K (M) v P (J) (Orse K (S))

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 06 November 2001
• Neutral Citation: [2001] IESC 87
• Court: Supreme Court
• Docket Number: [S.C. No. 302 of 2000]
• Date: 06 November 2001

[2001] IESC 87

THE SUPREME COURT

Murphy J.

Murray J.

McGuinness J.

Appeal No. 302/00

K (M) v. P (J) (ORSE K (S))

BETWEEN

M.K.

Applicant/Respondent

and

J.P. (otherwise) S.K.

Respondent/Appellant

Citations:

FAMILY LAW (DIVORCE) ACT 1996 S20(3)

WHITE V WHITE 2000 3 WLR 1571

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(a)(1)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)

D (J) V D (D) 1997 3 IR 64

FAMILY LAW (DIVORCE) ACT 1996 S5(1)

FAMILY LAW (DIVORCE) ACT 1996 S20(1)

FAMILY LAW (DIVORCE) ACT 1996 S20(5)

FAMILY LAW (DIVORCE) ACT 1996 S20(4)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

FAMILY LAW ACT 1995 S16

MCA V MCA 2000 1 IR 457

N (JC) V N (RT) UNREP MCGUINNESS 15.1.1999 1999/20/6179

G (M) V G (M) ITLR 2.10.2000

COWAN V COWAN 2001 EWCA CIV 679

CONSTITUTION ART 41.2

Synopsis:

FAMILY LAW

Divorce

Division of assets - Property - Policy of equal division - Separation agreement - Rule of equality - Whether trial judge had erred in failing to have regard to separation agreement - Whether trial judge misdirected himself as to legal principles applicable - Whether "clean break" principle existed in Irish law - Whether matter should be returned to High Court - Family Law (Divorce) Act, 1996 sections 5, 20(3) (302/2000 - Supreme Court - 6/11/01) - [2001] 3 IR 371

K v P (orse K)

The parties had been married in England and subsequently had returned to Ireland. Difficulties arose and the parties entered into a deed of separation which made provision for issues such as maintenance, custody of the children and residence of the family home. The respondent husband had applied for and had been granted a foreign divorce. The respondent had lost his employment shortly after he separated from his wife. However in later years the respondent had become President of an international undertaking and both he and his partner owned homes in the United States and in Ireland. It was not in dispute that the respondent had accumulated considerable wealth. The applicant wife initiated divorce proceedings in Ireland in 1998. Mr. Justice Lavan in an ex-tempore judgment issued on 21 November, 2000, ordered the respondent to transfer the entire family home to the applicant, increased the maintenance payments and ordered the respondent to pay the applicant a lump sum of £1,500,000. The respondent appealed against the judgment on a number of grounds. The primary grounds of appeal were that the trial judge had failed to have sufficient regard to the terms of the separation agreement which was still in force under the Family Law (Divorce) Act, 1996 and that the trial judge had failed to have regard to the parties' twenty years of separation. Mrs. Justice McGuinness (nem. diss.) held that the trial judge had relied upon the principle of equality (which had been raised in the English case of White v White). However doubt was expressed as to whether the policy of equal division prevailed under common law. Division of matrimonial assets were now governed by statute with explicit mandatory guidelines. In this jurisdiction the 'clean break' solution was neither permissible nor possible. The overriding requirement was that of a fair outcome as set out in section 20(5) of the 1996 Act. The learned trial judge had failed to give reasons for the way he exercised his discretion in the light of the statutory guidelines. In the circumstances the case must be returned to the High Court so that the question of proper provision for the parties might be considered. The appeal would be allowed.

1 Judgment of Mrs Justice McGuinness delivered the 6th day of November 2001 [nem diss]

2 This is an appeal arising from divorce proceedings brought by the Applicant wife pursuant to the Family Law (Divorce) Act 1996( "the 1996 Act"). The Respondent husband has appealed against the judgment and orders of Lavan J. made on the 21st November 2000 and the 28th March 2001.

The Facts

3 The parties were married in England on the 21st September 1963, both being of Irish origin but living in England. There were six children of the marriage born between 1964 and 1975, none of whom is now a dependant child within the meaning of the 1996 Act.

4 In or about the year 1972 the parties returned to Ireland where the husband had obtained employment in a provincial town. They purchased a family home in that town which is acknowledged to be jointly owned by them. In the late 1970s unhappy differences arose between the parties, of which there is no need to give details here, and they began to live separate and a part in or about the year 1980. On the 1st January 1982 they entered into a deed of separation which provided that the wife should continue to reside in the family home and to have custody, care and control of the children, the husband to have reasonable access to the children and to spend specified times on holiday with them. The husband was to pay maintenance to the wife both for herself and for the children until they completed secondary education or reached the age of 18. This maintenance was to be increased periodically in accordance with increases in the Consumer Price Index, and there was a clause allowing for variation of maintenance if a fundamental change in the circumstances of either party arose.

5 The husband was to provide V.H.I. insurance for the wife and children and to make all mortgage repayments on the family home. It was provided that the wife's maintenance would cease if she remarried. There was a mutual renunciation of rights under the Succession Act 1965. There were also a number of standard and customary clauses not relevant to the present proceedings.

6 The parties have continued to live separate and a part to date and the deed of separation remained in force until the commencement of the wife's divorce proceedings. On the evidence before the High Court (the transcript of which was provided to this Court) the husband fulfilled the financial provisions of the separation deed. He also, by direct arrangement with the children, made provision for their third level education. Since the separation of the parties the wife has had some periods of part-time employment but has in the main been fully involved in her role as a mother to her children. At the time of the issue of the proceedings the wife had moved to reside in rented premises outside Dublin. She later returned to the family home.

7 Since the separation of the parties the husband has entered into a long term relationship with M.B. The timing of the beginning of this relationship is in issue between the parties, but this is irrelevant to the matters to be decided by this Court. In February 1995 the husband applied for and was granted a decree of divorce in the Courts of the Republic of Haiti and shortly thereafter he went through a ceremony of marriage with M.B. in the United States. The husband and M.B. have continued to live together as husband and wife and hold the vast majority of their property and financial assets jointly. In evidence the husband stated that M.B. made substantial direct and indirect contributions to the acquisition of these assets and this evidence was in effect unchallenged.

8 At the time of the parties" separation the husband was in steady employment in a senior post in the provincial town in which they lived. He had what was at the time a good salary but was by no means a wealthy man. He had invested in a development scheme to build a new family home and a few other houses in the neighbourhood of the town. Unfortunately shortly after he had begun to live separate and a part from his wife, the firm by which he was employed closed down through lack of business and he lost his employment. In addition, due to economic conditions at the time, his housing development scheme failed with resulting financial loss to him.

9 Following his separation from his wife and the loss of his employment the husband moved to another part of Ireland where he obtained employment at the European headquarters of an international firm based in the United States. He has been remarkably successful in his career in this employment and has become firstly Vice-President and now President of the entire international undertaking. As a result he and his partner M.B., have resided since 1993 in the United States where they jointly own a family home. They also jointly own a house in Ireland. On account of the Appellant's success in his career he has accumulated considerable wealth, the vast majority of which is held jointly with his partner M.B. In addition he is paid a high salary by his employers and may also be paid a bonus of up to one hundred per cent of his salary each year.

10 During the course of the proceedings before this Court senior counsel for the Appellant informed the Court that subsequent to the granting of the decree of divorce by the High Court (against which there is no appeal) the Appellant and M.B. had married in a civil ceremony under Irish law on the 31st August 2001.

The Proceedings

11 The Respondent wife issued her divorce proceedings by way of Family Law Civil Bill in the Circuit Court on the 3rd June 1998, seeking a decree of divorce together with a number of ancillary financial orders including periodic maintenance, a lump sum order, a property transfer order and a pension adjustment order. By an interim application to the Circuit Court she sought maintenance pending suit, and on 14th July 1998 the Circuit Court made an order directing the husband to pay a sum of £86.00 per week in addition to the maintenance which he was already paying under the terms of the 1982 separation deed. On 15th February 1999 the wife applied to the Circuit Court to have her proceedings transferred to the High Court. This application was refused by the Circuit Court but on the 23rd April 1999 was granted on appeal by the High Court.

12 The substantive proceedings came on for hearing before the High...