T v T
| Jurisdiction | Ireland |
| Judge | Mr. Justice Vivian Lavan |
| Judgment Date | 28 November 2001 |
| Neutral Citation | [2001] IEHC 166 |
| Court | High Court |
| Docket Number | No. 2000/30M |
| Date | 28 November 2001 |
[2001] IEHC 166
THE HIGH COURT
BETWEEN
AND
Citations:
FAMILY LAW (DIVORCE) ACT 1996 S5(1)
FAMILY LAW (DIVORCE) ACT 1996 S13(1)(A)(II)
FAMILY LAW (DIVORCE) ACT 1996 S15(1)(F)
JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S2
FAMILY LAW (DIVORCE) ACT 1996 S47
FAMILY LAW (DIVORCE) ACT 1996 S20
FAMILY LAW (DIVORCE) ACT 1996 S20(1)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)
FAMILY LAW (DIVORCE) ACT 1996 S12
FAMILY LAW (DIVORCE) ACT 1996 S13
FAMILY LAW (DIVORCE) ACT 1996 S14
FAMILY LAW (DIVORCE) ACT 1996 S15(1)(A)
FAMILY LAW (DIVORCE) ACT 1996 S16
FAMILY LAW (DIVORCE) ACT 1996 S17
FAMILY LAW (DIVORCE) ACT 1996 S18
FAMILY LAW (DIVORCE) ACT 1996 S22
MCA V MCA 2000 1 IR 457
DUXBURY V DUXBURY 1987 1 FLR 7
WHITE V WHITE 2000 1 FLR 7
GUARDIANSHIP OF INFANTS ACT 1964 S11
D (J) V D (D) 1997 3 IR 64
WHITE V WHITE 2001 1 AER 1
COWAN V COWAN 2001 2 FLR 1
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(F)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(I)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(J)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(K)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(L)
O'D (P) V O'D (J) UNREP BUDD 31.3.2000 1999/20/6345
PORTER V PORTER 1969 3 AER 640
FAMILY LAW (DIVORCE) ACT 1996 S22(1)
FAMILY LAW (DIVORCE) ACT 1996 S22(2)
FAMILY LAW (DIVORCE) ACT 1996 S49
Synopsis:
FAMILY LAW
Divorce
Maintenance - Lump sum payment - Division of assets - Property - Policy of equal division - Rule of equality - Whether "clean break" principle existed in Irish law - Whether decree of divorce should be granted - Family Law (Divorce) Act, 1996 sections 5, 20 (2000/30 M - Lavan J - 28/11/01)
T v T - [2002] 3 IR 334
Facts: The applicant and respondent were married in 1980. The applicant now sought a divorce pursuant to the terms of the Family Law (Divorce) Act, 1996. The respondent opposed the granting of a divorce and instead sought a decree of judicial separation. There were three children of the marriage. Evidence was given that the assets of the applicant were in the region of £20 million whereas the respondent had assets of around £1 million. Issues also arose relating to the payment of maintenance and or a lump sum payment.
Held by Mr. Justice Lavan in granting the following orders. There was no reasonable prospect of a reconciliation between the parties. The respondent had made a very special financial contribution to the marriage and had assisted to a substantial degree in establishing her husband's practice. A sum of £5 million would be paid by the applicant to the respondent without the payment of continuing maintenance. To one of the children, who was still an infant, £800 per month would be paid in maintenance. No order would be made in relation to the other two children as these would be discussed with the applicant. Certain orders were also made in respect of pension provisions. The learned judge also held that an appropriate report was required pursuant to the Family Law (Divorce) Act, 1996 in relation to determining access between the youngest child and the applicant.
Mr. Justice Vivian Lavan delivered on the 28th day of November, 2001 .
The Applicant and the Respondent were married in 1980 according to the rights of the Roman Catholic Church.
The Applicant was born in 1949 and is now 52 years of age. The Respondent, was born in 1952 and is now 48 years of age.
In the proceedings before the Court the Applicant husband seeks a decree of divorce pursuant to Section 5(1) of the Family Law (Divorce) Act, 1996, together with various ancillary orders. He also seeks an Order pursuant to Section 13(1)(a)(ii) of the 1996 Act as to what periodical payments he should make to the Respondent for the support of the dependant children of the marriage. Finally he seeks an Order pursuant to Section 15(1)(1) of the 1996 Act in relation to access to the dependant children of the marriage.
The Respondent wife accepts that the constitutional and statutory test for the granting of a decree is satisfied, but counterclaims for a decree of Judicial Separation pursuant to Section 2 of the Judicial Separation and Family Law Reform Act, 1989. The Respondent has made it clear that she does not wish to be divorced and opposes the divorce on religious grounds. She also seeks a full range of Financial Orders ranging from Maintenance Orders to Lump Sum Orders to Property Adjustment Orders and Pension Adjustment Orders.
The Applicant and the Respondent were married in 1980. They have three dependant children of the marriage. The Applicant and the Respondent are both professional people.
Shortly after their marriage in 1980, the parties moved house. At this time the Applicant commenced his practice from the family home. In the early years of their marriage the Respondent worked in the Applicants 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 posts, as both parties agreed that this was more compatible to family life. The Respondent re-entered part-time employment 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 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 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.
The Applicant seeks access in relation to the youngest child of the marriage only, acknowledging that the two older children are in a position to make up their own minds as to the extent and nature of their relationship with him. The Applicant seeks to avail to access to his son in the context of his new relationship. He currently sees his son once a week for two hours in the evening and wishes to see his son twice a week, with access perhaps on another weekday evening. There are a number of difficulties in the Applicant's relationship with his children. Earlier in the proceeding the Applicant brought an application under Section 47 of the Family Law (Divorce) Act, 1996seeking an Order of the Court directing that a child psychiatrist be appointed to carry out an evaluation of the parties and the children, with a view to making recommendations to the Court in relation to the access that the Applicant should exercise to the children. This application was opposed by the Respondent and the children themselves, and the application was subsequently not proceeded with.
In raising the issue of Maintenance, Counsel for the Applicant looked at the effect of the Family Law (Divorce) Act, 1996on the previous common law position in relation to Maintenance. The position at common law was that on marriage a husband became entitled to most of his wife's property and in return he was obliged to maintain her by providing her with necessaries.
Building on this common law position however, the Judicial...
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