Maintenance on Divorce
Cases
E.G. v. J.G.
[2003] 2 IR 300
Murphy J.
29th April,2003
Motion
By motion on notice dated the 12th December, 2002, the applicant sought an order pursuant to s. 7 of the Family Law Act 1995 granting the applicant maintenance pending suit for her support and the support of the dependant children of the marriage.
The matter came on for hearing on the 24th January, 2003 and was adjourned to the 17th February, for cross-examination of the respondent.
Grounding affidavit
The applicant’s affidavit referred to the marriage dated the 2nd August, 1997 and the birth of two daughters on the 27th February, 1999 and the 30th May, 2001. The children were aged almost four and under two at the date of the hearing.
The applicant says that she has been on leave from work since the 8th January, 2001. The respondent is self-employed having recently sold his business for a substantial profit.
The respondent, unhappy differences having arisen, vacated the family home on the 22nd September, 2002 and the applicant says that he is living in costly club accommodation. One month later the parties, by written agreement, agreed that the respondent should remain away from the family home until further order of the court.
The elder infant daughter is recovering from cancer. Certain reports from her consultants were referred to. The younger daughter suffers from an immune deficiency disorder. Her health difficulties are less serious than those of the elder daughter. Nonetheless, the second daughter’s illness requires attendances with various specialists and hospitals and is very disruptive. The applicant refers to a consultant paediatric immunologist’s report.
For this reason the applicant had taken unpaid leave from her employment. In addition, while the parties were living together, they employed a full-time child minder with a high level of experience to deal with the demanding situation at a cost of ‚€3,870per month. The cost was discharged by the respondent. The last payment made by him covered the period to the end of October, 2002.
The applicant said that at that time the respondent interfered with the then existing child minding arrangements. The child minder gave notice that she intended to cease work. The applicant had then to hire a new child minder from an agency at a cost of ‚€2,701per month.
As a result of this cost, the applicant said that she used her savings and had incurred debts of approximately ‚€7,753 on her credit card. She incurred expenditure of approximately ‚€16,430 since September, 2002 and referred to her credit card bill.
The applicant said her monthly outgoings, including child minding expenses of ‚€4,270, were over ‚€13,000. The applicant referred to the respondent’s wealth, property and investments.
By letter dated the 12th November, 2002, her solicitors wrote to the respondent’s solicitors requesting a reasonable sum for interim maintenance. No reply was received. A sum of ‚€5,000 was lodged to her account on the 26th November, 2002, by the respondent as the amount which the respondent determined he was going to pay to the applicant each month for her support and that of the two dependant children.
The applicant’s outgoings, as per the affidavit of the 4th December, 2002, give a monthly sum of ‚€13,000.
Applicant’s supplemental affidavit of the 16th January, 2003
This affidavit repeated and expanded some of the averments in the grounding affidavit. It referred in particular to the critical medical condition of the children and the requirements that this placed on her time and care. She also referred to the allegations made by the respondent which she denied.
Reference was also made to her expenses and her means.
She said that in July, 2002 the respondent withdrew a sum of over ‚€1m from the bank. She said that he has spent almost ‚€400,000 between the 9th July, 2002, and the 19th December, 2002, which she calculated as a figure of over ‚€78,000 per month on average. The respondent, she said, had a substantial share portfolio.
It is common case that the illness of the elder daughter had a profound effect on the relationship. The applicant recognised that the marriage had
irretrievably broken down and that there was no possibility of reconciliation between them. However, she wanted to ensure that the children were not adversely affected by the breakdown. She said that the respondent’s lodgement of ‚€5000 per month was insufficient to discharge the usual and necessary outgoings required. Her personal means were not as significant as the respondent had averred. Her financial position was modest compared to his.
Replying affidavit of respondent
The respondent, by the first affidavit dated the 21st January 2003, said that he sold his company for ‚€2.25m and was restrained from being employed in that business. He says he was a full-time parent from January, 2001 and had given some time on a voluntary basis to a number of organisations. He says he intends to start a new business but will not if he has custody of the children. The applicant, he says, had obtained an interim ex parte sole custody order on the 30th September 2002 and an ex parte barring order. He says that the children are well looked after when in his care and in the care of his family, some of whom are nurses.
He disagreed with the expenses required for a child minder. He understands that the current child minder is in receipt of ‚€400per week net. When he left the family home he told the applicant by telephone that there was ‚€2,000 in cash left there. The applicant was continually abusive to him. He maintained contact with the children’s godparents.
He said that the child minders left because the applicant said that one of them was negligent, another that she was required to do housework and a third because of the applicant’s inappropriate behaviour.
He said that arrangements in relation to meeting the children were changed, as a result of which he saw both children together on nine occasions in two and a half months. He was conscious of the needs of the children and he said he cares for them appropriately. He wished to see the children for extended periods rather than the two hour periods agreed. He felt obliged to have a security guard with him when collecting or delivering the children to be a witness to any alleged incidents.
He said that, in addition to the monthly sum of ‚€5,000, he made ‚€3,000 available at Christmas. He also discharged the sum directed by the High Court being two thirds of the finder’s fee due to the child minding agency on the 20th January, 2001.
He said that the applicant owned land and had a house in the country. In addition, she has ‚€35,000 in a bank account into which he lodges the maintenance payments and also receives a social welfare payment.
He believed the grocery expenditure to be excessive.
He did not dispute the medical reports but said that fees were calculated at a time when the elder daughter was gravely ill. She is now well. The younger daughter’s progress was normal for her age.
The amount remaining from the sale of his business was subject to an outstanding tax liability of ‚€100,000.
He said he is not in receipt of a salary as a board mber nor of rental income.
He detailed certain substantial donations to a charity and to his brother and sisters.
The respondent said that the apartment cost him ‚€1,500per month and that he intended buying a home for himself and the children but could not do so if he had to meet the sum which the applicant sought from his investments.
He said it was not possible for him to pay the sum sought out of capital funds as it was not possible to predict his future earnings.
Further replying affidavit of respondent
The second affidavit (in related proceedings bearing record no. 2002/107M) relates to the access to the children from 2.00 p.m. to 5.00 p.m. each day. The respondent said that he had been caring for the children on a constant daily basis along with the applicant and with the assistance of child minders. He said that he has a very close relationship with his two children. There were instances where he had not had the agreed access. He was granted increased access over the Christmas period by order of the High Court (Quirke J.) on the 20th December, 2002, in order to have overnight access so that his relatives could see the children. He refers to problems in relation to this access.
Cross-examination of respondent
The solicitor for the applicant, having served the requisite notice, cross-examined the respondent as to his means and, in particular, as to the proceeds of sale of the shares in his business. Questions were asked regarding pre-acquisition bonuses and claims against the company the shares of which were held by the respondent. Questions were also raised in relation to the respondent’s property here and abroad. Issues arose in relation to tax and to rebates.
The respondent’s reply expanded on but was consistent with his affidavit of means. He had decided to live off capital and had plans to get back to business. It was impossible for him to pay the sum that the applicant sought. He took issue with some of items claimed by the applicant as expenditure and referred to her assets which were not quantified in her affidavit of means. He was paying rent of ‚€1,500per month and had commitments to contribute to a pension fund.
In reply to counsel for the respondent, on re-examination, the respondent referred to his desire to purchase a house rather than to continue renting. The maintenance sought was not sustainable.
Submissions of the applicant
Interim maintenance under s. 7 of the Act of 1995 had to be adequate and reasonable in all the circumstances of the case. It was the mirror image to an interim payment order under s. 16 of the Act of 1995.
Solicitor for the applicant referred to the recent decision of the Supreme Court in D.T. v. C.T. [2002] 3 I.R. 334 and of the High Court in M.K. v. J.P. (otherwise S.K.) (Divorce: ancillary relief) [2003] 1 I.R. 326.
The respondent cannot argue that there is a low income yield on his capital. That argument was not accepted in M.B. v. R.B. [1989] I.R. 412. The court is entitled to make a maintenance order as a charge on his capital assets as was done in P.(C.) v. P.(D.) [1983] I.L.R.M. 380,per Finlay P.
The applicant had not been cross-examined. It is, accordingly, not open to the court to vary the amount claimed by her in respect of child minders. Health insurance had been decided by the parties before marital difficulties arose. There was a disproportion between the respondent’s monthly telephone expenditure of ‚€600 and the applicant’s expenditure of ‚€250. This was the touchstone in terms of the relative expenditures of the parties.
The respondent had no impediment to taking up employment in April. In the circumstances, solicitor for the applicant submitted that the applicant was entitled to ‚€9,000 per month.
Submissions of the respondent
Counsel for the respondent submitted that there was no specific reason for cross-examination. There was no evidence of any dishonesty on the part of the respondent. He had agreed to pay out of capital. In this regard she referred to P.(C.) v. P.(D.) [1983] I.L.R.M. 380.
The sum originally claimed by way of expenditure was ‚€13,000per month. Solicitor for the applicant was asking the court to makean award of ‚€9,000 per month which would be ‚€108,000 per annum which, in her submission, was based on grossly exaggerated figures. It was proper that the respondent pay a sum that could be maintained into the future.
Decision of the court
The court acknowledges the dedication of both parents to their young children in what must have been a very trying time for them both. While happily the health of each girl has improved, problems still remain. The applicant has made a claim in respect of medical expenditure, speech therapy costs and health insurance cover which, other than the last mentioned item, have not been contested.
It was unfortunate that the time and devotion of both parents to their children may have adversely affected their own relationship.
It was agreed during the hearing that the respondent would have greater access to the children and I trust that this arrangement has proved satisfactory.
In relation to interim maintenance, the court has to consider all the circumstances of each party. Interim maintenance has to be adequate and reasonable but must also be sustainable. The issue in relation to a payment -out of capital has been readily conceded by the respondent and does not appear to be an issue.
What is at issue is the level of interim maintenance claimed in circumstances where neither party is at present earning and both have assets. The respondent in cross-examination says that his net assets after liabilities are ‚€2 million (‚€2.4 million less ‚€370,000).
The first schedule of the respondent’s affidavit of means sworn the 19th November, 2002, broadly corresponds with that figure.
The court has to consider the respective monthly outgoings as claimed in the respective affidavits of means. In the case of the applicant this was ‚€13,000 per month, though the claim by solicitor for the applicant was in the sum of ‚€9,000 per month. This compares with the respondent’s expenditure of ‚€8,000 approximately per month. There are, not surprisingly, some overlaps particularly in the case of child minding costs which the applicant puts at ‚€4,370 per month and the respondent puts as ‚€2,600 per month. Car insurance for two cars is claimed by the respondent.
Apart from child minding, the largest expenditure of the respondent is that of rent of ‚€1,500 per month.
Both parties claim ‚€260/‚€280 per month in respect of speech therapy.
The overall expenditure for both is ‚€21,000 per month (or ‚€17,000 on the basis of the revised claim). This, of course, amounts to a substantial funding requirement to sustain such expenditure. It is difficult to see how, even on an interim basis, that such expenditure could be maintained out of the net capital assets of the respondent.
However, both parties have earning capacity. The respondent has not alone the greater capacity to earn but also the greater opportunity to do so now that the contractual restrictions are no longer in force. I have also to take into consideration his rental expenditure and allow for the duplication already referred to.
It may well be that the child minding expenses are excessive and that the applicant’s monthly outgoings in respect of provisions and holiday
fund are many times that of the respondent. In fairness to the parties there was no detailed objection to many of the other items. A general objection was made of exaggeration. This may apply to some extent to both estimates of monthly personal outgoings.
The applicant has taken upon herself the prime care of the children and the maintenance of the home. It seems to me appropriate, on an interim basis, and having regard to all the circumstances, that the court should make an order for interim maintenance in the sum of ‚€7,000per month from the 1st March, 2003, onward until the determination of the action.
T. (D.) v. T. (C.)
[2002] IESC 68
JUDGMENT delivered the 14th day of October, 2002 by Keane C.J.
Introduction
1. This is an appeal from a judgment and order of the High Court (Lavan J) in proceedings brought by the applicant under The Family Law (Divorce) Act 1996, hereafter “the 1996 Act”).
2. The factual background is as follows. The applicant who, at the date of the hearing in the High Court, was aged 52, is a solicitor in practice in a country town. The respondent was aged 48 at the date of the hearing in the High Court and is a medical doctor by profession. The applicant and the respondent were married on the 20th March 1980 according to the rites of the Roman Catholic Church.
3. In the proceedings in the High Court, the applicant sought a decree of divorce pursuant to s.5(1) of the 1996 Act together with various ancillary orders. While the respondent opposed the granting of a divorce decree in the High Court on religious grounds, it is accepted on her behalf that the constitutional and legal preconditions to the granting of such a divorce have been met and there is, in the result, no appeal from the grant of a decree of divorce by the High Court.
4. The provisions of the order of the High Court which were the subject of the appeal to this court were the requirements that
(a) the applicant paid to the respondent a lump sum of £5 million and
(b) 55% of the benefits accrued to the applicant’s Eagle Star policy No. 1855093 and to the applicant’s Standard Life policy [Nos. specified] from the date of entry to each individual scheme to the date of the order be paid to the respondent.
5. The sum of £5 million was to be paid as follows:
(a) as to the sum of £1 million on or before the 31st December 2001;
(b) as to the sum of £2 million on or before the 30th September 2002 and;
(c) as to the remaining sum of £2 million on or before the 30th June 2003.
6. There are three children of the marriage who were born on the 21st April 1981, 5th August 1983 and 20th January 1989. Each of them is a dependent child within the meaning of the 1996 Act, but no issue arises in this appeal as to the provision being made for them by the applicant.
7. The evidence in the High Court established that the applicant had built up a lucrative practice and that, in addition, he had made shrewd investments in property in the area where he lived and in Dublin. While there was not complete agreement between the parties as to his financial worth, and it will be necessary to consider it in a little more detail at a later stage, it is sufficient to say at this point that it is in the order of at least £14 million. The respondent’s assets were estimated to be worth in the region of £1 million.
8. The respondent obtained her primary medical degree at university in 1976 and thereafter held a number of junior hospital appointments until 1979. She subsequently worked as a locum general practitioner in a country area from July 1979 to September 1979. In October 1979, she pursued a postgraduate course in public health in University College Dublin qualifying in 1980 with a Diploma in Public Health. At the time of the marriage in 1980, she owned a four bedroomed semi-detached house with an attached single bedsitter in Rathfarnham, Dublin. That house was leased for a number of years and ultimately sold in 1984. The proceeds were used for the benefit of the family generally.
9. The applicant and the respondent began their married life in another town and in 1980, moved to the town where they lived together until 1994 when the applicant left the family home. The applicant built up his successful practice in the town and initially he carried on his practice from the house which they used as the family home.
10. At this stage, the respondent, who before meeting the applicant had intended to pursue a career as a general practitioner, changed her plans on assuming the responsibilities of marriage and a family and took up a post as an area medical officer for a health board. She resigned from that position on the birth of the youngest child in 1989 and thereafter worked part-time – not more than six hours a week – as a general practitioner between 1990 and 1998.
11. It is also not in dispute that for some years after they were first married the respondent acted as the applicant’s unofficial receptionist, meeting clients and taking phone calls from them both before and after hours and at the weekends. She also did a typing course so as to save the applicant the expense of hiring a secretary at the outset. She furnished the offices from her own resources and cleaned it for many years.
12. The marriage is described by both parties as having been “turbulent” and the applicant has not denied the respondent’s averment that, during the course of the marriage, he conducted a number of extra-marital affairs. The applicant at the time of the High Court hearing had been in a relationship for two years with a new partner who had recently given birth to their child. It was his intention to marry his partner on the court granting the decree of divorce.
13. At the time the applicant left the family home, he and the respondent continued to operate a joint bank account which the respondent drew on when necessary. That arrangement continued for eighteen months, at which stage the applicant closed the account and opened an account in the respondent’s name. The applicant at present pays the respondent a sum of approximately £400.00 per week by way of maintenance of the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The High Court order provided for the payment by the applicant to the respondent of the sum of £800 in respect of the maintenance of the youngest child until he attained the age of 18 years and for the payment to continue while he was in third level education up to his attaining the age of 23 years.
14. When the applicant left the family home, which had previously been held in the joint names of himself and the respondent, he transferred his interest in it to the respondent. There were a number of valuable paintings and antiques in the house, some of which he left there. He also transferred to the respondent a house in the Sandymount area of Dublin. The applicant is now living in a house in the country near to the town where he practices and which he bought for approximately £140,500.00. It is on a farm of approximately 48 acres.
15. The applicant also owns other premises in the town where he carried on practice. He is also the owner of property in Dublin, consisting of a house in Ballsbridge, some apartments, and an office block. In addition, he has other assets, including shares in a number of companies. He estimated his taxable income from his practice as a solicitor for the year preceding the High Court hearing at £208,479.00. However, he is also in receipt of income from his other properties and interests and his total income was estimated by him in his affidavit of means in the High Court at £1,006,812.
16. The office block was purchased by the applicant in 1996, i.e., sometime after the breakdown of the marriage but before the hearing in the High Court, for the sum of £4,300,000. Its net valuation at the time of the hearing in the High Court, after deducting the cost of realisation, including capital gains tax, was £11,450,000. It represents a significant proportion of the assets of the applicant.
17. The respondent has been working as a sole general practitioner since November 1998, but says that she has found it extremely difficult to build up a practice. In 1998/99 she estimated her income from the practice at £7,223.00.
The High Court Judgment
18. The trial judge approached the case on the basis that provision should be made for the respondent solely by way of a lump sum, rather than by way of periodic payments or a combination of a lump sum and periodic payments. It is not disputed that, on the facts of the case, he was entitled to adopt that approach. It had been submitted on behalf of the respondent that the lump sum should be between one third and one half of the applicant’s assets. On the basis that the total assets of the applicant were of the order of £15 million, it was submitted that the appropriate range of the order for provision should be between £4.4 million and £7 million. In the event, as already noted, the trial judge considered the appropriate sum to be £5 million, to be paid in instalments over a period of 18 months.
19. The respondent had also sought a pension adjustment order. The trial judge was of the view that, in the absence of any other factors, this should have been divided as to 49% to the applicant and 51% to the respondent. However, because he considered it appropriate to take into account the conduct of the applicant, he adjusted that apportionment to a finding of 45% to the applicant and 55% to the respondent.
Submissions on behalf of the parties
20. On behalf of the applicant, Mr. Michael Cush SC submitted that the High Court judgment was vitiated by a failure on the part of the trial judge to have sufficient regard to the following matters:
(1) the assets to which the parties were respectively entitled;
(2) the income of the respondent;
(3) the financial needs of the parties;
(4) the fact that a significant proportion of the applicant’s assets i.e., the office block, amounting to approximately 80%, had been acquired by him after the separation;
(5) the fact that the applicant had transferred 30% of his assets to the respondent at the time the marriage broke down;
(7) the new relationship entered into by the applicant and the responsibilities which would result therefrom;
21. Mr. Cush further submitted that the trial judge had been in error in treating as applicable, as he apparently did, the approach adopted to cases of this nature – described in England as “big money cases” – in White -v- White [2000] 2FLR 981 and Cowan -v- Cowan [2001] 2FLR 982. He said that in English law the effect of a divorce was to achieve what is described as a “clean break” between the spouses but that, as had been made clear in the judgment of McGuinness J in this court in M.K -v S.K. [unreported; judgment delivered 6th November 2002], it was not possible to adopt that approach in Irish law. He submitted that, on the contrary, the Irish legislation was designed to allow a dependent spouse to be financially supported throughout his/her life by the other spouse. The trial judge had, in the result, been in error in not taking into account, when making provision of the order of £5 million for the respondent, that she would be entitled, so long as she remained unmarried, to return to the court to seek further maintenance or financial provision.
22. Mr. Cush further submitted that the trial judge had made no attempt in his judgment to indicate what weight he was attaching to the matters to which he was required to have regard under s.22 of the 1996 Act, including, in particular,
(a) the income, earning capacity, property and other financial resources of the respondent;
(b) the financial needs, obligations and responsibilities of each spouse;
(c) the age of each of the parties, the duration of their marriage and the length of time during which they lived with one another.
23. Mr. Cush further submitted that the trial judge was in error in treating the date of the hearing as the appropriate date for the purpose of valuing the assets of the parties, when he should have had regard to the assets held by the parties respectively at the time of the breakdown of the marriage. He submitted that this was of critical importance, given that 80% of the assets to which the applicant was now entitled had been acquired by him since the breakdown of the marriage.
24. As to the adjustment made by the trial judge to the pension entitlements in the light of the applicant’s conduct, Mr. Cush submitted that the applicant’s conduct during the marriage was not such as to render it “unjust” within the meaning of s.20(2)(i) of the 1996 Act to disregard it. He submitted that the appropriate test was that laid down by Lord Denning MR in Wachdel -v Wachdel [1973] 1All ER 829 where he said that only conduct which was “obvious and gross” was intended to be captured by such a provision.
25. On behalf of the respondent, Mr. Frank Clarke SC submitted that the trial judge was fully entitled to give considerable weight to the fact that not merely had the parties been married for a significant period but that, in the case of the respondent, these were years of primary importance to her, being the years in which her children were born and reared. He said that, in assessing the contributions which the parties had made to the marriage, the court was obliged to have regard to the fact that, on the unchallenged evidence in the case, the respondent had effectively abandoned any attempt to establish herself in a secure position in her chosen profession in order to concentrate on her marriage and family.
26. Mr. Clarke further submitted that the trial judge was correct in treating the English authorities as affording assistance in the construction of our legislative provisions. In this jurisdiction, as in England, in a “big money” or “ample resources” case such as the present, while equality in the division of the assets was not required, it was a yardstick against which it was appropriate to assess the contribution to be made by the spouse who, because of the manner in which the parties agreed to conduct their lives together, was endowed with significantly greater assets. In the present case, the respondent’s relinquishing a full time medical career, and her commitment to her marriage and children, enabled the applicant to devote considerable energy and time to the development of his practice. This was properly reflected in the assessment of the lump sum. Similarly, in this jurisdiction, it was appropriate to have regard to the fact that the effect of the divorce was to deprive the respondent of the one third fixed share to which she would have been entitled in the applicant’s estate in the event of his predeceasing her.
27. Mr. Clarke further submitted that, while the doctrine of the “clean break” did not apply in Ireland, in a case such as this where the resources were so ample as to render possible the provision of a relatively large sum, there was no reason to anticipate future applications on behalf of the respondent for maintenance or other support. The court was entitled to have regard to the fact that there was no order to make periodic payments and unlikely to be any such order in the future. He also said that, in view of the provision in the order for the payment of the lump sum in three instalments over a period of eighteen months, the actual lump sum being paid by the applicant, in terms of its present value, was £4.6 million.
28. As to the submission that the court should not have regard to so much of the applicant’s wealth as was represented by the office block since it had been acquired after the breakdown of the marriage, Mr. Clarke submitted that the court was entitled to have regard to the fact that it was as a result of the profits generated by his practice that the applicant was in a position to make that investment and that, in turn, that reflected the respondent’s committment to the marriage and the support she gave to the applicant in his career. He said that in any event, the language of s.20(2) and, in particular, the reference to property and other resources which a spouse “is likely to have in the forseeable future” made it clear that the court was not confined, in considering the provision to be made, to the assets as they existed at the time of the breakup of the marriage.
The Applicable Law
29. Article 41 of the Constitution, as amended by the 15th Amendment, provides that
“A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that –
i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii there is no reasonable prospect of a reconciliation between the spouses,
iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by la, and
iv any further conditions prescribed by law are complied with.”
30. The statutory machinery is contained in the 1996 Act, s.5(1) of which provides, in language identical to that of Article 41, for the grant of a decree of divorce. Part III of the Act enables the court to make a variety of orders relating to the financial position of the spouses, including periodical payments and lump sum orders, property adjustment orders, financial compensation orders and pension adjustment orders. Section 20(1) then provides that, in determining the provisions of such orders,
“the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.”
31. Subsection (2) then provides that
without prejudice to the generality of s.s. (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:
(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,
(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),
(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,
(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,
(e) any physical or mental disability of either of the spouses,
(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,
(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,
(h) any income or benefits to which either of the spouses is entitled by or under statute,
(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,
(j) the accommodation needs of either of the spouses,
(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,
(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried”
32. Subsection (3) requires the court, in making the orders concerned, to have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force. There is no such separation agreement in the present case.
33. Finally, s.20(5) provides that
“The court shall not make an order under a provision referred to s.s(1) unless it would be in the interests of justice to do so.”
34. The 15th Amendment to the Constitution, which removed the prohibition on any law providing for the dissolution of a marriage and enabled the courts to grant decrees for the dissolution of marriages, was a change of far reaching importance. The Matrimonial Causes Act, 1857 which provided for the establishment of a divorce jurisdiction in England and Wales, did not apply to Ireland and, while there was no express prohibition on divorce in the Constitution of the Irish Free State equivalent to that in the present Constitution, the only manner in which a divorce could be obtained, in the absence of any legislation, was by the promotion of private bills. Since no standing orders were adopted enabling such legislation to be promoted, no divorce jurisdiction existed in Ireland until the passing of the 15th Amendment. That amendment and the 1996 Act fundamentally altered the nature of our law affecting marriage and the family.
35. There were two important features of this change in the law. First, it was now possible, where the constitutional and statutory preconditions for a divorce were met and a divorce granted, for the parties to remarry. Secondly, the court in granting such a divorce was required to ensure that such provision as it considered proper would be made for the spouses and any children of either or both of them.
36. The legislation which was enacted by the Oireachtas in this radically different context was clearly modelled to some extent on modern English divorce legislation. In particular, sub paragraphs (a) to (i) of s.20(2) of the 1996 Act correspond exactly to the provisions of s.25(2)(a) to (h) of the English Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984.
37. There is, however, an important difference. Section 25(A) of the English Act enables the court, when ordering periodical payments to be made or lump sums to be paid by either spouse to the other, to provide that the financial obligation of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable. In relation to such orders, accordingly, the English legislation embodies the “clean break” principle first laid down by the House of Lords in Minton -v- Minton [1979] AC 593.
38. No such provision appears in the 1996 Act. Moreover, under s.22, the court may, if it considers it proper to do so having regard to any change in circumstances or any new evidence inter alia vary or discharge the following orders referred to in s.22(1):-
“(b) a periodical payments order….
(d) a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires the payment of any such instalments to be secured…”
39. Lord Scarman in Minton -v- Minton said
“There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other – of equal importance – is the principle of the ‘clean break’. The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.”
40. It is, of course, beyond argument that the Irish legislation precludes the courts from giving the same effect as does the English legislation to the “clean break” principle. In so providing, the Oireachtas was undoubtedly mindful of the express requirement in Article 41 that proper provision should be made for the spouses and their children. It was presumably considered that to include a “clean break” provision on the English model could expose dependent spouses to hardship in the future and that this would not be consistent with the constitutional protection which they were being afforded.
41. In this connection, it is of interest to note that, while expressing his concurrence with the “clean break” approach adopted in Minton -v- Minton, Lord Fraser of Tullybelton gave this warning:
“I respectfully agree that there are great advantages in the finality of a ‘clean break’. But it is easy to envisage an exceptional case in which a totally unforeseeable change in the circumstances of one of the former spouses occurs soon after a final court order has been made disposing of the financial issues between them. Such a change might render the order so inappropriate as to appear harsh and unjust. The change might be for better, as by unexpected inheritance of property, or for worse, as by a sudden serious illness. To cover such exceptional cases it would, in my view, be desirable that the jurisdiction of the court to vary any order should invariably be preserved as a matter of general law.”
42. It seems to me, that, unless the courts are precluded from so holding by the express terms of the Constitution and the relevant statutes, Irish law should be capable of accommodating those aspects of the “clean break” approach which are clearly beneficial. As Denham J observed in F -v- F (Judicial Separation) [1995] 2IR 354, certainty and finality can be as important in this as in other areas of the law. Undoubtedly, in some cases finality is not possible and thus the legislation expressly provides for the variation of custody and access orders and of the level of maintenance payments. I do not believe that the Oireachtas, in declining to adopt the “clean break” approach to the extent favoured in England, intended that the courts should be obliged to abandon any possibility of achieving certainty and finality and of encouraging the avoidance of further litigation between the parties.
43. In this context, I would respectfully disagree with the view of McGuinness J on this in D (J) -v- D (D) [1998] FLJ 17 where, speaking as a High Court judge, having referred to the observations of Denham J to which I have already referred, she commented
“It appears to me that by the subsequent enactment of the Family Law Act 1995 and the Family Law (Divorce) Act 1996 the Oireachtas has made it clear that a ‘clean break’ situation is not to be sought and that, if anything, financial finality is virtually to be prevented …. The court, in making virtually any order in regard to finance and property on the breakdown of a marriage, is faced with the situation where finality is not and never can be achieved. This also appears to mean that no agreement on property between the parties can be completely final, since such finality would be contrary to the policy and provisions of the legislation.
“The statutory policy is, therefore, totally opposed to the concept of the ‘clean break’. This policy is not only clear on the face of the statutes but was most widely discussed, referred to and advocated in the considerable debate that surrounded the enactment of divorce legislation.”
44. I am satisfied that, while the Irish legislation is careful to avoid going as far as the English legislation in adopting the “clean break” approach, not least because of the constitutional constraints, it is not correct to say that the legislation goes so far as virtually to prevent financial finality. On no view could such an outcome be regarded as desirable and I am satisfied that it is most emphatically not mandated by the legislation under consideration.
45. While s.20(2) lists in detail the factors to which the court is required to have regard in making the various financial orders provided for in part III of the Act, it is obvious that the circumstances of individual cases will vary so widely that ultimately, where the parties are unable to agree, the trial judge must be regarded as having a relatively broad discretion in reaching what he or she considers a just resolution in all the circumstances. While an appellate court will inevitably endeavour, so far as it can, to ensure consistency in the approach of trial judges, it is also bound to give reasonable latitude to the trial judge in the exercise of that discretion.
46. Some principles which are to be applied in the exercise of the discretion are beyond dispute. As Lord Hoffmann said of the corresponding English legislation in Piglowski -v- Piglowski [1999] 1 WLR 1360, it establishes no hierarchy of factors. In what is probably still the typical Irish case, where one or both parties are in receipt of income, but their joint assets are not of such significant value as is the case here, the first task of the court will almost certainly be to consider what the financial needs of the spouses and the dependant children are. At one end of the spectrum, there will be cases in which, at best, no more than basic subsistence requirements at the most can be met. At the other, there will be both substantial assets and income available and the court will be concerned with the proper distribution, in terms of the section, of the available assets so as to ensure that proper provision is made for the spouses and any dependent children.
It is, of course, the case that the 1996 Act does not require the assets of the spouses to be divided between them and the dependant children in every case. There will undoubtedly be cases in which it would be solely concerned with the appropriate level of the maintenance to be paid by one spouse to the other and as to what is to happen to the family home. But in cases such as the present where there are substantial assets which have admittedly been brought into being in circumstances where it would be unjust not to effect some form of division between the parties, the court will inevitably find itself having to determine, where the parties are unable to agree, how the assets should be divided between them and whether that division should take the form of a lump sum order or a property adjustment order.
47. In Irish society today, it can no longer be assumed that the husband and wife will occupy their traditional roles in which the husband has been the breadwinner and the wife the home builder and carer. The roles may on occasions even be reversed and, in many instances, both husband and wife will be in receipt of income from work. In those cases where one spouse alone is working and, in the result, a significantly greater responsibility for looking after the home has devolved on the other, it is clear that under s.20(f), the court must have regard to that as a relevant factor. Moreover – and this is of particular significance in the present case – the court is obliged by virtue of subparagraph (g) to have regard to the financial consequences for either spouse of his or her having relinquished the opportunity of remunerative activity in order to look after the home or care for the family.
48. Other factors which bulk large in the present case and to which the court is obliged to have regard is the standard of living enjoyed by both parties before the breakdown of the marriage, their respective ages and the duration of the marriage. The conduct of the parties will also be relevant where, in the opinion of the court, it would be unjust to disregard it and, as already noted, this played a part, albeit a relatively minor one, in the trial judge’s determination in the present case. Ultimately, however, when all these factors have been assessed by the trial judge, he or she must be satisfied that any financial orders which he may make as a result under Part III constitute proper provision for each of the spouses, and the dependent children, within the meaning of the Constitution and the 1996 Act.
49. In the present case, as already noted, the trial judge was invited by counsel for the respondent to treat the appropriate range within which a lump sum in favour of the wife should be assessed as between one third and one half of the net assets. Assuming for the moment – and there was some disagreement as to the figures – that this suggested a lump sum of somewhere between £4.4 million and £7 million, it was submitted in this court that the figure ultimately arrived at by the trial judge was significantly closer to the lower end of the range. Counsel for the applicant in this court argued that neither the Irish nor the English authorities rendered that approach legitimate.
50. The Irish authorities – McA -v- McA [2000] 1 IR457, D -v- D, and MK -v- SK (Supreme Court; unreported; Judgment delivered 6th November 2001) turn largely on their particular facts and do not give any express guidance as to the issue to which I have just referred. In what have come to be known, somewhat unattractively, as “big money” cases, and which I would prefer to categorise, as counsel for the respondent suggested, as “ample resources” cases, there are some observations by the English courts as to the relationship, in those cases, between the division actually effected of the assets and a division of the assets on the basis of equality. Those decisions did not afford any guidance, however, to whether the suggested lower level – i.e., one third of the net assets – is a relevant consideration, since there is no equivalent in that jurisdiction to the fixed share provisions of the Succession Act 1965.
51. In the first of the English decisions, White -v- White, the House of Lords rejected an approach which had found favour in earlier decisions of the Court of Appeal, i.e., that the “reasonable requirements” of both spouses was a determinant factor in arriving at a just result in such cases. It has not been suggested in this case that the position is any different under our legislation. It was, however, urged on behalf of the applicant that the court should not adopt the approach proposed by the House of Lords in that case to the concept of equality in the distribution of assets.
52. That approach is explained as follows by Lord Nicholls of Birkenhead:
“Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.
“This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by parliament 30 years ago, enabled the courts to recognise and respond to developments of this sort.”
53. He also, however, rejected in that case an invitation to enunciate a principle that, in every case, the “starting point” in relation to a division of the assets of the husband and wife should be equality.
54. Despite that caveat, the passage in question might be construed as resting on the assumption that, in English matrimonial law, the court in divorce proceedings is primarily concerned with dividing assets as fairly as possible between the parties rather than making proper provision for the spouses and their dependent children. As I have already indicated, such an approach could not be adopted in this jurisdiction, where the appropriate criterion is the making of proper provision for the parties concerned. But it by no means follows that what is referred to as “the yardstick of equality of division” is, in every case and for all purposes, irrelevant. To take an extreme example, had the respondent in this case been awarded more than half the assets of the applicant and appealed to this court on the ground that this was not proper provision, the yardstick of equality would certainly have been a relevant consideration. The age old maxim, “equality is equity”, may have only the most limited of applications in the complex exercise which the court of first instance is obliged to undertake in a case such as the present: that is not to say that it has disappeared completely from the picture.
55. Lord Nicholls, in the course of his speech, also emphasised that the whole tenor of the legislation was the avoidance of a discriminatory approach: the fact that, as often happened, the wife had devoted the greater part of her time to looking after the children and caring for the home generally, was no ground for confining her share of the family assets, in the event of a breakdown of the marriage, to so much of the assets as met her “reasonable requirements”. There can be no doubt that this is also the law in this jurisdiction.
56. The Court of Appeal returned to the somewhat more problematic question of equality of division in Cowan -v- Cowan. In that case – also an “ample resources” case – it was claimed on behalf of the wife that she was entitled to equality when the assets were being divided. That claim was rejected by the Court of Appeal, on the basis of White -v- White, but the share of the wife was increased from what was regarded as an inadequate provision by the trial judge to one representing 38% of the assets. Thorpe LJ summarised his understanding of the consequences of the decision in White -v- White as follows:
“Disapproved is any discriminatory appraisal of the traditional role of the woman as home maker and of the man as breadwinner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross check against such discrimination.”
“Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements.”
57. Provided that it is always borne in mind that in “ample resources” cases an equal division of the assets is emphatically not mandated by the legislation, I think there should be no difficulty in adopting a broadly similar approach in this jurisdiction. It is sufficient to say, by way of qualification, that the cross-check to which he refers may not be necessary in every case of “ample resources”.
58. The use of the one third share of the estate to which the respondent would otherwise have been entitled under the Succession Act as a yardstick is more questionable. Such an inheritance depends on the contingency of the applicant predeceasing the respondent and, in the normal course, would, in any event, be deferred for many years. The Irish courts, however, dating from times when family law cases were far less frequent and complex, traditionally approached the assessment of maintenance on the basis that, all things being equal, the amount of maintenance should be one third of the disposable income of the earning partner, then almost invariably the husband. To that limited extent, the court might be justified in treating, in “ample resources” cases, one third of the net assets as a yardstick at the lower end of the scale.
59. The next question that arises is as to the time at which the assets should be valued. That is of considerable importance in the present case, given that the office block, which constitutes so significant a proportion of the applicant’s assets, was acquired after the breakdown of the marriage.
60. The language of s.20(2)(a), and, in particular, the reference to “property… which each of the spouses concerned has or is likely to have in the foreseeable future” seems to me to be more consistent with an assessment by the court of the value of those assets as of the date of the hearing. Any other construction, moreover, would seem to give rise to the possibility of injustice to either party. Thus, if the office block had been acquired by the applicant immediately before the breakdown of the marriage and the property market had collapsed between its acquisition and the date of the hearing in the High Court, it would seem singularly unfair to him that the value of his assets should be ascertained by reference to the position as of the date of the breakdown. That was also the view taken by the Court of Appeal in Cowan -v- Cowan. Thorpe LJ said:
“[the submission] that much of the husband’s fortune was generated in the 6 years post separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party had deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife’s unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife’s share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor had any relevance it is within the evaluation of the husband’s exceptional contribution.”
61. I would adopt that as a correct statement of the law in this jurisdiction.
62. Finally, there is the question as to when it would be “unjust” within the meaning of s.20(1)(i) to disregard the conduct of each of the spouses.
63. In Wachdel -v- Wachdel [1973] 1 All ER 829, Lord Denning MR said
“There will no doubt be a residue of cases where the conduct of one of the parties is ‘both obvious and gross’, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy life … In the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place.”
64. The Master of the Rolls was speaking at a time when there was no statutory equivalent in England to s.20(2)(i). The law was altered in 1984 so as to require the court to have regard to the conduct of each of the parties where it would be, in the opinion of the court, “inequitable” to disregard it. It would appear, according to the statement of the law in Bromley on Family Law (7th Edition) p.841 that there has been no change in the practice as a result.
65. I would agree with the view expressed in Wachdel -v- Wachdel that the court should not reduce the financial provision which it would otherwise make to one of the parties save in cases where the misconduct has been, as the Master of the Rolls put it, “obvious and gross”. The same approach should logically be adopted to a proposed increase in the level of financial support because of the suggested misconduct.
Conclusions
66. While the judgment of the trial judge was criticised in the written submissions on behalf of the applicant because, as it was said, he had erroneously described the applicant’s assets as being in the region of £20 million, it is clear, from the analysis of his judgment already conducted, that the sum which he ultimately arrived at was calculated by reference to the net disposable assets. While there was some disagreement between the parties as to the precise extent of those assets, it was accepted on behalf of the respondent that they should be ascertained by deducting from the net assets (i.e., the gross assets less any liabilities) the costs, including capital gains tax, which would be incurred by the applicant in disposing of any of them. While there was some disagreement between the parties as to the resultant figure, which mainly concerned the question as to whether the applicant’s practice as a solicitor could be regarded as a disposable asset and the value that should be attached to the paintings and the furniture, it seems clear that the minimum figure was in the region of £14 million. Since counsel for the respondent is clearly correct in his submission that the lump sum of £5 million awarded by the trial judge must, in relation to the net disposable assets of £14 million, be treated as having a present value of £4.6 million, given that it was to be paid by instalments over 18 months, it follows that the effect of the trial judge’s order is to transfer to the respondent 38% of the net disposable assets, while making no provision for periodic payments.
67. In determining whether that was a reasonable exercise by the trial judge of the range of discretion which he was clearly invested with under the legislation, two factors are, in my view, of critical importance.
68. In the first place, it was clearly open to the trial judge to infer from the evidence, as he did, that, in this case, the respondent had effectively relinquished the possibility of establishing herself to a significant degree in her chosen profession in order to concentrate on her role in the home. At the time she married the applicant, she had received both her primary medical degree and also specialist postgraduate qualifications and would undoubtedly have gone on to establish herself as a general practitioner. Although she did not sever her links with the practice of medicine completely at any stage, she undoubtedly gave up the opportunities that the practice of medicine would have afforded her both in terms of income and of personal fulfilment. The court was required to have regard both to this factor and the actual contribution made by her to the marriage and the home. While, on the other side of the scales, the court was required to have regard to the energy and hard work of the applicant which has resulted in the family as a whole enjoying a standard of living far above the expectations of the average person, it also has to be acknowledged that, once he had become married and started a family, this would have been far more difficult for him to achieve without the commitment of the respondent to the home and the family.
69. The second important factor is the relative financial positions of the parties if the provision made by the trial judge is upheld. The applicant will be left with assets in the order of £9.4 million and an income of approximately £210,000. The wife will have assets of approximately £5.6, but her income will be more problematic. As the children of the marriage will be increasingly less in need of her active presence and support, she will be correspondingly free to concentrate on the demands of her professional life. She is, however, re-entering the profession on a full time basis at, in modern terms, a relatively late stage in her life and, in the result, may find it more difficult to generate the sort of income that might otherwise have been available to her. The large capital sum which she was awarded in the High Court should be seen in that context, although, properly managed and invested, it will undoubtedly give her financial security for the rest of her life.
70. It has not been suggested that the trial judge erred in principle in deciding to approach this case on the basis of the payment of a lump sum to the respondent without any provision for periodic payments by way of maintenance. In this context, it would appear that, having regard to the provisions of s.22 of the 1996 Act, neither party will be entitled to a variation of the amount of the lump sum itself, even should circumstances change: the extent of the permitted variation under s.22(1)(d) would appear to be as to the payment of the sum by instalments. Similarly, it will not be possible for the court on the application of the respondent to provide for a periodic sum by way of maintenance, since the power of the court under s.22(2) is confined to varying or discharging an order for periodic payments already made. However, since the case was not approached on that basis either in the High Court or this court, I would also approach it on the basis that, whether or not it is permissible, it is unlikely in the extreme that a court in the future would order the payment of an increased lump sum or payment by way of maintenance. To that extent, the approach of the trial judge appears to have been to have effected a “clean break” between the parties in financial terms insofar as that is permissible having regard to the constitutional and legal provisions; and, given the desirability of avoiding future litigation between spouses whose marriages have irretrievably broken down, I have no doubt that this was the correct approach for him to have adopted.
71. As I have already indicated, I am also satisfied that the trial judge was correct in the approach he adopted of ascertaining the value of the assets as of the date of the trial rather than the time when the marriage broke down.
72. I am further satisfied that, applying the legal principles which I have endeavoured to set out, the trial judge was entitled to exercise his discretion in the manner which he did by awarding the respondent a lump sum of £5 million to be paid in instalments over an 18 month period.
73. There remains the finding by the trial judge as to the pension adjustment order. In my view, applying the legal principles already referred to, I do not think that he was entitled to alter the division which he had considered appropriate of 49% to the applicant and 51% to the respondent. In my view, the misconduct as found by him was not so gross or obvious as to warrant the setting aside of that division and the substitution therefore of the division of 45% to the applicant and 55% to the respondent.
74. In the result, I would dismiss the appeal and affirm the order of the learned High Court judge save to the extent indicated in the preceding paragraph.
THE SUPREME COURT
Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.
Appeal No. 031/2002
Record No. 2000/30M
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
BETWEEN/
D.T.
APPLICANT/APPELLANT
and
C.T.
RESPONDENT
Judgment delivered on 14th October, 2002 by Denham J.
1. Issues
75. This case raises for consideration and decision issues relating to the payment of a lump sum as part of the reliefs available under the Family Law (Divorce) Act, 1996 and a pension adjustment order. While there were proceedings between the parties as to divorce, judicial separation and access to children the kernel of this appeal relates to financial ancillary orders.
2. Appeal
76. This is an appeal by D.T., the applicant/appellant, (hereinafter referred to as “the applicant”) from the judgment of the High Court (Lavan J.) delivered on the 28th November, 2001 and from the order made on the 6th December, 2001.
3. Facts
77. The learned High Court judge found the following facts, which are not in dispute. The applicant was born in 1949 and the respondent in 1952. The parties were married in 1980 according to the rites of the Roman Catholic Church. The applicant sought a decree of divorce and various ancillary orders. The respondent accepted that the grounds established in constitutional and statutory law for divorce existed but counterclaimed for a judicial separation; she made it clear that she did not wish to be divorced. The respondent sought financial orders, including a lump sum order. The learned trial judge described the background facts as follows:
“The applicant and respondent were married on the 29th March, 1980. They have three dependent children of the marriage. The applicant is a solicitor by profession while the respondent is a medical doctor, working as a general practitioner.
Shortly after their marriage in 1980, the parties moved into a house in . . .. At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the respondent worked in the applicant’s practice. The respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the applicant subsequently moved to his present offices in about 1983, the respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.
Their relationship was very turbulent and there were many arguments between the parties, which at times resulted in the applicant leaving the family home and staying overnight elsewhere. Shortly after the parties’ youngest child was born in January, 1989, the parties began to occupy separate bedrooms.
The applicant left the family home in August, 1994. The respondent and the children had gone for a week’s holidays, having no idea of the applicant’s plans. On their return they discovered that the applicant had left the family home and all his possessions had been removed. On his departure from the family home the applicant took up residence in another one of his properties. There is no reasonable prospect of a reconciliation between the parties.
It is the respondent’s belief that the applicant has been unfaithful throughout their marriage. In particular, she believes that at the time the applicant vacated the family home he was involved with a woman some twenty years his junior.
The applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the applicant’s intention to marry his partner on the court granting a decree of divorce herein.
Both parties disagree as to the level of financial adjustments to be made between them. When the applicant initially left the family home the parties continued to operate a joint account which the respondent drew on when necessary. This arrangement continued for 18 months upon which time the applicant unexpectedly closed the account and opened an account in the respondent’s name. The applicant currently pays the respondent a sum of approximately £400 per week by way of maintenance for the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The applicant’s total net assets are somewhere in the region of £20 million, the majority of which come from property. The respondent’s assets in comparison stand at around £1 million.
The respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The respondent re-entered part-time general practice in 1991 on a very limited basis. Between 1990 and 1998 the respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.
The respondent’s work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the respondent and she feels that it is not in her children’s interest that she continues working at this frantic level. Accordingly, she is anxious that lump sum provision be made in order to secure her own and her children’s future.”
4. High Court Order
78. On the 6th December, 2001 the High Court ordered as follows:
“. . . being satisfied with regard to the requirements of section 5(1) of the Family Law (Divorce) Act, 1996, the Court doth grant a decree of divorce in respect of the marriage solemnised in . . .1980 between the applicant and the respondent herein.
and it is ordered –
. . .
3 that the applicant do pay to the respondent the sum of £800 per month for maintenance of the said D until the said D attains the age of 18 years and that the said payment do continue thereafter while the said D is in third level education up to his attaining the age of 23 years;
4. that the applicant do pay to the respondent a lump sum of
£5 million in the following fashion, that is to say:
a. as to a sum of £1 million thereof on or before the 31st day of December, 2001;
b. as to a sum of £2 million thereof on or before the 30th day of September, 2002; and
c. as to the remaining sum of £2 million thereof on or before the 30th day of June, 2003;
5. that the respondent do have the right to occupy for life the family home situate at . . . to the exclusion of the applicant;
6. that the consent of the applicant to convey any interest in the said family home be and same is hereby dispensed with;
7. that 55% of the benefits accrued to the applicant’s . . Policy No. . . and to the applicant’s . . Policy Nos. . . from the date of entry to each individual scheme to the date hereof be paid to the respondent . . .”
5. Notice of Appeal
79. Against the High Court judgment and order the applicant appealed. There were a number of fundamental grounds of appeal: (a) that there was error in fact and law by the learned High Court judge in complying with the terms of s. 20(2) and its subsections; (b) that no proper regard was taken of the provision made on the commencement of the parties living apart; (c) that the finding of the net worth of the applicant was £20 million was unsupported by evidence; (d) that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal; (e) that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately; (f) that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each, and as to the principles to be applied in making “proper provision”; and (g) that the order to make a lump sum payment of £5 million to the respondent was a disproportionate and excessive distribution of the applicant’s assets.
6. Submissions on behalf of the Applicant
80. In essence counsel for the applicant addressed five issues. He submitted that:
(a) the learned trial judge failed to identify correctly the assets of the applicant and the respondent when considering the lump sum;
(b) the learned trial judge failed to have appropriate regard to the income and earning capacity of the respondent;
(c) the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant;
(d) the learned trial judge failed to have regard to the percentage of the applicant’s assets which he acquired after the parties separated and to the contribution made by the applicant to the respondent at the time of their separation; and
(e) the learned trial judge erred in his approach to the conduct of the applicant.
81. Counsel for the applicant submitted that there were six matters which indicated that the respondent should receive a lump sum of less than £5 million. These were:
(i) that there is no finality in this jurisdiction, that the respondent could return to court at any time;
(ii) that the respondent has income and earning capacity of her own;
(iii) that at the time of the separation the applicant transferred assets of approximately £1.5 million to the respondent being approximately one third of his assets;
(iv) that 80% of the applicant’s assets were acquired in two years after the separation;
(v) that the respondent does not have exceptional needs; that the children are substantially provided for or provided for by the applicant; that the applicant has new obligations; and
(vi) that the standard of living of the respondent prior to the separation can be achieved by a sum of less than £5 million.
82. Counsel for the applicant submitted that the learned trial judge failed to have proper account of these six matters.
7. Submissions on behalf of the Respondent
83. On behalf of the respondent it was accepted that the evidence established that the requisite period of separation and the irreconcilable nature of the relations between the parties were such as to satisfy the constitutional and statutory test for the granting of a decree of divorce. The issues on the appeal concerned only the financial arrangements. It was submitted that the court must be satisfied that proper provision is made for the respondent and the children. It was submitted that the test, the approach of the court to financial orders, should be as follows:
(a) the court should apply the statutory criteria set out in section 20;
(b) in evaluating the contributions of both parties to the welfare of the family [in accordance with subs. (2)(f)] the traditional role of women in the home should not be valued lower than the role of the breadwinner, for to do so would be to discriminate;
(c) the assessment of assets should be at the date of trial, save where there was deliberate or reckless wasting of assets;
(d) there is necessarily an interaction between the various financial orders that may be made so that if the court is to make no, or a very low, maintenance order in favour of a spouse, then that must be reflected in a correspondingly high award of a lump sum.
8. The Constitution
84. The Constitution of Ireland, 1937 provides for divorce. Article 41.3.2 of the
85. Constitution provides that:
“A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that,
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or period amounting to, at least four years during the previous five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.”
9. Statute Law
86. The Family Law (Divorce) Act, 1996, (hereinafter referred to as “the Act of 1996”)
87. provides for divorce. The long title to the Act states that it is “an Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce, to enable the courts to make certain preliminary and ancillary orders in or after proceedings for divorce, to provide, as respects transfers of property of divorced spouses, for their exemption from, or for the abatement of, certain taxes (including stamp duty), and to provide for related matters.”
88. Part II of the Act of 1996 is relevant, especially s. 5 which provides:
“S. 5(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that
(a) at the date of the institution of the proceedings the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years.
(b) there is no reasonable prospect of a reconciliation between the spouses and
(c) such provision as the court considers proper having regard to the circumstances exists or would be made for the spouses and any dependent members of the family,
the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned”
89. Section 20 of the Act of 1996 sets out the criteria relating to the making of a financial ancillary relief order. Under s. 20 the court, in deciding whether to make an order under ss. 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such order, shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned. Without prejudice to the generality of subs. (1) in deciding whether to make such an order, and in determining the provisions of such an order, the court shall in particular have regard to certain matters. The matters are set out in the subsections. The wording of s. 20 is as follows:
“(1) In deciding whether to make an order under section 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.
(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:
(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,
(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),
(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,
(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,
(e) any physical or mental disability of either of the spouses,
(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,
(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,
(h) any income or benefits to which either of the spouses is entitled by or under statute,
(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,
(j) the accommodation needs of either of the spouses,
(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,
(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.
(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.
(4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:
(a) the financial needs of the member,
(b) the income, earning capacity (if any), property and other financial resources of the member,
(c) any physical or mental disability of the member,
(d) any income or benefits to which the member is entitled by or under statute,
(e) the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,
(f) the matters specified in paragraphs (a), (b) and (c) of subsection (2) and in subsection (3),
(g) the accommodation needs of the member.
(5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”
10. Proper Provision
90. The Constitution and the law require that proper provision be made having regard to the circumstances for the spouses and any dependent member of the family. In determining the proper provision it is mandatory for the court to have regard in particular to the factors set out in s. 20(2)(a) to (l) of the Act of 1996. The relevance and weight of each of the factors will depend on the circumstances of each case.
91. In this case the learned trial judge, in relation to a number of the factors, stated that he had regard to the provisions, or that he had taken them into account. Better practice would be to consider all the circumstances and each particular factor ad seriatim and give reasons for their relative weight in the case.
92. The wording of the law and Constitution relates to ‘proper provision’. It is a proper provision based on the constitutional and statutory recognition of the family. The special place of the family and of family duties are recognised. In assessing the ‘proper provision’ under Article 41.32 the court must look at both aspects of a spouse’s role in the family, two sides of the coin. Thus the court must have regard to the role of the spouses in relation to the welfare of the family, to their contribution in looking after the home or caring for the family: s. 20(2)(f) of the Act of 1996. On the other side of the coin, the court must have regard to the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each, and the degree to which the future earning capacity of a spouse was impaired by reason of the spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family: s. 20(2)(g) of the Act of 1996. By this total approach to the family role of a spouse and its effect, formal recognition is given to the role of caring for the family.
93. Article 41.3.2 of the Constitution and the Act of 1996 clearly require that value be placed on the work of a spouse caring for dependents, the family and the home. This is consistent with the express recognition within the Constitution of the work done by the women in the home. Article 41.2 provides:
“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.”
94. This Article expresses an important fundamental principle underlying the constitutional family in Ireland. I referred to this Article of the Constitution in Sinnott v Minister for Education [2001] 2 IR 545 at p. 662 to 665.
95. In this case the learned trial judge assessed correctly the family role of the respondent and gave a significant weighting for her time spent in the home. A long lasting marriage, especially in the primary childbearing and rearing years of a woman’s life, carries significant weight, especially if the wife has been the major home and family carer.
11. A “clean break” principle
96. A “clean break” principle may be found in the law as to financial orders relating to divorce in other jurisdictions. However, such a provision is not part of the Irish Constitution or legislation. There is no provision providing for a single payment to a spouse to meet all financial obligations. Rather the fundamental principle is one of “proper provision”. However, the absence of a ‘clean break’ principle does not exclude a lump sum order. The principles of certainty apply to family law as to other areas of the law. Certainty is important in all litigation. Certainty and consistency are at the core of the legal system. However, the concepts of certainty and consistency are subject to the necessity of fairness. Consequently, each case must be considered on its own facts, in light of the principles set out in the law, so as to achieve a just result. Thus while the underlying constitutional principle is one of making proper provision for the spouses and children, this is to be administered with justice to achieve fairness.
12. A lump sum order
97. There is nothing in the Constitution or legislation which prohibits a lump sum as part of a financial ancillary order. In considering whether such an order is applicable the provisions of the Act of 1996 must be applied. A lump sum may be part of the proper provision for a spouse. Once such an order is made it becomes part of the circumstances of the family. If any further application were to be made to court such a previous order would be relevant as having been an order that the court considered proper having regard to the circumstances. The fact that such a lump sum order may exclude or greatly limit any further financial order by a court does not make the provision improper or the order unfair. The underlying principle of the Act of 1996 is fairness. As s. 20(5) provides:
“The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”
98. This concept of justice, fairness, applies to both spouses. A lump sum arrangement may bring a fair financial decision and certainty to the financial affairs of the family. In this case both parties sought a lump sum order, at issue was the amount.
13. Assessment of Assets
(i) Date
99. The learned trial judge held that the assessment of assets must be as of the date of trial or the appeal. I would affirm and uphold this finding. It is consistent with the wording of the statute which refers to “. . . circumstances exist . . .”, “. . . the income . . . which each of the spouses concerned has or is likely to have . . .”, “. . . the financial needs . . . which each of the spouses has or is likely to have . . .”. It is noteworthy that the statute is framed in this manner given that the scheme under the Constitution and the legislation requires separation prior to the proceedings. Thus the ordinary meaning of the words make it clear that assessment is as of the date of trial. However, while the assessment of assets is at the date of the trial or the appeal there may be important factors relevant to that sum to be taken into consideration in determining the proper provision for the spouses. It may impact on the particular factors stated in s. 20(2)(a) – (l) of the Act of 1996, it may be relevant to the generality of the provision, or it may impact on the fairness of the provision. Thus, the fact that a considerable sum of money was acquired by a spouse after their separation, the basis for such a new acquired sum, or the existence of a deed of separation, may be very relevant.
(ii) Not division
100. The scheme established under the Act of 1996 is not a division of property. The scheme established under the Act of 1906 provides for proper provision, not division. It is not a question of dividing the assets at the trial on a percentage or equal basis. However, all the circumstances of the family, including the particular factors referred to in s. 20(2) of the Act of 1996, are relevant in assessing the matter of provision from the assets.
101. The assets in this case acquired post separation by the applicant are property and he has benefited from the great increase in property prices. However, the funding of this property was assisted by his legal practice, which in itself (a) had benefited directly from the work of the respondent by her work as receptionist, cleaner, etc. on occasions, as found by the High Court, and (b) had benefited indirectly by her as the home maker leaving the applicant free to grow the practice. Consequently, such property falls for inclusion under several heads of s. 20 of the Act of 1996.
102. In this case the applicant did acquire considerable property after the spouses separated and before the trial date. However, the acquisition of the property was not unconnected with his solicitor’s practice. The significant role of the respondent in the development of that practice was established before and determined by the learned trial judge. The increased assets of the applicant had a direct link with the input of the respondent in growing the practice, which itself could be said to be a basis for the property acquisition. I am satisfied that the learned trial judge was correct in applying these and other factors so as to include all the applicant’s assets in determining the proper provision of the respondent and the situation of the applicant.
103. Assets should be assessed as at the date of trial. However, there may well be circumstances as to their relevance as an asset base in providing proper provision. Thus if the parties had no joint enterprise (such as a farm or business or professional practice) and one party after separation commenced and achieved success in a wholly new area, that may be a circumstance applicable to the determination of the asset base relevant to proper provision. While the factors set out in s. 20(2)(a) – (l) must be applied it may affect the benchmarking of fairness.
(iii) Benchmark
104. Irish law on divorce does not provide for property division. Indeed it is irrelevant in very many cases where there is not enough money for two homes where one had existed and where lack of money is a severe concern and limiting factor for both spouses and children. In cases of ample provision, such as this, the sums involve more than essentials. Each case must be decided on its own circumstances. However, there are relevant fundamental legal principles – such as to recognition of spouses’ work in the home – as to spouses’ rights under the Succession Act – as to the place of the family in our society. Consequently, I agree with the Chief Justice that a figure of one third of the assets may be a useful benchmark to fairness. Against that bench may be aligned, both positively and negatively, the specific circumstances of a case, and in particular the factors set out in s. 20(2)(a) – (l) of the Act of 1996.
105. The concept of one third as a check on fairness may well be useful in some cases, however it may have no application in many cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means if, for example, such a sum could only be achieved by a sale of assets which would destroy a business, or the future income of a party or parties, or if it related to property brought solely by one party to the marriage, or any other relevant circumstance. It may not be applicable to a situation where a party has wealth from his or her own endeavours to which the other party has no claim except under the factors set out in s. 20(2)(a) – (l) of the Act of 1966.
(iv) Value of assets
106. There were some inconsistencies between the figures found in the judgment of the learned trial judge and the evidence as to the assessment of the assets of the applicant. I am satisfied that the figure of £20 million was incorrect. This was accepted by both sets of counsel. Counsel for the applicant made the case that the net assets of the applicant were approximately £14 million. Counsel for the respondent put the figure nearer to £15 million. Similarly, there was disagreement as to the respondent’s net assets. Counsel for the applicant placed them nearer to £1.5m while counsel for the respondent placed them at a slightly lower figure. However, within these broad parameters there was agreement. Counsel did not seek a retrial. Counsel sought finality in this case.
107. The finding of the net worth of the applicant to be £20 million was unsupported by evidence. In light of the variation between the evidence given in the High Court and the findings of the High Court, applying Hay v O’Grady [1992] 1 I.R. 210, I am satisfied that it is appropriate to determine the facts on the evidence given. I am satisfied that this is a decision within the principles of Hay v O’Grady, taking into consideration also that both parties urged determination of the matter, to reach finality in the case, and to find the fair conclusion. On the evidence I am satisfied that the appropriate figures are that the applicant had an estate of approximately £14.5 million and the respondent had an estate of just over £1 million at the date of trial.
(v) Lump sum of £4.6 million
108. In this case, because of the scheme of payment ordered, the lump sum is worth £4.6 million approximately. I would not interfere with the exercise of discretion by the learned High Court judge in making this determination. There is no maintenance order for the respondent. In its place is an additional capital sum to give security to the respondent, which is not unreasonable in the circumstances. As the right of succession is being given up it is legitimate not only to have that as a factor in mind, but also to consider the fact that it is legitimate for a spouse to have some independent estate to leave to her children. This is so especially if there are children existing or potential in a subsequent marriage of one spouse.
(vi) Earning capacity of respondent
109. It was submitted that proper regard had not been given to the income of the respondent. It is clear from the facts found by the High Court that the learned trial judge carefully considered her professional and work life in the past, present and the future. Clearly it was very limited work while she was the home and child carer. Her move back to work in her forties was analysed. This work involves a limited income. The limitation was found to be because of her prior and present home circumstances. The learned trial judge made a clear determination of the facts, grounded on the evidence. As to the precise future income of the respondent, I am satisfied that the learned trial judge did not fail to have regard to either the income or earning capacity of the respondent. However, it would be of assistance if such factors are considered in an express manner and reasons for decisions given.
(vii) Financial needs of the applicant
110. Counsel for the applicant submitted that the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant. However, I am satisfied that this submission must fail. In fact, the learned trial judge considered the needs of both spouses. Recognition was given to the applicant’s second family and the learned trial judge referred specifically to the presence of a child of the new family. I would not interfere with the exercise of the discretion of the learned trial judge. While it is better practice to consider more expressly the needs of the parties in the circumstances of this case I would not allow the appeal on this basis.
111. While the mandatory provisions of s. 20(2) must be considered, the weight to be given to the issue of needs may vary. In a case where money is tight ‘needs’ may weigh heavily. In a situation where ample resources are in issue a more detailed analysis of the ‘needs’ of the parties may not be necessary and may not be weighted too heavily. Thus in the situation where the applicant will leave the marriage with millions of pounds and his practice and the respondent will have millions of pounds and her work there are clearly ample resources to meet needs. There are no exceptional requirements in this case calling for special consideration.
(viii) Conduct
112. Counsel for the applicant submitted that the learned trial judge erred in his approach to the analysis of the conduct of the applicant. The learned High Court judge held at p. 22 to 23 of the transcript of the judgment:
“One outstanding matter that has given me much difficulty is the specific provision of s. 20(2)(1) of the Family Law (Divorce) Act, 1996. It seems to me on the evidence that I am obliged, in exercise of the discretion which undoubtedly arises, to take it into account. In doing so this creates a further difficulty, namely how to quantify it and in this regard I note that the particular provision does not offer any formula for its proper assessment. I note that McGuinness J. in her judgment and McCracken J. in his judgment did not deal with this aspect.
In these circumstances I propose, from a monetary point of view to deal with it by way of what I consider to be a proper adjustment of pension provisions in favour of the respondent.
. . .
In respect of the pension provisions as set out in the Delaney Bacon and Woodrow report dated the 10th July, 2001, I would have been disposed to divide this to the applicant as to 49% and the respondent as to 51%. However, having regard to the view I have expressed as to the taking into account of s. 20(2)(1) of the aforesaid Act of 1996 I will in deference to my findings thereunder allow a finding of 45% to the applicant and 55% to the respondent.”
113. The Act of 1996 makes provision for the court to have regard to the conduct of the parties. Specifically the Act states in s. 20(2that the court shall have regard inter alia to:
“(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it.”
114. The circumstances of this case include the facts leading to the breakdown of the marriage and the applicant’s application for a divorce. These are part of the circumstances of the case. The facts as to the applicant’s affairs and ultimate relationship and child outside marriage do not equate with a concept of ‘conduct’ set out in s. 20(2)(i), which has an element of penalty. It is unfortunate that the circumstances of the family are such as they are but the Act of 1996 does not seek to establish a fault system. Thus the concept of ‘conduct’ established by s. 20(2)(i) is of conduct which it would be unjust to disregard. There is little Irish law on the interpretation of such a factor. The law in England is a useful analogy. Specifically I refer to the description by Denning M.R. in Wachtel v Wachtel [1973] All E.R. 829 at p. 835 to 836 where he stated:
“There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words ‘both obvious and gross’, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”
115. I adopt this description and apply it to the circumstances of this case.
116. The circumstances of this case are relevant to many of the factors set out in s. 20(2(a) – (l) of the Act of 1996. This includes the fact that the applicant left the home, and the fact that the applicant is in a second relationship with a child. These and other factors affect the proper provision for the spouses and dependent children of the family. These circumstances have been correctly taken into account in assessing the lump sum. However, I am satisfied that the learned trial judge erred in penalising the applicant by his pension adjustment order on the basis of the conduct of the applicant.
(ix) Conclusion
117. It was submitted that there was an error in fact and law by the learned trial judge in complying with s. 20(2) of the Act of 1996. The learned trial judge indicated that he was applying the provision of s. 20(2) of the Act of 1996. From the body of the judgment it is clear that he did analyse and apply the said provisions of s. 20(2) to the facts of this case. While it would be better practice to refer ad seriatim to each of the provisions of s. 20 and to give reasons for the relevance and weight of each subsection to the determination, in all the circumstances of the case I am satisfied that this ground of appeal fails. The discretion given by the legislature to the trial judge under this scheme is ample. In view of the submissions of counsel and the facts of the case I would not allow the appeal on this ground.
118. It was submitted that no proper regard was taken of the provision made on the commencement of the parties living apart. In assessing the assets and circumstances of the parties the situation on their separation was an integral part of the whole analysis. The determination made by the court was for the long term and without provision for maintenance for the respondent. A lump sum was sought by both parties. In light of the ample discretion vested in the trial judge, the circumstances of the case, the use of the lump sum as a provision, I would not interfere with the exercise of discretion by the learned trial judge.
119. The applicant submitted that the finding that the net worth of the applicant was £20m was unsupported by evidence. As indicated previously, I am satisfied that there was not evidence to support a finding that the applicant was worth £20m. There was a degree of confusion in the judgment as to this fact. As indicated above, on the evidence I am satisfied that the net worth of the applicant was approximately £15m. I would allow the appeal on this ground.
120. It was submitted that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal. For the reasons stated previously I would dismiss this ground of appeal.
121. It was submitted that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately. For the reasons stated herein I would dismiss this ground of appeal.
122. It was submitted that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each and as to the principles to be applied in making “proper provision”. The discretion set out in s. 20(2) of the Act of 1996 is ample, and while it would be better practice to consider and determine ad seriatim with reasons each of the matters set out in the said s. 20(2), for the reasons given I would not interfere with the exercise of the discretion of the learned trial judge and I would dismiss this ground of appeal.
123. The applicant submitted that the order of a lump sum payment was disproportionate and excessive. For the reasons given I would dismiss this ground of appeal.
124. Having considered the appeal, and submissions, for the reasons stated, while not upholding all the reasoning of the High Court, I would uphold the provision for a lump sum as ordered (with the obvious need for variation in the dates).
125. However, for the reasons stated, I would allow the appeal in relation to the pension order. The appropriate order in relation the pension would be as prior to adjustment, that is 49% to the applicant and 51% to the respondent.
THE SUPREME COURT
Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.
Appeal No 031/2002
Record No 2000/30M
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
Between:
D. T.
Applicant/Appellant
AND
C. T.
Respondent
Judgment of Mr Justice Francis D Murphy delivered the 14th day of October , 2002
126. By order dated the 6th December, 2001, Mr. Justice Lavan granted a decree of divorce in respect of the marriage solemnised between the applicant and the respondent herein on the 29th March, 1980. In addition to ordering the payment of maintenance for the benefit of the two children of the marriage the order provided as follows:-
1. that the applicant should pay to the respondent a lump sum of £5,000,000 by instalments over a period of three years;
2. that the respondent should have the right to occupy for life the family home to the exclusion of the applicant;
3. that 55% of the benefits accrued under certain life insurance policies therein mentioned should be paid to the respondent;
4. that neither spouse should be entitled on the death of the other of them to apply for an order under s. 18(10) of the Family Law (Divorce) Act 1996;
5. that the applicant should pay to the respondent her costs of the proceedings when taxed and ascertained.
127. The reasons for the order aforesaid were set out in the judgment of the learned trial judge delivered on the 28th November, 2001. By notice of appeal dated the 8th February, 2002, the applicant has appealed to this Court against so much of the judgment and order aforesaid as:-
1 directed the applicant/appellant to pay to the respondent the sum of £5,000,000 by way of lump sum payment;
2 directed the making of the pension adjustment order in favour of the respondent;
3 awarded the costs of the proceedings to the respondent.
128. The applicant is 53 years of age. The respondent is four years his junior. They have three children only one of whom is dependent on them. The applicant is and has been a very successful solicitor and the respondent is a medical doctor. She has worked as a general practitioner but her commitment to the family has prevented her from exercising her professional qualifications to the full or expanding her practice to its probable potential. The applicant has – particularly in recent years – invested very substantially and successfully in property.
129. The applicant left the family home in August, 1994. The parties have lived apart since that time. The applicant is currently in a relationship with a new partner. It is agreed that there is no reasonable prospect of a reconciliation between the parties. It was in relation to the provision to be made for the respondent that the parties disagreed.
130. As at the date of the hearing in the High Court the combined wealth of the parties was very substantial indeed. It would appear from the documents exhibited in evidence that the total value of the assets of the applicant was not less than £15 million and that his income (before tax) from his practice as a solicitor in that year was £334,335. The assets of the respondent were valued at something under £1.25 million and her income from her profession as a doctor was in the order of £25,000 (again before tax). No precise analysis appears to have been made of the income and assets of the parties as of August, 1994 but it must have been very substantially less than it was to become six years later. Almost certainly the assets of the applicant were less than £2 million and his professional gross income under £150,000. I infer that the assets and income of the respondent, at that stage, were not such as would have materially affected the standard of living of the parties even if the recommencement in 1991 by the respondent of her professional practice did give her a measure of independence and possible future security.
131. If great wealth can solve some problems, it can create others. If there is validity in the distinction between routine divorce cases and what has been described as “big money” cases the present matter undoubtedly falls into the latter category. However, even within that category it might have been expected that the legal and constitutional rights of the parties could be met by the type of analysis of fact and finance such as was undertaken by McCracken J. in Mc A .v. Mc A [2001] 1 I.R. 457. In that case, however, McCracken J. was not called upon to decide any significant point of law in relation to the financial provisions which he was required to make or approve. The judgment – what I think may be described as the revolutionary judgment – of the House of Lords in White .v. White [2001] 1 AC 596 was not delivered until some nine months after the decision in the Mc A .v. Mc A case. It might be said that the issue in the present appeal concerns the extent, if any, to which the principles laid down by the House of Lords in White .v. White for the interpretation of the UK Matrimonial Causes Act, 1973 (as amended) should be applied in the interpretation in this jurisdiction of the Family Law (Divorce) Act, 1996, which, in its detail is “uncannily similar” to the provisions of the UK legislation (see: Conor Power “Equality in Ancillary Relief” (2001) IFLJ 24).
132. The basic facts of White .v. White were relatively simple, if somewhat tragic. Both husband and wife were dedicated farmers who, after their marriage in 1961, farmed substantial holdings together under the terms of a written partnership agreement. By the time they separated in 1994 their combined assets amounted to £4.6 million of which, as Holman J. held, £1.52 million belonged to the wife. The High Court Judge then went on to express the view that the reasonable requirements of the wife would entail the buying and equipping of a suitable house which he estimated would cost £425,000 and an income which he capitalised at £555,000. From the total of £980,000 certain pensions fell to be deducted leaving a lump sum of £795,000 which he rounded up to £800,000. This was a sum he directed to be paid by the husband to the wife on a “clean break” basis. The learned Judge did, however, recognise that in limiting the payment to £800,000 he in fact benefited the husband to the extent of £700,000 from the assets of his wife. The Court of Appeal (consisting of Butler Schloss, Thorpe and Mantel L.JJ.) though applying substantially the same principles as those set out in the judgment of Holman J. required the husband to pay to the wife the sum of £1.52 million being the full amount of the estimated value of the wife’s proprietary share of the total assets. From that decision both parties appealed to the House of Lords: the husband seeking the restoration of the order of the High Court and the wife claiming an equal share with the husband in the combined assets. Both appeals were dismissed. In his speech with which the rest of the Court agreed Lord Nicholls of Birkenhead rejected the principle of equality or the ascertainment of “reasonable requirements” of either spouse as being determinative of the amount to be paid to a spouse under the UK Matrimonial Causes Act, 1973 (as amended) on or after the making of a decree of divorce. The decision in White .v. White by the House of Lords was of enormous importance in the UK. As Lord Nicholls pointed out, that case gave the House of Lords an opportunity to review the legislation in this important area. He expressed his observations in that respect (at p. 600) in the following terms:-
“The powers conferred by the 1973 Act have been in operation now for 30 years. This is the first occasion when broad questions about the application of these powers have been considered by this House…. It goes without saying that these principles [the principles trial judges should apply when hearing applications for financial relief in divorce proceedings] should be identified and spelled out as clearly as possible. This is important, so as to promote consistency in court decisions and in order to assist parties and their advisors and mediators in resolving disputes by agreement as quickly and inexpensively as possible. The present case is an unhappy, if extreme, example of how the parties’ resources can be eroded significantly by legal and other costs.”
133. Having dealt with the facts of the case Lord Nicholls went on to examine the statutory provisions and how they had evolved from the Matrimonial Causes Act, 1857. He explained how a fresh start was made by the Matrimonial Proceedings and Property Act, 1970, following upon the report of the Law Commission prepared in 1969 under the chairmanship of Scarman J. The Act of 1970 was subsequently re-enacted in substantially the same terms by the Matrimonial Causes Act, 1973. Sections 23 and 24 of the Matrimonial Act 1973 empowered the court, on granting a decree of divorce and in certain other circumstances, to make financial provision orders and property adjustment orders. Section 25 of the Act of 1973 (as substituted by the s.3 of the Matrimonial and Family Proceedings Act, 1984) set out a list of matters which the court is to have regard to in deciding how to exercise those powers. That list is virtually identical with the comparable provisions of s.20 of our Act of 1996. That similarity would encourage any observer to pay particular attention to the speeches in White .v. White in interpreting the Act of 1996. However, notwithstanding the widespread similarities there are fundamental distinctions to be noticed in the legislative provisions in the two jurisdictions.
134. Again it was Lord Nicholls who pointed out that s.5 (1) of the United Kingdom Act of 1970 having set out a list of factors to be taken into account by the court contained what he described as “the tail piece” which declared what should be the objective of the court when exercising its statutory powers to make financial provision orders and property adjustment orders. The statutory objective was:-
“… to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.”
135. That tail piece was later deleted from the legislation and, as was noted, nothing was inserted in its place. It was that lacuna which the House of Lords filled by ascertaining an implicit objective in the following terms at pp. 604-605:-
“In consequence, the legislation does not state explicitly what is to be the aim of the courts when exercising these wide powers. Implicitly the objective must be to achieve a fair outcome. The purpose of these powers is to enable the court to make fair financial arrangements on or after divorce in the absence of agreement between the former spouses: see Thorpe L.J. in Dart .v. Dart [1996] 2 FLR 286, 294. The powers must always be exercised with this objective in view, giving first consideration to the welfare of the children.”
136. In accordance with the objective of fairness the House of Lords pointed out that this goal was inconsistent with discrimination against a spouse – traditionally the wife – whose contribution to the marriage was historically made in domestic and social areas the value of which was not reflected in any apparent financial terms. It was emphasised that the division of assets between spouses on a divorce should not be biased in favour of the money earner against the home maker and child carer. The principal speech went on to point out that it would sometimes happen that a judge having carried out the statutory exercise would reach a conclusion involving a more or less equal division of the available assets. However, Lord Nicholls pointed out that this would happen less, rather than more, often. However the decision went on to make the following suggestion at p. 605:-
“Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality and division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.”
137. However, having offered that useful advice, Lord Nicholls went on immediately to issue a warning in the following terms at pp. 605-606:-
“This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by Parliament 30 years ago, enable the courts to recognise and respond to developments of this sort. These wide powers enable the courts to make financial provision orders in tune with current perceptions of fairness. Today there is a greater awareness of the value of non financial contributions to the welfare of the family…. Despite these changes, a presumption of equal division would go beyond the permissible bounds of interpretation of section 25. …. A presumption of equal division would be an impermissible judicial gloss on the statutory provision. That would be so, if though the presumption would be rebuttable. Whether there should be a presumption in England and Wales, and in respect of what assets, is a matter for Parliament.”
138. On that analysis Lord Nicholls rejected the appeal of the wife to treat the principle of equality as “the starting point” in relation to the division of the assets of the husband and wife. The House of Lords then turned to the argument made on behalf of the husband. Again, Lord Nicholls traced the evolution of what he described as “the alluring phrase of ‘reasonable requirements'”. It was first coined by Ormrod L.J. in O’D .v. O’D [1976] Fam. 83 where he suggested that the position of the wife should be considered “not from the narrow point of ‘needs’ but to ascertain her reasonable requirements”. It was recognised that reasonable requirements were more extensive than reasonable needs. This approach was rejected by Lord Nicholls as being unjustified by the relevant legislation. He said at p. 607:-
“This conclusion, I have to say, seems to me worlds away from any ordinary meaning of financial needs. Moreover, this conclusion gives an artificially strained meaning to reasonable requirements, the more-
especially as this phrase was adopted originally as a synonym for financial needs”.
139. He then went on to say at p. 608:-
“The statutory provisions lend no support to the idea that a claimant’s financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative.”
140. An observation contained in the principal speech which must be of great practical importance in the United Kingdom is set out on p. 608 in the following terms:-
“But I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent became immaterial once the claimant wife’s financial needs are satisfied. Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court’s assessment of her reasonable requirements, and the husband left with a much larger share? Or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with a much larger balance. But the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division.”
141. Lord Nicholls urged the abandonment of the expression “reasonable requirements” and the application instead of the language of the relevant statute. Similarly, in K. (M) v. P. (J). (orse. K. (S)) (Unreported, Supreme Court, 6th November, 2001) McGuinness J. stated that the Irish courts should be guided in the exercise of their discretion by the provisions of the statute:
“The provisions of the 1996 Act leave a considerable area of discretion to the Court in making proper financial provision for spouses in divorce cases. This discretion, however, is not to be exercised at large. The statute lays down mandatory guidelines. The Court must have regard to all the factors set out in section 20, measuring their relevance and weight according to the facts of the individual case. In giving the decision of the Court, a judge should give reasons for the way in which his or her discretion has been exercised in the light of the statutory guidelines.”
142. It may be surprising in the light of the observations of the learned Judge that his conclusion and that of the House of Lords upheld the decision of the Court of Appeal who had reached their conclusion by identifying what that court had described as “the reasonable requirements” of the wife.
143. It is not surprising that the decision in White .v. White gave rise to considerable discussion and debate in legal and academic circles as well as a flood of literature which continues to debate whether equality is a relevant yardstick in determining the division of property between a husband and wife in “big money” divorce proceedings (see: Brasse, “White v. White – A Return to Orthodoxy?” 31 (2001) Fam. Law 191;
144. Miles, “Equality on Divorce?” 60 (2001) CLJ 46 and Northover and Peat “Cowan – Departure from Equality of Division” 31 (2001) Fam. Law 510 at p. 512). In his analysis of the judgment of Lord Nicholls, Thorpe L.J. in Cowan v. Cowan [2001] 3 WLR 684 stated that:
“The decision in White v. White [2001] 1 AC 596 clearly does not introduce a rule of equality. The yardstick of equality is a cross-check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure. However it would seem to me undesirable for judges to be drawn into too much specificity, ascribing precise percentage points to the various and often counter-balancing reasons which the facts of individual cases render relevant.”
145. Thorpe L.J. then went on to summarise the English position as follows:
“In summary therefore these seem to me to be the consequences of the House of Lords’ recent review of the ancillary relief cases in this court. (i) Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25. (ii) Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution. (iii) Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as breadwinner and arbiter of the destination of the family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross-check against such discrimination. (iv) Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements….”
146. A fundamental distinction between the United Kingdom legislation and the Irish Act of 1996 is the absence from the United Kingdom legislation, as Lord Nicholls explained, of any clause expressly stating the objective of the financial orders to be made by the court and the presence in the Irish legislation of an express and positive obligation imposed in accordance with the requirements of Article 41.3.2.ii of the Constitution that the court must be satisfied that proper provision has been made for each spouse. As stated by McCracken J. in M.Mc.A. v. X.McA. [2000] 1 IR 457, at p. 463:
“It must be borne in mind that the right to a divorce in this country is a constitutional right arising under Article 41.3.2 of the Constitution, and that the Act of 1996, sets out the circumstances under which such constitutional right may be exercised.”
147. The people in the referendum by approving the fifteenth amendment of the Constitution in the Act of 1995 permitted the abolition of the longstanding constitutional barrier to divorce but only on terms that where legislation empowered the granting of a decree of divorce that “such provision as the court considers proper” would be made for each spouse. Such provision would appear to be a condition precedent to the granting of a decree of divorce. The narrow requirement that a spouse was entitled to a periodic payment to meet his or her – usually her – needs or that each spouse was entitled to such a payment to meet his or her reasonable requirements is not the test in this jurisdiction. The statutory and constitutional test and requirement is that there must be proper provision irrespective of by whom it is provided. What that will amount to in any particular case will depend upon the examination of the factors set out in s. 20 of the Act of 1996 and the exercise by the trial judge of his discretion within the application of those principles.
148. Apart from the difference in legislation there is a fundamental distinction to be made between the proceedings in the present matter and those in White .v. White. In the English case the court was concerned to ascertain the terms on which the parties could make what is described as “a clean break”. In this jurisdiction the “clean break” is not an available option. This point was highlighted by McGuinness J. in K. (M) v. P. (J). (orse. K. (S)) (Unreported, Supreme Court, 6th November, 2001) when she stated:
“The concept of a single capital payment to the wife to meet her ‘reasonable requirements’ for the remainder of her life has never in fact formed a part of Irish family law. There are two main reasons for this. Firstly, such a capital payment is inevitably a part of a ‘clean break’ settlement in divorce proceedings. In this jurisdiction the legislature has, in the Family Law (Divorce) Act, 1996, laid down a system of law where a ‘clean break’ solution is neither permissible nor possible. Secondly, the approach of the Irish courts, in accordance with both Article 41.2 of the Constitution and the statutory guidelines, has been to give full credit to the wife’s contribution through her work in the home and as a mother to her children. (See, for example, J.D. v. D.D. [1997] 3 I.R. 64. In this jurisdiction the overriding requirement of a fair outcome is governed by section 20(5) of the 1996 Act:-
‘The Court shall not make an order under a provision referred to in sub-section (1) unless it would be in the interests of justice to do so.'”
149. The combination of the clean break and the objective of achieving fairness has led the courts in England to approaching that sort of case as a division of assets. Lord Nicholls repeatedly refers to the division of assets and has emphasised the necessity of achieving fairness in that context. Indeed it would be difficult to conceive of “fairness” as an object in itself as distinct from a particular standard by which an identified objective was achieved. The Act of 1996 and the constitutional provision pursuant to which it was enacted makes no reference to division. In any divorce proceedings the court in making an order approving or imposing financial dispositions in favour of a spouse is concerned with provision and not division. It is of course obvious that the court does have powers to make adjustment of property orders which, to some extent, might have the appearance of division of property but any such order is ancillary to the periodic payments which would ordinarily be the means by which provision would be made for the disadvantaged spouse. Not only does the Act of 1996 make no provision for a “clean break” between the separating couple but clearly the scheme of this Act is that the continuing provision for what I have described as the disadvantaged spouse should, in accordance with the provisions of s.13 (5)(a) terminate on the remarriage of that spouse. It would seem unwise for the paying spouse to agree to a lump sum order or a property adjustment (and unfair for the court to impose one) which would enable the receiving spouse to continue to enjoy provision notwithstanding his or her remarriage and with it the cesser of his or her statutory entitlement to be provided for.
150. Counsel on behalf of both parties urged this court to make whatever adjustments it thought fit to resolve the dispute between them without the necessity of the matter being remitted to the High Court for further proceedings which would undoubtedly involve costs and perhaps accentuate differences. Whilst I am fully sympathetic to that course I do not believe it is possible. The proceedings in the High Court in this matter were in fact dominated by the existence of the substantial assets which were acquired by Mr. T. in recent years and the value of which has escalated enormously in that relatively brief period. Very regretfully I believe that the matter must be remitted to the High Court to enable it to determine the “proper provision” to be made for each spouse. Before embarking on that course it is self evident that the parties must agree, or the judge must determine, what the proprietorial rights of each of the parties are. Under our legislation that course is unavoidable. The court must know at least in approximate terms the property and income available to each party before it can proceed to determine what more must be added to ensure that each party has been properly provided for. In that context I have no doubt that the relevant date is the date of the hearing by the court granting the decree of divorce. Counsel in this court understandably, in my view, raised the question whether an outstanding issue as to whether proper provision had been made could cast doubt upon the validity of the decree of divorce notwithstanding the fact that neither party sought to challenge that decree in the appeal proceedings. Undoubtedly proper provision is linked to the divorce decree and accordingly should, in my view, be ascertained as of the date of the decree.
151. On the other hand, other material factors prescribed in s.20 of the Act of 1996 will fall to be dealt with as of different dates and perhaps different periods. Indeed s.20 (2) (c) expressly provides that in considering the standard of living enjoyed by the family concerned the relevant period is either the period before the proceedings were instituted or before the spouses commenced to live apart from one another. Clearly that factor can only be considered in the present case by reference to a period prior to August, 1994. On the other hand contributions made by each of the spouses to the welfare of the family and calling for consideration under para. (f) of the subs. 2 aforesaid will range back over a long period.
152. Having established the proprietorial rights – be they legal or equitable: vested or contingent – of each party and their existing and potential future incomes the court will have the difficult task of determining what is required by the constitutional imperative of “proper provision”. Obviously the term itself and the criteria identified in s.20 aforesaid makes it clear that this is far beyond mere “needs” and probably exceeds what is comprised in the alluring term of “reasonable requirements”. Indeed I would have thought that “the tailpiece” originally contained in s.5 of the United Kingdom Matrimonial Proceedings and Property Act, 1970 might provide helpful guidance as to what is sought if it had been incorporated in the Irish legislation but with the words in brackets deleted and so as to read:-
“To place the parties, as far as is practicable [and having regard to their conduct, just to do so] ….in the financial position in which they would have been if the marriage had not broken down and each properly discharged his or her financial obligations and responsibilities towards the other.”
153. It is unlikely that on the breakdown of a marriage that both parties will continue to enjoy the standard of living which they had achieved together but it would not seem to me proper to invite either party to accept less if that is available. On the other hand, unlike Lord Nicholls, I have no difficulty in accepting that neither party is entitled to more. If there is a surplus beyond making proper provision I see no reason why the party entitled to that surplus should not retain it. This is in no sense discriminatory. If an impoverished man were to marry a wealthy heiress and he – whether through illness or indolence – contributed little or nothing in financial contribution or social commitment to the marriage he would be still entitled under Irish law to have proper provision made for him on the dissolution of the marriage. That having been achieved, and a surplus remaining, I see no reason why it should not be retained by the heiress. The significance of either party to a marriage having substantial assets or significant income is that these are factors which would determine the lifestyle of the married couple and to a large extent dictate the nature of the provision which would properly be made for each of them. Regretfully I can find no formula by which this can be achieved. Clearly in recent years attention has been focused on equality. Previously a view was taken that one third of the combined assets might be an appropriate starting point from which to calculate the share of the wife: Wachtel v Wachtel [1973] 2 W.L.R. 652. In earlier days, when the only relief available in this jurisdiction was a decree of divorce a mensa et thoro, similar fractions were relied on very largely on the basis that an order requiring a husband to pay a larger fraction of his income would discourage him from continuing to work.
154. It may be little consolation to litigants or their advisors but in the final analysis one can but recognise that our current legislation requires that proper provision be made for each spouse (whether male or female) and that in reaching that objective the court is bound to have regard to the factors set out in s.20 in the Act of 1996 aforesaid. It may be that the wisdom of the parties and the encouragement of their legal advisors may enable them to negotiate a settlement which the court could approve under the provisions of the Act of 1996. If that cannot be done I see no alternative but to remit the matter to the High Court to determine the proper provision to be made for, as it happens in this case, the wife. As a matter of law I would merely add that I believe that the decision in White .v. White and the observations contained therein would be of very little assistance in interpreting the Irish Act of 1996 notwithstanding the many similarities between the United Kingdom and the Irish legislation.
The Supreme Court
Keane, C.J.
Denham, J.
Murphy, J.
Murray, J.
Fennelly, J.
Appeal No. 031/2002
Record No. 2000/30M
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
BETWEEN/
T.
APPLICANT/APPELLANT
and
T.
RESPONDENT
Judgement delivered on the 14th October, 2002 by Murray, J.
155. The parties to these proceedings were granted a decree of decree of divorce by order of the High Court dated the 6th day of December, 2001 in respect of the marriage solemnised between them on the 29th of March, 1980.
156. The issues in this appeal stem from the dispute between the parties which are the nature and extent of the financial provisions to be made for the Respondent should the Appellant be granted a decree of divorce. These are core issues because it is a constitutional precondition that proper provision be made for spouses and their children before a Court may make an order granting dissolution of a marriage. This pre-condition is repeated in the Family Law (Divorce) Act 1996. No issue arises in this appeal concerning proper provision for the children of the spouses.
The fundamental issue in the appeal before the court, therefore, is whether the High Court Order fulfils the constitutional and statutory requirement that “such provision as the Court considers proper having regard to the circumstances exists or will be made …” for the Respondent spouse. The Family Law (Divorce Act) 1996 makes provision for and regulates the exercise by the courts of the jurisdiction created by the Constitution to grant decrees of divorce. Section 5(1) of the Act repeats the constitutional requirement that proper provision be made for the spouses as a pre-condition to the granting of such a decree of divorce.
In exercising its jurisdiction the Order of the High Court made provision for the Respondent by providing: –
“(a) That the Applicant should pay to the Respondent a total sum of £5,000,000 by instalments over a period of 3 years;
(b) That 55% of the benefits accrued to the Applicant under specified life insurance policies should be paid to the Respondent;
(c) That neither spouse should be entitled on the death of the other to apply for an order under section 18(10) of the Family Law (Divorce) Act, 1996;
157. The facts and circumstances of the case, including the legal issues raised and the arguments of the parties, have been comprehensively set out in the judgement of the Chief Justice. I am in agreement with the Chief Justice that the appeal should be dismissed to the extent specified in the order which he proposes that the court should make. I do however wish to address certain of the issues which have been raised in this appeal.
First of all some preliminary observations. It is common case that the discretion conferred on the courts in the exercise of their jurisdiction to grant a divorce is extremely broad. The very general statement in Article 41.3.2.iii of the Constitution that the courts must satisfied that proper provision has been made for spouses “having regard to the circumstances” is reflected in the broad and general manner in which the relevant provisions of the 1996 Act are framed. Section 20 of the Act, which is set out in full in the judgment of the Chief Justice, describes an extensive range of factors to which the court shall have particular regard in deciding whether or not to grant a decree of divorce. The weight to be attached to each of these matters will always depend on the particular circumstances of the case. Often many of the factors mentioned in section 20 will have no pertinence to the particular case and therefore will not be taken into account. The Oireachtas studiously avoided giving any prescriptive guidelines as to how the court should deal with the income and assets of the parties in making proper provision for the spouses. I draw attention to the particularly broad discretion conferred on a court in order to emphasise that while this court may decide on principles which should guide a court when exercising its jurisdiction under the Act, the very broad discretion conferred on a judge hearing a case of this nature will still remain to be exercised having regard to the circumstances of any particular case. Furthermore, it must be borne in mind that this is a case which the Chief Justice has aptly described as an “ample resources case”, which has the effect of giving full reign to the discretion which a court exercises in such cases. Normally, even in cases where the parties might be considered to enjoy a substantial decree of financial comfort, the finite resources of the parties will be an underlying prescriptive factor in the exercise of a discretion as to how those resources can be applied in making proper or fair provision for both spouses.
158. The particular circumstances of this case, therefore, are likely to be the exception rather than the rule, something to be borne in mind when considering how the issues in the case are resolved.
159. While the facts and the circumstances of the parties are comprehensively set out in the judgment of the Chief Justice I would like to recall here, in order to put matters in context, some of the salient features of the case as summarised by the learned High Court Judge in his judgment: –
“The Applicant and Respondent were married on the 29th March, 1980. They have three dependant children of the marriage. The Applicant is a solicitor by profession while the Respondent is a medical doctor, working as a general practitioner.
Shortly after their marriage in 1980, the parties moved into a house in … . At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the Respondent worked in the Applicant’s practice. The Respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the Applicants subsequently moved to his present offices in about 1983, the Respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.
The relationship was very turbulent and there were many arguments between the parties which at times resulted in the Applicant leaving the family home and staying overnight elsewhere. …
The Applicant left the family home in August, 1994… There is no reasonable prospect of reconciliation between the parties. …
The Applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the Applicant’s intention to marry his partner on the court granting a decree of divorce herein.
Both parties disagree as to the level of financial adjustments to be made between them. …
The Applicant’s total assets were somewhere in the region of £20 million, the majority of which came from property. The Respondent’s assets in comparison stand at around £1 million.
The Respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The Respondent re-entered part-time general practice 1991 on a very limited basis. Between 1990 and 1998 the Respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the Respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.
The Respondent’s work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the Respondent and she feels that it not in her children’s interest that she continues working at this frantic level. Accordingly, she is anxious that lump-sum provision be made in order to secure her own and her children’s future.”
160. As explained by the Chief Justice in his judgment the value of the net assets of the Applicant as of the time of his application for a divorce to the High Court maybe considered as approximately £14 million. The value of the lump sum award made by the High Court to the Respondent represents approximately 38% of that valuation.
‘Proper Provisions’ for the spouse
161. The duty of the courts to ensure that proper provision is made for a spouse before a decree of divorce is granted flows directly from the provisions of Article 41 of the Constitution and it is in the context of that Article as a whole that the nature and extent of the duty set out in the 1996 Act must be interpreted. Article 41 of the Constitution provides as follows: –
The Family
Article 41
Article 41.
“1.
1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible 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 the institution of Marriage, on which the Family is founded, and to protect it against attack.
2. A Court designated by law may grant of a dissolution of marriage where, but only where, it is satisfied that
i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii. there is no reasonable prospect of a reconciliation between the spouses,
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv. any further conditions prescribed by law are complied with.
3. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”
162. As I have previously had occasion to state the Constitution and in particular Article 41 reflects a shared value of society concerning the status of the “family” in the social order as a natural primary and fundamental unit group in society. The State is required to protect the family, inter alia, because it is indispensable to the welfare of the nation and the state. Moreover, the constitution requires the State ‘to guard with special care the institution of Marriage…’.
163. With these purposes in mind the constitution as adopted in 1937 contained a complete prohibition on the dissolution of marriage. The fifteenth amendment to the Constitution, with which we are now dealing, replaced that prohibition and clearly with those purposes also in mind was placed in Article 41 and specified four pre-conditions which must be fulfilled before an order dissolving a marriage may be granted. It is in this context that the notion of proper provision for the spouses must be interpreted.
164. In acknowledging the nature and status of marriage and the family in society, the Constitution reflects its historical, cultural and social role underpinned by values common to all religious traditions. This is by no means unique to Ireland and is reflected in the constitutions of many states and the Universal Declaration of Human Rights, adopted by the general assembly of the United Nations in 1948.
(See my judgment in North Western Health Board -v- H.W. [2001] 3 I.R. at 736).
165. Of course society, as always, evolves and continues to evolve and there are a far greater number of committed partnerships established outside marriage than was heretofore the case. Nonetheless, marriage itself remains a solemn contract of partnership entered into between man and woman with a special status recognised by the Constitution. It is one which is entered into in principle for life. It is not entered into for a determinate period. The moment a man and woman marry their bond acquires a legal status. The relationship once formed, the law steps in and holds the parties to certain obligations and liabilities. Even where a marriage is dissolved by judicial decree the laws of many if not most states require that the divorced spouses continue to respect and fulfil certain obligations deriving from their dissolved marriage for their mutual protection and welfare, usually of a financial nature. This reflects the fact that marriage is in principle intended to be a lifetime commitment and that each spouse has fashioned his or her life on that premise. If the law permitted a spouse to cut himself or herself adrift of a marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of the marriage contract itself and fail to protect the value which society has placed on it as an institution. It would give rise for example to a complete disregard for the status of a spouse whose principal role in the marriage was working in the home in support of the other partner who was the principal earner or breadwinner. Hence the constitutional imperative of proper provision for spouses.
166. The life-long commitment which marriage in principle entails means that there is a mutuality of an intimate relationship in which singular aspirations in life of each partner are adapted to mutual life goals. They adapt their lives to live and work together for the mutual welfare of their family which usually, but by no means necessarily so, also involves the birth and rearing of children. Husband and wife having mutual duties and responsibilities for the welfare of each other and the marriage, will throughout the marriage, make private decisions as to the role each of them will play in the support of the marriage, the achievement of their goals and their lifestyle. These decisions are likely to have an effect on their way of life even after the eventuality of a divorce, such as the capacity of one of them at that stage to establish an independent and secure way of life.
167. In contemporary society both spouses may work to financially support the family, the husband may support the wife or the wife may support the husband. Historically of course in this country and in many other countries and it was certainly the position at the time when the Constitution was adopted, there was usually only one breadwinner in the family, almost invariably the man. Limited value was often attached to the contribution made to the marriage by a non-earning spouse. She, and it was usually she, was treated more as simply a dependant rather than a partner when financial provision was made on separation. Her basic or essential needs tended to be the primary yardstick in such arrangements.
168. In many marriages one spouse either does not work outside the home, works part-time or works intermittently over the years in casual or part-time work. All of these private decisions are taken because there is a fundamental importance to the role of parents in the home and it is frequently seen as desirable for the welfare of the family that one parent should devote most of his or her time to the home particularly where the rearing of children is involved. While these considerations may apply to either spouse it must be said that in the vast majority of cases the spouse who gives the primary commitment to working in the home is the wife.
169. That was the position in this case. The parties commenced a married life with comfortable but relatively modest resources and assets. They were young practitioners in their respective professional careers which were initially the only source of the family income. The Respondent adapted her own lifestyle and limited her own professional career in order to pursue other mutual goals of the family, namely the establishment and development of a successful solicitor’s practice on behalf of her husband and looking after the home and the children. At different times and different ways she took an active part in directly helping her husband to develop his professional practice. By working in the home she facilitated and enabled her husband to give the kind of commitment necessary to establish such a successful practice.
170. In my view the work of a spouse in the home, in this case the Respondent’s wife, cannot be a basis for discriminating against her by reason only of the fact that the husband was the major earner or the breadwinner during the course of the marriage. The Constitution views the family as indispensable to the welfare of the State. Article 41.2.1. recognises that by her life in the home the woman gives to the State a support without which the common good cannot be achieved. No doubt the exclusive reference to women in that provision reflects social thinking and conditions at the time. It does however expressly recognise that work in the home by a parent is indispensable to the welfare of the State by virtue of the fact that it promotes the welfare of the family as a fundamental unit in society. A fortiori it recognises that work in the home is indispensable for the welfare of the family, husband, wife and children, where there are children. In my view in ensuring that proper provision is made for the spouses of a marriage before a decree of divorce the courts should, in principle, attribute the same value to the contribution of a spouse who works primarily in the home as it does to that of a spouse who works primarily outside the home as the principal earner. The value to be attached to their respective contributions in those circumstances is perhaps underscored by Article 42.1. of the Constitution which refers, inter alia, to the “… duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
171. I would observe in passing that the Constitution, as this court has stated on a number of occasions, is to be interpreted as a contemporary document. The duties and obligations of spouses are mutual and, without elaborating further since nothing turns on this point in this case, it seem to me that it implicitly recognises similarly the value of a man’s contribution in the home as a parent.
172. This is not to say that in making financial provision for spouses that their assets should be divided between them. Neither the Constitution nor the 1996 Act requires that, expressly or implicitly. It is rather that spouse, in this case, the wife, should not be disadvantaged by reason of the fact that all or nearly all of the assets and income in the marriage are those of the other spouse. It also means that in cases where there are very substantial assets belonging to one spouse which greatly exceed any conceivable day-to-day needs of either spouse, whatever their standard of living, those assets should not as a matter of course remain with the spouse who owns them with the other spouse being confined to depending on periodic payments.
173. I think it is appropriate to recall, for example, two of the factors which the courts is required to take into account pursuant to Section 20(2)(f) and (g): –
( f ) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,
( g ) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,”
174. So for example in having regard to the considerations cited above (which have particular relevance in this context but the same must apply in all other considerations taken into account by the court) the court will not discriminate between the spouses solely because their contribution to marriage and in particular to the welfare of the family, was of a different nature.
175. Paragraph (b) of the same provision refers to the financial needs, obligations, and responsibilities which each of the spouses had or is likely to have in the foreseeable future. But the Oireachtas did not limit the ‘proper provision’ for a spouse solely to his or her financial needs and responsibilities. The 1996 Act requires regard to be had to all the relevant considerations set out in Section 20 always with the objective of making proper provision. Proper provision should seek to reflect the equal partnership of the spouses. Proper provision for a spouse who falls into the category of a financially dependant spouse (where the other spouse is the source or owner of all or the bulk of income or assets of the marriage) should seek, so far as the circumstances of the case permit, to ensure that the spouse is not only in a position to meet her financial liabilities and obligation, continue with a standard of living commensurate with her standard of living during marriage but to enjoy what may reasonably regarded as the fruits of the marriage so that she can live an independent life and have security in the control of her own affairs, with a personal dignity that such autonomy confers, without necessarily being dependant on receiving periodic payments for the rest of her life from her former husband. I say ‘in principle’ because it is evident that in so many cases the resources or circumstances of the parties will dictate that the only means of making future provision for the spouse in question will be by periodic payments from the husband. Quite evidently this maybe because, for example, the sole source of income may be a salary or income from a business or profession. The latter two may have an asset value which needs to be left in the hands of the earning spouse in order that the income necessary to make proper provision for both spouses can be generated. I therefore agree with the Chief Justice there is nothing in the Act which prohibits the making of lump sum payments to a spouse when the court is exercising its jurisdiction in these matters. Indeed, the Constitution would require that this be done if, in the particular circumstances of the case, the Court considered in its discretion that that was the appropriate manner by which proper provision should be made for the spouse in question.
176. In cases of this nature, ‘ample resources’ cases, the payment by one spouse to another of a very substantial lump sum maybe the appropriate manner in which to ensure that proper provision is made, as I believe is the position in this case. It seems to me that where substantial assets and income have accrued to one spouse in the course of the marriage the Court should take them into account in determining the proper provision to be made for the other spouse. It is not so much that there should be a division of these resources between the spouses. They are available in order to make a proper provision for the other spouse. In the case of a wife who has worked primarily in the home she is just as entitled as her husband to have, what I have figuratively referred to as the fruits of the marriage, taken into account by the court in determining what provision should be made for each of them.
177. In this case I also agree with the Chief Justice that the very substantial amount of wealth which accrued to the Applicant in this case after separation and before the application for divorce was properly taken into account by the learned High Court Judge. That wealth accrued from a very successful transaction involving the purchase of an office block. However, this transaction was facilitated by the resources available to the Applicant by reason of the fact that over the years a successful solicitors practice had been established. That is not to say that the resources of one spouse which could be said to have been acquired completely independent of the marriage should be excluded from consideration by the court. Each spouse has a continuing obligation to make proper provision for the other and the resources which are available to each of them maybe taken into account so far as is necessary to achieve that objective. Each case will necessarily depend on its own particular circumstances. Where there are quite limited resources available it may only be possible to provide for the basic needs of each spouse. On the other hand different considerations would also arise where one spouse who was independently wealthy before the marriage and the marriage was a very short duration.
178. In the course of their arguments Counsel referred to a number of important English decisions interpreting and applying the relevant English legislation. They were considered relevant not least because the provision of the 1996 Act and in particular those of Section 20 were clearly modelled on the English Act. Murphy J. has highlighted in his judgment the divergences between the English Act and the 1996 Act including the fact that the English Act makes provision for a full and final determination of the financial obligations of the parties when the decree for divorce is granted – the “clean break” provisions. In my view the decisions of English courts on these matters should be viewed with circumspection. Apart from the divergences in the legislation highlighted by Murphy J. account must be taken of the fact that the 1996 Act falls to be interpreted and applied in the light of provisions of the Constitution. Furthermore, there are passages in the English decisions which take account of the history of matrimonial legislation and of social conditions in England which again may diverge from those which arise in this country. I hasten to add that where the same or similar issues of law arise in another jurisdiction, in particular a common law jurisdiction, judicial solutions to similar complex issues such as arise here maybe very beneficial and useful in identifying such solutions. There are passages in some of the English cases cited in argument by Counsel which articulate considerations or an approach to the manner in which proper provision should be made for spouses which coincide with the approach to be adopted under the 1996 Act. For example in White -v- White [2001] (1 AC 596) there is a passage in the judgment of Lord Nicholls which coincides with the law as I see it in this jurisdiction, where he says “If, in their different spheres, each … contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.” However, for present purposes I do not consider it necessary to refer to the English decisions.
179. I conclude therefore that when a court is exercising its discretion in making provision for spouses on an application for divorce:
(i) In making such provision a spouse who has worked principally in the home during the course of the marriage should not be disadvantaged in the making of such provision by reason of that fact;
(ii) Both spouses are entitled in principle to seek that the provision made for them provides them with a measure of independence and security in their lives and there is no reason why, in principle, a non-earning spouse should be confined to periodic payments. The extent to which this can be achieved in practice will depend on the circumstances of the case, the resources available and the exercise of judicial discretion in taking into account all the factors referred to in Section 20.
(iii) A court has power to direct the payment of lump sum payments where this is considered an appropriate means of making proper provision for one or other of the spouses.
(iv) In the present case all the resources, assets and income of the Applicant (as well of course the more limited income and assets of the Respondent) should be taken into account.
180. Having so concluded I am in agreement with the Chief Justice as to the manner in which proper provision should be made for the parties in these proceedings and the Order which he proposes in this respect. This includes his ruling on the exclusion of the misconduct element in this case and his ruling on the pension adjustment.
181. I also agree that when making proper provision for the spouses a court may in the appropriate circumstances seek to achieve certainty and finality in the continuing obligations of the divorced spouses to one another. This is not to say that legal finality can be achieved in all cases and any provision made may be subject to review pursuant to Section 22 of the 1996 Act where that provision applies. However, the objective of seeking to achieve certainty and stability in the obligations between the parties is a desirable one where the circumstances of the case permit.
182. Accordingly, I agree with the Chief Justice that the appeal should be dismissed to the extent specified in the Order which he proposes should be made.
THE SUPREME COURT
Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.
Appeal No. 031/2002
Record No. 2000/30M
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
BETWEEN
D. T.
Applicant/Appellant
and
C. T.
Respondent
JUDGMENT delivered on the 14th day of October, 2002 by FENNELLY J.
183. I agree with the Chief Justice that this appeal should be dismissed except to the specific and limited extent described by him. I agree with him also in that respect.
184. I wish, nonetheless, to address some general questions concerning the interpretation of this important legislation.
185. By voting in 1996 to pass the Fifteenth Amendment of the Constitution, the people voted to make a fundamental change in the law relating to marriage. The Constitution now permits a Court designated by law to grant a decree dissolving the marriage bond with the consequence of permitting each partner to remarry. The amendment substituted the following provision for the former prohibition of divorce in subsection 2 of section 3 of Article 41 of the Constitution:
“A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –
i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
ii there is no reasonable prospect of a reconciliation between the spouses
iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
iv any further conditions prescribed by law are complied with.”
186. Article 41 of the Constitution was not, however, otherwise altered. The text retains provisions pursuant to which the State still:
“recognises the Family as the primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” (Article 41.1);
“recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.” (Article 41.2);
“pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack.” (Article 41.3, paragraph 1).
187. The Constitution, in the new provision adopted in 1996, circumscribes the power which it confers on the designated Court, by obliging it, before it may grant a decree of divorce, to be satisfied of certain matters. It specifies four preconditions. There can be no doubt that these matters form an essential element in the new constitutional regime upon which the people cast their votes. The first two relate directly to the core of the marriage bond itself. The spouses must not only have lived apart for the requisite period but there must be no reasonable prospect of reconciliation. The court must, if it is to act constitutionally, satisfy itself that the evidence proves these matters. The consent of the marriage partners cannot confer upon the court the power to dissolve their marriage so as to absolve it from this duty.
188. The present case is concerned with the third constitutional requirement, namely that relating to proper provision for the divorcing spouses and their children. In the nature of things, the issue of proper material provision will normally be subsidiary to and consequential upon the existence of conditions which unhappily render it no longer possible for the parties to the marriage to continue as married persons. It enjoys the same level of constitutional importance as the first two in the sense that the Court is obliged to see that it is satisfied. Otherwise, the court is not empowered to grant the order dissolving the marriage. On the other hand, it is evident that parties may well be able to compose their material and financial differences by agreement. Agreement is, in its nature, to be encouraged, a matter which is recognised in the legislation, in particular, by requiring the Court to have regard to the terms of any existing separation agreement.
189. Article 41.3, subsection 2 (iii) enunciates the duty of the Court in very general terms. The “provision” is “such as the Court considers proper in all the circumstances …” emphasis added). In the Irish version (“cibé socrú is dóigh leis an gCúirt a bheith cuí”), uses the word, “socrú”, which may be equated with “arrangement.” (see Micheál O’Cearúil, Bunreacht na hEireann: A Study of the Irish Text, published by the All-Party Oireachtas Committee on the Constitution 1999 at page 601.) The word “cuí” is used at several points in the Constitution in the sense of “due.” (see the Preamble and Articles 40, sections 1 and 3.3; 42, sections 4 and 5 and the declaration prescribed to be made by each judge by Article 34, section 5, subsection 1. The Court must do what is “proper” in the sense of “appropriate.” I would have thought that this is also synonymous with what is “fair” or “just.” In the moral sense, this is a clearly stated objective. In practice, it requires the Court to weigh in the balance the infinite variety and complexity of the elements of human affairs and relationships and to arrive at a just result.
190. The Family Law (Divorce) Act, 1996 (“the act of 1996”) provides the Court with a range of statutory powers designed to enable it to fulfill its constitutional function. Most materially for present purposes, it may, “on granting a decree of divorce or at any time thereafter …:” make orders for periodical payments or lump sum payments (section 13), property adjustment orders (section 14); various ancillary orders (section 15); financial compensation orders (section 16); pension adjustment orders (section 17); provision for one spouse out of the estate of the other (section 18). The power which the High Court exercised was that specified in section 13, which states, in relevant part:
“On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned………during the lifetime of the other spouse,…………make one or more of the following orders, that is to say:
(c) (i) an order that either of the spouses shall make to the other spouse a lump sum payments of such amount or amounts as may be so specified, …
191. The expression, “as may be so specified,” refers to the antecedent expression, “as may be specified in the order.” The section does not otherwise indicate the objective to be achieved. The Court must seek its guidance in section 20, interpreted in the light of the applicable constitutional provisions.
192. The relevant guidance is furnished to the Court by section 20 of the act of 1996, in a case when it has to consider the exercise of any of these powers. It has already been set out fully in the judgment of the Chief Justice and I will not repeat it.
193. Sub-paragraphs (a) to (j) are an almost verbatim restatement of the corresponding provisions in section 20 of the Judicial Separation and Family Law Reform Act, 1989 (“the act of 1989”). The Oireachtas, in choosing the approach it enshrined in section 20 made a considered decision to confer upon the Court a duty of a particularly broad discretionary character, one already enshrined in our family law, prior to the constitutional amendment. This requires the Court to pass judgment on the presence and, where they are present, the weight it attributes to an extremely wide range of specified considerations. It reflects, in this respect, the constitutional provision. Thus also the legislature eschewed any more prescriptive model such as has been said to exist in the divorce laws of some countries (such as Scotland and New Zealand).
194. It is also the fact that the act of 1996 incorporates, like the act of 1989, and, subject to some important qualifications, not merely the essence but large parts of the wording of the provisions of the present divorce legislation of England and Wales. The parties have drawn attention to certain departures form that model whose relevance needs to be considered and to which I will shortly refer.
195. It is common ground between the parties that the financial resources that are available in the present case for the purpose of making provision for the respondent spouse, the wife, and the children of the marriage are very substantial indeed. For that reason, the case is quite untypical; thus it may be of comparatively limited value in the much more normal but more difficult cases where “proper provision” has to be made from meagre resources. I share the Chief Justice’s preference for the description “ample resources” over the less attractive expression, “big money.”
196. Happily, the level of co-operation between the parties in the High Court and the quality of the financial expertise available to the parties was such that there was a large measure of agreement as to the gross and net and the realisable value of the relevant assets. The only major are of disagreement concerns the treatment of those assets, constituting at the date of the High Court hearing, the great bulk of their value, acquired by the husband after the parties ceased to live together. That, however, is a matter of principle and of interpretation and of law.
197. A simple and broad approach can be taken to the value of the available assets. The learned trial judge decided to make provision for the wife in the form of an order for the payment to her, by instalments, of a sum of £5 million. The parties are in agreement with this approach, but not the amount of the lump sum. All values were expressed in Irish pounds and it is not necessary to convert them to Euro values. The husband says, however, that the provision is excessive. Both parties, in addition, agree that this court should exercise the statutory and constitutional discretion de novo, in the event that it is of opinion that the High Court was in error in its approach.
198. In this light, it is sufficient to refer, firstly and briefly, to the extent of the assets and to their nature. It was agreed in evidence that the gross value of the assets held by the husband is of the order of £25 million. They were acquired, however, with the assistance of substantial bank borrowing. The value, net of liabilities, is agreed to be between £18 and £19 million. The order is not one for the transfer of assets or interests in assets. Hence, the parties accept also that, in order to make provision in the form of a lump sum for the wife in accordance with the law, assets will have to be realised. This, in turn, necessarily entails the incurring of realisation costs and expenses in the form of legal and other professional expenses and tax liability, in particular capital taxes. On this last basis, it is accepted that the relevant value of the assets is reduced to approximately £14 million.
199. I need to say very little more about how such wealth came to be acquired by these parties. I am happy to adopt the account given in the judgment of the Chief Justice.
200. The spouses in this case are from fairly normal reasonably comfortable middle-class background. The husband is a solicitor, the wife a medical doctor. They did not set out on their married life with any substantial capital resources, though the wife owned a house in Dublin. They expected to live from the earnings of their respective professions. The husband, of course, prospered spectacularly. The wife, on the other hand, contributed to the husband’s capacity to build up his practice in ways which may now appear modest, but which were undoubtedly crucial, in the important early stages, to the capacity of the husband to build up his own independent practice as a solicitor. She did unpaid secretarial work and used to clean the office. She also provided some office furniture.
201. The wife also limited the pursuit of her own career as a medical doctor. She devoted herself to maternal and household duties at the expense of her own career for the benefit not only of her husband but for the welfare of the entire family.
202. The striking imbalance between the resources of the two spouses does not result only from the comparatively traditional adoption of the respective roles of breadwinner and homemaker. In the case of this model of marriage, it has been commonplace that the husband becomes the owner of the great bulk of the family property, the wife being in a dependant position. The present case is exceptional. Firstly, the husband has been able to benefit from the very high level of earnings in recent years of solicitors in Ireland in the practice of personal injury litigation. Secondly, he was able, to avail of the profits of and the cash resources available to him through his practice as a solicitor to borrow very large amounts of money. The principal bone of contention on the appeal has been the fact that the husband, after the parties commenced to live apart, acquired an office block, which constitutes some eighty per cent of the value of his assets. Thus over a small number of years, he became a man of great wealth.
203. The task of the learned High Court judge was to make proper provision for the wife and the children of the marriage in the light of the statutory provisions and “having regard to the circumstances.”
204. The matters listed in the twelve sub-paragraphs of section 20(2) of the act of 1996 are designed to ensure that the Court will have regard to all the wide variety of circumstances which should, in the interests of justice, be weighed in the balance when considering what is “proper provision.”
205. The starting point in that regard must be, on the one hand, to the resources and on the other to the needs, obligations and responsibilities of the parties. There is no stated limitation on the financial resources or on the “financial needs, obligations and responsibilities …” to be considered by the Court and which may be available for the purpose of making provision. They may extend to resources or to needs, obligations or responsibilities which either spouse “is likely to have in the future.” (sub-paragraphs (a) and (b) respectively).
206. This suggests that any property, whenever acquired, of either spouse and whenever and no matter how acquired is, in principle, available for the purposes provision. Thus, property acquired by inheritance, by chance, or the exclusive labours of one spouse does not necessarily escape the net. I lay emphasis on the term, “in principle.” On the other hand, not all such property is automatically available either. It is easy to think of cases where such a result would not be just. A short-lived marriage by a fortune hunter to a wealthy heiress comes to mind. Other sub-paragraphs are designed to ensure that the Court has a very broad discretion. It may consider “the standard of living enjoyed by the family …before the proceedings were instituted or before the spouses commenced to live apart from one another as the case may be …” (sub-paragraph (c). This provision appears to have been taken verbatim from the act of 1989 (section 20(2)(c) ). In the case of divorce, the parties will necessarily have been living apart for at least four of the five years preceding the issue of proceedings. Regard is also to be had to the “age of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another …” (sub-paragraph (d)).
207. On the facts of this case, I think the learned High Court judge was entitled, in the light of the relevant circumstances, to have resort, for the purposes of making a lump-sum order, to the full range of the husband’s resources. In particular, I think there was a close link between the acquisition of the office block and the resources of the husband’s solicitors practice. I think the wife was entitled, by reason of her contributions to the family generally and her direct and indirect contributions to the capacity of the husband to build his great fortune to have those assets considered for the purposes of provision. It is the fact that it actually passed into his ownership between the date of the separation of the parties and the hearing of proceedings in the High Court; but none of the sub-paragraphs excludes it for that reason. On the contrary, both the Constitution and the act of 1996 envisage the Court considering the issue of “proper provision” at the same time as the divorce decree. The use of the present tense in sub-paragraph (a) further supports this view. So also does the point made by the Chief Justice in his judgment that it would be unjust to require a spouse to make provision from resources which he formerly had but no longer has at the date of the proceedings or whose value had fallen greatly in the interim.
208. Sub-paragraphs (f) and (g) are also of particular relevance in this case:
“20(2)(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family.
(g) the effect on the earning capacity of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,”
209. The first of these sub-paragraphs, in particular, obliges the Court to give due weight and consideration to the respective roles of the breadwinner and the homemaker. By that, I mean such weight as is appropriate in all the circumstances. Once more, it is important to note that the sub-paragraph does not erect any automatic or mechanical rule of equality. Nor does it institute any notion of family resources or property to be subjected to division. Several considerations militate against the adoption of such rules of thumb. The children of the marriage have to be considered and their provision by one spouse may mean that property should not be equally divided. One or both of the parties may have entered into new relationships, possibly involving children. The supposed “breadwinner” or “homemaker,” as the case may be, may not, depending on the circumstances deserve to be placed on an equal footing.
210. It is only with the greatest care, therefore, that one should formulate any general propositions. The judge must always and in every case have regard to the particular circumstances of the case. In this connection, I would cite one passage from the speech of Lord Nicholls of Birkenhead in White v White [2001] 1 AC 596. Before doing so, I should say that we should be careful not to follow English cases uncritically. Murphy J has dealt with this matter some in detail by in his judgment. Nonetheless, I find Lord Nicholls persuasive in one respect. When, referring to the provision corresponding to sub-paragraph (f) at page 604 he says:
“If, in their different spheres, each [spouse] contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”
211. It is fair to say that Lord Nicholls, in the ensuing passage, proceeded to advocate a “yardstick of equality.” The act of 1996 does not, in my view, warrant the introduction of a yardstick in those terms. It certainly does not ordain an approach based on the division of assets. Nonetheless, I would adopt the language of Lord Nicholls to the extent that he argues for equal recognition of the value of the contributions that may have been made during the marriage, in their respective roles, by the money-earning spouse and the home-making spouse.
212. In this connection, it should be noted that the underlined words in the expression, “including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse …” in sub-paragraph (f) were added by the Oireachtas to, originally in 1989 but repeated in the act of 1996, to a provision otherwise closely modelled on the English version. These words demonstrate that the Court should have regard to the possibility that the efforts of one spouse may contribute, directly or indirectly, to the resources of the other.
213. Furthermore, sub-paragraph (g) appears only in the two acts of the Oireachtas; the English legislation contains no corresponding provision. The legislator has taken care to include provision not only for the possible contribution, both direct and indirect, by one spouse to the material resources of the other, but also for the corresponding detriment suffered by that spouse in terms of his or her own resources.
214. I approach the case, as does the Chief Justice in his judgment, on the basis that the provision that is to be made for the wife should be made by way of lump sum. The parties agreed both in the High Court and at the hearing of the appeal that this was the most desirable way of making provision. I am in full agreement with the Chief Justice, for the reasons he gives, that the absence of specific statutory machinery for the making of “clean break” provision should not preclude the Court from seeking to do so in appropriate cases. In the present case, where the amplitude of resources makes it possible, the desire of the parties for financial finality should not be frustrated. The act expressly empowers the Court to make orders at any time after the divorce, but that fact does not preclude to Court from taking note of a provision already made in the form of a lump sum intended to facilitate a clean break.
215. I do not consider that the Court should have regard to the legal right to which a surviving spouse may become entitled pursuant to the Succession Act. It is not one of the statutory matters. The Court might well, of course, arrive at a result of a similar kind based on the general considerations in section 20.
216. I have emphasised the breadth of the discretion conferred on the trial judge by the Constitution and by the act of 1996. This Court is required, on the appeal, to consider whether the trial judge made any error in law. In particular, he should have given consideration to the matters to which the statute requires him to have regard and he should not have regard to matters which are beyond the scope of his discretion. Subject to that, this Court must be conscious of the fact that this important and far-reaching statutory and constitutional power is to be exercised by the judge granting the decree of divorce, in this case the judge of the High Court. It is for the High Court judge to decide on the weight to be accorded to each of the statutory matters. This Court should be very slow to substitute its own view.
217. I turn then to consider the judgment of the learned trial judge. Given the scale of the assets and the divergence between the parties as to the level of proper provision, it would have been preferable if the judgment had set out precisely the judge’s conclusion on the valuation of assets of the husband. At times, he appears to have treated them as being valued at £20 million. On the other hand, he refers to the wife’s argument which was based on a net value, after the expenses of realization, of some £15 million and which sought provision in the range £4.3 to £7 million. I conclude from the fact that the lump sum payment ordered was a total of £5 million that he must have been working on a value of some £14 to £16 million.
218. The learned trial judge was correct to hold that the assessment of assets must be made at the date of the trial, for the reasons I have set out above. This proposition may require some refinement in the light of the circumstances of other cases. It is not simply a question of assessing the value of the assets at the date of the trial and making an appropriate division. A more systematic consideration of the weight of the different statutory matters will be very desirable for future cases. On the facts of this case, it is clear that the learned trial judge regarded the office block, which constituted some eighty per cent of the value of the husband’s assets, as being part of his resources out of which it was “proper” for him to make provision. I believe he was entitled to come to that view, in the light of the particular history of the acquisition of that asset and the origin of the financial resources, based on the solicitors’ practice, which enabled the husband to acquire it and the wife’s important contribution to the laying of its foundations.
219. At one point, the learned trial judge stated that the wife “has made an overall greater contribution to the marriage than the” husband. He went on to say that he was “mindful of the need for care and discretion when dividing a fortune as substantial as that with which [he was then] dealing.” The first of these statements appears designed to consider some at least of the statutory matters. It is regrettable that the judge did not consider the matter more precisely in relation to the respective contributions of the parties to the property and financial resources in question. The judge was mistaken in speaking of dividing a fortune. That is not a correct description of the Court’s function in making proper provision.
220. Nonetheless, I think that in reality the learned judge reached the conclusion that the wife had contributed very substantially to the financial resources in question. If one substitutes the notion of “provision” for ” division,” the ultimate question is whether he was entitled, in the exercise of his discretion, and, having regard to the relevant circumstances, to make provision for the wife in the form of a lump sum of £5 million to be paid by her husband. In my view, he was. I do not think that this Court should interfere with that discretion.
221. Accordingly, I would dismiss the appeal except to the extent proposed by the Chief Justice.
P.J. v. J.J.
[1993] IR 147
Barr J. 151
31st July 1991
The parties were married on the 5th June, 1952. There are four children of the marriage, all daughters, the youngest of whom is twenty five years of age. All are married and have long since lett home. The wife resides in a three-bedroomed house in Dublin, which was purchased by the husband, subject to mortgage, in the 1970’s. The marriage finally broke down in or about 1978. At that time the husband entered into a relationship with another lady and took up residence with her. That relationship is continuing. A separation agreement, dated 14th May, 1980, was entered into between the parties and was duly made a rule of court under the provisions of s. 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976. It provides, inter alia, that
(1) The wife shall remain in possession of the family home at R. for her lifetime. In the event that she wishes to vacate the dwelling house, it shall be sold and the proceeds divided equally between the parties.
(2) The husband shall pay to the wife a sum per month, free of all deductions, which sum is adjustable annually according to the consumer price index. The amount of maintenance so adjusted now payable amounts to £527.00 per month.
There is no provision for a reduction in maintenance in the light of changed circumstances which may occur.
(3) In addition to maintenance, the husband shall pay the following disbursements in relation to the family home and the personal requirements of the wife
(a) the mortgage;
(b) the E.S.B. account;
(c) the telephone account;
(d) household insurance;
(e) a sum for household maintenance;
(f) the wife’s V.H.I.;
(g) the provision of a car for the wife.
Up to October, 1990, the husband owned 75% of the shares in a company. He was also managing director of the company which owned and operated four newsagent cum stationery shops situated in shopping centres in C. and in C. At one time the company operated seven shops, but the business, like many other similar enterprises, has been in decline in recent years. About eight months ago the husband sold his interest in the business for £110,000.00. He subscribed £50,000.00 thereof towards the purchase price of a house in K. which cost £135,000.00. His lady partner subscribed the balance of the purchase price.
Another reason why the husband has sold his interest in the business is that he is now in poor health and has found it difficult to carry on. The evidence of his general practitioner, Dr. N., bears that out. The husband and his partner have embarked upon a plan to extend the recently purchased house in K. so that it will have eight bedrooms and will be suitable for use as a guest house. It will not be ready for occupation until the 1992 season and it is not possible presently to estimate what his earnings from that business will be. The husband is endeavouring to sell his present home in K., but there is a glut of properties on the market there presently due to recessionary pressures affecting second homes. If he cannot sell that house, he will run it as a guest house also. It has a present market value of approximately £80,000.
Until about two years ago the husband not only honoured all the financial terms of the separation agreement, but also made a substantial additional payments for the benefit of his wife and more particularly his daughters, including gifts of £5,000 to each child on marriage and also the cost of their weddings. I am satisfied that the arrears under the separation agreement which have accrued since then arose out or the decline of the husband’s business, leading to an inability on his part to meet his financial obligations to the wife as previously.
The wife sued for arrears of maintenance and other payments due under the separation agreement, and that claim was compromised in November, 1990, upon payment of £10,000 by the husband out of the proceeds of sale of his interest in the retailing company. The wife is sixty five years of age and she also has health problems. She is employed as a records clerk in a hospital in Dublin and her net income is about £700 per month, including interest on £7,000 being the balance remaining out of the arrears of maintenance paid by the husband in November, 1990. The retirement age for her job is sixty five years and no pension is payable. However, her employers are not yet aware of her actual age.
Evidence was given as to the wife’s overheads. I am satisfied that, excluding social expenditure and the cost of holidays, they amount to about £750.00 per month on average net of tax and that that is fair and reasonable in all the circumstances. The latter sum includes E.S.B. and telephone accounts which ought to be paid by the husband under the terms of the maintenance agreement. I have no doubt that when the wife’s employement at the hospital comes to an end, which it must do in the next three or four years at the latest, she will be in serious financial difficulties, having only the state contributory old age pension to substitute for her hospital salary. Apart from this potential difficulty, the wife is presently suffering financial hardship due to the non-payment by the husband of maintenance and other disbursements under the terms of the separation agreement. Arrears presently amount to £4,895.00.
In the light of the foregoing facts, the husband is seeking an order varying downwards the maintenance provisions of the separation agreement because of change in his financial circumstances and other related factors. The wife has resisted that application and has herself claimed arrears of maintenance.
The husband’s application raises a net point of law, i.e., whether the maintenance provisions of a separation agreement, which has been made a rule of court pursuant to an application under s. 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976, are reviewable under s. 6 of that Act, and may be adjusted downwards by the court if it is satisfied that by reason of changed circumstances the maintenance debtor is unable to meet his obligations on foot of the agreement and justice requires that adjustment should be made in the amount of maintenance payable.
This issue has been the subject of two conflicting judgments in the High Court. The first is that of Carroll J. in the J.D. v. B.D. [1985] I.L.R.M. 688, and the other is that of Barron J. in D. v. D. [1990] 2 I.R. 361. I have considered both judgments and, with respect, I support the conclusion arrived at by Carroll J. that s. 6 of the Act of 1976 is not available as a vehicle for the review of maintenance provisions in a separation agreement which itself contains no such machinery.
The broad objective of ss. 5 to 7 of the Act of 1976 is to provide machinery to enable spouses and/or children to obtain periodic maintenance payments from the other spouse in an amount that is fair and reasonable in all the circumstances. A maintenance order having been made under s. 5, it may be discharged or varied subsequently in the light of changed circumstances on application to the court by either spouse under section 6. Section 7 provides for the making of interim orders. Section 8 of the Act allows the court to make orders in respect of marital agreements (as in the present case) and such orders are deemed to be maintenance orders for certain limited purposes in the transmission of maintenance payments through the District Court as provided by s. 9 and attachment of earnings proceedings under Part III of the Act. In making an order under s. 8 the court must be satisfied that the payment is a fair and reasonable one which in all the circumstances adequately protects the interests of both spouses and the dependant children, if any, in the family. Whether in the instant case the separation agreement ought to have been made a rule of court in the absence of an appropriate provision for review in the event of changed circumstances of either party, is not a matter which is before me.
The rationale of s. 8 of the Act appears to be that the legislature recognises the right of spouses to enter into maintenance contracts and it will not interfere with the terms agreed between the parties, but where such contracts have been approved by the court as being fair and reasonable, the contract is deemed to be a maintenance order in certain specific circumstances provided for in the Act of 1976 relating to mode of payment and enforcement. The specified limited circumstances in which a maintenance agreement duly approved by the court under s. 8 shall be regarded as being a maintenance order does not include the right to review provided for in section 6. The relevant sections to which I have referred are clear in their terms. A court is entitled to interpret legislation so as to resolve any ambiguity or obvious error therein. However, where the statute is clear in its terms, the court has no power to extend its provisions to make good what is perceived to be a significant omission. If the court took that course it would entail going beyond statutory interpretation and into the realm of law-making, a function which under the Constitution is reserved to the Oireachtas. Occasionally circumstances arise where the court is powerless to avoid injustice and, sadly, this case is one of them. I am obliged to hold that the husband is not entitled to a review of the maintenance provisions of the separation agreement under s. 6 of the Act.
The alternative claims which he makes are patently devices in effect to secure indirectly the benefit of a review under section 6. He is bound by the terms of the maintenance agreement and I am satisfied that he is not entitled to either of the alternative orders which he seeks.
As for the wife’s claim for payment of outstanding maintenance and other related benefits under the terms of the separation agreement, it follows in the light of the foregoing that she is entitled to orders for payment of the amount due to date which is £4,895.00.
In the hope that it may be of some assistance to the parties, both of whom I am satisfied are fair-minded people, I think I should indicate what my attitude would have been if I had held that I had power to review the maintenance provisions in the separation agreement. Both parties are now reaching an area of health problems which in varying degrees are often part and parcel of late middle age. It seems that the husband’s health difficulties have been aggravated by the decline in his retail business since in or about 1988 and the pressures which that gave rise to. I am satisfied that he has been obliged to sell his interest in the business for health reasons and because of its decline in recent times. He is embarking upon an alternative business which is within his restricted health capacity and I have no doubt that he will be hard pressed financially to bring about the metamorphosis he has put in train. It is common case that when times were better for him he honoured the terms of the agreement with his wife and that he did substantially more for her and for their daughters than was required of him under the agreement.
As already stated herein, I am satisfied that since 1988 the husband has been in difficult financial circumstances and that he has not had the resources to honour his financial obligations to his wife in full, bearing in mind that capital is required to set up the new guest house business to replace that which he has sold. Hopefully this new enterprise will prosper and after it gets under way he will be able to revert to his full obligations under the terms of the separation agreement. I would have reduced his liability to £300.00 per month from the 1st January this year,
H.C.
but all ancillary payments to be made by him as provided for in the agreement: the matter to be reviewed again in or about October, 1992, or at such time as the wife loses her employment, should that event happen in the meantime. Perhaps the parties may be able to agree on terms, without prejudice, along these lines.
P. (P.) v. P. (A.)
[1999] IEHC 60
JUDGMENT of Mr. Justice McCracken delivered the 14th day of December 1999 .
1. The Applicant and the Respondent were married on 27th March, 1971 and there were four children of the marriage. The three eldest children are no longer dependent, but the youngest child, J.P., is a third level student and it is accepted that she is dependent within the meaning of the Family Law Act, 1995, and will remain dependent until she attains her 23rd birthday on 15th November, 2000.
2. The Respondent is an engineer who has been self-employed since 1984, and is now 60 years of age. He is undoubtedly very hard-working, and his work involves a considerable amount of travelling and long hours. He has built up a very successful practice, although it is doubtful if it could be considered to be of any monetary value as a saleable asset.
3. The business has always been run from the Respondent’s home, and during the first five years, the Applicant effectively acted as his secretary, answering the telephone and typing out his reports. Subsequent to that time she continued to do some work in connection with the business, but to a very limited extent. In addition, in recent years, the Applicant has from time to time provided food and lodgings for a student and has retained any profit made from this enterprise for herself.
4. In 1984, not long before setting up his own business, the Respondent suffered a heart attack and in 1990 and 1991 suffered from chest pains. In November 1991 he underwent a triple by-pass operation which seems to have been successful, but in August of 1998 he suffered further chest pains. I have heard evidence from his general practitioner whose view is that he is working much harder than he ought to at his age and having suffered from heart problems. She is of the view that the amount of work which he is carrying out and the stress involved is not advisable, and her opinion is that he should reduce his work load by about half, and should ultimately retire in two or three years time.
5. There have been very considerable difficulties in this case in relation to the disclosure of the Respondent’s assets and income. While the Applicant worked as his secretary for the first five years after he set up on his own, and would have sent out fee notes, she never kept his books, and he never discussed financial matters with her.
6. Although the parties lived together, and indeed still live in the same house, they have effectively lived separate lives for a number of years with little real communication between them. While some attempt at reconciliation was made in 1996, when the parties attended a counsellor, these proved a failure and there is no doubt that the marriage has irrevocably broken down.
7. The parties are joint tenants of the family home, which is a substantial and valuable house and has an agreed value of about £560,000. They are also joint tenants of a holiday home in Spain with an agreed value of £60,000 and the Respondent has a fifty per cent interest in a holiday home in Co. Wexford which he owns jointly with his sister, and it is agreed that his share is worth £17,500. The Respondent has produced unaudited accounts which show his net income before tax as follows:-
1994 – £15,960
1995 – £29,010
1996 – £51,991
1997 – £55, 666
8. On 6th October, 1998 the Respondent swore an Affidavit of Means in which he swore his assets to be his interest in the various properties mentioned above, shares in publicly quoted companies valued at approximately £8,000, certain life assurance policies and a bank account in Allied Irish Banks and two accounts in the Educational Building Society. The Applicant subsequently discovered documents in the family home which made it quite clear that the Respondent has grossly understated his assets, and held a number of accounts, both in the English and Irish form of his name, including an account in Spain, and the Respondent has conceded in evidence that he initially concealed these accounts from the Applicant and from the Court. He further concedes that his income has been in excess of that stated in his accounts. He now acknowledges that he has personal assets of some £95,000, and that there is about £11,000 in his business account, although this may to some extent be offset by an upcoming Revenue liability. This information was only elicited from the Respondent as a result of considerable pressure by the Applicant, arising from information obtained by her independently from the Respondent. I am not at all impressed with the Respondent’s attitude towards these matters, and he still does not seem to realise the seriousness of having sworn what was a blatantly false Affidavit of Means and having quite deliberately misled both the Court and the Applicant. I still am not altogether satisfied that the Respondent has disclosed all his assets, and I do not know the true extent of the Respondent’s earnings over the last four or five years.
9. The Respondent has given evidence that he now intends to follow his doctor’s advice, cut his work by half for the next two or three years and then retire altogether. Mr. Brady S.C., on behalf of the Respondent has urged me to take these expressed intentions into account in assessing the maintenance payments to be made by the Respondent. I am far from convinced that the Respondent will in fact fulfil these intentions, at least in the time span which he suggests. I do, however, accept Mr. Brady’s point that a very high maintenance might effectively prevent the Respondent from cutting down on his work or retiring, and I certainly intend to take that matter into account.
10. There has to be a substantial lump sum payment to the Applicant. She must be able to purchase a house which is large enough to allow her to have the youngest child continue to live with her, and to be able to take in a lodger. I also have to take into account that within a few years the maintenance payments will undoubtedly be reduced, even though that may not come as quickly as the Respondent suggests. The Respondent’s admitted assets, excluding the business account, amount to £732,500 and I am going to order that he pay the Applicant a lump sum of £425,000. As this sum must primarily come out of the sale of the family home, and it is agreed that the family home should not be put up for sale until at least the beginning of February, I will direct that the lump sum is to be paid within fourteen days of the completion of the sale of the family home or by 14th April 2000, which ever is the earlier. I will also direct that the amount is based on the net proceeds of sale of the family home being £550,000, after payment of legal, auctioneering and advertising fees, and that the lump sum shall be varied upwards or downwards by fifty per cent of the sum by which the actual net proceeds are greater or less than £550,000. This sum takes into account the fact that both the family home and the Spanish property are in joint names and includes any share to which the Applicant may be beneficially entitled in such properties. I will make whatever Order is necessary to vest the Spanish property beneficially in the Respondent solely.
11. With regard to periodic maintenance payments, I will direct that the Respondent pay to the Applicant £300 per week for her own maintenance and a further sum of £50 per week for maintenance of the Applicant’s daughter until she attains 23 years of age. Obviously if the Respondent retires or seriously reduces his income, he may apply for a review of these periodic payments.
12. The Respondent has also made some comparatively small pension provisions which have not yet matured, and it is agreed that there should be a Pension Adjustment Order under Section 12 of the Family Law Act, 1995 entitling the Applicant to fifty per cent of such pension as may be payable. It has further been agreed that there should be no Order excluding Succession Act rights.
13. I will discuss the exact form of the Order and any ancillary relief required with Counsel for the parties.
C.M. v T.M.
[1988] I.L.R.M. 262
(Egan J)
13 February 1987
EGAN J
delivered his judgment on 13 February 1987 saying: The parties to this case were married at Maryleborne Registry Office, London, on 12 September 1975. There are two children of the marriage:
(a) A son now aged 8 and
(b) A daughter now aged 5.
It is agreed that at the time of the said marriage both parties were resident and domiciled in England. Sometime in the year 1979 the parties moved to Ireland and later purchases a large dwellinghouse outside the town of Kinsale. This dwellinghouse became their family home. In lay language the marriage ‘broke down’ sometime in the year 1985. The husband was and is a most successful songwriter with many ‘hit’ songs to his credit and I am satisfied on the affidavits that he earns and receives a very large income.
There are many proceedings in being between the parties some of which have been partially disposed of. Not all are directly relevant to the issues with which I am presently concerned but it may possibly be helpful if the entire background is briefly referred to:
1. Special Summons (1985 No. 927 Sp) was issued on 28 November 1985. In these proceedings the husband claimed rights of access to the infants and rights to remove them from the jurisdiction during periods of access. This matter was dealt with by Murphy J, by order dated 6 June 1986 wherein rights of access and removal from the jurisdiction are specified. There was no appeal from this order.
2. Plenary Summons (1986 No. 4054 P) was issued on 23 April 1986. In summary the husband claimed an order directing payment to him of 50% of the net proceeds of the sale of the family home in Kinsale which had been sold. He also clained declaratory orders in relation to certain items of *264 property. The matter come on for hearing before Murphy J, on 9 June 1986. In effect, the learned judge directed that all necessary steps should be taken to secure payment to the husband of 50% of the net proceeds of the sale of the house subject to an undertaking that portion thereof (£25,000) should be placed on deposit with a licensed investment bank in Ireland. The order does not say why such retention was directed but I would have little doubt that the reason was to provide some degree of security for the wife (the husband being resident in England) in respect of claims by her for maintenance and property rights (if any). He also made an order restraining the wife from selling or disposing of the items referred to pending the decision of the court as to their ownership.
With the help of the 50% of the proceeds of the sale of the house, the wife purchased another house in Kinsale for herslef and her two children.
3. Special Summons (1986 No. 500 Sp) was issued on 6 June 1986. This is the summons with which we are now concerned. In it the wife claims:
(a) Maintenance for herself and the two infants pursuant to the Family Law (Maintenance of Spouses and Children) Act 1976.
(b) Interim maintenance
(c) An order in the nature of a declaration as to the wife’s beneficial and other estate and interest in the husband’s song writing, music and entertainment business or, alternatively, an Order that she be compensated for work done and services rendered to the husband in his business as a songwriter.
(d) An order declaring the wife to be solely entitled to certain property.
By order of the Master of the High Court dated 5 November 1986 the husband was ordered to make discovery on oath relating to the issues in this action but limited to the matters referred to in a letter from the wife’s solicitors to the husband’s solicitors dated 5 June 1986.
The case is now before me on a motion by the husband to stay proceedings and a motion by the wife for interim maintenance.
Much of the argument for the husband related to the implications of divorce proceedings between the parties in England. The proceedings were initiated by the husband’s petition dated 7 July 1986 which were served on the wife on 15 August 1986. The husband alleged that the marriage had broken down irretrievably and that the wife had committed adultery with a named co-respondent.
On 18 December 1986 the wife purported to file an answer to the husband’s petition and this was in the nature of a cross-petition by her for the dissolution of the said marriage. It included an allegation that the husband had committed adultery with two named women. This answer was refused by the registrar on the grounds that it was late and there was no appeal against the refusal.
On 19 January 1987 a ‘Decree Nisi’ was granted in England on foot of the husband’s petition. This decree was not produced before me so I do not know the precise wording contained in it. The fact that it was made was *265 not, however, in dispute. Counsel for the husband stated that this decree will be made absolute on 2 March next (i.e. six weeks after the decree nisi) but counsel for the wife contended that the decree was not ‘self-executing’. English law was not opened to the court on this application for a stay. I have looked at a blank form of decree nisi and it contains wording that ‘application for this decree to be made absolute must be made not earlier than six weeks from the above date’. If these words are applicable the application to make the decree absolute cannot be made before 2 March next and counsel for the husband says that it will be made.
Notwithstanding the wife’s failure to file an answer within the prescribed time counsel appear to be agreed that she may apply for financial relief in the English Courts at any time and in Bromley’s Family Law (sixth edition) it is stated at p. 526 that:
if a respondent does not file an answer claiming relief (as will be the case in all undefended suits), he may apply for financial relief at any time without leave
The authority cited is Matrimonial Causes Rules 1977, rule 68(3).
The importance of the foregoing is tied up with the question of the husband’s domicile. He argues that the wife’s proceedings should be stayed in relation to maintenance because she will cease to be a ‘spouse’ within the next few weeks. Under s. 5 of the Domicile and Recognition of Foreign Divorces Act 1986 it is provided inter alia that a divorce granted in England shall be recognised if either spouse is domiciled in that jurisdiction.
It is interesting to note that the section states that the divorce shall be recognised if either spouse ‘is’ domiciled in the foreign jurisdiction. Prior to the coming into operation of the section the relevant time for determination of domicile was held to be the time of the service of the divorce petition (see T. v T. [1983] IR p. 29) but the distinction, if any, is only of academic interest as the husband alleges that his domicile is and was at all relevant times English.
The wife’s claim for maintenance for herself and her children is pursuant to s. 5 of the Family Law (Maintenance of Spouses and Children) Act 1976 which authorises the court to direct maintenance ‘on application to it by a spouse’. The husband contends that if and when the claim comes on for full hearing the wife will have ceased to be a spouse and that the only order which could now be made in reference to maintenance should be an interim Order pending the making absolute of the decree nisi.
It seems, therefore, that two important questions must be considered:
(a) Will the divorce decree be recognised here?
(b) If it will be so recognised, will the wife’s claim for maintenance cease?
I will deal with these two matters in reverse order. I have already referred to: T. v T. where a husband had applied to the Cork District Court for a variation of an existing order of maintenance, contending that an absolute decree of divorce obtained by him in England absolved him from *266 any liability to continue making maintenance payments to his wife. The District Justice accepted that proposition, holding that the English Divorce was one that required to be recognised in the State. The wife appealed to the High Court by way of case stated and eventually there was an appeal to the Supreme Court. The Supreme Court held that the District Justice and the High Court judge had misdirected themselves in law in holding that the husband had acquired an Irish domicile of choice.
The Supreme Court did not deal specifically with the point as to whether a husband who has obtained a divorce in England which is recognised in the State is thereby relieved from the obligation to pay maintenance to his wife. Inferentially, however, it seems to me that they accepted this contention but there was no argument to the contrary. Neither did they decide that the husband would be relieved from maintenance payments in respect of the children of the marriage as the husband had only applied for a variation excluding payments to the wife and the point, therefore, did not arise.
Barrington, J in the case of L.B. v H.B. [1980] ILRM 257 directed that the husband should pay maintenance to his wife on the grounds that a divorce which had been granted in France ought not be recognised in the State as it had been obtained by collusion. Inferentially he must have held that the wife’s claim for maintenance would have failed if the divorce had been one which would be recognised in the State. There were no children in the case.
On the authority of these two cases I am compelled to hold that if there is a decree absolute in the present case and it is one which must be recognised in the State, the wife’s claim in respect of maintenance will haveto be dismissed. This, of course, does not preclude me from making an interim order as the wife at this moment in time is still a ‘spouse’.
I am considerably troubled by the question of maintenance of the children in the same circumstances i.e. if the divorce is to be recognised. Again under s. 5 of the 1976 Act (save for exceptions which do not appear to apply to the present case) the application must be made by a ‘spouse’. The husband in T. v T. did not seek variation in respect of the maintenance of the children and the problem, therefore, did not arise in the case. If this case goes to hearing and the divorce is recognised in the State, there will be no applicant spouse. I have given some thought as to whether it could be argued that the wife was clearly a spouse when she initiated the proceedings and that this constituted an ‘application’ on behalf of her children but the same argument could be made in relation to her own maintenance. I am reluctantly compelled to hold, therefore, that an application on behalf of the children must fail in the same circumstances. There is consolation in the fact, however, that there would appear to be no bar to the wife making an application in respect of the maintenance of the children pursuant to s. 11 of the Guardianship of Infants Act 1964. This section can be availed of by ‘any person being a guardian of an infant’.
We must now consider the question of domicile. The husband alleged in *267 his divorce petition that he was domiciled in England. In his affidavit sworn on 30 January 1987 he avers that both himself and his wife are British citizens. He does not expressly aver that he is domiciled in England but he goes very close to it in paragraph (8) in the course of which he avers as follows:
I further say that I have now decided due to business commitments to reside for the foreseeable future in London. I say and believe that neither myself or my wife have any family links with this country and that the only reason we came to reside in the Republic of Ireland was to obtain the benefit of tax reliefs available to artists in this country.
These words do not, in my opinion, completely exclude the possibility of it being held that he has an Irish domicile.
His domicile of origin was English and the onus of proving that he acquired an Irish domicile of choice lies with the wife. The couple came to reside in Ireland in the year 1979. They acquired a family home in which they resided until the husband returned to England in 1985. The wife and children still reside in Ireland. The fact that he may have come for ‘tax reliefs’ would not per se be inconsistent with an intention to reside here permanently and the wife does not accept that when he returned to England in 1985 he intended to remain there even for the ‘foreseeable future’. I was informed by counsel for the wife that there is evidence available to prove that when he left Ireland and subsequent thereto he intended to acquire another residence in Ireland.
I have concluded that in such an important matter as this I should not decide the question of domicile on the affidavits or correspondence and that it can only be fairly resolved on a full plenary hearing with the benefit of oral evidence. I would, in any event, consider it inadvisable to attempt to decide it prior to the decree nisi being made absolute as it will not be strictly relevant until this occurs.
I will refuse, therefore, to stay such portion of the case as relates to maintenance and I will direct that the husband shall make such Discovery as was ordered by the Master of the High Court within a period of four weeks from this date. It could be suggested that Discovery might be irrelevant in the event of the husband being ultimately held to have an English domicile but discovery is also relevant to other claims being made by the wife. I refer in particular to the claim by the wife to a beneficial interest in the husband’s song writing, music and entertainment business. Again I am not prepared to rule at this stage without the benefit of oral evidence that no such claim is sustainable. It seems to me, however, that such claim (if any) would only lie in respect of assets of the husband within the jurisdiction as it does not appear to me that the Married Women’s Status Act 1957 can have extra-territorial effect. I reserve final judgement on the point, however, for the trial judge. I refuse to order that proceedings in the matter be stayed.
As regards the wife’s claim for interim maintenance, the husband has not denied in his affidavit that prior to 1985 he was contributing more to the *268 wife than the £1500 sterling per month which he has since been paying and has not denied her allegation that she has been compelled to pay interest on a joint debt. I will direct, therefore, that interim maintenance be paid by the husband at the rate of £2500 Irish currency apportioned as to £1000 thereof for the wife and £750 each for the benefit of the two children, such payments to continue until further order.
McG. (G.) v. W. (D.)
[2000] IESC 52
Judgment of The Hon. Mrs. Justice Denham delivered the 31st day of March, 2000.
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1. This is an appeal by the Attorney General against the judgment and order of the High Court (McGuinness J.) delivered on 18th June, 1999 and perfected on 24th June, 1999, whereby the High Court declined to join the Attorney General as a notice party. The single issue on this appeal is whether the Attorney General may be added as a notice party in circumstances where the High Court judgment has been delivered, the order perfected and no appeal taken by any of the parties. The issue is one of law.
Facts
2. This case commenced as a petition of nullity of marriage. The basic facts were set out by McGuinness J. in a judgment delivered on 14th January, 1999, where she stated:
“The Petitioner’s nullity proceedings have followed a somewhat unusual course. The Citation was issued pursuant to an Order of the Master of the High Court made on the 10th March, 1998. It was served together with the Petition and Affidavit according to the Rules of the Superior Courts. An Answer dated the 6th July 1998 was filed by the Respondent which basically admitted the facts set out in the Petition. Application was then made to the Master for the customary order regarding time and mode of trial and the questions to be tried. No submissions either factual or legal were made before the Master in regard to the English divorce but it appears that the Master took the view that the English divorce was of no effect in Irish law and that the parties had committed bigamy. He refused the Order sought in the nullity proceedings and directed that the papers be sent to the Director of Public Prosecutions. I was informed by Counsel at the hearing before me that a number of persons, including the Notice Party (who was not then a party to the proceedings) had been interviewed by the Garda Síochána in connection with a possible charge of bigamy.
The Petitioner, who was not unnaturally somewhat concerned, appealed the Master’s Order to this court. The learned Budd J. overturned the Master’s Order and fixed time and mode of trial but felt that there no [sic] was no action open to him to take in regard to the transfer of the papers to the Director of Public Prosecutions.
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Subsequently, in view of the fact that Mrs. R. had by that time a vital interest in the outcome of the proceedings, she was joined as a Notice Party by Order of Laffoy J. on the 23rd October, 1998.
When the proceedings came on for hearing before this court, Senior Counsel for the Petitioner, Mr. Durcan, submitted that, while the proceedings were in the form of a nullity petition, the real concern of the Petitioner was to ascertain his true marital status according to the law of this country. He was not urging the court to take any particular course with regard to the validity or otherwise of the English divorce, although he was, of course, concerned about the possibility of a criminal charge of bigamy. Senior Counsel for the Notice Party, Mr. O’Donnell stressed that the Notice Party had been shocked and distressed by being interviewed by the Garda Síochána and was most anxious to establish that her marriage to Mr. R. was a valid and legal marriage in this country, where she now resides.
All parties were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29(l)(d) or (e) of the Family Law Act, 1995 in regard to the recognition of the 1985 English divorce of the Petitioner and the Notice Party.”
3. McGuinness J. cited s.29(1) of the Family Law Act, 1995 and continued:
“It appeared to me that the basic question at issue in the proceedings was whether the 1985 English divorce was entitled to recognition in this State. From this the validity or otherwise of both subsequent marriages would flow. I accordingly agreed to proceed as suggested by Counsel for the parties and heard the relevant legal submissions.
At the conclusion of the hearing before me, since the matter was one of urgency due to the possible pending criminal proceedings, I held that the divorce between the Petitioner and the Notice Party was entitled to recognition in this State and that accordingly the marriage between the Petitioner and the Respondent was a valid marriage as was the marriage between the Notice Party and Mr. R. I also directed that any criminal proceedings or investigations directed thereto should cease forthwith.
Since the issues of law which arose in the proceedings were of general public importance I reserved the setting out of the reasons for my decision.”
4. The learned trial judge reviewed the law on the recognition of foreign divorces. Of
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counsels’ argument she described:
“Senior counsel for the notice party, Mr. O’Donnell, (with support from Senior Counsel for the Petitioner, Mr. Durcan) submitted that since the decision of the Supreme Court in W. v. W. the constitutional, legal and factual context in this jurisdiction has dramatically changed. He described the changes in the law relating to divorce in Ireland as being of seismic proportions and stated that there had been a dramatic shift in public policy. Bearing in mind the principle enunciated by the Supreme Court in W. v. W. that common law rules are judge-made law and may be modified in the light of the present policy of the Court, Mr. O’Donnell submitted that this Court should now consider further development of the common law recognition rule.
There is no doubt that Mr. O’Donnell is correct in his submission that the law in regard to divorce in Ireland has been dramatically altered since 1993, firstly by the passing by Referendum on the Fifteenth Amendment to the Constitution and secondly by the enactment by the Oireachtas of the Family Law (Divorce) Act 1996 (the Act of 1996). This State now itself possesses a divorce jurisdiction both under the new Article 41.3.2 of the Constitution and under the Act of 1996.”
Of the Family Law Act, 1995, the learned trial judge held:
“It is of interest to note that the same statutory bases are provided in the Family Law Act 1995 for the Court’s exercise of its jurisdiction to make declarations as to marital status (Section 29) and to grant decrees of nullity (Section 39). This demonstrates a clear policy of the legislature that jurisdiction in matrimonial matters is not limited to a basis of domicile, but extends to a basis of ordinary residence for one year prior to the issue of the relevant proceedings.”
5. The learned trial judge then made a decision of law on recognition of foreign divorces.
She stated:
“It would seem to me both logical and reasonable that the Irish common law recognition rule should similarly be extended to cover cases where under the statute law the Irish Courts claim entitlement not alone to dissolve marriages but also to annul them and to make far reaching declarations as to marital status. The well known policy of the comity of Courts alone would support such an extension of recognition.”
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6. After further analysis of the common law on the recognition of foreign divorces the learned trial judge concluded that the court may develop the rules on recognition, on the basis that the common law rules are judge-made law and may be modified according to the current policy of the court. McGumnness J. then extended the common law on the recognition of foreign divorces and applied this new common law to the divorce in issue.
7. The Attorney General did not learn of the case until after the judgment was delivered. It was a family law case heard in camera. It was on the distribution of the reserved judgment that the matter came to his notice. The Attorney General then sought, by Notice of Motion dated 10th March, 1999, to be joined as a notice party.
8. It is clear that the Attorney General’s purpose, ifjoined, is to apply to the Supreme Court to extend the time within which to appeal the decision of the High Court and if that is successful then to appeal the judgment of the learned trial judge to this court. The Attorney General indicated his concern as to the state of the common law in relation to the recognition of foreign divorces and as to the effect to be given to the judgment of the High Court. All the parties to the action opposed his motion in the High Court, as they do in this court.
Issue
9. On the motion of the Attorney General to be joined, by judgment delivered on 18th June, 1999, the learned High Court judge held that the court had no jurisdiction to alter the order made on 12th November, 1998 and refused the relief sought in the motion. The Attorney General has appealed that judgment. Thus the net issue on this appeal is one of law and is as to whether or not the Attorney General may be joined.
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Submissions
10. Submissions were made on behalf of the parties and the Attorney General. All the parties opposed the application of the Attorney General. Mr. Eoghan Fitzsimons, S.C., on behalf of the Attorney General, referred to full written submissions, which were considered by the Court. Counsel for the Attorney General submitted that there was one point on this appeal. He argued that the order made under the Family Law Act, 1995 without the presence of the Attorney General was not a final order. It was not a final order regulating all the rights of the parties. Therefore, it was an extreme situation where the court should exercise its inherent jurisdiction.
Law
11. Earlier statutory provision required that the Attorney General be a party in somewhat similar proceedings. There was a clear legislative policy. The position of the Attorney General as a party to proceedings relating to the validity of marriages was set out in Legitimacy Declaration (Ireland) Act, 1868, an Act to enable persons to establish their legitimacy, the marriage of their parents and others from whom they may be descended. Under the said Act the procedure envisaged an application to the Court of Probate in Ireland praying for a decree of legitimacy and or for a decree that the marriage of a father and mother or grandfather and grandmother was a valid marriage. Section 1 of the said Act of 1868 concluded with the words:
“… and such Court shall have Jurisdiction to hear and determine such Application, and to make such Decree declaratory of the Legitimacy or
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Illegitimacy of such Person, or of the Validity or Invalidity of such Marriage, as to the Court may seem just; and such Decree, except as herein-after mentioned, shall be binding to all Intents and Purposes on Her Majesty and on all Persons whomsoever.”
By Section 6 of the said Act of 1868 the Attorney General was made a respondent in all such actions. The section stated:
“A Copy of every Petition under this Act, and of the Affidavit accompanying the same, shall One Month at least previously to the Presentation or filing of such Petition be delivered to Her Majesty’s Attorney General for Ireland, who shall be a Respondent upon the Hearing of such Petition, and upon every subsequent Proceedings relating thereto.”
12. This was a clear statutory position. It showed a legislative policy that the Attorney General be a party to all such actions.
13. Under current law in England and Wales declarations may be sought as to marital status and legitimacy or legitimation under the Family Law Act, 1986. The legislation includes provisions relating to the Attorney General. The court may at any stage direct that papers be served on the Attorney General, and, irrespective of any court motion or party application, the Attorney General may intervene. This is provided for in s. 59 which states:
“59.-(l) On an application for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney-General.
(2) The Attorney-General, whether or not he is sent papers in relation to an application for a declaration under this Part, may-
(a) intervene in the proceedings on that application in such maimer as he thinks necessary or expedient, and
(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.
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(3) Where any costs are incurred by the Attorney-General in connection with any application for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.”
14. Whereas under the previous law the Attorney General had to be brought into all cases this is no longer the case. However, the effect of the declarations under Part III of the said 1986 Act is stated clearly in s.58:
“58.-(l) Where on an application for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.
(2) Any declaration made under this Part shall be binding on Her Majesty and all other persons.”
(The emphasis is added)
15. This illustrates a clear legislative approach as to the in rem nature of the judgment. There is a similar approach in the common law of England and Wales. Thus in The Ampthill Peerage [1977] A.C. 547, 576 Lord Simon of Glaisdale stated:
“… if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it.”
16. Lord Wilberforce said, at page 568:
“It is vitally necessary that that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought
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to light which might have borne upon the question. How otherwise could a man’s life be planned?”
17. A declaration may be rescinded if obtained by fraud. This was explained by Lord Wilberforce as “[t]here must be conscious and deliberate dishonesty, and the declaration must be obtained by it” in The Ampthill Peerage [1977] A.C. 547, 571.
Law Reform Commission
18. The Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters, (LRC 6 – 1983) made recommendations. The Commission considered the then law on declarations as to status would benefit from restatement in clear terms in modern legislation. It was recommended that the proposed legislation should enable a person to apply to the High Court for a decree declaring that his or her marriage was or is a valid marriage. It was proposed that the legislation would replace the provisions of the Legitimacy Declaration (Ireland) Act 1868 to the extent that they related to the validity of the marriage of the petitioner, but it would not affect the provisions of that act relating to declarations as to the validity of the marriage of the parents of the petitioner. It was recommended, at pages 24 and 25 of the said Report:
“The alleged other party to the marriage and the Attorney General should be joined in such proceedings …”
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Family Law Act, 1995
Part IV of the Family Law Act, 1995 is a restatement of the law which enables a person to apply to the court for a declaration as to the validity of his or her marriage. This legislation implements, with some changes, recommendations of the Report of the Law Reform Commission on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters.
Under the Family Law Act, 1995, Part IV, the Attorney General is not required to be a respondent in every action. The parties have a choice as to whether he or she will be given notice. Furthermore, the Attorney General is also given a choice as to whether he or she will participate. These choices are stated to have an effect, as set out in s. 29(8) of The Family Law Act, 1995.
19. On the matter of declarations as to marital status the relevant provisions of s. 29 of the Family Law Act, 1995 state:
“29(1) The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court has sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:
(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or jurisdiction in respect of the marriage is entitled to recognition in the State,
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State.”
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20. The said legislation enables the Attorney General to be a participant. Unlike the legislation of 1868 the joining of the Attorney General is not mandatory. Section 29(4) of the Family Law Act, 1995 states:
“The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.”
(The emphasis is added)
21. The use of the word “may” in this section indicates that the court has a choice, at any stage of the proceedings, by its own motion or on application by a party, to give notice of the proceedings to the Attorney General or any other person. In cases where it may be anticipated that a fundamental change in or development of the law is to be argued it would be appropriate for a court to give notice to the Attorney General. Under the legislation it is a matter of notice to the Attorney General or other person.
22. However, if the Attorney General applies to be a party to any proceedings he or she must be added as a party. Section 29(5) states:
“The court shall, on application to it on that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.”
23. Thus, in addition to the situation where the Attorney General is added as a party on his application, a situation is envisaged where a court may request the Attorney General to
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argue questions arising in the proceedings, whether or not he or she is added as a party.
24. After delineating these choices as to whether or not the Attorney General be given notice or be a party s.29 then describes the binding nature of a declaration under this section in the so terms:
“(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.”
25. Thus it appears that a declaration is binding on the parties to the proceedings and on a person claiming through such party. However, in addition, a further effect is set out in s.29(8) being:
“… if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.”
26. In view of the choices given to the parties (as to whether the Attorney General be given notice or not) and to the Attorney General (as to whether he be a party or not) these words are a matter of concern. It is clear from the legislation that the parties have a choice as to whether to give notice to the Attorney General or not. In this case they did not give notice to the Attorney General. Such a declaration, in the absence of the Attorney General, is, on its face, based on an Act presumed to be constitutional, binding on the parties.
27. The court may of its own motion give notice to the Attorney General. This it did not do; it appears that such a choice was not expressly considered. However, the right to a
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choice exists and that being so it is clear that proceedings may continue without the Attorney General being given notice.
28. The Attorney General also has a choice as to whether to participate. This he did not exercise prior to or during the hearing of the action in the High Court. It appears that he did not know of the case. There is no requirement in current legislation, contrary to the position in previous legislation, to deliver a copy of the proceedings to the Attorney General. These proceedings were held in camera and the Attorney General did not hear of the court order until after it was made.
29. It is clear that the Family Law Act, 1995 envisaged a situation where the Attorney General need not be informed of such proceedings. It is also clear that the Attorney General having been given notice, may choose not to participate in the proceedings. The legislation envisages that such proceedings shall be binding on the parties. On its face it creates a binding order. There is no legislative indication that it is an interlocutory order.
30. The Family Law Act, 1995 is entitled to the presumption of constitutionality. The meaning of the words “if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State” is not a matter for resolution on this motion. It is sufficient to determine that the legislation envisaged two types of orders, one of which has been made in this case.
Similar Statute
31. A similar approach to the Attorney General’s role may be seen in the Status of Children Act, 1987. Section 35 of the said Act provides for a declaration of parentage. The
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position in relation to the Attorney General is also one of choice involving the court, the Attorney General and the parties. The effect of such an order is stated in s.35(9):
“(9) Any declaration made under this section shall be in a form to be prescribed and shall be binding on the parties to the proceedings and any person claiming through a party to the proceedings, and where the Attorney General is made a party to the proceedings the declaration shall also be binding on the State.”
Nature of the Order of the High Court ?
32. In this case the court is required to consider the nature of the order of the High Court, and to determine whether it is a final order. All parties to the proceedings have argued that the order of 12th November, 1998 and judgment of 14th January, 1999 of the High Court are final and that consequently the High Court and this court on appeal have no jurisdiction to add any party thereto.
S.29(4) enables the court “at any stage of the proceedings” to give notice to the Attorney General. S.29(5) requires a court, if the Attorney General applies, to order that he or she be added as a party to any such “proceedings”. The concept of “proceedings” envisages a case in being. However, in the ordinary course of litigation, cases finish, a final order is made and proceedings are concluded. Finality of litigation and the certainty of law are cornerstones of the administration of justice.
33. There is well established jurisprudence as to the lack of jurisdiction of a court once a final order has been given in a case. A court may amend such order only in very limited circumstances. This fundamental jurisdiction was described by Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissions [1994] ILRM 29, 36-37 as follows:
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“There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.
We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question.
The position and principles appear, however, to be accurately stated in the judgment of Romer J. in A insworth v. Wilding [1896] I Ch 673, where, at p.677 he stated as follows:
‘So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:
(1) Where there has been an accidental slip in the judgment as drawn up, in which cases the court has power to rectify it under 0.28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.’
34. Having referred to the decision of the Court of Appeal in In re Swire 30 ChD 239, Romer J quoted from the judgments in that case as follows at p.678:
‘Cotton LJ says: “It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinlon the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon what which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”
35. Lindley LJ says: ‘If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’
36. And Bowen LJ says: “An order, as it seems to me, even when passed and entered, may be amended by the courts so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.”
37. I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be
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made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.”
38. The court has jurisdiction to amend an order so as to carry out the intention and express the meaning of the court: The People at the Suit of the Director of Public Prosecutions v. Sheedy Court of Criminal Appeal, Denham J., 21st December, 1999, unreported.
39. In a judgment of 18th June, 1999, applying the law as stated in Belville Holdings and affirmed in The Attorney General (at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Limited (No. 2) [1994] 2 IR 333 at pages 338 to 340 inclusive, the learned trial judge refused the Attorney General’s motion in the following words:
“Thus, even where such a highly unusual change of circumstances had occurred subsequent to the final Order, the Supreme Court was definite in its decision that the Court had no jurisdiction to alter the Order it had previously made. I am clearly bound by this judgment and therefore this Court has no jurisdiction to alter the Order made on the 12th of November, 1998.
In addition it seems to me that it would be a manifest and striking injustice to the parties to reopen a decision of such practical importance to their ordinary lives and in reliance upon which they have already acted.
I will therefore refuse the relief sought in the Motion.”
Decision
40. I am satisfied that the leamed High Court judge was correct. Whilst the Family Law Act, 1995 allows for the joining of the Attorney General as a party to the proceedings it is not mandatory. The parties are given a choice as to whether to give notice to the Attorney
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41. General. Indeed, the Attorney General is given a choice as to whether to join the proceedings or not. Thus, it is clear that proceedings are contemplated without the Attorney General.
42. Further, it is envisaged that the proceedings be final. They are final as between the parties. It is unnecessary to determine the exact meaning of s.29(8). There are two types of orders envisaged in the legislation. In one, the type of order here, the order is binding on the parties, and a final order. The second type of order, where the Attorney General is a party, is also envisaged as a final order.
43. The Attorney General may be joined under the Act to ‘proceedings’. In this case the proceedings are closed, the order and judgment given. There are no proceedings in being. The proceedings have concluded. The final order has been given. Thus, there are no extant proceedings to which to join the Attorney General. This is not a situation where the case is on appeal to the Supreme Court. This is not a case where proceedings are in being, pending a hearing on appeal.
44. Further, the order of the High Court was final. It was not an interlocutory order. Applying the test described by Finlay C.J. in Belville Holdings Ltd. v. Revenue Commissioners [1994] ILRM 29 none of the exceptions apply. It is only in special and unusual circumstances that an amendment of an order passed and perfected, where the order is a final order, may be made by the court. None of the exceptions previously identified apply to this case.
45. The inherent jurisdiction of the courts as expressed by Finlay C.J. in Belville Holdings v. Revenue Commissioners [1994] ILRM 29 does not to trench on the principle of the finality of litigation but rather ensures that the intent of the court in making an order is met. In certain special and unusual circumstances such inherent jurisdiction may be utilised in the interests of justice. The justice of this case for the parties does not require it to be
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reopened. The proceedings have concluded. The parties have acted on foot of the order made by the High Court.
46. In addition, the Family Law Act, 1995 does not provide a legal basis for the Attorney General’s motion. That said Act clearly envisages court orders, to which the Attorney General is not a party, which are final. Consequently, I am satisfied that the court does not have jurisdiction to reopen the proceedings for the purpose of enabling the Attorney General to be joined so that he may seek leave to extend time within which to appeal and, if successful, argue against the decision of the High Court judge as to the common law of the recognition of foreign divorces. The Attorney General may choose to make such submissions in another case.
47. Further, the Attorney General may consider examining the legislative framework under which his position in such proceedings is determined at the moment. Perhaps any change to the law may be addressed best by legislation rather than extending the inherent jurisdiction of the court.
48. No decision was sought or made on this motion, nor should any inference be drawn, on the substantive issue, the recognition of foreign divorces.
Conclusion
49. I would dismiss the appeal for the reasons stated herein.
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THE SUPREME COURT
No. 1999/165
Denham J.
Murphy J.
Barron J.
Murray J.
Hardiman J.
Judgment of Mr Justice Francis D Murphy delivered the 31st day of March, 2000
50. By order made herein on the 12th day of November, 1998 Mrs Justice McGuinness declared that the Decree made in England on the 12th day of February, 1985 of Dissolution of the marriage solemnised in Dublin on the 27th day of October, 1967 between the above named Petitioner and the above named Notice party was a valid Decree and entitled to recognition in this jurisdiction. It was accordingly ordered that an Application for a Decree that a marriage solemnised in London on the 15th November, 1985 between the Petitioner and Respondent was null and void be dismissed.
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51. Because investigations were pending and criminal proceedings threatened, the learned trial Judge arranged that her order be made without delay but understandably postponed until the 14th day of January, 1999 the delivery of her judgment on an important issue which had arisen in the proceedings. That issue was whether the Decree Absolute of divorce issued on the 12th of February, 1985 was entitled to recognition in this country having regard to the fact that it was based on the residence of the Notice Party in England for the appropriate period rather than any domicile arising there.
52. Some months after the order and judgment aforesaid were made and given the Attorney General applied by notice of motion dated the 10th day of March, 1999 to be joined as a Notice Party in these proceedings. That application was grounded upon the affidavit of Gr~inne O’Mahony, Solicitor. In her affidavit Ms O’Mahony explained that the Attorney General became aware of the above proceedings about the 14th January, 1999 following publicity given in the national media to the judgment of Mrs Justice McGuinness. Attention was also drawn to the fact that the proceedings had been commenced by way of a nullity petition and were only subsequently dealt with, by consent, as an application for a declaration pursuant to s.29 of the Family Law Act, 1995. The affidavit also made clear that it was the intention of the Attorney General, if made a party to these proceedings, to apply to the Supreme Court for an extension of time for leave to appeal the order and judgment of the trial Judge. By order dated the 18th day of June, 1999 Mrs Justice McGuinness refused to join the Attorney General as a party to the proceedings for the reasons set out in a judgment of the same date. It is from that order and judgment that the Attorney General has appealed to this Court.
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53. The right asserted by the Attorney General to intervene in these proceedings derives exclusively from s.29 of the Act of 1995. I would quote that section and the next succeeding section which together constitute part IV of the Act which is entitled “Declarations as to Marital Status”.
“29 (1) The court may, on application to it in that behalf by either of the spouses concerned or by any other person who, in the opinion of the court, has a sufficient interest in the matter, by order make one or more of the following declarations in relation to a marriage, that is to say:
(a) a declaration that the marriage was at its inception a valid marriage,
(b) a declaration that the marriage subsisted on a date specified in the application,
(c) a declaration that the marriage did not subsist on a date so specified, not being the date of the inception of the marriage,
(d) a declaration that the validity of a divorce, annulment or legal separation obtained under the civil law of any other country or]urisdiction in respect of the marriage is entitled to recognition in the State,
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in the State.
(2) The court may grant an order under subsection (1) if but only if either of the spouses concerned: –
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(a) is domiciled in the State on the date of the application,
(b) has been ordinarily resident in the State throughout the period of one year ending on that date, or
(c) died before that date and either:-
(i) was at the time of death domiciled in the State, or
(ii) had been ordinarily resident in the State throughout the period of one year ending on that date.
(3) The other spouse or the spouses concerned or the personal representative of the spouse or each spouse, within the meaning of the Act of 1965, shall be joined in proceedings under this section.
(4) The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.
(5) The court shall, on application to it in that beha lf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.
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(6) Where notice of proceedings under this section is given to a person (other than the Attorney General), the court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order that the person be added as a party to the proceedings.
(7) Where a party to proceedings under this section alleges that the marriage concerned is or was void, or that it is voidable, and should be annulled, the court may treat the application under subsection (1) as an application for a decree of nullity of marriage and may forthwith proceed to determine the matter accordingly and may postpone the determination of the application under subsection (1).
(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, Wthe Attorney General is a party to the proceedings, the, declaration shall also be binding on the State.
(9) A declaration under this section shall not prejudice any person if it is subsequently proved to have been obtained by fraud or collusion.
(10) Where proceedings under this section, and proceedings in another jurisdiction, in relation to the same marriage have been instituted but have not been finally determined, the court may stay the first-mentioned proceedings until the other proceedings have been finally determined.
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30 (1) Rules of court may make provision as to the information to be given in an application under section 29 (1) including particulars of any previous or pending proceedings in relation to any marriage concerned or to the matrimonial status of a party to any such marriage.
(2) The court may make such order (if any) as it considers just for the payment of all or part of any costs incurred by the Attorney General in proceedings under this section by other parties to the proceedings.
(3) Without prejudice to the law governing the recognition of decrees of divorce granted by courts outside the State, a declaration under section 29 conflicting with a previous final judgment or decree of a court of competent jurisdiction of a country or jurisdiction other than the State shall not be made unless the judgment or decree was obtained by fraud or collusion.
(4) Notification of a declaration under section 29 (other than a declaration relating to a legal separation) shall be given by the registrar of the court to an tArd Chláraitheoir.”
54. Whilst it is clear from her judgment that the order made by Mrs Justice McGuinness on the 12th November, 1998 was made pursuant to s.29(l)(d) aforesaid, that particular section is not expressly invoked in the order.
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55. The potential involvement of the Attorney General in proceedings under s.29 of the Act of 1995 is dealt with in subsection (4) and (5) from different aspects. Subsection (4) permits the Court either of its own motion or on the application to it by a party to the proceedings to direct that notice of the proceedings be given to the Attorney General. Subsection (5) imposes an obligation on the Court to add the Attorney General as a party to the proceedings if the Attorney General makes an application in that behalf. The same subsection imposes an obligation on the Attorney General to argue any question arising in the proceedings and specified by the Court if so requested by the Court and to do so whether or not the Attorney General has been added as a party. Those subsections are crystal clear to that extent. They impose no obligation either on the Court or on parties to give notice of proceedings under s.29 aforesaid to the Attorney General. Nor are there any circumstances in which the Attorney General can be required by virtue of that section to be made a party.
56. These provisions are similar to those contained in the Matrimonial Causes Acts, 1857-1873, which were repealed and replaced by the UK Supreme Court Judicature (Consolidation) Act, 1925. It is clear from the 19th Century legislation – which never applied in this jurisdiction -that the purpose of the legislation was to enable the Attorney General to intervene through the medium of the Queen’s Proctor primarily, or so it would seem, to avoid the danger of a decree of divorce or nullity being granted as a result of collusion between the parties. That legislative procedure was facilitated by the fact that the relevant matrimonial orders were in the first instance decrees nisi and the final order was not pronounced until the expiration of at least a further six months. Our legislation of 1995 makes no provision for decrees nisi.
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57. There is another curious provision in s.29. Subsection 8 provides that a declaration made thereunder should be binding on the parties to the proceedings and any person claiming through such a party but the subsection then goes on to say that “if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State” .
58. Before this Court some debate took place as to the nature and effect of a declaration as to the matrimonial status of parties which was binding on them and persons claiming through them but not binding on the State. It is a difficult concept. The very nature of legal status is the public recognition which it enjoys (or endures) whether that status arises from a contractual arrangement or an accident of birth.
59. The exemption of the State from the ambit of a declaratory order where the Attorney General has not been invited and accepted the invitation to become a party to the proceedings seems to reflect the provisions of s. 1 of the Legitimacy Declaration (Ireland) Act, 31 Vic C 20. That Section deals expressly with the extent to which orders under that Act were binding on the Sovereign. Counsel for the Attorney General in his written and oral submissions to the Court expressed concern as to the consequences which might result from an order such as that made herein which is not binding on the State. He envisaged difficulties in relation to the registration of particulars of marriage and perhaps the acquisition of passports and other dealings with agents of the State. I doubt myself that these problems could be the consequence of the statutory exemption. However, the parties to the proceedings declined to pursue the issue. There was no reason why they should do so. They accept that the particular provisions of subsection 8 may or may not give rise to difficulties in the future. They are content to deal with them if and when they arise. It was and is their position that the order
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made by Mrs Justice McGuinness on the 12th November, 1998 was a final order which disposed of the issue between the parties and that, having made the order and given her reasons therefor, she was functus officio . She had no power, thereafter, they say, to entertain an application by the Attorney General to be joined in the proceedings and was correct in refusing his application in that behalf.
60. The arguments made on behalf of the Attorney General may be summarised as follows:-
1 Whilst s.29 (4) aforesaid purports to confer a discretion or permissive power on the Court to notify the Attorney General of proceedings claiming declaratory relief under part IV of the Act of 1995 there are circumstances (such as exist in the present case) when the discretionary power must be exercised in favour of giving notice to the Attorney General. It was contended that where the petitioner seeks a declaration that the validity of a divorce obtained abroad is not entitled to recognition in the State that it is unnecessary to notify the Attorney General but where the declaration is for the recognition of the foreign divorce the Attorney General would be an appropriate party. Again, it was emphasised that the judgment of Mrs Justice McGuinness did have a far-reaching effect as it gave recognition to a foreign divorce based on residence rather than domicile. Whilst these distinctions are valid there is nothing whatever in the Act to impose a mandatory obligation on the Court in those or any other circumstances. It seems to me that this argument must be rejected.
2 That a declaration of recognition could not be granted in the absence of an appropriate legitimus contradictor. This argument presupposes that it is the Attorney General, and not a party to the impugned matrimonial proceedings, who is the appropriate contradictor. That
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proposition is wholly inconsistent with the provisions of the Act of 1995. That Act proceeds on the footing that the petitioner and respondent alone may be the parties to the matrimonial matter. The Attorney General could not be a necessary party as there is no procedure by which he can be compelled to accept that role. He may or may not be given notice of the proceedings and, if given notice, he may or may not agree to be a party. However, even without his acquiescence it is clear that the Court can make a declaration under s.29 (notice of which must be remitted to an tArd Chláraitheoir) which will be binding on the parties and persons claiming through them though subject to whatever limitation arises from the provisions of subsection 8.
3. That the order of the 12th November, 1998 was not a final order, first, because the State was not bound thereby and secondly because Mrs Justice McGuinness recorded in her judgment of the 14th January, 1999 that she had at the conclusion of the hearing before her
“directed that any criminal proceedings or investigations in relation to the validity of the marriage between the petitioner and the respondent should cease forthwith”.
61. It may or may not be contended that the learned trial Judge was not entitled to give that verbal direction and it may or may not be that the gardai would feel free to ignore it. Similarly it may be, as all parties accept, that ambiguities in the legislation may leave further problems to be resolved. However, these residual problems do not affect the fundamental proposition that the order and judgment of Mrs Justice McGuinness of the 12th November, 1998 and the 14th January, 1999 were final and conclusive and disposed of the issue between the parties to the proceedings before her. There is no basis on which she could amend that order less still could she amend it in such a way as to join a party for the acknowledged
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purpose of permitting or facilitating that party to appeal a judgment and order made in proceedings to which he was not a party; in which he had not been represented and that to present arguments to this Court which he had not made to the learned trial Judge.
62. Whilst I appreciate the proper concern of the Attorney General in relation to orders affecting the recognition of foreign divorces (or indeed domestic divorces) I am satisfied that there is no basis in law in which he can seek an adjudication by this Court in these proceedings on the matters which concern him.
63. I would dismiss the appeal and affirm the judgment and order of Mrs Justice McGuinness dated the 18th June, 1999.
– 11 –
THE SUPREME COURT
No. 1999/165
Denham J.
Murphy J.
Barron J.
Murray J.
Hardiman J.
BETWEEN
G. McG.
PETITIONER
AND
D.W.
RESPONDENT
AND
A.R.
NOTICE PARTY
Judgment of Mr Justice John L. Murray delivere delivered the 31st day of March, 2000.
64. This is an appeal in which the Attorney General seeks to set aside the order ot High Court refusing his application to bejoined as a notice party in the above entitled proceedings. It was a somewhat unusual application, having been made some four months after the order of the High Court in the substantive proceedings. The appeal concerns only a question of law as to the jurisdiction of the court to join the Attorney General at this stage to the proceedings which were before the High Court.
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The background to the application:
65. The background and chronology of events are to be found in the two judgments of Mrs Justice McGuinness dated 14th January 1999 and 18th June 1999. The essentials of those are as follows.
66. On the 27th October 1967 the petitioner, Mr. McG. married the notice party Ms. C (now A.R.) in Dublin. Both parties were domiciled and resided in Ireland at the time.
67. On the 11th April 1979 they entered into a deed of separation after the marriage had broken down. On the 20th August 1984 the petitioner issued divorce proceedings in England in respect of the foregoing marriage and a decree absolute was granted by the English Court on 12th February 1985. The English divorce was granted under English Law, on the basis that the notice party had at least one years residence in that country. Neither the petitioner nor the notice party claimed to have established domicile in England. (Subsequent to the divorce the notice party married Mr R. in England).
68. On the 25th November 1985 the petitioner, who was still domiciled and resident in Ireland, married the respondent Ms. D. W at a registry office in London. Ms. D. W was a British citizen domiciled in England. This marriage also broke down and the parties separated on an agreed basis.
69. Subsequent to all of the above the petitioner brought nullity proceedings in respect of his 1985 marriage in London, before the High Court which were to follow, in the words of the learned trial judge, “a somewhat unusual course”
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70. The citation having been issued on behalf of the petitioner on the 10th March 1998 it was served, together with the petition and affidavit on the respondent. The answer filed by the respondent essentially admitted the facts set out in the petition.
71. When the proceedings came on for hearing before the learned High Court Judge, counsel for the petitioner submitted that while the proceedings were in the form of a nullity petition, the real concern of the petitioner was to ascertain his true marital status according to the law of the State.
72. Apparently all parties, that is to say the petitioner, the respondent and the notice party, were in agreement that it would be preferable for the court to treat the petition for a declaration of nullity as if it were an application pursuant to section 29 (1) (d) or (e) of the Family Law Act 1995 in regard to the recognition of the 1985 English divorce of the petitioner and the notice party.
Section 29 of the 1995 Act is found in part IV of the Act which is entitled “Declarations as to Marital Status” and subsection (1) (d) and (e) grant jurisdiction to the High Court to declare whether, inter alia, a divorce obtained under the civil law of another State is or is not entitled to recognition in the State.
73. From that point on the nullity proceedings were abandoned, so to speak, and those proceedings proceeded as if they were concerned with an application pursuant to the relevant provisions of section 29 of the 1995 Act so as to determine whether the 1985 English divorce
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between the petitioner and the notice party having regard to their marriage, in Ireland in 1967, was entitled to recognition in the State.
74. By order dated the 12th November, 1998 the learned High Court Judge granted a declaration that the decree of divorce granted by the English Court on 12th February 1985 dissolving the marriage between the petitioner and the notice party to be a valid decree and entitled to recognition in the State.
75. In the interests of the parties and in order to bring certainty to their position the learned High Court Judge decided the issues and made her order promptly after the conclusion of the hearing and, because an important point of law was involved, she reserved the giving of reasons for her decision to a later date. On the 10th January 1999 she delivered her carefully reasoned judgment.
76. The important point of law involved was essentially that the leamed High Court Judge granted recognition to a foreign divorce based on the residency rather than the domicile of one of the parties in the foreign State. It is common case, and acknowledged by the learned High Court Judge, that this marked a significant change in the basis on which foreign divorces might be recognised in this country.
77. Two months later by way of notice of motion dated the 10th day of March 1999, the Attorney General applied to the High Court to be joined as a notice party in those proceedings. The affidavit grounding the notice of motion explained that the Attorney General had only become aware of the proceedings following publicity given to the aforesaid
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judgment. In the light of that judgment concern was expressed on behalf of the Attorney General “as to both the state of the law in relation to the recognition of foreign divorces and more particularly the effect to be given to the judgment …”. If joined as a party the Attorney General expressed his intention to appeal the judgment and order of the High Court to the Supreme Court for final determination. He relied in his application on an inherent jurisdiction of the High Court.
78. In a judgment delivered on the 18th June, 1999 the learned High Court refused the Attorney General’s application to be joined as a notice party and it is from this judgment and order that the Attorney General appeals.
The Attorney General and Section 29
79. I think it would be useful at this stage to consider the role expressly attributed to the Attorney General by Section 29 of the 1995 Act in proceedings for a declaration pursuant to that section and the effect of an order under that section if he is not a party to the proceedings.
80. As a preliminary observation I would note that the provisions of section 29 concerning the role of the Attorney General are similar or analogous to provisions to be found in the Legitimacy Declaration (Ireland) Act, 1868 and the Status of Children Act, 1987. The relevant provisions of those Acts have not, so far as I am aware, been subject to judicial interpretation and I don’t propose to refer to them in detail.
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81. Suffice to say in the context of these proceedings and the 1995 Act that the status and importance of marriage as an institution in society is reflected in the fact that it is regulated by public law and expressly provided for in the Constitution which imposes on the State a duty to safeguard it.
82. The Constitution and the law reflect a shared value of society as to the status of marriage. A declaration as to marital status, made pursuant to section 29 (1) (a) – (e) may have implications for the force and effect of a marriage contracted, or purported to have been contracted, in Ireland.
83. Accordingly, proceedings pursuant to section 29 may well give rise to issues which have effect far beyond the relationship between the private parties to those proceedings and impinge on the State interest concerning the status of marriage as an institution.
84. It is entirely logical therefore that the Oireachtas, when enacting the 1995 Act, would have seen applications pursuant to section 29 of the Act concerning marital status as one ot those areas in which express provision should be made for the State interest to be represented through the Attorney General, as a Constitutional office holder, in accordance with procedures laid down in the Act. It was equally logical that the Oireachtas should limit thc binding effect of a judgment in such proceedings where the State or public interest was not represented as a party to them.
85. The provisions relevant to the role of the Attorney General under section 29 of the Act are as follows: –
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“S.29 (1) …
(4) The court may, at any stage of proceedings under this section of its own motion or on application to it in that behalf by a party thereto, order that notice of the proceedings be given to the Attorney General or any other person and that such documents relating to the proceedings as may be necessary for the purposes of his or her functions shall be given to the Attorney General.
(5) The court shall, on application to it in that behalf by the Attorney General, order that he or she be added as a party to any proceedings under this section and, in any such proceedings, he or she shall, if so requested by the court, whether or not he or she is so added to the proceedings, argue any question arising in the proceedings specified by the court.
(6) Where notice of proceedings under this section is given to a person (other that the Attorney General), the court may, of its own motion or on application to it in that behalf by the person or a party to the proceedings, order than the person be added as a party to the proceedings.
(7) …
(8) A declaration under this section shall be binding on the parties to the proceedings concerned and on any person claiming through such a party and, if the Attorney General is a party to the proceedings, the declaration shall also be binding on the State.
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(9)
(10) Where proceedings under this section, and proceedings in another jurisdiction, in relation to the same marriage have been instituted but have not been finally determined, the court may stay the first-mentioned proceedings until the other proceedings have been finally determined.”
86. What emerges from the foregoing provisions is that the High Court has no power, of its own motion, to join the Attorney General as a party to the proceedings. Indeed Section 29 (6) which gives, inter alia , power to the court of its own motion, to order the joinder as a party to the proceedings a person to whom notice of those proceedings has been given, expressly excludes the Attorney General from its ambit.
87. There are only two steps which the court may take, of its own motion, in relation to the Attorney General. Firstly, it may order that notice of the proceedings be given to the Attorney General and secondly require that he or she argue any question arising in the proceedings, whether or not he or she is added as a party.
88. The court has power to add the Attorney General as a party to the proceedings only if the Attorney General applies to be so added.
89. In effect, it is ultimately and exclusively a matter for the Attorney General to decide whether or not he should become a party to the proceedings. Certainly, the Attorney General is not in a position to make such an application unless he is aware of the proceedings. There
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is no requirement in the section for automatic notification of proceedings under this section, to the Attorney General. Notification is left to the discretion of the court. If such notice is given to the Attorney General evidently it does not follow that in any given case he will necessarily apply to be made a party.
90. In the course of the submissions on behalf of the Attorney General it was contended where, pursuant to Section 29, a declaration is sought that a foreign divorce was valid and entitled to recognition that “it is difficult to conceive of circumstances where the Attorney General would not be an appropriate notice party.” That may be a policy view of the Attorney General which would govern any decision whether or not to apply to the court to be made a party after having received notice of such proceedings but it is not one which is reflected in section 29 of the Act. Section 29 (8), without distinction as to the form of declaration granted under the section, specifically envisages that any such declaration may be (xranted so as to be binding on the parties to the proceeding and on any person claiming through such a party without the Attorney General being a party. The Act extends the binding nature of the declaration to include “the State” only if the Attorney General has been made a party to the proceedings. Accordingly the act expressly envisages a declaration of the nature granted in this case being granted without the Attorney General being made a party, albeit with limited effect as to its binding nature.
91. The position adopted by the parties in these proceedings is that they are satisfied to accept this limited effect of the declaration namely, that it is not binding on “the State”. Which organs or authorities of the State are envisaged by the notion “the State” as used in Section 29 is by no means clear. This was explicitly acknowledged by the Attorney General
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in the submissions made on his behalf. This lack of clarity in the Act is unsatisfactory. However, it is not an issue which arises in this application of a limited nature.
Submissions of the Attorney General
92. First and foremost the Attorney General relies on the inherent jurisdiction of the Court to add him as a party. It was contended that the courts possess a wide and fundamental jurisdiction to amend an order which had previously been made and reliance was placed on the judgment of this court in Belville Holdings v. Revenue Commissioners [1994] ILRM 29. In this context it was also submitted that the order of the High Court in these proceedings was not final and did not dispose of the rights of the parties in any meaningful or complete sense since that order was not binding on the State.
93. Secondly, he submits that although section 29 (4) of the Act confers a discretion on the High Court as to whether or not the Attorney General should be served with notification of the proceedings, that discretion having regard to the nature of the case before it, could, as a matter of law, only have been exercised one way, namely by giving such notification to him.
94. Finally, it was submitted on behalf of the Attorney General that the order of the High Court was in the form of a declaration and it is a principle of law that the courts lean against granting a declaration in circumstances where there is no legitimus contradictor. In this case, it was contended, that there was no true legitimus contradictor.
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Decision
95. The first question is whether the court has an inherent jurisdiction at all to join the Attorney General as a party to the proceedings which were heard and determined in the High Court. The second question, and this would only arise if the first is answered in the affirmative, is whether the court should exercise that jurisdiction.
Inherent Jurisdiction
96. The concept of inherent jurisdiction necessarily depends on a distinction between jurisdiction that is explicitly attributed to the courts by law and those that a court possess implicity whether owing to the very nature of its judicial function or its constitutional role in the administration of justice. The interaction between the express jurisdiction of the courts and their inherent jurisdiction will depend in each case according to the scope of the express jurisdiction, whether its source is common law, legislative or constitutional, and the ambit ot the inherent jurisdiction which is being invoked. Inherent jurisdiction by its nature onix arises in the absence of the express.
97. What we are concerned with in this case is the jurisdiction of the courts to join the Attorney General in proceedings brought pursuant to section 29 of the 1995 Act. I be jurisdiction of the courts to join the Attorney General as a party to such proceedings is expressly addressed in the provisions of section 29. Can the courts be called upon to exercise an unspecified inherent jurisdiction in the face of the jurisdiction delineated by the Oireachtas in section 29 concerning the Attorney General as a party?
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98. Where the jurisdiction of the courts is expressly and completely delineated by statute law it must, at least as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature. To hold otherwise would undermine the normative value of the law and create uncertainty concerning the scope ofjudicial function and finality of Court Orders. It may indeed be otherwise where a fundamental principle of constitutional stature is invoked against a statutory or regulatory measure determining jurisdiction, but that is not the case here.
99. The statutory provisions cited in the earlier part of this judgment had, inter alia, the following effects: –
(a) It laid down the circumstances and means by which the Attorney General could become a party in any case under section 29.
(b) It did not make it mandatory that he be joined in all or in any type of such case and expressly excluded such a mandatory power (section. 29 (6))
(c) It did not make it mandatory that the Attorney General be given notice in all or any type of application.
(d) It limited the powers of the Court to giving notice to the Attorney General or to requiring him to argue a specified point of law (even if not a party to the proceedings).
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(e) It provided for the eventuality in all cases under section 29 of the Attorney General not being a party.
100. It seems to me clear that the foregoing represent conscious choices of the Oireachtas in the enactment of the legislation in question.
101. They are express and complete providing for, on the one hand, the joinder of the Attorney General in certain circumstances and providing for the consequence of his non-joinder in all circumstances.
102. Having regard to the foregoing features of this case, I am of the view that neither the High Court nor this Court can attribute to itself some inherent jurisdiction going beyond the scope of that conferred expressly on the High Court by the Oireachtas in that Act.
103. The learned High Court Judge in my view was therefore correct in refusing the application of the Attorney General to be joined after the proceedings before her had ended.
104. It may be, with the benefit of experience, that the procedures laid down in the Act. particularly with regard to giving notice of proceedings to the Attorney General, are unsatisfactory but that is a matter for the Oireachtas.
105. One further observation. In certain circumstances the Attorney General maybe joined as a party to proceedings because there is some essential State or public interest which may be affected by their outcome. This was not a specific ground relied upon by the Attorney
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106. General in this case but in any event it seems to me one which can only arise in proceedings which are in being, which is not the case here and it may also be circumscribed by express statutory provisions.
A Final Order?
107. As regards a submission on behalf of the Attorney General that the order of the High Court in the proceedings was not a final order, I feel this can be dealt with on the basis of first principles. These were proceedings pursuant to statute according to which persons may seek certain declarations as to marital status and specifically in this case as to the status of a foreign divorce. This was the justiciable question between the parties before the High Court. What was determined by that court is binding on those parties, as envisaged by the statute, and not binding on the State. There has been no appeal, and since the order was made there is no justiciable question outstanding between the only parties to the proceedings. In short, the High Court has exercised its powers and jurisdiction to make the declaration sought in respect of parties specifically envisaged by the statute. The proceedings are at an end. It is perhaps not without significance that the application by the Attorney General to be joined as a party is not based on section 29 (5) of the Act as such, which requires that he be joined, on his application in any proceedings under the section. Of course it is quite logical that the Attorney General should not have sought to base his application on that section. It is self-evident that section 29 (5) envisages an application in proceedings which are in being before the High Court which, in my view, is manifestly not the case.
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108. As regards the submission made on behalf of the Attorney General that the order of the High Court should not be treated as final in that it did not determine completely the rights of the parties as it was not binding on the State I think it is sufficient to say that the High Court order completely disposed of ajusticiable question between parties in a manner and to an extent envisaged by the statute. The fact that its binding effect is limited to those parties and those claiming through them is a consequence of the statute and not of the order. In my view, the learned High Court Judge was also correct in finding that her order of 12th November 1998 was a final order in the proceedings.
Amendment of Final Order
109. In the written and oral submission it was also argued on behalf of the Attorney General that the courts possess “a wider and more fundamental jurisdiction” to amend an Order which it had previously made. For this proposition reliance was placed on Belville Holdings v. Revenue Commissioners [1994] ILRM 29.
110. In that case Finlay C.J., in the judgment of the court, did acknowledge that there is, apart from the correction of clerical errors and the like as provided for in Order 28, Rule 11, of the Superior Court Rules “a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected”. The former Chief Justice envisaged “that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level
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of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached”.
111. As regards the exercise of that “wider and more fundamental jurisdiction” the learned Chief Justice set out the principles which governed that question by reference to a decision of the English Court of Appeal in In re Swire 30 ChD 239. He cited certain passages from the judgments of the Court of Appeal as expressing the principle according to which a court may amend a final order such as “the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon…”; “the order … does not express the order actually made, . ..“; “an order, … maybe amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made,…”.
112. The judgment of this Court in that case makes it clear that the fundamental pox~er o amend a final Order is limited to correcting, so to speak, the final judgment so as to ensure that it accurately reflected the adjudication and the intention of the court which made it.
113. The judgment in that case was approved by this Court in The Attorney General v The Open Door Counselling Ltd. (No. 2) [1994] 2 IR 333 . (In the latter case the court did not exclude interference with a final order where there was a fundamental flaw in the administration ofjustice such as fraud, which does not arise here).
114. In principle, therefore, the jurisdiction of the courts to alter a final order is limited to amending it so as to give true and final effect to what the court had actually decided.
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115. The application of the Attorney General here is of a wholly different nature seeking as it dQes to reopen the proceedings to enable him to bring an appeal to this court against the judgment and order of the High Court. For these reasons I am of the view that the argument made on behalf of the Attorney General is not well founded.
Remaining submissions of the Attorney General
116. The second and third submissions of the Attorney General referred to above, concerning the exercise by the learned High Court Judge of her discretion in the proceedings not to serve notice on the Attorney General and the absence therein of a legitimus contradictor relate to matters which arose in the course of the proceedings before the High Court and in effect seek to call in question the validity of her judgment and order. In so far as they are relevant at all to this application they can only in my view, be relevant to the second question, namely, whether this court, if it has an inherent jurisdiction, should accede to the Attorney General’s application and exercise that jurisdiction.
117. Having concluded that the court has no such jurisdiction it is not necessary to address those arguments. Nor, needless to say, has it been necessary to address the substantive issue concerning the legal basis for the recognition of foreign divorces which arose in the High Court. It may indeed be desirable, from the point of view of clarity and certainty, that the principles of law to be applied in such a case be the subject of a decision of this Court (although the limited nature of its binding effect must at least mean that it can only have legal effect as concerns the parties in that case and those claiming through them). It is not an unusual circumstance for clarity or certainty in the law to await a decision of a court of final instance.
118. However, the issue must be brought before this Court in proceedings where the Court has jurisdiction.
119. For all the foregoing reasons, I am of the view that the application of the Attorney General should be refused.
M.K. v. J.P. (otherwise S.K.)
[2001] 3 IR 371
Appeal from the High Court.
The facts are summarised in the headnote and are fully set out in the judgment of McGuinness J., infra.
By notice of appeal and cross-appeal dated the 29th November and the 4th December, 2000, the parties appealed against the ex tempore judgment of the High Court (Lavan J.), given in the above entitled proceedings on the 20th November, 2000, wherein the applicant was granted a decree of divorce along with certain ancillary reliefs.
The appeal came on for hearing before the Supreme Court (Murphy, Murray and McGuinness JJ.) on the 2nd October, 2001.
David Hegarty S.C. (with him Adrienne Cawley ) for the respondent.
Bill Shipsey S.C. and Eileen Barrington (with themJohn Rogers S.C. ) for the notice party.
Inge Clismann S.C. (with her James Richardson) for the applicant.
Cur. adv. vult.
Murphy J.
6th November, 2001
I agree with the judgment to be delivered by McGuinness J.
Murray J.
I also agree with the judgment of McGuinness J.
McGuinness J.
This is an appeal arising from divorce proceedings brought by the applicant wife pursuant to the Family Law (Divorce) Act, 1996 (“the Act of 1996”). The respondent husband has appealed against the judgment and orders of the High Court (Lavan J.) made on the 21st November, 2000 and the 28th March, 2001.
The facts
The parties were married in England on the 21st September, 1963, both being of Irish origin but living in England. There were six children of the marriage born between 1964 and 1975, none of whom is now a dependant child within the meaning of the Act of 1996.
In or about 1972, the parties returned to Ireland where the respondent had obtained employment in a provincial town. They purchased a family home in that town which is acknowledged to be jointly owned by them. In the late 1970s, unhappy differences arose between the parties, of which there is no need to give details here, and they began to live separate and apart in or about the year 1980. On the 1st January, 1982, they entered into a deed of separation which provided that the applicant should continue to reside in the family home and to have custody, care and control of the children, the respondent to have reasonable access to the children and to spend specified times on holiday with them. The respondent was to pay maintenance to the applicant both for herself and for the children until they completed secondary education or reached the age of 18. This maintenance was to be increased periodically in accordance with increases in the consumer price index, and there was a clause allowing for variation of maintenance if a fundamental change in the circumstances of either party arose.
The respondent was to provide voluntary health insurance for the applicant and children and to make all mortgage repayments on the family home. It was provided that the applicant’s maintenance would cease if she remarried. There was a mutual renunciation of rights under the Succession Act, 1965. There were also a number of standard and customary clauses not relevant to the present proceedings.
The parties have continued to live separate and apart to date and the deed of separation remained in force until the commencement of the applicant’s divorce proceedings. On the evidence before the High Court(the transcript of which was provided to this court) the respondent fulfilled the financial provisions of the separation deed. He also, by direct arrangement with the children, made provision for their third-level education. Since the separation of the parties the applicant has had some periods of part-time employment but has in the main been fully involved in her role as a mother to her children. At the time of the issue of the proceedings the applicant had moved to reside in rented premises outside Dublin. She later returned to the family home.
Since the separation the respondent has entered into a long-term relationship with the notice party The timing of the beginning of this relationship is in issue between the parties, but this is irrelevant to the matters to be decided by this court. In February, 1995, the respondent applied for and was granted a decree of divorce in the courts of the Republic of Haiti and shortly thereafter he went through a ceremony of marriage with the notice party in the United States. The respondent and the notice party have continued to live together as husband and wife and hold the vast majority of their property and financial assets jointly. In evidence the respondent stated that the notice party made substantial direct and indirect contributions to the acquisition of these assets and this evidence was in effect unchallenged.
At the time of the parties’ separation the respondent was in steady employment in a senior post in the provincial town in which they lived. He had what was at the time a good salary but was by no means a wealthy man. He had invested in a development scheme to build a new family home and a few other houses in the neighbourhood of the town. Unfortunately, shortly after he had begun to live separate and apart from his wife, the firm by which he was employed closed down through lack of business and he lost his employment. In addition, due to economic conditions at the time, his housing development scheme failed with resulting financial loss to him.
Following his separation and the loss of his employment the respondent moved to another part of Ireland where he obtained employment at the European headquarters of an international firm based in the United States. He has been remarkably successful in his career in this employment and has become firstly vice-president and now president of the entire international undertaking. As a result he and the notice party have resided, since 1993, in the United States where they jointly own a family home. They also jointly own a house in Ireland.
On account of the respondent’s success in his career he has accumulated considerable wealth, the vast majority of which is held jointly with the notice party. In addition he is paid a high salary by his employers and may also be paid a bonus of up to 100% of his salary each year.
During the course of the proceedings before this court counsel for the respondent informed the court that subsequent to the granting of the decree of divorce by the High Court (against which there is no appeal), the respondent and the notice party had married in a civil ceremony under Irish law on the 31st August, 2001.
The proceedings
The applicant issued her divorce proceedings by way of family law civil bill in the Circuit Court on the 3rd June, 1998, seeking a decree of divorce together with a number of ancillary financial orders including periodic maintenance, a lump sum order, a property transfer order and a pension adjustment order. By an interim application to the Circuit Court she sought maintenance pending suit, and on the 14th July, 1998, the Circuit Court made an order directing the respondent to pay a sum of £86.00 per week in addition to the maintenance which he was already paying under the terms of the separation deed of 1982. On the 15th February, 1999, the applicant applied to the Circuit Court to have her proceedings transferred to the High Court. This application was refused by the Circuit Court but on the 23rd April, 1999, was granted on appeal by the High Court.
The substantive proceedings came on for hearing before the High Court on the 13th November, 2000 and were at hearing before Lavan J. for a total of five days. At the close of the evidence submissions in regard to the law were made by counsel on all sides. Following these submissions, on the 20th November, 2000, the trial judge gave judgmentex tempore. On the following day, the 21st November, he made an order granting a decree of divorce and made ancillary orders as follows:-
1. That the respondent do transfer to the applicant his entire legal and beneficial interest in the family home situate at (address) in the county of (name).
2. That the respondent do pay to the applicant for maintenance backdated to the 1st May, 1999, a sum equal to one half of his annual salary including bonuses.
3. That the respondent do pay to the applicant a lump sum of £1,500,000.
This lump sum represented approximately one half of the assets held by both the respondent and the notice party. A number of matters including the making of a pension adjustment order were adjourned for later hearing. A counterclaim made by the respondent was dismissed and the respondent was ordered to pay the costs of the proceedings.
The matter of the pension adjustment order was dealt with following further application to the court in March, 2001. On the 28th March, 2001, the trial judge made an order directed to the trustees of the respondent’s Irish pension fund providing that 80% of the respondent’s Irish pension, when it fell due, was to be paid to the applicant.
The judgment of the High Court
In his judgment the High Court Judge described the respondent on his view of the evidence, as having become in or about 1985, a man of corporate mentality whose actions and attitudes towards the applicant were determined by “the questionable morality emanating from this mid-American company which is located in Galway”. The judge laid considerable stress on the manner in which the respondent had obtained the Haitian divorce and later his remarriage in the United States and described him as having “driven a coach and four through Irish legislation”. He stated that his marriage in the United States was bigamous. He rejected the respondent’s evidence concerning the divorce and remarriage but acknowledged that there had been adultery “on both sides”.
In reference to the law regarding financial provisions ancillary to the granting of a divorce, the trial judge expressed his views as follows:-
“Accepting the submissions made by counsel for the applicant in relation to the Law Lords’ view of how to deal with these circumstances in their judgment in White v. White [2001] 1 A.C. 596, I am happy that in current phraseology the court may use the term ‘equality’. In my view, however, the court should continue to adopt the fundamental rules that had been in existence for nearly 200 years in determining whether a wife is entitled to be maintained according to the style of her husband.”
This appears to be the key passage, and indeed the only passage, in which the trial judge indicated the basis in law on which he exercised his discretion. He went on to outline the orders which he proposed to make, stating that the applicant was entitled to 50% of her husband’s income and awarding her a lump sum payment of £1,500,000. He adjourned the question of the making of a pension adjustment order and a number of other questions which need not be considered by this court at this stage of the respondent’s appeal.
The notice of appeal
The respondent appealed the ancillary orders made by the High Court (Lavan J.) by a notice of appeal dated the 27th November, 2000. Twelve grounds of appeal are listed including the ground that the trial judge’s findings of fact in relation to the respondent’s evidence were unsupported by the evidence adduced or the reasonable inferences to be drawn therefrom, and were against the weight of the evidence. However, the main and principal ground of appeal is that the trial judge erred in law and in fact in failing to have any or any due and sufficient regard, pursuant to s. 20(3) of the Family Law (Divorce) Act, 1996, to the deed of separation executed by the parties on the 1st January, 1982 and that the trial judge failed to have any regard, or any proper regard, to the period of the parties’ separation of in excess of 20 years. In addition it is alleged that the trial judge failed to consider and balance properly or at all the matters set out at s. 20(2)(a) to (l) of the Act of 1996. A subsidiary ground is that the trial judge misdirected himself as to the legal principles applicable and as to the authorities opened to him in submission.
The respondent also appealed the pension adjustment order made by Lavan J. on the 28th March, 2001, by notice of appeal dated the 9th July, 2001. On account of the approach taken by this court at its hearing of the appeal proceedings it is unnecessary at this stage to consider the issue of the pension adjustment order.
The Supreme Court proceedings
The respondent’s appeal came on for hearing before this court on the 2nd October, 2001. At an early stage in the opening of the respondent’s case by his counsel, it became clear that the primary issue before the court was whether the trial judge had erred in failing to have regard to the terms of the separation agreement which had been entered into by the parties and which was still in force in accordance with the terms of s. 20(3) of the Act of 1996. Counsel for the respondent submitted that the trial judge had also failed to have sufficient regard to many of the relevant factors set out in s. 20(2) of the Act of 1996. It was clear that this issue was fundamental to the outcome of the appeal. If the respondent were to succeed on this point there would be no need to proceed in a complex and costly two day hearing on the evidential and other points raised in the notice of appeal.
Counsel, therefore, in accordance with the directions of this court, made submissions on this primary ground of appeal as a preliminary issue. Counsel for the respondent submitted that the trial judge had made no
reference whatsoever in his judgment to s. 20(3) of the Act of 1996, or to any regard he might have had to the fact that the parties had not lived together for the past 20 years and that in 1982, they had regulated their affairs by a deed of separation which was still in force. Both parties had received full and competent legal advice at the time they entered into the deed. Section 20(3) of the Act of 1996, was mandatory in form, providing that in deciding whether to make an order under a provision referred to in sub-s. (1) and in determining the provisions of such an order, the court “shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force”. Counsel submitted that in exercising his discretion the judge had relied solely on his own interpretation of the judgment of the House of Lords in White v. White [2001] 1 A.C. 596 and on “fundamental rules” that had been in existence for nearly 200 years. Counsel for the respondent argued both that the judge’s interpretation of the judgments of the House of Lords in White v. White was erroneous and that the so-called rules of 200 years standing referred to him were unknown to the law. Central to the application of the constitutional and statutory principles in the consideration and determination of the issue of proper provision for a spouse on divorce was the reliance on judicial discretion. Section 20 of the Act of 1996 set out the statutory guidelines to be followed by the court in the exercise of its discretion in making ancillary orders. In the instant case the trial judge had totally failed not only to follow but even to consider these statutory guidelines.
Counsel for the applicant argued that, although the trial judge did not make explicit reference to s. 20(3) and other provisions of s. 20 in his judgment, it was clear from the whole course of the proceedings that he had in fact had regard to the matters set out in the statute. The law, including the statutory provisions, had been opened to him by her when she opened her case. The trial judge had given a courteous, careful and patient hearing to all the evidence over a period of five days. Both counsel had made full legal submissions to him at the close of the evidence. It was, counsel submitted, implicit in his judgment that he had proper regard to the matters set out in s. 20(2) and (3) of the Act of 1996. In a judgment given ex tempore it was not to be expected that the judge would set out in explicit detail all the factors which he had considered in reaching his decision. Counsel for the applicant also submitted that in making reference to the principle of equality as set out by the House of Lords in White v. White [2001] 1 A.C. 596, the trial judge was using the correct principle, a principle which was also found in this jurisdiction of the High Court in J.D. v. D.D. (Judicial Separation) [1997] 3 I.R. 64.
The Law
Section 5 of the Family Law (Divorce) Act, 1996, provides as follows:-
“(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that -”
(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
(b) there is no reasonable prospect of a reconciliation between the spouses, and
(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,
the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned.”
Other sections of the Act of 1996, give the court power to make a variety of financial and property orders ancillary to the granting of a divorce decree so as to ensure that proper provision is made for the spouses and for any dependant children of the marriage.
Section 20 provides as follows:-
“(1) In deciding whether to make an order under section 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.
(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:
(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,
(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in a case of the remarriage of the spouse or otherwise),
(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,
(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another,
(e) any physical or mental disability of either of the spouses,
(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,
(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,
(h) any income or benefits to which either of the spouses is entitled by or under statute,
(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,
(j) the accommodation needs of either of the spouses,
(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,
(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried,
(3) in deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.
(4) …
(5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”
Sub-section (4) deals solely with the making of orders in favour of dependant members of the family and is thus not relevant to the instant case.
The terms of s. 20(2) are similar to the provisions contained in s. 20 of the Judicial Separation and Family Law Reform Act, 1989 and also s. 16 of the Family Law Act, 1995. Section 20(3) is however, a new provision specifically included in the legislation dealing with divorce.
The matters listed in s. 20 of the Act of 1989, s. 16 of the Act of 1995 and s. 20 of the Act of 1996, have been considered specifically and in some detail in a number of judgments both in the High Court and in the Circuit Court. These include decisions in cases where large sums of money were involved – see, for example, J.D. v. D.D. (Judicial Separation) [1997] 3 I.R. 64 and McA. v. McA. (Divorce) [2000] 1 I.R. 457. The situation where a prior separation deed was in force has also been considered both in the High Court in J.C.N. v. R.T.N. (Unreported, High Court, McGuinness J., 15th January, 1999) and in the Circuit Court by His Honour Judge Buckley, in M.G. v. M.G. (Unreported, Circuit Court, Judge Buckley, 25th July, 2000). This court has been informed by counsel that these authorities were opened to the trial judge in argument but no reference is made to them in his judgment.
In the course of his judgment the trial judge refers to the decision of the House of Lords in White v. White [2001] 1 A.C. 596. This case had been opened to him by counsel for the applicant in her submissions to the court. White v. White marked a turning point in the jurisprudence of the English courts in their approach to the division of matrimonial property in what are often described as”big money cases”. Previously the English courts, led by the Court of Appeal, had adopted a system whereby, in a situation where the family assets were large and a “clean break” solution was deemed desirable, the wife would be granted a lump sum large enough to provide for her”reasonable requirements” until the date of her death. The remainder of the family assets went in general to the husband. This was certainly the general rule in a case where the wife’s role had been that of a stay at home wife and mother. This “reasonable requirements” system had been followed originally in the High Court in White v. White . The Court of Appeal considerably increased the amount of the family assets to be paid to the wife, largely on the grounds that the parties had operated a farming partnership in which the wife played a very large part. Both parties appealed to the House of Lords. The House of Lords upheld the decision of the Court of Appeal, but took the opportunity in their opinions to reject the “reasonable requirements” guideline and to hold that, as stated in the headnote, there was no legal presumption of equal division when awarding ancillary relief, but a judge exercising his statutory discretion should, before making his final decision, check his tentative views against theyardstick of equality of division and depart from equality only if, and to the extent that, there was good reason for doing so. A claimant’s financial needs or “reasonable requirements” should not be regarded as determinative in arriving at the amount of an award, and the assessment of financial needs should be treated only as one of several factors to be taken into account, particularly when the financial resources of the parties exceeded their financial needs. In particular the value of a woman’s work in the home as a wife and mother was stressed.
The decision in White v. White [2000] 3 W.L.R. 1571 gave rise to a considerable level of legal and academic commentary in England. It was analysed at some length in the judgments of the English Court of Appeal in Cowan v. Cowan [2002] Fam. 97 to which I shall make some reference later.
Conclusion
In making his decision as to the proper provision to be made for the parties in this case, the trial judge has relied on a principle of equality, directing that the respondent is to pay to his wife both half his income and approximately half his capital assets. In thus deciding he explicitly relied on “the fundamental rules that had been in existence for nearly 200 years in determining whether a wife is entitled to be maintained accordingly to the style of her husband”. Given the orders which he made one must presume he understood these fundamental rules to prescribe an equal division of both income and assets between divorcing or separating spouses. While I would of course accept that the wife of a rich man (or the husband of a rich woman) could always expect a substantially greater award both in income and in capital than the parties to the average marriage, I very much doubt that a policy of equal division of assets between husband and wife has prevailed under common law rules since the beginning of the 19th century, or even the 20th century, either in this jurisdiction or in England. In both jurisdictions the division of matrimonial assets on separation or divorce has, since the mid 20th century at least, been governed by statute. Explicit mandatory guidelines for the court have been set out in these statutes.
The trial judge also referred with approval to the use of the term”equality” in White v. White [2001] 1 A.C. 596, which had been opened to him by counsel for the applicant in the course of her submissions. While Lord Nicholls of Birkenhead in his speech in that case certainly stressed the importance of equality as a check or yardstick, he was not suggesting that the individual circumstances of each case, or the statutory guidelines, should be ignored. It should be noted that the husband and wife in White v. White were not a couple with traditional roles but were business partners in large farming enterprise. Throughout his speech Lord Nicholls stressed that the overall objective of the court should be fairness.
It should also not be forgotten that in their judgments in White v. White [2001] 1 A.C. 596 the members of the House of Lords were reacting to the “reasonable requirements” yardstick which had prevailed in big-money cases in the English courts for many years. As was pointed out by Lord Nicholls, the “reasonable requirements” standard was discriminatory in its nature, in particular against wives who fulfilled the traditional role of wife and mother throughout a long marriage. Thus White v. White may be seen as a useful corrective in English matrimonial law. This was acknowledged in the judgments of the Court of Appeal in the later case of Cowan v. Cowan [2002] Fam. 97.
In that case Thorpe L.J., one of the most distinguished and experienced family law judges in the English judiciary, provided a survey both of the history of the relevant legislation and of commentary on White v. White [2001] 1 A.C. 596 by leading academics. He went on to consider in detail the judgments in White v. White and the application of the principles set out in that case. At para. 53 of his judgment Thorpe L.J. states:-
“The decision in White v. White clearly does not introduce a rule of equality. The yardstick of equality is a cross check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure.”
The concept of a single capital payment to the wife to meet her”reasonable requirements” for the remainder of her life has never in fact formed a part of Irish family law. There are two main reasons for this. Firstly, such a capital payment is inevitably a part of a “clean break” settlement in divorce proceedings. In this jurisdiction the legislature has, in the Family Law (Divorce) Act, 1996, laid down a system of law where a “clean break” solution is neither permissible nor possible. Secondly, the approach of the Irish courts, in accordance with both Article 41.2 of the Constitution and the statutory guidelines, has been to give full credit to the wife’s contribution through her work in the home and as a mother to her children: (see, for example, J.D. v. D.D. (Judicial Separation) [1997] 3 I.R. 64). In this jurisdiction the overriding requirement of a fair outcome is governed by s. 20(5) of the Act of 1996:-
“The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”
The provisions of the Act of 1996, leave a considerable area of discretion to the court in making proper financial provision for spouses in divorce cases. This discretion, however, is not to be exercised at large. The statute lays down mandatory guidelines. The court must have regard to all the factors set out in s. 20, measuring their relevance and weight according to the facts of the individual case. In giving the decision of the court, a judge should give reasons for the way in which his or her discretion has been exercised in the light of the statutory guidelines. In his judgment in the instant case the trial judge has notably failed to do this.
This is not an ordinary or average case; it raises many difficult questions. In deciding what is proper provision for the applicant the court must take into account the separation deed entered into by the parties, the fact that they have lived apart for some 20 years, the applicant’s financial needs and the role which she has played in caring for the children, and the fact that the entire of the respondent’s wealth has been accumulated subsequent to the separation of the parties. These questions and others, and their relation both to the statutory guidelines and to the facts of the case should be set out in the judgment of the court.
As an appellate court, this court is charged with the task of deciding whether the judge in the court below has correctly exercised his discretion under the statute. Such a task is rendered impossible if, as in this case, no indication is given in the judgment of the trial judge as to what regard he had to the various factors set out in s. 20 of the Act of 1996. In particular, despite the mandatory requirement of s. 20(3), no reference whatever is made to the effect of the deed of separation of 1982.
Unfortunate though it undoubtedly is for both parties, in my view, this court has no choice but to return this matter to the High Court so that the question of proper provision for the parties to the divorce may be considered in the light of the mandatory provisions of the statute. I would allow the appeal and return the case to the High Court.