T. v. T. [2001] IEHC 166 (28th November, 2001)

JUDGMENT of Mr. Justice Vivian Lavan delivered on the 28th day of November, 2001 . 1. The Applicant and the Respondent were married in 1980 according to the rights of the Roman Catholic Church. 2. The Applicant was born in 1949 and is now 52 years of age. The Respondent, was born in 1952 and is now 48 years of age. 3. In the proceedings before the Court the Applicant husband seeks a decree of divorce pursuant to Section 5 (1) of the Family Law (Divorce) Act, 1996 , together with various ancillary orders. He also seeks an Order pursuant to Section 13 (1)(a)(ii) of the 1996 Act as to what periodical payments he should make to the Respondent for the support of the dependant children of the marriage. Finally he seeks an Order pursuant to Section 15 (1)(f) of the 1996 Act in relation to access to the dependant children of the marriage. 4. The Respondent wife accepts that the constitutional and statutory test for the granting of a decree is satisfied, but counterclaims for a decree of Judicial Separation pursuant to Section 2 of the Judicial Separation and Family Law Reform Act, 1989 . The Respondent has made it clear that she does not wish to be divorced and opposes the divorce on religious grounds. She also seeks a full range of Financial Orders ranging from Maintenance Orders to Lump Sum Orders to Property Adjustment Orders and Pension Adjustment Orders. THE BACKGROUND 5. The Applicant and the Respondent were married in 1980. They have three dependant children of the marriage. The Applicant and the Respondent are both professional people. 6. Shortly after their marriage in 1980, the parties moved house. At this time the Applicant commenced his practice from the family home. In the early years of their marriage the Respondent worked in the Applicants practice. The Respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the Applicant subsequently moved to his present offices in about 1983, the Respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property. 7. Their relationship was very turbulent and there were many arguments between the parties, which at times resulted in the Applicant leaving the family home and staying overnight elsewhere. Shortly after the parties’ youngest child was born in January, 1989, the parties began to occupy separate bedrooms. 8. The Applicant left the family home in August, 1994. The Respondent and the children had gone for a week’s holidays, having no idea of the Applicant’s plans. On their return they discovered that the Applicant had left the family home and all his possessions had been removed. On his departure from the family home the Applicant took up residence in another one of his properties. There is no reasonable prospect of a reconciliation between the parties. 9. It is the Respondent’s belief that the Applicant has been unfaithful throughout their marriage. In particular, she believes that at the time the Applicant vacated the family home he was involved with a woman some twenty years his junior. 10. The Applicant is currently in a relationship of two years, standing with a new partner who has recently given birth to their child. It is the Applicant’s intention to marry his partner on the Court granting a decree of divorce herein. 11. Both parties disagree as to the level of financial adjustments to be made between them. When the Applicant initially left the family home the parties continued to operate a joint account which the Respondent drew on when necessary. This arrangement continued for 18 months upon which time the Applicant unexpectedly closed the account and opened an account in the Respondent’s name. The Applicant currently pays the Respondent a sum of approximately £400 per week by way of Maintenance for the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The Applicant’s total net assets are somewhere in the region of £20 million, the majority of which come from property. The Respondent’s assets in comparison stand at around £1 million. 12. The Respondent has spent most of her professional life working in low-key posts, as both parties agreed that this was more compatible to family life. The Respondent re-entered part-time employment in 1991 on a very limited basis. Between 1990 and 1998 the Respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the Respondent went into practice in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work. 13. The Respondent’s work involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the Respondent and she feels that it is not in her children’s interest that she continues working at this frantic level. Accordingly, she is anxious that lump sum provision be made in order to secure her own and her children’s future. 14. The Applicant seeks access in relation to the youngest child of the marriage only, acknowledging that the two older children are in a position to make up their own minds as to the extent and nature of their relationship with him. The Applicant seeks to avail to access to his son in the context of his new relationship. He currently sees his son once a week for two hours in the evening and wishes to see his son twice a week, with access perhaps on another weekday evening. There are a number of difficulties in the Applicant’s relationship with his children. Earlier in the proceeding the Applicant brought an application under Section 47 of the Family Law (Divorce) Act, 1996 seeking an Order of the Court directing that a child psychiatrist be appointed to carry out an evaluation of the parties and the children, with a view to making recommendations to the Court in relation to the access that the Applicant should exercise to the children. This application was opposed by the Respondent and the children themselves, and the application was subsequently not proceeded with. SUBMISSIONS ON BEHALF OF THE APPLICANT 15. In raising the issue of Maintenance, Counsel for the Applicant looked at the effect of the Family Law (Divorce) Act, 1996 on the previous common law position in relation to Maintenance. The position at common law was that on marriage a husband became entitled to most of his wife’s property and in return he was obliged to maintain her by providing her with necessaries. 16. Building on this common law position however, the Judicial Separation and Family Law Reform Act, 1989 and in turn the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996 have developed a more detailed statutory test in order to determine what constitutes proper provision. 17. The test as set out in Section 20 of the Family Law (Divorce) Act is as follows:- (1) In deciding whether to make an Order under Section 12 , , , (1)(a), , , or and in determining the provisions of such an Order, the Court shall ensure that such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses and any dependant member of the family concerned. (2) Without prejudice to the generality of subsection (1), in deciding whether to make such an Order as aforesaid and in determining the provisions of such an Order, the Court, shall, in particular, have regard to the following matters: “(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future, (b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise), (c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be, (d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another, (e) any physical or metal disability of either of the spouses, (f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family, (g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse have relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family, (h) any income or benefits to which either of the spouses is entitled by or under statute, (i) the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances of the case be unjust to disregard it (j) the accommodation needs of either of the spouses, (k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring, (l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.” 18. Counsel for the Applicant then went on to consider the approach of the Courts in dealing with so-called “big-money cases” such as this one. Big-money cases are those where the assets available exceed the parties’ financial needs for housing and income. Counsel for the Applicant cited the recent case of McA -v- McA [2000] 1 IR 457 . In that case McCracken J. considered the wealth of the Applicant wife and the size of her periodic payments in deciding to order a relatively small lump sum payment. Counsel submitted that the approach of McCracken J. in McA -v- McA follows that adopted by the English Courts throughout the 1980’s and 1990’s where the Courts put emphasis on what they considered to be the reasonable needs of the spouse. The test as set out in the case of Duxbury -v- Duxbury [1987] 1 FLR 7 was that the correct approach in the “big-money” cases was to ascertain the “reasonable needs” of the Applicant spouse and to seek to meet those needs during her lifetime by provision of a capital sum calculated to provide for her during her lifetime. Recently however, a more expansive approach was adopted by the English Courts in the case of White -v- White [2000] 1 FLR 7. Counsel for the Applicant contend that the case of White -v- White represents a significant departure from the steady line of authority which has built up in England over the years. In the House of Lords, Lord Nicholls of Birkenhead took the view that the state of the law on the division of property on a divorce was “in a state of confusion”. In considering the United Kingdom equivalent of Section 20 of the Family Law (Divorce) Act, 1996 , he said that “ Fairness required the Court to take into account all the circumstances of the case ”. He felt that before making an Order as to the division of assets the judge should use a yardstick of equal division as his guide. He said that this principle of equality should be departed from only if there was good reason for doing so. 19. Counsel for the Applicant then went on to submit that a more circumspect approach was advisable in Ireland, as our divorce legislation differed from the English legislation in a number of ways. Firstly, there was the Constitutional requirement that the parties must have lived apart for a period of four years prior to the institution of proceedings. Counsel submitted that this consideration directly impacts on whether the assets involved should be viewed by the Court as marital assets or individual assets free from claim by the other party. They submit that the Applicant’s wealth has increased significantly from 1994 when the parties separated. It appears that the vast bulk of the Applicant’s wealth is in property, with 80% of that wealth having been accumulated post 1994. Accordingly, Counsel for the Applicant submit that the Court should at the most provide for the Respondent by reference to the 1994 position. 20. Secondly, Counsel for the Applicant argue that the thrust of amy of the big-money cases in the United Kingdom was towards providing a “clean break” between the spouses. There is no “clean break” provision in Irish law with the Family Law (Divorce) Act , specifically providing for reviews of several areas of ancillary financial relief and a continuous review of Maintenance and lump sum awards. The Applicant submits that for this reason it would be wrong to adopt the approach in White -v- White as one might be tempted to make a clean division of the existing assets. He drew attention to the fact that McA -v- McA , Mr. Justice McCracken made it clear that he regarded as a relevant factor the periodic payments he was ordering, before making a lump sum in favour of the Applicant. 21. Thirdly, Counsel for the Applicant submit that the Court must consider the meaning of the term “proper provision” in Section 20 of the Act . They submit that the use of these words by the legislature indicates a desire in the legislation that the Courts approach the issue from the point of view of reasonable needs as opposed to the yardstick of equality. They submit that the case of White -v- White was decided within the context of the English equivalent to Section 20 which makes no mention of proper provision but instead makes reference to placing the parties in the same financial position they would have been in if the marriage had not broken down. 22. As regards the question or access, the Applicant seeks an Order pursuant to Section 15 (1)(f) of the Family Law (Divorce) Act, 1996 . The Section provides that on the granting of a decree of divorce the Court may make an Order under Section 11 of the Guardianship of Infants Act, 1964 regarding custody of the child and right of access to the child of his father or mother. In determining any issue in relation to a child’s welfare, the Court must regard the child’s welfare as the first and paramount consideration. In these proceedings, it is chiefly the time when the access is to take place that is disputed between the parties. The Applicant seeks either mid-week access to his son or, if access is to take place on a Saturday, then he wants it to take place in the context of his present circumstances. The Applicant submits that the Court must balance the rights of the child of his second relationship with those of the children of his marriage in circumstances where the Applicant is forced through demands of work to stay away Monday and Friday. He submits that if access by the Applicant to his son cannot take place in the context of his present circumstances, then in the interest of the child, access should take place on the mid-week basis suggested by the Applicant. The Applicant seeks a basis from the Court for the promotion of his relationship with his youngest son, so that the child can feel happy in the context of his father’s first and second relationships. SUBMISSIONS ON BEHALF OF THE RESPONDENT 23. Counsel for the Respondent drew attention to the case of JD -v- DD (Unreported, High Court, 14th May, 1997) Mc Guinness J., in looking at the issue of Maintenance in big-money cases considered the approach of the English Courts to be persuasive. She stated at page 38:- “.... I feel that the approach of the English Courts in cases involving wealthy families is both instructive and persuasive. From the English case law I would deduce the principle that in the case where there are considerable family assets the Court is not limited to providing for the dependant spouses actual immediate needs through a periodic Maintenance Order, but may endeavour, through the making of a Lump Sum Order, to ensure that the Applicant will continue into the future to enjoy the lifestyle to which she was accustomed.” 24. McGuinness J. concluded at page 40 that:- On a practical level, this marriage was a lengthy partnership of complementary roles and it seems to me that it should result in a reasonably equal division of the accumulated assets.” 25. While that case was under the Family Law Act, 1995 the principles remain largely the same 26. The Respondent submits that there is a sound basis for the Court having regard to the English case law. However, she submits that two points need to be taken into account before so doing; namely, the strong constitutional imperative requiring adequate provision as exists in Irish law, and the fact that, unlike the position in the United Kingdom, a spouse has a specific mathematical entitlement to the estate of the other spouse. Counsel submit that the fact that these specific succession rights are foregone on divorce means that a more generous allocation should be afforded to the Respondent in this jurisdiction. 27. Counsel also made reference the case of McA -v- McA [2000] 1 IR 457 . The Judgment of McCracken J. is the most significant example of a big-money case since the enactment of the Family Law (Divorce) Act, 1996 . Here McCracken J. relied on the fact that the wife was to receive £1.2 million, a series of valuable properties and a lump sum of £300,000, in making his Order that the wife transfer her share in the family company to her husband. Counsel submitted however, that it is important to note that the relevant passage was predicated on the finding of McCracken J. at page 14 that:- “I would not be in the interests of either party to undermine the Respondent’s business potential”. 28. In that case it was accepted that there were significant limits to the extent to which a financial burden could be placed upon the husband’s business, without causing it significant harm. In addition, substantial Maintenance was ordered in favour of the wife, notwithstanding that there were no continuing dependent children. 29. Counsel for the Respondent referred to the recent English case law of White -v- White [2001] 1 All ER 1 , HL. and Cowan -v- Cowan [2001] 2 FLR 1, CA. and submitted that the Court should adopt a test similar to that applied in the case of Cowan -v- Cowan . Firstly, they submit the Court should apply the statutory criteria as set out in Section 20 of the Family Law (Divorce) Act, 1996 . Secondly, in evaluating the contributions of both parties to the welfare of the family, in accordance with Section 20 (2)(f), the traditional role of women in the home should not be valued lower than that of the role of breadwinner, as to do so would be to discriminate. Thirdly, assessment of assets should be at the date of trial or appeal, except in circumstances where there had been a deliberate and reckless wasting of assets. Finally, it is submitted that there must be an interaction between the various Financial Orders, so that if the Court makes no, or a low Maintenance Order, then that should be reflected in a correspondingly high lump sum award. 30. Counsel for the Respondent submit that the division of assets should not depart to a large extent from broad equality for a variety of reasons. It is submitted that:- (a) While the husband’s financial achievements are above the ordinary, the wife’s contributions to the family could be characterised in a similar manner. (b) The family was characterised by a broadly equal start as regards the assets brought in by both parties, with equal contributions made to the family’s development. (c) Insofar as there had been a significant increase in the value of the husband’s assets since separation, it is submitted that this is not relevant in principle or if it is relevant that it should not have a significant effect of the facts of the case given that all of the recently acquired assets were generated by the initial property assets which, in turn, were generated by the solicitor’s practice which was developed during the course of the marriage. (d) There are no countervailing factors (such as existed in McA -v- McA ) which would cause the Court to be reluctant to order a significant Financial Adjustment Order by virtue of its effect on the overall finances of the family as a whole. 31. Applying those principles, Counsel for the Respondent submit that the most advantageous Order to all sides would be to order a specific capital sum to the Respondent. Counsel for the Respondent submit that on an assessment of the parties total net assets at £16 million, being £15 million to the Applicant and £1 million to the Respondent, and applying the equality check recommended in Cowan -v- Cowan and White -v- White , that would require a capital transfer, by way of a lump sum, of £7 million to secure equality. To apply another check, namely that of one third inheritance entitlement, this would require a transfer of approximately £4.4 million, to leave the Respondent with approximately one third of the net assets. Counsel submit that the appropriate range of the Order is between £4.3 and £7 million. They submit that because of the various aforementioned factors it should be in the higher end of that range. 32. I have had regard to the provisions of Section 20 of the Family Law (Divorce) Act, 1996 in respect of the proper provision to be made for the spouse and dependant boy and young man in this case. 33. Without prejudice to the foregoing I have paid particular regard to all of the matters contained in Section 22 . 34. In my view I have no difficulty with Section 22 ((a) through to (h)). This is a family where the husband has assets in excess of £20,000,000 and the wife has assets of some £1.15 million. In the later years of their married life they enjoyed an exceptional standard of living. Section (2)(i) causes me some difficulty which I will deal with later in this Judgment. Section (2)(j), (k) and (l) I have also taken account of. 35. I note that immediately prior to the opening of this action the Applicant made an open offer of £1,000,000 to the Respondent. 36. I have been referred to a number of authorities beginning with J D -v- D D McGuinness J. Therein at page 38 the opinion of the Judge is as follows:- “In a case such as this I feel that considerable reliance should be placed on lump sum provision, while the periodic maintenance should also play an important part in making the necessary calculations. Full regard, of course, must be paid to the guidelines set out in Section 16 of the Family Law 1995 Act.” 37. I might add, in this case, that I do not see the making of a lump sum payment as introducing the “clean break” concept into Irish law. In my view it is making provision for the financial security of the Respondent. The Applicant has, before order of this Court, established a second family relationship and now has a daughter of same. What the future holds is therefore uncertain from all parties points of view. 38. In relation to the English authorities relied upon I have found them extremely helpful and interesting. Where it is possible I ought to follow a decision of the High Court. In this case I do follow the above judgment. The decisions of the English Courts are of strong persuasive value warranting great respect and evaluation. It goes without saying that they represented most interesting assessments by leading English juris and I find them of assistance in this case. 39. The decision of McCracken J. in McA -v- McA is also of assistance as it deals with relief sought under the Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995 by the Applicant therein and under the provisions of the Family Law (Divorce) Act, by the Respondent therein. 40. In the decision of P O D -v- J O D , Budd J., there is a full assessment of the Irish and English authorities and I note that the learned Judge has followed the decision of McGuinness J. in J D -v- D D and therefore decided to divide the assets equally between the parties. 41. Turning to the House of Lords decision in White -v- White , delivered on the 26th October, 2000, which was an appeal dealing with:- “The principles trial Judges should apply when hearing applications for financial relief in this type of case. It goes without saying that those principles should be identified and spelled out as clearly as possible. This is important so as to promote consistency in Court decisions and in order to assist parties as there advisors and mediators in resolving disputes by agreement as quickly and inexpensively as possible.” 42. Let me say that those are sentiments I wholeheartedly concur with notwithstanding the difference in law between the two jurisdictions. 43. Likewise I find that the further Opinion in that position of great relevance and that:- “But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for a discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, are forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties contributions. This is implicit in the very language of paragraph (f)....the contribution which each has made or is likely...to make to the welfare of the family, including any contribution by looking after the home or caring for the family.! If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earn the money and built up the assets. There should be no bias in favour of the money earner and against the home maker and the child carer. A practical consideration follows from this. 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. The need to consider and articulate reasons for departing from equality would help the parties and the Court to focus on the need to ensure the absence of discrimination. This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers conferred by Parliament 30 years ago, enabled the Court to recognise and respond to developments of this sort. These wide powers enabled the Courts to make financial provision orders in tune with current perceptions of fairness. Today there is greater awareness of the value of non financial contributions to the welfare of the family. There is greater awareness of the extent to which ones spouses business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years. There is increased recognition that, by being at home and having and looking after young children, a wife may loose forever the opportunity to acquire and develop her own money earning qualifications and skills. In Porter -v- Porter [1969] 3 AER at 640, 643-644, Sachs L. J. observed that discretionary powers enabled the Court to take into account “the human outlook of the period in which they make their decisions”. In the exercise of these discretions “the law is a living thing moving with the times and not a creature of dead or moribund ways of thought”.” 44. The learned Judge went on to elaborate on the above. “It is largely for this reason that I do not accept Mr. T’s invitation to enunciate a principle that in every case the “starting point” in relation to a division of the assets of the husband and wife should be equality. He starts to draw a distinction between a presumption and a starting point. But a starting point principle of general application would carry a risk that in practice it would be treated as a legal presumption, with formal consequences regarding the burden of proof. In contrast, it should be possible to use equality as a form of a cheque for the valuable purpose already described without this being treated as a legal presumption of equal division.” 45. The learned Judge concluded his opinion with the following observation:- “Rightly or wrongly, these passages have been understood as saying that reasonable requirements is a more extensive concept than financial needs. This seems then to have led to a practice whereby the Courts appraisal of a claimants wife reasonable requirements as being treated as a determinative, and limiting factor on the amount of the award which should be made in her favour.” 46. Whilst clearly distinguishing the above case as a “clean break” case, I nonetheless find the principles therein enunciated as helpful in the interpretation of Sections 22 (1) and (2) of the Family Law (Divorce) Act, 1996 . 47. Likewise I make a similar assessment of the Court of Appeals decision in Cowan -v- Cowan dated the 14th May, 2001 applying the White -v- White decision. The extensive Opinions expressed therein highlight the need for a thorough assessment of the criteria set out in the English statute by each trial Judge. 48. On one particular point I have no hesitation in following the Courts decision in the above case, namely, that the assessment of assets must be at the date of trial or appeal. I am much taken with the view expressed by Mance L. J. at page 43 of that report and accept the point and apply it in this case. THE EVIDENCE 49. The Applicant gave evidence and I accept same in most respects subject to the views that I will express where that evidence is in conflict with the Respondent’s evidence on three areas of conflict. 50. A certified Chartered Accountant gave evidence. I accept his evidence as to the nature of the Applicants tax sheltering arrangements. I note that he readily admitted that his views, as to the future, was based on conjecture. 51. As suited the running of the case, an accountant then gave evidence on behalf of the Respondent. 52. Thereafter the Respondents then gave evidence in relation to her graduation in 1976. 53. Her evidence was interposed with that of Mr. John Devlin, who gave evidence, for the Applicant, as to the valuation of various properties. 54. The Respondent gave evidence that she met the Applicant in 1978 and moved to the North of Ireland in June, 1980 where she worked. The Applicant commenced employment in 1980. 55. In 1984, the Respondent sold her Dublin home. She gave evidence as to her work with the Applicant’s practice. He worked extremely hard and she was anxious that he would succeed in his ambition. All her monies, from employment, the sale of her Dublin home, and the £7,000 proceeds of a personal injury claim went into the family fund. 56. She detailed her seven pregnancies. In relation to her marriage, C was born in 1981, N was born in 1983 and D was born in 1989. 57. The Respondent had seven pregnancies in all. P was born in 1985 and died at the age of 7 months. J was born in 1987 and he was dead at birth. The Respondent had two miscarriages in 1982 and 1986. 58. From 1980 until 1989 the Respondent gave evidence that she worked as aforesaid. Thereafter she took 1 year leave of absence. Finally she resigned from that position in 1993 having commenced in private practice at that time. In 1994, she obtained her membership. 59. There is no great dispute as to the purchase of the various properties between the parties. I note that the Respondent was adamant that the purchase of one property was with a view to its being the family home. 60. The Respondent considers the crisis in the family affairs to have come to a head in 1994. The Applicant had gone to London after Christmas in 1993 and she thereafter noticed a changed attitude on his return from that vacation and during the months of 1994 up to August, 1994. 61. The Respondent and the three children went to Dublin in or about the 21st August, 1994. The Applicant phoned each evening. On their return to the family home, the Applicant had left, the family home taking his belongings with him. 62. This was traumatic for the Respondent and the children. 63. The Respondent says that from the time of the Applicants departure until 1996, a state of affairs existed whereby the Applicant would visit, virtually on a daily basis and regularly have his evening meal. 64. All of this changed with the Applicants admission in December, 1996 that he was having an affair with a member of his staff. Up to that time the Applicant had open access to the family home, to his children, to his wife and was fed on a regular basis. 65. Thereafter the Respondent considered herself and the children demeaned and ridiculed, as the family were well known in the town and locality. She also gave as evidence as to the objection to the divorce proceedings herein. Whilst seeking to establish her medical practice, it was of limited income and she has assets of £1.15 million. 66. An Accountant gave evidence of the Respondents accounts. I note these figures and will relate to them later in due course. 67. An Auctioneer gave evidence as to the local value of the properties. 68. Mr. Philip Shier, an Actuary, gave evidence in relation to the Applicants pension policies based on values provided by the respective insurance companies. 69. Taking the evidence of the Applicant and the Respondent, I have to come to the following view:- 70. Both set out in their marriage as two ambitious people. The Respondent made a very special financial contribution to that marriage. Her income was certain. It and the funds from the sale of her Dublin house and the damages for her personal injury claim went into the family fund. In addition, she gave much effort to the rearing of the children. In the course of this, she suffered miscarriages and lost one child after birth and one child still born. 71. I take the view that up until 1989, the parties had common cause in developing and increasing their wealth. I think it likely that the Respondent assisted to some substantial degree in establishing her husbands practice. For his part the Applicant gave a total commitment to establishing a thriving practice. It is likely that those efforts, achievements, and disappointments were likely to have created a somewhat volatile relationship up until the early 1990’s. 72. From 1990 to August, 1994 the marriage was deteriorating on the evidence. I consider the Respondents evidence in respect of this period to be more probable then that of the Applicants. The Applicant had a number of affairs during this time which I believe he admitted to and he was of the view that the marriage was over without so much as telling the Respondent of this fact. I think it unlikely that the Respondent should have been so traumatised by the Applicants admission of infidelity in or about December, 1998. Had there been a clear understanding between both parties as to their respective positions on the viability of the marriage and the fact that the Applicants behaviour indicated in his view that it was over and in relation to the Respondent that she was unaware of this fact. 73. My concluding view of the evidence is as follows:- 74. I accept the evidence of the Applicant and the Respondent as to the historic development of their marriage. Both are strong and self willed personalities and will have their day in Court.! They chose each other as partners and I do not see the need for proffering one to the other - apart from the specific views I have taken on their evidence as indicated above. 75. Turning to the provisions for the Respondent, the infant and the second son, which I consider proper having regard to the Applicants claim for a decree of divorce, and bearing in mind the views I have expressed on the statutory provisions and the Irish and English case law relied upon by both parties; it seems to me that the Respondent has made an overall greater contribution to the marriage than the Applicant. None the less, I am mindful of the need for care and discretion when dividing a fortune as substantial as that with which I am now dealing. I am also mindful of the economic realities which have occurred since the submissions were made to me on the 23rd July of this year - and what has occurred since then. 76. Subject to that important reservation I am impressed with the case, the evidence, and the submissions made by and on behalf of the Respondent and do accept them. 77. The expert witnesses called on behalf of each party seems to me to be in general agreement as to the extent of the financial standing of both parties. I therefore take the view that the Applicants assets are worth in or around figures some £20 million. The Respondents assets on a like basis are to be valued in or about the sum of £1.15 million. 78. One outstanding matter that has given me much difficulty is the specific provision of Section 20 (2)(i) of the Family Law (Divorce) Act, 1996 . It seems to me on the evidence that I am obliged, in exercise of the discretion which undoubtedly arises, to take it into account. In doing so this creates a further difficulty, namely how to quantify it and in this regard I note that the particular provision does not offer any formula for its proper assessment. I note that McGuinness J. in her Judgment and McCracken J. in his Judgment did not deal with this aspect. 79. In these circumstances I propose, from a monetary point of view to deal with it by way of what I consider to be a proper adjustment of pension provisions in favour of the Respondent. 80. Finally, and of significance, I note that the Applicant is in a new relationship and has a baby daughter born during the hearing of this case. It seems to me to be a compelling factor to be taken into account in determining the amount of a “lump sum” which the Court ought to consider appropriate for the Respondent and the youngest child of the marriage. Especially from the Respondents point of view in that same permits both parties to begin anew. 81. Having regard to the foregoing and conscious that I ought to take a conservative view of such “lump sum” for the reasons stated, I propose to award the Respondent the sum of £5 million without the payment of continuing Maintenance, in the special circumstances of this case. 82. To the infant D, I will allow a sum of £800 per month Maintenance until he attains the age of 18 years or continues into third level education. To the two eldest sons, who remain as dependants I will, at this stage, make no Order in the hope that their financial requirements are understood by and discussed with the Applicant. There will be liberty to apply in relation to this matter. 83. In respect of the pension provisions as set out in the Delaney Bacon and Woodrow Report dated the 10th July, 2001, I would have been disposed to divide this to the Applicant as to 49% and the Respondent as to 51%. However, having regard to the view I have expressed as to the taking into account of Section 20 (2)(i) of the aforesaid Act of 1996 I will in deference to my findings thereunder allow a finding of 45% to the Applicant and 55% to the Respondent. 84. Steps will have to be taken by the Respondent and the Applicant to give effect to this Ruling on this aspect of the case and I propose to put the matter, on this issue, back until same has been done. ACCESS 85. It is agreed that the two eldest sons and the Applicant will find their own accord. I am therefore concerned with D’s position. He was born in 1989. He is now 12¹/ years of age. 86. In the absence of appropriate reports I interviewed D and the second son N. The eldest son was abroad as befits a third level student of his age. 87. I was impressed by both. They are a credit to themselves and their parents. This boy, D, was 7 8/12 years of age when he first became aware of the trauma between his parents. He is an able young man. Intellectually and as a sportsman, he is very able. He, understandably, has problems about his parents break-up. 88. In the Applicants Special Summons the Applicant sought an Order for a proper assessment to be carried out with a view to the custody and access of both parties to that child. 89. An application under Section 49 of the Act was issued. Due to the Respondents determined opposition this was, unfortunately, not proceeded with. 90. In my view, if ever the Court require the assistance of professional qualified persons in Child Care - this was patently one of many. The Respondents assertion that she took appropriate qualified medical opinion on this matter leaves me in doubt. Not that she may have consulted but she, the unfortunate woman, was so appalled at the Applicants behaviour she acted and said no. 91. It is clear that the anguish suffered by D. was enormous by 1996. It is and will remain so and, doubly so since the arrival of his fathers daughter. Children such as D need appropriate qualified professional help in circumstances such as this. I am satisfied that it was my duty to interview both D and N. It was an enriching experience. It has however, left me with a dilemma. May I, without such professional help move to make a determination on access between a 12 year old boy and his estranged father in the circumstances of this case. I think not: Having given the matter much consideration I have come to the conclusion that an appropriate report is not only necessary to enable this Court determine the appropriate access between D and his father - it is, in my view, essential. © 2001 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII