B (M) v B (v)
| Jurisdiction | Ireland |
| Judge | Mr. Justice George Birmingham |
| Judgment Date | 19 October 2007 |
| Neutral Citation | [2007] IEHC 484 |
| Docket Number | 50/2005 |
| Court | High Court |
| Date | 19 October 2007 |
[2007] IEHC 484
THE HIGH COURT
BETWEEN
AND
FAMILY LAW (DIVORCE) ACT 1996 S5(1)
CONSTITUTION ART 41.3.2
FAMILY LAW (DIVORCE) ACT 1996 S5
FAMILY LAW (DIVORCE) ACT 1996 S20(1)
FAMILY LAW (DIVORCE) ACT 1996 S20(3)
FAMILY LAW (DIVORCE) ACT 1996 S20(4)
FAMILY LAW (DIVORCE) ACT 1996 S20(5)
FAMILY LAW (DIVORCE) ACT 1996 S12
FAMILY LAW (DIVORCE) ACT 1996 S13
FAMILY LAW (DIVORCE) ACT 1996 S14
FAMILY LAW (DIVORCE) ACT 1996 S15(1)(a)
FAMILY LAW (DIVORCE) ACT 1996 S16
FAMILY LAW (DIVORCE) ACT 1996 S17
FAMILY LAW (DIVORCE) ACT 1996 S18
FAMILY LAW (DIVORCE) ACT 1996 S22
FAMILY LAW (DIVORCE) ACT 1996 S20(2)
FAMILY LAW ACT 1995 S15
JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 S20
MATRIMONIAL CAUSES ACT 1973 (UK)
K (M) v P (J) (ORSE K (S)) 2001 3 IR 371
K (M) v K (J) (ORSE K (S)) (NO 2) 2003 1 IR 326
T (D) v T (C) 2002 3 IR 334
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(a)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(b)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(c)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(d)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(e)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(f)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(g)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(h)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(i)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(j)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(k)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(l)
C v C UNREP O'HIGGINS 25.7.2005 2005/7/1510
F v F 1995 2 IR 354
FAMILY LAW
Divorce
Proper provision - Ancillary orders - Meaning of "proper provision" - Relevance of pre-existing court order - Lump sum - Clean break - Finality - Statutory test and considerations - Whether entitlement to equivalence of lifestyle - DT v CT (Divorce; Ample Resources) [2002] 3 IR 334, C v C [2005] IEHC 276 (Unrep, O'Higgins J, 25/7/2005), B v B [2005] IEHC 456 (Unrep, O'Higgins J, 8/12/2005), and F v F [1995] 2 IR 354 followed - Family Law (Divorce) Act 1996 (No 33), ss 5(1) and 20 - Constitution of Ireland 1937, Article 41.3.2 - Divorce and relief granted (2005/50M - Birmingham J - 19/10/2007) [2007] IEHC 484
B(M) v B(V)
Mr. Justice George Birmingham delivered the 19th day of October 2007
In these proceedings the applicant seeks a decree of divorce pursuant to s. 5(1) of the Family Law (Divorce) Act 1996, together with various ancillary orders. It may be said at the outset that, subject to the question of proper provision, there is no doubt that the constitutional and legal preconditions to the granting of a divorce have been met.
The factual background is as follows. Mrs. M.B. and Mr. V.B. were married to each other in May 1968. There were five children of the marriage of whom one died in particularly tragic circumstances as a young adult. The youngest child of the marriage is now approaching her 25 th birthday and there are no dependent children within the meaning of the Family Law Acts.
Differences arose between the parties to the marriage and the applicant and the respondent commenced living separate and apart from one another in 1985. Their de facto separation gave rise to Circuit Court family law proceedings and following a three day hearing an order of the Circuit Court was made on 6 th October, 1988. This granted custody to the applicant of the two youngest children, both girls, who were at the time aged six years and nine years. Maintenance payment was ordered in favour of the applicant in the sum of IR £15, 000 per annum together with maintenance in respect of the two youngest children in the sum of £10, 000 per annum for each child thereby making provision for a total of IR £35, 000 per annum by way of maintenance. The respondent was ordered to discharge the mortgage in respect of the family home. The court made a declaration that the applicant was entitled to a beneficial interest of 50% in the family home, the property comprising not just the family home but also an adjoining mews/stable block.
The applicant is an office manager and since the separation of the parties has continued to reside at the family home. She is now aged 61 years. The respondent is a professional advisor and resides in Central Europe. He is aged 62 years. He is a party to a long term stable relationship and he lives with his partner in Central Europe, they having married in the United States. There are three children of this relationship, A. born in 1989 and now a student at university in Britain, M. born in 1992, a schoolboy at a public school in Britain, the same public school as it happens which was attended by one of the sons of the first relationship, and S. who at present attends a school close to his parents home but who it is envisaged will follow his brother to public school in England.
The family property in which the applicant has continued to reside is a magnificent dwelling located in a highly desirable South Dublin location. It is a protected structure, enjoying excellent sea views over Dublin Bay and offers spacious accommodation with up to eight bedrooms potentially available for use.
Since the referendum of November, 1995, Bunreacht na hÉireann has made provision for divorce. The referendum passed by the people enabled the granting of a decree of divorce in particular circumstances which were defined in the Constitution itself.
Article 41.3.2 provides as follows:
A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that
(i) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
(ii) there is no reasonable prospect of a reconciliation between the spouses,
(iii) such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and
(iv) any further conditions prescribed by law are complied with.
Following the passing of the referendum, the Family Law (Divorce) Act 1996 was enacted. Section 5 of that Act provides as follows:
(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that-
(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
(b) there is no reasonable prospect of reconciliation between the spouses, and
(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family, the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned.
The Act goes on to enable the court to make a variety of financial and property orders the purpose of which is to ensure that proper provision is made for a dependent spouse and children at the time of the granting of a divorce decree. This aspect is dealt with at s. 20(1) which provides as follows;
(1) In deciding whether to make an order under section. 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members 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 mental 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 having 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...
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