Revenue Note for Guidance

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Revenue Note for Guidance

1026 Separated and divorced persons: adaptation of provisions relating to married persons

Summary

This section allows permanently separated couples and, in certain circumstances, divorced couples to elect to be assessed jointly for income tax purposes under section 1018, subject to certain adaptations of that section.

Details

Adaptation of section 1018

(1) Where an enforceable maintenance payment to which section 1025 applies is made in a year of assessment by a party to a marriage (which has not been annulled or dissolved) and both parties to the marriage are resident in the State, then section 1018 will apply as if —

  • the condition that the wife must be living with the husband were deleted, and
  • the provision for the automatic joint assessment to tax on the husband or notice to change such an assessment or the withdrawal of such a notice, were deleted.

This allows separated individuals elect to be jointly assessed (that is, as if the separation had not taken place).

Method of assessment

(2) Where a separated couple elect to be jointly assessed under section 1018 (subject to the adaptations contained in this section) then, as respects any year for which the election has effect —

  • the Income Tax Acts apply to that couple as they would to a married couple living together who elect to be jointly assessed,
  • the total incomes of both parties is computed for tax purposes as if any maintenance payments had not been made (that is, they would be totally disregarded for tax purposes), and
  • income tax is charged, assessed and recovered on the income or incomes of the spouses as if an application for separate assessments had been made by one of the spouses under section 1023.

Joint assessment for divorced persons

(3) Where an enforceable maintenance payment has been made by one party to a dissolved marriage for the benefit of another, this section may also apply to them in circumstances where —

  • the dissolution is under section 5 of the Family Law (Divorce) Act, 1996, or the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised in the State,
  • both spouses are resident in the State for tax purposes, and
  • neither spouse has entered into another marriage or a civil partnership.

Relevant Date: Finance Act 2020