Recent developments in family law

AuthorCatherine Mcguinness
PositionJudge of the Supreme Court
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
In the years that have elapsed since the enactment of
(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
2 European Court of Human Rights, unreported, 11 July 2002.

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