C.D v P.D

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Higgins
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] IEHC 100
• Court: High Court
• Date: 15 March 2006

[2006] IEHC 100

THE HIGH COURT

[No. 61M/2005]

D (C) v D (P)

This judgment is circulated in redacted form to avoid identification of parties.

FAMILY LAW

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT,

1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

BETWEEN

C.D.

APPLICANT

AND

P.D.

RESPONDENT

FAMILY LAW ACT 1995 S16(2)(a)(I)

K (M) v K (JP) 2006 1 ILRM 534 2006 IESC 4

FAMILY LAW ACT 1995 S15(A)

FAMILY LAW (DIVORCE) ACT 1996 S52

SUCCESSION ACT 1965 S8

SUCCESSION ACT 1965 S9

SUCCESSION ACT 1965 S10

SUCCESSION ACT 1965 S11

SUCCESSION ACT 1965 S12

SUCCESSION ACT 1965 S16 2(1)

T v T 2002 3 IR 334

PARLOUR v PARLOUR 2004 WECA CIV 872

WHITE v WHITE 2001 1 AC 596

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(F)

FAMILY LAW

Judicial separation

Ancillary relief - Proper provision - What constitutes proper provision - Fairness -Succession rights - Extinguishment - Family Law Act 1995 (No 26), s 15A - K (M) v K (JP) [2006] IESC 4, [2006] 1 IR 283; [2006] 1ILRM 534 considered - Order granting judicial separation, sole ownership of family home to applicant, maintenance to applicant of EUR10,000 per month, lump sum of EUR500,000to the applicant (2005/61M - O'Higgins J - 15/3/2006) [2006] IEHC 100 D(C) v D(P)

Facts: The application sought judicial separation from the respondent and ancillary relief. The respondent also sought judicial separation and ancillary relief.

Held by O’Higgins J. in acceding to the application: That the applicant was entitled to an order of judicial separation from the respondent on the grounds that a normal marital relationship did not exist between the parties for at least 12 months prior to the bringing of the application.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice O'Higgins dated the 15th day of March, 2006.

2 In this case which comes before the Court by way of special summons dated the 21st July, 2005 the applicant seeks a judicial separation and ancillary relief. In his replying affidavit, dated the 1st November, 2005 the respondent also seeks judicial separation and ancillary relief.

3 The parties met in 1986 when the applicant worked as a legal secretary and the respondent was a solicitor's apprentice in the same large Dublin firm. The applicant was 21 at the time. The parties became engaged in 1990. The respondent qualified as a solicitor in the late nineteen eighties. After qualifying he moved to London and the applicant joined him about a year later. The parties were married on the 24th May, 1991. They have three children, R. born on the 23rd October, 1995, J. born on the 25th August 1998 and D. born on the 28th January, 2000. After their return from London, the parties bought a home and some time later bought the present family home. The respondent was an extremely successful solicitor and became a partner in a large Dublin firm at the age of 33. However, approximately seven years ago, the respondent left the partnership and went into a business partnership. Both parties worked extremely hard. The respondent in particular worked very long hours and was frequently away from home.

4 It is necessary to analyse the reasons for the breakdown of the marriage. However it needs to be said that the parties impressed the court as being decent and honourable people and that the failure of the marriage was not due to any wrongful act or misconduct of either party. There is little doubt but that the sheer pressure of work was a very significant factor in the deterioration of the relationship between the parties. The marriage was under severe pressure for a number of years and I have no doubt that for at least twelve months prior to the bringing of the special summons on 21st July, 2005 a normal marital relationship did not exist between the parties. There is no hope of reconciliation in this case and the requirements for the granting of a decree of judicial separation have been fulfilled subject to the making of proper provision as required by the Act.

5 There has been a of laudable degree of cooperation between the parties and their legal advisors with the result that a number of matters have been agreed.

6 The net value of the assets is set out in the schedule of assets prepared by Mr. Browne the accountant for the respondent. The net assets are agreed to be €6,284,983. The assets consist of the family home, another house in Dublin, an apartment in London which is being sold and a mobile home. There is almost €50,000 in bank balances and the partnership investments of the husband have a net value of €2,334,241 subject to Capital Gains Tax of €373,224. In a partnership capital account there is a sum close on €46,000 and there are shares with a net value of €285,104 and the value of the company is €197,813.

7 At the commencement of the hearing, both parties helpfully told the court what they considered might be proper provision. Both the applicant and the respondent had proposals as to what might constitute proper provision and I will comment on these later.

8 Happily there is a degree of agreement concerning the children. It is agreed that the parties should have joint custody of the children, but that the applicant should be the primary carer and that the children should reside with her. Access is agreed as follows:-

9 1. The respondent to have access to the defendant children every second weekend from Friday after School to Sunday at 6p.m. The respondent shall be responsible for collecting and returning the children to their home.

10 2. On the weekend that the respondent does not have overnight access to the children, he shall have access to the children from 9.30 on Saturday to 2p.m. on Saturday and/or any additional weekday overnight access to be agreed in advance, acknowledging that the respondent will look after the children on some Saturday afternoons in accordance with paragraph 17 of the this agreement. On every sixth weekend, the applicant shall have exclusive access to the children, and the respondent will have no access.

11 3. The respondent shall have one overnight access midweek every second week from after the children's school time and the respondent shall collect the children from school, and return the children to school the following morning. This midweek access is to take place on the week after the weekend during which the respondent has no over night access.

12 4. The midterm breaks will be shared equally between the parties, such arrangements to be flexible and to be agreed in advance, in that in the event of the applicant having the midterm break in October, the respondent shall have midterm break in February, and to be alternated accordingly.

13 5. All bank holidays (other than the midterm break holidays) shall be alternated between the parties.

14 6. Each party shall be entitled to two weeks holiday access separately with the children. In the first year, being the summer of 2006 the two week access to be in separate weeks. Exact times and dates are to be agreed between the parties, taking into account the children's wishes and plans. In addition, the respondent shall have extra access during the summer holidays being an extra day during the week or by extending a weekend by one day.

15 7. Christmas Eve / Christmas Day are to be alternated and St Stephen's Day and New Years Day on a year on year off basis, with the Applicant commencing in Christmas 2006 having acknowledged that the respondent exercised Christmas Day access with their children in 2005. The remainder of Christmas holidays to be divided equally between the parties. The non access parent will have access to the children for a few hours on Christmas Day between 12 and 2p.m. or such time as may be agreed.

16 8. Easter holidays will be divided equally between the parties, taking into consideration the children's arrangements and plans.

17 9. In the event that the child's birthday falls on during in an access period with either party, the other party shall be at liberty to see that child on their birthday.

18 10. The children shall spend Father's day with the respondent and Mother's day with the Applicant notwithstanding the remainder of the terms of this agreement.

19 11. Liberal telephone access is to apply.

20 12. Each parent will give adequate notice to the other parent of any proposed trips / planned excursion of the children which necessitates a change in existing arrangements.

21 13. Neither party to take the children out of the jurisdiction without prior consent of the other party, such consent to not unreasonably be withheld. It is agreed that each child shall have their own passport in their own name, and the Applicant shall have custody of the said passports.

22 14. Such further access as may be agreed.

23 15. It is agreed that family therapy will continue.

24 16. The applicant and the respondent will endeavour to be flexible in respect of access.

25 17. Where one parent is unable to care for one or more of the children for any period of time (say for example, of the need to attend an activity of one of the children) that parent will seek the assistance of the other party in an about caring of the other children.

26 In considering an application for judicial separation the Court is obliged to endeavour to ensure that such a provision exists or will be made free to spouses concerned and for any department member of the family concerned as is proper with regard to all the circumstances of the case. While the Court is obliged to have regard to all relevant circumstances in making the decision but the Court is specifically obliged to have regard to the factors set out in s. 16(2)(a)-(l) of the Family Law Act 1995 Act which govern judicial separation proceedings. I propose to go through these matters seriatim.

27 (a). "The income earning capacity,...