Income
Bankruptcy Act 1988 (as amended)
Administration of Property
Effect of Adjudication on Bankrupt’s Property
Vesting of property in Official Assignee.
(1857, ss. 267, 268, 273)
44.—(1) Where a person is adjudicated bankrupt, then, subject to the provisions of this Act, all property belonging to that person shall on the date of adjudication vest in the Official Assignee for the benefit of the creditors of the bankrupt.
(2) Subject to the provisions of this Act, the title of the Official Assignee to any property which vests in him by virtue of subsection (1) shall not commence at any date earlier than the date of adjudication.
(3) The property to which subsection (1) applies includes—
(a) all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication;
(b) all property which was the subject of any conveyance or transfer which sections 57, 58 and 59 declare void as against the Official Assignee, subject to the rights of any persons which are preserved by those sections.
(4) The property to which subsection (1) applies does not include—
(a) property held by the bankrupt in trust for any other person, or
(b) any sum which vests in the Official Assignee under F26[section 52(1) of the Property Services (Regulation) Act 2011], or section 30 (i) of the Central Bank Act, 1971.
(5) Without prejudice to any existing principle or rule of law or equity, established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him, property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order (in this Act called “after-acquired property”) shall vest in the Official Assignee if and when he claims it.
Annotations:
Amendments:
F26
Substituted (6.07.2012) by Property Services (Regulation) Act 2011 (40/2011), s. 101 and sch. 8, S.I. No. 198 of 2012.
F27[
Pensions in Bankruptcy.
44A.— (1) Subject to subsection (2), where a person is adjudicated bankrupt, and he or she is, or may become entitled to, payments under a relevant pension arrangement, assets relating to the arrangement (other than payments already received by the bankrupt, or that the bankrupt was entitled to receive, under the arrangement) shall not vest in the Official Assignee for the benefit of the creditors of the bankrupt.
(2) Where a bankrupt has an interest in or entitlement under a relevant pension arrangement which would, if the bankrupt performed an act or exercised an option, cause that debtor to receive from or at the request of the person administering that relevant pension arrangement—
(a) an income, or
(b) an amount of money other than income,
in accordance with the relevant provisions of the Taxes Consolidation Act 1997, that bankrupt shall be considered as being in receipt of such income, and such amount of money shall vest in the Official Assignee or the trustee in bankruptcy.
(3) Subsection (2) applies where—
(a) the bankrupt is entitled at the date of being adjudicated a bankrupt to perform the act or exercise the option referred to in subsection (2),
(b) was entitled at any time before the date of the adjudication, to perform the act or exercise the option referred to in subsection (2), but had not performed the act or exercised the option, or
(c) will become entitled within 5 years of the date of the adjudication to perform the act or exercise the option referred to in subsection (2).
(4) Where subsection (2) applies, the Official Assignee or the trustee in bankruptcy may where he or she considers that it would be beneficial to the creditors of the bankrupt to do so, perform an act or exercise an option referred to in subsection (2) in place of the bankrupt.
(5) In this section and in sections 44B and 85D a reference to a relevant pension arrangement means:
(a) a retirement benefits scheme, within the meaning of section 771 of the Taxes Consolidation Act 1997, for the time being approved by the Revenue Commissioners for the purposes of Chapter 1 of Part 30 of that Act;
(b) an annuity contract or a trust scheme or part of a trust scheme for the time being approved by the Revenue Commissioners under section 784 of the Taxes Consolidation Act 1997;
(c) a PRSA contract, within the meaning of section 787A of the Taxes Consolidation Act 1997, in respect of a PRSA product, within the meaning of that section;
(d) a qualifying overseas pension plan within the meaning of section 787M of the Taxes Consolidation Act 1997;
(e) a public service pension scheme within the meaning of section 1 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004;
(f) a statutory scheme, within the meaning of section 770(1) of the Taxes Consolidation Act 1997, other than a public service pension scheme referred to in paragraph (e);
(g) such other pension arrangement as may be prescribed by the Minister, following consultation with the Ministers for Finance, Social Protection and Public Expenditure and Reform. ]
Annotations:
Amendments:
F27
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 150, S.I. No. 462 of 2013.
F28[
Excessive pension contributins by bankrupt.
44B.— (1) Where, on application by the Official Assignee or the trustee in bankruptcy, the Court is satisfied that the bankrupt, or a person on his or her behalf, has within the 3 years prior to the adjudication made contributions to a relevant pension arrangement under which the bankrupt is, or may become entitled to, payments and which contributions—
(a) were excessive in view of the bankrupt’s financial circumstances when those contributions were made, and
(b) had the effect of—
(i) materially contributing to the bankrupt’s inability to pay his or her debts, or
(ii) substantially reducing the sum available for distribution to the creditors,
the Court may make such order in relation to the relevant pension arrangement as it considers appropriate for the purpose of ensuring that the contributions which the Court considers to be excessive or any part of such contributions can be vested in the Official Assignee or the trustee in bankruptcy to be made available for distribution to the creditors.
(2) In considering an application under subsection (1) and in determining whether or not the contributions made by the bankrupt to a relevant pension arrangement were excessive the Court may have regard to all the financial circumstances of the bankrupt and in particular:
(a) whether the bankrupt made payments to his or her creditors in respect of debts due to those creditors on a timely basis at or about the time when the bankrupt made the contribution concerned;
(b) whether the bankrupt was obliged to make contributions of the amount or percentage of income as the payments actually made under his or her terms and conditions of employment and if so obliged, whether the bankrupt or a person who as respects the bankrupt is a relative could have materially influenced the creation of such obligation;
(c) the amount of the contributions paid, including the percentage of total income of the bankrupt in each tax year concerned which such contributions represent;
(d) the amount of the contributions paid, in each of the 6 years prior to the making of the adjudication including the percentage of total income of the bankrupt which such contributions represent in each of those years;
(e) the age of the bankrupt at the relevant times;
(f) the percentage limits which applied to the bankrupt in relation to relief from income tax for the purposes of making contributions to a relevant pension arrangement in each of the 6 years prior to the adjudication; and
(g) the extent of provision made by the bankrupt in relation to any relevant pension arrangement prior to the making of the contributions concerned.
(3) In this section “relative” as respects a person, means a brother, sister, parent, spouse or civil partner of the person or a child of the person or of the spouse or civil partner. ]
Annotations:
Amendments:
F28
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 150, S.I. No. 462 of 2013.
Power of Official Assignee to appropriate part of bankrupt’s income.
(New: cf. 1857, s. 319; 1872, s. 51)
65.—(1) Notwithstanding any provision to the contrary in any other enactment, whenever a bankrupt, whether self-employed or not, is in receipt of or is entitled to receive any salary, income, emolument or pension, the Court may, from time to time, on the application of the Official Assignee, make such order directed to the bankrupt and any person from whom the bankrupt is entitled to receive any such salary, income, emolument or pension for the payment to the Official Assignee of all or part of such salary, income, emolument or pension, subject to such conditions as to payment as the Court may specify in the order having regard to the family responsibilities and personal situation of the bankrupt.
(2) The Court may at any time, on the application of any interested person, vary an order under subsection (1), having regard to any changes in the family responsibilities or personal situation of the bankrupt.
F54[Cesser of section 65.
65A.— An application for an order under section 65 shall not be made after the coming into operation of this section, but this section shall not operate to prevent an application under section 65(2) where an order under section 65(1) is in force on the coming into operation of this section. ]
Annotations:
Amendments:
F54
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 155, S.I. No. 463 of 2013.
F61[
Automatic discharge from bankruptcy.
85.—F62[(1) Subject to subsection (2) and section 85A, every bankruptcy shall, on the 1st anniversary of the date of the making of the adjudication order in respect of that bankruptcy, unless prior to that date the bankruptcy has been discharged or annulled, stand discharged.]
F62[(2) (a) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where an adjudication order in respect of a bankruptcy would, but for section 10 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy concerned shall, subject to section 85A, stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) one year from the date that the adjudication order was made,
unless it has otherwise been discharged or annulled.]
(3) F62[Subject to subsection (3A), where a bankruptcy is discharged] in pursuance of this section the unrealised property of the bankrupt shall remain vested in the Official Assignee for the benefit of the creditors.
F63[(3A) Subject to subsections (3B) to (3F), where on the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy—
(a) the unrealised property of the bankrupt referred to in subsection (3) includes an estate or interest in what was, at the date of the making of the adjudication order, the family home, shared home or principal private residence of the bankrupt, and
(b) in the case of the family home or shared home, the Official Assignee has not applied to the Court for an order for sale of that home,
that estate or interest shall, on that 3rd anniversary, stand re-vested in the bankrupt without the need for any conveyance, assignment or transfer.
(3B) Subject to subsections (3E) and (3F), where prior to the 3rd anniversary of the date of the making of the adjudication order in respect of a bankruptcy the Official Assignee—
(a) has applied to the Court for an order for sale in respect of what was at the date of that adjudication the family home or shared home of the bankrupt, and
(b) that application is dismissed by the Court,
the Court shall, unless it does not consider it just to do so in all the circumstances, make an order that the estate or interest of the bankrupt in that family home or shared home shall stand re-vested in the bankrupt from such date as is specified in the order without the need for any conveyance, assignment or transfer.
(3C) Subject to subsections (3E) and (3F), subsection (3A) shall not apply where at any time after the date of the making of the adjudication order in respect of the bankruptcy but prior to the 3rd anniversary of that date—
(a) the Official Assignee and the bankrupt have entered into an agreement in writing, for consideration or otherwise, that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or principal private residence of that bankrupt will not re-vest in that bankrupt, or
(b) on application by the bankrupt or the Official Assignee, the Court, where it considers it just to do so, makes an order that any estate or interest of the bankrupt in what was, at the date of adjudication, the family home, shared home or the principal private residence of that bankrupt will not re-vest in that bankrupt.
(3D) Subsection (3A) shall not apply where, on application by the Official Assignee at any time after the date of the making of the adjudication order in respect of that bankruptcy but prior to the 3rd anniversary of that date, the Court substitutes for that 3rd anniversary such longer period as the Court considers just in all the circumstances.
(3E) Where the Court makes an order under subsection (3D), subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the longer period substituted by the Court under subsection (3D) for such 3rd anniversary.
(3F) Where an order of adjudication in bankruptcy was made more than 2 years and six months prior to the day of coming into operation of section 10 of the Bankruptcy (Amendment) Act 2015, subsections (3A), (3B) and (3C) shall apply subject to the modification that each reference to the 3rd anniversary in those subsections shall be taken to be a reference to the day falling 6 months after the day of coming into operation of that section.
(3G) Where an estate or interest in a family home, shared home or principal private residence has re-vested in a bankrupt in accordance with this section, the Official Assignee shall, on the application of the bankrupt, issue a certificate in such form as may be prescribed confirming that the estate or interest has re-vested in that bankrupt.]
(4) A bankrupt who is discharged from bankruptcy in pursuance of this section shall have a duty to co-operate with the Official Assignee in relation to the realisation and distribution of such of his property as is vested in the Official Assignee.
(5) A person whose bankruptcy has been discharged by virtue of this section may apply to the Official Assignee for the issue of a certificate of discharge from bankruptcy.
F62[(6) (a) In this section and in sections 85A to 85D, ‘bankrupt’ includes personal representatives and assigns.
(b) In this section, ‘family home’ and ‘shared home’ have the same meaning as they have in section 61.]]
Annotations:
Amendments:
F61
Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F62
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 10(a), (b) and (d), S.I. No. 34 of 2016.
F63
Inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 10(c), S.I. No. 34 of 2016.
Editorial Notes:
E23
Previous affecting provision: section substituted (10.10.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(g), S.I. No. 508 of 2011.; substituted as per F-note above.
E24
Previous affecting provision: subs. (3)(a)(ii) substituted (20.07.2008) by Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), s. 65, S.I. No. 274 of 2008; substituted as per E-note above.
E25
Previous affecting provision: subss. (3) and (4) amended (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 7(1), commenced as per s. 7(1); substituted as per E-note above.
F64[
Objection to automatic discharge from bankruptcy.
85A.—(1) The Official Assignee, the trustee in bankruptcy or a creditor of the bankrupt may, prior to the discharge of a bankrupt pursuant to section 85, apply to the Court to object to the discharge of a bankrupt from bankruptcy in accordance with section 85 where the Official Assignee, the trustee in bankruptcy or the creditor concerned believes that the bankrupt has—
(a) failed to co-operate with the Official Assignee in the realisation of the assets of the bankrupt, or
(b) hidden from or failed to disclose to the Official Assignee income or assets which could be realised for the benefit of the creditors of the bankrupt.
(2) An application under subsection (1) shall be made on notice to the bankrupt and where made by the trustee in bankruptcy or a creditor, notice shall also be given to the Official Assignee.
(3) Where it appears to the Court that the making of an order pursuant to subsection (4) may be justified, the Court may make an order that the matters complained of by the applicant under subsection (1) be further investigated and pending the making of a determination of the application the bankruptcy shall not stand discharged by virtue of section 85.
F65[(4) Where the Court is satisfied that the bankrupt has—
(a) failed to co-operate with the Official Assignee in the realisation of the assets of the bankrupt, or
(b) hidden from or failed to disclose to the Official Assignee income or assets which could be realised for the benefit of the creditors of the bankrupt,
the Court may, where it considers just to do so, order that, in place of the discharge provided for in section 85, the bankruptcy shall stand discharged on such later date—
(i) being not later than the 8th anniversary of the date of the making of the adjudication order, as the Court considers just, or
(ii) being not later than the 15th anniversary of the date of the making of the adjudication order, which the Court considers just in view of the seriousness of the failure to co-operate referred to in paragraph (a) or the extent to which income or assets referred to in paragraph (b) were hidden or not disclosed, or both, as the case may be.]
(5) Where the Court has made an order under subsection (4), no further application may be made under subsection (1).
(6) The making of an order under this section shall not prevent an application being made for discharge or annulment under section 85B.]
Annotations:
Amendments:
F64
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F65
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 11, S.I. No. 34 of 2016.
F66[
Entitlement to discharge from bankruptcy.
85B.— (1) A bankrupt shall be entitled to an order discharging him from bankruptcy where provision has been made for the payment of the expenses, fees and costs of the bankruptcy, and for preferential payments, and—
(a) he has paid one euro in the euro, with such interest as the Court may allow, or
(b) he has obtained the consent in writing of all of his creditors, whose debts have been proved and admitted in the bankruptcy, or
(c) section 41 (discharge of adjudication order) applies.
(2) The giving of consent by a creditor under subsection (1) constitutes a waiver by that creditor of the right to recover the amount concerned proved and admitted in the bankruptcy.
F67[(2A) An order of discharge shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly.]
(3) A person whose bankruptcy has been discharged by virtue of this section may apply to the Official Assignee for the issue of a certificate of discharge from bankruptcy. ]
Annotations:
Amendments:
F66
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F67
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 34, S.I. No. 463 of 2013.
F68[
Annulment of adjudication in bankruptcy.
85C.— (1) A person shall be entitled to an annulment of his adjudication—
(a) where he has shown cause pursuant to section 16, or
(b) in any other case where, in the opinion of the Court, he ought not to have been adjudicated bankrupt.
(2) An order of annulment shall provide that any property of the bankrupt then vested in the Official Assignee shall be revested in or returned to the bankrupt, and that order shall for all purposes be deemed to be a conveyance, assignment or transfer of that property to the bankrupt and, where appropriate, may be registered accordingly.
(3) A person whose bankruptcy has been annulled may apply to the Official Assignee for the issue of a certificate that the bankruptcy has been annulled. ]
Annotations:
Amendments:
F68
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F69[
Bankruptcy payment orders.
85D.— (1) The Court may, on application being made to it by the Official Assignee or the trustee in bankruptcy, make an order requiring a bankrupt to make payments to the Official Assignee or the trustee in bankruptcy from his income or other assets for the benefit of his creditors (a ‘bankruptcy payment order’).
(2) An application for a bankruptcy payment order may not be made after the bankrupt has been discharged from bankruptcy, but where an application for such an order is made before the discharge of the bankrupt, the Court may make a bankruptcy payment order after the date of discharge as if the bankrupt had not been so discharged.
F70[(3) Subject to subsections (3A) and (3B), an order made under subsection (1) shall have effect for no longer than 3 years from the date of the order coming into operation, and where, during the order’s validity, the Court has varied the order under subsection (5), such variation shall not cause the order to have effect for a period of more than 3 years, and in any event, any order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 4th anniversary of the date on which the bankrupt was adjudicated bankrupt.
(3A) (a) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire on any day during the period of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on that day unless it has otherwise been discharged or annulled.
(b) Where a bankruptcy payment order would, but for section 12 of the Bankruptcy (Amendment) Act 2015, expire at any time after the expiration of 6 months from the commencement of that section, the bankruptcy payment order concerned shall, subject to subsection (3B), stand discharged on the later of—
(i) 6 months after that commencement, or
(ii) 3 years from the date that bankruptcy payment order was made,
unless it has otherwise been discharged or annulled.
(3B) Where the Court has made an order under section 85A(4), the bankruptcy payment order made under subsection (1) shall have effect for no longer than 5 years from the date of that bankruptcy payment order coming into operation, and where, during that bankruptcy payment order’s validity, the court has varied that order under subsection (5) such variation shall not cause that order to have effect for a period of more than 5 years, and in any event, any bankruptcy payment order made under subsection (1) or varied under subsection (5) shall cease to have effect on the 8th anniversary of the date on which the bankrupt was adjudicated bankrupt.]
(4) In making an order under subsection (1) the Court shall have regard to the reasonable living expenses of the bankrupt and his or her dependants and the Court may also have regard to any guidelines on reasonable living expenses issued by the Insolvency Service under the Personal Insolvency Act 2012 or by the Official Assignee.
(5) The Court, on the application of the bankrupt or the Official Assignee or the trustee in bankruptcy, may vary a bankruptcy payment order granted under subsection (1) where there has been a material change in the circumstances of the bankrupt.
(6) The court in granting an application under subsection (1) may order any person from whom the bankrupt is entitled to receive any salary, income, emolument, pension or other payment to make payments to the Official Assignee or trustee.
(7) For the purposes of this section, where a bankrupt is, or may become entitled to, payments under a relevant pension arrangement, an asset relating to the arrangement (other than payments already received by the bankrupt, or that the bankrupt was entitled to receive, under the arrangement) shall not be regarded as an asset. ]
Annotations:
Amendments:
F69
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 157, S.I. No. 462 of 2013.
F70
Substituted and inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 12, S.I. No. 34 of 2016.
Surplus.
(1857, s. 304)
86.—(1) If the estate of any bankrupt is sufficient to pay F71[one euro in the euro], with interest at the rate currently payable on judgment debts, and to leave a surplus the Court shall order such surplus to be paid or delivered to or vested in the bankrupt, his personal representatives or assigns.
(2) The order shall for all purposes be deemed to be a conveyance, assignment or transfer of property and, where appropriate, may be registered accordingly.
Annotations:
Amendments:
Rules of the Superior Court XVIII. Bankrupt’s Remuneration and Superannuation
79. Where the Official Assignee intends to apply to the Court for an Order for the payment to the Official Assignee of all or part of the salary, income, emolument or pension of a bankrupt, notice shall be given to the bankrupt of such intention, and of the time and place fixed for the hearing of the application, and the bankrupt shall be at liberty to attend and show cause against an Order being made on the application.