S v D
| Jurisdiction | Ireland |
| Judge | Mr Justice Jordan |
| Judgment Date | 03 February 2022 |
| Neutral Citation | [2022] IEHC 594 |
| Court | High Court |
| Docket Number | [2020 No. 107 M] |
[2022] IEHC 594
[2020 No. 107 M]
THE HIGH COURT
FAMILY LAW
Family law – Divorce – Ancillary relief – Applicant seeking a decree of divorce and ancillary relief – Whether there ought to be an order for joint custody of the children
Facts: The applicant husband, in December 2020, issued family law proceedings against the respondent wife seeking a decree of divorce and ancillary relief. In early January 2021 the wife issued proceedings in which she sought a decree of judicial separation and ancillary relief. The cases were listed for hearing before the High Court, commencing on 28th October, 2021. By agreement of the parties the divorce proceedings only were heard and the hearing took place over four days on 28th October, 29th October, 2nd November and 3rd November, 2021. At the end of the hearing on 3rd November, 2021 and following submissions from both sides the High Court directed that a report should be obtained pursuant to s. 47 of the Family Law Act 1995 setting out the views and wishes of the children. A report dated 3rd December, 2021 was subsequently provided to the Court and to the parties.
Held by Jordan J that the Court was satisfied to grant a decree of divorce under s. 5(1) of the Act and pursuant to Article 41.3.2 of the Constitution. Jordan J held that there would be an order for joint custody of the children with a shared parenting regime in place. Jordan J held that the Court would direct that the wife buy out the husband’s interest in the family home for the sum of €900,000.00; she was also to be responsible for the mortgage on the property and was to indemnify her husband in that regard. Jordan J held that the contents of the family home were to remain in it and belong to the wife save for: (1) the contents of the attic office which the husband was entitled to; (2) the husband’s personal belongings; (3) any specific item or items listed on the inventory which was and could fairly be described as being of extra special sentimental value to the husband. The Court considered it proper having regard to all of the circumstances that a pension adjustment order or orders were required in favour of the husband. The Court considered it proper to have the pensions of both equalised. Jordan J held that the Court would grant liberty to apply so that the appropriate pension adjustment order(s) could be made in that regard if not ready for ruling. The Court held that it was proper to make a lump sum payment order in favour of the husband having regard to the total assets in the wife’s hands. In that regard and having considered the evidence, Jordan J held that the Court would direct that the wife pay to the husband a lump sum of €280,000 on or before the 31st of January, 2024. Jordan J held that the wife was to retain sole ownership of the apartment abroad.
Jordan J held that it was the intention of the Court to direct that both parties bear their own costs. It was also the intention of the Court to grant mutual blocking orders along with an exclusive right of residence to the wife in respect of the family home.
Decree of divorce granted.
JUDGMENT of Mr Justice Jordan delivered on the 3 rd. day of February, 2022 .
. These proceedings commenced in December 2020 when the husband (the applicant) issued family law proceedings against his wife and in which proceedings he sought a decree of divorce and ancillary relief. In early January 2021 his wife issued proceedings in which she sought a decree of judicial separation and ancillary relief. Unhappy differences had existed in the marriage for some time.
. The cases were listed for hearing before the High Court – commencing on 28 th October, 2021. By agreement of the parties the divorce proceedings only were heard and the hearing took place over four days on 28 th October, 29 th October, 2 nd November and 3 rd November, 2021.
. At the end of the hearing on 3 rd November, 2021 and following submissions from both sides the court directed that a report should be obtained from X pursuant to s.47 of the Family Law Act 1995 setting out the views and wishes of the children. A report from X dated 3 rd December, 2021 was subsequently provided to the court and to the parties.
. The parties were married in 2006. At the time of the marriage they resided in a property which was owned by and held in the sole name of the husband. At that time the wife had one other property in her sole name in Ireland and an apartment abroad.
. There are two children of the marriage, namely Child A who was born in 2008 and Child B who was born in 2009. The children currently attend fee-paying schools and that is not expected to change. In due course it is hoped that the children will attend third-level, to primary degree and possibly beyond. The parties were and are equally involved in the upbringing of the two children.
. The husband is now 59 years of age. He is a professional with an established career.
. The wife is now 50 years of age and is also a professional person. She was diagnosed with a significant illness in 2014 and was very ill. She received treatment and she has fortunately made a good recovery.
. The marriage was a good marriage and a good partnership until unhappy differences arose. Both parties were hard working and dedicated to their careers and to their family. The wife's work and career clearly placed huge demands on her time and energy albeit with very high rewards in terms of income. She worked long hours in the office during the week and could end up logging on and working at home after dinner together. She was promoted to a high position at a relatively young age. She did the interview for the role shortly before the birth of Child A.
. The husband was successful in his chosen field and earned a good income. However, that income was a fraction of that earned by his wife – and was understandably described by him as — “income wise we were chalk and cheese”.
. The husband was very hands-on at home. His work gave him great flexibility and he was available to look after the children when their mother was otherwise occupied because of the demands of her work. A childminder was employed during the day but the husband was very closely involved in their care and in domestic chores generally. He enjoys cooking and did most of the cooking in the house – at least until the relationship deteriorated.
. It is also important to point out that the husband was in the stronger financial position at the time of the marriage. He had a house almost paid for. He had money, investments and cash. His wife, on her own evidence and by contrast “had debt”. Through hard work and ability his wife moved swiftly through the ranks and quickly began to generate high earnings. There cannot be any doubt but that she was greatly assisted in this regard by the support of her husband – as her life partner and father to their children. Nor can there be any doubt but that the combined work and effort of both spouses – at home and outside the home – was intended to be for the benefit of the family. They were working together with the intention that their teamwork would accrue for the benefit of themselves and their family.
. Unfortunately, the diagnosis of the wife's illness and the subsequent treatment and all of the stress and upheaval which accompanied this caused a significant fracture in the relationship. As the wife put it, tackling such a significant illness is a difficult journey and she had hoped that her husband would travel with her on that journey – but she felt he did not. She felt that the connection emotionally was there at the start of the journey but not subsequently. She felt that her husband was a functioning person as opposed to an intimate partner. In evidence the wife did acknowledge that her husband may have felt that he was doing enough in terms of support even though she did not think so.
. According to the husband, the illness changed the marriage relationship. It is his view that his wife decided to change her life. She made a decision and things went slowly downhill from there. In August of 2018 they both started sleeping in separate bedrooms after an unseemly argument which the husband was entirely responsible for.
. The proceedings have resulted in allegations of misconduct by the wife against the husband – and indeed some allegations of misconduct by the husband against the wife. This is a case where there are significant assets involved – totalling (including pensions) in the region of €6.5m–€7m. A significant issue, if not the significant issue, in the case is how the matrimonial assets are to be dealt with in terms of “provision”. The court is, and must be, alert to the requirement that allegations of misconduct be proved by the party making them. When individuals are involved in an intimate and personal relationship over many years it is easy to extract events of the past and to recast those events, with some addition or alteration or change of context, to fit in with and support a new narrative. In family law cases, allegations of misconduct can frequently involve no more than one person's word against another. Independent or some supporting evidence is desirable but may not always be available. Absent such evidence, the court must still approach a decision in relation to the allegations made on the basis of the consistency, credibility and reliability of the evidence given by the parties. When allegations of misconduct are made, the court is being invited to consider that conduct and decide if that conduct is such that it would in all the circumstances of the case be unjust to disregard it. Has one party behaved towards the other in what is so discreditable a manner as to bring himself or herself within the “obvious and gross” conduct contemplated by Lord Denning in Wachtel v. Wachtel [1973] Fam. 72 at p.90?
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