X.C. v Y.C.

JudgeMr. Justice Barry O'Donnell
Judgment Date22 November 2023
Neutral Citation[2023] IEHC 671
CourtHigh Court
Docket NumberRECORD NO. 2022/135 M

[2023] IEHC 671

RECORD NO. 2022/135 M


JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 22 nd day of November, 2023 .


This judgment is given in relation to motions brought by each of the parties. The motions were heard by the court over the course of a single hearing, and other motions that were also listed were resolved by agreement without the need for adjudication.


In the underlying proceedings the applicant seeks relief pursuant to Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (“the 2010 Act”). The proceedings are characterised by a series of heavily contested factual disputes, underpinned by strong emotions. It is not necessary for the purpose of these applications to resolve or adjudicate on any of the underlying issues, and only a brief description of those matters will be given for the purpose of establishing the context for the motions. Despite the obviously contentious tenor of the underlying proceedings, counsel for both parties made clear and thorough written and oral submissions that maintained a close focus on the legal issues to be determined, for which the court is grateful.


The proceedings were commenced by way of a Cohabitation Special Summons dated the 11 November 2022. As pleaded, the essentials of the applicant's case are that the parties commenced an intimate and committed relationship with each other in or about May 2017. The respondent purchased a substantial and valuable house in Dublin in or about May 2019 without a mortgage, and which is registered in his sole name. The parties had a daughter who was born in early 2020. The applicant pleads that the party's relationship started deteriorating in the latter half of 2019. The parties ceased living together as of the 15 November 2020, and the relationship ended on that date. The applicant seeks a declaration that the parties are qualified cohabitants for the purposes of section 172 of the 2010 Act. On foot of that declaration, the applicant goes on to seek a variety of ancillary orders under the 2010 Act, including a property adjustment order, periodical payments and a pension adjustment order. Further relief is sought by reference to the Domestic Violence Act 2018. Over the course of the proceedings, the applicant has sworn a series of affidavits, the most substantial of which runs to 105 paragraphs.


For his part, the respondent has also sworn a number of lengthy affidavits. The position on the affidavits is that almost every aspect of the case either is contested or subject to very different interpretations by the parties. The parties make allegations and counter allegations of arguments and poor conduct, including serious allegations of aggressive and violent behaviour. Of note, for the purpose of these motions, is that the respondent strongly disputes that the relationship reached the threshold that would allow for a finding that the parties were qualified cohabitants. In that regard, the respondent's case is that the parties were in an on-and-off relationship and were not qualifying cohabitants, and that the relationship ended more than two years before the commencement of the proceedings, and therefore are out of time.


The first motion was brought by the respondent by notice of motion dated the 5 May 2023. In that motion, the respondent seeks two reliefs: first, an order directing the trial of a preliminary issue, being whether the applicant is a qualified cohabitant within the meaning of the 2010 Act. The second relief sought by the respondent is an order pending the determination of the preliminary issue, that the respondent is not required to file an affidavit of means pursuant to Order 70B, rules 5(3) and 16(5) of the Rules of the Superior Courts (“the RSC”).


The second motion was brought by the applicant by way of notice of motion dated the 16 May 2023, in which the applicant seeks an order pursuant to O. 70B, r. 5(4) of the RSC, declaring that the respondent should not be entitled to defend the applicant's claim for relief by reason of his failure to serve an affidavit of means in compliance with the RSC. Alternatively, the applicant seeks an order compelling the respondent to serve an affidavit of means.


The respondent's grounding affidavit is dated the 5 May 2023. In his affidavit, the respondent draws a close link between the request for the trial of a preliminary issue and the question of the need for him to serve an affidavit of means. The respondent explains why he contends that the applicant is not a qualified cohabitant for the purposes of the 2010 Act. Following that evidence, the respondent contends that the court should, in effect, postpone the requirement for him to serve an affidavit of means until the preliminary issue is determined. This is premised on the argument that his right to privacy will be infringed unnecessarily if he is required to disclose his full financial position to the applicant where, as he argues, she will fail to establish that she is a qualified cohabitant. In that regard, the respondent states that he chose not to be engaged to or marry the applicant and chose to keep his finances separate and distinct from the applicant's. Furthermore, the respondent argues that, in the context of judicial separation proceedings between the applicant and her former husband, the applicant breached the in camera rule, and also emailed some exhibits to affidavits in these proceedings to her current partner.


I should note that prior to the hearing of these motions, a separate motion concerning allegations that the in camera rule had been breached was compromised by agreement between the parties, with an undertaking being given by the applicant. In those premises, and specifically where the respondent accepted that the undertaking was sufficient to resolve that motion, I do not consider that the court should treat prior allegations about breaches of the in camera rule as significant for the resolution of these motions. That is not to say that a breach of the in camera rule is not serious or a matter to be deprecated, rather it seems to the court that the explanations and undertakings given are sufficient to allow the court to proceed on the basis that the applicant now understands the clear necessity to ensure that no further breaches occur. On one level that should be sufficient to address the initial concern that service of the affidavit of means should be delayed or postponed.


The applicant filed a replying affidavit on the 9 June 2023. In relation to the affidavit of means issue, the applicant contends that the respondent brought his motion in order to respond to a letter dated the 25 April 2023 from the applicant's solicitors. That letter, which was exhibited, effectively notes that the respondent had defaulted in serving an affidavit of means and put him on notice that an application would be made for default orders if it was not received within a period of 14 days. In addition, the applicant disputes that the parties' finances were kept separate, and she argues that the privacy concerns in reality represent a desire to delay the proper prosecution of the proceedings. The applicant notes that she has made a full disclosure of her means.


The second related motion was the applicant's motion addressing the default in service of an affidavit of means. That motion was grounded on an affidavit sworn by the applicant's solicitor which sets out the alleged default, and cross references an affidavit sworn by the applicant in the context of the underlying proceedings.


Finally in this regard, the court was furnished with an open letter that was sent by the respondent's solicitor to the applicant's solicitor dated the 6 October 2023, in reference to the applicant's motion requiring the respondent to swear an affidavit of means. The letter sets out the following:

“Our client confirms that his net worth is not less than €30,000,000.

Manifestly, our client is in a position to meet any reasonable order the Court might make in this case in the unlikely event that your client is successful.

In the circumstances, we submit that there is no necessity for an affidavit of means or for any vouching.”


The letter of the 6 October 2023 seeks to deploy what is described euphemistically in English caselaw as “the millionaire's defence”. Hence, at the hearing the court was faced with two arguments. First, the argument that the court should postpone the respondent's obligation to comply with the requirement to serve an affidavit of means until after the determination of a preliminary issue as a means of preserving the respondent's privacy rights. Second, the argument that the respondent's personal wealth was so extensive that there was no need to serve an affidavit of means or engage in vouching because the respondent was in a position to meet any order providing financial relief to the applicant.


Cohabitation proceedings under the 2010 Act are addressed in Part III of O.70B of the RSC.


O.70B, r.17 makes clear that an applicant seeking relief under the 2010 Act is required to swear an affidavit verifying the proceedings. O.70B, r.17(2) provides that the verifying affidavit shall include, inter alia, evidence of the degree of financial dependence of either party on the other and any agreements in respect of their finances, along with particulars of the degree and nature of any financial arrangements between the parties.


The obligation under O.70B, r.17 applies to the applicant's verifying affidavit and any reply thereto. Where a respondent counterclaims – and the respondent in this case has counterclaimed for relief at paragraph 86 of his affidavit of the 10 March 2023 – this is to be set out by way of replying affidavit and the...

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