T v T
| Jurisdiction | Ireland |
| Judge | Keane C.J.,FENNELLY J.,Justice Francis D Murphy,Murray, J.,Denham J. |
| Judgment Date | 14 October 2002 |
| Neutral Citation | [2002] IESC 68 |
| Court | Supreme Court |
| Docket Number | [2000 No. 30M; S.C. No. 31 of 2002] |
| Date | 14 October 2002 |
BETWEEN:
AND
[2002] IESC 68
Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.
THE SUPREME COURT
Synopsis:
FAMILY LAW
Divorce
Maintenance - Lump sum payment - Division of assets - Property - Policy of equal division - Rule of equality - Conduct of parties - Whether "clean break" principle exists in Irish law - Whether divorce decree should be granted - Family Law (Divorce) Act, 1996 sections 5, 20 - Bunreacht na hÉireann, 1937 (31/2002 - Supreme Court - 14/10/2002)
T (DMP) v T (C) - [2002] 3 IR 334 - [2003] 1 ILRM 321
Facts: The applicant and respondent were married in 1980. The applicant sought a divorce pursuant to the terms of the Family Law (Divorce) Act, 1996 ('the 1996 Act). 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 (in the Supreme Court a figure of £15 million was arrived at) whereas the respondent had assets of around £1 million. Issues also arose relating to the payment of maintenance and or a lump sum payment. In the High Court Mr. Justice Lavan held that 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 1996 Act in relation to determining access between the youngest child and the applicant. The applicant appealed the order regarding the payment of £5 million and the apportionment relating to the payment of 55% of the applicant's pension policy which had been in part based on wrongdoing committed by the applicant. It was argued that the High Court judge had been wrong in ordering a lump sum payment and had been in error in treating the date of the hearing as the appropriate time for the valuation of assets.
Held by the Supreme Court, all judges delivering judgment, (Keane CJ, Denham J, Murray J and Fennelly J agreeing; Murphy J dissenting) in dismissing the appeal. Keane CJ held that the relevant Irish legislation precluded the 'clean break' principle however Irish law could accommodate those aspects of the principle which were clearly beneficial and it was not correct to say that the legislation went so far as to virtually prevent financial finality. Ultimately a trial judge must be satisfied that any financial orders made under the 1996 Act constituted proper provision for each of the spouses and their dependent children. To a limited extent a court might be justified in "ample money" cases in treating one third of the net assets of the earning partner as the appropriate yardstick at the lower end of the scale. The appropriate time for the valuation of assets was at the date of the hearing. The trial judge was entitled to exercise his discretion in awarding the respondent a lump sum of £5 million to be paid in instalments. However the misconduct the trial judge had found with regard to the applicant did not entitle him to alter the allocation of the pension plan and the appeal in this regard would be allowed. Denham J held that the fundamental principle was that of making of making "proper provision". There was nothing in the legislation which prohibited the making of a lump sum order. The appeal would be dismissed apart from the appeal with regard to the pension order. Murphy J, dissenting, held that a 'clean break' was not an option and the current legislation required that proper provision be made for each spouse. The 1996 Act made no reference to division of assets. The matter must be remitted to the High Court in order to determine the proper provision. Murray J agreed with the judgment of the Chief Justice and held that a court in appropriate circumstances might seek to achieve certainty and finality in the continuing obligations of the divorced spouses to one another. Fennelly J agreed also with the judgment of the Chief Justice.
Citations:
FAMILY LAW (DIVORCE) ACT 1996 S5(1)
WHITE V WHITE 2000 2 FLR 981
COWAN V COWAN 2001 2 FLR 982
K(M) V K(S) 2001 3 IR 371
FAMILY LAW (DIVORCE) ACT 1996 S22
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(I)
WACHDEL V WACHDEL 1973 1 AER 829
FAMILY LAW (DIVORCE) ACT 1996 S20(2)
CONSTITUTION ART 41
FAMILY LAW (DIVORCE) ACT 1996 S20(1)
FAMILY LAW (DIVORCE) ACT 1996 S20(3)
FAMILY LAW (DIVORCE) ACT 1996 S20(5)
MATRIMONIAL CAUSES ACT 1857
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(a)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(b)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(c)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(d)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(e)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(f)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(g)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)(h)
MATRIMONIAL CAUSES ACT 1973 S25(2)(a) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(b) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(c) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(d) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(e) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(f) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(g) (UK)
MATRIMONIAL CAUSES ACT 1973 S25(2)(h) (UK)
MATRIMONAL & FAMILY PROCEEDINGS ACT 1984
MATRIMONIAL CAUSES ACT 1973 S25(a) (UK)
MINTON V MINTON 1979 AC 593
FAMILY LAW (DIVORCE) ACT 1996 S22(1)
FAMILY LAW (DIVORCE) ACT 1996 S22(1)(b)
FAMILY LAW (DIVORCE) ACT 1996 S22(1)(d)
F V F 1995 2 IR 354
D(J) V D(D) 1998 FLJ 17
PIGLOWSKI V PIGLOWSKI 1999 1 WLR 1360
MCA V MCA 2001 1 IR 457, 2000 2 ILRM 48
FAMILY LAW (DIVORCE) ACT 1996 S20(1)(i)
BROMLEY FAMILY LAW 7ED 841
FAMILY LAW (DIVORCE) ACT 1996 S22(2)
FAMILY LAW (DIVORCE) ACT 1996 S20(f)
CONSTITUTION ART 41.3.2
FAMILY LAW (DIVORCE) ACT 1996 PART II S5(1)
FAMILY LAW (DIVORCE) ACT 1996 S20(12)
FAMILY LAW (DIVORCE) ACT 1996 S20(13)
FAMILY LAW (DIVORCE) ACT 1996 S20(14)
FAMILY LAW (DIVORCE) ACT 1996 S20(15)(1)(a)
FAMILY LAW (DIVORCE) ACT 1996 S20(16)
FAMILY LAW (DIVORCE) ACT 1996 S20(17)
FAMILY LAW (DIVORCE) ACT 1996 S20(18)
FAMILY LAW (DIVORCE) ACT 1996 S20(22)
FAMILY LAW (DIVORCE) ACT 1996 S20
CONSTITUTION ART 41.2
SINNOTT V MIN FOR EDUCATION 2001 2 IR 545
HAY V O'GRADY 1992 1 IR 210
FAMILY LAW (DIVORCE) ACT 1996 S18(10)
POWER EQUALITY IN ANCILLARY RELIEF 2001 IFLJ 24
MATRIMONIAL ACT 1973 S23
MATRIMONIAL ACT 1973 S24
MATRIMONIAL ACT 1973 S25
MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S3
FAMILY LAW (DIVORCE) ACT 1996 S20
MATRIMONIAL PROCEEDINGS & PROPERTY ACT 1970 S5(1) (UK)
DART V DART 1996 2 FLR 286
BRASSE WHITE V WHITE A RETURN TO ORTHODOXY 2001 31 FAM LAW 191
MILES EQUALITY ON DIVORCE 2001 60 CLJ 46
NORTHOVER & PEAT COWAN - DEPARTURE FROM EQUALITY OF DIVISION 2001 31 FAM LAW 510
CONSTITUTION ART 41.3.2.II
D(J) V D(D) 1997 3 IR 64
FAMILY LAW (DIVORCE) ACT 1996 S13(5)(a)
MATRIMONIAL PROCEEDINGS & PROPERTY ACT 1970 S5
NORTH WESTERN HEALTH BOARD V W(H) 2001 3 IR 736
CONSTITUTION ART 41.2.1
CONSTITUTION ART 42.1
CONSTITUTION ART 41.1
CONSTITUTION ART 41.3 PARA 1
CONSTITUTION 41.3.2.III
O'CEARUIL BUNREACHT NA HEIREANN:A STUDY OF THE IRISH TEXT 601
CONSTITUTION ART 40.1
CONSTITUTION ART 40.3.3
CONSTITUTION ART 42.4
CONSTITUTION ART 42.5
CONSTITUTION ART 34.5.1
FAMILY LAW (DIVORCE) ACT 1996 S13
FAMILY LAW (DIVORCE) ACT 1996 S14
FAMILY LAW (DIVORCE) ACT 1996 S15
FAMILY LAW (DIVORCE) ACT 1996 S16
FAMILY LAW (DIVORCE) ACT 1996 S17
FAMILY LAW (DIVORCE) ACT 1996 S18
FAMILY LAW (DIVORCE) ACT 1996 S13(c)(i)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20
JUDGMENT delivered the 14th day of October,2002by Keane C.J.
This is an appeal from a judgment and order of the High Court (Lavan J) in proceedings brought by the applicant under The Family Law (Divorce) Act 1996, hereafter "the 1996 Act").
The factual background is as follows. The applicant who, at the date of the hearing in the High Court, was aged 52, is a solicitor in practice in a country town. The respondent was aged 48 at the date of the hearing in theHigh Court and is a medical doctor by profession. The applicant and the respondent were married on the 20th March 1980 according to the rites of the Roman Catholic Church.
In the proceedings in the High Court, the applicant sought a decree of divorce pursuant to s.5(1) of the 1996 Act together with various ancillary orders. While the respondent opposed the granting of a divorce decree in the High Court on religious grounds, it is accepted on her behalf that the constitutional and legal preconditions to the granting of such a divorce have been met and there is, in the result, no appeal from the grant of a decree of divorce by the High Court.
The provisions of the order of the High Court which were the subject of the appeal to this court were the requirements that
(a) the applicant paid to the respondent a lump sum of £5million and
(b) 55% of the benefits accrued to the applicant's Eagle Star policy No. 1855093 and to the applicant's Standard Life policy [Nos. specified] from the date of entry to eachindividual scheme to the date of the order be paid to therespondent.
The sum of £5 million was to be paid as follows:
(a) as to the sum of £1 million on or before the 31st December2001;
(b) as to the sum of £2 million on or before the 30th September 2002 and;
(c) as to the remaining sum of £2 million on or before the 30th June 2003.
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