Family Law
Pension Schemes (Family Law) (Amendment) Regulations 2012.
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Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 24th July, 2012.
I, JOAN BURTON, Minister for Social Protection, in exercise of the powers conferred on me by section 5 of the Pensions Act 1990 (No. 25 of 1990), as amended by section 4 of the Pensions (Amendment) Act 1996 (No. 18 of 1996) and section 47 of the Family Law (Divorce) Act 1996 (No. 33 of 1996), with the consent of the Minister for Justice and Equality hereby make the following Regulations:
Citation.
1. (1) These Regulations may be cited as the Pension Schemes (Family Law) (Amendment) Regulations 2012.
(2) The Pension Schemes (Family Law) Regulations 1997 ( S.I. No. 107 of 1997 ) and these Regulations shall be construed together as one and may be cited together as the Pension Schemes (Family Law) Regulations 1997 and 2012.
Amendments.
2. The Pension Schemes (Family Law) Regulations 1997 ( S.I. No. 107 of 1997 ) are amended—
(a) in Article 3 definition of “rules in force” by inserting “and to articles 14 and 46” after “the Act of 1990”,
(b) by substituting the following for Article 14—
“14 Subject to articles 22 and 36 where the basis of calculating retirement benefit under a defined benefit scheme is altered prior to the date of the decree the alteration shall be taken into account in calculating the designated benefit but where the basis is altered after the date of the decree the alteration shall not be taken into account in the calculation of the designated benefit unless the alteration is as a result of measures put in place by the trustees of a pension scheme pursuant to a direction under section 50 of the Act of 1990 and the direction is made on or after 1 June 2012.”,
(c) in Article 46 by inserting the following after “subsequent to the date of the decree”—
“unless the reduction or cancellation is as a result of measures put in place by the trustees of a pension scheme pursuant to a direction under section 50 of the Act of 1990 and the direction is made on or after 1 June 2012.”.
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GIVEN under my Official Seal,
18 July 2012.
JOAN BURTON,
Minister for Social Protection.
The Minister for Justice and Equality consents to the making of the foregoing Regulations.
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GIVEN under the Official Seal of the Minister for Justice and Equality,
17 July 2012.
ALAN SHATTER,
Minister for Justice Equality and Defence.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These Regulations amend the Pension Schemes (Family Law) Regulations 1997 to permit the designated benefit under a pension adjustment order to be reduced as a result of measures put in place pursuant to a direction by the Pensions Board under section 50 where the direction is made on or after 1 June 2012.
FAMILY LAW ACT 1995
REVISED
Updated to 18 January 2016
This Revised Act is an administrative consolidation of the Family Law Act 1995. It is prepared by the Law Reform Commission in accordance with its function under the Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.
All Acts up to and including International Protection Act 2015 (66/2015), enacted 30 December 2015, and all statutory instruments up to and including Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 12 of 2016), made 12 January 2016, were considered in the preparation of this Revised Act.
….
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 [ ‘ the Act of 1996 ’ means the Domestic Violence Act, 1996; ]
F3 [ ‘ civil partnership ’ has the meaning assigned to it by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010; ]
F4 [ ‘ 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
F5 [ ( 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 ;
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 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.
Annotations:
Amendments:
F1
Deleted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(a), commenced as per s. 25(1).
F2
Inserted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(a), commenced as per s. 25(1).
F3
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 159, S.I. No. 648 of 2010.
F4
Inserted (18.01.2016) by Children and Family Relationships Act 2015 (9/2015), s. 89, S.I. No. 12 of 2016.
F5
Inserted (7.11.2002) by Pensions (Amendment) Act 2002 (18/2002), s. 57(1), S.I. No. 502 of 2002.
Modifications (not altering text):
C3
References to adoptions and adopted persons under Adoption Acts 1952 to 1998 to be read as referring to adoptions and adopted persons made under Adoption Act 2010 as provided (1.11.2010) by Adoption Act 2010 (21/2010), s. 156(1), S.I. No. 511 of 2010.
References to adoptions, etc.
156.—(1) Every reference in any Act or in any instrument made under any Act, however expressed, to adoptions or adoption orders or adopted persons under any or all of the Adoption Acts 1952 to 1998 shall be read as a reference to adoptions or adoption orders made under this Act, or persons adopted under an adoption order made under this Act, as the case may be.
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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—
F6 [ ( a ) an order under section 2 , 3 , 4 or 5 of the Act of 1996, ]
( 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.
Annotations:
Amendments:
F6
Substituted (27.03.1996) by Domestic Violence Act 1996 (1/1996), s. 21(b), commenced as per s. 25(1).
……
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;
F18 [ ‘ 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 F19 [ 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 F19 [ 40 ] .
(19) An order under subsection (3), shall cease to have effect on the death or remarriage F20 [ 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 F20 [ 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 F21 [ 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.
Annotations:
Amendments:
F18
Substituted (14.04.2008) by Social Welfare and Pensions Act 2008 (2/2008), s. 30, S.I. No. 84 of 2008.
F19
Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(e), commenced as per s. 1(2).
F20
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 163, S.I. No. 648 of 2010.
F21
Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(d), commenced as per s. 1(2).
Editorial Notes:
E11
Information to be furnished in relation to pension adjustment orders prescribed (27.04.2007) by Trust Racs (Disclosure of Information) Regulations 2007 (S.I. No. 182 of 2007), reg. 14, in effect as per reg. 1(2).
E12
Information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 17, in effect as per reg. 1(2)(c), as amended (12.06.2012) by Occupational Pension Schemes (Disclosure of Information) (Amendment) (No. 3) Regulations 2012 (S.I. No. 203 of 2012), reg. 3(h).
E13
Minister granted power to make regulations specifying guidelines for the purposes of section by Pensions Act 1990 (25/1990), s. 5(4), as inserted (2.07.1996) by Pensions (Amendment) Act 1996 (18/1996), s. 4, commenced on enactment, and amended (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(a) and (b), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010. Power to make regulations under Pensions Act 1990 (25/1990), s. 5, as amended, was exercised (18.07.2012) by Pension Schemes (Family Law) (Amendment) Regulations 2012 (S.I. No. 254 of 2012) and (27.02.1997) by Pension Schemes (Family Law) Regulations 1997 (S.I. No. 107 of 1997).
E14
Pensions Board allocated function to issue guidelines or guidance notes generally on the operation of Pensions Act 1990 (25/1990) and on the provisions of this Act relating to pension schemes (within the meaning of s. 2) by Pensions Act 1990 (25/1990), s. 10(1)(cc), as inserted (2.07.1996) by Pensions (Amendment) Act 1996 (18/1996), s. 5, commenced on enactment, and substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(c), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010.
E15
Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2005 (S.I. No. 633 of 2005), reg. 17, in effect as per reg. 1(2)(d); revoked (1.06.2006) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(2), in effect as per reg. 1(2)(b).
E16
Previous affecting provision: guidelines for calculating actuarial values and amounts referred to in section prescribed (30.01.1997) by Occupational Pension Scheme (Family Law Act 1995) Regulations 1997 (S.I. No. 64 of 1997), in effect as per reg. 2; revoked (27.02.1997) by Pension Schemes (Family Law) Regulations 1997 (S.I. No. 107 of 1997), reg. 2, in effect as per reg. 1(2).
E17
Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.10.1998) by Occupational Pension Schemes (Disclosure of Information) (No. 2) Regulations 1998 (S.I. No. 349 of 1998), reg. 15, in effect as per reg. 1(2)(a); revoked (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(1)(c), in effect as per reg. 2(1)(c).
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.
……
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, F27 [ 15A, ] 18 or 25 and in determining the provisions of such an order, the court shall endeavour to ensure that such provision F28 [ exists or will be made ] for each spouse concerned and for any dependent member of the family concerned as is F28 [ 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.
Annotations:
Amendments:
F27
Inserted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(h)(i), commenced as per s. 1(2).
F28
Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(h)(ii) and (iii), commenced as per s. 1(2).
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).
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 F29 [ 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.
(4) The power of the court under subsection (2) to make an order varying, discharging or suspending an order referred to in subsection (1) (e) shall be subject to any restriction or exclusion specified in that order and shall (subject to the limitation aforesaid) be a power—
( a) to vary the settlement to which the order relates in any person’s favour or to extinguish or reduce any person’s interest under that settlement, and
( b) to make such supplemental provision (including a further property adjustment order or a lump sum order) as the court thinks appropriate in consequence of any variation, extinguishment or reduction made pursuant to paragraph (a),
and section 15 shall apply to a case where the court makes such an order as aforesaid under subsection (2) as it applies to a case where the court makes a property adjustment order with any necessary modifications.
(5) The court shall not make an order under subsection (2) in relation to an order referred to in subsection (1) (e) unless it appears to it that the order will not prejudice the interests of any person who—
( a) has acquired any right or interest in consequence of the order referred to in subsection (1) (e), and
( b) is not a party to the marriage concerned or a dependent member of the family concerned.
(6) This section shall apply, with any necessary modifications, to instruments executed pursuant to orders to which this section applies as it applies to those orders.
(7) Where the court makes an order under subsection (2) in relation to a property adjustment order relating to land a copy of the order under subsection (2) 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.
F30 [ (8) Where a property adjustment order lodged under section 9(4) and duly registered pursuant to section 69(1)( h ) of the Registration of Title Act 1964 is varied, discharged, suspended or revived by an order under subsection (2) and the second-mentioned order has been duly lodged for such registration pursuant to subsection (7), the Property Registration Authority shall —
( a ) amend or cancel the entry made in the register, pursuant to section 9(4), under the Registration of Title Act 1964 accordingly, or
( b ) note the position in the Registry of Deeds. ]
Annotations:
Amendments:
F29
Inserted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(i), commenced as per s. 1(2).
F30
Inserted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 74(b), S.I. No. 274 of 2008.
Editorial Notes:
E18
Procedure for application for registration of an order of Court pursuant to section prescribed (1.05.2008) by Registration of Deeds Rules 2008 (S.I. No. 52 of 2008), rl. 14(2), in effect as per rl. 1.
Restriction in relation to orders for benefit of dependent members of the family.
19.— In deciding whether—
( a) to include in an order under section 7 a provision requiring the making of periodical payments for the benefit of a dependent member of the family,
( b) to make an order under paragraph (a)(ii), (b)(ii) or (c)(ii) of section 8 (1),
( c) to make an order under section 18 varying, discharging or suspending a provision referred to in paragraph (a) or an order referred to in paragraph (b),
the court shall not have regard to conduct by the spouse or spouses concerned of the kind specified in subsection (2)(i) of section 16 or desertion referred to in subsection (3) of that section.
……
Amendment of Act of 1976.
43.— The Act of 1976 is hereby amended by—
( a) in section 3—
(i) in the definition of “ antecedent order”, the substitution of the following paragraphs for paragraph ( j):
“( j) an order for maintenance pending suit under the Judicial Separation and Family Law Reform Act, 1989, or a periodical payments order under that Act,
( k) a maintenance pending suit order under the Family Law Act, 1995, or a periodical payments order under that Act;”,
and
F57 [ (ii) in the definition of ‘ dependent child ’ the substitution of ‘ 18 ’ for ‘ sixteen ’ and ‘ 23 ’ for ‘ twenty-one ’ , and ]
( b) in section 6 (3), the substitution of “ 18” for “sixteen” and “ 23” for “twenty-one”,
( c) the insertion of the following section after section 8A (inserted by the Status of Children Act, 1987):
“ Preservation of pension entitlements in separation agreements.
8B.— (1) Subject to the provisions of this section, on an application to the High Court or the Circuit Court under section 8 of this Act, the Court may, on application to it in that behalf by either of the spouses concerned, make an order directing the trustees of a pension scheme of which either or both of the spouses are members, not to regard the separation of the spouses by agreement as a ground for disqualifying either of them 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 when 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 order made, or proposed to be made, by it in relation to the application by the spouse or spouses concerned under section 8 of this Act and any representations made by those trustees in relation to the matter.
(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 proportions and such manner as the Court may determine.
(4) In this section ‘ pension scheme’ has the meaning assigned to it by the Family Law Act, 1995.”,
( d) in section 10—
(i) the insertion of the following subsection after subsection (1):
“(1A) ( a) Where a court has made an antecedent order, it shall in the same proceedings, subject to subsection (3), make an attachment of earnings order in order to secure payments under the antecedent order if it is satisfied that the maintenance debtor is a person to whom earnings fall to be paid.
( b) References in this subsection to an antecedent order made by a court include references to such an order made, varied or affirmed on appeal from that court.”,
and
(ii) in subsection (2), the insertion, after “employment” of “ or is a trustee (within the meaning of the Family Law Act, 1995) of a pension scheme (within the meaning aforesaid) under which the maintenance debtor is receiving periodical pension benefits ”, and
(iii) the substitution for subsection (3) of the following subsection:
“(3) ( a) Before deciding whether to make or refuse to make an attachment of earnings order, the court shall give the maintenance debtor concerned an opportunity to make the representations specified in paragraph ( b) in relation to the matter and shall have regard to any such representations made by the maintenance debtor.
( b) The representations referred to in paragraph ( a) 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 relates.”,
and
F58 [ ( e ) in section 23, after subsection (2), the insertion of the following subsections:
‘ (3) In proceedings under this Act —
( a ) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and
( b ) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned,
such particulars of his or her property and income as may reasonably be required for the purpose of the proceedings.
(4) Where a person fails or refuses to comply with subsection (3), the Court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection. ]
Annotations:
Amendments:
F57
Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(o)(i), commenced as per s. 1(2).
F58
Substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 52(o)(ii), commenced as per s. 1(2).
FAMILY LAW (DIVORCE) ACT 1996
REVISED
Updated to 1 January 2016
ARRANGEMENT OF SECTIONS
……
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;
“ the Act of 1996” means the Domestic Violence Act, 1996;
F1 [ ‘ 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
F2 [ ( 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 13 ;
“ property adjustment order” has the meaning assigned to it by section 14 ;
F1 [ ‘ 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 ; ]
“ 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.
Annotations:
Amendments:
F1
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 150, S.I. No. 648 of 2010.
F2
Inserted (7.11.2002) by Pensions (Amendment) Act 2002 (18/2002), s. 57(2), S.I. No. 502 of 2002.
Repeal.
……
Financial compensation orders.
16.— (1) Subject to the provisions of this section, on granting a decree of divorce 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 divorce, by the applicant or the member, 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 the other spouse 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 the other spouse in a policy of life insurance effected by that other spouse 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 that other spouse 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 section 13, 14, 15 or 17 and in deciding whether or not to make such an order it shall have regard to whether 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 re-marriage F7 [ , 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 in favour of a spouse who has remarried F7 [ or registered in a civil partnership ].
( d) An order under section 22 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.
Annotations:
Amendments:
F7
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 153, S.I. No. 648 of 2010.
Pension adjustment orders.
17.— (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;
F8 [ ‘ 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 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 divorce (“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 divorce (“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 was 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”),
( b) the spouse dies before the 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 subsection (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 22 (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 40 .
(19) An order under subsection (3) shall cease to have effect on the death or remarriage F9 [ 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 subsection.
(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 in favour of a spouse who has remarried F9 [ 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 13, 14, 15 or 16 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether 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 divorce to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of divorce 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 divorce 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 divorce 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 22 in relation to the order.
Annotations:
Amendments:
F8
Substituted (14.04.2008) by Social Welfare and Pensions Act 2008 (2/2008), s. 31, S.I. No. 84 of 2008.
F9
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 154, S.I. No. 648 of 2010.
Editorial Notes:
E13
Information to be furnished in relation to pension adjustment orders prescribed (27.04.2007) by Trust Racs (Disclosure of Information) Regulations 2007 (S.I. No. 182 of 2007), reg. 14, in effect as per reg. 1(2).
E14
Information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 17, in effect as per reg. 1(2)(c), as amended (12.06.2012) by Occupational Pension Schemes (Disclosure of Information) (Amendment) (No. 3) Regulations 2012 (S.I. No. 203 of 2012), reg. 3(h).
E15
Pensions Board allocated function to issue guidelines or guidance notes generally on the operation of Pensions Act 1990 (25/1990) and on the provisions of this Act relating to pension schemes (within the meaning of s. 2) by Pensions Act 1990 (25/1990), s. 10(1)(cc), as substituted (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(c), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010.
E16
Minister granted power to make regulations specifying guidelines for purposes of section by Pensions Act 1990 (25/1990), s. 5(4), as amended (27.02.1997) by Family Law (Divorce) Act 1996 (33/1996), s. 47(a) and (b), commenced as per s. 1(2), and amended (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 148, S.I. No. 648 of 2010. Power to make regulations under Pensions Act 1990 (25/1990), s. 5, as amended, was exercised (27.02.1997) by Pension Schemes (Family Law) Regulations 1997 (S.I. No. 107 of 1997), in effect as per reg. 1(2), and (18.07.2012) by Pension Schemes (Family Law) (Amendment) Regulations 2012 (S.I. No. 254 of 2012).
E17
Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2005 (S.I. No. 633 of 2005), reg. 17, commenced as per reg. 1(2)(d); revoked (1.06.2006) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(2), in effect as per reg. 1(2)(b).
E18
Previous affecting provision: information to be furnished in relation to pension adjustment orders prescribed (1.10.1998) by Occupational Pension Schemes (Disclosure of Information) (No. 2) Regulations 1998 (S.I. No. 349 of 1998), reg. 15, in effect as per reg. 1(2)(a); revoked (1.01.2007) by Occupational Pension Schemes (Disclosure Of Information) Regulations 2006 (S.I. No. 301 of 2006), reg. 2(1)(c), in effect as per reg. 2(1)(c).
……
Provisions relating to certain orders under sections 12 to 18 and 22 .
20.— (1) In deciding whether to make an order under section 12, 13, 14, 15 (1) (a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.
(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 F12 [ or registration in a civil partnership ] of the spouse or otherwise),
( c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,
( d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,
( 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 with one another 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 accommodation 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 divorce 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) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.
(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) and in subsection (3),
( 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.
Annotations:
Amendments:
F12
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 157, S.I. No. 648 of 2010.