IESC 68 · Supreme Court

The Supreme Court

Appeal No. 031/2002

Record No. 2000/30M

Keane, C.J.

Denham, J.

Murphy, J.

Murray, J.

Fennelly, J.

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN/

T. APPLICANT/APPELLANT

and

T. RESPONDENT

Judgement delivered on the 14th October, 2002 by Murray, J.

The parties to these proceedings were granted a decree of decree of divorce by order of the High Court dated the 6th day of

December, 2001 in respect of the marriage solemnised between them on the 29th of March, 1980.

The issues in this appeal stem from the dispute between the parties which are the nature and extent of the financial provisions

to be made for the Respondent should the Appellant be granted a decree of divorce. These are core issues because it is a

constitutional precondition that proper provision be made for spouses and their children before a Court may make an order

granting dissolution of a marriage. This pre-condition is repeated in the Family Law (Divorce) Act 1996. No issue arises in this

appeal concerning proper provision for the children of the spouses.

The fundamental issue in the appeal before the court, therefore, is whether the High Court Order fulfils the constitutional and

statutory requirement that “such provision as the Court considers proper having regard to the circumstances exists or will be

made …” for the Respondent spouse. The Family Law (Divorce Act) 1996 makes provision for and regulates the exercise by the

courts of the jurisdiction created by the Constitution to grant decrees of divorce. Section 5(1) of the Act repeats the

constitutional requirement that proper provision be made for the spouses as a pre-condition to the granting of such a decree of

divorce.

In exercising its jurisdiction the Order of the High Court made provision for the Respondent by providing: -

“(a) That the Applicant should pay to the Respondent a total sum of £5,000,000 by instalments over a period of 3 years;

(b) That 55% of the benefits accrued to the Applicant under specified life insurance policies should be paid to the

Respondent;

(c) That neither spouse should be entitled on the death of the other to apply for an order under section 18(10) of the

Family Law (Divorce) Act, 1996;

The facts and circumstances of the case, including the legal issues raised and the arguments of the parties, have been

comprehensively set out in the judgement of the Chief Justice. I am in agreement with the Chief Justice that the appeal should

be dismissed to the extent specified in the order which he proposes that the court should make. I do however wish to address

certain of the issues which have been raised in this appeal.

First of all some preliminary observations. It is common case that the discretion conferred on the courts in the exercise of their

jurisdiction to grant a divorce is extremely broad. The very general statement in Article 41.3.2.iii of the Constitution that the

courts must satisfied that proper provision has been made for spouses “having regard to the circumstances” is reflected in the

broad and general manner in which the relevant provisions of the 1996 Act are framed. Section 20 of the Act, which is set out

in full in the judgment of the Chief Justice, describes an extensive range of factors to which the court shall have particular

regard in deciding whether or not to grant a decree of divorce. The weight to be attached to each of these matters will always

depend on the particular circumstances of the case. Often many of the factors mentioned in section 20 will have no pertinence

to the particular case and therefore will not be taken into account. The Oireachtas studiously avoided giving any prescriptive

guidelines as to how the court should deal with the income and assets of the parties in making proper provision for the spouses.

I draw attention to the particularly broad discretion conferred on a court in order to emphasise that while this court may decide

on principles which should guide a court when exercising its jurisdiction under the Act, the very broad discretion conferred on a

judge hearing a case of this nature will still remain to be exercised having regard to the circumstances of any particular case.

Furthermore, it must be borne in mind that this is a case which the Chief Justice has aptly described as an “ample resources

case”, which has the effect of giving full reign to the discretion which a court exercises in such cases. Normally, even in cases

where the parties might be considered to enjoy a substantial decree of financial comfort, the finite resources of the parties will

be an underlying prescriptive factor in the exercise of a discretion as to how those resources can be applied in making proper or

fair provision for both spouses.

The particular circumstances of this case, therefore, are likely to be the exception rather than the rule, something to be borne

in mind when considering how the issues in the case are resolved.

While the facts and the circumstances of the parties are comprehensively set out in the judgment of the Chief Justice I would

like to recall here, in order to put matters in context, some of the salient features of the case as summarised by the learned

High Court Judge in his judgment: -

“The Applicant and Respondent were married on the 29th March, 1980. They have three dependant children of the

marriage. The Applicant is a solicitor by profession while the Respondent is a medical doctor, working as a general

practitioner.

Shortly after their marriage in 1980, the parties moved into a house in ... . At this time the applicant commenced his

legal practice from the family home. In the early years of their marriage the Respondent worked in the Applicant’s

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 Applicants 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.

The 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. ...

The Applicant left the family home in August, 1994... There is no reasonable prospect of reconciliation between the

parties.

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.

…

The Applicant’s total assets were somewhere in the region of £20 million, the majority of which came 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 medical posts, as both parties agreed that

this was more compatible to family life. The Respondent re-entered part-time general practice 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 as a sole general practitioner 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 as a sole general practitioner 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 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.”

As explained by the Chief Justice in his judgment the value of the net assets of the Applicant as of the time of his application

for a divorce to the High Court maybe considered as approximately £14 million. The value of the lump sum award made by the

High Court to the Respondent represents approximately 38% of that valuation.

‘Proper Provisions’ for the spouse

The duty of the courts to ensure that proper provision is made for a spouse before a decree of divorce is granted flows directly

from the provisions of Article 41 of the Constitution and it is in the context of that Article as a whole that the nature and

extent of the duty set out in the 1996 Act must be interpreted. Article 41 of the Constitution provides as follows: -

The Family

Article 41

Article 41.

“1.

1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral

institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis

of social order and as indispensable to the welfare of the Nation and the State.

2. 1. In particular, the State recognises that by her life within the home, woman gives to the State a support without

which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to

engage in labour to the neglect of their duties in the home.

3. 1. The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded,

and to protect it against attack.

2. A Court designated by law may grant of 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 law, and

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

3. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid

marriage under the law for the time being in force within the jurisdiction of the Government and Parliament

established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the

lifetime of the other party to the marriage so dissolved.”

As I have previously had occasion to state the Constitution and in particular Article 41 reflects a shared value of society

concerning the status of the “family” in the social order as a natural primary and fundamental unit group in society. The State is

required to protect the family, inter alia, because it is indispensable to the welfare of the nation and the state. Moreover, the

constitution requires the State ‘to guard with special care the institution of Marriage…’.

With these purposes in mind the constitution as adopted in 1937 contained a complete prohibition on the dissolution of

marriage. The fifteenth amendment to the Constitution, with which we are now dealing, replaced that prohibition and clearly

with those purposes also in mind was placed in Article 41 and specified four pre-conditions which must be fulfilled before an

order dissolving a marriage may be granted. It is in this context that the notion of proper provision for the spouses must be

interpreted.

In acknowledging the nature and status of marriage and the family in society, the Constitution reflects its historical, cultural

and social role underpinned by values common to all religious traditions. This is by no means unique to Ireland and is reflected in

the constitutions of many states and the Universal Declaration of Human Rights, adopted by the general assembly of the United

Nations in 1948.

(See my judgment in North Western Health Board -v- H.W. [2001] 3 I.R. at 736).

Of course society, as always, evolves and continues to evolve and there are a far greater number of committed partnerships

established outside marriage than was heretofore the case. Nonetheless, marriage itself remains a solemn contract of

partnership entered into between man and woman with a special status recognised by the Constitution. It is one which is

entered into in principle for life. It is not entered into for a determinate period. The moment a man and woman marry their bond

acquires a legal status. The relationship once formed, the law steps in and holds the parties to certain obligations and liabilities.

Even where a marriage is dissolved by judicial decree the laws of many if not most states require that the divorced spouses

continue to respect and fulfil certain obligations deriving from their dissolved marriage for their mutual protection and welfare,

usually of a financial nature. This reflects the fact that marriage is in principle intended to be a lifetime commitment and that

each spouse has fashioned his or her life on that premise. If the law permitted a spouse to cut himself or herself adrift of a

marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of the marriage

contract itself and fail to protect the value which society has placed on it as an institution. It would give rise for example to a

complete disregard for the status of a spouse whose principal role in the marriage was working in the home in support of the

other partner who was the principal earner or breadwinner. Hence the constitutional imperative of proper provision for spouses.

The life-long commitment which marriage in principle entails means that there is a mutuality of an intimate relationship in which

singular aspirations in life of each partner are adapted to mutual life goals. They adapt their lives to live and work together for

the mutual welfare of their family which usually, but by no means necessarily so, also involves the birth and rearing of children.

Husband and wife having mutual duties and responsibilities for the welfare of each other and the marriage, will throughout the

marriage, make private decisions as to the role each of them will play in the support of the marriage, the achievement of their

goals and their lifestyle. These decisions are likely to have an effect on their way of life even after the eventuality of a divorce,

such as the capacity of one of them at that stage to establish an independent and secure way of life.

In contemporary society both spouses may work to financially support the family, the husband may support the wife or the wife

may support the husband. Historically of course in this country and in many other countries and it was certainly the position at

the time when the Constitution was adopted, there was usually only one breadwinner in the family, almost invariably the man.

Limited value was often attached to the contribution made to the marriage by a non-earning spouse. She, and it was usually

she, was treated more as simply a dependant rather than a partner when financial provision was made on separation. Her basic

or essential needs tended to be the primary yardstick in such arrangements.

In many marriages one spouse either does not work outside the home, works part-time or works intermittently over the years in

casual or part-time work. All of these private decisions are taken because there is a fundamental importance to the role of

parents in the home and it is frequently seen as desirable for the welfare of the family that one parent should devote most of

his or her time to the home particularly where the rearing of children is involved. While these considerations may apply to either

spouse it must be said that in the vast majority of cases the spouse who gives the primary commitment to working in the home

is the wife.

That was the position in this case. The parties commenced a married life with comfortable but relatively modest resources and

assets. They were young practitioners in their respective professional careers which were initially the only source of the family

income. The Respondent adapted her own lifestyle and limited her own professional career in order to pursue other mutual goals

of the family, namely the establishment and development of a successful solicitor’s practice on behalf of her husband and

looking after the home and the children. At different times and different ways she took an active part in directly helping her

husband to develop his professional practice. By working in the home she facilitated and enabled her husband to give the kind of

commitment necessary to establish such a successful practice.

In my view the work of a spouse in the home, in this case the Respondent’s wife, cannot be a basis for discriminating against

her by reason only of the fact that the husband was the major earner or the breadwinner during the course of the marriage.

The Constitution views the family as indispensable to the welfare of the State. Article 41.2.1. recognises that by her life in the

home the woman gives to the State a support without which the common good cannot be achieved. No doubt the exclusive

reference to women in that provision reflects social thinking and conditions at the time. It does however expressly recognise

that work in the home by a parent is indispensable to the welfare of the State by virtue of the fact that it promotes the welfare

of the family as a fundamental unit in society. A fortiori it recognises that work in the home is indispensable for the welfare of

the family, husband, wife and children, where there are children. In my view in ensuring that proper provision is made for the

spouses of a marriage before a decree of divorce the courts should, in principle, attribute the same value to the contribution of

a spouse who works primarily in the home as it does to that of a spouse who works primarily outside the home as the principal

earner. The value to be attached to their respective contributions in those circumstances is perhaps underscored by Article

42.1. of the Constitution which refers, inter alia, to the “… duty of parents to provide, according to their means, for the

religious and moral, intellectual, physical and social education of their children.”

I would observe in passing that the Constitution, as this court has stated on a number of occasions, is to be interpreted as a

contemporary document. The duties and obligations of spouses are mutual and, without elaborating further since nothing turns

on this point in this case, it seem to me that it implicitly recognises similarly the value of a man’s contribution in the home as a

parent.

This is not to say that in making financial provision for spouses that their assets should be divided between them. Neither the

Constitution nor the 1996 Act requires that, expressly or implicitly. It is rather that spouse, in this case, the wife, should not be

disadvantaged by reason of the fact that all or nearly all of the assets and income in the marriage are those of the other

spouse. It also means that in cases where there are very substantial assets belonging to one spouse which greatly exceed any

conceivable day-to-day needs of either spouse, whatever their standard of living, those assets should not as a matter of

course remain with the spouse who owns them with the other spouse being confined to depending on periodic payments.

I think it is appropriate to recall, for example, two of the factors which the courts is required to take into account pursuant to

Section 20(2)(f) and (g): -

( 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,”

So for example in having regard to the considerations cited above (which have particular relevance in this context but the same

must apply in all other considerations taken into account by the court) the court will not discriminate between the spouses

solely because their contribution to marriage and in particular to the welfare of the family, was of a different nature.

Paragraph (b) of the same provision refers to the financial needs, obligations, and responsibilities which each of the spouses had

or is likely to have in the foreseeable future. But the Oireachtas did not limit the ‘proper provision’ for a spouse solely to his or

her financial needs and responsibilities. The 1996 Act requires regard to be had to all the relevant considerations set out in

Section 20 always with the objective of making proper provision. Proper provision should seek to reflect the equal partnership of

the spouses. Proper provision for a spouse who falls into the category of a financially dependant spouse (where the other

spouse is the source or owner of all or the bulk of income or assets of the marriage) should seek, so far as the circumstances of

the case permit, to ensure that the spouse is not only in a position to meet her financial liabilities and obligation, continue with

a standard of living commensurate with her standard of living during marriage but to enjoy what may reasonably regarded as the

fruits of the marriage so that she can live an independent life and have security in the control of her own affairs, with a

personal dignity that such autonomy confers, without necessarily being dependant on receiving periodic payments for the rest

of her life from her former husband. I say ‘in principle’ because it is evident that in so many cases the resources or

circumstances of the parties will dictate that the only means of making future provision for the spouse in question will be by

periodic payments from the husband. Quite evidently this maybe because, for example, the sole source of income may be a

salary or income from a business or profession. The latter two may have an asset value which needs to be left in the hands of

the earning spouse in order that the income necessary to make proper provision for both spouses can be generated. I therefore

agree with the Chief Justice there is nothing in the Act which prohibits the making of lump sum payments to a spouse when the

court is exercising its jurisdiction in these matters. Indeed, the Constitution would require that this be done if, in the particular

circumstances of the case, the Court considered in its discretion that that was the appropriate manner by which proper

provision should be made for the spouse in question.

In cases of this nature, ‘ample resources’ cases, the payment by one spouse to another of a very substantial lump sum maybe

the appropriate manner in which to ensure that proper provision is made, as I believe is the position in this case. It seems to me

that where substantial assets and income have accrued to one spouse in the course of the marriage the Court should take

them into account in determining the proper provision to be made for the other spouse. It is not so much that there should be a

division of these resources between the spouses. They are available in order to make a proper provision for the other spouse. In

the case of a wife who has worked primarily in the home she is just as entitled as her husband to have, what I have figuratively

referred to as the fruits of the marriage, taken into account by the court in determining what provision should be made for each

of them.

In this case I also agree with the Chief Justice that the very substantial amount of wealth which accrued to the Applicant in

this case after separation and before the application for divorce was properly taken into account by the learned High Court

Judge. That wealth accrued from a very successful transaction involving the purchase of an office block. However, this

transaction was facilitated by the resources available to the Applicant by reason of the fact that over the years a successful

solicitors practice had been established. That is not to say that the resources of one spouse which could be said to have been

acquired completely independent of the marriage should be excluded from consideration by the court. Each spouse has a

continuing obligation to make proper provision for the other and the resources which are available to each of them maybe taken

into account so far as is necessary to achieve that objective. Each case will necessarily depend on its own particular

circumstances. Where there are quite limited resources available it may only be possible to provide for the basic needs of each

spouse. On the other hand different considerations would also arise where one spouse who was independently wealthy before

the marriage and the marriage was a very short duration.

In the course of their arguments Counsel referred to a number of important English decisions interpreting and applying the

relevant English legislation. They were considered relevant not least because the provision of the 1996 Act and in particular

those of Section 20 were clearly modelled on the English Act. Murphy J. has highlighted in his judgment the divergences

between the English Act and the 1996 Act including the fact that the English Act makes provision for a full and final

determination of the financial obligations of the parties when the decree for divorce is granted – the “clean break” provisions. In

my view the decisions of English courts on these matters should be viewed with circumspection. Apart from the divergences in

the legislation highlighted by Murphy J. account must be taken of the fact that the 1996 Act falls to be interpreted and applied

in the light of provisions of the Constitution. Furthermore, there are passages in the English decisions which take account of the

history of matrimonial legislation and of social conditions in England which again may diverge from those which arise in this

country. I hasten to add that where the same or similar issues of law arise in another jurisdiction, in particular a common law

jurisdiction, judicial solutions to similar complex issues such as arise here maybe very beneficial and useful in identifying such

solutions. There are passages in some of the English cases cited in argument by Counsel which articulate considerations or an

approach to the manner in which proper provision should be made for spouses which coincide with the approach to be adopted

under the 1996 Act. For example in White -v- White [2001] (1 AC 596) there is a passage in the judgment of Lord Nicholls which

coincides with the law as I see it in this jurisdiction, where he says “If, in their different spheres, each … contributed equally to

the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in

favour of the money-earner and against the home-maker and the child-carer.” However, for present purposes I do not

consider it necessary to refer to the English decisions.

I conclude therefore that when a court is exercising its discretion in making provision for spouses on an application for divorce:

(i) In making such provision a spouse who has worked principally in the home during the course of the marriage should not

be disadvantaged in the making of such provision by reason of that fact;

(ii) Both spouses are entitled in principle to seek that the provision made for them provides them with a measure of

independence and security in their lives and there is no reason why, in principle, a non-earning spouse should be confined

to periodic payments. The extent to which this can be achieved in practice will depend on the circumstances of the case,

the resources available and the exercise of judicial discretion in taking into account all the factors referred to in Section

20.

(iii) A court has power to direct the payment of lump sum payments where this is considered an appropriate means of

making proper provision for one or other of the spouses.

(iv) In the present case all the resources, assets and income of the Applicant (as well of course the more limited income

and assets of the Respondent) should be taken into account.

Having so concluded I am in agreement with the Chief Justice as to the manner in which proper provision should be made for the

parties in these proceedings and the Order which he proposes in this respect. This includes his ruling on the exclusion of the

misconduct element in this case and his ruling on the pension adjustment.

I also agree that when making proper provision for the spouses a court may in the appropriate circumstances seek to achieve

certainty and finality in the continuing obligations of the divorced spouses to one another. This is not to say that legal finality

can be achieved in all cases and any provision made may be subject to review pursuant to Section 22 of the 1996 Act where

that provision applies. However, the objective of seeking to achieve certainty and ----stability in the obligations between the

parties is a desirable one where the circumstances of the case permit.

Accordingly, I agree with the Chief Justice that the appeal should be dismissed to the extent specified in the Order which he

proposes should be made.