A Q&A guide to private client law in Ireland. The Q&A gives a high level overview of tax; tax residence; inheritance tax; buying property; wills and estate management; succession regimes; intestacy; trusts; co-ownership; familial relationships; minority and capacity and proposals for reform.
To compare answers across multiple jurisdictions, visit the Private client Country Q&A tool.
This Q&A is part of the PLC multi-jurisdictional guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-mjg.
The Irish tax system operates on a calendar year (1 January to the following 31 December). Different deadlines apply depending on the nature of the tax.
Income tax is deducted at source for employees under the pay as you earn (PAYE) system. Self assessment applies to all self-employed persons and persons who are receiving income which is not chargeable to tax under the PAYE system. For the 2012 tax year, the taxpayer must, by 31 October 2013:
Pay preliminary income tax for the current tax year.
File a tax return for the previous year and pay the balance of the previous year's income tax liability.
For the 2013 tax year, the due date for filing income tax and providing payment of the balance of tax for the previous tax year is the 31 October 2013.
CGT must be paid:
For gains arising during 1 January to 30 November: on or before 15 December of the same year.
For gains arising during 1 December to 31 December: on or before 31 January of the following year.
The tax return must be filed on or before 31 October of the year following the end of the year of assessment in which the gain arose.
Ireland has concepts of residence, ordinary residence and domicile.
In most cases, a person's domicile is the country where that person was born (domicile of origin). A person can acquire a new domicile of choice by moving to a new jurisdiction and demonstrating a permanent intention to live there.
A person is Irish resident for tax purposes if that person spends either:
183 days or more in Ireland in that year.
280 days or more in Ireland, taking both that year and the previous year into account. The person must be resident for a minimum of 30 days in each year.
A person is ordinarily resident for tax purposes if that person is resident for three consecutive tax years. An individual ceases to be ordinarily resident if he is non-resident for three consecutive tax years.
These concepts determine the extent of an individual's liability to:
Income tax (see Question 6).
Capital acquisitions tax (CAT) (see Question 9).
CGT (see Question 5).
Deposit interest retention tax (DIRT) (see Question 6).
There is no exit tax imposed when a person leaves the jurisdiction. However, if the taxpayer continues to be classified as ordinarily resident, he may retain liability for Irish income tax on his worldwide income (with some exceptions), CAT and CGT (see Question 6).
When an individual goes offshore temporarily (for a period of up to five years) and disposes of relevant assets during this period, the individual is deemed to have disposed of the assets and immediately reacquired them on the last day of the year of departure, for a consideration equal to the market value on that day (section 29A, Taxes Consolidation Act 1997).
An annual domicile levy of EUR200,000 is charged on an individual who is Irish domiciled and an Irish citizen:
Whose worldwide income exceeds EUR1 million.
Whose Irish property is greater in value than EUR5 million.
Whose liability to Irish income tax in a relevant tax year is less than EUR200,000.
An individual who is not resident or ordinarily resident in Ireland is only liable to:
Irish income tax on income arising in Ireland.
CGT on the disposal of specified assets (see Question 5).
If the individual is resident in another EU member state and his Irish income is at least 75% of his total worldwide income, full tax credits and deductions are granted. Proportionate credits and reliefs are available to residents of some countries with which Ireland has a double taxation agreement.
CGT is charged on disposals of property or assets for the year of assessment where the individual is resident or ordinarily resident in Ireland (see Question 2). If a person that is resident and ordinarily resident can demonstrate that he is non-Irish domiciled, the liability is limited to:
Gains arising in Ireland.
Other gains where the proceeds are remitted to Ireland.
A foreign national who is non-resident must pay tax on gains made on the disposal of specified assets, which include:
Immovable property situated in Ireland.
Minerals or mineral rights in Ireland (including the Irish area of the continental shelf).
Shares in a company that derives more than 50% of its value from Irish property or mineral rights.
Assets used for the purposes of a trade carried on in Ireland through a branch or agency.
The standard rate of CGT for disposals in Ireland since 6 December 2012 is 33%.
Liability to Irish income tax depends on residence, ordinary residence and domicile (see Question 2):
Individuals that are resident, ordinary resident and domiciled in Ireland must pay Irish income tax on worldwide income earned or arising in a tax year.
Individuals that are resident but are non-ordinarily resident and not Irish-domiciled are liable to tax only on:
Irish-source income;
foreign income remitted to Ireland.
Individuals that are resident, ordinarily resident and not Irish-domiciled are liable to tax only on:
Irish-source income;
foreign income remitted to Ireland.
Individuals that are resident, non-ordinarily resident and Irish domiciled are liable to tax on worldwide income (Finance Act, 2012).
Individuals that are non-resident, but are ordinarily resident and Irish domiciled are taxed on their worldwide income, except for:
income from trade or employment exercised outside Ireland;
foreign investment income of under EUR3,810.
Individuals that are neither resident nor ordinarily resident are taxed only on Irish-source income.
The current income tax rates are:
Single taxpayers. 20% on the first EUR32,800 and 41% on the balance.
Married taxpayers or in a civil partnership (two incomes). 20% on the first EUR65,600. This band is increased by the lower of EUR23,800 or the income of the spouse with the lower income. The rate of 41% is charged on the balance.
Married taxpayers or in a civil partnership (single income). 20% on the first EUR41,800 and 41% on the balance.
Single parents. 20% on the first EUR36,800 and 41% on the balance.
PRSI is Ireland's equivalent of social insurance or social security. The amount of PRSI depends on earnings and the type of work.
The USC is a tax payable on gross income on the following rates:
2% on the first EUR10,036.
4% on the next EUR5,980.
7% on the balance.
There is a surcharge of 3% on individuals who have income from self-employment that exceeds EUR100,000 in a year.
From 1 January 2013, the standard rates of USC (that is, up to 10%) applies to both those aged 70 years of age and over and medical card holders (PAYE and self-employed income earners) whose annual income exceeds EUR60,000. Those individuals 70 or over andmedical card holders with annual income of less than EUR60,000 will continue to be subject to a maximum USC rate of 4%.
The following withholding taxes are payable:
Dividend withholding tax (DWT) at 20%.
DIRT at 30%. This is deducted at source by deposit takers from interest paid or credited on deposits. A non-resident can receive Irish deposit interest free from DIRT.
Professional services withholding tax (PSWT) at 20%. This is deducted from payments made by certain accountable persons to specified persons in respect of professional services. Non-residents are entitled to a full refund if the income is not chargeable to Irish tax.
Relevant contracts tax (RCWT) at three rates since 1 January 2012:
subcontractors who satisfy the current criteria for C2 holders: 0%;
other registered subcontractors: 20%;
unregistered subcontractors or subcontractors with serious compliance issues: 35%.
A buyer must withhold CGT when paying consideration over EUR500,000 to a foreign seller in relation to certain assets (mainly Irish immovable property), for payment to the Revenue Commissioners (Ireland's taxation authority).
Capital acquisitions tax (CAT) is levied on gifts and on property transferred on death. The tax basis depends on:
The monetary value of the gift or inheritance a beneficiary receives.
The relationship between the disponer (that is, a donor, testator or intestate person) and the beneficiary.
The prior benefits, since 5 December 1991, that the beneficiary has received from any person to whom the beneficiary bears the same relationship as he does to the current disponer. These classes of relationships are called groups (see Question 8).
CAT, in relation to gifts and inheritances, is charged at a flat rate of 33%.
There are three groups with different thresholds or tax-free allowances:
Group A: child, foster child, or minor child of a deceased child. This group has a tax-free allowance of EUR225,000.
Group B: lineal ancestor (for example, parent or grandparent), lineal descendant (for example, a grandchild), brother, sister, or child of a brother or sister. This group has a tax-free allowance of EUR30,150.
Group C: others. This group has a tax-free allowance of EUR15,075.
Prior taxable gifts or inheritances taken since 5 December 1991 must be aggregated with benefits taken since 5 December 2001 from persons within the same group threshold to calculate the tax on the benefit.
To calculate a person's taxable excess, the unused group threshold is deducted from the taxable value of the current benefit (that is, the market value of the benefit less relevant reliefs, liabilities, costs and expenses).
A number of reliefs or exemptions can be used, including agricultural relief, dwelling house relief, business relief and a mechanism to offset CGT against CAT. The first EUR3,000 taken as a gift by a beneficiary from a disponer in any one year is exempt from tax.
There is no CAT on gifts or inheritances between a married couple or civil partners. An inheritance or gift taken by a qualifying cohabitant by court order is exempt from CAT. A benefit taken for public or charitable purposes is generally exempt from tax.
Techniques to reduce liability centre around use of the various reliefs and exemptions. However, certain wealth management structures can be put in place during the lifetime of the testator which can reduce CAT, for example, family partnership arrangements.
Qualifying insurance policies to the extent that they are utilised in the payment of certain gift or inheritance tax are exempt from CAT.
CAT is charged where the disponer and/or the beneficiary are resident or ordinarily resident in Ireland at the date of disposition.
A foreign domiciled person is not considered resident or ordinarily resident for CAT purposes in Ireland unless he both:
Was resident for the five consecutive years of assessment preceding the date of the benefit.
On that date is either resident or ordinarily resident in Ireland.
Gifts or inheritances of property situated in Ireland are taxable regardless of the domicile, residence or ordinary residence of the disponer or beneficiary (see Question 2).
A disposal on death is not a chargeable disposal for CGT. The beneficiary is treated as having acquired the asset on the date of death, and its market value is assigned on this date. A gift of an asset is a chargeable disposal for CGT purposes unless the disposal falls into any of the available exemptions or reliefs. The current rate of CGT is 33%.
A discretionary trust is subject to discretionary trust tax (see Question 30).
A voluntary disposition is chargeable to stamp duty based on the value of the relevant property.
A stamp duty rate of 1% applies to residential properties valued at up to EUR1 million, with a 2% rate applying to amounts over EUR1 million. A 6% stamp duty is payable on non-residential property if the value of the property exceeds EUR80,000.
There are no wealth taxes in Ireland.
Rates are an annual property tax that local authorities levy on the occupiers of commercial and industrial properties in their administrative area. They are not payable on domestic or agricultural properties. The Commissioner of Valuations sets property valuations for rates purposes. A domestic water charge is expected in the forthcoming budget.
Non-principal private residence charge. An owner must pay a EUR200 annual charge on his non-principal private residence to the local authority in whose area the property is located. This will continue to apply for 2013 but will then be abolished and will be replaced by the Local Property Tax (LPT) as detailed below. However, the arrears of this tax will be added to the LPT and will be collected by the Revenue Commissioners through the new LPT system.
Local property tax. This tax is being introduced in 2013 to replace both the Household Charge and the NPPR. This will come into effect on 1 July 2013 and the rate of same will be based on the market value of the property as at the 1 May 2013.
Value added tax (VAT). VAT is charged on property that a person who is accountable to VAT supplies in the course or furtherance of a business. Freehold interests, or freehold equivalent interests (for example, a 99-year lease) are subject to VAT on:
The first sale of the property within five years of the date of completion or major development.
Subsequent sales within five years of that date, unless occupied for an aggregate period of two years or more from the date of completion.
Property can be held either personally or through a legal entity including a company or a trust. Ireland has become a very attractive place for foreign companies to locate a holding company. Some of the advantages include:
A favourable tax regime, with corporation tax of 12.5% on trading income.
Favourable taxation of foreign dividends.
Generous domestic exemptions including the general ability to pay dividends free of dividend withholding tax.
CGT participation exemption on disposal of shares.
Individuals that are resident, ordinarily resident or domiciled in Ireland must pay Irish income tax on worldwide income earned or arising in a tax year (see Question 6).
Individuals that are resident or ordinarily resident are liable to tax on worldwide chargeable gains (see Question 5).
Ireland has signed double taxation agreements with 63 countries, including the UK and the US.
Generally, these treaties are designed to alleviate double tax that may arise under domestic legislation by either:
Exempting the income from tax in one of the countries.
Allowing the tax payable in one country (which has primary taxing rights) to be used as as a credit against the tax payable in the other country (which has secondary taxing rights).
It is not essential for an owner of assets in Ireland to make a will in the jurisdiction. There are eight alternative systems of law under which a will or other testamentary disposition is formally valid in Ireland (section 102, Succession Act 1965, following Articles I and II, Hague Convention on Private International Law (Hague Convention)) (see Question 18).
Part VII of the Succession Act 1965 sets out the formalities for making a will. There is no difference in respect of the nationality, residence or domicile of the testator.
A will can be made by any person who has attained the age of 18 years (or is or has been married) and is of sound mind.
There are three essential elements regarding the formal validity of a will:
The will must be in writing.
The testator must sign in the presence of two or more witnesses.
The witnesses must sign the will in the presence of the testator.
It is possible to make a post-death variation of an agreement with the beneficiaries through a deed of family arrangement, but there are tax consequences of doing so:
The deed attracts stamp duty on the share sold or voluntarily conveyed.
CAT is not due on a disposition for value but is due on a gift.
CGT is payable on a deed of family arrangement, unless the settlement is made within two years of the date of death.
If an inheritance is disclaimed, the estate is distributed as if the person disclaiming died before the testator. In that case, that person's share passes to the next person entitled under the will or the intestacy rules. The disclaimer is not a disposition for CAT purposes and no tax liability arises.
If a beneficiary disclaims for consideration, this consideration is deemed to be inherited from the deceased and CAT is payable.
Wills and testamentary dispositions made in other jurisdictions are recognised as valid if they fall under one of the eight alternative systems of law set out in section 102 of the Succession Act 1965 (see Question 16).
A foreign grant of probate is not recognised. The Probate Office requires a sealed and certificated copy of the foreign will and grant to issue an Irish grant of probate.
Where no foreign grant is issued and a foreign will is used to seek a grant of probate in Ireland, an affidavit setting out the internal law of one of the eight systems in the Succession Act 1965 is required. An affidavit is not required for wills executed in England, Wales and Northern Ireland.
The Probate Office can also issue a limited grant of probate if the deceased's estate comprises only movable or immovable property situated in Ireland.
There are no particular practical issues that are relevant where individuals from another jurisdiction die in Ireland.
The role of the personal representative, whether executor or administrator, is to:
Obtain a grant of probate.
Collect all of the estate's assets.
Pay all debts and funeral expenses.
Administer and distribute the estate of the deceased.
An executor named in a will obtains the grant of probate and his powers arise at the death of the deceased as the estate is vested in the personal representative from the date of death.
An administrator obtains the grant of probate where there is no executor under the will or in an intestate situation. An administrator's powers arise when the grant is issued from the probate office. During the period from the date of death to the date the grant is issued, the estate is vested in the President of the High Court.
Establishing title and gathering in assets (including any particular considerations for non-resident executors)?
Paying taxes?
Distributing?
This depends on whether or not the deceased left a will or died intestate:
Died testate. The will may appoint an executor, who will have the first right to prove the will (that is, present the will to the Probate Office to obtain a grant of probate).
Died intestate. The nearest next-of-kin alive at the date of death are entitled to apply. For example, on the death of a widower, the next-of-kin entitled to apply to become an administrator would be the widower's child, or the issue of a predeceased child.
Where there is no Irish-resident personal representative, the personal representatives must appoint a solicitor holding a practising certificate in Ireland as agent before seeking probate or letters of administration.
A personal representative is primarily liable for CGT on disposals of assets during the course of the administration and income tax on estate income. Secondary liability in respect of CAT for personal representatives was largely abolished in the 2010 Finance Act.
CAT must be paid by 31 October on all gifts and inheritances with a valuation date in the 12-month period ending on the previous 31 August. The valuation date for inheritance tax is the earliest of three possible dates:
The date on which the personal representative or successor is entitled to retain the inheritance (that is, take identifiable property into possession).
The date on which the inheritance is retained.
The date of delivery, payment or other satisfaction or discharge of the inheritance to the successor for his benefit.
Distribution of the estate takes place when:
The final accounts are prepared.
The inheritance tax returns are filed with the Revenue Commissioners.
CGT and income tax is paid. It is largely the responsibility of the beneficiary to pay CAT.
All inheritances with a valuation date (see Question 20) in the 12-month period ending on the previous 31 August are included in the return to be filed by 31 October. This means that where the valuation date arises between:
1 January and 31 August, the pay and file deadline is 31 October in that year.
1 September and 31 December, the pay and file deadline is 31 October in the following year.
This applies to all estates, not just those with a foreign element. Double taxation relief may apply.
A surviving spouse or children have legal rights to share in the deceased's estate under the succession regime set out in the Succession Act 1965 (see Question 24).
A child can challenge a will so that a previous advancement made to the testator's other children is brought into account (section 63, Succession Act 1965).
A child has the right to take an action against an estate if the testator has failed in his moral duty to make proper provision for the child (section 117, Succession Act 1965). The court has discretion whether to make such provision. However, an order will not affect the legal right share of a surviving spouse (see Question 24).
A court can order administration to be granted to such person as it thinks fit, where it considers it necessary or expedient to do so (section 27(4), Succession Act 1965).
The principal legislation governing the area of succession law in Ireland is the Succession Act 1965.
A surviving spouse has a legal right to a share in the deceased's estate (section 111, Succession Act 1965). If the testator has left surviving children, the surviving child is entitled to a one-third share of the estate. If there are no children, then the surviving spouse is entitled to one-half. The spouse can renounce the legal right to a share both before or after marriage.
There is no forced heirship under Irish law. The courts have a discretionary power to make provision for a child (including a child born outside marriage) where satisfied that the testator has failed in his moral duty to make proper provision for the child (see Question 23, Challenging a will). An order will not affect the legal right to a share of a surviving spouse or any bequest to that spouse if that spouse is also the child's parent. There are strict time limits on bringing an application.
There is no forced heirship regime in Ireland (see Question 24).
Movable property passes in accordance with the succession laws of the country in which the deceased was domiciled at the time of his death (see Question 2). Immovable property passes in accordance with the laws of the country in which it is actually situated.
The succession of immovable property is determined by the law of the country where the property is situated. In respect of foreign immovable property, the doctrine of renvoi is accepted in Ireland (that is, where Irish courts adopt the rules of a foreign jurisdiction and the rules of the foreign state refer the court back to the law of the forum where the case is heard, then the Irish courts will generally accept the reference back).
Where a person dies intestate, the Succession Act 1965 governs the distribution of assets. The rules of order of entitlement on intestacy are set out in the Succession Act 1965. For example, on the death of a spouse without issue the surviving spouse will inherit all of the estate. However, on the death of a spouse leaving children, the surviving spouse will inherit two-thirds of the estate and the children one-third of the estate divided equally between them, with a predeceased child's issue taking that child's share.
The nearest next-of-kin alive at the date of death of the deceased are entitled to apply to administer the estate (see Question 21, Establishing title and gathering in assets). The Rules of Superior Courts 1986 set out the order of priority. An administration bond is required from the applicant which binds him to compensate the High Court if he fails to administer the estate.
The distribution of assets on intestacy is governed by the Succession Act 1965 and no provision is made for a challenge by beneficiaries.
Trusts are recognised in Ireland and the following types of trusts are frequently used:
Bare trusts. A simple or bare trust consists of trustees holding property on trust for a person absolutely beneficially entitled to the assets of the trust. The trustees have no active duties and simply hold the legal title to the property for the beneficiary.
Fixed trusts. The entitlement of the beneficiaries to the income or capital is fixed by the settlor.
Discretionary trusts. The trustees hold the trust fund for the benefit of a class of beneficiaries. The trustees have discretion as to when and to which beneficiaries distributions are made out of the trust fund.
Trusts established after 1 December 1999 are subject to rules based on residence. Irish assets held under a trust are liable for CGT and CAT. Foreign assets held under a trust are liable to CAT if, at the date of disposition, either:
The disponer is resident or ordinarily resident.
The beneficiary is resident or ordinarily resident.
Income tax. If all the trustees are resident in Ireland, the settlement is liable to income tax on the worldwide trust income. The income of a trust (including corporate trusts) is subject to income tax at a standard rate only, although there is a surcharge of 20% for accumulated income. The ultimate beneficiary is given a credit for the income tax paid by the trustees against his income tax liability. A beneficiary can be taxed directly where he has the right to be paid the income as it arises.
CAT. Irish gift and inheritance tax applies where a beneficiary becomes entitled in possession to the trust assets.
Discretionary trust tax. No tax arises to the beneficiary until a disposal to that beneficiary. There is a one-off 6% charge on discretionary trusts which applies on the latest of:
The death of the settlor.
The date that any children of the deceased, or the deceased spouse's children or children of pre-deceased spouses that are potential beneficiaries, reach the age of 21 years.
50% (that is, 3%) of the charge is refunded if all the trust fund is transferred to the beneficiaries within five years of the one-off charge.
There is an annual charge of 1% on assets held on trust but this does not apply in the year of the one-off charge.
CGT. Trustees are liable to CGT in respect of any gains they make on disposals of assets in the course of administration of a trust. If a trust is Irish resident, the trustees are liable to CGT on the worldwide gains of the trust.
The residence of a trust is determined by the residence of its trustees.
Foreign trusts are accepted in Ireland, provided that they comply with certain formalities and contain the essential elements of a trust recognised in Ireland. Real property in trust should be evidenced in writing, signed by a person able to declare the trust. The settlement should also contain the essential elements of:
Certainty of intention.
Certainty of subject matter of the trust.
Certainty of objects of the trust.
Further changes to Irish trust law will be made under the Trustee Bill 2009 when this is implemented (see Question 33).
If a trust is resident in Ireland it will be liable to income tax on its worldwide income and CGT on the worldwide gains of the trust. Where a trust is non-resident, only Irish-source income is chargeable to income tax and CGT is only due on specified assets.
Aside from the general rules set out above, there are CGT implications when trustees cease to be resident in Ireland. The trustees are deemed to have sold the assets of the trust for the market value at the date on which the trust becomes non-resident and to have reacquired them on that date for their market value.
There is specific anti-avoidance legislation dealing with the transfer of assets to a non-resident entity for the purpose of avoiding tax.
Does the law provide specifically for the creation of non-charitable purpose trusts?
Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?
Can the trust document restrict the beneficiaries' rights to information about the trust?
Trusts for purposes other than human beings are rarely valid, and are seen as difficult to enforce, although non-charitable purpose trusts to erect a tomb, gravestone and monument have been accepted.
The rule against perpetuities was abolished recently and there is now no limit on the duration of trusts.
The law does not restrict accumulations. However, there are tax consequences which are set out in Question 30.
Beneficiaries' right to information about the trust is currently restricted. However, the Trustee Bill 2009 (which has not yet been enacted) proposes that trustees must provide the beneficiaries with a copy of any deed of settlement. The Bill provides that disclosure of documents other than the deed of settlement is a matter for the discretion of the trustees and/or the courts.
The creation of a trust does not prevent a court from considering trust assets in a separation or divorce case.
Where an individual has divested himself of his assets in the trust and the creation of the trust was not entered into fraudulently within a particular time frame, the trust can shelter assets from creditors.
Co-ownership is usually held as a joint tenancy or as a tenancy in common.
Real property held in joint names is treated differently from money held by way of joint deposit:
Joint accounts. The treatment of joint accounts is based on the contractual relationship and intention of the parties.
Sums of money held in joint deposit accounts up to EUR50,000 can be transferred on the death of a joint tenant to the surviving joint tenant when a letter of clearance is issued by the Revenue Commissioners.
Real property held under a joint tenancy. Legal title passes by survivorship outside the terms of the will and does not technically form part of the deceased's estate. CAT is payable on the passing of property by survivorship. No CGT is payable when property passes on the death of a joint tenant.
Tenants in common hold an independent share in a property. A tenant in common's share passes in accordance with his or her estate on death and is taxed with the rest of the estate.
Unlike civil law jurisdictions, matrimonial property is not governed by a set matrimonial regime. The courts consider the entirety of the family's assets and have wide powers of transfer and sale on a divorce and separation. In family law cases, the primary consideration that the courts take into account when dividing assets and granting ancillary relief is that proper provision is made for the spouse/civil partner and children.
A spouse/civil partner is afforded significant financial protection under the Succession Act 1965. The legal right to a share that a spouse/civil partner is entitled to on the death of a husband or wife or civil partner (whether testate or intestate) has absolute priority (see Question 24). Where the estate includes a dwelling in which the surviving spouse/civil partner is ordinarily resident he or she can, subject to some restrictions, direct the personal representatives to appropriate the family home/shared home in or towards their legal right to a share. A spouse/civil partner is also prevented from disposing of the family/shared home which they hold in his or her sole name without the consent of the other spouse/civil partner.
There has been significant recent legislative change in relation to the rights of cohabitees/civil partners under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Act also provides for a redress system for financially dependent cohabiting couples in both same sex and opposite sex relationships who are not married or in a civil partnership.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides for civil registration of same-sex partnerships together with rights and duties consequent on registration.
Legislation giving effect to the taxation changes under the Act was enacted in July 2011 providing similar tax treatment for civil partners as married persons.
Married?
Divorced?
Adopted?
Legitimate?
Civil partnership?
Marriage is a legally binding contract entered into by a man and a woman. For a marriage in Ireland to be valid the following must apply:
Neither party is a party to a prior subsisting marriage.
The parties must understand the nature, purpose and consequences of marriage and must freely and fully consent to the marriage.
Each party must have the required age and capacity.
Certain administrative formalities must be observed.
The parties must not be within the prohibited degrees of relationship.
A court can grant dissolution of marriage or divorce only if it is satisfied that the following criteria have been met (Family Law Act 1996):
At the time of the start of proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years.
There is no reasonable prospect of a reconciliation between the spouses.
Proper provision is made for the spouses and any dependent members of the family.
If divorce is granted, the marriage is dissolved and either party is free to remarry. A divorced party ceases to be a spouse for the purposes of succession and family law. There are consequences for tax liability as spousal exemptions can no longer be used.
Adoption is a process by which a child becomes a member of a new family. It creates a permanent legal relationship between the adoptive parents and the child. When an adoption order is made under Irish law, the legal relationship between the natural parents and their child ceases completely.
An adoption board or court must regard the welfare of the child as the first and paramount consideration when dealing with any matter relating to an adoption.
Before the Status of Children Act 1987, children were not considered legitimate unless their parents were married either at the date of birth or at the time of conception. The Act now provides that any relationship between child and parent exists irrespective of the marital status of the parents. Therefore, children are deemed legitimate regardless of the marital status of their parents. They are considered equal under Irish law, including succession and maintenance law.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, defines civil partners as persons of the same sex that are parties to a civil partnership registration.
The age of majority under Irish law is 18 years. At common law, any disposition by minors is voidable by them when they attain majority or within a reasonable time afterwards. Many testators use a bare trust or a discretionary trust until the minor reaches the age of majority. Under the recent Land and Conveyancing Law Reform Act 2009, a minor's land is held in trust with the minor holding an equitable interest. The legal title is held by the trustees and the trustees have the power to deal with the property.
Irish law presumes that a person has capacity. This presumption can be displaced by evidence. There is no definition of capacity at common law or statute, although the matter is the subject of a draft Mental Capacity Bill that is going through the Houses of Parliament.
Under the existing system, a person can be made a ward of court where he or she loses capacity. In these circumstances, the court is given jurisdiction over all matters relating to a ward's personal estate.
An enduring power of attorney is a legal mechanism for granting certain decision-making powers to a nominated attorney in the event that the donor loses mental capacity (Powers of Attorney Act 1996).
A foreign power of attorney is not recognised in Ireland and an application must be made to the Wards of Court Office to register the power of attorney in Ireland.
The Law Reform Commission published a report on trust law that contained a draft Trustee Bill which deals with the criteria for appointment and qualifications of trustees and the standard of care required by trustees. The Bill is currently in the very early stages.
This website contains Acts of the Oireachtas, Statutory Instruments and Legislation Directory for the period 1922 to 2011. It is maintained by the Attorney Generals office on behalf of the state.
T +353 1 668 4366
F +353 1 668 4203
E gina@johnoconnorsolicitors.ie
W www.johnoconnorsolicitors.ie
Qualified. Ireland, 2004
Areas of practice. Probate (contentious and non-contentious); trust law; estate planning and probate administration; real estate transactions (both residential and commercial).
Recent transactions. Advised various high net-worth individuals in relation to wills, probate and trust matters including probate litigation.
T +353 1 668 4366
F +353 1 668 4203
E shane@johnoconnorsolicitors.ie
W www.johnoconnorsolicitors.ie
Qualified. Ireland, 2009
Areas of practice. Probate (contentious and non-contentious); trust law; estate planning and probate administration; litigation; commercial law.
Recent transactions. Advised various high net-worth individuals in relation to wills, probate and trust matters including probate litigation.
