BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. The Applicant and the Respondent were married in 1980 according to the rights of the Roman Catholic Church.

2. The Applicant was born in 1949 and is now 52 years of age. The Respondent, was born in 1952 and is now 48 years of age.

3. In the proceedings before the Court the Applicant husband seeks a decree of divorce pursuant to Section 5(1) of the Family Law (Divorce) Act, 1996, together with various ancillary orders. He also seeks an Order pursuant to Section 13(1)(a)(ii) of the 1996 Act as to what periodical payments he should make to the Respondent for the support of the dependant children of the marriage. Finally he seeks an Order pursuant to Section 15(1)(f) of the 1996 Act in relation to access to the dependant children of the marriage.

4. The Respondent wife accepts that the constitutional and statutory test for the granting of a decree is satisfied, but counterclaims for a decree of Judicial Separation pursuant to Section 2 of the Judicial Separation and Family Law Reform Act, 1989. The Respondent has made it clear that she does not wish to be divorced and opposes the divorce on religious grounds. She also seeks a full range of Financial Orders ranging from Maintenance Orders to Lump Sum Orders to Property Adjustment Orders and Pension Adjustment Orders.

5. The Applicant and the Respondent were married in 1980. They have three dependant children of the marriage. The Applicant and the Respondent are both professional people.

6. Shortly after their marriage in 1980, the parties moved house. At this time the Applicant commenced his practice from the family home. In the early years of their marriage the Respondent worked in the Applicants 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. The Respondent has spent most of her professional life working in low-key posts, as both parties agreed that this was more compatible to family life. The Respondent re-entered part-time employment 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 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.

13. The Respondent’s work 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.

14. The Applicant seeks access in relation to the youngest child of the marriage only, acknowledging that the two older children are in a position to make up their own minds as to the extent and nature of their relationship with him. The Applicant seeks to avail to access to his son in the context of his new relationship. He currently sees his son once a week for two hours in the evening and wishes to see his son twice a week, with access perhaps on another weekday evening. There are a number of difficulties in the Applicant’s relationship with his children. Earlier in the proceeding the Applicant brought an application under Section 47 of the Family Law (Divorce) Act, 1996 seeking an Order of the Court directing that a child psychiatrist be appointed to carry out an evaluation of the parties and the children, with a view to making recommendations to the Court in relation to the access that the Applicant should exercise to the children. This application was opposed by the Respondent and the children themselves, and the application was subsequently not proceeded with.

15. In raising the issue of Maintenance, Counsel for the Applicant looked at the effect of the Family Law (Divorce) Act, 1996 on the previous common law position in relation to Maintenance. The position at common law was that on marriage a husband became entitled to most of his wife’s property and in return he was obliged to maintain her by providing her with necessaries.

16. Building on this common law position however, the Judicial Separation and Family Law Reform Act, 1989 and in turn the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996 have developed a more detailed statutory test in order to determine what constitutes proper provision.

17. The test as set out in Section 20 of the Family Law (Divorce) Act is as follows:-

18. Counsel for the Applicant then went on to consider the approach of the Courts in dealing with so-called “big-money cases” such as this one. Big-money cases are those

19. Counsel for the Applicant then went on to submit that a more circumspect approach was advisable in Ireland, as our divorce legislation differed from the English legislation in a number of ways. Firstly, there was the Constitutional requirement that the parties must have lived apart for a period of four years prior to the institution of proceedings. Counsel submitted that this consideration directly impacts on whether the assets involved

20. Secondly, Counsel for the Applicant argue that the thrust of amy of the big-money cases in the United Kingdom was towards providing a “clean break” between the spouses. There is no “clean break” provision in Irish law with the Family Law (Divorce) Act, specifically providing for reviews of several areas of ancillary financial relief and a continuous review of Maintenance and lump sum awards. The Applicant submits that for this reason it would be wrong to adopt the approach in White -v- White as one might be tempted to make a clean division of the existing assets. He drew attention to the fact that McA -v- McA , Mr. Justice McCracken made it clear that he regarded as a relevant factor the periodic payments he was ordering, before making a lump sum in favour of the Applicant.

21. Thirdly, Counsel for the Applicant submit that the Court must consider the meaning of the term “proper provision” in Section 20 of the Act. They submit that the use of these words by the legislature indicates a desire in the legislation that the Courts approach the issue from the point of view of reasonable needs as opposed to the yardstick of equality. They submit that the case of White -v- White was decided within the context of the English equivalent to Section 20 which makes no mention of proper provision but instead makes reference to placing the parties in the same financial position they would have been in if the marriage had not broken down.

22. As regards the question or access, the Applicant seeks an Order pursuant to Section 15(1)(f) of the Family Law (Divorce) Act, 1996. The Section provides that on the

23. Counsel for the Respondent drew attention to the case of JD -v- DD (Unreported, High Court, 14th May, 1997) Mc Guinness J., in looking at the issue of Maintenance in big-money cases considered the approach of the English Courts to be persuasive. She stated at page 38:-

24. McGuinness J. concluded at page 40 that:-

25. While that case was under the Family Law Act, 1995 the principles remain largely the same

26. The Respondent submits that there is a sound basis for the Court having regard to the English case law. However, she submits that two points need to be taken into account before so doing; namely, the strong constitutional imperative requiring adequate provision as exists in Irish law, and the fact that, unlike the position in the United Kingdom, a spouse has a specific mathematical entitlement to the estate of the other spouse. Counsel submit that the fact that these specific succession rights are foregone on divorce means that a more generous allocation should be afforded to the Respondent in this jurisdiction.

27. Counsel also made reference the case of McA -v- McA [2000] 1 IR 457. The Judgment of McCracken J. is the most significant example of a big-money case since the enactment of the Family Law (Divorce) Act, 1996. Here McCracken J. relied on the fact that the wife was to receive £1.2 million, a series of valuable properties and a lump sum of £300,000, in making his Order that the wife transfer her share in the family company to her husband. Counsel submitted however, that it is important to note that the relevant passage was predicated on the finding of McCracken J. at page 14 that:-

28. In that case it was accepted that there were significant limits to the extent to which a financial burden could be placed upon the husband’s business, without causing it significant harm. In addition, substantial Maintenance was ordered in favour of the wife, notwithstanding that there were no continuing dependent children.

29. Counsel for the Respondent referred to the recent English case law of White -v- White [2001] 1 All ER 1, HL. and Cowan -v- Cowan [2001] 2 FLR 1, CA. and submitted that the Court should adopt a test similar to that applied in the case of Cowan -v- Cowan . Firstly, they submit the Court should apply the statutory criteria as set out in Section 20 of the Family Law (Divorce) Act, 1996. Secondly, in evaluating the contributions of both parties to the welfare of the family, in accordance with Section 20(2)(f), the traditional role of women in the home should not be valued lower than that of the role of breadwinner, as to do so would be to discriminate. Thirdly, assessment of assets should be at the date of trial or appeal, except in circumstances where there had been a deliberate and reckless wasting of assets. Finally, it is submitted that there must be an interaction between the various Financial Orders, so that if the Court makes no, or a low Maintenance Order, then that should be reflected in a correspondingly high lump sum award.

30. Counsel for the Respondent submit that the division of assets should not depart to a large extent from broad equality for a variety of reasons. It is submitted that:-

31. Applying those principles, Counsel for the Respondent submit that the most advantageous Order to all sides would be to order a specific capital sum to the Respondent. Counsel for the Respondent submit that on an assessment of the parties total net assets at £16 million, being £15 million to the Applicant and £1 million to the Respondent, and applying the equality check recommended in Cowan -v- Cowan and White -v- White , that would require a capital transfer, by way of a lump sum, of £7 million to secure equality. To apply another check, namely that of one third inheritance entitlement, this would require a transfer of approximately £4.4 million, to leave the Respondent with approximately one third of the net assets. Counsel submit that the appropriate range of the Order is between £4.3 and £7 million. They submit that because of the various aforementioned factors it should be in the higher end of that range.

32. I have had regard to the provisions of Section 20 of the Family Law (Divorce) Act, 1996 in respect of the proper provision to be made for the spouse and dependant boy and young man in this case.

33. Without prejudice to the foregoing I have paid particular regard to all of the matters contained in Section 22.

34. In my view I have no difficulty with Section 22 ((a) through to (h)). This is a family where the husband has assets in excess of £20,000,000 and the wife has assets of some £1.15 million. In the later years of their married life they enjoyed an exceptional standard of living.

35. I note that immediately prior to the opening of this action the Applicant made an open offer of £1,000,000 to the Respondent.

36. I have been referred to a number of authorities beginning with J D -v- D D McGuinness J. Therein at page 38 the opinion of the Judge is as follows:-

37. I might add, in this case, that I do not see the making of a lump sum payment as introducing the “clean break” concept into Irish law. In my view it is making provision for the financial security of the Respondent. The Applicant has, before order of this Court, established a second family relationship and now has a daughter of same. What the future holds is therefore uncertain from all parties points of view.

38. In relation to the English authorities relied upon I have found them extremely helpful and interesting. Where it is possible I ought to follow a decision of the High Court. In this case I do follow the above judgment. The decisions of the English Courts are of strong persuasive value warranting great respect and evaluation. It goes without saying that they represented most interesting assessments by leading English juris and I find them of assistance in this case.

39. The decision of McCracken J. in McA -v- McA is also of assistance as it deals with relief sought under the Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995 by the Applicant therein and under the provisions of the Family Law (Divorce) Act, 1996 by the Respondent therein.

40. In the decision of P O D -v- J O D , Budd J., there is a full assessment of the Irish and English authorities and I note that the learned Judge has followed the decision of McGuinness J. in J D -v- D D and therefore decided to divide the assets equally between the parties.

41. Turning to the House of Lords decision in White -v- White , delivered on the 26th October, 2000, which was an appeal dealing with:-

42. Let me say that those are sentiments I wholeheartedly concur with notwithstanding the difference in law between the two jurisdictions.

43. Likewise I find that the further Opinion in that position of great relevance and that:-

44. The learned Judge went on to elaborate on the above.

45. The learned Judge concluded his opinion with the following observation:-

46. Whilst clearly distinguishing the above case as a “clean break” case, I nonetheless find the principles therein enunciated as helpful in the interpretation of Sections 22(1) and (2) of the Family Law (Divorce) Act, 1996.

47. Likewise I make a similar assessment of the Court of Appeals decision in Cowan -v- Cowan dated the 14th May, 2001 applying the White -v- White decision. The extensive Opinions expressed therein highlight the need for a thorough assessment of the criteria set out in the English statute by each trial Judge.

48. On one particular point I have no hesitation in following the Courts decision in the above case, namely, that the assessment of assets must be at the date of trial or appeal. I am much taken with the view expressed by Mance L.J. at page 43 of that report and accept the point and apply it in this case.

49. The Applicant gave evidence and I accept same in most respects subject to the views that I will express where that evidence is in conflict with the Respondent’s evidence on three areas of conflict.

50. A certified Chartered Accountant gave evidence. I accept his evidence as to the nature of the Applicants tax sheltering arrangements. I note that he readily admitted that his views, as to the future, was based on conjecture.

51. As suited the running of the case, an accountant then gave evidence on behalf of the Respondent.

52. Thereafter the Respondents then gave evidence in relation to her graduation in 1976.

53. Her evidence was interposed with that of Mr. John Devlin, who gave evidence, for the Applicant, as to the valuation of various properties.

54. The Respondent gave evidence that she met the Applicant in 1978 and moved to the North of Ireland in June, 1980 where she worked. The Applicant commenced employment in 1980.

55. In 1984, the Respondent sold her Dublin home. She gave evidence as to her work with the Applicant’s practice. He worked extremely hard and she was anxious that he would succeed in his ambition. All her monies, from employment, the sale of her Dublin home, and the £7,000 proceeds of a personal injury claim went into the family fund.

56. She detailed her seven pregnancies. In relation to her marriage, C was born in 1981, N was born in 1983 and D was born in 1989.

57. The Respondent had seven pregnancies in all. P was born in 1985 and died at the age of 7 months. J was born in 1987 and he was dead at birth. The Respondent had two miscarriages in 1982 and 1986.

58. From 1980 until 1989 the Respondent gave evidence that she worked as aforesaid. Thereafter she took 1 year leave of absence. Finally she resigned from that position in 1993 having commenced in private practice at that time. In 1994, she obtained her membership.

59. There is no great dispute as to the purchase of the various properties between the parties. I note that the Respondent was adamant that the purchase of one property was with a view to its being the family home.

60. The Respondent considers the crisis in the family affairs to have come to a head in 1994. The Applicant had gone to London after Christmas in 1993 and she thereafter noticed a changed attitude on his return from that vacation and during the months of 1994 up to August, 1994.

61. The Respondent and the three children went to Dublin in or about the 21st August, 1994. The Applicant phoned each evening. On their return to the family home, the Applicant had left, the family home taking his belongings with him.

62. This was traumatic for the Respondent and the children.

63. The Respondent says that from the time of the Applicants departure until 1996, a state of affairs existed whereby the Applicant would visit, virtually on a daily basis and regularly have his evening meal.

64. All of this changed with the Applicants admission in December, 1996 that he was having an affair with a member of his staff. Up to that time the Applicant had open access to the family home, to his children, to his wife and was fed on a regular basis.

65. Thereafter the Respondent considered herself and the children demeaned and ridiculed, as the family were well known in the town and locality. She also gave as evidence as to the objection to the divorce proceedings herein. Whilst seeking to establish her medical practice, it was of limited income and she has assets of £1.15 million.

66. An Accountant gave evidence of the Respondents accounts. I note these figures and will relate to them later in due course.

67. An Auctioneer gave evidence as to the local value of the properties.

68. Mr. Philip Shier, an Actuary, gave evidence in relation to the Applicants pension policies based on values provided by the respective insurance companies.

69. Taking the evidence of the Applicant and the Respondent, I have to come to the following view:-

70. Both set out in their marriage as two ambitious people. The Respondent made a very special financial contribution to that marriage. Her income was certain. It and the funds from the sale of her Dublin house and the damages for her personal injury claim went

71. I take the view that up until 1989, the parties had common cause in developing and increasing their wealth. I think it likely that the Respondent assisted to some substantial degree in establishing her husbands practice. For his part the Applicant gave a total commitment to establishing a thriving practice. It is likely that those efforts, achievements, and disappointments were likely to have created a somewhat volatile relationship up until the early 1990’s.

72. From 1990 to August, 1994 the marriage was deteriorating on the evidence. I consider the Respondents evidence in respect of this period to be more probable then that of the Applicants. The Applicant had a number of affairs during this time which I believe he admitted to and he was of the view that the marriage was over without so much as telling the Respondent of this fact. I think it unlikely that the Respondent should have been so traumatised by the Applicants admission of infidelity in or about December, 1998. Had there been a clear understanding between both parties as to their respective positions on the viability of the marriage and the fact that the Applicants behaviour indicated in his view that it was over and in relation to the Respondent that she was unaware of this fact.

73. My concluding view of the evidence is as follows:-

74. I accept the evidence of the Applicant and the Respondent as to the historic development of their marriage. Both are strong and self willed personalities and will have their day in Court.! They chose each other as partners and I do not see the need for proffering one to the other - apart from the specific views I have taken on their evidence as indicated above.

75. Turning to the provisions for the Respondent, the infant and the second son, which I consider proper having regard to the Applicants claim for a decree of divorce, and

76. Subject to that important reservation I am impressed with the case, the evidence, and the submissions made by and on behalf of the Respondent and do accept them.

77. The expert witnesses called on behalf of each party seems to me to be in general agreement as to the extent of the financial standing of both parties. I therefore take the view that the Applicants assets are worth in or around figures some £20 million. The Respondents assets on a like basis are to be valued in or about the sum of £1.15 million.

78. One outstanding matter that has given me much difficulty is the specific provision of Section 20(2)(i) 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.

79. 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.

80. Finally, and of significance, I note that the Applicant is in a new relationship and has a baby daughter born during the hearing of this case. It seems to me to be a

81. Having regard to the foregoing and conscious that I ought to take a conservative view of such “lump sum” for the reasons stated, I propose to award the Respondent the sum of £5 million without the payment of continuing Maintenance, in the special circumstances of this case.

82. To the infant D, I will allow a sum of £800 per month Maintenance until he attains the age of 18 years or continues into third level education. To the two eldest sons, who remain as dependants I will, at this stage, make no Order in the hope that their financial requirements are understood by and discussed with the Applicant. There will be liberty to apply in relation to this matter.

83. 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 Section 20(2)(i) 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.

84. Steps will have to be taken by the Respondent and the Applicant to give effect to this Ruling on this aspect of the case and I propose to put the matter, on this issue, back until same has been done.

85. It is agreed that the two eldest sons and the Applicant will find their own accord. I am therefore concerned with D’s position. He was born in 1989. He is now 12¹/ 12 years of age.

86. In the absence of appropriate reports I interviewed D and the second son N. The eldest son was abroad as befits a third level student of his age.

87. I was impressed by both. They are a credit to themselves and their parents. This boy, D, was 7 8/12 years of age when he first became aware of the trauma between his parents. He is an able young man. Intellectually and as a sportsman, he is very able. He, understandably, has problems about his parents break-up.

88. In the Applicants Special Summons the Applicant sought an Order for a proper assessment to be carried out with a view to the custody and access of both parties to that child.

89. An application under Section 49 of the Act was issued. Due to the Respondents determined opposition this was, unfortunately, not proceeded with.

90. In my view, if ever the Court require the assistance of professional qualified persons in Child Care - this was patently one of many. The Respondents assertion that she took appropriate qualified medical opinion on this matter leaves me in doubt. Not that she may have consulted but she, the unfortunate woman, was so appalled at the Applicants behaviour she acted and said no.

91. It is clear that the anguish suffered by D. was enormous by 1996. It is and will remain so and, doubly so since the arrival of his fathers daughter. Children such as D need appropriate qualified professional help in circumstances such as this. I am satisfied that it was my duty to interview both D and N. It was an enriching experience. It has however, left me with a dilemma. May I, without such professional help move to make a determination on access between a 12 year old boy and his estranged father in the circumstances of this case. I think not: Having given the matter much consideration I have come to the conclusion that an appropriate report is not only necessary to enable this Court determine the appropriate access between D and his father - it is, in my view, essential.