M (F) v M (T)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date22 Jun 2004
Neutral Citation[2004] IEHC 114
Docket NumberHC 247/04

[2004] IEHC 114

THE HIGH COURT

HC 247/04
[No. 28M/2000]
M (F) v. M (T)
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

F.J.W.T.-M.
APPLICANT

AND

C.N.R.T.-M.
RESPONDENT
AND BY ORDER OF THE COURT TRUSTCORP SERVICES LIMITED BEING THE TRUSTEE FOR THE TIME BEING OF THE "REPUS TRUST"
NOTICE PARTY

Citations:

FAMILY LAW ACT 1995 S9(1)(c)

FAMILY LAW ACT 1995 S35

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3

FAMILY LAW ACT 1995 S9

FAMILY LAW ACT 1995 S16

FAMILY LAW ACT 1995 S16(2)(a)

N (C) V N (R) UNREP MCGUINNESS 9.2.1995 1999/20/6158

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(c)

BROOKS V BROOKS 1993 4 AER 917

BROOKS V BROOKS 1994 4 AER 1065

BROOKS V BROOKS 1995 3 AER 257

LORT-WILLIAMS V LORT-WILLIAMS 1951 2 AER 241

CHAINE-NICKSON V BANK OF IRELAND 1976 IR 393

GARTSIDE & ANOR V INLAND REVENUE COMMISSIONERS 1968 AC 553

FINANCE ACT 1940

FAMILY LAW ACT 1995 S9(1)(d)

FAMILY LAW SHATTER 4ED PARA 17.33

FAMILY LAW ACT 1995 S9

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

O'H V O'H 1990 2 IR 558

CHESTVALE PROPERTIES LTD V GLACKEN 1992 ILRM 221

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

HOWARD V HOWARD 1945 1 AER 91

IRC V PLUMMER 1979 3 AER 775

MATRIMONIAL CAUSES ACT 1857 S45

MATRIMONIAL CAUSES ACT 1859 S5

SUPREME COURT OF JUDICATURE ACT 1925 S192

MATRIMONIAL CAUSES ACT 1973 S1(c)

MATRIMONIAL CAUSES ACT1925

MATRIMONIAL CAUSES ACT 1950

MATRIMONIAL CAUSES ACT 1973

BROMLEY FAMILY LAW 9ED 798–799

JACKSONS MATRIMONIAL FINANCE & TAXATION 5ED 258–259

DUNCAN & SCULLY MARRIAGE BREAKDOWN IN IRELAND P335

PRINSEP V PRINSEP 1929 P 225

BOSWORTHICK V BOSWORTHICK 1926 AER 198

MARRIED WOMENS PROPERTY ACT 1882

MATRIMONAIL CAUSES ACT 1950 S25

YOUNG V YOUNG 1962 3 AER 695

MATRIMONIAL CAUSES ACT 1973 S24(1)(c)

MARRIED WOMENS PROPERTY ACT 1882 S11

MILNE V MILNE 1871 LR 2 P & D 295

THOMAS V THOMAS 1995 2 FLR 668

T V T & ORS 1996 FLR 357

E V E 1990 2 FLR 233

F (C) V F (J D) UNREP O'SULLIVAN 16.5.2002

Abstract:

Family law - Judicial separation - Property adjustment order - Proper provision - Trusts - Discretionary trust - Whether court of trial can have regard to asset subject of discretionary trust when considering proper provision - Statutory interpretation - Statutory interpretation - Words and phrases - "Settlement" - Whether word to be given liberal and wide meaning - Whether nuptial element present - Whether "post-nuptial settlement" - Family Law Act 1995, sections 9 and 40.

Facts: section 9(1)(c) of the Family Law Act 1995 provides that "On granting a decree of judicial separation, the court...may...make...an order providing for...the variation for the benefit of either of the spouses and [/or] of any dependant...of any ante-nuptial or post-nuptial settlement". The applicant applied for an order of judicial separation and ancillary relief including property adjustment orders, specifically in respect of land known as the Barne estate, which was the subject of a discretionary trust. During the course of that hearing, the trial judge directed that the issue as to whether the Barne estate could be considered when determining what proper provision should be made for each spouse under the provisions of the Act of 1995 be determined. Accordingly, the applicant issued a notice of motion seeking an order amending the summons to include a claim pursuant to section 9(1)(c) of the Act of 1995 varying the terms of the trust, arguing that it was a post-nuptial settlement made by the respondent. It was accepted by all parties that the notice party had full discretion to nominate persons to be beneficiaries for the purposes of the trust. It was accepted that the trust settlement was legitimately entered into and that, accordingly, the provisions of section 35 of the Family Law Act 1995 did not apply.

Held by McKechnie J in holding that the instrument of trust was a settlement within section 9(1)(c) of the Act of 1995 and directing that the trustees thereof remain as notice parties to the action, that on or after granting of a decree of juridical separation, the court had wide ranging and extensive statutory powers in order to achieve or attain the result which by statute it had to endeavour to so achieve. That, where the term "settlement" is used in family legislation, it had a different meaning, derived from a broad and purposeful approach founded upon the aims and objectives of family legislation, than its use in a trust or tax law context. That an arrangement, such as the trust under consideration, could still be a settlement even if the interest of the claimant was not absolute but only contingent. Once arrangements, such as the trust under consideration, conferred a benefit on the spouses or either of them in their capacity as husband or wife and was provided for, with and by reference to their marriage status, then same should be treated as a settlement within the statutory provisions pertaining to family law.

Reporter: P.C.

1

Mr. Justice William M. McKechnie delivered the 22nd day of June, 2004 .

2

1. The applicant and the respondent in these proceedings were lawfully married to one another on 21 stOctober, 1970 at the Royal Hospital Chapel in London. Of that marriage there were born two children. A.L.T.-M. whose date of birth was the 21 st July, 1977 and their son R.C.R.T.-M. who was born on 27 th October, 1978. For reasons not immediately relevant to this application, the marriage of Mr. and Mrs. T.-M. has irretrievably broken down with the result that the applicant wife on 6 thMarch, 2000 issued the within proceedings against the respondent. In that she claims a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act, 1989and also several other reliefs including a variety of what may conveniently be termed "Property Adjustment Orders", all under the Family Law Act of 1995. The seeking of these reliefs has, of course, brought into play the assets of both the applicant and the respondent. One of these assets, indeed by far the most significant, is Barne House and its estate of approximately 750 acres of land together with the agricultural machinery, equipment and stock which is used for the farming and cultivation of the said lands. The accommodation consists of a period house which was first occupied by the applicant and the respondent in 1976/1977 and, according to the applicant, has been their family home since then. There is also a house on the estate which is let to a tenant as well as other household items and objects of considerable value. However, because of the legal structure by which this property is held, it became evident during the course of the pleadings that, in the judicial separation proceedings, an issue might arise, as to whether the court of trial could have regard to the Barne estate when considering what proper provision should be made for each spouse under the relevant provisions of the 1995 Act.

3

2. In short, this estate is the subject matter of a discretionary trust, "The Repus Trust", established many years ago against the background and in the circumstances hereinafter more fully set forth. As a result of concerns about its availability to the court of trial, a notice of motion was issued on behalf of the applicant dated 21 st December, 2001. In that, orders in the following terms were sought:-

4

2 "1. An order pursuant to the provisions of s. 40 of the Family Law Act, 1995directing that the trustees for the time being of the repus trust be given notice of the within proceedings and be joined as a notice party to these proceedings.

5

2. An order allowing the applicant to amend the special summons dated 6 th March, 2000 to include a claim pursuant to the provisions of s. 9(1)(c) of the Family Law Act 1995, varying for the benefit of the applicant and the dependent members of the family the terms of the settlement made by the respondent".

6

Following the filing of affidavits in support and in opposition to the relief sought, Abbott J. on 13 th June, 2002 ordered that the trustees of the said trust "be joined as a notice party herein for the purposes of determining as a preliminary issue whether or not the repus trust comes within the provisions of s. 9(1)(c) of the Family Law Act, 1995and if so whether or not the trustees should be joined further herein." As part of an ancillary order a statement of claim was served by the applicant and a defence filed on behalf of the respondent. Moreover, the notice party now joined for the purposes of this issue, had on its behalf an affidavit sworn by one William Henry Kenneth Simpson. At the hearing of this issue, all parties were represented by solicitor and counsel and all made submissions in respect thereof.

7

This judgment, therefore, is concerned solely with the point which Abbott J. ordered should be preliminarily determined pursuant to his said direction of the 13 th June, 2002. It does not, as a result, purport to deal with the substance itself of the said judicial separation proceedings.

8

3. The Barne Estate, with its accommodation comprising six living rooms, nine bedrooms, five bathrooms and sixteen other rooms, can be, according to the respondent, traced back to his family for at least 350 years. In more recent times, it would appear that one R.K.M. owned this property at the date of his death in 1918. Under the terms of his will the respondent's father inherited the estate on the death of R.K.M.'s widow which occurred in 1953. Following the barring of the entail, the respondent became the remainder man. That seems to have been the position up to the mid 1970s. Commencing in 1976, the following acts and events took place, which accumulatively constitute the factual circumstances in which the aforesaid preliminary issue must be determined.

9

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