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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (W.) v. A. (M.) [2004] IEHC 387 (9 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/387.html Cite as: [2005] 1 ILRM 517, [2004] IEHC 387 |
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[2004] IEHC 387
2004 453 CA
M 420/2001
THE HIGH COURT ON CIRCUIT
Southern Circuit
County of Cork
IN THE MATTER OF THE FAMILY LAW (DIVORCE)
ACT, 1996
Between:
W.A.
Applicant
And
M.A.
Respondent
JUDGMENT of Mr. Justice Hardiman delivered on the 9th day of December, 2004.
In these proceedings the applicant (hereafter called the husband) sought a decree of divorce. The wife counterclaimed for divorce and sought extensive ancillary orders including a property adjustment order in relation to all the husband's property, an order for maintenance, a pension adjustment order, a financial compensation order, an order for sale of such property as the Court considered appropriate, an exclusion order and certain further orders. By order of the Circuit Court of January, 2004, a decree of divorce was granted to the parties, mutual orders under s.18(10) of the Act of 1996 were made, the periodic maintenance order in favour of the wife in the sum of €150 per week was made and the application for a property adjustment order was refused. The wife appealed against the whole of the order. At the hearing, however, it became clear that the wife did not object to the granting of a decree of divorce but sought ancillary orders.
Background.
The factual background to the case is essential to the resolution of the present dispute. Fortunately, there is a very large measure of agreement.
The husband and wife are both from comfortable agricultural backgrounds. The husband is now aged 54 years and the wife 50. They married in 1978 and the matrimonial relationship collapsed by 1988 and probably sometime earlier. In 1993 the parties entered into a deed of separation and a side agreement the terms of which are of considerable importance. There are no children of the marriage.
The husband and wife were each born into substantial farming families residing close to, but on different sides of, Cork City. In 1974 the husband received from his father a farm some 78 acres and in the following year he bought another farm of 136 acres, jointly with his mother.
About 1978 the wife acquired, by inheritance from an uncle, an 80 acre farm near her home place.
The respective farms of the husband and wife, and the husband's half interest in the third farm constituted the parties assets on or shortly after marriage in 1978. Thereafter, the husband sold his farms and purchased instead three farms near the wife's home place. One of these, of 67 acres, he acquired in his own name and the other two of 206 acres in total were acquired in the joint names of husband and wife. Accordingly, by the mid 1980s the husband possessed 67 acres in his own name and the wife retained her 80 acre farm in her name. The parties jointly owned a further 204 acres, making a total of just over 350 acres. They lived in a house on one of these farms which might be regarded as the home farm and in the mid or late 80s changed the nature of their enterprise from dairying to dry stock. In 1988 the husband bought a further farm of 95 acres a considerable distance away in his own name for the sum of £160,000 all of which was borrowed. Later he acquired a smaller adjacent farm. In 1988 the husband's father died. The marital relationship definitively collapsed in the same year and the parties were in effect living separate and apart but in the same house. The husband, however, spent considerable time in his mother's family home on a valuable holding some distance away. The wife's parents, a brother-in-law and a cousin were all engaged in fairly extensive farming near the family home.
In the course of the year 1989 the husband carried out significant upgrading in the home farm including the acquisition of a milk quota, the purchase of a pedigree Frisian herd of 150 head and other matters.
In 1991 the husband moved out of the family home. For a long period throughout 1992 and early 1993 there were intensive negotiations between the husband and the wife, who was assisted by her father and the cousin referred to above. The parties had the benefit of legal and accountancy advice from very reputable sources including in particular an accountant, Mr. Cullinane. This gentleman is an accountant with a specialty in agricultural accounting and business planning and was called on behalf of the wife in the hearing of the appeal.
The separation agreement.
This agreement is dated the 8th April, 1993. It is generally in a usual common form, but the following provisions require particular notice:
(2) "The terms of this agreement are intended to be a full and final settlement between the parties of any legal or moral obligations which they have to each other, whether arising out of legislation based on a matrimonial relationship, or otherwise, and in particular but without prejudice to the generality of the foregoing the husband and wife agree that neither party shall institute or maintain or attempt to institute or maintain proceedings against the other seeking a decree of judicial separation or any ancillary relief thereto pursuant to the provisions of the Judicial Separation and Family Law Reform Act, 1989 or any similar or amending legislation.
(3) The husband and the wife agree that any property of any nature acquired by either party in the future shall be the sole property of the person acquiring same. Furthermore, the husband and wife, each as the spouse of the other, hereby respectively acknowledge to the other that any other house or premises which might subsequently be purchased by either of them at either time in the future will not constitute a family home…
(4) It is agreed that the husband or the wife shall be entitled to carry on any business without any interference from the other and all profits therefrom and any property purchased or money saved by the husband or by the wife shall be their own property.
(14) The wife acknowledges that she has no right or claim to and will not seek to establish or maintain any right or claim to [the lands separately acquired by the husband as set out above] or [a suburban house in Cork purchased by the husband in 1992].
The separation agreement generally is a detailed one covering all the matters which it might be expected to cover and several contingent matters.
On the same day that the separation agreement was executed the parties entered into a "side agreement". Insofar as relevant this provided:
"… Neither of us will obstruct the other in seeking and/or obtaining a divorce a vinculo in the event of such other being entitled to seek and obtain a divorce a vinculo without infringing the constitutional rights of the party not so seeking such divorce and provided further that such of the financial and property terms contained in the [separation agreement] as remained to be performed at the date of application for such divorce a vinculo shall be incorporated on the application and by the consent of the moving party in such application into any decree which may be granted on foot of such application and provided further that any of the said financial terms or property terms that shall have been performed as of the date of such application for divorce a vinculo shall be excluded from the consideration of the court by and on the consent of the moving party in such application.
It is further agreed … that this letter is not intended by the parties and shall not in fact approbate their alleged marriage and is intended solely to facilitate the parties in regulating their financial and property affairs and their marriage status insofar as such status be deemed invalid."
Under the terms of the separation agreement the wife acquired in her own name some 178 acres together with the milk quota attaching to part of it, farm equipment and buildings, a residence and a fully working farm. The husband received into his own name approximately 174 acres without buildings or equipment. Quite complex arrangements were made for the liquidation of a bank debt for which the parties were jointly responsible by the sale of stock and for the choice by or on behalf of the wife of stock for her retention. The husband retained the lands which he had bought remote from the wife's home and the debt incurred to buy them. The husband retained the dry stock on the farm. Sixty three head of cattle were sold by agreement for the wife in respect of the bulk of her part of the bank liability. The balance of the herd was retained by her, this being a milking herd.
After the separation agreement had been carried out, neither party had more than a small and manageable level of debt on the land each received in the settlement.
Effect of the separation agreement.
On the hearing of this appeal the only real evidence given about the separation agreement was that of the accountant, Mr. Cullinane, who is referred to above. He said that over a long period in 1992 and 1993 his firm had acted as mediator between the parties in arriving at a settlement. He said he believed that they mediated a fair settlement and he personally drew up the heads of the agreement. He said his firm were the farm accountants to both Mr. and Mrs. A. He said that his object had been to seek a fair solution based on his accountancy expertise and his extensive knowledge of farming. He said he believed the agreement secured the position of both Mr. and Mrs. A. He said that at the date of the agreement the perception of all parties was that a fair resolution had been reached. The advantages and drawbacks of the lands and the quota attached to part of them were known to all parties. He believed that each party was given by the agreement the means to carry on their lives and thrive, independently from then on: he was satisfied of this. This evidence was unchallenged.
After the agreement.
In the period immediately after the agreement, before the end of 1993, the husband sold his lands near the wife's home place. With the proceeds he reduced or liquidated the debt on the more remote farm he had acquired and on the suburban house. He acquired another 100 acres near his existing holding. Later, he entered into a new relationship, since ended, and became the father of two children who live with their mother in the suburban house. They are now eight and eleven years old.
Since the separation, the husband has prospered exceedingly. This is substantially as a result of the shrewd acquisition and sale of property near the expanding City of Cork, and later further afield. The most significant part of this business was conducted in partnership with his mother who, although now in her middle eighties, was stated to be a shrewd and formidable business woman. In late 2002 and early 2003 he and other members of his family as beneficiaries of a trust established by his mother benefited from an advantageous sale of certain lands, of which the husband received a sum of €3.3 million. This enabled him to clear certain debts and retain some €750,000. In January, 2004, he and his mother made a further very substantial acquisition in a neighbouring county, involving him in borrowings for about €7.4 million. The husband's net worth is difficult to establish precisely depending as it does on shifting land values, borrowing rates, the valuation of his mother's interest and its effect on his own interest, but is probably about €7 million.
The wife's post separation fortunes are in sad contrast. At first she farmed her holding of 170 acres with the milk quota and stock. Unfortunately, she seems to have done this in what two separate experts called on her behalf regard it as the most inefficient and expensive manner possible: she employed a company called "Farm Relief Services" throughout the years 1994 and 1995. This company was basically a supplier of labour services, usually used by farmers in holiday periods, periods of illness or periods of very intense work. Her accountant stated, with moderation, that her decision to do this meant that her cost base was very high. It would appear that, taking one month with another, she paid about £1,000 per month for this service. Although she was from an agricultural background and was, in the experts' view, an efficient farmer, she very rapidly reached a position of which her farm enterprise was no longer viable. She then embarked on a number of sales. In 1996 she sold the former family home, farmyard and 3 acres. In 1998 she sold a site and, in a separate transaction, a further 30 acres. In 1999 she sold 43 acres. From these sales she received about £420,000. It is not clear precisely what happened to this money except that with part of it she built a four bedroomed house on part of the land. This was described by her accountant as "fabulous" but he said that he was not consulted about the project and would not have advised it from a financial point of view. It was agreed by the wife herself and by her two experts that the house was built and fitted out to the highest standard. Her accountant said that she could certainly have built or bought a smaller or cheaper house but that "she wouldn't live in a smaller house". It appears that the wife's decision to build this house may have been connected with an ambition she had to develop sites for sale or to develop as a small estate, which foundered when her application for planning permission was rejected. In recent times the wife has sold the milk quota and her remaining animals for a sum estimated by her accountant at €70,000 or €80,000. It would thus appear that, as a result of sales of various sorts since the separation agreement the wife has realised a sum of about £500,000. She has a bank debt of about €160,000, secured by equitable deposit of the deeds to the land. The new dwellinghouse appears to be unencumbered and is valued at about €400,000. The only income declared by the wife was in respect of rental income for about half of the remaining lands. In the course of cross-examination, however, it transpired that she had further cash income from the sale of silage on the balance of the lands and in respect of certain work performed by her for her now very elderly parents. Neither of these were declared in the affidavit of means, she said, because "that was cash, it did not appear in my account: that was cash I used privately myself".
Accordingly, the difficulty of estimating the wife's current net worth, or indeed her income, is compounded by her reticence. It seems clear enough that she will not declare anything she thinks she can avoid declaring. It appears however that the value of the lands is about €900,000 and that of the house about €400,000, suggesting a net worth of about €1.25 million. By no means all the approximate £500,000 received from sales has been accounted for. The balance might, if retained, increase the net worth by about €150,000. I think it probable, however, that this sum or most of it has been spent in ways not now traceable.
Equally, it is very difficult to form a precise estimate of the wife's income but taking her rental income to be as she declares it, the income from her family at not less than the €5,000 p.a. she mentioned and attributing a modest sum only for the sale of silage to date and attributing, for the future, a rental income to the presently unlet lands, an income of something over €25,000 per year seems indicated. But the rental income, according to the wife's expert, is likely to decline.
Reasons for developments since separation.
The reasons for the husband's post separation prosperity are pretty apparent. It is due to shrewd investment in land involving at times very substantial borrowing and an element of risk but to date very successful, due to the skill and judgment of the husband and his mother.
The reason for the much less happy picture of the wife's affairs is more complex and was the subject of contradictory evidence, remarkably, from the wife's own expert. There is no doubt, on the evidence, that the separation agreement was a fair one and provided ample and approximately equal opportunities for the parties to thrive in its aftermath. Its validity was expressly conceded by counsel for the wife. She also conceded that the agreement envisaged a "clean break" insofar as that is possible in Irish law. The expert called by the wife, Mr. Cullinane, substantially attributed the failure to the very high cost base caused by the employment of Farm Relief Services and another factor relating to milk quota, which will be discussed below. The wife he said needed to employ farm relief services because, as a female, she was physically incapable of certain of the necessary farm tasks. He stated that these tasks were the need to work long hours, the milking and the seasonal calving. The wife herself, however, did not make this case. Moreover, Mr. Cullinane was strongly challenged in cross-examination on this claim. He conceded that it was not unusual to have a woman taking a full part in a dairy enterprise, alone or jointly with a partner; that dairying was a relatively light form of farming work and (in total contradiction to his initial view) that the wife was physically able to run the farm. Her difficulties, he now said, came from emotional factors: she was not emotionally able to run the farm. He agreed that he had seen her only a few times after the separation agreement, and generally in his office. He said that basically she was a failure as a farmer (he had previously said that she was an "efficient farmer") and that she had employed Farm Relief Services "to run the farm for her". He said that she was proud and concerned with "keeping up appearances", or "putting on a good show". This he said was an aspect of her character which may have made life difficult for her after the separation. Marital separations, he said, were not that common in 1993.
Mr. Martin, an agricultural consultant also called on behalf of the wife stated in cross-examination that there was no reason a healthy 40 year old woman should not run a dairy enterprise on her own, especially if she were from an agricultural background. His practice had several such clients and he knew of others.
The wife herself, when she gave evidence, stated that she could not make "a go of it because I was too proud and too emotional to carry on… I never expected a break up to happen to me. It shattered my confidence… I was totally ostracised by the general public in a small rural community… I felt people were looking at me behind my back, I don't think that I was wished good luck." As a result of this, she said, she felt drained and "maybe I was not thinking properly… no-one offered me any advice". She estimated the cost of building a new house at £200,000 or £240,000. She said that she had borrowed to make ends meet and "I haven't thought about any means to reduce my debt because I am too emotional".
It will be thus be seen that the prime reason put forward by the wife for the failure of her farming enterprise was a form of emotional incapacity to do the farm work. I am, however, satisfied that this is an afterthought. She was cross-examined strongly on the basis that no such claim had been made in the Circuit Court and I accept that this is so.
I must unfortunately record that the wife was not a satisfactory witness. In certain respects her evidence was false. On other aspects she simply adopted a very truculent attitude: she repeated her evidence parrot-like and simply refused to answer questions put by way of challenge to it.
Specifically and importantly, the wife alleged that she only employed Farm Relief Services to do a few things she could not do herself such as general repairs, fencing, or ploughing. She stated her belief that this service was cheaper than employing a labourer. Most of the work, she said, she did herself. This is simply inconsistent with the amounts paid to Farm Relief Services. It is also inconsistent with the evidence of her own accountant that the company "ran the farm for her". I am satisfied that no reasonable person with farming experience, or even without it, could consider that it was cheaper to employ this company than to employ a labourer. Again, her own expert put the additional cost at about 30 or 35%. Moreover, the wife gave evidence that she was unaware of the husband's ownership of the lands at the location remote from her home: but these lands are specifically mentioned in the separation agreement.
On a number of occasions, the wife simply refused to answer questions either in express terms or by continually repeating her previous answer. This arose first, for example, in relation to the number of cattle she had when she was running the dairy farm after the separation agreement. I am quite satisfied that her reason for refusing to answer was a reluctance to commit herself to a version of the facts which, she feared, might be open to irrefutable contradiction.
A conflict.
The husband was challenged on one only point by counsel for the wife. Counsel cross-examined him with a view to establishing that the failure of his wife's enterprise was due, at least in part, to its having insufficient milk quota. The husband said that, in his view, the milk quota attached to the farm was insufficient to keep the operation going at the level it had previously attained. This level had been achieved by renting some quota. The husband said that, during the negotiations, he had pointed this out to those advising the wife and pointed out also where additional quota might be available. He was told however, by the wife's father, that "they'd have enough without [the new quota] and that they didn't want to make the operation too big."
The wife's credibility and reliability as a witness is suspect for the reasons given above. The husband struck me as being a perfectly reliable witness during the very short period he was in the witness box. I would therefore prefer the husband's version on this matter. Fortunately, it is almost the sole relevant conflict of fact.
Preliminary findings.
On the basis of the evidence and documents provided, I would make the following preliminary findings:
(1) The separation agreement, at the time it was entered into, undoubtedly represented proper provision for both parties. Both were professionally advised and, at least in the wife's case supported by persons who are both related to her and skilled in farming matters. The evidence of the applicant's own expert was that the agreement represented the provision to each party of the means to be, and to remain, financially independent. Furthermore, the agreement was an instrument which brought about a position of rough equality at the time it was entered into. The lands which they found were divided almost exactly equally: the wife had the benefit of a going concern at or near her home place; the husband was enabled to retain the lands he had bought at another place but, of course, was also solely responsible for the 100% borrowing to acquire these lands.
(2) The level of provision in the separation agreement for each party was objectively substantial. While their assets at that time did not approach the very large values seen in more recent ample resources cases, each party's worth at the time of the agreement was very substantial relative to that found in the general run of matrimonial cases or to the asset value of the average member of society. Moreover the bulk of these values were in a form particularly suited to the parties. Though they lacked formal academic qualifications each was from an agricultural background and each had experience of working their own lands. I believe their respective net worth in 1993 was about €2,000, 000 each in today's money.
(3) There is no doubt that since the agreement, the husband has prospered very greatly and the wife's position has worsened. I must unfortunately record that the evidence establishes that the principal reason for the wife's worsened position is the fact that she did not work her substantial holding in an assiduous manner. In particular, the employment of Messrs. Farm Relief Services to run the farm for a significant period was fatal to any prospect of its sufficient working and the generation of a reasonable income. This, indeed, was the view of both the experts called on behalf of the wife on the appeal.
(4) I do not accept that this skewing of the cost base of the wife's enterprise was due to her physical incapacity to do the work herself. At the time of the separation agreement she was a healthy 40 year old woman. She did not herself claim physical incapacity to run the enterprise. This claim was made by her accountant who resiled from it virtually as soon as he was challenged and claimed instead an emotional inability on her part to work the land. There is no doubt, and it was expressly confirmed by Mr. Martin, that there are many examples of women of the age and background experience of the wife running similar enterprises alone.
(5) Equally, I cannot accept that the wife suffered any form of emotional inhibition which precluded her running the farm enterprise in a sufficient manner or made it unreasonably difficult to do so. No doubt the end of the marriage was a grief and a disappointment to both parties. At the time of the agreement the marital relationship had been effectively over for a period of some five years and the husband had wholly ceased to live in the family home for two years and she had farmed the lands. She was fortunate in having ample sources of advice and moral support close at hand. No evidence of a medical or psychological sort was called to support the proposition of great emotional difficulty, and no evidence at all, other than the opinion of an accountant who saw her only seldom to suggest that she suffered any nervous or emotional disability in running the farm. That gentleman's evidence is severely discounted by the fact that he had, earlier in his own evidence, about twenty minutes before he mentioned emotional inability, attributed her difficulties to a quite different cause.
In saying this I am not in any way blaming or criticising the wife but simply rejecting particular explanation advanced on her behalf. I am satisfied that no suggestion of emotional inability to conduct the farm enterprise was made in the Circuit Court. In fairness to the wife, it was made only half heartedly on the hearing of the appeal.
(6) Although the wife has suffered the loss of a considerable portion of her holding, she has, apart from her income from the farm or other sources, spent some £500,000 between 1996 and the present day. I express this sum in pounds because the bulk of it was realised in that unit. She devoted herself with considerable energy to the building of a house which, in her accountant's view, is "fabulous" but also "extravagant" having regard to her means and liabilities.
(7) The wife's asset value, allowing for her substantial liabilities to the bank, is not less than £1.25 million. Having regard to the poor prospects for agricultural rental, but the strong sale prices which still subsist, according to Mr. Martin, his advice to her would be to sell the lands. In her evidence she gave no indication of what she proposed to do in the future.
(8) On the evidence, the wife had made no approach, formal or informal, for financial support from the husband up to the time he issued his proceedings seeking a decree of divorce.
Legal issues.
The legal considerations governing the circumstances in which a court will make a decree of divorce are well known. They have been thoroughly discussed in a number of recent cases. During the course of argument references made in particular to DT v. CT (Divorce: ample resources [2002] 3 IR 334) and K v. K (2) [2003] 1 IR 326.
By virtue of s.5 of the Family Law Act, 1996, before granting a divorce the Court must be satisfied that "such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses or any dependent members of the family". Section 20 refers to the various ancillary orders the Court can make in pursuit of the object of a proper provision. It requires the Court to ensure that "such provision as the Court considers proper having regard to the circumstances exist or will be made for the spouses…". The following subsection sets out a list of twelve matters to which the Court must "in particular, have regard…". These are too familiar to require to be set out here.
The next following subsection provides that:
"In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provision of such an order, the Court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force."
Subsection (5) provides:
"The Court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so."
I have had the great benefit of reading and being influenced by the judgment of O'Neill J. in K. v. K. It analyses the statutory provisions, and indeed the constitutional provisions which underline them in a thorough and persuasive fashion. I have paid particular attention to the observations of the learned judge about the significance of the presence of a separation agreement.
O'Neill J. distinguishes between a separation agreement which is relatively recent and one which is of more distant origin. The agreement in that case had been entered into in 1982. In my view, the significance of the date of the separation agreement depends entirely on the general circumstances of the case, at least in the case of an agreement made after the enactment of the Judicial Separation and Family Law Reform Act, 1989.
There are, of course, obvious differences between the circumstances in K, and of those in this case. Firstly, there are no children in the present case: there were six in K. The wife in K had been for many years a full time homemaker: the wife here was at all material times engaged in an agricultural enterprise, firstly on her own account, then jointly with the husband and latterly on her own account again. In K, the learned judge held that the wife's work in the home "was an integral part of the process which initially built [the husband's] career and ultimately led to his great success". In this case, the husband's great financial success, so sharply distinguished from the wife's position, did not begin to take shape until after the collapse of the marital relationship. On the facts of this case it cannot be said that the wife made any direct or indirect contribution to the great commercial success which the husband has enjoyed in recent times. The contrary was not contended.
I have already made relevant findings in relation to the separation agreement of 1993. I am also conscious of the fact that s.20(1) of the Act obliges the Court to consider whether such provision as it considers proper "exists" or will be made for the spouses. This phrase appears to direct the attention of the Court to the time at which the decree of divorce is granted. Into this exercise there must be factored firstly the twelve matters set out in the following subsection as well as other matters which the Court considers relevant and the terms of the separation agreement. While the events of the period since the separation agreement was entered into requires to be considered so too must be what O'Neill J. called "the length of disconnection [of the spouses] from one another. In my view they have been "disconnected" for about 17 years and formally separated for 11 ½ years. A marital relationship existed for something short of a decade at the most.
Finality provisions.
It is clear that the separation agreement was intended to be, as far as possible, a final agreement. Moreover, the parties specifically envisaged the possibility that divorce a vinculo would become available in the future and desired that the arrangements set out in the Deed of Separation would govern their mutual relations in that event. The agreement fairly envisaged that each party would live a personally and economically independent and self sufficient life with no further claims on each other. These terms, together with the financial arrangements set out in the agreement are plainly matters to which the Court must have regard at this juncture.
For the reasons extensively discussed in DT the concept of absolute finality, or a "clean break" as it is expressed in the neighbouring jurisdiction, is not available in Irish law. However, Keane C.J. said:
"It seems to me that, unless the Courts are precluded from so holding by the express terms of the constitution of the relevant statutes, Irish law should be capable of accommodating those aspects of the 'clean break' approach which are clearly beneficial. As Denham J. observed in
F. v. F. (judicial separation) [1995] 2 IR 354, certainty and finality can be as important in this as in other areas of the law. Undoubtedly, in some cases finality is not possible and thus the legislation expressly provides for the variation of custody and access orders and of the level of maintenance payments. I do not believe that the Oireachtas in declining to adopt the 'clean break' approach to the extent favoured in England, intended that the Court should be obliged to abandon any possibility of achieving certainty and finality and of encouraging the avoidance of future litigation between the parties."
Having expressed his respectful disagreement with another decision on the topic, Keane C.J. continued, at page 365:
"… It is not correct to say that the legislation goes so far as virtually to prevent financial finality. On no view could such an outcome be regarded as desirable and I am satisfied that it is most emphatically not mandated by the legislation under consideration."
In the same case, Murray J. (as he then was) said at page 411:
"I also agree that when making proper provisions for the spouses a court may, in appropriate circumstances, seek to achieve certainty and finality in the continuing obligations of the divorced spouses to one another. That is not to say that legal finality can be achieved in all cases and any provision made may be subject to review pursuant to s.22 of the Act of 1996 where that provisions applies. However, the objective of seeking to achieve certainty and stability in the obligations between the parties is a desirable one where the circumstances of the case permit."
It appears, therefore, that the desideratum of certainty and finality, where that is attainable, has been fully recognised by the Courts. It is, perhaps, particularly obtainable in cases where the parties resources are relatively substantial. The fact that this is so under the current statutory regime must colour the manner in which the Court "has regard to" the terms of a separation agreement which, in the context of certain financial and property provisions, sought finality.
"Proper"
This term is not defined in the statute and counsel did not refer me to any particular preferred meaning of it. I therefore interpret the word in its natural and ordinary meaning. This in itself is not an entirely straightforward exercise since the term has many meanings: the Oxford English Dictionary identifies some fourteen meanings with a number of subgroups. It is in fact a word of peculiar difficulty since, as the editors of the dictionary say:
"The sense had already undergone great development in Latin, Romantic, and French, before the word was taken into English, where the chronological appearance of the census does not correspond with the logical development."
With that caution in mind, the relevant meanings of the term appear to me to be as follows:
(a) "In conformity with rule; strict, accurate, exact…",
(b) "Such as a thing of the kind should be…",
(c) "Adapted to some purpose or requirement expressed or implied; fit, apt, suitable; fitting, befitting; what it should be or what is required…",
(d) "In conformity with social ethics or with the demands or usages of polite society…".
It will be seen that the dictionary definition leaves a good deal of scope for discretion in the interpretation of the word.
That discretion is trenched upon by the need to consider the various matters set out in s.20 subsection (2) and to "have regard to the terms of any separation agreement…".
I now turn to a consideration of the matters specified in s.20(2) of the Act of 1996.
I have already set out in my findings, insofar as possible, to assess the means of the parties. The wife's financial needs are limited to her own support and I am satisfied that the husband's need not be further considered since he is well able to attend to them.
The standard of living enjoyed by the parties before separation seems to me to have been one of comfortable but unostentatious sufficiency on a farm of approximately 350 acres. The parties, as found above, are 54 and 50 years old respectively. I find that they lived together in the matrimonial sense of the term for something under ten years. Neither has any physical or mental disability. I am satisfied that, subsequent to the separation agreement, neither party made any contribution to the welfare of the other in any shape or form. Prior to the separation, too, I believe on the evidence that neither party made any contribution over and above the other to the joint enterprise and that the division of assets between them in 1993 reflected the contributions each had made. I do not believe that the earning capacity of either party was impaired or foregone by virtue of any marital responsibility. Neither party, on the evidence, is entitled to any income or benefit under statute. The accommodation needs of each of the parties is amply met. I have no evidence that either party will forfeit any benefit or potential benefit by reason of the granting of a decree of divorce. Finally, I do not believe that the rights of any person other than the spouses will be at all affected by the making of a decree of divorce or of any imaginable ancillary order.
The foregoing findings cover all but one matter set out in s.20 subsection (2) as applied to the circumstances of this case. The remaining statutory matter is "the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would all in the circumstances of the case be unjust to disregard it". I do not propose to consider the conduct of the parties during the currency of the marital relationship: neither has suggested that I should. This criterion may have some significance in relation to the justice of the case that will be referred to below.
In relation to the separation agreement, I have already set out my findings on that topic. I believe it was a fair and approximately equal one. Finally, I must bear in mind the statutory prohibition contained in s.20 subsection (5):
"The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so."
Authorities.
As already noted, I was referred in the course of argument to the very well known authorities cited above. However, I was told by counsel on behalf of the wife that there is no Irish authority relating to circumstances such as those in question here: a fair and valid separation order entered into about 11 ½ years ago and since the making of which the parties fortunes have widely diverged. I have, accordingly, considered a number of cases from the neighbouring jurisdiction. I undertake this exercise simply to explore such guidance as may be available from those sources. I am fully aware of the difference of the statutory provisions and judicial emphasis between the two jurisdictions, in particular in relation to the notion of a "clean break".
The case of Wright v. Wright [1970] 1 WLR 1219 was one where, in the course of a settlement of divorce proceedings, a wife agreed to withdraw her claim for maintenance. The case has been widely cited since in cases where it is desired to revise an agreement previously made between divorce or separated spouses. Sir Gordon Willmer said:
"I think… that the existence of this agreement, having regard to the circumstances in which it was arrived at, at least makes it necessary for the wife, if she wants to justify an award of maintenance, to offer prima facie proof that there have been unforeseen circumstances in the true sense, which make it impossible for her to work or otherwise maintain herself. If that be right, I think it is quite plain that the wife here did not give such prima facie proof".
That case was cited in the course of the more elaborate discussion which took place in Edgar v. Edgar [1981] 2 FLR 19. Here, the husband was an immensely wealthy man and the wife had reached an agreement with him specifying that she would not seek any further capital provision in the event of a divorce. It has, of course, been well established for many decades in the United Kingdom that the existence of such a covenant does not preclude a party from making a relevant application to court. It has however been established since
Hyman v. Hyman [1929] AC 601 that:
"… This by no means implies that, when this application is made, the existence of the deed or its terms are not the most relevant factors for consideration by the Court in reaching a decision".
In Edgar, Ormrod L.J. agreed with the passage cited above from Sir Gordon Willmer, referred to the separation agreement and to the English statutes and continued:
"To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of the two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements properly and fairly arrived at with competent legal advice should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not to be considered as an exhaustive catalogue."
In the same case, Oliver L.J. referred to the English statutory provisions and to the overarching consideration "of what is just having regard to their conduct". He continued:
"In that consideration the existence of a negotiated bargain entered into at the instance of one of the parties and affording him or her everything for which he or she has stipulated must be a most important element of conduct which cannot lightly be ignored. Essentially therefore what is an issue in the instant case is whether in exercising the jurisdiction which the statute required him to exercise, the learned judge was right to decline to hold the wife to the particular term of the agreement into which she had entered four years earlier".
The Court held the wife bound by the term of the agreement.
Although most of the applications for provisions under matrimonial statutes are by wives, some are by husbands as well.
Beech v. Beech [1995] 2 FLR 160 was such a case, and the principal family asset was a dairy farm. However, it was heavily encumbered, an attempt to settle the parties differences by agreement had been unsuccessful and the argument concerned provision for the parties out of the balance, over and above the encumbrances, received on a forced sale. In those circumstances the High Court in England considered the husband's contribution to the financial embarrassment to be a consideration relevant to the determination of what payment should be made to him. First, the Court posed the question:
"So the crux of the case is really the responsibility for the present near destitution of the husband. How has this come about? Who is responsible for this state of affairs? Is the product of the husband's misconduct?"
The Court found that the husband:
"… has proved over the course of the last twenty years to been a bad, even a disastrous, businessman. He had considerable talent as a stock man but could not harness that talent to financial controls… he obstinately, unrealistically and selfishly trailed on to eventual disaster, dissipating in the process not only his money but his family's money, his friends money, the money of commercial creditors unsecured and eventually his wife's money, insofar as the disaster that eventually developed did not even pay for her specified agreed sum. The responsibility is, in my judgment, not shared, not hers, but his".
I therefore conclude that the position in the neighbouring jurisdiction is that an agreement not to seek further provision is not binding on a court but should be given great weight when it was entered into in a considered manner and with advice. Furthermore, the conduct of a party in himself (or, of course, herself) bringing about the circumstances giving rise to the alleged need for (further) provision is itself of relevance to considering whether such provision should be made, and in what amount.
Decision.
Firstly, I stress again that I do not regard the English cases just discussed as determinative of the matter.
Secondly, I regard as important the fact that the agreement in this case was made subsequent to the provisions of the Judicial Separation and Family Law Reform Act, 1989. Although, of course, there has been a good deal of further family law reform since that time, notably in 1995 and 1996, I am satisfied that the main outline of the current jurisprudential approach to applications of this kind was in place at the time of the conclusion of the agreement.
I must in justice record my view that any difficulties which the wife now experiences are wholly of her own making and that the husband has contributed to them in no way whatever. Equally, the wife contributed to the husband's present state of prosperity in no way whatever.
Particularly having regard to the terms of s.20(3) of the Act of 1996, I cannot approach the question of what is "proper" in the circumstances of this case without giving very significant weight to the terms of the separation agreement. I must also construe the word "proper" having regard to its context as part of a statutory provision.
In all the circumstances, I do not consider it proper, that is "fit, apt or suitable", much less "correct or in conformity with rule", to make any ancillary order against the husband in the circumstances of this case. Still more fundamentally, I do not consider it just to do so and therefore I am precluded from doing so by the terms of s.20(5). I will accordingly grant a decree of divorce and make no further or ancillary order under s.12, 13, 14, 15, 16, 17 or 22 of the Act of 1996. I will make an order under s.18(10) that neither spouse shall, on the death of the other, be entitled to apply for an order under any other of the provisions of s.18.
