Court clarifies 1989 Act order extinguished only Respondent's succession rights, not Applicant's, due to procedural history.

Record No: 00380/ 1990 Neutral Citation: [2024] IECC 22

AN CHÚIRT TEAGHLAIGH CHUARDA

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT FAMILY COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE JUDCIAL SEPARATION AND FAMILY LAW REFORM

ACT 1989

Between

E.M.

APPLICANT AND

A.M.

RESPONDENT

Judgment of Her Honour Judge Jennifer O’Brien delivered this 7th day of November 2024:

1. This matter comes before the court by way of notice of motion issued on behalf of Ms.

L.M. being the legal personal representative of the Respondent for the purpose of speaking to the minute of the order made by his Honour Judge Spain on 14 February 1991 and in particular clarifying whether paragraph four thereof, which is an order pursuant to section 17 of the Judicial Separation and Family Law Reform Act 1989 is:

i. An order extinguishing both the Applicant’s and the Respondent’s succession rights;

ii. An order extinguishing only the Applicant’s succession rights; or iii. An order extinguishing only the Respondent’s succession rights;

2. The court heard this application on the 14th of October 2024 when counsel for the Respondent’s executrix opened the content of the order of 14 February 1991 which reads as follows: “The Family Law Civil Bill herein coming on for hearing before the Court this day WHEREUPON AND ON READING the pleadings and documents filed herein and on hearing the evidence adduced and what was offered by Counsel for the Applicant and Counsel for the Respondent In accordance with Section 3 of the Judicial Separation and Family Law Reform Act, 1989 the Court doth Grant a Decree of Judicial Separation in respect of the marriage contracted between the parties on 22 March 1971 at St. Monica’s Church, Edenmore, Dublin on the grounds as set out at Section 2.1(f) of the Judicial Separation and Family Law Reform Act, 1989 and the Court doth make the following Ancillary Orders:

1. No Order under Section 14 of the Statute.

2. An Order adjourning the matter generally with liberty to re-enter in respect of section 15.

3. An Order pursuant to section 16(2) of the statute conferring on the Plaintiff the right to occupy the family home and the Court doth refuse to make an Order excluding the Defendant from the said family home.

4. Make Order pursuant to section 17.

5. No Order as to costs.

6. Grant liberty to amend the Defence and to lodge a Counterclaim.

3. Section 17 of the 1989 Act provides as follows:

1) “On granting a decree of judicial separation, or at any time thereafter, the court shall, on the application of either spouse, consider whether it should make an order extinguishing the share that either spouse would otherwise be entitled to in the estate of the other spouse as a legal right or on intestacy under the Succession Act, 1965.

2) The court shall make an order extinguishing the share that a spouse would otherwise be entitled to in the estate of the other spouse as a legal right or on intestacy under the said Act of 1965 if—

(a) it is satisfied, having regard to the provisions of section 20, that adequate and reasonable provision of a permanent nature has been made to provide for the future security of the spouse whose succession rights are in question, or

(b) it is satisfied, having regard to the provisions of section 20, that the case is not one where provision of a permanent nature requires to be made for the future security of the spouse whose succession rights are in question, or-

(c) the spouse whose succession rights are in question is not a spouse for the support of whom the court, having had regard to the provisions of section 20 (including subsections (2)

(i) and (3)) made an order under section 14, 15 or 16 (a), or

(d) it is satisfied that the spouse whose succession rights are in question is not a spouse for the support of whom the court would, having regard to the provisions of section 20 (including subsections (2) (i) and (3)), make an order under section 14, 15 or 16 (a) if an application were made to it in that regard.”

4. Section 15 of the 1989 Act provides for property adjustment orders, and it is noted that the face of the 1991 Order envisages liberty to re-enter the matter in respect of this issue. It is also noted that the face of the order provides that the Respondent may amend his defence and lodge a counterclaim.

5. The court was brought through the various affidavits filed in the matter. The affidavit of Annette McLaughlin for instance confirms that the court made no order for periodic or lump sum payments under section 14 of the Act. The affidavit recites the other orders made in 1991. It was noted that following the grant of a decree of judicial separation the parties did not reconcile, nor did they obtain a decree of dissolution of their marriage pursuant to the Family Law (Divorce) Act 1996, albeit such proceedings had commenced. The Respondent passed away on 18 April 2018 and his last will was duly proved by Ms. L.M. and in this regard the court was furnished with a copy of the grant of probate. There are also ongoing proceedings pursuant to section 117 of the Succession Act 1965, asserting that the Respondent failed to make proper provision for three of Ms. M's siblings. As such for the purpose of dealing with those proceedings and also more generally for the purposes of administration of the Respondent’s estate it is necessary to ascertain whether the Applicant’s succession rights were extinguished by the 1991 order.

6. The Applicant contends that only the Respondent’s succession act rights were to be extinguished, whereas the executrix's view is that both the Applicant’s and the Respondent’s succession act rights were extinguished. As such it is necessary to speak to the minute of the order with a view to clarifying what the court intended. Efforts were made to obtain information in relation to the circumstances in which the order was made and it was discovered that the Applicant subsequently commenced divorce proceedings by way of family law civil bill issued on 18 May 2005 and copies of those pleadings are provided to this court. Contact was made with other solicitors previously instructed in the matter, but each firm had long since destroyed their files.

7. On reading the family law civil bill for divorce, the court notes that there was a maintenance order in favour of the Applicant in respect of the dependent children and the Applicant. The Applicant contends that the Respondent unilaterally reduced maintenance payments in April 1990. It was the defence of the then Respondent that he denied unilaterally reducing maintenance but rather it is pleaded that the Applicant was refused personal maintenance at the hearing of the judicial separation proceedings on 14 February 1991 on the grounds of her adultery and the fact that she was cohabiting with another man at the family home. It is also denied that the Respondent ceased making maintenance payments for the dependent children. The Respondent states that he had to take on the responsibility of discharging the mortgage himself directly as the Applicant had not made the repayments for a period of seven/ eight months. It is noted that at paragraph thirteen of the civil bill in the application for divorce the Applicant seeks an order pursuant to the provisions of section 14 of the Family Law Act 1995 extinguishing the right that either party would otherwise have to a share in the estate of the other as a legal right or intestacy under the Succession Act.

8. The Applicant also lodged an affidavit in these proceedings in which she avers that at 75 years of age she finds the attempt at reactivation of the judicial separation proceedings both distressing and upsetting. She says she objects to the application brought by her daughter for the purpose of speaking to the minute of the order. She avers that her separation from her late husband commenced with a barring order and then an application for judicial separation. She says that she has never signed anything in relation to giving up her legal right share to her late husband's estate and she avers that any blocking order that was made during the judicial separation hearing was against her late husband only. She says that the same issue arose in the subsequent divorce proceedings which were never finalised.

9. The court has also had the benefit of two affidavits filed on behalf of experts for each party. Ms. Jane Barron BL on behalf of the Respondent’s executor confirms that she's been asked to set out her view as an expert in respect of the section 17 orders. She opines that at the time in 1991 the usual practice of the court was to extinguish parties’ respective rights pursuant to the Succession Act 1965 as against each other. She says that she can only recall one case since 1989 in which she was counsel for the party where the court only extinguished one party's rights and left the other party’s intact. In her experience, the court very rarely extinguished one side’s rights without also extinguishing the other side’s rights. She said that the court order as set out in paragraph

4 does not identify whose rights were extinguished. In her experience this was the usual way in which these orders were drafted on the Dublin circuit when the orders were mutual. She said that if only one of the parties’ rights were extinguished the order would specify the identity of that party.

10. The Applicant swore a further affidavit which sets out matters that are potentially more appropriate for a legal opinion. The court also has the benefit of the affidavit sworn by Mr. Paul McCarthy SC in which he opines having considered the papers, that he cannot agree with Ms. Barron BL’s certainty in her interpretation of the order. He confirms that the Act commenced on 19 October 1989. That the Applicant having instructed her solicitors in 1990 (record number 308) to issue proceedings, he says in those circumstances the proceedings were among the first of their kind to be determined pursuant to the Act. He's of the opinion that it is difficult at this remove to recollect what, or whether any, practices had developed in the manner of the operation of the Act by February 1991. He says that the invariable mutual extinguishment of succession act rights with which present day practitioners are familiar, may not have been as prevalent in the early days of the operation of the Act as it is now. He says that it is not beyond his experience that mutual waivers are not granted, although he does acknowledge that this is more the exception than the rule in modern practice. He refers to the plea contained in the defence and counterclaim to the 2005 divorce proceedings to the effect that the Applicant was refused personal maintenance in the judicial separation proceedings because she was cohabiting in the family home with another man. He says this illustrates a norm which may have applied in 1991, which would jar to the ear of a modern family lawyer. He says it serves as a reminder of just how difficult it is to remember ‘norms’ of another age and to apply present day sensibilities to practices thirty-two years ago.

11. He notes that there is no wording such as ‘mutual’ or ‘cross order’, contained in the order, wording which one sees in orders of the court with regularity in present day practice. He says this is suggestive that no invariable practice as to how succession act rights were dealt with had grown up at this time. He sets out the provisions of section 17 which are set out earlier in this decision.

12. Importantly Mr. McCarthy SC points out that at the time of the hearing on 14 February 1991, the Respondent had no claim for ancillary relief pending before the court as leave was sought to amend his defence and to lodge a counterclaim. In other words, he had not, by that time, sought the extinguishment of his wife's rights in his estate qua spouse.

Mr. McCarthy SC is of the opinion that having regard to the wording of the section, and there being a defence (to be amended) and no counterclaim, it is difficult to see how the court could, on the basis of the pleadings and in the absence of any hearing, have satisfied itself as to whether “adequate and reasonable provision of a permanent nature has been made to provide for the security of the spouse whose succession rights are in question.” Indeed, he says it seems that to that point no real provision of any sort had been made for Mrs. M. other than she was given a right to reside in the family home, and even then, not exclusively.

13. In Mr. McCarthy SC’s opinion, all of this is suggestive of a case no more than half dealt with in substance, with a clear expectation on the part of the court that it would be fully resolved once the defence was amended, a counterclaim brought forward, and the case re-entered in the list. He says the singular nature of the word order is on it’s face more consistent with the extinguishment only of Mr. M’s rights vis-à-vis Mrs. M's estate, than a mutuality of extinguishment, in which case one might reasonably have expected to see the words orders (plural). He says that having regard to the surrounding circumstances that we can divine from the papers, and as outlined above, he is of the view that there is a strong argument to be made that the order means what it says, and that the only extinguishment of succession act rights the court could make and did make was in favour of the only person before the court who had sought such an order. In his view on the balance of probabilities, the extinguishment was directed at the rights of Mr. M in the estate of his spouse and not otherwise.

14. The court has also considered the affidavit sworn by Ms. Roisin Smyth.

15. Decision: Commencement of the Judicial Separation and Family Law Reform Act 1989 remains a pivotal moment in the development of modern Irish family law. Prior to that enactment, the only application available to a spouse was for a Divorce a Mensa et Thoro and for maintenance relief pursuant to the 1976 Act. The Family Home Protection Act 1976 introduced some protections surrounding the family home;

however, transfer of property was not available other than by agreement of both parties.

16. Such an application for a Divorce a Mensa et Thoro was merely for “bed and board”, the parties remained married, and no application could be made for property adjustment orders nor indeed for the extensive ancillary relief orders which are now available pursuant to the provisions of the 1995 and 1996 Acts. The 1989 Act introduced for the first time the possibility of applying for property adjustment orders and provision from capital assets for a dependent spouse. The later introduction of the Family Law Act 1995 and the Family Law (Divorce) Act 1996 had the 1989 Act as their foundation and those enactments expanded on the remedies available to both spouses in the event of marital breakdown. The practice of family law in Ireland has developed in an extraordinary manner since those early days. In 2010, the enactment of the Civil Partnership & Rights & Obligations of Cohabitants Act was quickly followed in 2015 with the

introduction of same sex marriage.

17. Some thirty-five years later, many divorce and separation orders are drafted in a very particular format, with which family law practitioners are familiar and very often, such orders whether on consent or otherwise contain clauses dealing with mutual extinguishment of Succession Act rights. Having said that, it was never a case of treating all cases and each spouse in an identical manner. It is always necessary to consider the particular circumstances of the case and the requirements of each spouse as read against the factors set out in the legislation. There is also the more recent phenomenon of lay litigants approaching the court having drafted their own terms. As such the Court must of necessity consider whether terms as drafted are capable of being ruled by the Court and indeed, whether is it appropriate to do so, in all the circumstances and having regard to the factors set out in the legislation. The Court must also consider the relative sense of its own orders in the context of making proper provision (or adequate provision as it then was for the purpose of the 1989 Act) for each of the spouses and their children.

18. It strikes this Court, on reading the content of the Order of 14 February 1991 that many things are left unfinished. While the Court grants a decree of judicial separation same was granted on a no-fault basis such that there had been no normal marital relationship between the parties for a period of one year. As such, this Court does not agree with the proposition put forward on behalf of the executrix that a determination was made against the Applicant on the basis of her behaviour, as outlined in the subsequent divorce proceedings, or at all. The Court goes on to adjourn the important matter of making capital provision for the dependent spouse and grants liberty to re-enter in respect of section 15, that is the section providing for property adjustment orders. To my mind this is a critical issue as the then provisions of section 20 (1) of the Act provide “in deciding whether to exercise its powers under section 13, 14, 15 or 16(a) or (b) of this Act and, if so, in what manner, the court shall seek to ensure that such provision is made for any spouse and for any dependent child of the family as is adequate and reasonable having regard to all the circumstances of the case.” That section goes on to provide the matters to which the Court should have regard to in making it’s determination. In the particular instance, we have the court adjourning consideration of that aspect of the matter and merely making an order under section 16 (a) conferring on the Applicant the right to occupy the family home and not even giving her an exclusive right of residence, which does not sit well with the subsequent case law in this area.

19. It seems to me that the Court took the approach of providing for the Applicant in those proceedings at a minimum level in the sense that a mere right of occupation was conferred on her in the family home and noting that her application for a property adjustment order was adjourned. There is to my mind a correlation between transfer of capital and extinguishment of legal rights. This aspect, in combination with the fact that the Respondent was granted liberty to amend and to lodge a counterclaim, leads to the

conclusion that these proceedings were not considered by the Court to be determined in a final manner on 14 February 1991. It was clearly anticipated that further applications would be made to the court. This Court is of the opinion that given the Respondent did not even have an application before the Court for the purpose of seeking extinguishment of his wife’s succession act rights (or indeed anything else), it was not within the Court’s remit to grant relief that had not been sought. As such, it is the determination of this Court that the order made pursuant to section 17 could only have been made against the Respondent husband, as the Applicant was the only party who had sought any relief at that point in time. Further applications on behalf of the Respondent were anticipated however, no such applications were made.

20. While the Court is respectful of Ms. Barron BL’s legal opinion in the matter, the Court agrees with Mr. McCarthy SC that at this particular juncture, no usual practice had evolved as the legislation was still in its very early days. As such the Court makes a determination on the application to speak to the minute of the order such that the intention was to make an order pursuant to section 17 against the Respondent only, given the particular circumstances and given that no permanent property provision had actually been made on the face of the judicial separation order. The unfinished nature of the order here leads this Court to the determination set out above.

Appearances: Eamon Power BL for the Applicant instructed by Shanley Solicitors LLP. Angus Buttanshaw BL for the Respondent instructed by O’Donohoe Solicitors.