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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K. ( M.) v. (J.P.) K. [2003] IEHC 633 (24 January 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/633.html Cite as: [2003] IEHC 633 |
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1999/4QM
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of O'Neill J. delivered the 24th day of January 2003.
THE PROCEEDINGS
The proceedings in this case have taken a somewhat unusual course. The applicant commenced divorce proceedings by way of a Family Law Civil Bill in the Circuit Court on the 3`d June 1998 in which she sought a decree of divorce together with a number of ancillary financial orders. On the 14th July 1998 on an interim application she sought maintenance pending suit and the Circuit Court made an order directing the respondent to pay some additional maintenance. The applicant applied to the Circuit Court on the 15th February 1999 to transfer the proceedings to the High Court. This application was refused. The applicant appealed to this Court on the 23`d April 1999 and this Court granted an order transferring the proceedings into the High Court. The matter came on for hearing in this Court on the 13th November 2000 and was at hearing for five days before Lavan J. Judgment was given on the 20th November 2000 and on the following day the court made an order granting the decree of divorce together with ancillary financial orders.
The respondent appealed against the ancillary financial orders which were made. No appeal was taken by either party against the order granting the decree of divorce. The appeal came on for hearing in the Supreme Court on the 2nd day October 2001 and that court by its judgment of the 6~' November 2001 set aside the ancillary financial orders and directed that the matter be returned to the High Court so that the question of proper provision for the parties would be considered in the light of the mandatory provisions of the Family Law (Divorce) Act 1996.
Thus the matter came on for hearing before me and was at hearing for some seven days.
BACKGROUND FACTS
The applicant and respondent met each other in September of 1963. At that time the applicant was 19 years of age and the respondent 21. The parties lived in a large city in the United Kingdom until they returned to Ireland and took up residence in a provincial town here. There were six children born of the marriage between 1964 and 1975. All of these are now independent.
The respondent developed and pursued a very successful career in business and the applicant although having trained and acquired secretarial skills did not work outside the home save for some short term part-time work.
Unhappy differences arose and reached a crescendo in 1979 culminating in the separation of the parties in October 1980 and they have been separate since that time. Throughout 1981 negotiations took place which resulted in the execution of a deed of separation which came into force on the 1 Sc January 1982. Briefly this provided that the applicant was to have custody of the children and to live in the family home which was jointly owned. The respondent was to have access to his children including holiday access which was specified and the husband was to pay maintenance to the wife both for herself and the children, the maintenance was apportioned between the applicant and children and it was provided that that part of the maintenance apportioned to the children would cease upon each child reaching the age of 18. The maintenance was to be increased in accordance with the Consumer Price Index. The agreement further provided for the payment of VHI insurance for the applicant and the children by the respondent and for the payment of the mortgage repayments on the family home. The agreement also had the usual clauses providing for the mutual renunciation of Succession Act 1965 rights, and other customary provisions.
Following the separation agreement the applicant continued to reside in the family home continuously until 1994 when she rented the family home and took up residence in a bed-sit in Dublin for the purposes of attending a third level college. This departure coincided with the youngest two children leaving home to attend university. Over the intervening years from 1982 the separation agreement was operated by both parties, the due maintenance was increased in accordance with the CPI and as each child reached 18 years of age maintenance in respect of them was stopped. In addition to the maintenance provided for in the separation agreement the respondent did make additional payments. Specifically a second mortgage was taken out to secure a loan of £7,000 for the purposes of carrying out repairs and renovations to the family home and the respondent met the repayments on this. As each of the children went to university he paid for some of their educational and maintenance expenses. He also met a variety of medical and dental expenses over the years for the children and also responded to a considerable variety of requests for funding by the children during their college years.
The respondent achieved outstanding success in his career. At the time of the marriage he worked at shop floor level in a factory in the United Kingdom. He vigorously made good the deficits in his education at that time and pursued management type courses. As a consequence of this and no doubt his obvious abilities he was several times promoted while in England and when he returned to Ireland in 1972 he had attained a remarkable transformation in his career and very significant advance up the management structure of the enterprise he then worked for. On his return to Ireland he took up a senior management position in what would have been a small firm involved in the construction industry. He progressed from there however to become a senior executive with an international company. This was in or about the late 1970's. Unfortunately this enterprise failed but even in the management of its winding up he appears to have excelled himself, with the result that upon its closure he moved immediately into a very senior executive position with another international firm. This necessitated a move to a different location in Ireland.
It is of some significance (to which I will return later) that at the time that the parties separated the respondent had in his career attained the level of very senior executive.
His move at that time turned out to be an extremely successful one and his career and indeed his income advanced rapidly throughout the 1980's and into the 1990's to the point that in 1993 he was invited to take up a position in the United States as a vice-president of a multinational company. Here again he thrived and in 1998 became president of the corporation in question. During all of this time his income rose correspondingly and with his income came the usual range of benefits that go with positions of this kind.
Thus by the time that these proceedings commenced in 1998 the fortunes of both the applicant and the respondent had come to differ radically.
Shortly after separation the respondent formed a relationship with one MB. This took on a permanent character by 1984 when the parties jointly purchased a house and through the dubious stratagem of arranging a divorce in the Republic of Haiti without any notice to the applicant, the respondent and MB were enabled to go through a ceremony of marriage in the state of Massachusetts in the United States which they did in 1985. Thereafter they appear to have held themselves out in this jurisdiction and elsewhere as a married couple. In August of 2001, no doubt recognising the clear invalidity in this jurisdiction of their purported marriage in the Untied States and there being no appeal by either party against the order of this court granting the decree of divorce, the respondent and MB were lawfully married to each other in this jurisdiction.
That briefly is the background against which these proceedings are brought and the context in which the Court must approach its decision as to what is "proper provision" within the meaning of the Family Law (Divorce) Act 1996. In the course of the evidence a great deal of detail concerning the relationship between the applicant and the respondent and how it collapsed and of their financial affairs since the beginning of the marriage was explored. At this point in the judgment it is neither necessary nor indeed appropriate to go into that detail; however in the context of discussing the weight which should be attached to certain factors in the light of the criteria which are set out in section 20 (2) of the Act it will be necessary later to mention some specific matters.
THE LAW
THE CONSTITUTION
Article 41.3.2 was by referendum of the people in November 1995 introduced into the Constitution. Its purpose was to enable the granting of a decree of divorce in certain circumstances defined in the Constitution itself. It provides as follows:
"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."
Section 5 of the Family Law (Divorce) Act 1996 provides as follows:
"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) that the date of the institution of the proceeding, 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 reconciliation between the spouses, and
(c) such provision as the court considers proper having regard to the circumstances exist or will be made for the spouses or any dependant members of the family,
The court may, in the exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned... "
The Act enables the court to make a variety of financial and property orders, similar to those set out in the Family Law Act 1995. The purpose of the making of these orders upon the granting of a divorced decree is to ensure that proper provision is being made for a dependant spouse and children.
Section 20 is in the following terms.
"20 (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 a provision of the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependant member of the family concerned.
(2) Without prejudice to the generality of the 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 recourses 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 contribution s 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 in 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) 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 the case be unjust to disregard it,
(i) the accommodation ne eds of either of the spouses,
(J) the value to each of the s pouses 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,
(k) 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 the subsection (1) and in determining the provision of such an order, the Court shall have regard to the terms of any separation agreement which is being 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 ofjustice to do so. "
Section 20 (2) mirrors section 16 of the Family Law Act 1995 and also section 20 of the Judicial Separation and Family Law Act 1989. The statutory provisions are also very similar to those contained in section 25 of the Matrimonial Causes Act 1973 in the United Kingdom. Section 20 (3) is a necessary addition, in the context of divorce.
Because of the manifest similarity between the English statutory provisions and those contained in section 20 (2) the submissions of both parties tended to focus on English jurisprudence in relation to the application of these provisions and specifically such change as has occurred in the approach of the English courts following a decision in the House of Lords in the case of White -v- White (2000) 3 WLR 1571 and following upon that case, the judgments of the Court of Appeal in the case of Cowan -v- Cowan (2001) E.w.c.a.CIV.679 (14th May 2001) and also the case of Dharamshi -v- Dharamshi (2001) FLR 736.
SUBMISSIONS
For the applicant it was submitted by Ms. Clissman S.C. as follows:
1.Article 41.3.2 of the Constitution and the Divorce Act of 1996 give the court a wide discretion to determine what `proper provision" should be, and section 20 of the 1996 Act sets out criteria to assist the court in exercising its discretion.
2.That it was the intention of the legislature, having regard to the fact that subsection 20 (3) follows subsection 2 of section 20, that the factors set out in subsection 2 should be considered first before the court could have regard to the terms of a separation agreement, and that the court should conduct a de novo determination of questions concerning "proper provision" where a separation agreement is in existence. The position is no different from an application for a divorce brought by a person who has not entered into a deed of separation. This is because section 5 of the Act of 1996 provides that a court must ensure proper provision exists or will be made for the spouses and any dependant member of the family. Thus in every case the court must ascertain the current existing situation and then determine whether proper provision exists as things stand or, whether provision will be made in the future.
3.It is appropriate for the trial court to look at existing circumstances and where there is a separation agreement in existence, this would normally regulate the existing arrangements and any further provision which may be due to be made under the terms of the separation agreement. However, any trial court in considering the provisions of the separation agreement must do so in the context of all the criteria which are set out in section 20 (2).
4. Reliance was placed on the judgment of McGuinness J. in D -v- D 1997 3 IR 64 in support of the proposition that the division of assets should not be on the basis of the dependant spouses "needs" or "requirements " but having regard to the contributions made by both parties to the marriage in the family. And, that in a case where they were considerable family assets there was a principle to the effect that the court was not limited to providing for the dependants spouses actual immediate needs through a periodic maintenance order, but might endeavour, through the making of a lump sum order to ensure that the applicant would continue into the future to enjoy the lifestyle to which she was accustomed.
5. Ms Clissman relying upon the decision of the House of Lords in the case of White -v- White and also the Court of Appeal in Dharamshi -v- Dharamshi submitted that the principals enunciated in White -v- White were consistent with the provisions of section 20 (2) of the 1996 Act and with the concept set out by McGuinness J. in D -v- D. And that the House of Lords expressly and emphatically rejected the calculation of a wife's reasonable requirements as a means of determining the award to her and that the correct approach was to observe the language of the statute itself, that financial needs should be treated by the court for what it is, namely one of the several factors to which the court is to have particular regard; that in order to arrive, at what would be a fair outcome the court must have regard to other factors such as available resources and the parties contributions.
6. From the judgment of Thorpe LJ in Dharmashi -v- Dharmashi, Ms Clissman cites and relies upon the following passage:
"In cases `where the assets available exceed the parties financial needs for housing and income' two principles are established by the speech of Lord Nicholls of Birkenhead. The first is that there must be no gender discrimination in the application of the statutory criteria. The second (at 989) is that:
As a general guide, equality should be departed from only if and to the extent that, there is good reason for doing so. Then, the need to consider and articulate reasons for departing from quality would help the parties and the court to focus on the need to ensure the absence of discrimination. "
She also cites the following passage front the judgment of Thorpe LJ as follows:
" The ceiling of "reasonable requirements" originated by Ormerod LJ and applied by this court for nearly a generation must now be rejected. "
The following further passage from the judgment of Thorpe LJ is relied upon by Ms. Clissman as follows:
"From these quotations it is abundantly clear that the wife's contribution was commendable over eleven years of married life. What she contributed to the home and the children is just as valid as the work that she did in the business. There is no distinction to be drawn between those fields of contribution in the application of section 25 (2) (fl. "
It was submitted that the decision of the Court of Appeal in Cowan -v- Cowan (2001) 2 FLR 193 confirms that the decisions handed down prior to the case of White -v- White with regard to the concept of "reasonable requirements" are no longer to be applied. She then relies on the following passage from the judgment of Thorpe LJ in Cowan -v- Cowan at page 214 as follows:
"We discard the application of the concept of reasonable requirement to establish a ceiling to the wife's award. We discard the discriminatory bias introduced by this court in Tripas -v- Tripas (1973) FAM 134. We recognise the wife as well as the husband as a legitimate aspiration to devise a substantial estate at the end of her life. None of these judicially creative factors may be used to depress the wife's award. "
7. In determining whether proper provision already exists or will be made available to the parties and their dependant children, the Act of 1996 is framed specifically in the present tense and the time for assessment by a judge as to the existence of proper provision or its future availability must be at the time that the application comes before the court.
8.Public policy required that separation agreements should not be "set in stone" in the context of the court discharging its function under section 20 (3) of the Act of 1996, as such an approach would deter persons from entering into such agreements after separation.
It was submitted for the respondent by Mr. Hegarty S.C. as follows:
1. Central to the application of the constitutional and statutory principles in the consideration of the issue of "proper provision" is the reliance on judicial discretion. Section 20 of the 1996 Act sets out the statutory guidelines to be followed by the court in the exercise of its discretion in making ancillary orders. The list set out in section 20 (2) is not exhaustive and is primarily intended to be indicative of the factors to be considered in the making of proper provision.
2. The imperative requirement of section 20 (3) of the Act of 1996, requiring the court to have regard to the terms of any separation agreement which is still in force, necessarily bears upon the discretion to be exercised by a judge in divorce proceedings.
3. The separate and distinct reference to separation agreements in section 20 (3) amounts to a mandatory requirement that where a separation agreement is still in force at the time of the making of a divorce application the court must distinctly and expressly address the question of whether or not it is appropriate to go beyond and outside the terms of the separation agreement in the context of the making of ancillary orders.
4. Article 41.3.2 of the Constitution and Section 5 of the 1996 Act do not require a de nova determination of questions concerning proper provisions in circumstances where a separation agreement is in existence and has been relied upon by both the parties during the course of their prolonged separation. Reliance is placed upon the decision of Judge Buckley in the Circuit Family Court in the case of MG -v- MG, Irish Times Law Report 2"d of October 2000.
5. Reliance by the applicant on the decision of the House of Lords in White -v- White is misplaced. That decision did not substitute "equality" for "reasonable requirements" as the criteria for the exercise for judicial discretion. Rather it emphasised `fairness" and this interpretation was borne out by the subsequent decision of the Court of Criminal Appeal in Cowan -v- Cowan.
6. It was submitted that in the Irish context that the better statement of the law relating to the exercise of judicial discretion in the making of proper provisions is to be found in the head note of the earlier decision of the Court of Appeal in Dart -v- Dart [1996] 2 F.L.R. 294 as follows:
"(3) The Court when considering financial provision for a wife who has made no direct contribution to the husband's wealth has to declare the boundary between the wife's reasonable and unreasonable requirements. There is no justification for applying a mathematical solution -1/3 or 1/2 as suggested in Wachtal -v- Wachtal (1973) 1 All E. R. 275, and to do so would be inconsistent with the guidance consistently given by the Court of Appeal in cases dating back to 1976 The correct test was to calculate what a spouse reasonably requires having regard to the other criteria mentioned in the Matrimonial Causes Act 1973, Section 25 (2). (4) There is no justification for making an award going beyond the spouses needs founded upon homes, children and lifestyle. The redistribution of capital outside that requirement is not within statutory provisions: Preston -v- Preston (1981) 2 F.L.R. 331. "
7. The provision made in White, and Cowan, and in Mecca -v- Mecca (2000) 1 IR 457 represented the high point of "provision" in the hierarchy of matrimonial relationships, in factual circumstances which are entirely different from those in the present case and in those cases the parties were involved in long marriages together up to the point of proceedings and were jointly involved in the accumulation of family wealth in family business enterprises jointly owned.
8. Part 2 of the 1996 Act expresses a public policy that favours the non-adversial resolution in matrimonial disputes by providing at section 6, 7, 8 and 9 of the Act certain safeguards, for the protection of reconciliation communications. In that context and where the parties have both have the benefit of independent legal advice, public policy favours vindication of separation agreements.
It is inherent in the provisions of section 5 and 6 of the Judicial Separation Family Law Reform Act 1989 that estranged couples are encouraged to resolve matters arising on a breakdown of the marriage by means of a separation agreement negotiated with the assistance of mediators or solicitors. This policy provision is continued and reaffirmed under the provisions of section 6 and 7 of the 1996 Act. The above mentioned provisions afford a special and significant status to separation agreements entered into between estranged spouses and indeed this is underlined by the separate and distinct provisions of section 20 (3) of the 1996 Act. In DOD -v-AOD (1998) l ILRM 543 the Supreme Court determined that where separation agreements are in place parties are not entitled to pursue relief pursuant to the Judicial Separation and Family Law Reform Act 1989. 9. In addition there is a principle amounting to public policy that there should be finality to litigation including family law litigation. Here reliance is replaced upon the judgment of Denham J. in F -v- F (1995) 2 I.R. 354 at page 369 and although the view expressed by Denham J. in the foregoing case was distinguished by McGuinness J. in JD -v- JD on the basis that Irish Law differed from English law, in that the concept of the "clean break" was contrary to statutory policy in Ireland in the Family Law Act 1995 and in the Family Law (Divorce) Act 1996, that nevertheless it was submitted that even though there was an entitlement to apply for relief at "any time " this entitlement does not generate an automatic entitlement to relief.
10 That where judicial separation proceedings or divorce proceedings were initiated, not for the purpose of obtaining primarily a judicial separation or a decree of divorce but so that ancillary orders could be obtained, it was submitted that these kind of proceedings could not be initiated merely as a trigger to secure reliefs in circumstances where remedies already exist. In the context of the present case an issue arises as to whether or not it is permissible for divorce proceedings to be used as a vehicle for revisiting and/or reopening property and financial matters previously agreed by way of an earlier valid separation agreement. It was submitted by Mr. Hegarty that the applicant had sought a divorce not for the purposes of entering into another marriage with a third party but as a device or stratagem for invoking the courts extensive powers to provide ancillary relief. He submitted that as a matter of policy this may be permissible in circumstances where there are no alternative remedies or avenues of redress available to a spouse to recover necessary financial provisions. However he submitted significant remedies exist under both the 1995 Act and the 1996 Act. Under this body of law he submitted that the applicant could have reviewed financial matters as and between herself and her husband without the need for an application for a divorce.
11 That guidance was given to this Court by McGuinness J. in delivering the judgment of the Supreme Court in the appeal herein and this guidance to be found at page 16 of the judgment of McGuinness J.
12 That the reliance upon the English cases by the applicant is misplaced. In England it was argued that an applicant could apply immediately for a divorce. Here there is a two stage process because of the four year time requirement for the purpose of divorce.
13 The "reasonable requirements" test was more appropriate to Irish Law because of the two stages involved in dealing with marital breakdown namely separation, judicial or otherwise and then divorce and secondly because the "clean break" principle has no place in the statutory scheme of reliefs provided.
On the 16th October 2002 the Supreme Court delivered its judgment in the case of T -v- T. As the judgments in that case appear to directly impinge upon the issues in this case I invited the parties to make fresh submissions in the light of the judgments in T -v- T.
For the applicant Ms. Clissmann submitted that the effect of the judgments in T -v- T was to broaden or expand the basis of potential claims and she pointed to a range of division of assets of one third to one half. She submitted that the respondent in the T -v- T case was in a better position than the applicant in this case in that the respondent in the T -v- T case had the potential to develop her income as a professional person, whereas as that potential did not exist in this case. Ms. Clissmann referred to the judgment of O'Sullivan J. delivered 16th May 2002 in the case of CF and JDF to support her submission to the effect that the court should have regard to assets put in the name of MB not for the purposes of making any orders in relation to those assets but that the court could have regard to the fact that the respondent in this case enjoyed a benefit from those assets. She pointed to the fact that in the T -v- T case the respondent was awarded 51 % of a pension entitlement in addition to a 38% distribution of the assets, and submitted that in principle the appropriate range of distribution ranged between one third and one half of the assets. She referred to the judgment of Murray J. and in particular pages 9, 11, 12, 13 and 14 of same to submit that in principle the same value was to be ascribed to the role of the homemaker as to the bread winner and that a wife who stayed at home to look after the family should not be disadvantaged, and where there was an abundance of assets such a wife should not be left dependent on periodic payments. She pointed to the fact that after the break up of the marriage the applicant remained committed to the caring of her children for a very lengthy period.
She submitted that when the parties separated in 1981 there was no divorce available then and the reliefs available under the Married Woman Status Act of 1957 were of very limited value when compared to the reliefs which became available subsequently under the Judicial Separation Act of 1989, and later in the Family Law Act 1995 and the Divorce Act 1996. She submitted that the contents of the separation agreement should not be given much weight in the light of the passage of time and the huge changes in the circumstances of the parties over that period of time and in the context of the limited legal remedies available when the separation agreement was entered into.
She submitted that the court must have regard to the current position of the parties and the Court must look at the current assets held. She submitted that the respondent had a huge asset in his career but that this had been grown and developed from the early years when they were together and to a large extent contributed to by the fact that the applicant had assumed responsibility for taking care of a large family and continued to do that after separation and thereby enabling the respondent to further advance his career.
She referred to page 17 of the judgment of Denham J. to submit that it was legitimate in a case where there was ample resources that some provision should be made so that the dependent spouse might have a substantial estate to bequeath to her children particularly in the light of the fact that upon divorce the right to inherit one - third of the estate of the respondent would cease. In this regard however she acknowledged that in the separation agreement, the applicant had at that point in time agreed to waive her entitlements to succeed under the Succession Act 1965.
Finally she drew attention to the fact that the major assets of the respondent were held outside of this jurisdiction and not directly amenable to orders of this court, unlike the T case: although in this regard she acknowledged that the respondent had so far fairly met the case.
For the respondent Mr. Hegarty submitted that T -v- T emphatically distinguished between the making of proper provision and the "division " of matrimonial property: that the question of finality inter partes could be achieved in Irish Family Law and that the dictum of McGuinness J. in D -v- D (1997) 3 I.R. 64 to the effect that finality was out ruled, was expressly disavowed in four of the judgments. He submitted that T -v- T re-emphasised the principle laid down by the Supreme Court in this case that the procedure to be followed in assessing "proper provision " is to sequentially assess and weigh the relevant factors set out at section 20 (2) of the Act of 1996. In this case there was the additional requirement of section 20 (3) as well as section 20 (5) to be considered. He drew attention to the fact that in this case the proceedings relate to parties who had been formally separated by a deed of separation for a period of nineteen years and eleven months and a total period of separation of 22 years, whereas in the T -v- T case what was involved was the making of a proper provision on a "de novo" application. He submitted that the deed of separation in the present case had a special importance at least equal to or greater than a matter set out in section 20 (2) (a) to (i) by reason of the express reference at section 20 (3) of the Act of 1996. He submitted that a bench mark process could not be used where the parties have already negotiated a separation agreement. It was up to the court to determine the resources which were to be the subject matter of the assessment of assets and that the court must look at the asset base as of the date of separation and the provision made then. He drew attention to the fact that all of the assets of the respondent were acquired after separation and that after the collapse of the marriage he had to start again and create an asset base from there. And he submitted that at the time of the separation the applicant had expressed herself as satisfied with the provision made for her at that time. He submitted that the added ingredient of a separation agreement affects the exercise of attaching weight to the relevant criteria which is set out under section 20 (2) of the Act of 1996; that there was a different starting point in this case, and that there must be a balancing act between the provision which was made at separation and such provision as is to be made at divorce.
He submitted that the maintenance currently being paid and proposed for the future of £2,000 per month was a very good safety net and a very reasonable provision. He submitted that the claim against the respondent directed against his current assets was too remote both because of the length of time that the parties have been separated, and the fact that all of the assets which the respondent now has were acquired long after separation and directly as a result of his own endeavours without any assistance from the applicant. In this regard he points to the fact that the substantial assets now held in the United States came into existence since 1993.
He submitted that the conduct of the parties about which there was complaint by both parties in respect of each other should in the light of the judgments in T -v- T be ignored as not amounting to anything in the way of being "obvious or gross " misconduct and should not attract any financial penalty to either party.
Mr. Hegarty submitted that it would be unfair to the respondent at this stage to penalise him 22 years on for the decision now made by the respondent to make her home in Dublin and that the provision by the respondent of the family home met the accommodation needs of the applicant.
He submitted that so far as the pensions which were acquired by the respondent in the United States were concerned, that as these were acquired post 1993 a question of remoteness arises.
Mr. Hegarty submitted that the proposal made at the outset of the proceedings was reasonable and that it would be invidious at this stage for the applicant to seek redress outside the ambit of the proposals exchanged in correspondence, as the case had proceeded on the basis that these proposals presented a range of provision which on the view of either party depending on which view the court took, would amount to proper provision.
Mr. Hegarty submitted that so far as the question of inheritance was concerned this might arise where parties were separating for the first time. In this case it was not relevant because of the lapse of time and the contents of the separation agreement including renunciation of Succession Act of Rights. He also pointed to the fact that provision of assets for the purposes of inheritance was not one of the factors mentioned in section 20 (2) of the Act of 1996.
He submitted that the case of T -v- T was to be distinguished because of the central role in the instance case of the separation agreement and that the concept of proper provision must be different where there is a separation agreement.
Finally he submitted that the proposals made by the respondent to the court, having regard to the period of the parties separation, the existence of a deed of separation and provision already made, were more than reasonable in the circumstances to meet the reasonable requirements of the applicant. He submitted that in this case reasonable requirements does equate with proper provision and that the respondents proposal in the light of a judgment in T -v- T is fair and reasonable.
DECISION
Before delving into the issues raised in these proceedings it is appropriate to draw attention to three open letters, one, dated the 15th of November 2001 from the respondent to the applicant setting out his proposals, the second dated the 15'h February 2002 refusing the proposal contained in the letter of the 15th November 2001 but setting out a counter proposal from the applicant and the third letter dated the 25`h February 2002 from the respondent to the applicant clarifying a proposal already made.
The relevant portion of the letter of the 15th November 2001 reads as follows:
"1 (a) Our client will pay increased maintenances to your client amounting to the gross annual sum of £24, 000, payable in 12 equal monthly instalments of £2, 000. Pending the rehearing of this matter our client will immediately commence payment of such maintenance to your client voluntarily and not withstanding the order of the Circuit Family Court made on the 14th July 1998 requiring him to pay only £252 per week.
1 (b) The foregoing maintenance provision will be reviewed annually in accordance with the changes in the consumer price index until such time as your client shall be in receipt of the pension provisions set out at 2 hereunder.
2 Our client will consent to an order in favour of your client providing a pension adjustment in the order of 50% of the accrued I T', K Pension.
3 Our client will pay a lump sum of £150, 000 (to be inclusive of costs). Accordingly your client will have the benefit of such lump sum together with the accumulative benefit of £70, 000 already paid by him to your client since December 2000 in addition to the unencumbered value of the family home of £105, 000 (Irish) already agreed. "
The relevant portion of the letter of the 15th February 2002 in reply to the foregoing proposal reads as follows;
"We acknowledge receipt of your letter of the 15th November last in the above matter.
Our client is not prepared to accept the offer made therein. We would suggest the following as a compromise:
1. A sum of £I000/E1270 per week maintenance to be paid to our client by your client to continue for her lifetime and to be secured by his estate (or some alternative means of security).
2. The Irish pension to be transferred over to the benefit of our client in its entirety.
3. That your client pay a lump sum of £400, 000IC508, 000 to our client on or before I" of April 2002.
4. That your client pays all our client's costs to date including any reserve costs, same, to be taxed in default of agreement. "
The relevant portion of the letter of the 25th of February 2002 reads as follows:
"Further herein, we now respond to your letter of the 15`h inst. as follows. We repeat the proposals which we have already put in our letter of the 15`h of November last save that our client is prepared to agree to your client having a 100% pension adjustment order in respect of the I..... T... .... K..... Pension. As you will note from the documentation supplied by Coyle Hamilton, the transfer value for this pension is 6304, 833 which is a significant increase in value from January 2000 at 059,923 (V25,950). "
At the outset of the trial Mr. Shipsey S.C. appeared for MB and sought to appear in the trial on her behalf should her legal or equitable interest in assets held jointly with the respondent be sought to be made amenable to an order in this case. In the light of the counterproposal made by the applicant in the above open correspondent it seems to me that it would not in any circumstances in the case be necessary to consider any invasion of any interest in these assets held by MB. Accordingly Mr Shipsey withdrew and the case proceeded on that basis. Thus this judgment and the ensuing order will be confined solely to the separate interest of the respondent in those assets.
I should add that the approach adopted by the parties in setting out at the start of the trial what they consider to be a proper provision is of great assistance to the Court.
THE SEPARATION DEED ISSUE
It would seem to me that this issue necessarily arises for consideration first. Section 20 (3) of the Act places upon the court an obligation to have regard to the terms of any separation agreement which is still in force. Section 20 (1) places upon the Court an obligation to ensure that in the making of an order under Section 12, 13, 14, 15, (1) (a) 16, 17, 18, or 22 of the 1996 Act or in determining the provisions of such an order, that such provision as the courts thinks proper either exists or will be made for dependant spouses or members of the family concerned. Thus the court has two unavoidable mandatory obligations. Ms Clissman contends that it must examine the circumstances of the parties de novo to ensure that proper provision exists or will be made and that this exercise must be done first before considering whether or not provisions made in a separation deed are a proper provision.
Mr. Hegarty submits that the Act does not require a de novo consideration of the circumstances where a deed a separation is in force.
In my view the order in which either of these exercises is carried by the trial judge must be left to the discretion of a trial judge. Clearly both must be done but the order in which they are done will undoubtedly depend on the circumstances of each case and the manner in which the trial judge in the light of those circumstances deems to be the most appropriate way to approach the case. Undoubtedly in a case where the separation deed is of recent date it would be likely that a court would consider the terms of the deed of separation at an initial stage and unless there was manifest a change of circumstance such that a different provision would have been likely to have been made when the separation agreement was entered into, the inquiry might well proceed on the basis that in the absence of any material change of circumstance, that the separation deed having been entered into at a recent date and with the benefit of appropriate advice, prima facia contained "proper provision ". It would appear to me that the wording of section 20 (1) not only permits but indeed could be said to contemplate such an approach where it says as follows:
"...the court shall ensure that such provision as the court considers proper having regard to the circumstances exists ... " A recent separation deed in force in circumstances where there is no manifest changes in circumstance could be said to fulfil the requirements of section 20 (1).
A different situation manifestly would pertain where the separation deed though still in force is of a more distant origin in time. That situation will be likely to be accompanied by material changes in the circumstances of the parties or the dependants and would warrant an inquiry at the initial phase of the trial to establish exactly what were the relevant circumstances of the parties and their dependants. Having established this in the light of the criteria set out in a section 20 (2) then the court could move to consider whether the terms of the separation deed were a "proper provision ". In this context I once again draw attention to the use of the word "exists" in section 20 (1). In my view this means that it is at the time of the making of the application to the Court that the provision must exist or that it will be made.
Construing section 20 (1) with section 20 (3), gives rise in my view to the unavoidable conclusion that in complying with section 20 (3) that the court, required to "have regard" to the terms of a separation agreement must examine that agreement to ensure that at the time of the application, the agreement, in the light of the circumstances of the party, either at that time "makes a proper provision " or that it contains obligations which will ensure that such provision will be made.
Thus in a case of considerable antiquity such indeed as the present case it would seem appropriate that the court would concern itself primarily with an examination of the circumstance of the parties in the light of the criteria set out in section 20 (2) and then subsequently an examination of the deed of separation to see whether in the light of those criteria and the passage of time it could be said that the continued observance of the terms of the separation agreement resulted in "proper provision " existing at that time or into the future.
It would however have to be said that the discretion of a trial judge as to the order which he or she approached these issues could not be fettered, save merely to say that the extent of the inquiry on each issue would vary according to the antiquity of the separation deed and the presence or absence of material alterations of circumstances from the time of the execution of the separation deed.
THE APPLICATION OF SECTION 20 (2) OF THE ACT OF 1996.
As is apparent section 20 (2) like section 25 of the English Matrimonial Causes Act 1973 sets out a long list of criteria to which the court must have regard in the making of financial orders. Furthermore the list is not exhaustive and does not confine the discretion of the court. Section 20 (5) perhaps complicates the matter further by requiring that in the final analysis the court should not proceed to make an order unless it would be in the interest of justice to do so. In attempting to give practical application to this type of complex statutory scheme it is understandable that the courts of England and Wales have sought to discern clear overriding principles which would guide courts in the application of these statutory provisions. Thus the "reasonable requirements" test emerged and held sway until expressly rejected in White -v- White in the House of Lords and in subsequent decisions of the Court of Appeal in Cowan -v- Cowan and Dharmashi -v- Dharmashi. Whilst there was a rejection of the "reasonable requirements test" and an exhortation to return to the terms of the statute itself the speeches of their Lordships introduced the concept of "equality". This topic was considered in T -v- T and at page 27 of his judgment Keane CJ said the following
"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 the division of the assets on the basis of equality. Those decisions do not afford any guidance, however, as 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.
In the first of the English decisions White -v- White the House of Lords rejected an approach which had fbund favour in earlier decisions of the Court ofAppeal, i.e. that the `reasonable requirements' of both spouses was a determined 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. That approach is explained as follows by Lord Nicholls of Birkenhead; `Sometimes, having carried out the statutory exercise, the judges 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 judges 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. A 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 offairness in afield such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by Parliament 3U years ago, enabled the courts to recognise and respond to deveiopments of this sort. '
He also, however rejected in that case an invitation to annunciate a principle that, in every case, the `starting point' in relation to a division of assets of the husband and wife should be equality. "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 dependant children. As I have already indicated, such an approach could not be adopted in this jurisdiction, where the appropriate criteria 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 that was not proper provision, the yardstick of equality would certainly have been a relevant consideration. The age old maximum, "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.
"Lord Nicholls, in the course of his speech also emphasised that the whole tenor of a legislation was the avoidance of a discriminatory approach: the .fact that, as often happened, the w je had devoted the greaier purl of filer tiine 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 break down 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. "The Court ofAppeal returned to the somewhat more problematic question of equality of division in Cowan -v- Cowan. In that case - also an "ample resources " case that it was claimed on behalf of the wife that she was entitled to equality where the assets were being divided. That claim was rejected by the Court ofAppeal, on the basis of White -v- White, but the share of the wife was increased to what was regarded as an inadequate provision by the trial judge to one representing 38% of the assets. Thorpe L.J summarised his understanding of the consequences in the decision in White -v- White as follows;
`Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as bread winner 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"
" 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'.
"The use of the one third share of the estate to which the respondent will otherwise have been entitled under the Succession Act as a yardstick is more questionable. Such an inheritance depends upon 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. "
Whilst, as was made clear in the judgment of Keane C.J. the legislation does not mandate an equal division of assets in an "ample resources" case it is equally clear from the judgments of Keane C.J., Denham, Murray and Fennelly JJJ, that the role of the dependent homemaker and child carer, usually the wife is not to be disadvantaged in the distribution of assets by reason of having a non-economic role. The English authorities seem to me to introduce the concept of equality of division of assets not as a starting point or as the presumptive basis for the distribution of assets but as a device to guard against a historical bias, favouring the breadwinner as distinct from the homemaker in the distribution of assets, in essence a mental exercise or discipline to be observed to ensure that the value of the role of homemaker and child carer, particularly in a long marriage, is given equal weight to that of the role of bread winner. As I understand this concept, it would come into operation at the conclusion of a consideration of the factors set out in section 20 (2) of the Act of 1996 in the light of the relevant circumstances of the parties and the weight to be attached to each factor, at which stage the tentative conclusions of the judge having gone through that exercise would then be measured against the yardstick in question, to ensure that no bias or invidious discrimination has crept in because the wife has adopted the traditional role of homemaker.
In this context the judgment of Keane C.J. would indicate that one third of the net assets should be the appropriate yardstick at the lower end of the scale.
The judgments of the Supreme Court in T -v- T indicate that the appropriate time for the assessment of the assets is as of the date of the hearing.
The question of misconduct for the purposes of section 20 (2) (i) was considered and the Supreme Court in T -v- T adopted the statement of Lord Denning MR in the case of Wachdal -v- Wachdal (1973) 1 All ER 829 as follows:
"There will no doubt be a residue of cases where the conduct of one of the spouses 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 ofjustice. 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 for 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. "
Apart from the observance of these broad principles it is clear that what the Court of First Instance must do is go through the various factors set out in section 20 (2) seriatim and deal with the circumstances of the case in the light of these factors insofar as they are relevant to the circumstances of the case, assessing in the light of the evidence, the weight to be attached to each factor.
Having completed that exercise the court must then in the light of section 20 (5) of the Act consider in a residual way and on the basis that the courts discretion is not confined solely to the factors set out in section 20 (2) but must have regard to whether or not an order which the Court might be disposed to make having weighed up the various factors in section 20 (2), should not be made unless it would be in the interests of justice to do so.
In this case there is the additional complication of fitting the separation agreement into the picture as is required by section 20 (3).
I now propose to consider seriatim the various factors set out in section 20 (2) in the light of the evidence in the case.
Section 20 (2) (a) is as follows:
"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 "
I am satisfied that in this case both parties and in particular the respondent have made fulsome and forthright disclosure so that the court has been fully apprised of all the matters referred to above. The evidence in the documents thus disclosed reveal that the respondents assets consist of a joint interest in a property in Ireland, a joint interest in two dwellings in the Untied States, one in Minneapolis and one in Arizona, cash in a bank in the US and in a bank in Ireland, investments in the US, employee benefits consisting of debentures, deferred compensation, savings plan, a deferred stock plan and stock options and personal property and a motor vehicle. During the course of these proceedings these assets have been disclosed and have not changed. The only significant change that has occurred has been in the values of some of the assets in particular share values. Bearing this in mind it would seem to me to be fair to attribute to the assets disclosed by the respondent a value of approximately US$3 million which would now be equivalent to approximately C3 million. It has to be borne in mind that a considerable portion of these assets are owned jointly by MB but of these assets it seems clear that approximately US$1.6 million dollars worth belongs unequivocally to the respondent.
The respondent has now retired from his position as president of an international corporation as of the end of 2001 but his income for that final year of US$300,000 was spread over that year and the following year so that for the year 2002 he had a salary from that source of US$150,000. The respondent reached retirement age namely 60 years in May of 2002 and thereafter became entitled to benefit from his pension plans. He has 3 pension plans. The first of these relates to his employment in Ireland and it is in respect of this pension plan that the respondent in his letter of 25th February 2002 proposes that there would be a 100% pension adjustment order. This pension plan from May 2002 would produce an annual pension of approximately US$25,800. He has two other pension plans related to his employment in the United States. The first of these provides a benefit of US$28,200 at age 60. The second of these pension plans also related to his employment in the United States provides a benefit of US$112,860 per annum at age 60. The evidence of the respondent was that he proposed to continue his involvement in commence but on a non executive or consultancy basis. He had made no concrete plans or contacts for the purposes of carrying such a plan into effect. I would take the view however that having regard to his past a history of outstanding success in business both in Ireland and in the US it is probable that he will for the foreseeable future attract gainful employment in the kind of roles he described and will for the foreseeable future earn significant emoluments from such endeavours.
So far as the applicant is concerned her only asset is the family home which was originally jointly owned but at the outset of these proceedings the respondent indicated his intention to transfer the entirety of his interest in that property to the applicant. This property has been valued at IR£105,000 or IR€133,000. Apart from some part time earnings in secretarial work the applicant's income consists entirely of the maintenance she has been paid by the respondent. Since this matter was in the Supreme Court that is paid at the rate of IR£2000 per month or its euro equivalent.
Since 1994 when the youngest of two children left home to go to university the applicant has resided in Dublin in bed sit accommodation and attended a third level college and obtained a BA degree. Following upon this she did an MA degree. It is her hope to do further post graduate studies. Having regard to her age now it would seem to me, that notwithstanding the academic ability which she clearly has demonstrated over the past number of years in obtaining a primary degree and then a Masters Degree, it is unlikely that the obtaining of these qualifications will lead to any kind of sustained gainful employment. It may very well be the case that she may obtain short term or part time teaching or tutorial or research posts but it would be difficult to see opportunities of this kind, which may indeed be difficult to get, generating significant income. I do not therefore intend approaching the case on the basis that she will have any significant earning capacity in the future. In this regard I also bear in mind her state of health. In recent years she has suffered from muscular ailments, not unusual for her age group. In someone with an established career this factor would probably make little difference to earning capacity, but for somebody in her situation attempting to create and develop a career at a very late stage in life her state of health could be a significant inhibition in progressing to anything approaching full time gainful employment.
Mr. Hegarty submitted that the fruits of the respondent's career in its latter years are too remote both in terms of time and the fact that they were the result of the development of his career solely by reference to the efforts of the respondent alone with no assistance from the applicant, to be taken into account as part of the assets which ought properly to be made available for consideration in this case and distribution for the purposes of making proper provision.
I am unable to accept that submission for the following reasons. Section 20 (2) (a) in no way delimits the property or the financial resources which should be taken into account nor does it limit in any way a time period outside of which assets are to be ignored. On the contrary the subsection explicitly provides that the court must have regard to income earning capacity property and other financial resources which each spouse has, "or is likely to have in the foreseeable future",. Thus it seems clear that all property to which a spouse is beneficially entitled and all income and other financial resources which are currently enjoyed or which are likely to become available must be considered and taken into account.
The depth of incursion into that property income and other financial resources would naturally vary in accordance with the many factors which must additionally be taken into account under section 20 (2) and indeed the length of disconnection from one another would of course be a relevant factor to be taken into account.
Mr. Hegarty has placed considerable emphasis on the disconnection or separation of the parties from each other, which he categorises as being 19 years and 11 months post the deed of separation and 22 years since actual separation.
Separation, in my view is a complex thing. Whilst these parties have undoubtedly been separated from each other since 1981 and they have been far from disconnected from one another in the sense that as a consequence of their marriage there were six children the youngest two of whom were only six years of age when the parties separated and the oldest was at Leaving Cert. stage. Thus following the separation there were still five children to be reared all the way through primary, post primary and on to third level education. Throughout the marriage the applicant had clearly with the assent of the respondent adopted the traditional role of home maker and child carer and this continued after separation. She had custody of the children and continued to rear them from the family home until they left for third level education or boarding school as was the case with one. Thus while the respondent left the family home and moved to a different part of Ireland and set up a new home in due course with MB the applicant was left as the primary carer for the family and rearing the children on a daily basis. That role continued until 1994 when the last two children left to go to university thus freeing the applicant to pursue a different role in life. However she was then 50 years of age and had spent 30 years nurturing and rearing the children of this marriage during that time, and apart form some part time secretarial work she adopted the traditional role of homemaker and there is no suggestion in the evidence that the respondent disapproved of this or encouraged her to do otherwise. Whilst it was the case that the respondent did extraordinarily well in his career particular during the 1980's and 1990's it is of significance that around about the same time as the marriage broke up he had ascended the corporate ladder here in Ireland to senior executive status and his move from the home town to another part of Ireland at or about the time of the separation was to take up a senior executive position with a subsidiary of a multi-national and in due course this move led ultimately to further progress up the corporate ladder within the same multi national organisation ultimately leading him to become President of this corporation. In other words the basis for his ultimate success was in place from the time the marriage broke up. The creation of that base took place over the previous 20 years, beginning with his improving his education status in England, to taking on additional work, to obtaining promotion in England and to eventually advancing himself by moving back to Ireland. On his return to Ireland his career continued to prosper but it required enormous effort on his part, and the expenditure of a great deal of time away from home in developing his commercial contacts and so on. It would be difficult to imagine that he could possibly have done this unless it were the case that the applicant undertook the job of looking after the children and the home thus freeing him to develop his career. The role she adopted with his agreement was an integral part of the process which initially built his career and ultimately led to his great success. No doubt when the separation did take place it was probable that his freedom thereafter from day to day family responsibilities would have further enhanced his capacity to devote himself to the development of his career.
In the light of it this it cannot in my view be said in that the fruits of his career i.e. the success ultimately attained and the assets thereby generated are too remote from or disconnected from his years of marriage to the applicant. To disconnect those ultimate fruits from the hard work, forbearance endurance and even at times, the hardships of the early years of the marriage would be to do an injustice to the applicant.
I am satisfied therefore that the assets, and income and financial resources of the respondent as disclosed must be considered by the court in achieving proper provision.
Section 20 (2) (b)
"the financial needs, obligations and responsibilities which each of the spouse has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouses or otherwise). "
All of the children of the parties are now long since independent. The respondent has remarried and has an obligation to maintain MB. However in this context it must be remembered that he has shared almost half his assets with MB. The applicant has no dependants and the evidence does not indicate any likelihood of her having any responsibility or obligation for any person other than herself for the foreseeable future. In the light of what I have already said above, it would seem to be unlikely that she will be in a position to generate a significant income in the future and hence she will need to be maintained. The respondent on the other hand by virtue of his pensions and the likelihood of earning significant earnings for the foreseeable future will continue for the foreseeable future to enjoy affluent circumstances.
Section 20 (2) (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. "
At the time that the parties separated in 1981, although the respondent had for a number of years enjoyed success in his career they were nevertheless at the stage in life where by reason of having a large family, a home that was mortgaged and in addition to that a considerable amount of debt as a result of the respondents investment in another property, all resulting in their finances being quite tight. However it could be said that the standard of living they had at the time was good in comparison to persons of their age in similar circumstances. As the years went by following the separation I am satisfied that the standard of living of the applicant declined. On the other hand it would seem to me that the standard of living of the respondent probably remained relatively static during the 1980's. During that time although his income increased significantly as the decade went on he had to clear the debt which had accumulated from the property investment which unfortunately failed to produce the returns initially expected. By the end of the 1980's he had however cleared his debts and it is quite clear from the evidence that from then on his standard of living improved greatly. From the time of his move to the United States it would appear that from then on he moved as it were into a different league and from then on enjoyed a very wealthy standard of living commencurate with the very large income he had from then on. During the 1990's the applicant's standard of living, in my view probably continued to decline. Her circumstances obviously changed radically in 1994 when she moved to Dublin to take up a third level course. By this stage there was a very radical difference in the kind of standard of living which the applicant and the respondent had. By 1994 the respondent was enjoying the standard of living of a very wealthy person. When the applicant moved to Dublin she appears to have had a very menial standard of living, living in a bed-sitting room and without the kind of comforts or conveniences that might be normal for somebody of her age and position in life. That is hardly surprising having regard to the level of maintenance she was being paid then. That remained the position at the time when these proceedings were commenced.
Section 20 (2) (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. " The applicant is now 58 years of age and the respondent 60 years of age. After their marriage they lived together for approximately 18 years and have now been separate for nearly 22 years. They entered into a deed of separation in the commencement of 1982 which regulated their affairs until these proceedings commenced. As indicated earlier notwithstanding that the parties separated in 1981 because of the number of dependent children they had, they remained tied to each other through their obligations to the children, principally the applicant, until 1994. Section 20 (2) (e) "any physical or mental disability of either of the spouses. " There is no evidence of any mental or physical ill health on the part of the respondent and he has all the appearance of being a very strong healthy vigorous man, with a physical appearance which is somewhat younger than his chronological age. The applicant has in recent years, as discussed earlier, some health problems which though not in themselves of a very serious nature would nevertheless in my view at this stage of her life impair the development of a career.
Section 20 (2) (f) "The contributions which each of the spouse 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 be income, an 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. "
This provision is of considerable importance in the context of the contentious aspects of the evidence. From the outset it is quite clear that the applicant and the respondent adopted traditional roles in relation to their marriage and the caring of their family. The applicant gave up work at an early stage and devoted herself to looking after the home and the family. The respondent adopted the role of the bread winner and as said several times already in this judgment, applied himself with great vigour and ability to his career and achieved extraordinary success. I am satisfied that up to the time of separation both parties fulfilled their agreed roles to the best of their abilities. No doubt in the years leading up to the separation each of them experienced acute dissatisfaction and a sense of grievance with each other, part of which would have focused on their respective roles. However in my view both of them applied themselves conscientiously to their agreed roles.
In the years that followed the separation the respondent adhered strictly to the terms of the separation agreement. He described it as his "bible " and he saw it as a clear certain and stable arrangement to which he could and indeed was entitled to adhere. A good deal of the evidence of the applicant dealt with her dissatisfaction with the material provision during the years of separation and her sense of financial depravation and neglect as the years went by. She did not however at any stage seek a review of the maintenance and she explained her reason for not doing that as being a belief based on advice that if she did seek a review, she could be left for a lengthy period without any maintenance at all. I am satisfied that over much of the period of separation the amount of maintenance provided for under the agreement did leave the applicant in considerably straightened circumstances and I have no doubt that she found it very difficult to make ends meet. The respondent was of course entitled to adhere strictly to the terms of the separation agreement including stopping paying maintenance when the children were with him or when they had left home but I would be of the view, that he should consider himself fortunate that from the early 90's when his own income had increased substantially, that he was not exposed to an application for a review of maintenance.
To his credit however it must be said that when the children moved on to third level education and indeed before that, he responded to a great variety of applications for additional expenditures for all of the children and indeed expended a very large amount of money on them, beyond the provisions of the separation agreement. In this regard, I am satisfied that there was no question of any neglect on his part so far as the children were concerned and that he did respond to their needs and requirements as one would expect a dutiful and caring parent would do. It is apparent that at this stage he enjoys a good relationship with all of his children and has their respect and trust.
At the outset of these proceedings the respondent indicated his intention to transfer his interest in the family home to the applicant and also made the proposals in the correspondence already set out herein. I will deal with these later.
Section 20 (2) (d)
"the effect on the earning capacity of each of the spouses of the marital responsibility assumed by each during the period when they lived with one another and on 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. "
This too is a factor of great importance, particularly for the applicant. She adopted the traditional role of homemaker and carer for the family and the carrying out of this role engaged her for 30 years i.e. 1963 to 1994. During that period the applicant had some part-time secretarial work, no doubt taking advantage of the skills she had learnt before marriage. What is most unusual about the applicant in this case is that upon being relieved of responsibility for care of children, when the last two children left the family home in 1994 to go to university, she undertook third level education and clearly excelled at it, obtaining a Primary Degree and then a Master's Degree. That indicates to me that the applicant is a person of high intelligence and considerable ability. That assessment of her was confirmed by her evidence and the manner of her giving of it. She impressed me as being a person of intellectual ability and keen intelligence. I have no doubt but for taking on the role of homemaker and carer for her family at a very early stage in her life and continuing with that role until she was 50, she would have developed a very good career for herself. Whether she would have then obtained qualifications of the kind which she finally achieved, one cannot say, but it would seem to me to have been likely that early in her life she would have achieved much greater educational attainment then in fact occurred. What one can say with confidence, by way of example, is that career as a teacher . either primary or secondary would have been well within her capacity. Had she contended herself with a career based on her secretarial skill I have no doubt that she would have advanced a long way in any large commercial, governmental or such like organisation. None of that of course happened because as the subsection says she has "relinquished or forgone the opportunity of remunerative activity in order to look after the home or care for the family ". As said earlier having regard to her age and the health problems she has it is now very unlikely that she could develop the kind of career that she could have had at a much younger age.
This factor is of critical importance in terms of assessing which of the rival proposals is to be preferred or in determining how close to either of them one should go. In my view, given that there are "ample resources" available within the context of these proposals, the applicant should be put in a position akin to that which she would probably now be enjoying had she not foregone the opportunity of a remunerative career.
Section 20 (2) (h)
"Any income or benefits to which either of the spouses is entitled by or under statute."
The evidence does not establish that either of the parties is, as of now entitled to any benefits under statute. Mr. Hegarty submitted that the applicant would be entitled to the State old age pension and the State widows pension notwithstanding the divorce and remarriage of the respondent. The evidence falls short of satisfying me that the applicant would be entitled to the State old age pension and so far as the widows pension is concerned having regard to my observation of the respondent, that benefit would appear to be in the first instance contingent and then a distant prospect. So far as the respondent himself is concerned there is no evidence of his being entitled to any State benefits in this jurisdiction. There was evidence to the effect that he would be entitled to a State pension in the US of approximately US$18,000. In addition to that, having completed ten years of employment in the US he also qualifies there, for State medicare. Given that it is his express intention to continue to reside for the foreseeable future in the US, these are clearly benefits of considerable value to the respondent.
Section 20 (2) (i)
"The conduct of each of the spouse is that conduct is such in the opinion of the court it would in all the circumstances of the case be unjust to disregard. "
A good deal of the evidence of both parties concerned itself with grievances they felt arising out of the conduct of both of them prior to the break-up of the marriage. The judgments of the Supreme Court in T -v- T make it quite clear that such complaints as they made against each other in that regard are not such as could move the court to penalise either party under the provisions of this subsection. Section 20 (2) (j)
"the accommodation needs of either of the spouses. "
As far as the respondent is concerned it is his intention to continue to reside in the United States and to move to Arizona. It is obvious that he has ample resources to cater for his accommodation needs and indeed those of MB. He has already acquired property in Arizona and whilst money was borrowed to acquire that property that will be paid off from the proceeds of sale of the property in Minneapolis. It was the evidence of the respondent that he intended to spend a great deal of his time in Arizona being attracted there by the climate and the lifestyle and he saw this location as suitable for an enjoyable semi retirement. In addition the respondent and MB still jointly own a property in this jurisdiction, the dwelling house they acquired in 1984. Insofar as the respondent and MB would wish to spend time in this jurisdiction it is clear that there accommodation needs in that regard are already amply catered for.
So far as the applicant is concerned a somewhat different situation pertains. It was the evidence of the applicant that she wished to establish a home in Dublin for the purpose of pursing her academic career and of such a character that she would be able from time to time to accommodate her children and grandchildren. She had in mind a property in a north inner suburb of Dublin and she identified a potential cost of in excess of £300,000. She expressed a desire to retain the family home as an investment, she having rented that property over the last couple of years. In my view the aaquisition by the applicant of the property in question is no more than a reasonable requirement on her part. She ought to be entitled to pursue her academic interest in reasonable comfort. That means having a dwelling of a decent standard. The kind of house she has identified seems to me, in the context of the Dublin city property market, to be a relatively modest proposal. She is quite entitled to have a modest dwelling in the location she identifies. That location is clearly suitable in terms of the academic institution she associates with and that location will probably maximise her chance of obtaining some form of gainful employment from the qualifications she now has attained. She should of course have a dwelling which has sufficient accommodation to accommodate her children and grandchildren from time to time. All of her children have moved away from the town where they grew up and the likelihood is that that will continue to be the case. She will be much more likely to have regular contact with her children and grandchildren living in Dublin rather than living in the original family home. Insofar as the proposals set out in correspondence are concerned I attach considerable weight to this factor. Given that there are "ample resources " available I take the view that I should lean towards the lump sum proposal of the applicant, in order to provide the applicant with suitable but modest dwelling in Dublin City as she aspires to. In this regard I would be inclined to direct that there be a lump sum in her favour of £450,000. In the light of the fact that the respondent's assets apart from the dwelling jointly owned with MB are all in the United States it would seem to me to be proper that the applicant would be allowed to retain the family home as a form of security and from which a small but secure income could be derived.
In the light of that conclusion, and bearing in mind that the applicant will be permitted to retain the family home, I have moderated the lump sum as claimed by the applicant in correspondence to what I consider to be the minimum level which would still enable her to acquire the kind of property she would be interested in. Section 20 (2) (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 the spouse will forfeit the opportunity or possibility of acquiring; "
It was not clear from the evidence whether the two US pensions of the respondent would transfer to his widow in the event of death. What is of course absolutely clear is that following the divorce any such benefit would accrue now to MB and not to the applicant. The effect of the decree of divorce also would be that the applicant would lose her right to inherit one third of the estate of the respondent. However the separation agreement entered into in January of 1982 did provide for the mutual renunciation of succession act rights at that stage so in my view not much weight can be, at this stage, attached to that potential loss as far as the applicant is concerned, and in the light of the aforesaid lump sum order which I propose to make, it can be said that the applicant will be put in a position of having an estate of modest proportions to bequeath to her children.
Section 20 (2) (1)
"The rights of any person other than the spouses but including a person to whom either spouse is remarried".
In this regard the only person to be considered is MB. All of the children of the marriage are now independent. The applicant has no other dependent and the evidence does not point to the likelihood of her having anyone dependent on her in the future. The respondent has shared his assets with MB on close to a 50150 basis. The respondent with the benefit of his pensions and his earning capacity will have ample resources left to provide for MB.
Having considered all of the foregoing factors, and I have identified those to which I attach particular weight, I have come to the conclusion that in the first instance there should be a lump sum order in favour of the applicant of €450,000. I have also come to the conclusion that having regard to the fact that she has foregone a remunerative career she should be put in a position now akin to that in which she would be in that she had a remunerative career. In that regard I bear in mind that approximately seven years from now she would reach normal retirement at which point if she had a career she would go on pension and her income would drop considerably. Taking all these factors into account the annual income, I conclude that she should have is the sum of €40,000. In arriving at that sum I am mindful of the fact that it represents slightly less than one quarter of the respondent's current pension income and in the light of my finding as to his future earning capacity, a much smaller proportion still of his overall foreseeable future income. I also bear in mind the evidence which I have heard, to the effect, that the respondent will be entitled to tax relief in the US on this as alimony and that the said sum will be taxable income in the hands of the applicant.
I am of the view that a periodic payment of this magnitude is appropriate in the context of the reasonable requirements of the applicant over the foreseeable future for her maintenance and support.
I take the view that this payment should be in part secured to her by way of the making of a pension adjustment order in respect of 100% of the respondent's Irish pension, leaving the balance of the £40,000 to be the subject matter of a maintenance order. I will hear the parties as to an appropriate method of security insofar as this balance is concerned.
The lump sum order of £450,000 together with the value of half the family home which is transferred to the applicant comes to approximately €511,000. This represents approximately one third of the respondent's joint share of assets worth approximately US$3 million. It should be noted that that sum of US$3 million does not include the capitalised value of any of the pensions, which I have dealt with purely as income.
In that regard I am conscious of the yardstick of one third of assets at the lower end of the scale mentioned in the judgment of Keane C.J. in T -v- T or elsewere described in terms of a bench mark and I am satisfied that in having regard to that fact and having considered all the factors set out in Section 20[2], that I have avoided any invidious discrimination against the applicant because of her status as homemaker and child carer.
Having carefully weighed up the evidence in the light of the factors set out in section 20 (2) of the Act of 1996 and doing the best I can to meet the legitimate aspirations of both parties, I have come to the conclusion that the foregoing provision is a proper provision as required by article 41.3.2 of the Constitution and section 20 (1) of the Act of 1996.
In the final analysis therefore I am satisfied that for the purpose of section 20 (5) that no reason exists why I should not make orders in accordance with the above provision and that it is in the interests of justice to do so.
Returning finally to the separation agreement and section 20 (3) of the Act. I think it will be apparent by now, that I am quite satisfied that at the time when this application was initiated the terms of the separation agreement fell far short of providing proper provision for the applicant and indeed I would be of the view that for many years prior to the initiation of these proceedings that separation agreement failed to make adequate provision for the applicant. The gap or shortfall that has occurred is the result of the passage of time, the limited range of legal reliefs available in 1981 and the enormous gulf that developed between the fortunes of the applicant and respondent over the intervening years.
