Personal Insolvency Act 2012
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Amendment of section 85 of Bankruptcy Act 1988. |
157.— Section 85 of the Bankruptcy Act 1988 is amended by the substitution of the following for section 85: | |
“Automatic discharge from bankruptcy. | ||
85.— (1) Subject to subsection (2) and section 85A every bankruptcy shall, on the 3rd 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. | ||
(2) Subject to section 85A, a bankruptcy subsisting on the coming into operation of section 157 of the Personal Insolvency Act 2012 where the order of adjudication was made more than 3 years prior to the coming into operation of that section, shall stand discharged 6 months after that day unless the bankruptcy has otherwise been discharged or annulled. | ||
(3) 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. | ||
(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. | ||
(6) In this section and in sections 85A to 85D ‘bankrupt’ includes personal representatives and assigns. | ||
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. | ||
(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 it appropriate to do so, order that in place of the discharge provided for in section 85 the bankruptcy shall stand discharged on such later date, being not later than the 8th anniversary of the date of the making of the adjudication order, as the Court considers appropriate. | ||
(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. | ||
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. | ||
(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. | ||
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. | ||
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. | ||
(3) An order made under subsection (1) shall have effect for no longer than 5 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 5 years, and in any event, any 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.”. |