W.A v M.A (Divorce)

• Jurisdiction: Ireland
• Judgment Date: 09 December 2004
• Neutral Citation: [2004] IEHC 387
• Docket Number: [2004 No. 453
• Date: 09 December 2004
• Court: High Court

[2004] IEHC 387

1 In these proceedings the applicant (hereafter called the husband) sought a decree of divorce. The wife counterclaimed for divorce and sought extensive ancillary orders including a property adjustment order in relation to all the husband's property, an order for maintenance, a pension adjustment order, a financial compensation order, an order for sale of such property as the Court considered appropriate, an exclusion order and certain further orders. By order of the Circuit Court of January, 2004, a decree of divorce was granted to the parties, mutual orders under s.18(10) of the Act of 1996 were made, the periodic maintenance order in favour of the wife in the sum of €150 per week was made and the application for a property adjustment order was refused. The wife appealed against the whole of the order. At the hearing, however, it became clear that the wife did not object to the granting of a decree of divorce but sought ancillary orders.

Background.

2 The factual background to the case is essential to the resolution of the present dispute. Fortunately, there is a very large measure of agreement.

3 The husband and wife are both from comfortable agricultural backgrounds. The husband is now aged 54 years and the wife 50. They married in 1978 and the matrimonial relationship collapsed by 1988 and probably sometime earlier. In 1993 the parties entered into a deed of separation and a side agreement the terms of which are of considerable importance. There are no children of the marriage.

4 The husband and wife were each born into substantial farming families residing close to, but on different sides of, Cork City. In 1974 the husband received from his father a farm some 78 acres and in the following year he bought another farm of 136 acres, jointly with his mother.

5 About 1978 the wife acquired, by inheritance from an uncle, an 80 acre farm near her home place.

6 The respective farms of the husband and wife, and the husband's half interest in the third farm constituted the parties assets on or shortly after marriage in 1978. Thereafter, the husband sold his farms and purchased instead three farms near the wife's home place. One of these, of 67 acres, he acquired in his own name and the other two of 206 acres in total were acquired in the joint names of husband and wife. Accordingly, by the mid 1980s the husband possessed 67 acres in his own name and the wife retained her 80 acre farm in her name. The parties jointly owned a further 204 acres, making a total of just over 350 acres. They lived in a house on one of these farms which might be regarded as the home farm and in the mid or late 80s changed the nature of their enterprise from dairying to dry stock. In 1988 the husband bought a further farm of 95 acres a considerable distance away in his own name for the sum of £160,000 all of which was borrowed. Later he acquired a smaller adjacent farm. In 1988 the husband's father died. The marital relationship definitively collapsed in the same year and the parties were in effect living separate and apart but in the same house. The husband, however, spent considerable time in his mother's family home on a valuable holding some distance away. The wife's parents, a brother-in-law and a cousin were all engaged in fairly extensive farming near the family home

7 In the course of the year 1989 the husband carried out significant upgrading in the home farm including the acquisition of a milk quota, the purchase of a pedigree Frisian herd of 150 head and other matters.

8 In 1991 the husband moved out of the family home. For a long period throughout 1992 and early 1993 there were intensive negotiations between the husband and the wife, who was assisted by her father and the cousin referred to above. The parties had the benefit of legal and accountancy advice from very reputable sources including in particular an accountant, Mr. Cullinane. This gentleman is an accountant with a specialty in agricultural accounting and business planning and was called on behalf of the wife in the hearing of the appeal.

The separation agreement.

9 This agreement is dated the 8 ^th April, 1993. It is generally in a usual common form, but the following provisions require particular notice:

10 (2) "The terms of this agreement are intended to be a full and final settlement between the parties of any legal or moral obligations which they have to each other, whether arising out of legislation based on a matrimonial relationship, or otherwise, and in particular but without prejudice to the generality of the foregoing the husband and wife agree that neither party shall institute or maintain or attempt to institute or maintain proceedings against the other seeking a decree of judicial separation or any ancillary relief thereto pursuant to the provisions of the Judicial Separation and Family Law Reform Act, 1989or any similar or amending legislation.

11 (3) The husband and the wife agree that any property of any nature acquired by either party in the future shall be the sole property of the person acquiring same. Furthermore, the husband and wife, each as the spouse of the other, hereby respectively acknowledge to the other that any other house or premises which might subsequently be purchased by either of them at either time in the future will not constitute a family home…

12 (4) It is agreed that the husband or the wife shall be entitled to carry on any business without any interference from the other and all profits therefrom and any property purchased or money saved by the husband or by the wife shall be their own property.

13 (14) The wife acknowledges that she has no right or claim to and will not seek to establish or maintain any right or claim to [the lands separately acquired by the husband as set out above] or [a suburban house in Cork purchased by the husband in 1992].

14 The separation agreement generally is a detailed one covering all the matters which it might be expected to cover and several contingent matters.

15 On the same day that the separation agreement was executed the parties entered into a "side agreement". Insofar as relevant this provided:

"… Neither of us will obstruct the other in seeking and/or obtaining a divorce a vinculo in the event of such other being entitled to seek and obtain a divorce a vinculo without infringing the constitutional rights of the party not so seeking such divorce and provided further that such of the financial and property terms contained in the [separation agreement] as remained to be performed at the date of application for such divorce a vinculoshall be incorporated on the application and by the consent of the moving party in such application into any decree which may be granted on foot of such application and provided further that any of the said financial terms or property terms that shall have been performed as of the date of such application for divorce a vinculo shall be excluded from the consideration of the court by and on the consent of the moving party in such application.

It is further agreed … that this letter is not intended by the parties and shall not in fact approbate their alleged marriage and is intended solely to facilitate the parties in regulating their financial and property affairs and their marriage status insofar as such status be deemed invalid."

16 Under the terms of the separation agreement the wife acquired in her own name some 178 acres together with the milk quota attaching to part of it, farm equipment and buildings, a residence and a fully working farm. The husband received into his own name approximately 174 acres without buildings or equipment. Quite complex arrangements were made for the liquidation of a bank debt for which the parties were jointly responsible by the sale of stock and for the choice by or on behalf of the wife of stock for her retention. The husband retained the lands which he had bought remote from the wife's home and the debt incurred to buy them. The husband retained the dry stock on the farm. Sixty three head of cattle were sold by agreement for the wife in respect of the bulk of her part of the bank liability. The balance of the herd was retained by her, this being a milking herd.

17 After the separation agreement had been carried out, neither party had more than a small and manageable level of debt on the land each received in the settlement.

Effect of the separation agreement

18 On the hearing of this appeal the only real evidence given about the separation agreement was that of the accountant, Mr. Cullinane, who is referred to above. He said that over a long period in 1992 and 1993 his firm had acted as mediator between the parties in arriving at a settlement. He said he believed that they mediated a fair settlement and he personally drew up the heads of the agreement. He said his firm were the farm accountants to both Mr. and Mrs. A. He said that his object had been to seek a fair solution based on his accountancy expertise and his extensive knowledge of farming. He said he believed the agreement secured the position of both Mr. and Mrs. A. He said that at the date of the agreement the perception of all parties was that a fair resolution had been reached. The advantages and drawbacks of the lands and the quota attached to part of them were known to all parties. He believed that each party was given by the agreement the means to carry on their lives and thrive, independently from then on: he was satisfied of this. This evidence was unchallenged.

After the agreement.

19 In the period immediately after the agreement, before the end of 1993, the husband sold his lands near the wife's home place. With the proceeds he reduced or liquidated the debt on the more remote farm he had acquired and on the suburban house. He acquired another 100 acres near his existing holding. Later, he entered into a new relationship, since ended, and...