A v A

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 27 January 2025
• Neutral Citation: [2025] IECA 9
• Docket Number: Court of Appeal Record Number: 2023/148

In the Matter of the Judicial Separation and Family Law Reform Act 1995

and

In the Matter of the Family Law (Divorce) Act 1996

Between/

A

Applicant/Respondent

and

A

Respondent/Appellant

[2025] IECA 9

Faherty J.

Binchy J.

Meenan J.

Court of Appeal Record Number: 2023/148

2023/149

THE COURT OF APPEAL

Judicial separation – Blocking order – Proper provision – Appellant appealing against orders made in judicial separation proceedings – Whether the judge erred in the manner in which proper provision was assessed

Facts: The appellant husband was the respondent in the judicial separation proceedings commenced by the respondent wife. He was the applicant in the divorce proceedings. He appealed to the Court of Appeal against two judgments of the High Court (Barrett J) delivered on 2 June 2022 and 25 January 2023 and the orders made on 3 March 2023 consequent on those judgments. The husband maintained that the Judge erred in the manner in which proper provision was assessed in the context of the decree of divorce granted to the parties. Two notices of appeal were filed by the husband, one relating to certain of the orders made in the judicial separation proceedings and the other appealing against the failure of the Judge to make a blocking order under s. 18(10) of the Family Law (Divorce) Act 1996 in circumstances where the Judge was satisfied to make mutual blocking orders under the Judicial Separation and Family Law Reform Act 1995. The husband’s overarching contention was that the manner in which the Judge exercised discretion in making certain ancillary orders was unfair and unjust.

Held by Faherty J that the order directing the husband to pay maintenance of €10,000 net per month post 1 April 2026 was disproportionate in the absence of any concrete evidence that he was likely to be in receipt of employment related income post 1 April 2026, and in circumstances where the other provision made by the Judge (as reflected in the order of 3 March 2023) was fashioned, at least in part, so as to ensure that the wife was the recipient of future income generating assets such as an investment property and the husband’s Zurich pension scheme. Faherty J noted that as the owner of the parties’ family home, there was also the option for the wife at some point in the future to release the equity in that property (which would have no tax liability) by trading down to a smaller dwelling, thereby leaving her with a further cash resource. Having considered how the Judge approached the division of the parties’ cash resources, his conclusion as regards the Joint Keytrade account appeared to Faherty J to be entirely within the scope of his discretion in the context of making proper provision for the parties. Faherty J was satisfied that the €191,668 pension equalisation figure should stand. In circumstances where the draft order which counsel for the husband handed in to the Judge in December 2022 contained mutual s. 18(10) blocking orders and where it was said to the Judge in the presence of the wife’s then counsel that mutual s. 18(10) orders could be made (all without objection from the wife’s then counsel), Faherty J was satisfied to direct that the order of 3 March 2023 made pursuant to the 1996 Act be amended to provide for mutual blocking orders pursuant to s. 18(10) of the 1996 Act.

Faherty J allowed the husband’s ground of appeal in relation to the ongoing maintenance issue and vacated the order directing him to pay net monthly maintenance of €10,000 from 1 April 2026. Faherty J proposed that the 3 March 2023 order made pursuant to the 1996 Act be amended to provide for mutual blocking orders pursuant to s. 18(10) of the 1996 Act.

Appeal allowed in part.

UNAPPROVED

Judgment of Ms. Justice Faherty delivered on the 27 ^th of January 2025

1 . This is an appeal taken against two judgments of the High Court (Barrett J.) delivered on 2 June 2022 ( [2022] IEHC 340) and 25 January 2023 and the orders made on 3 March 2023 (as perfected on 8 June 2023) consequent on those judgments. The appellant is the respondent in the judicial separation proceedings commenced by his wife. He is the applicant in the divorce proceedings. For the purposes of this judgment, I will refer to the parties as the “Husband” (the appellant) and the “Wife” (the respondent). In essence, the Husband maintains that Barrett J. (hereinafter “the Judge”) erred in the manner in which proper provision was assessed in the context of the decree of divorce granted to the parties.

2 . In order to put the particular ancillary orders which are under appeal into context, it is first necessary to set out the background facts and the procedural history of the proceedings.

3 . The parties were married in 1988. There are children of the marriage, but none are dependants for the purposes of the proceedings. The parties separated in or about mid-2019 and it is not in dispute but that the marriage has irretrievably broken down. At the time of the trial in the High Court in late 2021/early 2022, the Husband was aged 61 and the Wife was approaching her 60 ^th birthday.

4 . The Wife continues to reside in the family home. The Husband resides outside of the jurisdiction, where he is employed.

5 . The uncontested evidence of the parties is that the family lived outside the jurisdiction for various periods during the marriage, in circumstances where the Husband's employment took them abroad.

6 . Throughout the marriage the Husband was and continue to be employed by a global industrial group of companies (hereinafter referred to as “the Company”) headquartered outside of the jurisdiction. During his employment with the Company, he has worked in a number of countries. Since in or about 2013, his role for the Company has been based in the country where he is presently resident. Whilst the Husband's contract with the Company was approaching its end in 2023, his evidence was that he anticipated that he would continue with the Company on a new contract until retirement aged 65.

7 . Judicial separation proceedings were commenced by the Wife in mid-2019 pursuant to the Judicial Separation and Family Law Reform act 1995 (“the 1995 Act”). Due to Covid restrictions there were delays in bringing the matter on for hearing but, ultimately, a trial date was fixed by consent for four days in November 2021. By the time the judicial separation proceedings came on for hearing, the Husband had issued divorce proceedings pursuant to the Family Law (Divorce) Act 1996 (“the 1996 Act”).

8 . The hearing of the judicial separation/divorce proceedings commenced on 2 November 2021 for four days. By the fourth day (5 November) the case was not finished and so, was heard further on 3 December 2021 and 28 January 2022.

9 . On the latter date, the Judge fixed timelines for written submissions to be completed by March 2022 which were duly furnished.

10 . As no doubt will be appreciated, the hearing of the actions was concerned with the issue of proper provision for the parties. For the purposes of what orders might be made such as would constitute proper provision, apart from the evidence heard from the Wife and the Husband, the Judge had the evidence of experts called on behalf of the Husband and Wife, respectively, namely:

— Ms. Olga Daly (the Wife's pension expert)

— Ms. Jacqueline McShane (the Wife's accountant)

— Mr. Michael Marsh (the Husband's pension expert)

— Mr. Brian Hyland (the Husband's accountant)

— Mr. Rory Crerar (an auctioneer engaged by the Husband) and

— Mr. Robert Downey (the auctioneer engaged by the parties to conduct a joint valuation of the parties' properties).

11 . The Judge also had the benefit of a D v D schedule compiled on 29 October 2021.

The property and other financial resources of the parties

12 . The assets of the parties were set out in the reports of their respective accountants, and in the D v. D schedule and consist in general of the following:

• 1. The family home which is jointly owned and subject to a mortgage of €73,655. The Wife ascribed it a value of €975,000. The Husband's initial valuation was €1.1m, later increased to €1.15m.

• 2. An investment property (“Property 1”), jointly held, and subject to a mortgage of €136,551. The Wife's valuation was €260,000 and the Husband's €295,000.

• 3. A further investment property (hereinafter referred to as “Property 2”) jointly held and subject to a mortgage of €254,000. The Wife valued Property 2 at €270,000, the Husband at €295,000.

• 4. A holiday home in France, again jointly held, which is free of mortgage. The Wife's valuation was €295,000 and the Husband's was €310,000.

  (At trial, the difference between the parties in terms of the total value of all the properties was €240,000 approximately).

• 5. Cash deposits in various bank accounts. As of the trial date, the total cash deposits amounted to ca. €926,000.

• 6. Share and share options held by the Husband, save one joint “Keytrade” account.

• 7. Pensions.

13 . The Judge was also aware of an open offer made by the Husband during the trial. In essence, the Husband's offer consisted of:

• • The transfer of the family home to the Wife with the mortgage.

• • The transfer of Property 1 to the Wife with the mortgage.

• • A declaration that the Wife is the sole legal and beneficial owner of the French property which is mortgage free.

• • That Property 2 would be transferred to the Husband with the mortgage.

• • A declaration that the Wife is the sole owner of monies held in her sole name amounting to circa €332,000.

• • A declaration that the Husband is the sole owner of two named accounts held by him amounting to circa €490,000.

• • An order granting the Wife a lump sum of the joint monies, being compensation monies in the total sum of circa €100,000 held in her solicitors' client account.

• • An order granting the Wife the appropriate pension adjustment orders as to give her 100% of the entire...