Recent developments in family law

• Author: Catherine Mcguinness
• Position: Judge of the Supreme Court
• Pages: 68-86

RECENT DEVELOPMENTS

IN FAMILY LAW

THE HON. MRS. JUSTICE CATHERINE MCGUINNESS*

I. INTRODUCTION

This article is based on a paper which I contributed to

the Circuit Court Conference held at the Dunraven Arms

Hotel on 12th to 14th April 2002. At the conference I dealt

with two distinct aspects of family law:

(1) The question of ancillary relief on judicial

separation or divorce, and in particular the division of assets

in what are colloquially described as “big money” cases.

(2) Developments in the case law of the European

Court of Human Rights as related to the nature, definition and

rights of the modern family.

Since last April, both in this jurisdiction and in the

European Court of Human Rights, new decisions have either

already been made, or are anticipated at an early date, which

are relevant to both aspects of family law outlined above.

Firstly, in the area of division of major assets it is likely that

by the time this article is published the Supreme Court will

have delivered judgment in the case of T. v. T.1 What I say

here, therefore, is subject to the caveat that is written only in

the context of the case law as it existed prior to that decision.

Secondly, the subject of the rights of transsexual persons, to

which I had referred in the original paper, formed the subject

matter of a comprehensive and thoughtful recent judgment

delivered by McKechnie J. in the High Court on the 9th July

2002 in the case of F. v. An tÁrd Chláraitheoir, Ireland and

the Attorney General. This was followed by a landmark

decision in the European Court of Human Rights on a similar

question, in which the Court reversed previous decisions on

the matter. This was delivered on the 11th July 2002 in the

2002] Recent Developments in Family Law 68

1 This judgment was delivered on Monday 14 October 2002.

* Judge of the Supreme Court.

case of I. v. United Kingdom.2 I shall, therefore, here refer to

both these judgments and to recent English law in the same

area.

II. ANCILLARY RELIEF – THE DIVISION OF ASSETS

In the years that have elapsed since the enactment of

both the Family Law Act, 1995 and the Family Law

(Divorce) Act, 1996 the number of cases of judicial

separation and divorce in which the parties are possessed of

very large assets has considerably increased. Due to the

inherent complexity of the financial questions which may

arise and to the need for full financial discovery many of

these cases are brought in the High Court. However, the

Circuit Court and the High Court have concurrent jurisdiction

under the present legislation and Circuit Court judges are also

required to deal with this type of case on quite a regular basis.

In practice many of these cases have been settled, although

possibly at a later than ideal stage in the proceedings. The

fact that the parties can reach agreement is in itself good.

Somewhat less desirable from the point of view of

practititioners and the court itself is that there have been

relatively few written decisions which might establish

guidelines or parameters on the approach of the Irish courts

to this type of case.

The same is not true in England, where over the years

there has been a line of decisions establishing quite rigid

rules as to the amount and proportion of family assets which

could be paid over to an applicant spouse – in general to a

wife. This situation has, however, recently been altered, and

to some extent thrown into confusion, by the decision of the

House of Lords in White v. White.3 Some consideration of

this judgment is relevant here, if only because it appears to be

opened by counsel on a regular basis in so many Irish family

law cases – at times regardless of its actual relevance.

As long ago as 1975 the English courts adopted a

practice of assessing financial provision having regard to the

“reasonable requirements” of the claimant (see O’Donnell v.

69 Judicial Studies Institute Journal [2:2

3 [2001] 1 A.C. 596.

2 European Court of Human Rights, unreported, 11 July 2002.