Personal Insolvency Act 2012

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Personal Insolvency Act 2012.

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

2. Interpretation.

2.— (1) In this Act—

“appropriate court” shall be construed in accordance with section 5;

“bankruptcy” shall be construed in accordance with the Bankruptcy Act 1988;

“bankruptcy payment order” means an order made pursuant to section 85D of the Bankruptcy Act 1988;

“civil partner”, in relation to a person, means a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 but does not include a civil partner who is living separately from the person;

“connected person”, in relation to a person, shall be construed in accordance with subsection (2);

“creditor”, in relation to a debt, means a natural or legal person to whom a debtor owes that debt or to whom the debtor otherwise has a liability in respect of that debt;

F1["Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^45on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);]

“debtor”, in relation to a debt, means a natural person who—

(a) owes a debt to a creditor, or

(b) otherwise has a liability to a creditor;

“Debt Settlement Arrangement” means—

(a) an arrangement entered into by a debtor, or

(b) an arrangement for which a proposal is made,

under Chapter 3 of Part 3;

“domestic support order” means—

(a) an order which is an antecedent order for the purposes of the Family Law (Maintenance of Spouses and Children) Act 1976,

(b) an order which by virtue of any statutory provision is enforceable in the State as if it were an antecedent order under the Family Law (Maintenance of Spouses and Children) Act 1976,

(c) an order which is an antecedent order within the meaning of section 43 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and

(d) an order which is an antecedent order for the purposes of sections 176 to 186 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“electronic means” includes electrical, digital, magnetic, optical, electromagnetic, biometric and photonic means of transmission of data and other forms of related technology by means of which data is transmitted;

“establishment day” means the day appointed under section 7;

“excludable debt”, in relation to a debtor, means any:

(a) liability of the debtor arising out of any tax, duty, levy or other charge of a similar nature owed or payable to the State;

(b) amount payable by the debtor under the Local Government (Charges) Act 2009;

(c) amount payable by the debtor under the Local Government (Household Charge) Act 2011;

(d) liability of the debtor arising out of any rates due to the local authority (within the meaning of the Local Government Act 2001);

(e) debt or liability of the debtor in respect of moneys advanced to the debtor by the Health Service Executive under the Nursing Homes Support Scheme Act 2009;

(f) debt due by the debtor to any owners’ management company in respect of annual service charges under section 18 of the Multi-Unit Developments Act 2011 or contributions due under section 19 of that Act;

(g) debt or liability of the debtor arising under the Social Welfare Consolidation Act 2005;

“excluded debt”, in relation to a debtor, means any:

(a) liability of the debtor arising out of a domestic support order;

(b) liability of the debtor arising out of damages awarded by a court (or another competent authority) in respect of personal injuries or wrongful death arising from the tort of the debtor;

(c) debt or liability of the debtor arising from a loan (or forbearance of a loan) obtained through fraud, misappropriation, embezzlement or fraudulent breach of trust;

(d) debt or liability of the debtor arising by virtue of a court order made under the Proceeds of Crime Acts 1996 and 2005 or by virtue of a fine ordered to be paid by a court in respect of a criminal offence;

“insolvency arrangement” means a Debt Relief Notice, Debt Settlement Arrangement or a Personal Insolvency Arrangement;

“Insolvency Service” means the Insolvency Service of Ireland established by section 8;

“insolvent”, in relation to a debtor, shall be construed as meaning that the debtor is unable to pay his or her debts in full as they fall due;

“Minister” means the Minister for Justice and Equality;

F2[“Official Assignee”has the same meaning as it has in theBankruptcy Act 1988;]

F3["personal data" means personal data within the meaning of—

(a) the Data Protection Regulation, or

(b) Part 5 of the Data Protection Act 2018;]

“Personal Insolvency Arrangement” means—

(a) an arrangement entered into by a debtor, or

(b) an arrangement for which a proposal is made,

under Chapter 4 of Part 3;

“personal insolvency practitioner” means a person authorised under Part 5 to act as a personal insolvency practitioner;

“prescribed” means prescribed by regulations under section 3;

“principal private residence” means a dwelling in which the debtor ordinarily resides and includes—

(a) any building or structure, or

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

together with any garden or portion of ground attached to and occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling;

“protective certificate” means a certificate issued by the appropriate court pursuant to Chapter 3 or Chapter 4 of Part 3;

“relative”, in relation to a person, means a brother, sister, parent, spouse or civil partner of the person or a child of the person or of the spouse or civil partner;

“relevant pension arrangement” means:

(a) a retirement benefits scheme, within the meaning of section 771 of the Taxes Consolidation Act 1997, for the time being approved by the Revenue Commissioners for the purposes of Chapter 1 of Part 30 of that Act;

(b) an annuity contract or a trust scheme or part of a trust scheme for the time being approved by the Revenue Commissioners under section 784 of the Taxes Consolidation Act 1997;

(c) a PRSA contract, within the meaning of section 787A of the Taxes Consolidation Act 1997, in respect of a PRSA product, within the meaning of that section;

(d) a qualifying overseas pension plan within the meaning of section 787M of the Taxes Consolidation Act 1997;

(e) a public service pension scheme within the meaning of section 1 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004;

(f) a statutory scheme, within the meaning of section 770(1) of the Taxes Consolidation Act 1997, other than a public service pension scheme referred to in paragraph (e);

(g) such other pension arrangement as may be prescribed by the Minister, following consultation with the Ministers for Finance, Social Protection and Public Expenditure and Reform;

“secured creditor”, in relation to a debt, means a creditor of the debtor who holds, in respect of his or her debt, security (other than a guarantee or pledge referred to in section 35(8) of the Credit Union Act 1997) in or over property of the debtor;

“secured debt” means a debt the payment for which is secured by security in or over any asset or property of any kind;

“security” means, in relation to a debt, any means of securing payment of the debt and includes—

(a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property (whether real or personal and including choses-in-action),

(b) an assignment by way of security, and

(c) an undertaking or agreement by any person (including a solicitor) to give or create a security interest in property;

“solvent”, with respect to a debtor, means that the debtor is not insolvent;

“specified creditor”, in relation to a protective certificate, means a person specified in a protective certificate as being the person to whom a particular debt is owed;

“specified debt”, in relation to a protective certificate, means a debt that is specified in that protective certificate as being subject to that certificate;

“spouse”, in relation to a person, does not include a spouse who is living separately from the person;

“unsecured creditor”, in relation to a debt, means any creditor who is not a secured creditor;

“unsecured debt” means a debt in respect of which payment is not secured by security.

(2) Any question whether a person is connected with another shall be determined in accordance with the following provisions of this paragraph (any provision that one person is connected with another person being taken to mean also that that other person is connected with the first-mentioned person):

(i) a person is connected with an individual if that person is a relative of the individual;

(ii) a person, in his or her capacity as a trustee of a trust, is connected with an individual who or any of whose children or as respects whom any body corporate which he or she controls is a beneficiary of the trust;

(iii) a person is connected with any person with whom he or she is in partnership;

(iv) a company is connected with another person if that person has control of it or if that person and persons connected with that person together have control of it;

(v) any two or more persons acting together to secure or exercise control of a company shall be treated in relation to that company as connected with one another and with any person acting on the directions of any of them to secure or exercise control of the company.

(3) In this Act a reference to an asset includes an interest in an asset and a reference to a liability includes an interest in a liability.

(4) For the purposes of sections 26(2)(f)(i), 87(g) and 120(g), a debtor enters into a transaction with another person at an undervalue if he or she—

(a) makes a gift to, or otherwise enters into a transaction with, that other person on terms that provide for the debtor to receive no consideration, or

(b) enters into a transaction with that other person, the value of which, in money or money’s worth, is significantly greater than the value, in money or money’s worth, of the consideration provided by that other person.

(5) For the purposes of sections 26(2)(f)(ii), 87(h) and 120(h), a debtor gives a preference to another person if—

(a) the other person is a creditor of the debtor to whom a debt (other than an excluded debt or an excludable debt) is owed, or is a surety or guarantor for any such debt, and

(b) the debtor does any thing (including the granting of security), or suffers any thing to be done, which has the effect of putting that other person into a position which, in the event that the insolvency arrangement concerned is issued or comes into effect, as the case may be, would be better than the position in which that other person would have been if that thing had not been done or suffered to be done.

3. Regulations and orders.

3.— (1) The Minister or, as the case may be, the Insolvency Service, may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

(2) A regulation under this Act may contain such incidental, supplementary and consequential provisions as the Minister or, as the case may be, the Insolvency Service, considers necessary or expedient for the purposes of the regulations.

(3) Every regulation and order (other than an order referred to in section 1(2)) made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

4. Expenses.

4.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

5. Appropriate court.

5.— (1) In this Act “appropriate court” means—

(a) where the application is made under Chapter 3 or 4 of Part 3, and the total liabilities of a debtor determined on the basis of the Prescribed Financial Statement completed by the debtor concerned in respect of the application concerned are in excess of €2,500,000, the High Court, and

(b) in any other case, the Circuit Court.

F4[(2) An application to the Circuit Court under this Act shall be made in the circuit in which—

(a) the debtor to whom the application relates is residing at the time of the making of the application or has resided within one year of the time of the making of the application, or

(b) the debtor to whom the application relates has a place of business at the time of the making of the application or has had a place of business within one year of the time of the making of the application.]

(3) An application to the Circuit Court under this Act may be made—

(a) in such office of, or attached to, the Circuit Court within the circuit concerned,

(b) in such combined court office (within the meaning of section 14 of the Courts and Court Officers Act 2009) within the circuit concerned, or

(c) in such office of the Courts Service, within the circuit concerned, designated by the Courts Service for the purpose of this Act,

as may be prescribed by rules of court.

6. Repeals.

6.— F5[…]

PART 2 Insolvency Service

7. Establishment day.

7.— The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

8. Establishment of Insolvency Service.

8.— (1) On the establishment day there shall stand established a body to be known, in the English language, as the Insolvency Service of Ireland or, in the Irish language, as Seirbhís Dócmhainneachta na hÉireann to perform the functions conferred on it by or under this Act.

(2) The Insolvency Service shall be a body corporate with perpetual succession and, without prejudice to the generality of the foregoing, may sue and be sued in its corporate name.

(3) The Insolvency Service shall—

(a) subject to this Act, be independent in the exercise of its functions under this Act, and

(b) have all powers that are necessary or expedient for, or incidental to, the performance of those functions.

(4) The seal of the Insolvency Service may be authenticated by—

(a) the signature of the Director, F6[or]

(b) the signature of a member of the staff of the Insolvency Service authorised by the Director to act in that behalf.

(5) Judicial notice shall be taken of the seal of the Insolvency Service and, accordingly, every document—

(a) purporting to be a document made by the Insolvency Service, and

(b) purporting to be sealed with the seal of the Insolvency Service authenticated in accordance with subsection (4),

shall be received in evidence and be deemed to be such document without further proof unless the contrary is proved.

(6) Any contract or instrument which, if entered into or executed by an individual, would not require to be under seal may be entered into or executed on behalf of the Insolvency Service by the Director or any person generally or specially authorised by the Director in that behalf.

9. Functions of Insolvency Service.

9.— (1) Subject to this Act, the principal functions of the Insolvency Service shall be to—

(a) monitor the operation of the arrangements relating to personal insolvency provided for in this Act,

(b) consider applications for Debt Relief Notices in accordance with Chapter 1 of Part 3,

(c) process applications for protective certificates in accordance with Chapter 3 or 4 of Part 3,

(d) maintain the Registers established under section 133,

F7[(e) promote public awareness and understanding of matters relating to personal insolvency, and provide information on the working of this Act and of theBankruptcy Act 1988, and on related matters including those specified inparagraphs (jb),(jc)and(jd),]

(f) advise the Minister on any matter relating to its functions,

F8[(g) in accordance withsection 47—

(i) authorise a person or class of persons to perform the functions of an approved intermediary,

(ii) supervise and regulate persons or classes of persons authorised to perform the functions of an approved intermediary,]

(h) in accordance with Part 5—

(i) authorise individuals to carry on practice as personal insolvency practitioners,

(ii) supervise and regulate persons practising as personal insolvency practitioners,

(iii) perform such functions as are assigned to the Insolvency Service under that Part,

(i) prepare and issue guidelines as to what constitutes a reasonable standard of living and reasonable living expenses under section 23,

(j) arrange for the provision of such education and training, in relation to the performance by them of their functions under this Act, of approved intermediaries, personal insolvency practitioners and other persons, as it thinks fit,

F9[(ja) subject tosection 60(3) of theBankruptcy Act 1988, administer the functions assigned to the Official Assignee by theBankruptcy Act 1988or any other enactment,]

F10[(jb) compile, collect, analyse and disseminate information and statistics on the operation of this Act and of theBankruptcy Act 1988,

(jc) monitor and analyse developments, as respects the situation of insolvent debtors and trends in, and patterns of, debtor and creditor behaviour,