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.

190

(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

age. After 1 August 1996 any

marriage solemnised in the State

shall not be valid unless the persons

involved notify the Registrar in

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

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

person acting on behalf of the other

spouse such particulars of his or her

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

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