Supreme Court dismisses appeal against divorce ancillary orders, upholding lump sum and pension split.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Fennelly J.

31/02

BETWEEN:

D. M. P. T.

APPLICANT

AND

C. T.

RESPONDENT

Judgment delivered the 14TH day of October, 2002 by Keane C.J.

Introduction

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 the High 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 £5 million 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 each individual scheme to the date of the order be paid to the

respondent.

The sum of £5 million was to be paid as follows:

(a) as to the sum of £1 million on or before the 31st December 2001;

(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.

There are three children of the marriage who were born on the 21st April 1981, 5th August 1983 and 20th January 1989. Each

of them is a dependent child within the meaning of the 1996 Act, but no issue arises in this appeal as to the provision being

made for them by the applicant.

The evidence in the High Court established that the applicant had built up a lucrative practice and that, in addition, he had

made shrewd investments in property in the area where he lived and in Dublin. While there was not complete agreement

between the parties as to his financial worth, and it will be necessary to consider it in a little more detail at a later stage, it is

sufficient to say at this point that it is in the order of at least £14 million. The respondent’s assets were estimated to be worth

in the region of £1 million.

The respondent obtained her primary medical degree at university in 1976 and thereafter held a number of junior hospital

appointments until 1979. She subsequently worked as a locum general practitioner in a country area from July 1979 to

September 1979. In October 1979, she pursued a postgraduate course in public health in University College Dublin qualifying in

1980 with a Diploma in Public Health. At the time of the marriage in 1980, she owned a four bedroomed semi-detached house

with an attached single bedsitter in Rathfarnham, Dublin. That house was leased for a number of years and ultimately sold in

1984. The proceeds were used for the benefit of the family generally.

The applicant and the respondent began their married life in another town and in 1980, moved to the town where they lived

together until 1994 when the applicant left the family home. The applicant built up his successful practice in the town and

initially he carried on his practice from the house which they used as the family home.

At this stage, the respondent, who before meeting the applicant had intended to pursue a career as a general practitioner,

changed her plans on assuming the responsibilities of marriage and a family and took up a post as an area medical officer for a

health board. She resigned from that position on the birth of the youngest child in 1989 and thereafter worked part-time - not

more than six hours a week - as a general practitioner between 1990 and 1998.

It is also not in dispute that for some years after they were first married the respondent acted as the applicant’s unofficial

receptionist, meeting clients and taking phone calls from them both before and after hours and at the weekends. She also did a

typing course so as to save the applicant the expense of hiring a secretary at the outset. She furnished the offices from her

own resources and cleaned it for many years.

The marriage is described by both parties as having been “turbulent” and the applicant has not denied the respondent’s

averment that, during the course of the marriage, he conducted a number of extra-marital affairs. The applicant at the time of

the High Court hearing had been in a relationship for two years with a new partner who had recently given birth to their child. It

was his intention to marry his partner on the court granting the decree of divorce.

At the time the applicant left the family home, he and the respondent continued to operate a joint bank account which the

respondent drew on when necessary. That arrangement continued for eighteen months, at which stage the applicant closed the

account and opened an account in the respondent’s name. The applicant at present pays the respondent a sum of

approximately £400.00 per week by way of maintenance of the children of the marriage, along with some other outgoings and

expenses in relation to the children and the family home. The High Court order provided for the payment by the applicant to the

respondent of the sum of £800 in respect of the maintenance of the youngest child until he attained the age of 18 years and

for the payment to continue while he was in third level education up to his attaining the age of 23 years.

When the applicant left the family home, which had previously been held in the joint names of himself and the respondent, he

transferred his interest in it to the respondent. There were a number of valuable paintings and antiques in the house, some of

which he left there. He also transferred to the respondent a house in the Sandymount area of Dublin. The applicant is now living

in a house in the country near to the town where he practices and which he bought for approximately £140,500.00. It is on a

farm of approximately 48 acres.

The applicant also owns other premises in the town where he carried on practice. He is also the owner of property in Dublin,

consisting of a house in Ballsbridge, some apartments, and an office block. In addition, he has other assets, including shares in

a number of companies. He estimated his taxable income from his practice as a solicitor for the year preceding the High Court

hearing at £208,479.00. However, he is also in receipt of income from his other properties and interests and his total income

was estimated by him in his affidavit of means in the High Court at £1,006,812.

The office block was purchased by the applicant in 1996, i.e., sometime after the breakdown of the marriage but before the

hearing in the High Court, for the sum of £4,300,000. Its net valuation at the time of the hearing in the High Court, after

deducting the cost of realisation, including capital gains tax, was £11,450,000. It represents a significant proportion of the

assets of the applicant.

The respondent has been working as a sole general practitioner since November 1998, but says that she has found it extremely

difficult to build up a practice. In 1998/99 she estimated her income from the practice at £7,223.00.

The High Court Judgment

The trial judge approached the case on the basis that provision should be made for the respondent solely by way of a lump

sum, rather than by way of periodic payments or a combination of a lump sum and periodic payments. It is not disputed that, on

the facts of the case, he was entitled to adopt that approach. It had been submitted on behalf of the respondent that the

lump sum should be between one third and one half of the applicant’s assets. On the basis that the total assets of the

applicant were of the order of £15 million, it was submitted that the appropriate range of the order for provision should be

between £4.4 million and £7 million. In the event, as already noted, the trial judge considered the appropriate sum to be £5

million, to be paid in instalments over a period of 18 months.

The respondent had also sought a pension adjustment order. The trial judge was of the view that, in the absence of any other

factors, this should have been divided as to 49% to the applicant and 51% to the respondent. However, because he considered

it appropriate to take into account the conduct of the applicant, he adjusted that apportionment to a finding of 45% to the

applicant and 55% to the respondent.

Submissions on behalf of the parties

On behalf of the applicant, Mr. Michael Cush SC submitted that the High Court judgment was vitiated by a failure on the part of

the trial judge to have sufficient regard to the following matters:

(1) the assets to which the parties were respectively entitled;

(2) the income of the respondent;

(3) the financial needs of the parties;

(4) the fact that a significant proportion of the applicant’s assets i.e., the office block, amounting to approximately 80%,

had been acquired by him after the separation;

(5) the fact that the applicant had transferred 30% of his assets to the respondent at the time the marriage broke down;

(7) the new relationship entered into by the applicant and the responsibilities which would result therefrom;

Mr. Cush further submitted that the trial judge had been in error in treating as applicable, as he apparently did, the approach

adopted to cases of this nature - described in England as “big money cases” - in White -v- White [2000] 2FLR 981 and Cowan -

v- Cowan [2001] 2FLR 982. He said that in English law the effect of a divorce was to achieve what is described as a “clean

break” between the spouses but that, as had been made clear in the judgment of McGuinness J in this court in M.K -v S.K.

[unreported; judgment delivered 6th November 2002], it was not possible to adopt that approach in Irish law. He submitted

that, on the contrary, the Irish legislation was designed to allow a dependent spouse to be financially supported throughout

his/her life by the other spouse. The trial judge had, in the result, been in error in not taking into account, when making

provision of the order of £5 million for the respondent, that she would be entitled, so long as she remained unmarried, to return

to the court to seek further maintenance or financial provision.

Mr. Cush further submitted that the trial judge had made no attempt in his judgment to indicate what weight he was attaching

to the matters to which he was required to have regard under s.22 of the 1996 Act, including, in particular,

(a) the income, earning capacity, property and other financial resources of the respondent;

(b) the financial needs, obligations and responsibilities of each spouse;

(c) the age of each of the parties, the duration of their marriage and the length of time during which they lived with one

another.

Mr. Cush further submitted that the trial judge was in error in treating the date of the hearing as the appropriate date for the

purpose of valuing the assets of the parties, when he should have had regard to the assets held by the parties respectively at

the time of the breakdown of the marriage. He submitted that this was of critical importance, given that 80% of the assets to

which the applicant was now entitled had been acquired by him since the breakdown of the marriage.

As to the adjustment made by the trial judge to the pension entitlements in the light of the applicant’s conduct, Mr. Cush

submitted that the applicant’s conduct during the marriage was not such as to render it “unjust” within the meaning of s.20(2)

(i) of the 1996 Act to disregard it. He submitted that the appropriate test was that laid down by Lord Denning MR in Wachdel -v

Wachdel [1973] 1All ER 829 where he said that only conduct which was “obvious and gross” was intended to be captured by

such a provision.

On behalf of the respondent, Mr. Frank Clarke SC submitted that the trial judge was fully entitled to give considerable weight to

the fact that not merely had the parties been married for a significant period but that, in the case of the respondent, these

were years of primary importance to her, being the years in which her children were born and reared. He said that, in assessing

the contributions which the parties had made to the marriage, the court was obliged to have regard to the fact that, on the

unchallenged evidence in the case, the respondent had effectively abandoned any attempt to establish herself in a secure

position in her chosen profession in order to concentrate on her marriage and family.

Mr. Clarke further submitted that the trial judge was correct in treating the English authorities as affording assistance in the

construction of our legislative provisions. In this jurisdiction, as in England, in a “big money” or “ample resources” case such as

the present, while equality in the division of the assets was not required, it was a yardstick against which it was appropriate to

assess the contribution to be made by the spouse who, because of the manner in which the parties agreed to conduct their

lives together, was endowed with significantly greater assets. In the present case, the respondent’s relinquishing a full time

medical career, and her commitment to her marriage and children, enabled the applicant to devote considerable energy and time

to the development of his practice. This was properly reflected in the assessment of the lump sum. Similarly, in this jurisdiction,

it was appropriate to have regard to the fact that the effect of the divorce was to deprive the respondent of the one third

fixed share to which she would have been entitled in the applicant’s estate in the event of his predeceasing her.

Mr. Clarke further submitted that, while the doctrine of the “clean break” did not apply in Ireland, in a case such as this where

the resources were so ample as to render possible the provision of a relatively large sum, there was no reason to anticipate

future applications on behalf of the respondent for maintenance or other support. The court was entitled to have regard to the

fact that there was no order to make periodic payments and unlikely to be any such order in the future. He also said that, in

view of the provision in the order for the payment of the lump sum in three instalments over a period of eighteen months, the

actual lump sum being paid by the applicant, in terms of its present value, was £4.6 million.

As to the submission that the court should not have regard to so much of the applicant’s wealth as was represented by the

office block since it had been acquired after the breakdown of the marriage, Mr. Clarke submitted that the court was entitled to

have regard to the fact that it was as a result of the profits generated by his practice that the applicant was in a position to

make that investment and that, in turn, that reflected the respondent’s committment to the marriage and the support she gave

to the applicant in his career. He said that in any event, the language of s.20(2) and, in particular, the reference to property

and other resources which a spouse “is likely to have in the forseeable future” made it clear that the court was not confined, in

considering the provision to be made, to the assets as they existed at the time of the breakup of the marriage.

The Applicable Law

Article 41 of the Constitution, as amended by the 15th Amendment, provides that

“A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that -

i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of,

or periods amounting to, at least four years during the previous five years,

ii there is no reasonable prospect of a reconciliation between the spouses,

iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the

spouses, any children of either or both of them, and any other person prescribed by la, and

iv any further conditions prescribed by law are complied with.”

The statutory machinery is contained in the 1996 Act, s.5(1) of which provides, in language identical to that of Article 41, for

the grant of a decree of divorce. Part III of the Act enables the court to make a variety of orders relating to the financial

position of the spouses, including periodical payments and lump sum orders, property adjustment orders, financial compensation

orders and pension adjustment orders. Section 20(1) then provides that, in determining the provisions of such orders,

“the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or

will be made for the spouses and any dependent member of the family concerned.”

Subsection (2) then provides that

without prejudice to the generality of s.s. (1), in deciding whether to make such an order as aforesaid and in

determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has

or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the

foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the

spouses commenced to live apart from one another, as the case may be,

(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses

lived with one another,

(e) any physical or mental disability of either of the spouses,

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the

welfare of the family, including any contribution made by each of them to the income, earning capacity, property

and financial resources of the other spouse and any contribution made by either of them by looking after the

home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each

during the period when they lived with one another and, in particular, the degree to which the future earning

capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of

remunerative activity in order to look after the home or care for the family,

(h) any income or benefits to which either of the spouses is entitled by or under statute,

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the

circumstances of the case be unjust to disregard it,

(j) the accommodation needs of either of the spouses,

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by

reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried”

Subsection (3) requires the court, in making the orders concerned, to have regard to the terms of any separation agreement

which has been entered into by the spouses and is still in force. There is no such separation agreement in the present case.

Finally, s.20(5) provides that

“The court shall not make an order under a provision referred to s.s(1) unless it would be in the interests of justice to

do so.”

The 15th Amendment to the Constitution, which removed the prohibition on any law providing for the dissolution of a marriage

and enabled the courts to grant decrees for the dissolution of marriages, was a change of far reaching importance. The

Matrimonial Causes Act, 1857 which provided for the establishment of a divorce jurisdiction in England and Wales, did not apply

to Ireland and, while there was no express prohibition on divorce in the Constitution of the Irish Free State equivalent to that in

the present Constitution, the only manner in which a divorce could be obtained, in the absence of any legislation, was by the

promotion of private bills. Since no standing orders were adopted enabling such legislation to be promoted, no divorce

jurisdiction existed in Ireland until the passing of the 15th Amendment. That amendment and the 1996 Act fundamentally altered

the nature of our law affecting marriage and the family.

There were two important features of this change in the law. First, it was now possible, where the constitutional and statutory

preconditions for a divorce were met and a divorce granted, for the parties to remarry. Secondly, the court in granting such a

divorce was required to ensure that such provision as it considered proper would be made for the spouses and any children of

either or both of them.

The legislation which was enacted by the Oireachtas in this radically different context was clearly modelled to some extent on

modern English divorce legislation. In particular, sub paragraphs (a) to (i) of s.20(2) of the 1996 Act correspond exactly to the

provisions of s.25(2)(a) to (h) of the English Matrimonial Causes Act 1973 as amended by the Matrimonial and Family

Proceedings Act 1984.

There is, however, an important difference. Section 25(A) of the English Act enables the court, when ordering periodical

payments to be made or lump sums to be paid by either spouse to the other, to provide that the financial obligation of each

party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable. In

relation to such orders, accordingly, the English legislation embodies the “clean break” principle first laid down by the House of

Lords in Minton -v- Minton [1979] AC 593.

No such provision appears in the 1996 Act. Moreover, under s.22, the court may, if it considers it proper to do so having regard

to any change in circumstances or any new evidence inter alia vary or discharge the following orders referred to in s.22(1):-

“(b) a periodical payments order....

(d) a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires

the payment of any such instalments to be secured...”

Lord Scarman in Minton -v- Minton said

“There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that

their means permit, should provide for themselves and their children. But the other - of equal importance - is the

principle of the ‘clean break’. The law now encourages spouses to avoid bitterness after family breakdown and to settle

their money and property problems. An object of the modern law is to encourage each to put the past behind them and

to begin a new life which is not overshadowed by the relationship which has broken down.”

It is, of course, beyond argument that the Irish legislation precludes the courts from giving the same effect as does the English

legislation to the “clean break” principle. In so providing, the Oireachtas was undoubtedly mindful of the express requirement in

Article 41 that proper provision should be made for the spouses and their children. It was presumably considered that to include

a “clean break” provision on the English model could expose dependent spouses to hardship in the future and that this would

not be consistent with the constitutional protection which they were being afforded.

In this connection, it is of interest to note that, while expressing his concurrence with the “clean break” approach adopted in

Minton -v- Minton, Lord Fraser of Tullybelton gave this warning:

“I respectfully agree that there are great advantages in the finality of a ‘clean break’. But it is easy to envisage an

exceptional case in which a totally unforeseeable change in the circumstances of one of the former spouses occurs soon

after a final court order has been made disposing of the financial issues between them. Such a change might render the

order so inappropriate as to appear harsh and unjust. The change might be for better, as by unexpected inheritance of

property, or for worse, as by a sudden serious illness. To cover such exceptional cases it would, in my view, be desirable

that the jurisdiction of the court to vary any order should invariably be preserved as a matter of general law.”

It seems to me, that, unless the courts are precluded from so holding by the express terms of the Constitution and the relevant

statutes, Irish law should be capable of accommodating those aspects of the “clean break” approach which are clearly

beneficial. As Denham J observed in F -v- F (Judicial Separation) [1995] 2IR 354, certainty and finality can be as important in

this as in other areas of the law. Undoubtedly, in some cases finality is not possible and thus the legislation expressly provides

for the variation of custody and access orders and of the level of maintenance payments. I do not believe that the Oireachtas,

in declining to adopt the “clean break” approach to the extent favoured in England, intended that the courts should be obliged

to abandon any possibility of achieving certainty and finality and of encouraging the avoidance of further litigation between the

parties.

In this context, I would respectfully disagree with the view of McGuinness J on this in D (J) -v- D (D) [1998] FLJ 17 where,

speaking as a High Court judge, having referred to the observations of Denham J to which I have already referred, she

commented

“It appears to me that by the subsequent enactment of the Family Law Act 1995 and the Family Law (Divorce) Act 1996

the Oireachtas has made it clear that a ‘clean break’ situation is not to be sought and that, if anything, financial finality

is virtually to be prevented .... The court, in making virtually any order in regard to finance and property on the

breakdown of a marriage, is faced with the situation where finality is not and never can be achieved. This also appears

to mean that no agreement on property between the parties can be completely final, since such finality would be

contrary to the policy and provisions of the legislation.

“The statutory policy is, therefore, totally opposed to the concept of the ‘clean break’. This policy is not only clear on

the face of the statutes but was most widely discussed, referred to and advocated in the considerable debate that

surrounded the enactment of divorce legislation.”

I am satisfied that, while the Irish legislation is careful to avoid going as far as the English legislation in adopting the “clean

break” approach, not least because of the constitutional constraints, it is not correct to say that the legislation goes so far as

virtually to prevent financial finality. On no view could such an outcome be regarded as desirable and I am satisfied that it is

most emphatically not mandated by the legislation under consideration.

While s.20(2) lists in detail the factors to which the court is required to have regard in making the various financial orders

provided for in part III of the Act, it is obvious that the circumstances of individual cases will vary so widely that ultimately,

where the parties are unable to agree, the trial judge must be regarded as having a relatively broad discretion in reaching what

he or she considers a just resolution in all the circumstances. While an appellate court will inevitably endeavour, so far as it

can, to ensure consistency in the approach of trial judges, it is also bound to give reasonable latitude to the trial judge in the

exercise of that discretion.

Some principles which are to be applied in the exercise of the discretion are beyond dispute. As Lord Hoffmann said of the

corresponding English legislation in Piglowski -v- Piglowski 1 WLR 1360, it establishes no hierarchy of factors. In what is probably

still the typical Irish case, where one or both parties are in receipt of income, but their joint assets are not of such significant

value as is the case here, the first task of the court will almost certainly be to consider what the financial needs of the spouses

and the dependant children are. At one end of the spectrum, there will be cases in which, at best, no more than basic

subsistence requirements at the most can be met. At the other, there will be both substantial assets and income available and

the court will be concerned with the proper distribution, in terms of the section, of the available assets so as to ensure that

proper provision is made for the spouses and any dependent children.

It is, of course, the case that the 1996 Act does not require the assets of the spouses to be divided between them and the

dependant children in every case. There will undoubtedly be cases in which it would be solely concerned with the appropriate

level of the maintenance to be paid by one spouse to the other and as to what is to happen to the family home. But in cases

such as the present where there are substantial assets which have admittedly been brought into being in circumstances where

it would be unjust not to effect some form of division between the parties, the court will inevitably find itself having to

determine, where the parties are unable to agree, how the assets should be divided between them and whether that division

should take the form of a lump sum order or a property adjustment order.

In Irish society today, it can no longer be assumed that the husband and wife will occupy their traditional roles in which the

husband has been the breadwinner and the wife the home builder and carer. The roles may on occasions even be reversed and,

in many instances, both husband and wife will be in receipt of income from work. In those cases where one spouse alone is

working and, in the result, a significantly greater responsibility for looking after the home has devolved on the other, it is clear

that under s.20(f), the court must have regard to that as a relevant factor. Moreover - and this is of particular significance in

the present case - the court is obliged by virtue of subparagraph (g) to have regard to the financial consequences for either

spouse of his or her having relinquished the opportunity of remunerative activity in order to look after the home or care for the

family.

Other factors which bulk large in the present case and to which the court is obliged to have regard is the standard of living

enjoyed by both parties before the breakdown of the marriage, their respective ages and the duration of the marriage. The

conduct of the parties will also be relevant where, in the opinion of the court, it would be unjust to disregard it and, as already

noted, this played a part, albeit a relatively minor one, in the trial judge’s determination in the present case. Ultimately,

however, when all these factors have been assessed by the trial judge, he or she must be satisfied that any financial orders

which he may make as a result under Part III constitute proper provision for each of the spouses, and the dependent children,

within the meaning of the Constitution and the 1996 Act.

In the present case, as already noted, the trial judge was invited by counsel for the respondent to treat the appropriate range

within which a lump sum in favour of the wife should be assessed as between one third and one half of the net assets.

Assuming for the moment - and there was some disagreement as to the figures - that this suggested a lump sum of somewhere

between £4.4 million and £7 million, it was submitted in this court that the figure ultimately arrived at by the trial judge was

significantly closer to the lower end of the range. Counsel for the applicant in this court argued that neither the Irish nor the

English authorities rendered that approach legitimate.

The Irish authorities - McA -v- McA [2000] 1 IR457, D -v- D, and MK -v- SK (Supreme Court; unreported; Judgment delivered

6th November 2001) turn largely on their particular facts and do not give any express guidance as to the issue to which I have

just referred. In what have come to be known, somewhat unattractively, as “big money” cases, and which I would prefer to

categorise, as counsel for the respondent suggested, as “ample resources” cases, there are some observations by the English

courts as to the relationship, in those cases, between the division actually effected of the assets and a division of the assets

on the basis of equality. Those decisions did not afford any guidance, however, to whether the suggested lower level - i.e., one

third of the net assets - is a relevant consideration, since there is no equivalent in that jurisdiction to the fixed share provisions

of the Succession Act 1965.

In the first of the English decisions, White -v- White, the House of Lords rejected an approach which had found favour in earlier

decisions of the Court of Appeal, i.e., that the “reasonable requirements” of both spouses was a determinant factor in arriving

at a just result in such cases. It has not been suggested in this case that the position is any different under our legislation. It

was, however, urged on behalf of the applicant that the court should not adopt the approach proposed by the House of Lords

in that case to the concept of equality in the distribution of assets.

That approach is explained as follows by Lord Nicholls of Birkenhead:

“Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of

the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision

means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order

along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of

division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for

doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court

to focus on the need to ensure the absence of discrimination.

“This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in

a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The

discretionary powers, conferred by parliament 30 years ago, enabled the courts to recognise and respond to

developments of this sort.”

He also, however, rejected in that case an invitation to enunciate a principle that, in every case, the “starting point” in relation

to a division of the assets of the husband and wife should be equality.

Despite that caveat, the passage in question might be construed as resting on the assumption that, in English matrimonial law,

the court in divorce proceedings is primarily concerned with dividing assets as fairly as possible between the parties rather than

making proper provision for the spouses and their dependent children. As I have already indicated, such an approach could not

be adopted in this jurisdiction, where the appropriate criterion is the making of proper provision for the parties concerned. But it

by no means follows that what is referred to as “the yardstick of equality of division” is, in every case and for all purposes,

irrelevant. To take an extreme example, had the respondent in this case been awarded more than half the assets of the

applicant and appealed to this court on the ground that this was not proper provision, the yardstick of equality would certainly

have been a relevant consideration. The age old maxim, “equality is equity”, may have only the most limited of applications in

the complex exercise which the court of first instance is obliged to undertake in a case such as the present: that is not to say

that it has disappeared completely from the picture.

Lord Nicholls, in the course of his speech, also emphasised that the whole tenor of the legislation was the avoidance of a

discriminatory approach: the fact that, as often happened, the wife had devoted the greater part of her time to looking after

the children and caring for the home generally, was no ground for confining her share of the family assets, in the event of a

breakdown of the marriage, to so much of the assets as met her “reasonable requirements”. There can be no doubt that this is

also the law in this jurisdiction.

The Court of Appeal returned to the somewhat more problematic question of equality of division in Cowan -v- Cowan. In that

case - also an “ample resources” case - it was claimed on behalf of the wife that she was entitled to equality when the assets

were being divided. That claim was rejected by the Court of Appeal, on the basis of White -v- White, but the share of the wife

was increased from what was regarded as an inadequate provision by the trial judge to one representing 38% of the assets.

Thorpe LJ summarised his understanding of the consequences of the decision in White -v- White as follows:

“Disapproved is any discriminatory appraisal of the traditional role of the woman as home maker and of the man as

breadwinner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be

the result of equal division is a necessary cross check against such discrimination.”

“Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements.”

Provided that it is always borne in mind that in “ample resources” cases an equal division of the assets is emphatically not

mandated by the legislation, I think there should be no difficulty in adopting a broadly similar approach in this jurisdiction. It is

sufficient to say, by way of qualification, that the cross-check to which he refers may not be necessary in every case of

“ample resources”.

The use of the one third share of the estate to which the respondent would otherwise have been entitled under the Succession

Act as a yardstick is more questionable. Such an inheritance depends on the contingency of the applicant predeceasing the

respondent and, in the normal course, would, in any event, be deferred for many years. The Irish courts, however, dating from

times when family law cases were far less frequent and complex, traditionally approached the assessment of maintenance on

the basis that, all things being equal, the amount of maintenance should be one third of the disposable income of the earning

partner, then almost invariably the husband. To that limited extent, the court might be justified in treating, in “ample resources”

cases, one third of the net assets as a yardstick at the lower end of the scale.

The next question that arises is as to the time at which the assets should be valued. That is of considerable importance in the

present case, given that the office block, which constitutes so significant a proportion of the applicant’s assets, was acquired

after the breakdown of the marriage.

The language of s.20(2)(a), and, in particular, the reference to “property... which each of the spouses concerned has or is

likely to have in the foreseeable future” seems to me to be more consistent with an assessment by the court of the value of

those assets as of the date of the hearing. Any other construction, moreover, would seem to give rise to the possibility of

injustice to either party. Thus, if the office block had been acquired by the applicant immediately before the breakdown of the

marriage and the property market had collapsed between its acquisition and the date of the hearing in the High Court, it would

seem singularly unfair to him that the value of his assets should be ascertained by reference to the position as of the date of

the breakdown. That was also the view taken by the Court of Appeal in Cowan -v- Cowan. Thorpe LJ said:

“[the submission] that much of the husband’s fortune was generated in the 6 years post separation, receives no

reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or

appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where

one party had deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband

traded his wife’s unascertained share as well as his own between separation and trial, particularly committing those

undivided shares to the investment in Baco. The wife’s share went on risk and she is plainly entitled to what in the event

has proved to be a substantial profit. If this factor had any relevance it is within the evaluation of the husband’s

exceptional contribution.”

I would adopt that as a correct statement of the law in this jurisdiction.

Finally, there is the question as to when it would be “unjust” within the meaning of s.20(1)(i) to disregard the conduct of each

of the spouses.

In Wachdel -v- Wachdel [1973] 1 All ER 829, Lord Denning MR said

“There will no doubt be a residue of cases where the conduct of one of the parties is ‘both obvious and gross’, so much

so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of

justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it

would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for

financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine

for supposed misbehaviour in the course of an unhappy life ... In the financial adjustments consequent upon the

dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a

place.”

The Master of the Rolls was speaking at a time when there was no statutory equivalent in England to s.20(2)(i). The law was

altered in 1984 so as to require the court to have regard to the conduct of each of the parties where it would be, in the opinion

of the court, “inequitable” to disregard it. It would appear, according to the statement of the law in Bromley on Family Law

(7th Edition) p.841 that there has been no change in the practice as a result.

I would agree with the view expressed in Wachdel -v- Wachdel that the court should not reduce the financial provision which it

would otherwise make to one of the parties save in cases where the misconduct has been, as the Master of the Rolls put it,

“obvious and gross”. The same approach should logically be adopted to a proposed increase in the level of financial support

because of the suggested misconduct.

Conclusions

While the judgment of the trial judge was criticised in the written submissions on behalf of the applicant because, as it was

said, he had erroneously described the applicant’s assets as being in the region of £20 million, it is clear, from the analysis of his

judgment already conducted, that the sum which he ultimately arrived at was calculated by reference to the net disposable

assets. While there was some disagreement between the parties as to the precise extent of those assets, it was accepted on

behalf of the respondent that they should be ascertained by deducting from the net assets (i.e., the gross assets less any

liabilities) the costs, including capital gains tax, which would be incurred by the applicant in disposing of any of them. While

there was some disagreement between the parties as to the resultant figure, which mainly concerned the question as to

whether the applicant’s practice as a solicitor could be regarded as a disposable asset and the value that should be attached to

the paintings and the furniture, it seems clear that the minimum figure was in the region of £14 million. Since counsel for the

respondent is clearly correct in his submission that the lump sum of £5 million awarded by the trial judge must, in relation to the

net disposable assets of £14 million, be treated as having a present value of £4.6 million, given that it was to be paid by

instalments over 18 months, it follows that the effect of the trial judge’s order is to transfer to the respondent 38% of the net

disposable assets, while making no provision for periodic payments.

In determining whether that was a reasonable exercise by the trial judge of the range of discretion which he was clearly

invested with under the legislation, two factors are, in my view, of critical importance.

In the first place, it was clearly open to the trial judge to infer from the evidence, as he did, that, in this case, the respondent

had effectively relinquished the possibility of establishing herself to a significant degree in her chosen profession in order to

concentrate on her role in the home. At the time she married the applicant, she had received both her primary medical degree

and also specialist postgraduate qualifications and would undoubtedly have gone on to establish herself as a general

practitioner. Although she did not sever her links with the practice of medicine completely at any stage, she undoubtedly gave

up the opportunities that the practice of medicine would have afforded her both in terms of income and of personal fulfilment.

The court was required to have regard both to this factor and the actual contribution made by her to the marriage and the

home. While, on the other side of the scales, the court was required to have regard to the energy and hard work of the

applicant which has resulted in the family as a whole enjoying a standard of living far above the expectations of the average

person, it also has to be acknowledged that, once he had become married and started a family, this would have been far more

difficult for him to achieve without the commitment of the respondent to the home and the family.

The second important factor is the relative financial positions of the parties if the provision made by the trial judge is upheld.

The applicant will be left with assets in the order of £9.4 million and an income of approximately £210,000. The wife will have

assets of approximately £5.6, but her income will be more problematic. As the children of the marriage will be increasingly less in

need of her active presence and support, she will be correspondingly free to concentrate on the demands of her professional

life. She is, however, re-entering the profession on a full time basis at, in modern terms, a relatively late stage in her life and, in

the result, may find it more difficult to generate the sort of income that might otherwise have been available to her. The large

capital sum which she was awarded in the High Court should be seen in that context, although, properly managed and invested,

it will undoubtedly give her financial security for the rest of her life.

It has not been suggested that the trial judge erred in principle in deciding to approach this case on the basis of the payment

of a lump sum to the respondent without any provision for periodic payments by way of maintenance. In this context, it would

appear that, having regard to the provisions of s.22 of the 1996 Act, neither party will be entitled to a variation of the amount

of the lump sum itself, even should circumstances change: the extent of the permitted variation under s.22(1)(d) would appear

to be as to the payment of the sum by instalments. Similarly, it will not be possible for the court on the application of the

respondent to provide for a periodic sum by way of maintenance, since the power of the court under s.22(2) is confined to

varying or discharging an order for periodic payments already made. However, since the case was not approached on that basis

either in the High Court or this court, I would also approach it on the basis that, whether or not it is permissible, it is unlikely in

the extreme that a court in the future would order the payment of an increased lump sum or payment by way of maintenance.

To that extent, the approach of the trial judge appears to have been to have effected a “clean break” between the parties in

financial terms insofar as that is permissible having regard to the constitutional and legal provisions; and, given the desirability

of avoiding future litigation between spouses whose marriages have irretrievably broken down, I have no doubt that this was

the correct approach for him to have adopted.

As I have already indicated, I am also satisfied that the trial judge was correct in the approach he adopted of ascertaining the

value of the assets as of the date of the trial rather than the time when the marriage broke down.

I am further satisfied that, applying the legal principles which I have endeavoured to set out, the trial judge was entitled to

exercise his discretion in the manner which he did by awarding the respondent a lump sum of £5 million to be paid in instalments

over an 18 month period.

There remains the finding by the trial judge as to the pension adjustment order. In my view, applying the legal principles already

referred to, I do not think that he was entitled to alter the division which he had considered appropriate of 49% to the

applicant and 51% to the respondent. In my view, the misconduct as found by him was not so gross or obvious as to warrant

the setting aside of that division and the substitution therefore of the division of 45% to the applicant and 55% to the

respondent.

In the result, I would dismiss the appeal and affirm the order of the learned High Court judge save to the extent indicated in the

preceding paragraph.