Divorce decree denied due to lack of separation proof; judicial separation granted for non-cohabitation.

[2025] IEHC 340

RECORD NO.: 2022 64M

THE HIGH COURT

FAMILY LAW

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

BEWEEN:

R. L.

Applicant

AND

M. R.

Respondent

Judgment of Ms. Justice Nuala Jackson delivered on the 3rd June 2025.

INTRODUCTION

1. The Applicant wife comes before me seeking a Decree of Divorce and ancillary reliefs in the context of making proper provision for the parties and their child, as required by Article 41 of Bunreacht na hÉireann and the Family Law (Divorce) Act, 1996 (“the 1996 Act”). The Respondent, who was legally represented at an earlier point in the proceedings, did not file a replying Affidavit or submit any counterclaim prior to the commencement of the hearing herein and, indeed, the matter, which was heard over a long number of days, proceeded on the basis that the Decree was not being opposed by the Respondent (although the statutory proofs obviously had to be proved by the Applicant) until some way into the cross-examination of the Applicant by the Respondent, who appeared as a litigant-in-person at the hearing. When his opposition to the granting of a Decree of Divorce was advanced, I invited him to file a replying Affidavit setting out his position and he did so in an Affidavit sworn on the 4th July 2024. In this context and thereafter, the position of the Respondent has been that the Applicant is not entitled to a Decree of Divorce and he advances no counterclaim. The Applicant, having become aware of the opposition of the Respondent to a Decree of Divorce, indicated that, if the Respondent’s claim in this regard was successful, she would seek a Decree of Judicial Separation on the grounds that no normal marital relationship had existed between the parties for in excess of twelve months prior to the institution of proceedings together with ancillary reliefs in that context as provided for by the Family Law Act, 1995 (“the 1995 Act”). I have jurisdiction to deal with this matter as an application for judicial separation pursuant to section 39(2) of the 1996 Act.

2. Therefore, the issues to be determined are:

i. Are the requisite proofs for the granting of a Decree of Divorce satisfied in this case? I have concluded that they are not.

ii. If not, are the requisite proofs for the granting of a Decree of Judicial Separation pursuant to section 2(1)(f) of the Judicial Separation and Family Law Reform Act, 1989 (“the 1989 Act”) (or otherwise) satisfied in this case? I have concluded that such proofs are satisfied.

iii. If the answer to either (i) or (ii) above is ‘yes’, what are the appropriate ancillary reliefs to be granted pursuant to the 1996 Act or the 1995 Act? This is considered below.

3. If the responses to 1 and 2 were in the negative, there would be no entitlement to either a Decree of Divorce or Judicial Separation and, the financial/child provision reliefs being ancillary to such a Decree as arises, there would likewise be no entitlement to any ancillary relief orders.

4. I therefore intend to first examine the marital relationship of the parties and the marital and relationship history of the parties in order to assess whether or not an entitlement to a Decree of either nature has been proved.

HISTORY OF THE MARRIAGE AND RELATIONSHIP OF THE PARTIES

5. I believe that it is fair to state that this case involves a relationship of considerable duration and a short marriage. The parties have known each other for very many years and it is common case that they had a successful friendship prior to any relationship commencing. The Applicant commenced employment in the family business of the Respondent in or about 2001. A romantic and emotional relationship commenced between them in or about 2008/9 (the Respondent contended that it commenced even earlier but nothing turns on this) and their child was born on the

25th July 2011. At the time of the commencement of their relationship, the Applicant was residing in a property in County Meath which she had purchased jointly with her sister. The Respondent was residing in a property which he owned in Dublin. In or about 2010, the Applicant moved in to reside with the Respondent in his property and her property was rented out and the rent was applied towards the discharge of mortgage repayments thereon and the upkeep of the said property.

6. Within a short period after the birth of their child, in or about December 2011, the parties moved to reside in a property in County Kildare. This was a comfortable and desirable residence. It would appear that this property was purchased by a company within the group of family companies with which the Respondent is integrally involved. The parties and their child continued to reside in this property until it was sold in the context of financial difficulties experienced by the Respondent’s family business. The extent of habitation in it by each of them is disputed but they both continued to have some involvement with it until it was disposed of.

7. The relationship between the parties was not without challenge and there was largely undisputed evidence of significant acrimony resulting in the parties attending counselling prior to marriage.

8. The parties married in Scotland on or about the 5th May 2018. They continued to live in the Kildare house thereafter. It is common case that the marriage was never consummated but there is no suggestion that any issue of nullity arises in the context of physical incapacity. It would appear that, at least in the early stages of the marriage, there was a close bond of friendship between the parties largely derived from their long history together and their joint love for and commitment to their child.

The evidence in relation to the immediate post-marital situation was somewhat opaque, however, having carefully analysed the positions of both parties, it does not appear that there is very significant disagreement between the parties in this regard although there are some divergencies between them. It would appear that the parties shared a bedroom within the family home until in or about November 2019. It is clear that there was a change of arrangements at that time which involved the Applicant moving to a bedroom in another part of the family home. The Respondent in his evidence placed little significance on this change in arrangements. The Applicant placed considerable significance upon it. I will consider the evidence of them both below but it is my view that there was a change in the nature of the relationship at this time. I cannot on the evidence which I have heard conclude that the parties commenced living apart at that time as there continued for some time thereafter to be some level of communal activities between them. However, the nature of the marital relationship would appear to have altered at this time.

9. It is common case that the Applicant moved back to her property in Meath in or about February 2020. She asserted that the parties had lived apart in the same property from November 2019 and that they had lived apart in different residences since February 2020. The Respondent disputes this and states that they continued to live together with the Applicant spending considerable periods of time in the Kildare house thereafter and he spending considerable periods of time in the Meath house.

In terms of the precise living arrangements of the parties, the Respondent was very detailed in his evidence and he adduced additional evidence in support of his contentions in relation to the living arrangements of the parties. I found his evidence in this regard to be compelling.

10. The Respondent accepts that the parties’ relationship entirely severed in or about November of 2021, subsequent to which date there would appear to have been a significant deterioration in relations.

11. The Special Summons in this case issued on the 2nd June 2022 and, in consequence, the Respondent asserts that there was not the requisite two years living apart or one year lack of normal marital relationship prior to that date. The Applicant asserts that the parties have lived apart from late 2019 or, at the latest, March 2020 when she moved to reside in her residence in Meath and therefore that she is entitled to a Decree of Divorce. The Applicant, in the alternative, asserts a lack of normal marital relationship from late 2019/early 2020.

THE EVIDENCE OF THE PARTIES

12. Both parties swore affidavits as to the substantive case and both gave oral testimony.

It is common case that there was a change in the sleeping arrangements in the family home in November 2019. It is common case that the Respondent was prescribed medication for stress at this time. It is also clear that there was some difficulty arising from the lack of sexual relationship of the parties and this was addressed through medication also. The seriousness of these issues is disputed between the parties.

Their oral testimony was in line with their positions on affidavit.

13. The following events appear most pertinent.

14. The parties altered their living arrangements within the family home from November 2019. At this time, the Respondent was suffering low mood and the Applicant was experiencing disillusionment with the relationship.

15. The tenant in the Applicant’s property was asked to leave in or about January 2020.

While the tenant was unsatisfactory and the request was influenced by this, it is clear that the Applicant did not relet the property but rather renovated it for her own use.

It is common case that the property had, prior to this, been rented for many years and the rent used to assist with mortgage repayments.

16. The parties and their child holidayed together in Portugal in February 2020 and in July 2021. Evidence of travel documents was provided.

17. The parties had two short holidays in Ireland together with their son in June 2021.

Independent verification of this was provided by the Respondent. The payment method was revealed in only one such document and indicated payment by Mastercard. I was provided with a very limited number of statements for a Mastercard in the name of the Respondent but none of these related to a period post April 2019.

18. The parties and the child shared a bedroom together on all of these holidays and there was no intimacy between the parties.

19. There were some financial transactions between the parties in early 2020 demonstrating an increase in the income being paid to the Applicant and a reduction in the income being paid to the Respondent (payslips were provided). This supports the Respondent’s evidence that the parties were seeking to strengthen the Applicant’s borrowing potential at that time. The Applicant contends that monies were given to her at that time by the Respondent by way of gift to be used in the improvement and renovation of her property while the Applicant denies this. Monies were given but the Respondent denies that these were a gift and asserted in his Affidavit of Means that these were by way of loan, the monies being given over for “safe-keeping”.

Overall, I believe that the primary objective of the Respondent at that time was to preserve the funds from the pursuits of his creditors. I do not believe that any definitive loan/gift delineation was made. However, the Respondent was aware that the tenant had left and was not being replaced and that the property had been left in bad condition. If the relationship was continuing, it is to be assumed that he would have been aware of the works being carried out to the property. He would have been aware that these had to be paid for and it was likely that the monies concerned were being used for this purpose. If he was not so aware, this speaks to the separate existences of the parties. I am also mindful that the Applicant’s residence and the mortgage attaching thereto are in the joint names of the Applicant and a family member. These transactions are consistent with steps being taken to assist the Applicant getting mortgage approval but whether this related to regularising the position concerning her own property or the acquisition of another property is unclear. What cannot be disputed is that the monies have been used to achieve a comfortable and secure home for the parties’ child.

20. The Respondent contended that further monies were wrongly and without his knowledge taken from the family business and lodged by her to accounts in her name or under her control. The Applicant’s evidence was that the Respondent knew of these payments. A schedule of such payments was provided. I do not find the allegations in this regard proved by the Respondent. The dates concerned were primarily in 2019 and a long list of same was provided. I find it incredible that business people such as the Respondent and his siblings would not have been aware of payments of the regularity contended for and, additionally, I note that no demand for repayment was ever received by the Applicant and the claim seems to have only been vigorously pursued in the context of acrimonious matrimonial litigation.

21. It is clear that there was very regular travel by the Respondent to the Applicant’s house indicating sojourns spent there. Toll road receipts were provided. This continued throughout the summer and early autumn of 2021.

22. Likewise, prior to the loss of the family home in May 2021, there was regular time spent by the Applicant in the family home. Much was made of her being present in that property during the Covid pandemic and when the family ultimately moved out in May 2021.

23. However, it is clear that the relationship between the parties was such that, having altered the living arrangements within the family home in late 2019, the Applicant took steps to have her own property available for her use in early 2020 and thereafter did not rent it but renovated it and readied it to be a home for herself and the parties’ child thereafter. While the threats to the family home from financial institutions were operative at these times, the loss thereof was not imminent as that property was not lost until May 2021, 17 months later.

24. Steps towards mediation were taken in early 2022 (although some documentation provided to me in the form of emails indicates mediation at an earlier date, towards the end of 2021) and the issuing of proceedings appears to have followed on from a lack of success in this regard.

25. It is clear that there was employment friction from November 2021.

26. An email from Applicant to Respondent concerning arrangements for the child in April 2021 was provided to me. The language is not that of a normal marital couple.

It makes suggestions for a separation of time which each would spend with the child and references the parties being “not able to communicate”. There are other communications which are demonstrative of a lack of normalcy also (I reference the email from [REDACTED]in March 2021).

27. The bank account statements provided to me did not support the maintenance payment history deposed to by the Applicant.

28. There is no doubt that the parties have lived apart since in or about October/November 2021. Evidence of the Respondent taking a lease of a residential property at that time was provided.

THE LAW

29. Is the Applicant entitled to a Decree of Divorce or Judicial Separation or neither?

DIVORCE

30. Article 41.3.2 of Bunreacht na hÉireann states:

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

(i) there is no reasonable prospect of a reconciliation between the spouses,

(ii) 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

(iii) any further conditions prescribed by law are complied with.”

31. On the facts of this case, there is no doubt that (i) above is satisfied and that proper provision can be addressed in the context of proceedings. The further conditions prescribed are addressed in section 5 of the 1996 Act.

32. Section 5 of the 1996 Act (as amended) requires: “(a) 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 two years during the previous three years,

(b) there is no reasonable prospect of a reconciliation between the spouses, and

(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family”.

33. This requires that the parties be “living apart” for two years in the three years prior to the institution of proceedings (section 5(1)(a) of the 1996 Act). The interpretation of this term was clarified when the 1996 Act was amended in 2019 such that section 5(1A) of the 1996 Act now provides:

“(1A) For the purposes of this section –

a) spouses who live in the same dwelling as one another shall be considered as living apart from one another if the court is satisfied that, while so living in the same dwelling, the spouses do not live together as a couple in an intimate and committed relationship, and

b) a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.”

34. The legal standards applicable to a finding of living apart have been considered by the courts and by academic commentators.

35. In McA v McA [2000] 1 IR 457, McCracken J. makes it clear that parties may live “apart” within the same residence. He was satisfied that in the same way two people can live apart and still maintain a loving and committed relationship, two people could also live together without being in a marital relationship – it depends on the intentions of the parties. What degree of segregation within that single residence is necessary to satisfy the statutory and constitutional proofs required for divorce? It appears from the authorities that this question has a physical and an intentional aspect.

McCracken J. stated:

“The parties slept in separate bedrooms and never resumed sexual relations. They did on several occasions go away on holidays with the children, but again slept in separate bedrooms while on holiday. When they were in the house together they appear to have had what might be called a civilised relationship, in that they were polite to each other and if both were present at mealtimes would take their meals together. When he was at home, the Respondent would tend to go to bed, or at least to his room, early and watch television and he had a separate telephone line installed into his room.”

36. He went on to observe:

“It must be born in mind that the right to a divorce in this country is a constitutional right arising under Article 41.3.2 of the Constitution, and that the 1996 Act sets out the circumstances under which such a constitutional right may be exercised. In construing the Act the court must have regard to the context in which words are used, namely the termination of a matrimonial relationship. Marriage is not primarily concerned with where the spouses live or whether they live under the same roof, and indeed there can be a number of circumstances in which the matrimonial relationship continues even though the parties are not living under the same roof as, for example, where one party is in hospital or an institution of some kind, or is obliged to spend a great deal of time away from home in the course of his or her employment. Such separations do not necessarily constitute the persons as living apart from one another. Clearly there must be something more than mere physical separation and the mental or intellectual attitude of the parties is also of considerable relevance. I do not think one can look solely either at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other.”

37. Considering the McA decision, Shannon in “Divorce Law and Practice” (Round Hall Press, 2007) states at paragraphs 3-18 and 3-19:

“In essence, this is a mixed test: one that encompasses an objective element, though it is primarily subjective in any case where the parties have physically separated. If one cannot look solely at physical separation then the real determinant becomes mental attitude, which must be subjective. ...

3-19 In summary, following the McA judgment, it appears that “living apart”

means something more than physical separation; the mental attitude of the parties is of considerable relevance. “Marriage”, post McA, is not concerned with where the parties live or whether they live under the same roof, and just as physically separated parties can maintain a full matrimonial relationship, parties who live under the same roof may live apart from one another.”

38. Most recently in R v M [2023] IEHC 748 (Jordan J.) stated:

“12. Although living in the same house, the Court is satisfied that the applicant and the respondent ought to be considered as living apart from one another since July 2017 because the Court is satisfied that the applicant and the respondent have not lived together as a couple in an intimate and committed relationship since July 2017.”

39. He continued:

“Where the parties have continued to live under the same roof the court must obviously look at their mental attitude to the marriage for a period of, or periods amounting to, at least two years during the previous three years. In this case, the evidence is that the applicant has her bedroom upstairs and the respondent has his bedroom downstairs. The evidence is that they stay in their bedrooms mostly except when they have to eat – and they do that separately. There has been no intimate or committed relationship for years and the parties do not spend time together when in the family home. They did go on holidays in 2018 because the children wanted to go. Subsequently the applicant has taken the children separately and the respondent has taken the children separately on holidays. They do not go on family holidays. The evidence is that there is no prospect of a reconciliation – “ no, never” according to the applicant. Furthermore, the respondent apparently spends a lot of time away – four days in the week he stays with friends – on long weekends or whatever. The evidence is that the applicant and the respondent live their own lives – rarely talk – and effectively lead entirely separate lives although living and sleeping under the one roof. The applicant and the respondent avoid using the kitchen at the same time. The respondent uses the downstairs bathroom. The applicant eats in her bedroom and the respondent eats in his bedroom although one of them might eat in the kitchen with the children if the other is not present. The family members look after their own laundry. There cannot be any doubt but that these living arrangements are difficult and stressful for the applicant and the respondent. Nor can there be any doubt but that these living arrangements are the result, in part at least, of the housing crisis and difficulties in either party securing suitable alternative accommodation at an affordable cost.” JUDICIAL SEPARATION

40. Section 2(1)(f) of the 1989 Act provides that a Decree of Judicial Separation may be granted in circumstances where:

“the marriage has broken down to the extent that … in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”

41. This ground for the granting of a Decree of Judicial Separation has been considered by the courts on a number of occasions, albeit that these cases are somewhat historic and some of the dicta in them are indicative of a different social era.

42. In TF v. Ireland [1995] 1 IR 321 this matter was considered by this Court (Murphy J.):

“I would respectfully agree that the concept of the “breakdown” of a marriage is difficult to define. The constituents of a valid marriage and the elements which must continue to exist to enable it to be described as a functioning marriage — as opposed to one which has broken down — are difficult to define and no doubt the particular elements will exist in different degrees in different marriages. The concept of marriage as “a partnership based on an irrevocable personal consent given by both spouses which establishes a unique and very special lifelong relationship” was referred to by Costello J. in Murray v. Ireland [1985] I.R. 532, at page 536. The necessity for a physical capacity to consummate the marriage too has long been recognised but it was in more recent years, and in particular in the decision in D. v. C. [1984] I.L.R.M. 173 at p. 189 that Costello J., in a passage subsequently approved by the Chief Justice in U.F. (orse. U.C.)

v. J.C. [1991] 2 I.R. 330 at p. 357, recognised other essential ingredients in the following terms:— “But marriage is by our common law (strengthened and reinforced by our constitutional law) a lifelong union, and it seems to me to be perfectly reasonable that the law should recognise:—

(a) the obvious fact that there is more to marriage than its physical consummation, and

(b) that the lifelong union which the law enjoins requires for its maintenance the creation of an emotional and psychological relationship between the spouses. The law should have regard to this relationship just as it does to the physical one. It should recognise that there have been important and significant advances in the field of psychiatric medicine since 1870 and that it is now possible to identify psychiatric illness, such as for example manic depressive illness which in some cases may be so severe as to make it impossible for one of the partners to the marriage to enter into and sustain the relationship which should exist between married couples if a lifelong union is to be possible.”

In proceedings for a declaration of nullity of marriage these qualities and capacities are constantly analysed in medical terminology whether relating to physical, mental or emotional conditions. Perhaps in other circumstances and in other contexts one might find the corner-stone of marriage identified equally effectively, as it was in the evidence of Dr. O’Byrne, as being “love” and “trust”.

It seems to me that the breakdown of marriage, though difficult to define, presupposes the previous existence of a functioning marriage and then the loss or even the conscious and deliberate withdrawal by one of the spouses of an essential ingredient or component of the marriage which brings about the breakdown. It is not necessary to identify how or when or for what reason the marriage broke down to satisfy the requirements of the Act but it must be proved to the satisfaction of the court, on the balance of probabilities, that it did so.”

43. He continued:

“It seems to me that that principle is applicable in the present case to the extent to which the word “breakdown” might be appropriate to describe a variety of conditions or problems within marriage. It seems to me, having regard to the impact which an order may have on a non-consenting party, that it should be limited in its application to a breakdown which involves the loss of an essential ingredient of the marriage with and to the extent — as stated in the section — that a normal marital relationship has not existed for a period of at least twelve months. But in my view it must be recognised that such an essential ingredient includes the consent of either party because the implacable opposition of one or other of the spouses to the continuation of the marriage — however unjust or unreasonable — must destroy the fundamental relationship.”

44. On appeal to the Supreme Court, Hamilton CJ stated:

“Before a decree for judicial separation can be made pursuant to s. 3, sub-s. 1 of the Act on the grounds specified at s. 2, sub-s. 1 (f) the court must be satisfied in all the circumstances that the marriage has broken down to the extent that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of application.

Consequently, this sub-section purports to deal with a situation existing between spouses who have not had a normal marital relationship for at least one year preceding the date of the application and in respect of whom the court is satisfied that the marriage has broken down to that extent.

It is clear that under s. 2, sub-s. 1 (f) all the court is entitled to look at is whether a normal marital relationship has not existed for the relevant period. It is not entitled to consider what caused this to occur. It follows that the party who was responsible for the breakdown in the relationship could rely on this ground and seek a decree against the other spouse.

It was submitted that in permitting this to happen the State would be failing totally to guard with special care the institution of marriage and in its duty to the other spouse to guard his or her marriage with special care by introducing a ground for a decree of judicial separation which would be totally unfair to the other spouse.

The effect of a decree of judicial separation is that it is no longer obligatory for the spouses who were parties to such proceedings to cohabit.

The cohabitation of the spouses is undoubtedly a significant element in any marriage. Cohabitation is part and indeed, save in exceptional circumstances, an important part of a normal marital relationship but must be based on a loving and caring relationship.

Cohabitation can no longer be enforced or made obligatory and must be based on consent.

If one spouse withdraws consent then cohabitation cannot be enforced even if such spouse withdraws consent for selfish or irrational reasons. An important ingredient of the normal marital relationship has been removed though the bond of marriage remains. In enacting the Act, the Oireachtas has recognised the concept of breakdown in marriage and the cesser of normal marital relations between spouses and has provided that, irrespective of blame, either spouse can apply for a judicial separation.

This means that the application could be brought by the party responsible for the deterioration in the spouses’ relationship. Such party might, in breach of the obligations arising out of the contract on which marriage is based, have withdrawn consent to the continuation of the marriage. And notwithstanding his or her being in breach of the marriage contract, and so having given rise to the absence of a normal marital relationship for the necessary period, the party in default would be entitled to obtain a decree of judicial separation.”

45. In MM v CM 1993 WJSC-HC 3949 O’Hanlon J. stated:

“I do not propose to apportion blame for the break-down of the marriage between the parties as I do not consider that it serves any useful purpose at this stage to do so, and it might well exacerbate the feelings of hostility which the husband and wife have at times felt for each other. From what has been said already it will be seen that I consider that there was, from the outset, a substantial failure on both sides to face up to the demands of the married state and to work together for the happiness and welfare of all the family and the events of the past few years have only been the culmination of that process and not, in reality, a new departure on either side.”

46. In JD v. PD 1995 WJSC-HC 356 the High Court (Lynch J.) considered this ground and stated:

“Both parties are strong-willed and intelligent persons and I am satisfied that for a considerable time before their eventual separation on the 31st December, 1992 there were clashes of will of an increasingly serious nature between them which culminated in the husband leaving the family home to reside elsewhere on the 31st December, 1992. Despite attempts at mediation, the parties have lived separately since then. Since thus leaving the family home but not before the husband has committed adultery. I am also satisfied on the probabilities that although the husband did not leave the family home until the 31st December,

1992, a normal marital relationship had not existed between the parties for some time before that and in fact from before the 26th November, 1992 so that such a normal relationship did not exist for a period of at least one year preceding the date of the Special Summons issued herein on the 26th November, 1993.”

47. In VS v RS 1991 WJSC-HC 2389 Lynch J. again considered the proofs required:

“I am satisfied that from about the beginning of 1988 the relationship between the parties deteriorated significantly. Since that time they have not had any sexual intercourse. The Plaintiff has left the family home about half a dozen times. When she has been living in the family home she and the Defendant sleep in different rooms. The Plaintiff was living in a different house with R from October 1989 to August 1990, during which time the Defendant and T lived in the family home. Since the Plaintiff ’s return with R to the family home towards the end of August 1990 the whole family has lived under the same roof but very abnormally so far as the spouses are concerned. The Plaintiff rarely remains in the house when the Defendant is present unless one or other or both children are also present, and the Plaintiff and the Defendant communicate with each other as little as possible.

In all the circumstances I am satisfied on the probabilities that the marriage between the Plaintiff and the Defendant has broken down to the extent that a normal marital relationship has not existed between them for a period of at least one year immediately preceding the date of the application, nor, indeed, for the last three-and-a-half years.”

48. Shatter’s Family Law (4th Edition, Butterworths (1997)) at paragraph 8.69 speaks of the marriage as having “not functioned normally”. In this regard, the author states:

“[8.69] An essential ingredient or a number of essential ingredients may be lacking in a couple’s marriage without affording either spouse a ground based on s 2(1)(a) to 2(1)(e) upon which a decree of separation can be obtained.

Neither spouse may have committed adultery, seriously misbehaved, have deserted or moved out of the house but the marriage may still have ceased to function normally. For example, a couple may simply grow apart and cease to have anything in common; they may be simply incompatible; sexual relations between them may have ceased; there may be continuous quarrels, rows and disagreements about both major and minor matters; one or both may no longer tolerate the other’s presence or company; both may no longer wish to cohabit but neither may choose to move out and they may be incapable of reaching agreement or putting in place the arrangements required to enable them to commence living apart from each other. These factors individually and also combined with others have resulted in the courts in practice granting may separation decrees under s 2(1)(f).”

APPLICATION OF THESE PRINCIPLES IN THE PRESENT CASE

49. The relationship between the parties is of long duration. The Applicant commenced working in the Respondent’s family business in or about 2001 and the parties became increasingly close in the years that followed. It is common case that they were in a relationship from at least 2007/8 (the Respondent says this was even earlier). The parties decided to have a child together in or about 2011 and the steps taken in the context of conceiving this child demonstrate clearly that this was something they both wished. That this child remains a source of huge joy to them both is undoubtedly the case. It is clear that the relationship was a somewhat unorthodox one and, overall, I formed the view that the ‘glue’ which primarily kept them together was their mutual love of their child rather than their own inter personal relationship.

50. By the time the parties married in May 2018, they had experienced relationship difficulties including suspicions on the part of the Applicant of infidelity on the part of the Respondent, suspicions which he asserts were without foundation. There is agreement between them that these suspicions had resulted in physical altercation. Nevertheless, the parties proceeded to marry. However, the relationship remained unorthodox in terms of marital commitment. The combined and mutual commitment to establishing a family life for the child remained (indeed, I formed the view from the evidence that this remains the position to this date).

51. The husband asserts that the wife is not entitled to a divorce or to a decree of judicial separation. She issued her proceedings for divorce on the 2nd June 2022 and he says that, at that date, the parties had not lived apart for two years and neither had there been any lack of normal marital relationship for one year. He says that, in consequence, the Applicant has no entitlement to any of the reliefs which she seeks either by way of Decree of Divorce or Judicial Separation or reliefs ancillary thereto.

This was a most unusual position to adopt in circumstances in which it is common case that the marriage is over and the parties have lived apart since the autumn of 2021. However, there are constitutional and statutory proofs engaged in the litigation being pursued by the Applicant and there is no entitlement to these reliefs if the requisite proofs are not met.

52. Therefore, the first issue to be determined is whether the Applicant is entitled to either Decree. To address this, the evidence of the marital relationship must be analysed and assessed.

53. Were the parties living apart from February 2020?

54. I do not consider that the evidence supports such a finding. There were two residences in operation but I believe that the evidence supports the Applicant as having left the family home in Kildare partly due to its imminent surrender to a lending institution and partly due to the fact that the previous tenancy was not without difficulty. It is also my finding that her attaining and retaining the availability of the Meath residence was due to difficulties in the marital relationship but I do not find that there was a commencement of living apart at this time. The Applicant continued to spend considerable periods living in the family home property until its eventual surrender in or about May 2021. The Respondent, the objective evidence shows, spent considerable time living in the Applicant’s home in Meath during this time.

While the parties were not sexually intimate, I find that intimacy and commitment cannot be said to have ceased to the extent that they can be found to have been living apart, this being demonstrated by shared holidays on numerous occasions, during which, it was accepted by both, they shared family room accommodation including sharing a bed together with their child and also by continued elements of family life and cohabitation. It is clear that there was still a good degree of trust between them.

The salaries of the parties in early 2020 were reconfigured to assist and augment the borrowing potential of the Applicant and the trust of the Respondent in the Applicant was such that he arranged for a substantial sum of money to be transferred to her from his financial resources. Until the date when it is agreed that the parties commenced living separately with the Respondent acquiring separate rented accommodation (late autumn 2021), it seems to me that there continued to be a family arrangement in place involving the occupation of the same premises (even at times when a second premises was available) and family life continuing within such premises and externally through family holidays and family activities. It appears to me that there were objective indicia of family life. So far as the subjective intentions of the parties are concerned, I do not consider that the Applicant has demonstrated that during this period prior to the autumn of 2021 the parties had formed an intention to separate or that there was a definitive intention distinct from and at odds with the objective presentation of the couple. The Applicant appears to accept that this is the position in her submissions filed where it is stated “While the grounds for a decree of divorce for the parties herein now undoubtedly exist, it is unclear whether this was the case on the 2nd June 2022, …”, that being the date of the institution of the within proceedings.

55. It is common case, that:

i. there were relationship difficulties pre-marriage;

ii. The marriage was never consummated;

iii. The Respondent, although he did not at the outset file a replying Affidavit in defence of the Applicant’s proceedings or counterclaim, informed me early in the proceedings that he had wanted to pursue a nullity decree but was dissuaded from so doing by his former solicitor.

56. However, none of these factors are determinative of the proofs required for the granting of a Decree of Judicial Separation pursuant to section 2(1)(f) of the 1989 Act. Non-consummation (as opposed to physical incapacity to consummate) is not a ground for nullity. Sexual relations are not imperative within marriage and a normal marital relationship may exist absent such. The judicial separation legislation says at section 2(3)(a)(ii) of the 1989 Act:

“a relationship does not cease to be an intimate relationship merely because it is no longer sexual in nature.”

57. The Applicant asserts that there was misconduct on the part of the Respondent which irreparably damaged the marriage in November 2019. She says that she moved out in February 2020 as a consequence. However, the evidence which I have heard and which is supported by objective corroborative evidence adduced by the Respondent indicates that there had not been a complete cessation of the marriage and of the parties living aspects of their lives together. The Respondent accepts that financial pressures were considerable over a long number of years and that these hugely affected the parties’ lives. He accepts that the Applicant raised issues concerning his gambling. He accepts that there were two residences available from in or about February 2020 and that there was no resumption of sexual intimacy between them, an issue which would appear to have caused some discontent between them in or about the autumn of 2019. It is my view that the accumulation of objective and subjective factors evidenced since November 2019 demonstrate a considerable lack of marital normality. It must be remembered that the Respondent did not advance any reason for the Applicant’s having taken steps to have her own residence available to her in early 2020. Given the financial constraints in existence, the continued funds which this premises would yield as a rental property would obviously have been attractive and yet these were surrendered. In addition, if a normal marriage was continuing, it seems most unusual that the Respondent would assert having no knowledge of the household renovation and mortgage reduction expenditure made by the Applicant at this time and the source of such expenditure.

58. It does appear that communal life together as a couple was challenging from the outset and this challenge increased from shortly into the marriage. In November 2019, living arrangements altered. The parties had previously shared a bedroom but at that time the wife moved to another part of the house and moved her belongings also. The Respondent seemed in his evidence to be unable to remember the date when this occurred. He indicated that this change in living arrangements was not based on a relationship change but due to personal comforts for the parties. I do not find this credible as indicating the full story. There was no intimacy either before or after this move. While clearly sleeping arrangements may be altered for the mutual comfort of both parties, intimacy (and I do not mean sexual intimacy) usually continues thereafter in a normal marriage. In this instance, intimacy substantially ended. The change in living arrangements appears to me indicative of a change in marital commitment. What is unusual is that the parties continued to live as a family but as a family of three for the benefit of their son to whom they are devoted rather than as a married couple.

59. This separate existence from each other while living together as a family for their son continued until in or about February 2020. To analyse what occurred thereafter it is essential to have regard to the adverse financial situation which the parties experienced. While this went on over many years, pre and post marriage, I have formed the view that the circumstances of their relationship post February 2020 must be considered in the light of same.

60. The Respondent and his siblings have for many years operated a family business, handed down to them by their father. This is a business which fared well, flourished and expanded over many years. The siblings are, as was their father, accomplished businesspeople. The siblings had succeeded in dealing with previous significant borrowings due to a most advantageous sale of an asset but this would appear to have been shortly followed by further borrowings aimed at business diversification and investment in a variety of undertakings. Unfortunately, like many others in Ireland, expansion and borrowing prior to the recession of 2010, resulted in high levels of borrowing and heavy indebtedness culminating in repayment demands by lenders in the context of the changed economic climate that ensued. While much can be said of the financial implications of these economic developments (and more will be said of the evidence in this regard in this case below), all too often in the family law courts the vast emotional toll of these events may be observed. This is another such case.

The parties had enjoyed a comfortable lifestyle prior and subsequent to the birth of their child and there is evidence of financial generosity on the part of the Respondent towards the Applicant. The picture had dramatically altered by in or about 2014 when loans were being called in, renegotiation of such facilities was proving difficult and there was a genuine risk of assets built up over many years of hard work being lost. These traumatic financial events in fact came to pass. From the evidence, I believe that both parties experienced considerable stress from this source but I believe the Respondent did so particularly. This resulted in very significant restructuring and the sale of business assets having to be undertaken. This had substantially happened prior to 2020 but 2020/2021 saw a very significant event along this journey of economic trauma.

61. The family home of the parties and their child was a most comfortable and desirable property. The evidence supports the Respondent being particularly attached to this property. It had been bought by the family business and in consequence its sale was being sought by the lenders in the context of restructuring business debt. The Respondent fought this off over a considerable period but in 2019 the writing was on the wall that this asset would need to be disposed of if the primary business assets having was to be saved. A short stay of execution was achieved but it became clear in early 2020 that this family home would be lost. It eventually was lost in May 2021.

62. Against this background and other marital challenges, the wife left the property and moved back to her formerly acquired property. I believe that the respective evidence of the parties was somewhat self-serving in relation to these events. The applicant presents this as the start of the parties living apart. The husband seeks to understate the marital challenges which no doubt existed. It is my finding that a normal marital relationship had ceased by this stage but the parties continued to organise their lives to a degree in unison for the benefit of and in order to raise their child. Of course, matters became still more complicated by the onset of the Covid 19 pandemic and the consequence civic constraints and curtailments. The parties clearly continued to spend time together and to live together (spread between the two homes) and family life (although not marital life) continued. As indicated above, I do not believe that the parties can be considered to have been ‘living apart’ - a. Each spending time in the two available residences;

b. Holidaying together including sharing a bedroom on such holidays (with the child);

c. Joint efforts to protect their financial resources.

63. I conclude that the parties did not commence living apart until the autumn of 2021. I conclude that there was no normal marital relationship between them from late 2019 (possibly earlier). I find on the evidence that the Applicant, and probably also the Respondent, had from this time withdrawn from the marriage, emotionally and physically, and her (and probably their) continued involvement was as a parent or parents of the parties’ child. I believe that commitment to the marriage was gone from this time. I will therefore grant a Decree of Judicial Separation pursuant to s 2(1)(f) of the 1989 Act and section 39(2) of the 1996 Act. I refuse a Decree of Divorce pursuant to section 5 of the 1996 Act.

PROPER PROVISION

64. I will now proceed to consider proper provision for the purposes of the 1995 Act. In the context of judicial separation, a court in deciding to grant such a Decree must consider proper provision in two different contexts.

65. Section 3(2)(a)(ii) of the 1989 Act provides that such Decree may only be granted unless the court is satisfied that proper provision for the welfare of the child exists. I am amply so satisfied in this case. The parties, by agreement, operate a shared care arrangement for their child and this appears to work very well. The palpable animosity which they display towards each other is in sharp contrast to the admirable co-parenting skills which they demonstrate. Their child is deeply loved by them both and appears to be doing extremely well and to have a good relationship with both parents. Each acknowledges the positive and important parenting role of the other.

It is to be hoped that when litigation between them has ended, the parties will be able to improve their inter-personal relationship for the further benefit of their child.

However, it is my view that no court intervention is required in relation to child arrangements in this case as the parties are both deeply committed to their child’s welfare and recognise, acknowledge and organise co-parenting arrangements. I will therefore make an order for joint custody with day to day arrangements to be agreed between them as has heretofore worked extremely well. There will, of course, always be liberty to apply but, on the evidence I have heard, I do not expect that this will be required.

66. The second aspect of proper provision under the judicial separation regime is pursuant to section 16 of the 1995 Act which section mandates that a court shall endeavour to ensure that, in respect of financial provision, proper provision exists or will be made for the parties and any children of the marriage. I will now consider this aspect of these proceedings.

ANCILLARY FINANCIAL RELIEFS:

67. Section 16(1) of the 1995 Act provides:

“16.—(1) In deciding whether to make an order under section 7 , 8 , 9 , 10 (1)

(a), 11 , 12 , 13 , 14 , 18 or 25 and in determining the provisions of such an order, the court shall endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as is adequate and reasonable having regard to all the circumstances of the case.”

68. The general provisions of section 16(1) of the 1995 Act are followed by legislative checklist of specific factors to which regard must be had which are set out in subsection (2) of this section:

“(2) Without prejudice to the generality of subsection (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 a. b.

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 d. spouses has or is likely to have in the foreseeable future (whether in the case c.

of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the f. proceedings were instituted or before the spouses separated, as the case may e.

be,

(d) the age of each of the spouses and the length of time during which the g. h.

spouses lived together,

i.j. (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 l. contribution made by each of them to the income, earning capacity, property k.

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 together and, in particular, the degree to which the future earning capacity of a spouse m. n.

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 o. p.

statute,

(i) the conduct of each of the spouses, if that conduct is such that in the opinion r. of the court it would in all the circumstances of the case be unjust to disregard q.

it,

s.t. (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 v. a pension scheme) which by reason of the decree of judicial separation u.

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 w.

x.

whom either spouse is remarried.”

69. I have fully considered the income and financial resources and the financial needs of the parties having thoroughly examined their Affidavits of Means sworn herein and having heard their testimony in this regard. I have had regard to the earning capacities of each of them. It is clear that the parties enjoyed a comfortable living during the course of their relationship. There was undoubtedly financial stress and anxiety caused by the business indebtedness and lender steps in the recoupment of same but it does appear to me that, throughout this time, the lifestyle of the family remained comfortable. I have had regard to the ages of the parties (the Respondent being somewhat older than the Applicant) and to the duration of their marriage (short) and their relationship (likely in excess of 12 years). Each have some health challenges and it is possible that those of the Respondent will impact to a great degree in the long term but, at the moment, both appeared relatively healthy and able. I have fully had regard to the contributions made by both parties and to the source of the business assets being derived from the family of origin of the Respondent and the Respondent having worked in this business since the mid-1980s. I do not consider that the marriage impaired the future earning capacities of the parties but I do consider that the ending of the marriage impacted on the occupational situation of the Applicant as she had to re-establish herself from her place of employment since 2001. I have had regard to statutory social welfare benefits (I note that the Applicant is in receipt of child benefit for the dependent child). I have had regard to the accommodation circumstances and costs of both parties. I do not believe that sub-section (2)(k) or (l)

arise for consideration. I do not consider that there is conduct on the part of either of the parties in the context of the marriage or its breakdown to which the law applicable dictates I should have regard. In terms of the conduct of the litigation, I believe that this is a matter which is more appropriately considered in the context of any application(s) for costs which may be made in respect of these proceedings.

FINANCIAL CIRCUMSTANCES OF THE PARTIES

70. This was an area of very considerable controversy in the course of the case. The financial affairs of the Respondent are complex and the task of the court was not eased by a lack of clarity in terms of financial documentation. This arose in three distinct ways:

1. a failure to make timely and appropriate and necessary disclosure in accordance with the Practice Direction of the Court and in accordance with case management directions. A useful chronology in this respect was provided by the Applicant in her written submissions to me. Documentation continued to emerge during and, indeed, after the conclusion of the hearing and I formed the view that matters which could have been clarified by the provision of appropriate documentation were not so clarified. This case was subject to a number of case management hearings. Orders for disclosure and directions were made. However, the supporting of financial circumstances with paperwork was sadly lacking when the matter came to hearing. The Applicant had to subpoena financial witnesses, accounts for companies were incomplete and not up to date, in some instances vastly out of date. Documents continued to appear during the course of the hearing which ought to have been provided long in advance thereof. I was struck by the fact that the Respondent was well able to produce and deploy very carefully prepared booklets of documents in support of arguments he wished to make but yet documents which ought to have been available and which would have aided clarity and transparency were not available. Inconsistencies in documents could have been clarified by other documents or witnesses but were not. I remain most concerned about disclosure and the level of financial information available to me in this case.

2. The absence of documentation making it impossible for forensic accountants to complete their tasks with any degree of certainty. This was evident from the reports of these experts and also in their evidence before me. It was also evident from the D v D schedule prepared. I must express considerable empathy with the Applicant’s forensic accountant who impressed as a most diligent and integrious professional who expressed the impossibility of reaching definitive conclusions absent the appropriate paperwork. I accept his evidence that he embraced the preparation of a D v D schedule subject to the significant caveat that he had not the information nor his client the financial resources to bankroll an independent audit of circumstances.

3. The absence of up to date financial statements for many of the companies with which the Respondent is involved. The delays in this regard were uniformly unsatisfactory but in some instances were inexcusable. The impecunious situation of the businesses was proffered as the reason for this but I did not find this compelling in circumstances in which considerable investments had been made in business endeavours offering little security and less return and also having regard to other expenditures which have been made by the companies. It is simply not acceptable that lawfully required accounting standards would be ignored in the manner which was proffered to me in this case.

71. There are, however, other matters which must also be borne in mind:

1. This was a very short marriage (albeit that there was a long pre-marriage relationship between the parties).

2. The business assets of the husband derive from his family of origin and were acquired by him long prior to the marriage and, indeed, the relationship.

3. The business assets of the husband are, almost entirely, held through corporate entities in which his siblings are co-owners. This results in a (mainly) 20% interest only being vested in him (sometimes less due to the involvement of third parties and, in one instance, due to there being a shareholding vested in the son of the parties which allocation of shares took place prior to marriage when the child was very young. This was a remarkable and unusual arrangement but may have been influenced by the debt situation which has troubled the businesses over many years). Of course, in consequence of the nature of the Respondent’s corporate holdings as indicated, substantial minority discounts would arise in the calculation of value and, indeed, realisation absent the agreement of co-owners would be most difficult.

4. The Respondent has conferred financial benefit on the Applicant previously. In this regard, I refer to the monies advanced by the Respondent to the Applicant to discharge the deposit payable on her property. This was a payment of 10% of the purchase price and was provided long prior to marriage. There was a dispute as to whether this had been repaid in the context of a subsequent re-mortgage. There undoubtedly was a re-mortgage which was used for current expenditure at the time it was taken out and such expenditure undoubtedly involved both parties and their financial needs but I do not find that there was any specific repayment of the lump sum which had been advanced. This and other funds which I will reference below, has left the Applicant with a property with equity and a modest monthly mortgage repayment and a modest mortgage balance. This must be contrasted with the Respondent who is in rented accommodation.

AFFIDAVITS OF MEANS

72. I considered the following Affidavits of Means:

Applicant:

29th June 2022;

10th November 2023

18th March 2024

Respondent:

7th March 2023

14th November 2023

27th June 2024

73. These were uncomplicated documents. The Applicant deposed to her residential property, subject to mortgage. Her income fluctuated as between the various Affidavits (consistent with her evidence) with her only other income being either social welfare receipts and maintenance. She disclosed a car (with a loan), modest bank assets and liabilities and a modest pension. The Respondent’s assets consist of shareholdings in various family companies, he deposed to a car, a director’s loan (reducing due to repayment of it) and modest investments. In controversy is a loan he alleges is due to him by the Applicant. The disclosed income related to salary from the family business. There is reference to a Link Finance (BCM Global) loan.

This will be referenced further below. He has no pension.

THE D V D SCHEDULE

74. The value of the Applicant’s property and the equity in it were agreed.

75. Bank balances, the outstanding director’s loan owed to the Respondent by EGLimited and miscellaneous investments were agreed.

76. The shareholding of the Respondent in EGLimited totals 3% (1% directly and 2% through MLimited). The valuation of this shareholding is agreed (although it would appear that the agreed figure for CGT is incorrect as the shareholding of the Respondent in this company, directly or indirectly, is less than the 5% required for a reduced rate of CGT).

77. H Limited (20% shareholding) – this is a property holding company, a special purpose vehicle (SPV) required by a lender when the main company premises was being purchased from the previous family company which owned it. There was agreement as to gross values but an issue arose as to a deduction for CGT which had been made by the Respondent’s forensic accountant. There were a number of aspects to this issue relating to whether there had been a payment of stamp duty on acquisition which would be an allowable expense. I am of the view that information to clarify this issue was procurable by the Respondent but the issue remained speculative. It appears that stamp duty was payable but may or may not have been paid and, if not paid, interest and penalties would arise. Issues relating to the base cost of the asset for the calculation of CGT also arose. It is likely that some level of CGT would arise on a disposal of this property but I simply have no reliable evidence in this regard.

78. The net value of the asset was then divided to reflect the percentage share of the Respondent and CGT (with entrepreneurial relief) was deducted. The disparity is not very significant in monetary terms when this exercise is completed.

79. There are two main items in dispute – first, the monies transferred by the Respondent (from his pension) to the Applicant which he contends was a loan and she contends was a gift. I have heard the evidence of both parties in this regard. I have formed the view that there was little clarity in this regard. The pension funds came to hand at a time of financial stress and the Respondent transferred them to the Applicant. I do not, on balance, given the status of the relationship at the time, believe they were gifted to her but I am of the view that, when works were being done to her residence, any consideration of the funding for these works would have inevitably led to these transferred funds. These funds have been used in reduction of the mortgage on that property and on the maintenance and renovation of same. The second issue in dispute is funds alleged taken by the Applicant from the companies. It seems to have taken the company some time to react to these withdrawals and this reaction seems to have occurred in the context of the separation of the parties. No demand was ever made in this regard. The Applicant says the Respondent was aware of these transfers and that there was a dual authentication involved. On balance, I think her evidence credible in this regard supported by the very delayed company reaction and the context of such reaction. I also have had regard to the dates of these transfers most of which predated the altered relationship date of in or about November 2019, a time at which the Respondent definitively asserts that there was an ongoing intimate and committed relationship.

ISSUES OF CONCERN

80. There were a number of matters of concern to me relating to financial matters which arose in the course of the hearing. The list below highlights some of these, being the ones of greatest concern:

1. CGT – I was provided with a document indicating that a significant sum of money had been retained by company solicitors which was described in a statement of account relating to the sale of a company property as being for CGT provision.

There was no evidence that the CGT had been paid (or as to whether it was, in fact, payable due to prior capital losses) or as to what had become of these funds. The matter was raised during the hearing but no explanation or evidence, oral or documentary, was provided.

2. Stamp duty – the issue pertaining to the payment of stamp duty is referenced previously in the context of the D v D Schedule disparities.

3. There are a number of non-trading companies in which the Respondent is a shareholder (usually amounting to 20% directly or indirectly held). The antiquity of financial statements for these companies was hugely concerning. This was especially (but not exclusively) so in relation to DC Limited and A Limited where the most recent accounts were for year-end dates in 2017 (y/e 28th February 2027).

In the case of DC Limited, the last accounts showed a healthy balance sheet in terms of fixed and current assets, net assets and shareholders’ funds. A small number of pages from a bank current account for this company, again of antiquity, was also provided during the course of the hearing. A very healthy balance was shown.

Similar concerns arise in relation to A Limited. The Respondent in his evidence referred to “passive investments” which had been realised but there was a lack of specificity or clarity in this regard. While I have no doubt that these companies are now dormant or dissolved, I simply have no transparency as to what became of the funds from them. I have no doubt that the family business experienced considerable financial distress and settlement with lenders and refinancing with new lenders was required. I have no doubt that this was a considerable drain on business and personal assets. I simply have no transparency in relation to the use of funds and whether they were exclusively used in diminution of debt, disclosed investments, or for other purposes.

4. Credit card – statements relating to a credit card in the name of a company of which the Respondent had use were provided after the conclusion of the hearing.

However, a document handed into court (hotel booking) and a small number of old statements indicated that the Respondent had a credit card (Mastercard) (I do not know if he continues to have such) in his own name. The indication on the statements is that this account was paid by direct debit. The credit card statements pre-dated the commencement date of the current account statements provided by the Respondent so I have no idea from what account the direct debits came. There was no such direct debit in the current account statements provided. The current account did reference payments to a Fuel Service card which was not provided.

There was also a reference to a standing order to the Respondent but I do not know into what account the sum concerned was being transferred. There was no clarity in regard to these transactions.

5. Link Finance – the Respondent referenced a potentially large liability to Link Finance. There was no clarity, yet again, in this regard. Statements relating to the debt had been received but no demand for payment. The forensic accountant for the Applicant indicated that he could not opine as to status and suggested that a credit search be carried out to confirm position. Expert testimony was given in relation to possible outcomes in relation to this historic debt. There was common agreement that direct inquiry with the lender was not to be advised in such circumstances. However, no credit search documentation was provided to me by the Respondent and there is no indication on the documentation provided to me that this debt is being pursued.

6. Monies have advanced by the family companies to related entities which appeared ill secured and yielding little return. This was the position in relation to a very large loan advanced to EGLimited and a lesser loan to a café business. The rationale behind these loans and the prospects for recoupment are difficult to understand.

7. There was evidence that the business had been in a position to assist others of the Respondent’s siblings in times of their financial hardship.

8. A timeshare property was not disclosed in the Respondent’s Affidavits of Means.

INCOME AND PENSIONS

81. The Respondent is a businessman of long standing with considerable business acumen and expertise. He receives a salary from the family business. This has fluctuated over time and would appear to have been between €5,798 and €4,345 per month in 2023 per a schedule prepared by him and “approximately €5000 per month”

per his Affidavit sworn on the 4th July 2024. I have formed the view that there is some fluidity in this regard (the Respondent further deposed to this income being “not consistent as the amount I receive may fall because of the cash position of the business.”). I note that monies were advanced to a sibling of the Respondent through the company(ies) when he required them. The Respondent also had the use of a company credit card. The statements in this regard were not provided until late February 2025. While the card in question, I was informed, had been cancelled in 2020, I am unclear of the current position. There were transactions on the statements provided which may have been personal in nature. The Respondent attributed such usage to the Applicant. Additionally, I referenced previously a hotel reservation made by the Respondent using a Mastercard in 2021 but no statements for a Mastercard account were provided to me corresponding with the time period concerned. Indeed, the most recent date on the very limited number of Mastercard statements relating to an account held by the Respondent was April 2019. I heard evidence from the Applicant of some additional cash income being available to him derived from a number of sources. Some of these were addressed by the Respondent and others were not specifically addressed but any such income was denied. Given the specificity and detail of the evidence of the Applicant, I accept that there is probably some such income but it is limited in nature. It is accepted that free holiday accommodation is available to the Respondent and has been used by the family extensively in the past.

I believe that the Respondent’s income position is thus slightly improved. He is in rented accommodation with a monthly payment of €2,324 in this regard. Overall, I formed the view that the Respondent’s circumstances are such as yield him a better standard of living than that which the Applicant would enjoy absent some level of maintenance being paid.

82. The Applicant was employed as an administrator in the Respondent’s family business. This position became less tenable in the context of the breakdown of the parties’ relationship. She would appear to have initially been in alternate employment on a full time basis with an income of about €3,300 per month but at the time of hearing had moved to part time and less remunerative employment. The parties have a shared care arrangement in relation to their son. I am of the view that the Applicant is capable of earning more than she does at present and of working longer hours, on a more full time basis. She acknowledged as much in evidence. Her mortgage repayment is approximately €1,050 per month. However, I believe that there will still be income disparity between the parties. In this circumstance, I consider that proper provision requires that the Respondent pay some maintenance for the support of the parties’ child to the Applicant to bolster her income. I believe that the sum of €750 per month is appropriate in this regard on the basis that educational (including back to school), medical, dental, optical and extra curricular expenses are jointly and equally discharged.

CONCLUSION

83. I am of the view that, even absent financial statements being prepared, the Respondent could have provided clarification of in respect of financial matters had he so wished. I conclude that the following orders will make financial proper provision:

i. A declaration pursuant to section 10(1)(b) and section 36 of the 1995 Act that the Respondent has no legal or beneficial interest in the Meath residence. This represents lump sum to the Applicant of €120,000 which sum has been expended on mortgage reduction and renovation of the property. I note that she also received the deposit for this property from the Respondent (although there was some recoupment in the context of a re-mortgage). I do not believe that it is appropriate to transfer any beneficial interest in this property to the Applicant.

To do so would be to deny the parties a clean break in the context of a short marriage and I also am of the view that proper provision requires that the Applicant’s accommodation security be supported by attributing this sum to her.

She is also providing a home for the parties’ child, as is the Respondent. The financial circumstances and portfolios of the parties are very different with the Respondent having business assets and acumen in this regard. I do not consider it appropriate to interfere with the security of the Applicant in the context of her residence, acquired pre-marriage.

ii. I will make a Declaration pursuant to section 10(1)(b) and section 36 of the 1995 Act declaring the Respondent the legal and beneficial owner of the shareholdings held by him, noting that the shareholding of the child in EGLimited is legally and beneficially that of the child. This was strongly contended by the Respondent during the hearing and I simply wish to confirm this.

iii. I will make a Declaration pursuant to section 10(1)(b) and section 36 of the 1995 Act that the Respondent is entitled to the balance of the director’s loan owed to him by EGLimited.

iv. In relation to the sums allegedly “due by [the Applicant] to Companies” per the D v D Schedule, having regard to the circumstances surrounding same and the timescales involved, I will direct that the Respondent indemnify the Applicant in respect of any sums due or allegedly due her to company/ies. Alternatively, I will order the payment of a lump sum to the Applicant by the Respondent pursuant to section 8(1)(c) of the 1995 Act of a sum equivalent to any claim made against her in respect of such alleged indebtedness by such companies.

As stated previously, I find it unusual that no demand received. It would appear that these receipts substantially pre-dated the marital difficulties and, while noting the conflict of evidence in relation to the Respondent’s knowledge of these withdrawals, I am mindful that emails shows diligent supervision of the

Applicant’s terms and conditions by the companies such that would make the delayed reaction to these withdrawals difficult to comprehend if they were unauthorised.

v. Maintenance for child: having regard to the respective incomes and income sources and other financial benefits of each of the parties and noting that the child in with each parent approximately half the time, I consider the monthly maintenance payment of €750 to the Applicant for the support of the child to be appropriate. She has had to restart her career having been employed in husband’s family business over many years. She does not have the financial strength and possibilities that he has and is unlikely to have such in the foreseeable future. The Respondent’s standard of living appears to be somewhat higher than the Applicant’s and he would appear to have lifestyle opportunities which she does not have in the context of holidays in Portugal and a timeshare in Scotland. I have had regard to the accommodation costs of both parties. The parties will be equally and jointly responsible for educational (including back to school), medical, dental, optical and extra-curricular expenses for the child.

Educational expenses in excess of €500 to be subject to prior joint agreement.

This sum is to be paid by standing order monthly.

vi. I will make no orders in respect of pensions with each party retaining their own provision in this regard.

vii. I will grant mutual orders pursuant to section 14 and section 15A(10) of the 1995 Act subject to any orders of this Court being complied with.

84. I formed the view that it is likely that resources in the family company group are greater than represented and offer greater opportunities than has been represented.

While I am mindful that the Respondent does not have secure accommodation and is dependent on renting for the moment, I must have regard to the support which the family business has given to others of the siblings in the past and the investment choices which have been made involving very considerable sums of money.

85. I will list this matter for mention on the 27th June 2025 at 10.30 am so that any further necessary orders arising may be addressed in addition to the issue of costs.