A v A

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] IEHC 340
• Court: High Court
• Docket Number: [2019 No. 58 M]

In the Matter of the Judicial Separation

And Family Law Reform Act 1995

In the Matter of the Family Law Act, 1995

Between:

A

Applicant

and

A

Respondent

[2022] IEHC 340

[2019 No. 58 M]

THE HIGH COURT

Divorce – Judicial separation – Form of order – Parties seeking decree of divorce – Whether the parties met the criteria for granting the petition for a decree of divorce

Facts: The proceedings started out as an application for judicial separation by “Ms A”. Immediately prior to the hearing of the judicial separation application, divorce proceedings were commenced by “Mr A”. The parties were satisfied for the High Court to treat with both applications in the judgment.

Barrett J requested of the parties that they agree between them a form of order that should include the following orders: (1) an order for (a) the payment by Mr A of an annual lump sum payment of such grossed-up sum as pays Ms A the amount of [Amount 9] net per month payable for each full year to Mr A’s retirement date, with (b) ‘grossed up’ monthly maintenance payable thereafter in such an amount as will enable Ms A to receive a monthly net payment of [Amount 9] provided that the net monthly amount payable under (b) may well need to be revisited at some future time if Mr A elects not to work post-retirement or such work brings in a much-reduced income; (2) an order that the damages received in respect of [Property 2] be divided 50/50; (3) with regard to the possibility of ongoing proceedings in [EU Member State 1], an order that the higher sum of [Amount 10] (as argued for by Ms A) be set aside; (4) as to the rectification of the family home boundary, Mr A offered more than Ms A had sought, hence, an order for the amount that Ms A had sought; (5) an order that the family home, [Property 1], and the property in [EU Member State 1] all be transferred to Ms A, and an order that [Property 2] be transferred to Mr A; (6) an order that the (smaller) Ireland pension fund go to Ms A and the (larger) Isle of Man pension fund go to Mr A, coupled however with an order that Mr A make an equalising payment of [Amount 14] to Ms A so that, in effect, both parties get an equal division of the total pension funds; and (7) an order that the [Bank 1] bank monies go to Mr A and the Irish bank account monies and the [Bank 2] compensation monies go to Ms A, coupled however with an ‘equalisation payment’ by Mr A to Ms A so that all of these monies are in effect divided equally. Barrett J held that Mr A would retain his shares portfolio. Although Barrett J could see the logic of ordering that Ms A should receive some of the death-in-service benefit should it ever arise to be paid, as he understood matters the fund in question was outside the jurisdiction and so any order by him concerning the fund would be futile. As regards the sum of money that Mr A advanced to one of the children of the marriage without consulting Ms A, Barrett J’s sense was that this should be a liability of [Amount 11] for each party; the child who benefitted was a child of the marriage, Mr A (beyond not consulting Ms A and he should have consulted her) did nothing that no right-thinking parent would not do if a similar situation presented and there were the resources to assist. If Ms A did not wish to see one child favoured over her other children, Barrett J suggested that this could be addressed in her will.

Barrett J held that the parties met the criteria for granting the petition for a decree of divorce, were desirous of same, and he would make the decree sought.

Petition granted.

Summary

These proceedings started out as an application for judicial separation by Ms A. Immediately prior to the hearing of the judicial separation application, divorce proceedings were commenced by Mr A. The parties are satisfied for the court to treat with both applications in this judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 2 ^nd June, 2022 .

I. Background

1 . By way of background, the parties to these proceedings have been party to a decades-long marriage and there are several adult children of the marriage. The parties also cohabited for a couple of years prior to their marriage. One of the children, it now appears (things looked different at the hearing) will commence a postgraduate degree later this year and it seems that some level of support will be sought by that child; however that child is not a legal dependant. Ms A is approaching her sixtieth birthday; Mr A was 61 earlier this year.

2 . As with many marriages, the parties worked throughout their marriage as a team. Ms A, at some periods during the course of the parties' marriage, had pensionable employment outside the family home. However, to a very large extent, Mr A has long been the primary earner and he has done strikingly well in his career. Ms A largely (though not entirely) worked as a homemaker. Unfortunately, for whatever reason, the marriage, though it endured across several decades, essentially came to an end in or around May 2019.

3 . I accept that between 2013 and 2019 the children of the marriage were of such an age that Ms A could conceivably have sought work outside the family home in that period – assuming that she thought it sensible to do so when her youngest child was then still in secondary school and coming into the period when state examinations were looming. (She may reasonably have thought this not to be sensible). That said, a degree of reality falls to be brought to bear in this regard. Having spent years as a homemaker and being a middle-aged woman who had been gone from the jobs market for some time by the said period, Ms A's prospects of returning to the jobs market and/or securing a position of a level that she would have attained had she not committed years to being a homemaker have been negatively impinged by the said commitment – which commitment, I note, benefitted Mr A in terms of his being ‘freed up’ to pursue his successful and lucrative career. This homemaker-related impairment of Ms A's future employment prospects continues to present at this time; indeed as the years progress the impairment likely increases: ageism is an insidious reality for older people.

4 . I note Ms A's successful efforts in resolving the dispute with a particular mortgage lender, and in dealing with the disputes that arose concerning the property in [EU Member State 1] and [Property 2], as well as the boundary dispute concerning the family home. I do not, with respect, see that management of the couple's rental properties (apart from the disputes that arose) was an especially onerous task, though when coupled with the disputes presenting this management role (discharged by Ms A) it appears to have been more exacting a task than would typically be the case.

5 . For the sake of good form, I note that neither party has (on the evidence before me) been guilty of, nor has either party alleged, such gross conduct during the marriage as would make it unjust for me to disregard that conduct in this judgment.

II. Applicable Law

6 . In terms of making proper provision for the parties, in M v. S [2020] IEHC 562, I considered the applicable authorities in some detail. Since that judgment was delivered, the Court of Appeal gave judgment in N.O. v. P.Q. [2021] IECA 177, which undertakes a helpful analysis of previous authorities. The making of financial provision in this case has largely, though not entirely, been decided by reference to those two cases (which themselves refer to a plethora of useful cases). I do not consider it helpful or necessary to detail the applicable law yet again in this judgment when it has been so carefully considered in those judgments and is simply being applied here. As will be seen, I bring the applicable case-law to bear later below and also go through the ad seriatim consideration of the various factors to which I am required to have regard under s.20 of the Family Law (Divorce) Act 1996 (which is the equivalent of s.16 of the 1995 Act in the context of judicial separation).

7 . Mindful that there was a roughly equal partnership in terms of the out-of-home and in-home work undertaken respectively by the parties my aim in this judgment has been to secure a roughly equal division of assets. That said, two points might be made. First, with the best will in the world, the division of assets in such a way as to secure proper provision to the parties – even in a roughly equal partnership – will not always result in a precise 50/50 split of assets down to the very last cent. This practical point seemed to me to be sometimes in danger of being overlooked by both sides at the hearing. Second, with the establishment of two households in place of one from the same pool of assets there will typically be some diminution in the standards of living previously enjoyed: a standard of living commensurate to one's pre-separation/divorce standard of living will not always equate to a standard of living identical to one's pre-separation/divorce standard of living.

8 . As mentioned, I turn later below to consider the statutorily prescribed factors to which I must have regard. However, it will shorten my consideration by reference to those factors and be a more comprehensible read if I first set out my general response to the various key issues that were the subject of focus at the hearing.

III. Income

9 . The primary source of income of the parties is Mr A's substantial employment income. The parties are also fortunate to enjoy some rental income from certain investment properties. Neither party is entitled to any payment under statute at this time.

10 . I accept Ms McShane's evidence that Mr A's monthly income in 2021 was just under [Amount 1]. 1 In the same year, he received an annual bonus of [Amount 2], though this bonus was unnaturally diminished because of under-performance at the height of the Covid lockdowns. So, for example, in the...