[40].

• (19) An order under subsection (3), shall cease to have effect on the death or remarriage F21[or registration in a civil partnership] of the person in whose favour it was made in so far as it relates to that person.

• (20) The court may, in a pension adjustment order or by order made under this subsection after the making of a pension adjustment order, give to the trustees of the scheme concerned such directions as it considers appropriate for the purposes of the pension adjustment order including directions compliance with which occasions non-compliance with the rules of the scheme concerned or the Act of 1990; and a trustee of a scheme shall not be liable in any court or other tribunal for any loss or damage caused by his or her non-compliance with the rules of the scheme or with the Act of 1990 if the non-compliance was occasioned by his or her compliance with a direction of the court under this section.

• (21) The registrar or clerk of the court concerned shall cause a copy of a pension adjustment order to be served on the trustees of the scheme concerned.

• (22)
• (a) Any costs incurred by the trustees of a scheme under subsection (18) or in complying with a pension adjustment order or a direction under subsection (20) or (25) shall be borne, as the court may determine, by the member spouse or by the other person concerned or by both of them in such proportion as the court may determine and, in the absence of such determination, those costs shall be borne by them equally.

• (b) Where a person fails to pay an amount in accordance with paragraph (a) to the trustees of the scheme concerned, the court may, on application to it in that behalf by the trustees, order that the amount be deducted from the amount of any benefit payable to the person under the scheme or pursuant to an order under subsection (2) or (3) and be paid to the trustees.

• (23)
• (a) The court shall not make a pension adjustment order if the spouse who applies for the order has remarried F21[or registered in a civil partnership].

• (b) The court may make a pension adjustment order in addition to or in substitution in whole or in part for an order or orders under section 8, 9, 10 or 11 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether F22[proper provision, having regard to the circumstances,] exists or can be made for the spouse concerned or the dependent member of the family concerned by an order or orders under any of those sections.

• (24) Section 54 of the Act of 1990 and any regulations under that section shall apply with any necessary modifications to a scheme if proceedings for the grant of a decree of judicial separation to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of judicial separation in the proceedings.

• (25) For the purposes of this Act, the court may, of its own motion, and shall, if so requested by either of the spouses concerned or any other person concerned, direct the trustees of the scheme concerned to provide the spouses or that other person and the court, within a specified period of time—

• (a) with a calculation of the value and the amount, determined in accordance with relevant guidelines, of the retirement benefit, or contingent benefit, concerned that is payable (or which, but for the making of the order for the decree of judicial separation concerned, would have been payable) under the scheme and has accrued at the time of the making of that order, and

• (b) with a calculation of the amount of the contingent benefit concerned that is payable (or which, but for the making of the order for the decree of judicial separation concerned, would have been payable) under the scheme.

• (26) An order under this section may restrict to a specified extent or exclude the application of section 18 in relation to the order.

13. Preservation of pension entitlements after judicial separation.

13.—(1) Subject to the provisions of this section, on granting a decree of judicial separation or at any time thereafter, the court may, in relation to a pension scheme, on application to it in that behalf by either of the spouses concerned, make during the lifetime of the spouse who is a member of the scheme (“the member spouse”) an order directing the trustees of the scheme not to regard the separation of the spouses resulting from the decree as a ground for disqualifying the other spouse for the receipt of a benefit under the scheme a condition for the receipt of which is that the spouses should be residing together at the time the benefit becomes payable.

• (2) Notice of an application under subsection (1) shall be given by the spouse concerned to the trustees of the pension scheme concerned and, in deciding whether to make an order under subsection (1), the court shall have regard to any representations made by any person to whom notice of the application has been given under this section or section 40.

• (3) Any costs incurred by the trustees of a pension scheme under subsection (2) or in complying with an order under subsection (1) shall be borne, as the court may determine, by either of the spouses concerned or by both of the spouses and in such proportion and manner as the court may determine.

• (4) The court may make an order under this section in addition to or in substitution in whole or in part for orders under sections 8 to 11 and, in deciding whether or not to make such an order, it shall have regard to the question whether adequate and reasonable financial provision exists or can be made for the spouse concerned by orders under those sections.

14. Orders extinguishing succession rights on judicial separation.

14.—On granting a decree of judicial separation or at any time thereafter, the court may, on application to it in that behalf by either of the spouses concerned, make an order extinguishing the share that either of the spouses would otherwise be entitled to in the estate of the other spouse as a legal right or on intestacy under the Act of 1965 if—

• (a) it is satisfied that adequate and reasonable financial provision exists or can be made under section 8, 9, 10 (1) (a), 11, 12 or 13 for the spouse whose succession rights are in question (“the spouse concerned”),

• (b) the spouse concerned is a spouse for the support of whom the court refused to make an order under section 8, 9, 10 (1) (a), 11, 12 or 13, or

• (c) it is satisfied that the spouse concerned is not a spouse for whose benefit the court would, if an application were made to it in that behalf, make an order under section 8, 9, 10 (1) (a), 11, 12 or 13.

15. Orders for sale of property.

15.—(1) Where the court makes a secured periodical payments order, a lump sum order or a property adjustment order, thereupon, or at any time thereafter, it may make an order directing the sale of such property as may be specified in the order, being property in which, or in the proceeds of sale of which, either or both of the spouses concerned has or have a beneficial interest, either in possession or reversion.

• (2) The jurisdiction conferred on the court by subsection (1) shall not be so exercised as to affect a right to occupy the family home of the spouse concerned that is enjoyed by virtue of an order under this Part.

• (3)
• (a) An order under subsection (1) may contain such consequential or supplementary provisions as the court considers appropriate.

• (b) Without prejudice to the generality of paragraph (a), an order under subsection (1) may contain—

• (i) a provision specifying the manner of sale and some or all of the conditions applying to the sale of the property to which the order relates,

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

• (iii) a provision directing that the order, or a specified part of it, shall not take effect until the occurrence of a specified event or the expiration of a specified period,

• (iv) a provision requiring the making of a payment or payments (whether periodical payments or lump sum payments) to a specified person or persons out of the proceeds of the sale of the property to which the order relates, and

• (v) a provision specifying the manner in which the proceeds of the sale of the property concerned shall be disposed of between the following persons or such of them as the court considers appropriate, that is to say, the spouses concerned and any other person having an interest therein.

• (4) A provision in an order under subsection (1) providing for the making of periodical payments to one of the spouses concerned out of the proceeds of the sale of property shall, on the death or remarriage F23[or registration in a civil partnership] of that spouse, cease to have effect except as respects payments due on the date of the death or remarriage F23[or civil partnership registration].

• (5) Where a spouse has a beneficial interest in any property, or in the proceeds of the sale of any property, and a person (not being the other spouse) also has a beneficial interest in that property or those proceeds, then, in considering whether to make an order under this section or section 9 or F24[10 (1) (a)] in relation to that property or those proceeds, the court shall give to that person an opportunity to make representations with respect to the making of the order and the contents thereof, and any representations made by such a person shall be deemed to be included among the matters to which the court is required to have regard under section 16 in any relevant proceedings under a provision referred to in that section after the making of those representations.

• F25[(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.]

15A. F26[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 F27[or registered in a civil partnership] 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.]

16. Provisions relating to certain orders under sections 7 to 13 and 18.

16.—(1) In deciding whether to make an order under section 7, 8, 9, 10 (1) (a), 11, 12, 13, 14, F28[15A,] 18 or 25 and in determining the provisions of such an order, the court shall endeavour to ensure that such provision F29[exists or will be made] for each spouse concerned and for any dependent member of the family concerned as is F29[proper] having regard to all the circumstances of the case.

• (2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, 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 concerned 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 (whether in the case of the remarriage of the spouse or otherwise),

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

• (d) the age of each of the spouses and the length of time during which the spouses lived together,

• (e) any physical or mental disability of either of the spouses,

• (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 any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

• (g) the effect on the earning capacity of each of the spouses 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 that spouse 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 of the spouses 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 of the case be unjust to disregard it,

• (j) the acommodation needs of either of the spouses,

• (k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned that spouse will forfeit the opportunity or possibility of acquiring,

• (l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.

• (3)
• (a) The court shall not make an order under a provision referred to in subsection (1) for the support of a spouse if the spouse had deserted the other spouse before the institution of proceedings for the decree or, as the case may be, a decree, specified in that provision and had continued such desertion up to the time of the institution of such proceedings unless, having regard to all the circumstances of the case (including the conduct of the other spouse), the court is of opinion that it would be unjust not to make the order.

• (b) A spouse who, with just cause, leaves and lives apart from the other spouse because of conduct on the part of that other spouse shall not be regarded for the purposes of paragraph (a) as having deserted that spouse.

• (4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

• (a) the financial needs of the member,

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

• (c) any physical or mental disability of the member,

• (d) any income or benefits to which the member is entitled by or under statute,

• (e) the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,

• (f) the matters specified in paragraphs (a), (b) and (c) of subsection (2),

• (g) the accommodation needs of the member.

• (5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.

• (6) In this section “desertion” includes conduct on the part of one of the spouses concerned that results in the other spouse, with just cause, leaving and living apart from the first-mentioned spouse.

17. Retrospective periodical payments orders.

17.—(1) Where, having regard to all the circumstances of the case, the court considers it appropriate to do so, it may, in a periodical payments order, direct that—

• (a) the period in respect of which payments under the order shall be made shall begin on such date before the date of the order, not being earlier than the time of the institution of the proceedings concerned for the grant of a decree of judicial separation, as may be specified in the order,

• (b) any payments under the order in respect of a period before the date of the order be paid in one sum and before a specified date, and

• (c) there be deducted from any payments referred to in paragraph (b) made to the spouse concerned an amount equal to the amount of such (if any) payments made to that spouse by the other spouse as the court may determine, being payments made during the period between the making of the order for the grant of the decree aforesaid and the institution of the proceedings aforesaid.

• (2) The jurisdiction conferred on the court by subsection (1) (b) is without prejudice to the generality of section 8 (1) (c).

18. Variation, etc., of certain orders under this Part.

18.—(1) This section applies to the following orders—

• (a) a maintenance pending suit order,

• (b) a periodical payments order,

• (c) a secured periodical payments order,

• (d) a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires the payment of any such instalments to be secured,

• (e) an order under paragraph (b), (c) or (d) of section 9 (1) in so far as such application is not restricted or excluded pursuant to section 9 (2),

• (f) an order under subparagraph (i) or (ii) of section 10 (1) (a),

• (g) a financial compensation order,

• (h) an order under subsection (2) of section 12 F30[insofar as such application is not restricted or excluded by section 12 (26)],

• (i) an order under section 13,

• (j) an order under this section.

• (2) Subject to the provisions of this section and section 16 and any restriction pursuant to section 9 (2) and without prejudice to section 11 (2) (d), the court may, on application to it in that behalf by either of the spouses concerned or, in the case of the death of either of the spouses, by any other person who, in the opinion of the court, has a sufficient interest in the matter or by a person on behalf of a dependent member of the family concerned, if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, by order vary or discharge an order to which this section applies, suspend any provision of such an order or any provision of such an order temporarily, revive the operation of such an order or provision so suspended, further vary an order previously varied under this section or further suspend or revive the operation of an order or provision previously suspended or revived under this section; and, without prejudice to the generality of the foregoing, an order under this section may require the divesting of any property vested in a person under or by virtue of an order to which this section applies.

• (3) Without prejudice to the generality of section 7 or 8, that part of an order to which this section applies which provides for the making of payments for the support of a dependent member of the family shall stand discharged if the member ceases to be a dependent member of the family by reason of his or her attainment of the age of 18 years or 23 years, as may be appropriate, and shall be discharged by the court, on application to it under subsection (2), if it is satisfied that the member has for any reason ceased to be a dependent member of the family.