R.G v G.G (Divorce)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 February 2005
• Neutral Citation: [2005] IEHC 202
• Court: High Court
• Docket Number: [2005 No. 5 C.A.]
• Date: 08 February 2005

[2005] IEHC 202

THE HIGH COURT

F 14703 5 CA/2005

G (R) v G (C)

WESTERN CIRCUIT COUNTY OF GALWAY

IN THE MATTER OF

THE FAMILY LAW (DIVORCE) ACT, 1996

THE FAMILY LAW ACT, 1995 AND

THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

BETWEEN

R. G.

APPLICANT

AND

C. G.

RESPONDENT

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

GUARDIANSHIP OF INFANTS ACT 1964 S11

FAMILY LAW (DIVORCE) ACT 1996 S18(10)

FAMILY LAW (DIVORCE) ACT 1996 S5(1)(c)

CONSTITUTION ART 41.3.2

FAMILY LAW (DIVORCE) ACT 1996 PART III

T (D) v T (C) 2002 3 IR 334

FAMILY LAW (DIVORCE) ACT 1996 S20(1)

FAMILY LAW (DIVORCE) ACT 1996 S20(3)

F v F 1995 2 IR 354

X v X 2002 1 FLR 508

MATRIMONIAL CAUSES ACT 1973 S23

MATRIMONIAL CAUSES ACT 1973 S25

FAMILY LAW (DIVORCE) ACT 1996 S5(1)(a)

FAMILY LAW (DIVORCE) ACT 1996 S8(2)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

FAMILY LAW ACT 1995 S16

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(a)(i)

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(a)(ii)

FAMILY LAW (DIVORCE) ACT 1996 S14(1)(a)

FAMILY LAW (DIVORCE) ACT 1996 S14(6)

FAMILY LAW (DIVORCE) ACT 1996 S26(1)(c)

FAMILY LAW ACT 1995 S8

FAMILY LAW ACT 1995 S9(1)(b)

FAMILY LAW (DIVORCE) ACT 1996 S16(1)(i)

FAMILY LAW (DIVORCE) ACT 1996 S18(10)

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(b)

FAMILY LAW

Divorce

Proper provision - Consent order at time of judicial separation acknowledged to be full and final settlement - Consent acknowledged to make proper provision - Whether court hearing divorce application must reconsider issue of financial provision - When assessment of financial needs should be made - Weight given to earlier consent agreement - Security for proper provision - X v X [2002] 1 FLR 508; Hyman v Hyman [1929] AC 601; N v N (Jurisdiction: pre-nuptial agreement) [1999] 2 FLR 745 and Sutton v Sutton [1984] Ch 184 considered - Judicial Separation and Family Law Reform Act 1989 (No 6), ss 2(1)(f), 20 - Family Law Act 1995 (No 26), ss 9(1)(b) and 16 - Family Law (Divorce) Act 1996 (No 33), ss 5, 8(2), 13(1)(a), 14(1)(a), 14(6), 26(1)(c), 18(10), 20(1) and (3) - Constitution of Ireland 1937, Article 41.3.2 - Various financial reliefs granted to applicant

The Circuit Court granted a decree of divorce and made certain ancillary orders primarily in favour of the wife. Both parties appealed. Each of the parties contends, albeit for different reasons, that the ancillary orders made by the Circuit Court did not constitute proper provision for the husband and wife and children or the marriage.

Held by Finlay Geoghegan J. in granting the decree of divorce and making ancillary orders that it was necessary to make certain ancillary orders to ensure that proper provision existed for the parties and three dependent children and further that it was in the interests of justice.

Reporter: R.W.

1 Judgment of Ms. Justice Finlay Geoghegan delivered on the 8th day of February 2005 .

2 The applicant and the respondent whom I will hereafter refer to as the husband and the wife were married on the 20th March, 1982.

3 The husband and wife have three children of the marriage; MC, a daughter born on the 24th August, 1983; W a son born on the 15th January, 1986 and I a daughter born on the 14th September, 1989.

4 The husband and wife separated in December 1998 due to irreconcilable differences. In 1998, the wife, as applicant seeking a decree of judicial separation and ancillary relief, commenced proceedings in the High Court. On the 24th October, 2000 a decree of judicial separation was granted to the husband and wife pursuant to s. 2(1)(f) of the Judicial Separation and Family Law Reform Act, 1989. A hearing took place before the High Court in relation to the claims for ancillary relief. After seven or eight days, following negotiations the husband and wife agreed to compromise their respective claims for ancillary relief upon the terms set out in a written agreement dated the 7th November, 2000 ("the Consent") and signed by each and witnessed by their respective solicitors.

5 On the following day the 8th November, 2000 an order, on consent was made by the High Court ("the Consent Order") which records that counsel for the husband and wife informed the court that "a settlement has been reached on the terms of a Consent now reduced to writing" and then by consent the court made the following orders:-

6 2 "1. In the terms of the said Consent:- and

7 2. That the said Consent be received and be filed with and derived to be part of this order.

8 AND the court DOTH NOTE the undertaking set forth in the said Consent AND by consent the court doth make no order as to cost".

9 It is unnecessary at this stage to recite in full the Consent. It is sufficient to record that it provides for the making of orders pursuant to specific sections of the Family Law Act, 1995, The Guardianship of Infants Act, 1964 and records several agreements and undertakings of the parties. Paragraph (F) provides:-

"(F) The parties hereto acknowledge that the within terms constitute a full and final settlement of all matters arising pursuant to the Judicial Separation and Family Law Reform Act, 1989, the Family Law Act, 1995 and any amending legislation and further acknowledge that neither parties shall be entitled to issue proceedings one against the other save for a decree of Divorce pursuant to the Family Law (Divorce) Act, 1996. The parties in particular acknowledge that the within terms constitute "proper provision" within the meaning of the Family Law (Divorce) Act, 1996 and that neither party shall be entitled to make a claim one against the other save for periodic maintenance."

10 On the 20th May, 2003, the husband issued a Family Law Civil Bill seeking a decree of divorce pursuant to s. 5 of the Family Law (Divorce) Act, 1996. The ground relied upon is that the parties have separated for in excess of four out of the five years preceding the Family Law Civil Bill and that there is no reasonable prospect of reconciliation between them. The only other relief sought is an order pursuant to s. 18(10) of the Act of 1996. Express reference is made to the Consent Order and it is expressly pleaded that such order deals with all matters at issue between the parties and provides for the security of the wife and children of the marriage and pleads that there are no further or other orders which need to be made in respect of the said matters.

11 The wife in her defence and counterclaim denies the entitlement to a decree of divorce on the grounds that proper provision does not exist for her and the children of the marriage. It is also denied that the Consent Order deals with all matters at issue between the parties or provides security for the wife and children. Specific claims were also made on behalf of the wife for ancillary orders.

12 The circuit proceedings were heard and determined by the Circuit Judge on the 28th September, 2004. He granted a decree of divorce and made certain ancillary orders primarily in favour of the wife. Both parties served notices of appeal. Each of the notices of appeal purports to appeal against the whole of the judgment of the Circuit Court given on the 28th September, 2004 "save and except that part of the judgment which granted the parties herein a decree of divorce under s. 5(1) of the Family Law (Divorce) Act, 1996". Each of the parties contends, albeit for completely different reasons, that the ancillary orders made by the Circuit Judge do not constitute proper provision for the husband and wife and children of the marriage. Counsel for both parties were in agreement at the commencement of the hearing before me that the logic of their respective positions was that as each contended that proper provision did not exist for the parties and the children of the marriage within the meaning of s. 5(1)(c) of the Act of 1996 that the Circuit Judge did not have jurisdiction to grant the decree of divorce. Accordingly, it necessarily followed that the substance of the appeal of each was against the entire of the judgment and order of the Circuit Judge. I permitted the appeals to proceed on that basis.

13 The appeal to the High Court is a full rehearing of the husbands claim for a decree of divorce and ancillary order claimed and the wife's counter claim for ancillary orders.

Jurisdiction of the Courts

14 The jurisdiction of the court to grant a decree of divorce is conferred by Article 41.3.2 of the Constitution, which provides:

15 A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that

16 i i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

17 ii ii. there is no reasonable prospect of a reconciliation between the spouses,

18 iii iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

19 iv iv. any further conditions prescribed by law are complied with.

20 Further statutory provision is made by s. 5 of the Family Law (Divorce) Act, 1996 which provides:

21 5.—(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that—

22 a ( a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

23 b ( b) there is no reasonable prospect of a reconciliation between the spouses, and

24 c ( c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent...