Section 86 Agreements

Section 86 agreements may be written by the parties themselves and may cover property and maintenance matters. There is no specific form for the agreement except that it should be a deed and therefore witnessed by a justice of the peace or a solicitor. There is no need to approach a judge for approval and the agreement can be registered with the Court by filing a copy of it together with an affidavit by one of the parties identifying the agreement and swearing that the parties signed the original.

After an agreement is registered, it has the same effect as a court order and is equally binding on the parties. It can only be varied if there is a change of circumstances or if fraud or undue influence in the making of the agreement can be proved (s86(3)). The registration of a section 86 agreement does not prevent the later institution of property proceedings under section 79, subject to the time requirement of section 44, if this is relevant.

Any property transferred in accordance with a section 86 agreement is not subject to stamp duty if the parties are divorced. If the parties are not yet divorced, the duty is refundable on showing the divorce decree to the Commissioner of State Revenue.

Section 87 Agreements

Section 87 agreements go further than those under section 86, as they operate in substitution for any rights of the parties to claim maintenance or property in the future or to have their property rights against each other decided in Court. A section 87 agreement is therefore a final agreement on financial matters between parties and needs to be approved by the Court before it can have any legal effect.

Approval will be given by the Court where the financial provisions of the agreement are considered to be ‘proper’. In deciding this, the Court will have regard to whether the agreement appears to be a fair adjustment between the parties, whether the interests of children under 18 years are protected and whether the parties fully understand that it is in substitution of other rights.

Once an agreement is approved, the Court may only revoke approval if both parties agree, or if it can be shown that there was fraud or undue influence involved in the making of the agreement or the obtaining of approval. There are two exceptions to the bar against future claims. These are referred to in section 87 (4A) and (4C). The second refers to claims for child maintenance. The first allows claims for maintenance by a spouse if the Court is satisfied that when the agreement was approved, taking into account what was in the agreement, the spouse could not have supported themselves without a social security payment.

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