O'M v O'M



RECORD NO. 1573/02


Family law - Divorce - Ancillary orders - Proper provision - Prior separation agreement - Whether court should have regard to prior separation agreement - Whether separation agreement in full and final settlement of issues - Family Law (Divorce) Act 1996,section 20


Judgment of His Honour Judge Bryan McMahon,delivered on the 5th May,2004.

The Facts

The parties were married on 6th September, 1980. There was one child, E., born to the parties on the 9th December, 1981. E had Cerebral Palsy from birth. As a result he was severely physically disabled and suffered from a mild to moderate mental disability. The parties separated by agreement in 1986. At that time the respondent husband left the family home by agreement. During the period 1986 to


1989 the parties had ad hoc living arrangements until, in that year, the applicant wife decided to leave the family home and take up residence in a new bungalow she identified as being suitable to her son’s special needs.


When the parties decided to separate finally in 1989 they both instructed solicitors to negotiate settlement terms. The applicant wife was most anxious to find alternative accommodation and she identified a suitable bungalow which she considered to be suitable accommodation for herself and E. It was agreed that the respondent husband would remain in the family home and that he would pay his wife £39,700 for her interest in the family home. With this sum, further supplemented by a mortgage she took out in the amount of £25,000, the applicant wife purchased a house and moved there with her son.


It is common case that from the date of his birth the applicant wife has been primarily responsible for caring for E. In this regard the applicant went to extraordinary lengths in researching and in identifying what services were available for E’s condition. For example, in 1986, and for the following two years, the applicant took E to the Peto Institute in Budapest, a specialised clinic for his condition, for periods of up to eight weeks at a time. In evidence she stated that she funded this treatment partly from an inheritance she got from her parents and by taking part-time work. It appears also that she undertook some fund-raising in her neighbourhood to meet these costs.


From 1990 to approximately 2000, the applicant secured a place for E in the C.P.I. Marino School and Clinic. This facility took E as a resident boarder from Monday to Friday each week. During that period the applicant and respondent agreed to take E on alternative weekends. During the holiday period which amounted to approximately 20 weeks in the summer the applicant was primarily responsible for E although the respondent also took his son for as much of the holiday period as his work schedule permitted.


During this period the husband also paid maintenance to his wife of different sums increasing over the years. During that period also the applicant wife purchased from her own resources a van which was adapted to E’s needs. At the commencement of these proceedings the respondent husband replaced this vehicle with a new van costing in the region of £20,000.

The proceedings

These proceedings were commenced by a Family Law Civil Bill issued on 26th September, 2002. The applicant wife sought a decree of divorce pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act, 1996 and certain other ancillary reliefs. In opening the case counsel for the applicant wife suggested to the court that the appropriate remedy in this case was an order that the two houses owned by the parties should be sold and an order made that half of the proceeds would be given to the applicant wife. Alternatively, it was suggested that on the sale of the family home an order for payment of Eur400,000 should be made to the applicant. The respondent in reply offered to pay maintenance in the sum of Eur1,500 per month (provided that the parties continue to be jointly assessed for tax purposes), to pay the V.H.I. contributions for the applicant and for E and in addition the respondent was willing to acknowledge that the applicant was entitled to 50 per cent of the respondent’s pension including any lump-sum due, as well as one hundred per cent of the contingent benefits on the policy.

The assets

The respondent is the sole registered owner of the original family home. In addition he has shares from his employer that are worth in the region of Eur53,000. He also has a pension from his employer. In addition he inherited a site in a scenic location in the West of Ireland, the value of which depends on whether he would ever get planning permission to build on the site. Finally, he has other shares and savings in the amount of Eur13 000 approximately. In contrast the applicant has a property which has an agreed net value, of somewhere in the region of Eur75,000. She also has shares in the amount of Eur35,000 approx.

The Law

Under the Constitution and according to the provisions of s. 5 of the Family Law (Divorce)Act, 1996, before it grants a decree of divorce the court must be satisfied that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period or periods amounting to at least four of the


previous five years, that there is no reasonable prospect of reconciliation between the spouses, and that such provision as the court considers proper, having regard to the circumstances, is made for the spouses and the dependent members of the family. From the evidence before me I am satisfied that the parties have lived apart from each other since 1989 and that there is no reasonable prospect of reconciliation. I also note that the solicitors acting for the parties have filed with the court the required certificates under ss. 6 and 7 of the Act of 1996. The question remains as to what proper provision should be made for the spouses and the dependent member in this case.


In deciding what ancillary orders are appropriate s. 20 of the Family Law (Divorce) Act, 1996 obliges a court when considering what is proper provision to have regard to all the circumstances of the case and in subs. 2, it stipulates in particular what matters the court should have regard to in reaching its decision. It is incumbent on me therefore to consider each of the statutory matters mentioned against the factual background of this case and to give appropriate weight to the more important factors that characterise this case in the balancing exercise that I must undertake.

The unusual features of this case

There is only one child in the marriage and he has suffered from cerebral palsy since birth. He is now 23 years of age and has a normal life expectancy. At present he is in five-day residential care and is released at weekends. The parties have agreed to look after him on alternative weekends and to share in the holiday care in so far as the respondent husband’s work schedule permits. There is no cost attached to the care E receives at present where he is being cared for, and there is no suggestion that this arrangement will not continue into the future. There is little doubt that the applicant wife has carried the burden of looking after E’s well-being and education and medical needs since he was born. Her devotion has been outstanding and the present residential care would not have been achieved but for the extraordinary dedication and efforts of the applicant...

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