F v M, [2019] IESC 1 (2019)

Docket Number:92 & 429/13
 
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THE SUPREME COURT[Appeal No. 92 & 429/13]

O’Donnell J.

MacMenamin J.

O’Malley J.IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN:

J.D.F.APPELLANTV.

C.M.F.RESPONDENT

Judgment of Mr. Justice John MacMenamin dated the 22nd day of January, 2019

Introduction

  1. Before the Court are two notices of appeal against a judgment and consequent orders made by the High Court (Abbott J.) in the year 2013 in family law proceedings. The appellant is the husband. In the first order, made on the 25th January, 2013, Abbott J. granted a divorce between the parties and made a number of other provisions regulating the financial relationship between them.

  2. The issue for determination in the first appeal is in relation to the appellant’s pension fund. This had been the subject matter of a number of prior orders, made both in the High Court and the Circuit Court. Abbott J. varied these orders, applying s.12 of the Family Law Act, 1995 (“the 1995 Act”), and s.17 of the Family Law (Divorce) Act, 1996 (“the 1996 Act”). The appellant appeals that order, contending it does not make proper provision for him. The respondent wife says the order made proper provision for both parties. The respondent had been legally represented in the earlier part of these proceedings, even at the earlier stages of this appeal in 2013 but, like the appellant, appeared for herself in this appeal hearing. The general factual history of the marriage was set out in a judgment by Abbott J. delivered on the 13th December, 2011 ([2011] IEHC 559). The parties separated in the year 2000. It is an unfortunate fact that the subsequent lengthy hearings in this case, go back at least to the year 2002, have absorbed hundreds of thousands of Euro, which could have been used by the parties had the issues between them been resolved. This judgment can only be based on the issues raised by the parties in their written and oral submissions.

    Background

  3. The appellant now works operating a small horse-breeding operation. He was born in 1953. He previously worked in finance. He held a pension from this previous employment. At para. 7 of the Order of the 25th January, 2013, Abbott J. made a Pensions Adjustment Order under s.17(2) of the 1996 Act. He awarded the respondent wife 80% of the appellant’s pension fund held in the Scotia Bank (Ireland) Defined Benefit Fund (“the Fund”), and 20% to the appellant. The “reckonable period” was to be from the 1st August, 1982 to the 22nd April, 1998. The term “reckonable period” is explained later in this judgment.

  4. Abbott J. ordered that the respondent was to have carriage of the Pension Adjustment Order, and was to prepare and finalise formal orders in respect thereof within four calendar months from the date of the order, and in respect of which the matter was to be mentioned on the 15th March, 2013. In addition, the respondent’s solicitor was ordered to notify the trustees of the funds/schemes, and Mercers, the administrators of the said pension funds/schemes, of the terms of the order in respect of the said pension adjustment order, and to serve the formal pension adjustment orders upon them, and thereafter file the proof of service.

    The Second Appeal

  5. As well as criticising the apportionment, which he contends was over-generous to the respondent, the appellant also complains in the second appeal that the pension administrators and trustees were inefficient and needlessly incurred exorbitant costs in the process of assisting the courts as to how monies could be released from the fund for the purposes of making a pension adjustment order. In the High Court, he indicated an intention to complain to the Pensions Ombudsman. Whether he did so is unclear. Abbott J. directed that, in the event of any compensation being awarded to the parties by the Pensions Ombudsman, or through other efforts, the appellant was to have the benefit thereof, pursuant to s.17(26) of the 1996 Act. This appeal is considered later in this judgment.

    The Law

  6. The duty of the Court is to make “proper provision” for the defendant spouse, having regard to the circumstances. Section 17(1) of the 1996 Act defines “reckonable service” as being “service in relevant employment during membership of any scheme”. In making an order under this section, the Court can specify the period of reckonable service prior to the granting of the decree. (s.17(2)(b)(i) of the 1996 Act). Once the period of reckonable service is calculated, the Court may then decide as to the proportion of the benefit a dependent spouse should receive, and what proportion will be retained for the spouse who is a member of the scheme. (See, Crowley, Family Law (Round Hall 2013) 11-101 et seq.).

  7. The appellant, being dissatisfied with the High Court order, filed a Notice of Appeal to this Court. He brought an application to this Court for a stay on the High Court order pending the full hearing of the appeal. The application for a stay was heard on the 19th April, 2013, and on subsequent occasions by various panels of this Court.

  8. Ultimately, in an order dated the 19th April, 2013, this Court refused to grant a stay on the High Court pension adjustment order, but instead directed that, pending the outcome of the full appeal, the order of the 25th January, 2013 should be varied, and the respondent’s solicitor was immediately to pay into court half the amount received by the respondent. By way of an interim pension adjustment order, the respondent wife was to immediately receive half, i.e. 40% of the total value of the fund awarded in the High Court. The appellant was also to make available to the respondent a valuation of the pension funds. The court also made an order pursuant to s.17(20) of the 1996 Act, to the effect that the trustees of the Fund were not to disperse any of the remaining...

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