Family Law (Divorce) Act , 1996

PART I Preliminary and General

1. Short title and commencement.

1.—(1)This Act may be cited as the Family Law (Divorce) Act, 1996.

(2)This Act shall come into operation on the day that is 3 months after the date of its passing.

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;

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

“the Act of 1995” means the Family Law Act, 1995;

F1[…]

F2["Act of 2018" means the Domestic Violence Act 2018;]

F3["civil partnership" has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

“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 divorce” means a decree under section 5;

“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 16;

“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 13 (1) (c);

“maintenance pending suit order” means an order under section 12;

“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 17;

“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

F4[(bb) a PRSA contract within the meaning of Part X of thePensions 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 13;

“property adjustment order” has the meaning assigned to it by section 14;

F3["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 undersection 5of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;]

“trustees”, in relation to a scheme that is established under a trust, means the trustees of the 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 this Act,

(b)a reference to a remarriage includes a reference to a marriage that takes place after a marriage that has been dissolved under this Act,

(c)a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under this Act,

(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 this Act,

(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. Repeal.

3.—Section 14 (2) of the Censorship of Publications Act, 1929, is hereby repealed.

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 The Obtaining of a Decree of Divorce

5. Grant of decree of divorce and custody etc., of children.

5.—(1)Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that—

(a)at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, F5[at least two years during the previous three years],

(b)there is no reasonable prospect of a reconciliation between the spouses, and

(c)such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,

the court may, in exercise of the jurisdiction conferred by Article 41.3.2° of the Constitution, grant a decree of divorce in respect of the marriage concerned.

F6[(1A) For the purposes of this section—

(a) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and

(b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.]

(2)Upon the grant of a decree of divorce, the court may, where appropriate, give such directions under section 11 of the Act of 1964 as it considers proper regarding the welfare (within the meaning of that Act), custody of, or right of access to, any dependent member of the family concerned who is an infant (within the meaning of that Act) as if an application had been made to it in that behalf under that section.

6. Safeguards to ensure applicant’s awareness of alternatives to divorce proceedings and to assist attempts at reconciliation.

6.—(1)In this section “the applicant” means a person who has applied, is applying or proposes to apply to the court for the grant of a decree of divorce.

(2)If a solicitor is acting for the applicant, the solicitor shall, prior to the institution of the proceedings concerned under section 5—

(a)discuss with the applicant the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged,

(b)discuss with the applicant the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse F7[, give to the applicant the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the applicant of the matters referred to insections 10and11of the Mediation Act 2017], and

(c)discuss with the applicant the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

(3)Such a solicitor shall also ensure that the applicant is aware of judicial separation as an alternative to divorce where a decree of judicial separation in relation to the applicant and the other spouse is not in force.

(4)If a solicitor is acting for the applicant—

(a)the originating document by which the proceedings under section 5 are instituted shall be accompanied by a F7[statutory declaration made by the solicitor] indicating, if it be the case, that he or she has complied with subsection (2) and, if appropriate, subsection (3) in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2), and, if appropriate, to make the applicant aware of judicial separation,

(b)if the solicitor has complied with paragraph (a), any copy of the originating document aforesaid served on any person or left in an office of the court shall be accompanied by a copy of the F7[statutory declaration] aforesaid.

(5)F8[…]

(6)The Minister may make regulations to allow for the establishment of a Register of Professional Organisations whose members are qualified to assist the parties involved in effecting a reconciliation, such register to show the names of members of those organisations and procedures to be put in place for the organisations involved to regularly update the membership lists.

7. Safeguards to ensure respondent’s awareness of alternatives to divorce proceedings and to assist attempts at reconciliation.

7.—(1)In this section “the respondent” means a person who is the respondent in proceedings in the court under section 5.

(2)If a solicitor is acting for the respondent, the solicitor shall, as soon as may be after receiving instructions from the respondent in relation to the proceedings concerned under section 5—

(a)discuss with the respondent the possibility of a reconciliation and give to him or her the names and addresses of persons qualified to effect a reconciliation between spouses who have become estranged,

(b)discuss with the respondent the possibility of engaging in mediation to help to effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse F9[, give to the respondent the names and addresses of persons who provide a mediation service for spouses who have become estranged and inform the respondent of the matters referred to insections 10and11of the Mediation Act 2017], and

(c)discuss with the respondent the possibility (where appropriate) of effecting a separation by means of a deed or agreement in writing executed or made by the applicant and the other spouse and providing for their separation.

(3)Such a solicitor shall also ensure that the respondent is aware of judicial separation as an alternative to divorce where a decree of judicial separation is not in force in relation to the respondent and the other spouse.

(4)If a solicitor is acting for the respondent—

(a)the memorandum or other document delivered to the appropriate officer of the court for the purpose of the entry of an appearance by the respondent in proceedings under section 5 shall be accompanied by a F9[statutory declaration made by the solicitor] in relation to the matter and, if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable to enable the solicitor to engage in the discussions specified in subsection (2) and, if appropriate, to make the applicant aware of judicial separation,

(b)if paragraph (a) is complied with, any copy of the document aforesaid given or sent to the other party to the proceedings or his or her solicitor shall be accompanied by a copy of the relevant F9[statutory declaration] aforesaid.

(5)F10[…]

8. Adjournment of proceedings to assist reconciliation or agreements on the terms of the divorce.

8.—(1)Where an application is made to the court for the grant of a decree of divorce, the court shall give consideration to the possibility of a reconciliation between the spouses concerned and, accordingly, may adjourn the proceedings at any time for the purpose of enabling attempts to be made by the spouses, if they both so wish, to effect such a reconciliation with or without the assistance of a third party.

(2)Where, in proceedings under section 5, it appears to the court that a reconciliation between the spouses cannot be effected, it may adjourn or further adjourn the proceedings for the purpose of enabling attempts to be made by the spouses, if they both so wish, to reach agreement, with or without the assistance of a third party, on some or all of the terms of the proposed divorce.

(3)If proceedings are adjourned pursuant to subsection (1) or (2), either or both of the spouses may at any time request that the hearing of the proceedings be resumed as soon as may be and, if such a request is made, the court shall, subject to any other power of the court to adjourn proceedings, resume the hearing.

(4)The powers conferred by this section are additional to any other power of the court to adjourn proceedings.

(5)Where the court adjourns proceedings under this section, it may, at its discretion, advise the spouses concerned to seek the assistance of a third party in relation to the effecting of a reconciliation between the spouses or the reaching of agreement between them on some or all of the terms of the proposed divorce.

9. Non-admissibility as evidence of certain communications relating to reconciliation, separation or divorce.

9.—An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation or a divorce (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.

10. Effect of decree of divorce.

10.—(1)Where the court grants a decree of divorce, the marriage, the subject of the decree, is thereby dissolved and a party to that marriage may marry again.

(2)For the avoidance of doubt, it is hereby declared that the grant of a decree of divorce shall not affect the right of the father and mother of an infant, under section 6 of the Act of 1964, to be guardians of the infant jointly.

PART III Preliminary and Ancillary Orders in or after Proceedings for Divorce

11. Preliminary orders in proceedings for divorce.

11.—Where an application is made to the court for the grant of a decree of divorce, 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—

F11[(a)a safety order, barring order, interim barring order or protection order under 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.

12. Maintenance pending suit orders.

12.—(1)Where an application is made to the court for the grant of a decree of divorce, 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.

13. Periodical payments and lump sum orders.