Divorce and legal separation
When the Irish courts grant a decree of divorce, the divorced spouses' marriage is dissolved and their legal status as each other's spouse ends.
Therefore, if a person, divorced in Ireland, dies intestate and the practitioner is instructed to make an application to the Probate Office for letters of administration in the estate, the oath for administrator should contain the following information:
deceased died intestate and was divorced by virtue of order of the court dated .... day of .... 20....
relationship of the applicant to the deceased (that is, nearest next of kin in accordance with usual succession rights).
The remainder of the documentation required is the same as when applying for a standard grant of administration.
A copy of the court order should be lodged with the papers.
When a married couple separates (whether by deed of separation or judicial separation), their marriage is not dissolved and their legal status as each other's spouse is maintained. The separation agreement is not final and conclusive and the couple may amend it at any time or indeed abandon it.
Where one of the parties to such an agreement dies intestate, and letters of administration are being applied for in the Probate Office, the following information should be noted by practitioners.
The Probate judge has directed that the following policy is appropriate in legal separation cases:
Where an application is made to the Probate Office for a grant of administration intestate in the estate of a deceased person who had during his/her lifetime entered into a separation agreement, the Probate Office shall examine such separation agreement and, if it is apparent therefrom that the person had renounced or disclaimed his/her respective succession rights, a rebuttable presumption will operate to the effect that such renunciation
still prevails as at the date of death in question and no further renunciation or disclaimer shall be required from the surviving spouse.
Where a separation agreement is presented wherein succession rights have not been addressed, the surviving spouse retains his/her legal entitlement to extract the grant unless he/she exercises his/her right to execute a renunciation
in the matter.
Where issues arise, the matter may need to be referred to the Probate Court in the usual manner but the view of the Probate Officer or Assistant Probate Officer should first be obtained.
Under the Recognition of Foreign Divorces Act, 1986, provision is made for recognition by the Irish courts of foreign divorces. This recognition, however, is subject to certain criteria being met in each case and the Probate Officer as a statutory officer, does not have the jurisdiction to determine if such criteria have been satisfied.
Strictly speaking, therefore, the matter should be referred to court. However, to avoid the delay involved in such a course, together with the cost implications for an estate, the following policy is applied:
When a party who has obtained a foreign divorce dies, and an application for a grant of administration in his/her estate ispresented to the Probate Office by the issue of the deceased, a renunciation from the divorced su rviving spouse should be filed with the application. This renunciation must be exhibited in the oath for administrator.
If a party other than the issue of the deceased is applying for the grant, a disclaimer from the divorced surviving spouse must be filed and this also must be exhibited in the oath for administrator.
If the renunciation or disclaimer (as appropriate) is not forthcoming, an application pursuant to section 27(4) of the Succession Act 1965 must be made to the probate judge on foot of a notice of motion and grounding affidavit.
DISCLAIMER OF............. ON DEATH
who died on day of 20 .
This DEED OF DISCLAIMER is made this day of 20
by me of
in the County of
1. late of (hereinafter called "the deceased")
died on the day of 20 having died intestate as to the interest hereby disclaimed
2. The Deceased was and and was survived by (state if survived by e.g. A spouse and 2 children or as the case may be)
3. I was the of the Deceased
4. I have not accepted any share from the Personal Representative of the Deceased or otherwise nor have I exercised any degree of beneficial ownership, control or possession in respect of any share of said estate.
NOW IT IS HEREBY WITNESSED that I HEREBY IRREVOCABLY DISCLAIM absolutely all my right to any share I may be entitled to in respect of said estate
(Insert the following paragraph unless a Grant has already issued to person disclaiming or he has already signed a Renunciation)
AND I HEREBY ACKNOWLEDGE that on the execution by me of this Disclaimer I will lose any right I may have (by virtue of my entitlement to the said share) to extract a Grant of Administration to the Estate of the Deceased
IN WITNESS whereof I have hereunto set my hand and affixed my seal the day and year first above written
SIGNED SEALED AND DELIVERED
By the said
in the presence of:-
RENUNCIATION OF ADMINISTRATION
In The High Court of Justice - Probate Registry
In the Goods of Deceased
In the County of
Deceased, died on the day of 20
*State whether Intestate, a*
Bachelor, Widower etc
AND WHEREAS I
Now I, the said aged 18 years and upwards do hereby renounce all my rights to Letters of Administration of the estate of the said deceased
IN WITNESS, I have hereto set my hand this
Day of 20
SIGNED AND DELIVERED
By the said
in the presence of:-
*(One Disinterested Witness sufficient)
________________________Content reviewed: May 2017