T -v- T, [2002] IESC 68 (2002)

Docket Number:31/02
Party Name:T, T
Judge:Denham J. / Fennelly J. / Murphy J. / Murray J. / Keane C.J.




Keane C.J.

Denham J.

Murphy J. Appeal No. 031/2002

Murray J. Record No. 2000/30M

Fennelly J.





Judgment delivered on 14th October, 2002 by Denham J.

  1. Issues

    This case raises for consideration and decision issues relating to the payment of a lump sum as part of the reliefs available under the Family Law (Divorce) Act, 1996 and a pension adjustment order. While there were proceedings between the parties as to divorce, judicial separation and access to children the kernel of this appeal relates to financial ancillary orders.

  2. Appeal

    This is an appeal by D.T., the applicant/appellant, (hereinafter referred to as "the applicant") from the judgment of the High Court (Lavan J.) delivered on the 28th November, 2001 and from the order made on the 6th December, 2001.

  3. Facts

    The learned High Court judge found the following facts, which are not in dispute. The applicant was born in 1949 and the respondent in 1952. The parties were married in 1980 according to the rites of the Roman Catholic Church. The applicant sought a decree of divorce and various ancillary orders. The respondent accepted that the grounds established in constitutional and statutory law for divorce existed but counterclaimed for a judicial separation; she made it clear that she did not wish to be divorced. The respondent sought financial orders, including a lump sum order. The learned trial judge described the background facts as follows:"The applicant and respondent were married on the 29th March, 1980. They have three dependent children of the marriage. The applicant is a solicitor by profession while the respondent is a medical doctor, working as a general practitioner.

    Shortly after their marriage in 1980, the parties moved into a house in . . .. At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the respondent worked in the applicant's practice. The respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the applicant subsequently moved to his present offices in about 1983, the respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.

    Their relationship was very turbulent and there were many arguments between the parties, which at times resulted in the applicant leaving the family home and staying overnight elsewhere. Shortly after the parties' youngest child was born in January, 1989, the parties began to occupy separate bedrooms.

    The applicant left the family home in August, 1994. The respondent and the children had gone for a week's holidays, having no idea of the applicant's plans. On their return they discovered that the applicant had left the family home and all his possessions had been removed. On his departure from the family home the applicant took up residence in another one of his properties. There is no reasonable prospect of a reconciliation between the parties.

    It is the respondent's belief that the applicant has been unfaithful throughout their marriage. In particular, she believes that at the time the applicant vacated the family home he was involved with a woman some twenty years his junior.

    The applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the applicant's intention to marry his partner on the court granting a decree of divorce herein.

    Both parties disagree as to the level of financial adjustments to be made between them. When the applicant initially left the family home the parties continued to operate a joint account which the respondent drew on when necessary. This arrangement continued for 18 months upon which time the applicant unexpectedly closed the account and opened an account in the respondent's name. The applicant currently pays the respondent a sum of approximately £400 per week by way of maintenance for the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The applicant's total net assets are somewhere in the region of £20 million, the majority of which come from property. The respondent's assets in comparison stand at around £1 million.

    The respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The respondent re-entered part-time general practice in 1991 on a very limited basis. Between 1990 and 1998 the respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.

    The respondent's work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the respondent and she feels that it is not in her children's interest that she continues working at this frantic level. Accordingly, she is anxious that lump sum provision be made in order to secure her own and her children's future."

  4. High Court Order

    On the 6th December, 2001 the High Court ordered as follows:". . . being satisfied with regard to the requirements of section 5(1) of the Family Law (Divorce) Act, 1996, the Court doth grant a decree of divorce in respect of the marriage solemnised in . . .1980 between the applicant and the respondent herein.

    and it is ordered -

    . . .

    3 that the applicant do pay to the respondent the sum of £800 per month for maintenance of the said D until the said D attains the age of 18 years and that the said payment do continue thereafter while the said D is in third level education up to his attaining the age of 23 years;4. that the applicant do pay to the respondent a lump sum of

    £5 million in the following fashion, that is to say:a. as to a sum of £1 million thereof on or before the 31st day of December, 2001;

    b. as to a sum of £2 million thereof on or before the 30th day of September, 2002; and

    c. as to the remaining sum of £2 million thereof on or before the 30th day of June, 2003;

  5. that the respondent do have the right to occupy for life the family home situate at . . . to the exclusion of the applicant;

  6. that the consent of the applicant to convey any interest in the said family home be and same is hereby dispensed with;

  7. that 55% of the benefits accrued to the applicant's . . Policy No. . . and to the applicant's . . Policy Nos. . . from the date of entry to each individual scheme to the date hereof be paid to the respondent . . ."

  8. Notice of Appeal

    Against the High Court judgment and order the applicant appealed. There were a number of fundamental grounds of appeal: (a) that there was error in fact and law by the learned High Court judge in complying with the terms of s. 20(2) and its subsections; (b) that no proper regard was taken of the provision made on the commencement of the parties living apart; (c) that the finding of the net worth of the applicant was £20 million was unsupported by evidence; (d) that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal; (e) that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately; (f) that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each, and as to the principles to be applied in making "proper provision"; and (g) that the order to make a lump sum payment of £5 million to the respondent was a disproportionate and excessive distribution of the applicant's assets.

  9. Submissions on behalf of the Applicant

    In essence counsel for the applicant addressed five issues. He submitted that:

    (a) the learned trial judge failed to identify correctly the assets of the applicant and the respondent when considering the lump sum;

    (b) the learned trial judge failed to have appropriate regard to the income and earning capacity of the respondent;

    (c) the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant;

    (d) the learned trial judge failed to have regard to the percentage of the applicant's assets which he acquired after the parties separated and to the contribution made by the applicant to the respondent at the time of their separation; and

    (e) the learned trial judge erred in his approach to the conduct of the applicant.

    Counsel for the applicant submitted that there were six matters which indicated that the respondent should receive a lump sum of less than £5 million. These were:

    (i) that there is no finality in this jurisdiction, that the respondent could return to court at any time;

    (ii) that the respondent has income and earning capacity of her own;

    (iii) that at the time of the separation the applicant transferred assets of approximately £1.5 million to the respondent being approximately one third of his assets;

    (iv) that 80% of the applicant's assets were acquired in two years after the separation;

    (v) that the respondent does not have exceptional needs; that the children are substantially provided for or provided for by the applicant; that the applicant has new obligations; and

    (vi) that the standard of living of the respondent prior to the separation can be achieved by a sum of less than £5 million.

    Counsel for the applicant submitted that...

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