Cohabitant Relief
Cases
A.F v S.F pre-2010 Act)
[2007] IEHC 196
JUDGMENT of Mr. Justice Henry Abbott delivered on 4th day of May, 2007.
This is an application by the respondent for an order dismissing the within proceedings as showing no cause of action, being vexatious and an abuse of this Honourable Court and being a duplication of proceedings under the High Court Record 2004/534 P. The application has been brought by notice of motion returnable to the 13th day of October, 2006, in which other relief relating to the action is claimed and on 13th October, 2006, this court directed that the issue raised by the respondent, that the within proceedings are vexatious and show no cause of action, to be tried as a preliminary issue. This preliminary issue was heard on 24th April, 2007.
Background Facts
The parties herein commenced a relationship together in or about 1977. The applicant claims that the respondent proposed marriage to her in or about October 1977, and presented the applicant with an engagement ring in December, 1977, and that the applicant accepted the respondent’s proposal of marriage. These three allegations are vigorously denied by the respondent. It is common case that the parties began to co-habit with each other in or about February, 1978, until October, 2004, when the relationship broke down between the applicant and the respondent. The respondent claims that there were breaks in the co-habitation. There are three children born of the relationship between the applicant and the respondent in 1978, 1980 and 1983. At all material times the parties were married to third parties and each of them have children by their marriages, the applicant having one child born in 1971 and the respondent having two children born in 1972 and 1973. The applicant alleges that the parties during the course of their relationship, purchased a number of properties in their joint names. They are also directors/shareholders in various limited liability companies allegedly set up by them. Again these allegations in relation to property and corporate arrangements are vigorously denied by the respondent.
The relationship between the parties herein broke down in or about October 2004. The applicant claims that she was anxious to regularise all outstanding matters pertaining to the breakdown of the relationship with the respondent. The applicant issued a special summons on 15th September, 2005, seeking the following relief
1. An order pursuant to s. 36 the Family Law Act, 1995, and s. 44 of the Family Law (Divorce) Act, 1996 determining the extent of the applicant’s and the respondent’s respective interest in the title to or possession of the said properties as set out in the schedule to be filed with the special summons.
2. An order pursuant to s. 5 of the Family Law Act, 1981
3. An order pursuant to s. 5(a) of the Family Law (Maintenance of Spouses and Children) Act, 1976, seeking a periodical payment order for the benefit of the dependent child of the relationship.
Statutory Background
In s. 2 of the Family Law Act, 1981, it is provided as follows:-
“(1). An agreement between two persons to marry one another whether entered into before or after the passing of this Act, shall not under the law of the State have effect as a contract and no action shall be brought in the State for the breach of such an agreement, whatever the law applicable to the agreement
(2). Subsection (1) shall not have effect in relation to any action that has been commenced before the passing of this Act.”
Section 5 of the Family Law Act, 1981, deals with the property of engaged couples as follows:-
“(1) Where an agreement to marry is terminated, the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall apply in relation to any property in which either or both the parties to the agreement had a beneficial interest while the agreement was in force as they apply in relation to a property in which either or both spouses has or have a beneficial interest.
(2) Where an agreement to marry is terminated, s. 12 of the Married Women’s Status Act, 1957 (which relates to the determination of questions between husbands and wives as to property) shall apply, as if the parties to the agreement were married, to any dispute between them or claim by one of them, in relation to property in which either or both had a beneficial interest while the agreement was in force as they apply in relation to property in which either or both spouses has or have a beneficial interest.”
Section 44 of the Family Law (Divorce) Act, 1996 provides as follows:-
“Where an agreement to marry is terminated, s. 36 of the Act of 1995 shall apply, as if the parties to the agreement were married to each other, to any dispute between them or claim by one of them, in relation to property in which either or both of them had a beneficial interest while the agreement was in force”.
The relevant part of s. 36 of the 1995 Act provides as follows
“(1) Either spouse may apply to the court in a summary manner to determine any question arising between them as to the title or possession of any property.
(2) An application to it under subs. (1), the court may-
(a) make such order with respect to the property in dispute (including an order that it be sold or partitioned) and as to the costs consequent upon the application, and
(b) Direct such inquiries, and give such other directions, in relation to the application.
as the court considers proper.”
The Constitutional Background
The relevant provisions of the Constitution (which relate to the family) is
Article 41.
“(1)° the State recognises the Family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptable rights, antecedent and superior to all positive law
(2)° the State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State
(2)1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
(2)°. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
(3)1° The State pledges itself to guard with special care in the institution of Marriage, on which the family is founded, and to protect it against attack”.
There is established authority for the proposition that the family envisaged in Article 41 of the Constitution is the marital family. However in Article 41.2.1° and 2° the role of the woman in the home and the mother is not described with reference to the family and it is arguable that Article 41.2 applies to a woman or mother in the home, whether that child is a marital child or not.
Procedural Background
Order 19, Rule 28 of the Rules of the Superior Courts provides:-
“The Court may order any pleadings to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.
There is also an inherent jurisdiction of the court to dismiss proceedings on the grounds that the same are an abuse of process. The respondent relied on both grounds.
In relation to the application based on Order 19, Rule 28, the respondent relied on the authority of the judgment of Kelly J. in Ennis v. Butterly [1996] 1 IR 426 where it was held that “agreements, the consideration for which is cohabitation are incapable of being enforced”. In that case Mr. Justice Kelly noted that prior to the enactment of the 1981 Family Law Act an agreement to marry between two persons who were already married to other people was void for public policy under the common law, and noted that the common law, if anything, had been reinforced by the guarantees for marriage and the family in the Constitution. Counsel on behalf of the applicant argued that the decision in Ennis v. Butterly was made without reference to the English case decided by Scott Baker J. in Shaw v. Fitzgerald (1992) 1 FLR 357 and quoted the judgment of Scott Baker J. at p. 360 of the report where he said as follows
“Mr. Irvine, for the appellant, argues that subs. (1) to (3) of the 1970 Act draw a clear distinction between the capacity of two people to enter into an agreement to marry, which is not affected by this Act, and the right to enforce such contract, which parliament, he says, has recognised. Although such an agreement is not enforceable, its existence may cause the parties to alter their property rights. This is clear from subs. (2) and (3). Section 17 of the Married Women’s Property Act, 1882 provides a special procedure for resolving property disputes between husband and wife. The 1970 Act extended that Act so as to cover persons who had been engaged. It seems to me wholly artificial to interpret s. 2(2) so as to prevent those couples whose agreement to marry was unenforceable at common law from utilising its provisions, whilst at the same time permitting its use by those whose agreement is unenforceable by statute. I can see that there may be strong policy reasons why an agreement to marry should not have effect as a contract giving rise to legal rights, and that no action should lie for breach of it; but it seems to me that this is so whether or not both of the parties to the agreement was married to someone else when the agreement was made. I draw a clear distinction between seeking a legal remedy for breach of such an agreement and utilising a summary procedure to resolve property disputes which have arisen as a consequence of it. Those disputes are not, in my judgment, tainted by any illegality which may have attached to the agreement. The 1970 Act, it seems to me recognises this.”
The minimisation of former public policy considerations by Baker J. in the Shaw v. Fitzgerald decision must be considered in the light given to them by Kelly J. in the Ennis v. Butterly decision having regard to the strong and subsisting guarantees for marriage and family in the Constitution – a legal feature which is notably absent from the English context.
However, if the provisions of Article 41.2 1° and 2° of the Constitution relate to the role of women in the home as mothers of children, whether marital or not, then it can be said that the highly principled statement of public policy in Article 41.1° and 3° is to be tempered by the more pragmatic and utilitarian considerations of Article 41.2.1° and 2°. I am inclined to the view that the Ennis v. Butterly decision is not decisive in relation to the issues in this case (although I do not purport to decide them). I am of the view that an argument can be made against the propositions which may be gleaned from Ennis v. Butterly on the following grounds
1. The decision in Ennis v. Butterly was made without consideration of the arguments in Shaw v. Fitzgerald (the same apparently not having being opened to Kelly J.).
2. The Ennis v. Butterly decision related primarily to the enforceability of a cohabitation agreement whereas the issue in this case relates to the claim for the regularisation of property arrangements made during the course of the activities of the applicant, as a mother of the respondent’s three non marital children.
3. I can find no reason in law or public policy nor in constitutional provisions which may be advanced for the proposition that property or joint property arrangements may not be made to facilitate the nurturing of a non marital child by its mother.
4. The constitutional principles regarding the guarantees for marriage and the marital family are to be tempered by the need to ensure that non marital children are nurtured without diminishing the guarantees for marriage and the marital family.
On the foregoing basis, I cannot find that – assuming the plaintiff’s claim to be factually established (as I must under the case law relating to an application of this kind) that the applicant’s case is far from frivolous or vexatious and ought not to be dismissed pursuant to Rule 28.
As regards the respondent’s application to have the applicant’s case dismissed on the grounds that it is an abuse of the process of a court pursuant to the inherent jurisdiction of the court, I rely on the judgment of the Supreme Court in the case of Supermacs Ireland Limited and Patrick McDonagh (Plaintiffs) and Katesan (Naas) Limited and Patrick Sweeney (Defendants) [2000] IEHC 17 and the judgment of Hardiman J. where he deals with the burden of proof on an applicant in such cases as follows:-
“The position is aptly summarised in Lac Minerals v. Chevron Corporation [1995] 1 ILRM 161 as follows:-
“The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiffs contention”.
While the respondent alleged that there was no engagement and no engagement ring, that the applicant was paid as a PAYE worker by him, that there were declarations of trust made by the applicant in respect of the properties and that the applicant’s claim was fraudulent, these assertions have to be judged in the light of the common case that the applicant is the mother of long years standing of his three non marital children, implying a course of dealing (to use a neutral term) which could well give rise to a conclusion on the facts such as may be alleged by the applicant. In my opinion the respondent does not clear the difficult burden of proof to establish a right to have a dismissal for abuse of process in the light of the common procreative history of the applicant and the respondent and the activities associated therewith. Accordingly, I dismiss the respondent’s application on the issues directed by the court.
C. (A.) (A Minor) v. F. (J.) & Ors [2007] IEHC 399
EX TEMPORE JUDGMENT of Mr Justice Clarke delivered on the 23rd day of November, 2007
The deceased named in the title of both of these proceedings died on the 14th September 2004. He was survived by the respective plaintiffs in these separate proceedings who are both non-marital children with different mothers. Both plaintiffs bring the relevant proceedings, alleging that the deceased failed in his moral duty to make proper provision for them in his will. Both seek declarations to that effect and ask the court to exercise its jurisdiction under s.117 of the Succession Act 1965 in a manner such as to insure that proper provision is made for them. As both proceedings involve the same estate and were, therefore, in part potentially dependent one on the other, it was necessary that both be tried together. Happily there was little factual dispute between any of the parties. It is, therefore, to those undisputed facts that I first turn.
The plaintiff LB is elder of the two children of the deceased and was 17 at the date of his death. The plaintiff AC is the younger of the two children and was three when her father died. The deceased made and duly executed his last will and testament on the 30th July 2002 and unfortunately later died on the 14th September 2004. Probate of the will was issued to the defendants in both proceedings as executors. The sums bequeathed to the various parties mentioned in the will were expressed in Irish pounds and for convenience I will retain, in describing the will, that currency.
The plaintiff AC was left a sum of IR£100,000 in her father’s will. The mother of the plaintiff AC (“AMG”) was left a sum of IR£300,000. The amount left to AMG was left to her absolutely and there is no legal onus, arising out of the will, on the part of AMG to apply any of that sum for the benefit of AC. It was accepted on behalf of AC that, the duty to provide for AC is a joint one on the part of both of her parents but it was further submitted that the moral duty on the part of her father, as established by the Succession Act 1965, had crystallised on his death.
The plaintiff LB was left the sum of IR£250,000 in the will. In addition the deceased left IR£75,000 and the residue of his estate to his mother who had survived him. He also left IR£10,000 to each of his brothers and sisters amounting in total to a sum of IR£60,000 to those siblings. The sums provided for both LB and AC were devised to named Trustees on trust for the respective parties.
The value of the estate of the deceased as of his date of death was somewhat problematic. While the gross value of the estate was estimated at that time as being of the order of €1.3 million, the net value was stated to be just over €700,000. A number of the properties comprised in the estate of the deceased were encumbered with mortgages and because of the circumstances in which the deceased died there were questions as to whether many, if not all, of the insurance companies which provided mortgage protection cover would pay out on foot of those policies. In addition some of the assets have increased in value. However, in the events that have happened, it is now accepted that the amount of assets available for distribution to the beneficiaries as a whole will be approximately €1.6 million, less whatever costs of these proceedings may be directed to be paid out of the estate. As it happens, therefore, there may not be a very great disparity between the gross value of the assets of the deceased as of the date of his death, allowing for the insurance policies now being paid, and what will actually be available for distribution.
The deceased was unmarried and the only persons in respect of whom he owed a direct legal duty were the two plaintiffs in the respective proceedings. There was no legal duty to make provision for either his siblings, his mother or AMG. I will return to the question of whether he owed a moral duty in respect of any of those parties and the effect of any such duty in due course.
So far as LB is concerned the following facts were established at the hearing before me. LB was born in 1987 and is now 20 years of age and is of good health and of full mental capacity. She enrolled as a student in Dublin in the autumn of 2005 but found herself unable to continue with her studies at that time and now resides at home with her mother, her mother’s husband and their children. She is in receipt of no income whatsoever other than certain monies which she has received from the trustees of her late father’s will as an interim payment.
It would appear that no financial assistance towards the upbringing of LB was provided by the deceased until approximately 1998 when, as a result of actions taken by LB’s mother, a modest sum of IR£150 per month was commenced to be paid. That sum increased from time to time reaching ultimately an amount of €350 per month. It would not appear that any other financial assistance was provided by the deceased in favour of LB.
So far as AC is concerned the following facts were established. As indicated earlier AC was only three years of age at the date of the death of her father and is now six years of age. The relationship between the mother of AC, AMG, and the deceased was non-marital and unfortunately unhappy differences arose between those parties which led to family law proceedings which were particularly focused on the provision of maintenance and access. As a result of those proceedings, terms of settlement were entered into which provided for the payment of monthly maintenance for AC, originally agreed at the sum of €856 per month. There were certain other arrangements between the deceased and the mother of AC concerning an interest in property.
Since the death of the deceased, AMG has continued to earn a sum of between €500 and €800 per week. In addition to those sums certain interim payments have been made by the trustees for the benefit of AC and the combination of those two income streams has provided for the support of AC and her mother.
I now turn to the other beneficiaries. It is not suggested that the mother of the deceased is in need of financial support. She owns her own house and would appear to have sufficient income to meet her needs. Neither is any case made that any of the siblings concerned are in need.
Having identified the undisputed facts it is, therefore, appropriate to turn to the legal principles by reference to which the decision in this case must be made. Happily in Re ABC, XC and Ors v. RT and Or [2003] 2 I.R 250, Kearns J. engaged in a significant review of relevant authority and set out the general principles to be derived from those authorities in the following terms:
“(a) The social policy underlying s. 117 is primarily directed to protecting those children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
(b) What has to be determined is whether the testator, at the time of his death, owes any moral obligation to the children and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on an applicant for relief under s. 117, which requires the establishment of a positive failure in moral duty.
(d) Before a court can interfere, them must be clear circumstances and a positive failure in moral duty must be established.
(e) The duty created by s. 117 is not absolute.
(f) The relationship of parent and child does not, itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education for a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making “proper provision”.
(j) The duty under s. 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent must take into account not just his moral obligations to his children and to his wife, but all his moral obligations, eg. to aged and infirm parents.
(l) In dealing with a s. 117 application, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example, working on a farm, he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong not to foster.
(0) Special needs would also include physical or mental disability.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to opt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must not disregard the fact that parents must be presumed to know their children better than anyone else.”
It is clear, therefore, that the court must assess, by reference to those principles, whether there has been a failure to make proper provision. If the court is so satisfied, then an appropriate order should be made to endeavour to provide for any claimant in respect of whom proper provision has not been made.
In applying those general principles to the facts of this case, it seems to me that two preliminary points need to be addressed. The first concerns the time by reference to which the various assessments which the court has to carry out needs to be made. Firstly it is clear on the authorities that the date for the assessment of whether the moral duty of a parent to a child has been met, must be the date of death of the parent concerned. The assets available to that parent need to be viewed as of that time. On the other hand, as a matter of practical reality, when the court comes to exercise its role under s.117 in circumstances where it is satisfied that there has been a failure of moral duty, then the court has to deal with the assets as they are at that time, in that the assets as of that time are the pool of resources which are available to make provision for any successful claimant and, indeed, for those who remain entitled to benefit under the will itself.
It is worth noting that that difference in date can be potentially a cause of difficulty for a court exercising its role under s. 117 where there is a significant difference, by virtue of the lapse of time or otherwise, between the value of the assets available as of the date of death and the value of the assets which are available to the court as of the date of trial to meet any obligations which have been established. That difference can, of course, operate in either direction. In recent times, until perhaps this year, it may well have been the case that one could have expected assets to have appreciated, and often significantly so, in value. On the other hand it is almost inevitable that some not insignificant amount of costs will be incurred in course of litigation under s.117, which costs will be directed to be paid out of the estate. There may well, therefore, in some cases, be a difficulty, with which the court can be faced, in attempting to deal with the fact that the value of the assets by reference to which the initial moral duty of the parent concerned has to be assessed may be different, by a significant margin, from the value of the assets which may be available to the court, as of the date of trial, for distribution. This matter may be of particular relevance in cases where there is a distinction to be made between persons who are given a share of the estate or of the residuary estate (the value of which will, of course, therefore, go up and down in accordance with the value of the assets available) on the one hand, and persons who are left a specific sum which is fixed, on the other hand. The relativity between such provision can, of course, alter in cases where there has been a significant change in the value of the assets. It is, however, important to emphasise that there is no question of hindsight being used in relation to an assessment of the making of proper provision. The fact that the assets may now be more valuable does not, of itself, give rise to an entitlement on the part of the court to rewrite a will in circumstances where, as of the date of death, proper provision was made.
However, it seems that this issue is unlikely to be of any great difficulty on the unusual facts of this case. While there were difficulties in assessing the extent of the estate (including the availability of the funds that might have been expected from the insurance policies on the one hand, the increase in the value of property assets on the other hand, and in addition the fact that certain costs will now have to be borne) it appears that, in general terms, the gross value of the estate as of the date of death is not that different from the sums that will now be available for distribution.
The second issue which is perhaps unusual in this case compared with many of the decided cases in this area concerns the position of AMG. It seems to me that two questions arise. The first is as to whether the deceased might be said to have owed a moral duty to AMG. It is clear that he owed no equivalent legal duty, for the Succession Act, 1965 does not make any provision for a partner with whom a deceased has had children but who was not married to the deceased. On the other hand it is equally clear from a number of the authorities that the persons in respect of whom a deceased may owe a moral duty are not confined to those persons in respect of whom a legal obligation arises. A parent of a deceased is not someone who has any entitlement to receive assets from a deceased who dies testate. Nonetheless it is clear from the authorities that, in an appropriate case, a deceased may have a moral duty to make some provision for such a parent which moral duty can be taken into account by the court in assessing what assets might properly be available for claimant children under s.117.
I am, therefore, satisfied that the class of those to whom a moral duty may be owed can go beyond the class of those who might be entitled to make a legal claim on the estate if the deceased did not make provision, or proper provision for them. It seems to me that that category of persons may include, in an appropriate case, a joint parent of a child or children who remain in need of significant care. The reality is that it must be expected that, for the next significant number of years, the care of AC will be entrusted to her mother. AC is a child of the deceased and her upbringing depends in large part on the fact that her mother will be in a position to care for her until she can be established in her own right.
In those circumstances it does seem to me that, on the facts of this case, it can be said that the deceased did owe a moral duty to AMG as its the mother of AC and that that is a factor to be taken into account.
The second aspect of this issue is as to whether it is also appropriate to take into account any bequest to the mother of AC in considering AC’s own entitlements. I am satisfied that it is, but only in part. I accept the submissions made on behalf of AC to the effect that the bequest to AC’s mother is not attached with any direct legal obligations to provide for AC out of the funds bequeathed. At the same time, however, the practical reality of a case such as this is that the standard of living and care which AC will receive over the next significant number of years is largely dependant on the standard of living that will be available collectively to her and her mother and in those circumstances I am satisfied that it is appropriate to have regard to any bequest to the mother of AC, which is not abated as a result of these proceedings in order to meet the needs of both AC and LB, in assessing the provision that needs to be made for AC. I say that it is so only in part because I am mindful of the fact that, in making proper provision, the deceased had to have regard to the fact that AC needs significant sums in her own right in respect of which no other claims can be made other than that they are required to look after the needs and interests of AC. I would not like what I have said to be in any way interpreted as indicating that it is possible to make provision for an infant solely or substantially by making provision for a parent of that infant, save in the case of a married couple whose child might be a claimant under s.117 but whose claim is debarred in respect of diminishing the entitlements of the parent concerned. Assets left to a non marital co-parent are a matter to be taken into account but such bequests are not a means by which the moral obligation of the other parent can be fully or substantially given effect to.
Having made those general observations it seems to me that, given that there is a broad equivalence between the assets at the time of death and the assets available for distribution now, I can, on the facts of this case, start with accessing what proper provision ought now be made for the two plaintiffs. Provided that that assessment leads to a conclusion that the actual provision that was made in the will falls, to a significant and material degree, short of that standard then I should conclude that the deceased failed to make proper provision and I should go on to use that assessment as the basis of the order to be made.
I propose starting with the case of AC. I had the benefit of the evidence of Mr Lynch, the experienced actuary, who was asked to assess, in a capital sum in today’s money, the maintenance needs for AC from the date of the death of the deceased to the time when she will be 17 years and four months, that is when she will be the same age as LB was as of the date of the death of their father. While that evidence was principally designed to deal with what might be contended to be an appropriate differential between AC and LB, it is also of general assistance in coming to a view as to the needs which both plaintiffs might have in respect of maintenance requirements.
Firstly the figures produced by Mr Lynch suggest that the amount actually spent on the maintenance of AC in recent times approximates to €20,000 per annum. It seems to me that that sum represents a significant standard of living but not one which is incompatible with the means of the deceased in this case. It would, for example, if translated into a family, whether marital or non-marital, of two adults and two children, perhaps, suggest overall family expenditure of somewhat in excess of €100,000 a year based on a gross income of somewhat under €200,000 per annum. It is, as I have indicated, a significant but not unreasonable standard of living and, therefore, represents a reasonable basis for the assessment of the maintenance needs for both AC and LB.
The second element of Mr Lynch’s calculation was based upon the need to provide housing for AC. However, having regard to the separate provision for the mother of AC which I am satisfied should remain to a material extent, notwithstanding the need to make additional provision for both of the children, that issue seems to me to be of less relevance. I must also take into account the fact that the provision of maintenance for AC is not the exclusive obligation of the deceased as, on the facts of this case, it is unlikely that assets provided by the deceased are going to be, or would have been anticipated to be likely to be the sole source of such maintenance. I would accept that in order to make proper provision a deceased would be required to err on the side of safety, not knowing what might happen over the years, but nonetheless it does not seem to me to be appropriate to assess the maintenance needs of a child, in a position such as AC, solely on the basis of the provision of maintenance being an obligation on the part of her father, the deceased.
Finally I should note that the figures produced by Mr Lynch are really only useful as general guidance as to the broad level of assets that might be needed to make proper provision. It does not seem to me that the assessment of the total amount that requires to be provided is a matter which is capable of anything approximating to exact calculation. The sum calculated by Mr Lynch was in excess of €380,000 but in my view that sum needs to be significantly discounted for the two factors which I have analysed.
In those circumstances I am satisfied that, in order to make proper provision for AC to maintain her up to the age of 17 years and four months, a sum of the order of €200,000 to €250,000 would have been required. It is, of course, necessary to add to that a sum that would be required for her maintenance between that age and the time when she might be established in her own right and not require any further assistance. That time could be for a period of anything from five to eight further years and, in the circumstances, it seems to me that it would be appropriate to regard a further sum of at least €100,000 as being required to provide maintenance during that period. In addition, it seems to me that a person with the means of the deceased would need to insure that there was a capital sum available for the establishment of a child such as AC, whether that sum was required to provide for education, establishment in business, the provision of capital towards the purchase of a house or the like. It seems to me that, having regard to the means of the deceased, it would not be unreasonable to regard a sum of €250,000 as being required in that regard.
From all of those figures it seems to me that in order to make proper provision for AC it would have been necessary to provide a sum somewhat in excess of €500,000 in order that she be provided for in the manner which the Succession Act contemplates having regard to the means of the deceased.
I now turn to the position of LB. Obviously in LB’s case the question of her maintenance to the age of 17 years and four months does not arise because that period occurred prior to the death of the deceased. As against that, however, a number of matters need to be taken into account. Firstly, the income that is necessary to provide proper support for LB from 17 years and four months up to whatever date she might become independent is money which needs to be expended now or, indeed, in some part, has already been expended. There is, therefore, no possibility of a fund being provided for LB which would appreciate in value until the time when it was required to be expended. In this regard LB is at a disadvantage relative to AC. Money required to be paid for AC’s benefit into the future will be needed, in significant part, perhaps sometime between 12 and 20 years from now. In the intervening period the assets will be available to be invested by the trustees. The court’s experience in dealing which actuarial valuations establishes that, notwithstanding inflation, and even allowing for assets being invested in no risk investments, (which investments trustees would be required to make) such investments can, nonetheless, obtain a real rate of return sometimes of the order of two and a half to three per cent. Therefore, it is necessary to have regard to the fact that AC will benefit by having her money now and such money as may be required for her maintenance between the age of approximately 17 or 18 and her coming to her own independent life will be needed at a time when that money will have had a chance to appreciate.
Secondly, while fully accepting the submissions made on behalf of AC that the moral duty of the deceased must be looked at as of the date of death, and that, therefore, it is not possible to compensate for any failure, as such, on the part of the deceased to have provided adequate maintenance for LB in the past, I am, nonetheless, satisfied that the moral duty on the deceased as of the date of his death must include some reflection of making up for the past failure of his moral duty to make adequate provision for LB, particularly in her earlier years. Finally, for the reasons which I have already addressed, it seems to me that some regard, though it be limited, must be had for the fact that provision is being made for the mother of AC which will inure to the benefit of AC in terms of such provision assisting the general family income that will be available for the support of AC.
It is clear from that analysis that the proper provision for both of the plaintiffs would need to be of the order of at least €1 million or perhaps a little more.
It follows that the provision actually made falls short, in both cases, and by a significant margin, from the standard of proper provision mandated by s. 117. In all the circumstances I am, therefore, satisfied that it would be appropriate to direct that 80 per cent of the available assets of the estate, after all liabilities, including the costs of these proceedings, have been paid, should be made available to the two plaintiffs, divided as to 45 per cent to AC and 35 per cent to LB. The difference is one of 10 per cent which is likely to be of the order of perhaps €130,000 or a little more and it seems to me that that difference reflects the undoubted requirement, which I have already identified, to maintain AC up to the time when she is the same age as LB was at the date of death, but also reflecting the other factors that need to be set against that, which I have sought to analyse.
It seems to me that in relation to the balance of 20 per cent of the estate I must have regard to the fact that, for the reasons which I have already indicated, the deceased did owe a moral duty to AC’s mother and it seems to me that this requires that there be a smaller abatement in her case than in the other cases in order to reflect that moral obligation. In the circumstances I will direct that 15 per cent of the available assets should be made available to the mother of AC in her own right and 5 per cent of the assets will be available collectively to the mother of the deceased and the deceased’s siblings to be provided pro rata as to the pecuniary bequests made to those parties in the will.
Finally I am satisfied that there is little practical benefit in requiring that the monies to be made available to LB should be placed in a trust. Such a course of action is likely to lead to unnecessary costs in bringing the trust to an end with, having regard to her age, no corresponding benefit.
The trust in favour of AC as provided for in the will should continue but with the increased provision I have identified.
Approved: Clarke J.
In the Matter of Section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;
D v B
[2015 No. 59 M]
High Court [Approved]
2 June 2021
unreported
[2021] IEHC 407
Mr. Justice Twomey
June 02, 2021
JUDGMENT
SUMMARY
1. The adult children of their deceased father (“Mr. T”) dispute that the applicant (“Ms. D”) had an ‘ intimate and committed relationship’ with him, such as to entitle her to claim against his estate as a co-habitant. In these circumstances, can those children attend the in camera hearing at which Ms. D’s claim is being made, in order to assist the personal representative of their father contest Ms. D’s claim. That is the issue for consideration in this case and it is one which, this Court has been advised, has not been considered previously by an Irish court.
2. The adult children claim that they should be allowed to attend the hearing of Ms. D’s claim under s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. This is despite the fact that the Act specifically provides at s. 199, in clear and unambiguous terms, that a claim of that nature ‘ shall be heard otherwise than in public’.
3. While it is clear that the children will benefit financially if Ms. D’s claim is defeated, as they are beneficiaries of their father’s estate, it is claimed that it is in the interests of justice that they should be entitled to attend the hearing, in particular when Ms. D is giving evidence, so as to assist their father’s personal representative (“Mr. B”) in defending the claim against the estate. Mr. B claims that the children are the persons who are best placed to challenge Ms. D’s evidence and so should attend the hearing to hear Ms. D give her evidence.
4. While the children have raised plausible policy reasons why persons in their situation might be entitled to attend the hearing, there are also good policy reasons why such hearings are heard in camera (i.e. to protect the privacy of the parties involved), and the Oireachtas, as the elected law maker, has set down very limited exceptions to the in camera rule. In this Court’s view, it is not the role of an unelected judge to seek to expand those exceptions. Thus, while one can sympathise with the adult children regarding what they view to be unfounded claims in relation to their father, this Court does not believe that it would be an appropriate exercise of its powers to seek to, in effect, expand the category of exceptions to the in camera rule to include adult children who dispute a cohabitation claim against their parent’s estate. If any such expansion of the exceptions to the in camera rule is to be made, it is, in this Court’s view, a matter for the Oireachtas.
BACKGROUND
5. Ms. D seeks an order pursuant to s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the “2010 Act”) that provision be made for her from the estate of Mr. T, Deceased, on the basis that she was in an ‘intimate and committed relationship’ with Mr. T prior to his death, and was therefore a ‘ qualified cohabitant’ of the Deceased under s. 172(5) of the 2010 Act (that claim is referred to herein as the “s. 194 claim”).
6. Under s. 199 of the 2010 Act, Ms. D’s claim under s. 194 of the Act ‘shall be heard otherwise than in public’ .
7. The respondent in the proceedings, Mr. B, who is the executor of the estate of the Deceased, is a solicitor and he seeks an order from this Court allowing for the Deceased’s adult children to attend the hearing.
8. The s. 194 claim is due to be heard on 8th June, 2021 and on 18th May, 2021 an application was made on behalf of Mr. B for Mr. T’s four adult children to be entitled to attend the s. 194 hearing. Written submissions were lodged on behalf of both parties in advance of the application.
9. It is accepted by both parties that the children of the Deceased may be called to give evidence at the hearing, since they do not accept the truthfulness of Ms. D’s assertions that she had an intimate relationship with their father. Indeed, it appears that it is planned that at least some of the children will do so (and so they will have to attend that part of the hearing). However, the core issue is whether the children ought to be permitted to attend the full hearing of the action, including of course that portion of the hearing where evidence will be given by Ms. D, or whether, as is the normal case with in camera hearings, they ought to attend the hearing only for that portion of the hearing when/if they give their evidence.
10. This order is sought by Mr. B, on the basis that he intends to defend Ms. D’s claim on the grounds, inter alia, that she was not in an intimate and committed cohabiting relationship with the Deceased and therefore is not a ‘ qualified cohabitant’ under the 2010 Act and thus has no claim for provision to be made for her out of the estate of the Deceased.
11. Mr. B claims that he will be in a better position to defend the proceedings if the children of the Deceased attend the hearing as they are ‘ the persons best placed to challenge the applicant’s evidence with evidence of their own’ . Counsel for Mr. B made submissions to the effect that Mr. B will effectively be prejudiced in his defence of the s. 194 claim if the children of the Deceased are not able to attend the hearing for the purposes of fully disputing the applicant’s evidence as to her relationship with their deceased father.
12. Mr. B claims that he requires the children to attend the full hearing so that they can listen to the evidence of the applicant and can provide instructions so that that evidence might be disputed. While that was the position set out on behalf of Mr. B at the hearing of this application, it is to be noted that attendance of the children at the hearing, seems to have been initially sought in correspondence exchanged between the parties in April 2021, on the basis that the children are the ultimate beneficiaries of the estate (subject to certain trusts) and therefore are ‘ personally interested’ in the outcome of the applicant’s s. 194 claim.
13. It is common case between the parties that the proceedings must be heard otherwise than in public pursuant to s. 199 of the 2010 Act. Both parties also accept that the rule contained in the 2010 Act is subject to the Civil Liability and Courts Act 2004 (the “2004 Act”), which sets out at s. 40 therein certain exceptions to s. 199 of the 2010 Act. It is also conceded that none of those exceptions are applicable to the circumstances of the present case, save for s. 40(5) of the 2004 Act. This will be considered first.
A . PERSON MAY BE ‘ACCOMPANIED’ TO IN CAMERA HEARING
14. Section 40(5) of the 2004 Act sets out the following exception to the in camera rule:
“Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any direction it may give in that behalf.”
15. The case of D.X. v. Judge Buttimer[2012] IEHC 175 deals with this sub-section. It concerned an application by D.X. to be accompanied at an in camera hearing by a friend in circumstances where D.X. had a communication disability. Hogan J. acceded to his application on the basis of s. 40(5) of the 2004 Act. At para. 13, Hogan J. notes that:
“So far as the present case is concerned, it would appear that the respondent decided to exclude Ms. S. [D.X.’s friend] because [D. X.] was already legally represented. That in itself , however, is not a good reason for excluding Ms. S, since the legislative policy informing s. 40(5) clearly presumptively favours the right of a litigant to choose a friend to accompany them in court, irrespective of whether that litigant is already legally represented.”
16. In light of this case, it seems clear to this Court that s. 40(5) is aimed a person who is akin to a McKenzie friend, i.e. a person who is in court:
“for the purposes of taking notes or of making quiet suggestions or of assisting a lay litigant during the course of a hearing, but who is not qualified as a solicitor or barrister, and does not act as an advocate at the hearing.” (per Macken J. in R.D. v. District Judge McGuinness[1999] 2 I.R. 411 at p. 414)
17. However, it is not suggested in this case that Mr. B, as a solicitor himself, and as someone who has instructed a solicitor and barristers to represent him at the s. 194 hearing, is someone who needs support at the hearing for emotional, physical or other reasons. It seems clear, on any interpretation of s. 40(5), that what is sought by Mr. B in this case is not what is envisaged as falling within the exception contained in that sub-section whereby a litigant may be accompanied by another person during the course of the proceedings. In particular, it seems to this Court to be clear that, what is sought in this case, i.e. the attendance of four non-parties at the hearing for the purpose of aiding the defence, is not what was envisaged by the legislature in enacting s. 40(5) of the 2004 Act.
B. DISCRETION OF COURT TO LIFT IN CAMERA RULE
18. While counsel for Mr. B did not appear to push, particularly strongly, the point that s. 40(5) of the 2004 Act entitled the children to attend the hearing, he did however rely in particular on two decisions of the High Court for his claim that the Court has discretion to depart from the statutory provision that the proceedings are to be heard otherwise than in public in the interests of justice, and that this discretion should be exercised in this case.
19. These two cases are Eastern Health Board v. The Fitness to Practice Committee of the Medical Council[1998] 3 I.R. 399 and Health Service Executive v. McAnaspie[2012] 1 I.R. 548. Those cases were urged upon this Court as examples of cases where judicial discretion was exercised in favour of lifting the in camera rule where the court in both cases concluded that the interests of justice so required.
20. While the High Court in both those cases allowed for the displacement of the in camera rule, those cases are to be distinguished from the present case on a number of grounds.
EHB v. Fitness to Practice Committee – disclosure of documents after in camera hearing
21. First, Eastern Health Board v. The Fitness to Practice Committee was a case concerning a dispute regarding the handing over of medical records relating to matters that had previously been the subject of in camera proceedings.
22. In that case, the applicant, the Eastern Health Board, sought judicial review of a decision made by the Fitness to Practice Committee ordering the Eastern Health Board to produce medical records for the purpose of a fitness to practice inquiry into a doctor’s practice, in circumstances where those medical records related to matters the subject of the in camera proceedings (which proceedings related to alleged child sexual abuse). It was the view of the Eastern Health Board that it was prevented from handing over the medical documentation as a result of the in camera rule and so it sought judicial review of the decision of the Fitness to Practice Committee. The judicial review was refused by Barr J. who directed the Eastern Health Board to comply with the order to produce the records to the Fitness to Practice Committee. That decision was made on the grounds, inter alia, that there is no ‘ absolute embargo’ on disclosure of evidence given during in camera proceedings in all circumstances, and that the ‘ paramount consideration’ was to do justice in the case.
23. That case is very different to the circumstances of the present case. First, Eastern Health Board v. The Fitness to Practice Committee did not concern the attendance at the hearing of a non-party. Secondly, it was a case where the in camera proceedings had concluded and what Barr J. was essentially concerned with was whether the applicant was prevented by the in camera rule in those proceedings from complying with an order for the discovery of medical records for a fitness to practice inquiry in circumstances where those records related to the matters previously heard in camera .
24. Thirdly and more importantly, Eastern Health Board v. The Fitness to Practice Committee was decided in 1998, when the in camera rule was absolute, i.e. before the Oireachtas legislated for exceptions to the in camera rule in the 2004 Act, including the exception contained in s. 40(5) which we have considered in relation to a person ‘accompanying’ a party to a hearing, but also including the other exceptions in s. 40 which have no application to the present case, such as s. 40(3) relating to the entitlement of a barrister or solicitor attending for the purposes of preparing a report of proceedings.
25. Therefore, when Barr J. considered that the in camera rule was not an ‘ absolute embargo’ on disclosure of evidence, he did so in circumstances where the legislature had not at that stage provided legislative certainty that the rule was not absolute, as they did a number of years later with s. 40 of the 2004 Act.
26. Of particular note is that the legislature in providing for exceptions to the in camera rule in the 2004 Act, specifically stated in s. 40(6) that the rule that proceedings were to be heard ‘ otherwise than in public’ would not operate to prohibit the production of a document prepared for the purposes of those proceedings to a body ‘ performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation’ – the exception that would have been directly applicable in 1998 in Eastern Health Board v. The Fitness to Practice Committee, had the 2004 Act been introduced by the legislature at that stage.
27. In the absence of legislative exceptions such as this one therefore, Barr J. was obliged in the interest of constitutional justice to depart from the in camera rule and to order the production of the medical records in that case. That is quite different from the present case, to which the provisions introduced in s. 40 of the 2004 Act do apply. It is clear therefore that this is not a case similar to that decided by Barr J. where the legislature has not given consideration to the exceptions that should apply to the formerly absolute rule that proceedings be ‘ heard otherwise than in public’ .
HSE v. McAnaspie – disclosure of documents after in camera hearing
28. In the McAnaspie case, Birmingham J. (as he then was) applied the principles set out in Eastern Health Board v. The Fitness to Practice Committee. That case involved an issue in relation to provisions set out in the Child Care Act, 1991 that proceedings under that Act are to be heard otherwise than in public and in particular whether certain childcare reports could be released for publication having regard to the in camera rule.
29. In that case, which was a case stated from the District Court, Birmingham J. held that the court has some discretion to authorise the disclosure of information relating to proceedings held in camera and he answered in the affirmative the question posed by the District Court as to whether the District Court could direct the release of certain reports prepared by the guardian ad litem in the context of child care proceedings so as to enable those reports be used and published by the next of kin of the deceased child.
30. First, what distinguishes that case from the present proceedings is the fact that it was dealing not with the attendance of third parties at an in camera hearing, but rather the release of certain evidence heard in camera after the hearing had completed. Secondly and importantly, the relevant legislation in that case (being the Child Care Act, 1991), was not subject, at least at the time when the case was heard and decided, to the exceptions contained in the Civil Liability and Courts Act, 2004 and therefore was not subject to any of the exceptions contained therein. It is clear that, absent any legislative clarification, Birmingham J. in that case was asked to decide whether there were exceptional reasons in the interests of justice that gave discretion to the court to depart from the rule that proceedings be heard otherwise than in public. Birmingham J. was dealing in that case with the tragic violent death of a child while in the care of the State which he considered raised ‘ serious public interest issues’ . He decided that the interests of justice warranted a departure in that case and so he affirmed that the District Court was entitled to release the relevant reports to the applicant.
31. Mr. B also relies on two more recent decisions of the High Court where the court in both cases lifted the in camera rule in relation to child care proceedings under the Child Care Act, 1991 – The Child and Family Agency v. K.B. and R.B.[2018] IEHC 513 and The Child and Family Agency v. T.N.[2018] IEHC 568.
32. Reliance is placed on the K.B. decision of Humphreys J. primarily, it seems, because of his recognition in the context of childcare proceedings under the Child Care Act, 1991 that:
“a court [has a] discretion to impose reporting restrictions rather than requiring an in camera hearing.”
That this Court has a discretion regarding reporting restrictions and/or the attendance of non-parties at an in camera hearing is not at issue, as noted below in the context R.D. v. District Judge McGuinness[1999] 2 I.R. 411. However, apart from recognising the existence of the court’s discretion, this case does not provide support for the adult children’s application in this case to attend Ms. D’s s. 194 claim.
The Child and Family Agency v. T.N. – attendance at in camera hearing by non-party
33. Mr. B also relies on the decision of Reynolds J. in The Child and Family Agency v. T.N. which concerned the discretion of the court to permit the attendance of non-parties at the proceedings. In that case, an application was brought by the Child Care Law Reporting Project and an academic researcher to attend applications brought under Part IVA of the Child Care Act, 1991. Having decided that the court had discretion to lift the in camera rule, Reynolds J. proceeded to balance the two considerations in that case, the first being the best interests of the child, and the second being the public interest involved in understanding how a statutory body, The Child and Family Agency, discharges its functions. Having carried out that balancing exercise, Reynolds J. concluded that the best interests of the child would be met by allowing the application in that case.
34. In truth therefore, T.N. is not comparable to the exercise that this Court must engage with in the present case. There is no public interest element in the present case, as there was in T.N. where an uninterested non-party sought to attend hearings for research purposes. What is sought in the present case is an order allowing the attendance of third parties in order for Mr. B to better defend the proceedings, in circumstances where those third parties have a direct financial (as well of course as personal and emotional) interest in the outcome of the proceedings and may in any case be called to give evidence for the purpose of disputing Ms. D’s s. 194 claim. T.N. therefore does not support the children’s application to be allowed attend the hearing in this case.
Construing the 2010 Act in accordance with constitutional principles
35. Mr. B also relies on the decision of Walsh J. in East Donegal Co-Operative Livestock Mart Ltd v. Attorney General[1970] I.R. 317 in support of the present application on the basis that at p. 341 therein Walsh J. discusses the presumption of constitutionality of legislation and says that it must be presumed that the Oireachtas:
“intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice”
and that where those proceedings and procedures depart from the principles of constitutional justice, this will be ‘ restrained and corrected by the Courts’ .
The submission made by Mr. B is that the principles of constitutional justice require this Court to consider his predicament and in particular his claim that he will not be able to properly defend Ms. D’s s. 194 claim if the children of the Deceased are not permitted to attend the hearing in full.
36. Essentially therefore Mr. B’s application for an order allowing attendance by the Deceased’s children at the hearing is premised on the claim that it is in the interests of justice and that without it, Mr. B will be hindered in his ability to properly defend the claim made against the estate.
37. However, in considering the interests of justice and the issue of any prejudice Mr. B might suffer if his application to have the Deceased’s children attend the hearing is not granted, this Court has regard to the decision of Macken J. in R.D. v. District Judge McGuinness[1999] 2 I.R. 411, which case was relied upon by Ms. D as a case where the attendance of a non-party during in camera proceedings was not permitted by the court.
R.D. v. District Judge McGuinness – attendance at in camera hearing by non-party
38. R.D. was also a case decided prior to the enactment of the 2004 Act. In it Macken J. considered an application for the judicial review of a decision by a district judge, in the context of proceedings under the Domestic Violence Act, 1996, not to allow the applicant be accompanied in court by a McKenzie friend. In refusing to grant the application for judicial review, Macken J. considered that ‘ no evidence’ had been presented to her to suggest that the applicant would be ‘ so overwhelmed’ by the refusal to allow a McKenzie friend attend court with him, or thereby deprived of the right to a fair hearing, such as to justify setting aside the in camera rule. At page 422, she states:
“I would be reluctant to find that the long standing view of the legislature that all matters of a matrimonial nature, including barring orders or any other relief sought under the Domestic Violence Act, 1996, are to be heard otherwise than in public, ought to be set aside or modified in favour of the attendance in court of a member of the public, as a “McKenzie friend”, unless there were overwhelming evidence that a fair hearing could not be secured by the applicant, the applicant having a constitutional right to such a hearing.”
39. This decision is relied upon by both sides to this dispute as one which establishes that there is a discretion on the part of the court to depart from the in camera rule in certain circumstances. As noted in the context of the T.N. decision, the existence of such a discretion is not in doubt. However, what is clear from R.D. is that in the context of an application for a non-party to attend for the benefit of one of the parties to litigation, as distinct from the public interest (which was at issue in T.N.), the lifting of the in camera rule only applies if there is overwhelming evidence that a fair hearing could not otherwise be secured.
40. In this regard, it is also to be noted that the R.D. decision was made prior to the enactment of the 2004 Act, and therefore prior to the legislative exception, allowing for a litigant to be ‘ accompanied’ contained in s. 40(5) of that Act. Arguably, therefore, it was made at a time when there was a justification for the bar for exceptions to be lower (since the in camera rule was absolute at that time). Now that exceptions have been recognised by the legislature, it seems to this Court to be difficult to argue that the bar should be lowered now for judicial exceptions to be made to the in camera rule.
41. In R.D., Macken J. was considering an application by an unrepresented litigant to have a non-party attend in camera proceedings. Her decision was informed by the fact that the applicant was a ‘ very articulate person’ for whom the refusal to have a McKenzie friend would not be ‘ so overwhelming’ so as to deny him a fair trial and so she refused the application.
42. In this case, the prejudice alleged by Mr. B is claimed to arise in circumstances where Mr. B is not only a solicitor himself, but he also has the benefit of legal representation. This Court has already noted that Mr. B has the ability to call any or all of the Deceased’s children to give evidence in support of his defence to Ms. D’s claims, once Mr. B and his legal team have heard the evidence of Ms. D.
43. It seems clear therefore that there is no question of Mr. B being overwhelmed by the refusal of this Court to allow the Deceased’s children attend the hearing so as to deny him a fair hearing.
44. Furthermore, it does not appear to this Court that Mr. B will be prohibited from properly defending Ms. D’ s. 194 claim merely by virtue of not having the Deceased’s children attend the hearing. The evidence of the children of the Deceased, if called as witnesses, will be taken into account by the court in deciding the s. 194 claim. Insofar as their evidence disputes or contradicts the evidence of Ms. D, it is for the trial judge hearing the s. 194 claim to consider and to decide upon.
45. Mr. B has also submitted that he is at a disadvantage meeting Ms. D’s claim, since the person best placed to meet her evidence, Mr. T, is dead. However, no doubt the trial judge will be acutely conscious of this fact. Similarly no doubt the trial judge will be conscious of the extent to which the evidence that Ms. D relies upon to support the existence of an ‘ intimate and committed relationship’ depends on her evidence alone, and the extent to which it is corroborated and the extent, if any, to which it is contradicted. No evidence has been presented as to why, exactly, the children of the Deceased are best placed to dispute the nature of the relationship claimed by the applicant. Indeed, while an affidavit was sworn by one of the children in support of Mr. B’s application, that affidavit sets out nothing more than the fact the Deceased’s children dispute that the applicant had a relationship with their father. The nature of the evidence proposed to be given is especially unclear in circumstances where the Mr. B accepts, in his written submissions, that he was:
“personally acquainted with the deceased, and is in a position to provide first-hand evidence of his own that goes to the central issue arising in the action (namely whether the relationship asserted by the applicant did or did not exist).”
46. On this basis, this Court does not believe that his claim falls within the discretion to allow attendance at an in camera hearing, as set out in R.D.
47. More generally, it seems to this Court that the claim by Mr. B that some disadvantage may be conferred upon him if the Deceased’s children are not permitted to attend the full hearing is not sufficient reason for this Court to depart from the clear rule contained in s. 199 of the 2010 Act. The primary consideration in the present case must be the privacy of the parties involved (including the privacy of Ms. D), since it seems clear that this is the rationale for the in camera rule applying to cohabitation proceedings.
48. Mr. B’s application must therefore be viewed in that light and the mere fact that he might be in a ‘ better position’ if the children of the Deceased attend the hearing, when weighed against the privacy rights of Ms. D, does not justify the lifting of the statutory in camera provision in this case. Similarly, while the nature of the present claim made by Ms. D may be contentious, and while the Deceased’s children may feel somewhat aggrieved by the claims made in relation to their father, that is also not sufficient reason for this Court to grant the order sought by Mr. B.
49. What Mr. B is asking this Court to do, notwithstanding the clear exceptions set out in s. 40 of the 2004 Act, is to make an order allowing for a different exception, not envisaged by either the 2004 Act or the 2010 Act, whereby if a litigant can better defend an in camera case by having third parties present, then this Court should permit their attendance in the interests of justice. This Court believes that this would involve it making laws in contravention of the separation of powers.
Consequences of lifting of in camera rule to put litigant in a better position
50. The primary role of this court in this case is to consider the consequences in this case for the order sought by Mr. B. Accordingly, longer term consequences are not determinative of this Court’s decision. Nonetheless, it is worth noting that the issue raised in this case could conceivably arise in any in camera case. This is because what is claimed by Mr. B is that the children of the Deceased are in the best position to dispute the claim made by Ms. D that she had an intimate and committed cohabiting relationship with their father such as to justify provision being made of the estate under s. 194 of the 2010 Act.
51. If the legal position was as suggested by Mr. B, a litigant in proceedings that are to be heard in camera could make an application, to allow the attendance of a person (or indeed, as in this case, multiple people) at the hearing based merely on the claim that this person will be in the ‘best position’ to allow that litigant to ‘properly defend’ a claim (or indeed advance a claim). This could well involve the courts having to consider in advance in proceedings, usually highly sensitive proceedings, e.g. childcare proceedings, judicial separation proceedings etc., whether the circumstances and/or evidence of the non-party (who may or may not be a witness) justify his/her attendance at the entirety of the in camera hearing.
52. If the legislature felt that it was appropriate that such applications would be made (and in some cases granted), thereby impacting upon the privacy of the parties to contentious and highly sensitive proceedings such as childcare proceedings, judicial separation proceedings, cohabitation claims etc., then it seems to this Court that it would have set out that exception in legislation.
Policy reasons for child of deceased attending a claim by deceased’s alleged cohabitant
53. Finally, it is to be noted that Mr. B’s counsel made persuasive arguments, from a policy perspective at least, why the legislature might have provided an exception for adult children in the current circumstances (although there are clearly contradicting policy reasons as to why the privacy of the litigants would nonetheless take precedence).
54. Indeed, he may well have raised a particular category of case where such an exception might be justified (i.e. where an adult child is allowed to attend a s. 194 claim against his/her deceased parent by an alleged cohabitant, which has direct financial consequences for that child). However, whether the policy reasons in favour of such an exception trump the policy reasons for protecting the personal life of the alleged cohabitee is more properly a matter for the legislature. In this Court’s view, it is not for unelected judges to be making such a significant policy change to the legislation, by permitting the exception sought. If this Court were to accede to this application, it would, in effect, be saying that in every in camera case it would be possible for third parties to be present if one of the parties could reasonably claim that it would be able to better defend the proceedings if that party were present. This would, in this Court’s view, involve the courts in law-making in contravention of the separation of powers.
55. In this regard, the D.X. case, which has previously been referred to, provides examples of where judges did not breach the separation of powers, notwithstanding the unintended and apparently unjust consequences which arose from what was then the undiluted in camera rule. It was undiluted as the cases in question were heard prior to the enactment of exceptions to the in camera rule contained in the 2004 Act. The undiluted in camera rule led, as noted by Hogan J., to unintended and unjust side effects, in the same way as it is argued by Mr. B that it is unjust that the children should not be in court to hear the evidence first hand of Ms. D’s alleged cohabitation relationship with their deceased father.
56. However, what is of particular relevance is that the alleged injustice in the other cases (instanced by Hogan J.) was not sufficient for the courts to override the in camera rule and create new exceptions. Rather, as noted by Hogan J., what happened is that these unintended effects, rather than leading to ‘law making’ by unelected judges (or ‘hard cases’ making ‘bad law’), instead led to subsequent amending legislation by the elected law makers. At para. 7 et seq. of D.X., Hogan J. notes:
“Experience had shown, however, that the mandatory nature of s. 34[of the Judicial Separation and Family Law Reform Act 1989 which provided for in camera hearings] as originally enacted was capable of having unintended effects which were not altogether satisfactory. Thus, in Tesco (Ire.) Ltd. v. McGrath, High Court, 14th June 1999, Morris P. held that the effect of the prohibition was to preclude the release of court orders concerning the sale of property , even in those cases where these orders might well be critical so far as the title of third parties was concerned . Likewise, in RM v. DM[2000] IEHC 140, [2000] 3 I.R. 373Murphy J. held that the section precluded the disclosure of pleadings captured by the in camera rule to professional disciplinary body which was examining a complaint against a legal representative.
Conscious of the fact that the wording of this statutory prohibition had consequences which were not merely unintended, but went further than was reasonably necessary to achieve the original statutory objectives , the Oireachtas concluded that the (apparently) unqualified nature of the prohibition should be diluted. Thus, for example, s. 40(4) of the Civil Liability and Courts Act 2004 (“the Act of 2004”) now provides that the statutory prohibition should not permit the disclosure of the extracts from courts orders in family law proceedings to relevant third parties.
Section 40(5) of the Act of 2004 is in the same vein in that it provides:-
“(5) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any directions it may give in that behalf.”“
(Emphasis added)
57. In this case therefore, just as in the Tesco case and the R.M. case, if there is perceived to be an injustice to children of an alleged cohabitant (who is deceased) not attending the s. 194 claim (and certainly this is an arguable point, at least), this is a matter for the legislature and not a matter for this Court, particularly not only is there a clear rule set down by the legislature on the hearing being heard in camera (which is supported by good policy reasons in favour of protecting the parties’ privacy), but also specific exceptions have been created to that rule, into which the present circumstances do not fit.
CONCLUSION
58. This Court does have some sympathy for any adult children of a deceased parent, who they believe is being wrongfully subjected to a claim of co-habitation by another person along with a claim for financial provision out of the parent’s estate (at their expense), but where those children are nonetheless prevented from attending the hearing of that claim to help defend, what they regard as, their parent’s honour as well as his finances. However, for the foregoing reasons, this Court does not believe that the law, as it currently stands and as interpreted by the courts, allows for an exception to be made for the children to attend the hearing in this case.
59. Accordingly, this Court refuses to grant an order allowing for the children of Mr. T, to attend the hearing of the s. 194 claim made by Ms. D.
C.D. v B.B.
2015/59M
High Court [Approved]
22 October 2021
unreported
[2021] IEHC 684
Ms. Justice Stack
October 22, 2021
JUDGMENT
Introduction
1. This is a preliminary issue raised by the respondent by letter dated 4 June 2021, just before the substantive hearing commenced on 8 June, 2021. Legal submissions were subsequently heard on this issue and I indicated I would rule on the matter at a later date.
2. The applicant in these proceedings seeks relief pursuant to s. 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. Section 194 provides:
“(1) A qualified cohabitant may, after the death of his or her cohabitant but not more than 6 months after representation is first granted under the Succession Act 1965 in respect of that cohabitant’s estate, apply for an order under this section for provision out of the net estate.”
3. In this case, the applicant claims to have been living together as a couple with the deceased in an intimate and committed relationship for over 30 years ending on the death of the deceased in the summer of 2011. The 2010 Act was commenced on 1 January, 2011 (art. 3(1), S.I. 648 of 2010).
4. It is common case that the applicant and the deceased did not have children together. A “qualified cohabitant” is defined by s. 172(5) of the 2010 Act, in the case of a couple without dependent children, as meaning:
“an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period – … (b) of 5 years or more….”
5. Ryan, Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 , (Dublin, Round Hall, 2011) points out (at p. 275) that a person is entitled to be treated as a qualified cohabitant only at the end of the relationship, as indicated by the use of the past tense in this definition.
6. The respondent contends that s. 194 only applies where the requisite period of cohabitation took place after the commencement of the Act. If this contention is correct, then clearly the entire application would fail in limine as the applicant could not show five years’ cohabitation between the commencement of the Act and the death of the deceased.
7. There are two previous judgments of this court in which, as in these proceedings, the fact of the existence of the necessary intimate and committed relationship was put in issue. In both cases, D.C. v. D.R.[2015] IEHC 309 and G.R. v. Regan[2020] IEHC 89, part of the requisite period of cohabitation took place prior to the commencement of the 2010 Act. However, this issue was not raised, and consequently neither judgment constitutes a precedent which is applicable to this ruling.
8. There are two components to the respondent’s argument. First, it is said that the transitional provision, s. 206, which explicitly provides that the qualifying period of cohabitation can take place prior to the commencement of the Act, on its face expressly applies only to applications under provisions of Part 15 other than under section 194. Applying the maxim expressio unius est exclusio alterius, this means that pre-commencement periods of cohabitation are not reckonable for the purposes of s. 194, and that s. 194 therefore does not apply to the applicant, such that these proceedings should be dismissed. Secondly, it is said that the presumption against retrospective legislation applies, such that clear statutory words are required to render pre-commencement periods of cohabitation reckonable for the purpose of an application pursuant to section 194.
9. The two arguments are, in reality, interrelated. If the common law presumption against retrospective legislation applies, then the ordinary canons of construction are modified somewhat so as to require clear provision for a right to apply for relief under s. 194 where all or part of the necessary period of cohabitation took place prior to the commencement of the Act. I will therefore consider first whether an interpretation of s. 194 which takes into account a pre-commencement period of cohabitation would bring that provision within the category of retrospective legislation. If so, it will be necessary to consider whether the presumption has been rebutted with the necessary clarity. If not, then the presumption will have no relevance to the interpretation of the relevant statutory provisions.
Whether the presumption against retrospective legislation applies
10. There is a presumption at common law that the legislature does not intend retrospective effect, but this can be displaced by clear statutory wording or by necessary implication. There is no constitutional presumption to this effect, although Article 15.5 prohibits the Oireachtas from declaring acts to be infringements of the law that were not so at the time of their commission, and legislation which retrospectively interferes with or impairs constitutionally protected rights, such as property rights, could thereby also become unconstitutional.
11. The respondent does not challenge the constitutionality of any provision of the 2010 Act although he suggests in written submissions filed for the purposes of this issue that a constitutional interpretation of the Act may require exclusion of pre-commencement periods of cohabitation from reckoning. However, I did not understand the respondent to pursue this suggestion that a constitutional interpretation of the relevant provisions required the exclusion of pre-commencement periods of cohabitation, and the argument proceeded by reference to the common law presumption only.
12. The two main authorities cited to me in support of the submission that the presumption against retrospective legislation applies were O’H v. O’H[1990] 2 I.R. 558 and Hamilton v. Hamilton[1982] I.R. 466.
13. Hamilton v. Hamilton was a case where the Family Home Protection Act, 1976, was enacted after the conclusion of a binding contract for the sale of land. To apply the provisions of the 1976 Act to a pre-existing enforceable contract of that kind would be to disturb the vested right of the purchaser to compel completion of the sale. As a matter of law, the contract had already, prior to the commencement of the 1976 Act, passed at least part of the beneficial interest in lands to the purchaser. On the facts of that particular case, the purchaser had in fact issued specific performance proceedings prior to the commencement of the 1976 Act, and these ultimately resulted in an order for specific performance, but it is clear from the judgments of the majority that, even without that particular circumstance, they would have required the 1976 Act to have clearly provided for the application of s. 3 of the 1976 Act to contracts executed before it was commenced.
14. It was not necessary, however, that such provision be made expressly, and it would have been sufficient for the purposes of rebutting the common law presumption if such a meaning emerged by necessary implication: see the judgment of Henchy J. at p. 484-5. This point is reiterated by the Supreme Court (per Fennelly J.) in Minister for Social, Community and Family Affairs v. Scanlon[2001] 1 I.R. 64, at p. 87-8.
15. In Hamilton v. Hamilton, O’Higgins C.J. adopted (at pp. 473-474) a definition taken from Craies on Statute Law (7th ed., p. 387) to the effect that a statute is to be deemed to be retrospective in effect when it “takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.”
16. At the hearing of the preliminary issue, counsel for the respondent was unable to point to any vested or established right enjoyed by the respondent, or indeed any beneficiary of the estate of the deceased, which might have been impaired or taken away by the application of the applicant to provision out of the estate.
17. Counsel pointed to the right of the deceased to dispose of his assets as he saw fit. However, the freedom of a testator has, at least since the commencement of the Succession Act, 1965, been subject to important restrictions, such as the legal right share of a surviving spouse, and the right of a child of a deceased to apply pursuant to s. 117 for provision out of the estate. It therefore does not seem that there is any vested right in any person to have complete freedom to dispose of their assets on death as they see fit. That freedom, if it can be regarded as a vested right of some kind, appears to be understood as a freedom which is subject to statutory regulation. It is notable that s. 194 is in similar terms to s. 117 of the 1965 Act and presumably was enacted to reflect the social reality that many couples now choose to remain unmarried, despite their commitment to each other. The freedom of the testator is a concept that has been subject to significant erosion since the commencement of the 1965 Act, in the interests of other persons to whom it is felt the testator owes a duty.
18. Separately, I would add that it is very unclear to me how the rights of a deceased person can be invoked. The purpose of the application under s. 194 is to determine, now that the deceased is no longer with us, how the assets formerly owned by him are to be distributed, having regard to his possible obligations to have provided for the applicant (if she succeeds in showing that she is in fact a “ qualified cohabitant”) in his will.
19. Insofar as reliance is placed on the rights of the ultimate beneficiaries of the deceased, only on death does the will of a deceased take effect. Up to that point, there is no vested right in any possible beneficiary and the mere drafting of a will does not even give rise to a contingent right, as wills can be revoked at any time prior to death.
20. On the facts of this case, therefore, the Act did not operate to impair or affect any existing or vested right and did not operate with retrospective effect. It was in force before the death of the deceased and therefore before his will took effect, before the property of the deceased vested in the respondent as personal representative, and before anyone could take a benefit from the deceased’s estate.
21. In the circumstances, it seems to me that, merely to regard s. 194 as permitting the taking into account of pre-commencement periods of cohabitation does not mean it has retrospective effect.
22. In addition, the judgment of Barron J. in O’H v. O’H appears to be particularly helpful in considering this preliminary issue. That case concerned the application of s. 29 of the Judicial Separation and Family Law Reform Act, 1989. Section 29 (2) provided that certain dispositions could be set aside if they had been made for the purpose of avoiding financial relief under the Act.
23. In that case, the relevant disposition had been made prior to the commencement of the Act and Barron J. dealt with the correct interpretation of s. 29 as a preliminary issue. Barron J held that s. 29 had no application to pre-commencement dispositions as it did not expressly so provide and the presumption against retrospective legislation applied.
24. However, he drew an important distinction between “applying the new law to past events and taking past events into account”. To do the latter, he said, is not to apply the Act retrospectively (see p. 563). He contrasted the proposed operation of s. 29 of the 1989 Act with s. 2 of the same Act, which provided for the grant of the decree of judicial separation in certain circumstances, including where there had been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application and where the spouses had lived apart from one another for a continuous period of at least three years immediately preceding the date of the application.
25. Barron J. stated that the two sections indicated the distinction which was to be drawn between applying a new law to past events and taking past events into account. He continued (at p. 565):
“To take into account periods during which the parties lived apart and which pre-dated the date upon which the Act came into force would not be giving the Act retrospective effect. In my view such evidence is one of the requisites for applying the Act. If such facts are not taken into account, then for some time after the operative date a considerable portion of the jurisdiction created by the Act would be unenforceable.”
26. In my view, s. 194 is analogous to s. 2 of the 1989 Act and insofar as pre-commencement periods of cohabitation are reckonable for the purpose of s. 194, that section is a new law which takes past events into account, rather than a retrospective provision. As such, no presumption needs to be rebutted and the Act falls to be interpreted according to the more general principles of statutory interpretation.
27. It should be noted, of course, that there is no suggestion in this case that any relationship between the applicant and the deceased ended other than on the death of the deceased which occurred some months after the commencement of section 194. On the facts of this case, therefore, a new law was enacted with effect from 1 January, 2011, which is applicable to the distribution of the deceased’s estate, the death having occurred after the commencement of the Act. In my view, s. 194 does not have retrospective effect in this case and the presumption against retrospective legislation does not apply.
28. There was reference in oral argument to the possibility that, because s. 206 does not apply to applications under s. 194, such an application could be made for provision out of the estate of a deceased who died prior to commencement of the Act, and it was suggested that this would be retrospective legislation. One could certainly see a greater potential for unjust retrospective effect in such a case, and in the event (which must be increasingly unlikely, if not already theoretical at this stage) that an application is made within six months of the first taking out of representation to the estate of a person who died prior to 1 January 2011, it is entirely possible that the personal representative or other appropriate respondent will argue that the Act should be interpreted to exclude the application of s. 194 to pre-commencement deaths.
29. However, the question of whether the Act should be interpreted so that s. 194 only applied to the estates of those who died after commencement but not to those who died pre-commencement does not arise here as I am not being asked to determine whether s. 194 applies in the case of deaths which occurred prior to 1 January 2011. It is common case that the deceased died some months after commencement and therefore the only question which arises is whether the legislation may be considered to be retrospective in nature by reason of the fact that the period of cohabitation pre-commencement may be taken into account. I am satisfied that the taking into account of past events, such as a period of cohabitation occurring prior to commencement, for the purposes of determining whether a person is a qualified cohabitant does not mean that either s. 172 (5) or s. 194 is retrospective in nature.
30. I now turn to consider the interpretation of s. 194 and related provisions of Part 15 of the Act.
Interpretation of relevant provisions
31. In support of an interpretation of Part 15 of the 2010 Act which would exclude pre-commencement periods of cohabitation from reckoning in considering whether an application for relief under s. 194 is a “ qualified cohabitant”, the respondent relies heavily on s. 206, which provides:
“An order for redress referred to in section 173 shall only be made if the application for it is made with respect to a relationship that ends, whether by death or otherwise, after the commencement of this section but the time during which two persons lived as a couple before the commencement date is included for the purposes of calculating whether they are qualified cohabitants within the meaning of this Part.”
32. The orders for redress referred to in s. 173 are: property adjustment orders pursuant to s. 174, compensatory maintenance orders pursuant to s. 175, and pension adjustment orders pursuant to section 187. The respondent argues that, by referring explicitly to the orders for redress referred to in s. 173, s. 206 implicitly excludes an order pursuant to s. 194. The respondent relies on expressio unius est exclusio alterius and contends that any period of cohabitation prior to the commencement date is excluded for the purposes of calculating whether the applicant is a “ qualified cohabitant” within the meaning of Part 15 so as to entitle her to apply for an order pursuant to section 194.
33. The respondent concedes that it is possible that the portion of s. 206 beginning “ but the time during which… this Part” may be read separately from the remainder of the section so that “qualified cohabitant ” is properly interpreted for the entire of Part 15 on the basis that a period of cohabitation prior to the commencement date is reckonable. However, he says that the use of the present tense (“ they are qualified cohabitants ”) excludes this interpretation.
34. By contrast, the applicant says s. 206 is not relevant to the proper interpretation of s. 194, and that the natural and ordinary meaning of s. 172 (5) is sufficiently clear to include pre-commencement periods of cohabitation, such that it is not necessary to have recourse to section 206.
35. In construing any particular provision of Part 15, I am required to look first at the literal meaning of that provision, but if it is obscure or ambiguous, or if a literal meaning would give rise to an absurdity or would fail to reflect the plain intention of the Oireachtas, I can proceed to give effect to that intention, where it can be ascertained from the Act as a whole: s. 5 of the Interpretation Act, 2005.
36. In my view, the respondent has misconstrued the meaning and effect of the use of the present tense in section 206. As pointed out above, the definition of “ qualified cohabitant” itself uses the past tense. A person is a qualified cohabitant in the present time, with the right to see various types of redress under Part 15 of the Act, if, in the past, he or she cohabited for the requisite period of time with another person with whom he or she was in a committed relationship. A “ qualified cohabitant ” enjoys a present right to make various applications under the Act based on past relationship history. The use of the present tense in s. 206 therefore, refers to that present right to apply for redress and not to a continuing relationship status, and does not support the respondent’s argument.
37. In my view, the reason why s. 206 does not refer to s. 194 is because Part 15 is treating the right to apply for redress against a former cohabitant during the lifetime of that cohabitant differently from the right to seek redress pursuant to s. 194. Section 195 draws a distinction between applications under s. 173 (6) and s. 194 and all other applications under Part 15, by providing that proceedings under all of the other provisions of Part 15 shall, save in exceptional circumstances, be instituted within two years of the time that the relationship between the cohabitants ends, whether through death or otherwise. Section 173 (6) relates to applications to suspend, vary or discharge orders already made under s. 175 or 187, and therefore the time limit for those applications could not be applied to applications under s. 173(6). More pertinently for this discussion, s. 195 clearly excludes applications under s. 194 from the general time limit provided for therein.
38. However, s. 194 contains its own time limits. First, no application may be made more than six months from the first grant of representation in respect of the deceased cohabitant’s estate: s. 194 (1). That time limit was observed in this case as the first grant of representation was extracted on 29 April 2015 and the proceedings were instituted by special summons issued on 23 October 2015.
39. In addition, s. 194 (2) provides that no application may be made pursuant to s. 194 (2) where the relationship concerned ended two years or more before the death of the deceased, subject to certain exceptions including where the “ qualified cohabitant” applied for orders for redress within the meaning of s. 173 within two years of the relationship ending. The applicant is not precluded by s. 194 (2) from maintaining these proceedings because she asserts a relationship which ended on death.
40. It seems to me that the primary purpose of the Oireachtas in enacting s. 206 was to specify that applications for redress within the meaning of s. 173 could only be made where the relationship ended (whether by death or otherwise) after commencement, rather than to specify that pre-commencement periods of cohabitation was reckonable for the purpose of establishing that an applicant for such redress was a “ qualified cohabitant” within the meaning of section 172(5). On its plain meaning, that is its principal purpose, and the reference to pre-commencement periods of cohabitation is in the nature of a saver or a clarification to ensure that, while the relationship must have ended after commencement, cohabitation prior to 1 January, 2011 is reckonable in considering whether the applicant is a qualified cohabitant.
41. The absence of any reference in s. 206 to s. 194, therefore, does not mean that the saver or clarification about pre-commencement cohabitation does not apply to applications under s. 194 (as the respondent contends) but that the saver or clarification does not need to be provided for explicitly because s. 206 does not deal with the issue of whether an applicant can seek relief under s. 194 where the death occurred prior to the commencement. As I understood the applicant’s argument, relying on the passage from Maxwell on Statutes (7th ed., p. 268) cited in Inspector of Taxes v. Arida Ltd.[1992] 2 I.R. 155, at p. 159, she contended that this clarification was no more than a superfluous restatement of the correct interpretation of the definition of “ qualified cohabitant”. Based on authorities such as O’H v. O’H., s. 172 (5) should be interpreted to include pre-commencement periods of cohabitation and the saver or clarification in s. 206 was an arguably unnecessary restatement of that position.
42. As already stated, whether this has the necessary implication that an application pursuant to s. 194 is possible where the death occurred prior to 1 January 2011 is not something I have to decide and, if a suitable case arises in the future, it may be that the presumption against retrospective legislation would require Part 15 to be interpreted to mean, notwithstanding the exclusion of s. 194 from s. 206, that an application pursuant to s. 194 would not be possible where the relevant death occurred prior to 1 January 2011.
43. As already set out, I do not have to determine that issue as it does not arise in this case. However, I would simply note that the seeming lack of any temporal application on the operation of s. 194 is negated by the requirement to apply within six months of the first grant of representation. Although it is possible (as indeed occurred in this case) that there could be a delay of several years between death and the first grant of representation, such that an application pursuant to s. 194 might still be made even though the relevant death occurred prior to 1 January 2011, proper consideration of that issue should await any case in which it might arise, albeit that such a case presumably becomes more and more unlikely as time passes.
44. It seems that, where the relationship between the cohabitants ends on death, s. 194 applications principally become time barred by reason of the six month time limit in section 194 (1) which, in the ordinary course of events, should ensure that the potential retrospective reach of s. 194 is limited by the fact that first representations are ordinarily taken out within a few years of the date of death and therefore the six month time limit in s. 194 (1) means that, regardless of whether the Oireachtas intended that s. 194 would apply even in the case of pre-commencement deaths, it will not, in practice, apply to the vast majority of the estates of deceased persons who died prior to 1 January, 2011.
45. But all of those comments on whether a s. 194 application could be made in respect of the estate of a deceased who died prior to 1 January 2011 are entirely obiter and the key point for this ruling is that I do not agree that s. 206 implicitly excludes pre-commencement periods of cohabitation from reckoning in considering whether an applicant is a “ qualified cohabitant” for the purposes of section 194.
46. For her part, the applicant relies on the natural and ordinary meaning of s. 172 (5), but I do not think this assists me too much other than that it allows me to say that the construction contended for by the applicant is open on the words of the provision.
47. However, what is notable about s. 172 (5) is that it gives a single interpretation of “qualified cohabitant” for the purposes of Part 15. It does not provide for alternative interpretations depending on whether the redress referred to in s. 173 is sought, or whether relief pursuant to s. 194 is sought. This suggests to me that what I have regarded as a clarification or saver in s. 206 as regards applications for redress referred to in s. 173 is exactly that: a clarification that the general position pertaining throughout Part 15 applies as regards reckoning the period of cohabitation, even though the section expressly limits the availability of the redress referred to in s. 173 to situations where the relevant relationship ends after commencement of the Act.
48. In considering whether the interpretation contended for by either party on this issue would create an absurdity which should be avoided, I also think it is material that s. 194 (2) makes specific provision for what is to occur where a relationship ends prior to death, and, in particular, creates exceptions to the general prohibition on making a claim pursuant to s. 194 where the relationship had ended more than two years before death. Those exceptions include situations where the applicant was in receipt of periodical payments from the deceased under s. 175 or had (subject to certain qualifications which it is not necessary to set out here) made an application for an order under ss. 174, 175 or 187.
49. As it is clear from s. 206 that an application for orders under ss. 174, 175 and 187 can take into account pre-commencement periods of cohabitation, s. 194 (2) cannot operate in any sensible way if the respondent is correct in saying that such periods of cohabitation cannot be taken into account for the purposes of s. 194. Section 194 (2) recognises that, where a committed relationship breaks down, it may be necessary for one party to seek redress pursuant to section 174, 175 or 187 during the lifetime of the other party, followed by, on the death of that other party, an application pursuant to section 194.
50. The Oireachtas must therefore have intended that some cohabitants who had previously applied for orders under s. 174, 175 or 187, should then be entitled to apply pursuant to s. 194 on the death of their former cohabitant. We know from s. 206 that pre-commencement periods of cohabitation may be relied upon in applications for orders under s. 174, 175 or 187, and therefore at least some of the “ qualified cohabitants” who had applied for those orders during the lifetime of the deceased will qualify on the basis of pre-commencement periods of cohabitation. Nevertheless, s. 194 (2) anticipates such applicants then going on to apply for provision out of the estate of the deceased. This necessarily implies that pre-commencement periods of cohabitation may be reckonable for the purposes of an application under s. 194.
51. I therefore agree with the applicant that she may rely on pre-commencement periods of cohabitation for the purpose of bringing herself within the definition of “qualified cohabitant ” in s. 172 (5) and is therefore entitled to make an application under section 194. I further agree with the applicant’s submission that the respondent’s suggested interpretation of the Act would have resulted in s. 194 of the Act not operating at all for a period of at least two and, in the case of couples without children, five years after commencement, which could not have been intended, and I note that a similar contention as regards s. 2 of the 1989 Act was rejected in O’H v. O’H.
Conclusion
52. In my view, therefore, a person may be a “qualified cohabitant” within the meaning of s. 172 (5) and for the purposes of s. 194 of the 2010 Act where some or all of the period of cohabitation relied upon took place prior to the commencement of the 2010 Act.
MW v DC
[2017] IECA 255
JUDGMENT delivered by Ms. Justice Finlay Geoghegan on the 2nd day of October 2017
1. This is a consultative case stated of Abbott J. in the High Court pursuant to s. 38 of the Courts of Justice Act 1936 (as amended), in the hearing of an appeal by D.C. from a decision of the Circuit Court in respect of a claim brought by M.W. pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the 2010 Act”).
2. The Circuit Court had determined that M.W. was a qualified co-habitant within the meaning of s. 172(5) of the 2010 Act and made orders in her favour. D.C. appealed from that decision to the High Court.
3. As appears from the case stated, the primary issue in the High Court is whether or not M.W. was a qualified co-habitant for the purposes of the 2010 Act in relation to the claim made. The High Court judge heard oral evidence and submissions from the parties. He has indicated in the case stated that he has reached certain conclusions; also that he would take D.C.’s evidence “at its height”, but expressed an indicative view that M.W. was a qualified co-habitant within the meaning of the 2010 Act. Abbott J. nevertheless agreed to state a case to this Court with the following questions:
(i) Is the period specified in s. 172(5) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to be strictly interpreted in that a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that the relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period of two years or more in the case where they are parents of one or more dependent children.
(ii) If the answer to question (i) is yes, can a court overlook periods of separation in a relationship which has ceased and recommenced between the parties.
(iii) If the answer to question (ii) is yes, does it matter whether the relationship ceased between the parties prior to the Act of 2010 and recommenced prior to the Act of 2010.
Background facts
4. The background facts which are not in dispute and set out in the case stated and which explain the questions of law referred by the High Court judge to this Court for determination are in summary as follows.
5. The parties are not and were never married to each other. They are the parents of two children who were dependent at the time of the High Court hearing.
6. The relationship of the parties dated from 1996 with what the trial judge refers to as “a few spats from time to time”. The trial judge refers to a long relationship with a “history of conflict of expectation and ambition from the parties”. He further referred to a greater expectation and ambition of M.W. in relation to marriage preceded by engagement and a lesser commitment of D.C. to avoid engagement and marriage and joint ownership of a property ownership.
7. The disputed facts which have not been finally determined by the trial judge relate to the period between February, 2010 and February, 2011. It does not appear to be in dispute that the parties were living together with the two children in a residence up to February, 2010. The contention of D.C. is that the relationship ended in February, 2010 when M.W. left the shared property and resided firstly in a women’s refuge and then subsequently at a rented premises until June, 2010. M.W. contends that the period during which she left the shared residence and lived separate from D.C. was four weeks from May, 2010 to June, 2010.
8. Both appear to agree that they resumed living in the same residence in June 2010 and did so until February, 2011. There may be a dispute as to the position after the date, but it is not relevant to the legal questions for decision by this Court.
The 2010 Act
9. The purpose of the 2010 Act as appears from its long title is to provide for the registration of civil partners and the consequences of that registration and to provide for the rights and obligations of cohabitants and connected matters.
10. Part 15 relates to cohabitants and a “cohabitant” has the meaning assigned to it by s. 172. That section is central to the case stated and provides:
“172.— (1) For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.
(2) In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:
(a) the duration of the relationship;
(b) the basis on which the couple live together;
(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
(e) whether there are one or more dependent children;
(f) whether one of the adults cares for and supports the children of the other; and
(g) the degree to which the adults present themselves to others as a couple.
(3) For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature.
(4) For the purposes of this section, 2 adults are within a prohibited degree of relationship if—
(a) they would be prohibited from marrying each other in the State, or
(b) they are in a relationship referred to in the Third Schedule to the Civil Registration Act 2004 inserted by section 26 of this Act.
(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period—
(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and
(b) of 5 years or more, in any other case.
(6) Notwithstanding subsection (5), an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if—
(a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and
(b) at the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years.”
11. As appears, a cohabitant is defined for the purposes of Part 15 of the 2010 Act in section 172(1) and the Court is obliged to take into account all the circumstances of the relationship and in particular to have regard to the matters specified in s. 172(2) in deciding whether or not a person is a cohabitant.
12. However, s.173 only permits a qualified cohabitant to apply to the Court for relief pursuant to the Act. Section 173(1) and (2) provide:
“(1) A qualified cohabitant may, subject to any agreement under section 202, apply to the court, on notice to the other cohabitant, for an order under sections 174 , 175 and 187 or any of them.
(2) If the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make the order concerned.”
13. Part 15 of the 2010 Act came into force on 1st January, 2011. The claim made by M.W. is on the basis that the relationship of cohabitation with D.C. ended in February, 2011 after the commencement of the Act. Section 206 provides:
“206.— An order for redress referred to in section 173 shall only be made if the application for it is made with respect to a relationship that ends, whether by death or otherwise, after the commencement of this section but the time during which two persons lived as a couple before the commencement date is included for the purposes of calculating whether they are qualified cohabitants within the meaning of this Part.”
14. Section 195 provides a two-year time limit for the commencement of proceedings “save in exceptional circumstances” from “the time that the relationship between the cohabitants ends, whether through death or otherwise.” No issue arises in relation to this particular two year period.
15. It would appear that the claim made by M.W. is upon the basis of a relationship which ended in February, 2011 (or possibly later, but still in 2011). She is limited to making that claim by reason of s.206 and the commencement date of 1st January 2011 in respect of the 2010 Act. The first and primary legal question relates to the proper interpretation of s. 172(5) by reason of the fact that the parties lived separate and apart for a period in 2010. It matters not for the legal question of interpretation whether this was a period of four weeks or longer, as contended by D.C.
16. The first interpretive issue, having regard to the submissions made, is whether the two-year period referred to in s. 172(5) is a single period of two years immediately prior to the ending of the relationship in respect of which the claim is made or whether the period of two years may be made up of periods aggregating or amounting to two years immediately prior to the date upon which the relationship ended.
17. The applicable interpretation principles were not in dispute between the parties. The Court was referred to the well known quotation by Blayney J. in Howard v. Commissioners of Public Works [1994] 1 I.R. 101 at p. 151 from Lord Blackburn in Direct United States Cable Company v. Anglo American Telegraph Company (1877) 2 App Cas 394:
“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.”
18. It was also agreed that the court must construe the Act in accordance with the requirements of the Interpretation Act 2005 (“the 2005 Act”). Counsel for M.W. relied in particular upon s. 18(a) of the 2005 Act which provides:
“18.—The following provisions apply to the construction of an enactment:
(a) Singular and plural. A word importing the singular shall be read as also importing the plural, and a word importing the plural shall be read as also importing the singular;”
19. Whilst counsel for D.C. accepted the above provision applies, he correctly submitted that it was subject to s. 4 of the 2005 Act which provides:
“4.— (1) A provision of this Act applies to an enactment except in so far as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made.
(2) The provisions of this Act which relate to other Acts also apply to this Act unless the contrary intention appears in this Act.”
His submission is that the wording of s. 172(5) – in particular by the use of the phrase “immediately before the time that the relationship ended” – expresses a contrary intention to the section being construed as permitting the two-year period to be made up of a number of periods which aggregate two years. Further, as was pointed out, even if one replaces the word “period” with its plural “periods” the ordinary and natural meaning having regard to the earlier phrase “immediately…” is of multiple periods, each of which must be of two years or more.
20. Counsel for M.W. correctly relied on a further principle of interpretation that the words used must be considered in their legal context having regard to the entirety of s.172 and the other provisions in Part 15 of the 2015 Act. He correctly submits that s.172(1) defines a cohabitant and the Court should have regard to that definition and the matters to which it is referred in s.172(2) when interpreting s.172(5) and (6).
21. In enacting s.172(5) the legislature clearly intended first (subject to the exceptions in sub-s.(6)) that a person must be a cohabitant of the other person (where there is a dependent child) for a period of 2 years or more in order to be a qualified cohabitant. However, by use of the phrase “immediately before the time that the relationship ended”, the Oireachtas has also specified when such person must have been a cohabitant for 2 years or more.
22. Counsel for M.W. made a number of submissions in reliance upon the purpose of the Act to give a cohabitant as defined in s. 172(1) a right to apply to the Court for an order under s. 173, albeit acknowledging that the Oireachtas intended that the right only be given to a cohabitant in a relationship for a specified period of time. He drew to the Court’s attention the consequences of what is termed the “strict interpretation” for a cohabitant who may have lived in a relationship which qualifies him or her as a cohabitant within the meaning of s. 172(1) for a long period but where there is a break in the relationship and a resumption of the relationship before a final termination.
23. I do not accept that the construction of s. 172(5) in accordance with the ordinary meaning of the words used as requiring a single period of two years immediately before the ending of the relationship is contrary to the purpose or overall scheme of Part 15 of the 2010 Act. It must be recalled that s. 195 permits the institution of proceedings within two years of the time when the relationship in respect of which the claim is made ended. Hence, if there is a longstanding relationship which ends on, say, 1st June, 2017 in the sense that a court considers the relationship to have ceased such that the parties are not cohabitants of each other within s.172, but the parties, following a break of, say, three months, resume a relationship on 1st September, 2017 and that resumed relationship only lasts for, say, one year, then either cohabitant will be able to make a claim based upon the long standing relationship which ended on 1st June, 2017 on any date prior to 1st June, 2019 (and possibly even after that date, as s. 195 permits of an extension of time “in exceptional circumstances”).
24. I recognise that on the facts of the case before the High Court judge it was not open to M.W. to make a claim in respect of the longstanding relationship of cohabitation upon the basis that it ended in 2010. This particular consequence is, however, by reason of the commencement of the 2010 Act on 1 January 2011 and the effect of s. 206 of that Act: it does not otherwise alter the proper interpretation of s. 172(5).
25. My conclusion is that the ordinary and natural meaning of the words used by the Oireachtas in s. 172(5)(a) of the 2010 Act when viewed in the context of the entirety of that section and Part 15 of the 2010 Act is that the relevant period is a single period of two years immediately before the time that the relationship ended.
26. This interpretation is also consistent with the different words used by the Oireachtas in the immediately subsequent subsection, namely, s. 172(6)(b) where, admittedly having regard to similar words in the divorce legislation, the relevant time is expressed to be “a period or periods of at least four years during the previous five years”.
27. As the answer to the substance of the first question of law put by the High Court judge is in the affirmative, it is necessary to consider the question of law raised by his second question. In this the judge asks whether “… a court [can] overlook periods of separation in a relationship which has ceased and recommenced between the parties?”
28. It is necessary to emphasise that all findings of fact and questions of fact are matters for the High Court judge. With respect, it is not entirely clear what legal question he requires this Court to answer for the purpose of deciding the appeal before him having regard, in particular, to what is stated by him in paras. 14(i) and 15 of the Case Stated in relation to the alleged continuation of the relationship of cohabitation in 2010. That remains exclusively a matter for the High Court judge. It appears that what the High Court judge in substance is asking this Court is what legal question he is required to decide upon the facts before him in relation to the two-year period immediately preceding the ending of the relationship in respect of which the claim is made. In this instance, that is the two-year period immediately before February, 2011. Section 172(5) requires the High Court judge to determine whether on the facts before him M.W. was living with D.C. as a couple during the entirety of the two-year period preceding the termination of the relationship in February, 2011.
29. The concept of “living with the other adult as a couple” or living “together as a couple” as stated in s. 172(1) is a legal concept for the purposes of s. 172. There was considerable debate in the submissions before this Court as to whether the concept of living together as a couple for the purposes of s. 172 required both adults to live physically in the same shared residence at all times. Examples were given of persons in an intimate and committed relationship living together as a couple and holding themselves out as a couple but where either work demands of one or other or ill health and hospitalisation require the couples to physically live in different places or even different countries for periods of time. I conclude that the legal concept of living together as a couple for the purposes of s. 172 does not require two persons to live physically at all times in the same shared premises. Hence, notwithstanding that a couple may not be physically living day by day in the same residence, during the two-year period immediately prior to the end of the relationship s. 172 envisages that a court may decide on all the relevant facts that they, nonetheless continued to live together as a couple during that period.
30. The definition of cohabitant in s. 172(1) is “one of two adults … who live together as a couple in an intimate and committed relationship…” Subsection (5) in defining a “qualified cohabitant” appears to start with the requirement that the person is a cohabitant as it must be “an adult who was in a relationship of cohabitation with another adult” and then in relation to the two-year period at issue requires that the person “was living with the other adult as a couple”. Notwithstanding the slight difference in wording it does not appear to me that the Oireachtas intended anything other than that the person who seeks to be a qualified cohabitant was a cohabitant of that other person within the meaning of s. 172(1) during the two-year period immediately preceding the termination of the relationship. The reason for which I have formed that view is that the claim is being made in respect of a relationship of cohabitation alleged to have ended on a specified date. Accordingly, the relationship of cohabitation must continue up to the date upon which it is alleged to have ended. There cannot be a relationship of cohabitation unless there are two cohabitants.
31. Accordingly, simply put, what a court must determine is whether or not during the two years immediately before the time at which the relationship of cohabitation is claimed to have ended the applicant was a cohabitant of the other adult within the meaning of s. 172 of the 2010 Act during the entirety of that two-year period.
32. By the third question the High Court judge asks whether it matters that the relationship ceased between the parties prior to the Act of 2010 and recommenced prior to the Act of 2010. The substance of this question must be answered by reference to s. 206 of the Act of 2010. As I have already pointed out, the 2010 Act only permits an application to be made in respect of a relationship which ends after the commencement of the section which was the 1st January, 2011. The question as to whether or not an applicant is a qualified cohabitant for the purposes of s. 172 can only be determined with respect to a relationship of cohabitation which ended after 1st January, 2011. Of course, in assessing this question the Court may also look at the time prior to that date during which the two persons lived as a couple or were cohabitants for the purpose of deciding whether they are qualified cohabitants within the meaning of s. 172(5), provided again that the relationship ended after 1st January 2011.
Conclusion
33. I propose that the questions put by the High Court judge be answered as followed:
(i) & (ii) Section 172(5) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 should be interpreted as meaning that, where there are dependent children, a person must be a cohabitant of the other adult within the meaning of s.172(1) during the entirety of the period of two years immediately before the time when the relationship upon which the claim is brought ended.
(iii) Section 206 of the 2010 Act only permits an application to be made in respect of a relationship of cohabitation that ends after the commencement date of that Act, namely, 1st January, 2011. The decision as to whether an applicant is or is not a qualified cohabitant must be made with respect to the two-year period immediately before the time after 1st January, 2011 at which the relationship of cohabitation is claimed to have ended.