The Gazette 1996

GAZETTE

JULY 1996

to apply to the Irish Courts for relief as all reliefs available in family law have been primarily available to spouses. For example if an American husband came to live in Ireland and established and acquired a substantial business or property interests his American ex-wife would have found it difficult to enforce any order that existed in America in her favour against the husband in Ireland. By virtue of the provisions contained in Part III of the Act she may now do so. All ancillary relief orders other than preliminary orders and maintenance pending suit can be made by the Court provided the divorce is entitled to be recognised as valid in Ireland. No ancillary relief orders however, will be made in favour of a spouse who has remarried. The Court must be satisfied on preliminary ex-parte application for leave to issue an application that there is a substantial ground for the application and it also must have regard to the matters set out in Section 26 and 27 which relate to the appropriateness and jurisdiction of the Court. The Court will have regard to, the connection of the spouses with j the State, the connection of the spouses with the State which granted the divorce or any other State, the financial provision already made when the divorce was granted, the extent to which orders have been complied with, the entitlement of the Applicant spouse to seek relief elsewhere, the availability in the State of property against which an order could be made, the enforceability of any order and the lapse of time. The Court will only make an order if either spouse is domiciled in the State, or either spouse is ordinarily resident in the State or either spouse has a beneficial interest in land situate in the State. 3. Part V of the 1995 Act provides that declarations as to marital status may be made by the Court. The Court may make the following declarations:- (a) A declaration that a marriage was at its inception a valid marriage. (b) A declaration that a marriage subsisted on a date specified.

(c) A declaration that a marriage did not subsist on a date specified. (d) A declaration that the validity of a divorce is entitled to recognition in the State. (e) A declaration that the validity of a divorce is not entitled to recognition in the State. An application for such a declaration may be made by either spouse or a person with a sufficient interest e.g. a personal representative of one spouse and the Attorney General may also be added as a party either by the Court of its own motion or on request by a party to the application. There are undoubtedly many couples in Ireland to-day who have remarried on foot of foreign divorce decrees, the recognition of which is based on the domicile of either of the parties. The question of domicile is often questionable and difficult to establish. The procedure for obtaining a declaration of marital status will undoubtedly be used by some parties to clarify their status and may also be used by the Revenue Commissioners (as a person who in the opinion of the Court has a sufficient interest in the matter) to clarify the status of persons or deceased persons who are seeking to claim tax relief between a spouse. 4. Part V of the Act brings in new provisions in relation to the age and procedures for marriage. After 1 August 1996 any marriage solemnised between persons who are under the age of 18 years shall not be valid. This applies to all marriages solemnised in the State and marriages solemnised outside the State between persons either or both of whom are ordinarily resident in the State. Any persons to whom an application to marry is made is entitled to request proof of

writing of their intention to marry not less than three months prior to the date on which the marriage is due to take place. This provision has already caused considerable concern as notices in respect of marriages taking place on 1, 2 and 3 August 1996 would have to have been notified to the Registrar at the latest by 1, 2 and 3 May 1996 when the terms of the Act were not in i fact commenced. Alan Shatter TD in May 1996 introduced a Private Members Bill (the Marriages Bill) to the Dail to rectify what he believes is a deficiency in the legislation. 5. Part VI provides for a number of miscellaneous and relieving provisions. A dependent child is now a child up to the age of 23 years who continues in full-time education. Section 38 specifically provides that any case involving ancillary relief orders each spouse shall give to the other or to the property and income as may reasonably be required for the purposes of the proceedings and where a person fails to comply the Court may direct the person to comply with that sub section. Section 52 provides that no Capital Gains Tax is payable on a disposal of an asset by one spouse to the other (excluding trading stock) and the receiving spouse shall be j j person acting on behalf of the other spouse such particulars of his or her deemed to have acquired the asset on the same terms (i.e. value) as the disposing spouse. Section 54 provides relief in relation to the conveyancing difficulties that can arise with spousal consent to the sale of the family home. Section 54 provides that no proceedings shall be instituted to have a conveyance declared void after the expiration of six years. Rules of Court shall provide that where a person institutes proceedings to have a conveyance declared void a lis pendens shall be registered as soon as may be. The six year rule however, does not apply to spouses in actual occupation of land (this will primarily cover mortgage

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age. After 1 August 1996 any marriage solemnised in the State shall not be valid unless the persons involved notify the Registrar in

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