Divorce decree granted; court orders maintenance, property division, and pension adjustment based on acrimonious breakdown.

[2025] IEHC 342

Record Number. 2025 3 CAT

THE HIGH COURT

CIRCUIT COURT APPEAL MIDLANDS CIRCUIT

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 2019, AS AMENDED

K. B.

Applicant/Appellant

-AND-

R. B.

Respondent

JUDGMENT of Ms. Justice Nuala Jackson delivered the 18th of June 2025.

1. I previously gave my decision in this case on an ex tempore basis at which time I indicated that I would give a written judgment at a later time. This is that written judgment.

2. The Applicant/Appellant instituted proceedings for a decree of divorce by Civil Bill dated the 22nd December 2021. The parties had a long marriage (since 2000) and they have four children all of whom seem to be a source of deserved pride for them, although the children all seem to have been, to varying degrees, impacted upon by the animosity occurring in the context of their parents’ marriage breakdown. This is most regrettable.

3. The eldest child has ceased to be dependent. He continues to reside with the Respondent, a situation not uncommon in Ireland today. The second child has certain additional needs but appears to be doing well although it does seem to me that he will need the continued support of his parents going forward. I do not mean this in the context of continued dependency – the evidence before me does not support that – but it seems to me that he will require ongoing support and advice. He is likewise living with the Respondent. It would appear that the relationship between the Applicant/Appellant and the two older boys has had ebbs and flows, peaks and troughs.

At one point, the eldest child was residing with him. There now seems to be animosity. Likewise in relation to the second child. This is unfortunate and hopefully will resolve with time. This situation may well be assisted by the finalising of litigation as between the parents.

4. I formed the view from the evidence of the parties, and from their general attitudes and behaviours towards each other, that there were multiple causes for these fluctuating relationships. Partly this may relate to the relationships between the individuals concerned, and partly this may be due to the toxicity between the parties, but I also have formed the view that the respective roles of the parties has an influence. The Respondent seems to be the person offering stability and predictability and she engages with and has constantly engaged with the mundanities and necessities of everyday life.

I formed the view that the Applicant/Appellant is, perhaps, more attracted to the special events, the leisure events, the extra-curricular events and such like. This is not a critique of either party but I believe that these roles have contributed to the animosity between the parties and have contributed to a de facto, day to day, dependency of the children upon the Respondent.

5. I formed the view that the Respondent found (and finds) the weight of the day to day burdens that she carries exhausting and that she is resentful that she did not receive more support from the Applicant/Appellant. That she would feel this was understandable as she does the bulk of the heavy lifting in relation to caring for the children and I believe that she has done so since separation. However, I also formed the view that the Applicant/Appellant was also somewhat overwhelmed by the circumstances in which he finds himself at his age and stage of life. I believe that he found the trauma of leaving his home very considerable and the instability of his accommodation thereafter weighed heavily upon him.

6. The normality of these circumstances in the context of marital breakdown should never be allowed to diminish the reality and enormity of the impact of them upon the parties concerned. The inability to understand or even to address the alternative burdens and losses experienced by each of the marital partners is also most usual but, again, should not diminish its reality.

7. The two youngest children are simply wonderful young people. The report of the assessor painted a picture of two engaged and engaging children. They both have positive, if very different, relationships with both of their parents. Both parents should try to encourage and support these relationships.

8. The first issue which arose was the issue of access. This was not an easy issue. The Applicant’s work schedule is unpredictable and unaccommodating. He has little control over this timetable. The Respondent is employed in the healthcare area and it is clear that she could likewise have a shifting and unpredictable work timetable but she has had little option but to make career choices to provide more predictability. This impacts upon her earning potential. In the context of the appeal, I directed a Section 32(1)(b)

report in order that the Court would be appraised of the wishes of the minor children.

The Applicant had sought a broader section 47 report in the context of the appeal but I determined, in the context of a pre-hearing motion, that this was not appropriate in circumstances in which the fundamental residency arrangements for the children were not in dispute. Neither was the issue of the terms of contact with either parent in dispute. The only matter arising in relation to child arrangements is the matter of timetabling access with the Applicant and the primary difficulty is arranging this in a manner which provides predictability in a complex employment timetables scenario.

9. Both minor children seem very aware of and realistic about their parents’ relationship.

They are pro-actively managing to carve out a relationship with both of them around the known animosity and this is positive. However, continuation of this cannot be guaranteed. All too often, children who must live within ongoing parental conflict simply become exhausted with the strain of it and opt out of a relationship with one parent in order to make their lives less fraught. The parents (and particularly the Applicant who is not the parent with whom the children have their day to day base)

must be careful to avoid this. Some of the unpleasant text messages sent by the Respondent indicate that this is an eventuality which she desired. However, the Applicant must have regard to two matters in this regard: (a) text messages and the like sent in the heat of argument and frustration do not necessarily reflect the true wishes and desires of the sender. I formed the view in this case that the Respondent’s primary desire was to have litigation ended and predictable arrangements put in place, both in respect of the children and in respect of financial/property matters. I also (b) formed the view from her evidence that she would very much like co-parental support which would allow her to have a bit more “down” time, without the responsibilities of work or family. From the evidence before me, I did not form the view that the Applicant was supportive or understanding of this. His focus appears to be on the limitations which his life circumstances impose rather than having any appreciation of the impact on the Respondent. Additionally, the Respondent must be alive to the restrictions which are a fact of the Applicant’s work life. There is intransigence on both sides. The parties have a simple choice – they may work to support each other, not now as partners, but as coparents, and endeavour to reduce acrimony in consequence or they can continue with the acrimony which appears to be exhausting and overwhelming for them both. The Respondent needs and deserves some predictability and regularity, and it is hard to carve this into the Applicant’s work. The parents (and, in particular the Applicant)

should reflect upon the fundamental information gleaned from the section 32(1)(b)

report being (a) that they have pleasant, talented, well-mannered children; (b) that these children are aware of and very alive to the fraught relationship between the parents and would dearly like this not to be the case and (c) they want to spend more time with their dad than is presently the case.

10. Having considered the report of the assessor and the evidence of the parties I have decided that the following Orders correspond with the best interests of the children.

The parties will be joint custodians of the minor children. Access with the Applicant should be as follows:

(a) every second weekend from Friday to Sunday night. The children will be the responsibility of the Applicant during this time save that if he is working (and cannot alter his work timetable), the younger child may be cared for by another responsible adult. However, this would only be for the work hours. This is the responsibility of the Applicant. He may on occasion need to request the assistance of the Respondent who may, or may not, be in a position to assist. If she is not, he must make alternative arrangements as any other working parent would have to do.

(b) I am also directing one regular overnight per week – I suggest Wednesday night from school or 30 mins post cessation of work until school on Thursday morning.

I am allowing flexibility to the Applicant in relation to collection times and intemperate refusals by the Respondent on the basis of delay must cease. Collection and return from the Respondent’s house or from school. There is no need for communication save that, if the children are not going to be at home at such collection times, the Respondent should text location of pick up to the Applicant no later than the previous evening at 9 pm.

(c) Additionally, the Applicant may take the children for a short evening outing on three days’ notice provided this can commence no later than 7 pm, the children to be home by 9 pm. This evening access must dovetail with the children’s activities. By agreement of the parties, such evening access may extend to overnight.

(d) All communication between the parties to be via Whatsapp.

11. I have had regard to all of the factors listed in section 31 of the Guardianship of Infants Act, 1964 (as amended) in determining these arrangements.

Financial Ancillary Reliefs

12. The parties separated in 2019. There is no prospect of reconciliation between them. In consequence, they satisfy the statutory living apart requirements and are entitled to a Decree of Divorce subject to proper provision being made for them and their dependent children. There are no other contra-indicating factors. I have determined above what I consider to be proper provision in relation to arrangements for the children. What remains now is to determine proper provision in respect of financial and property matters. In determining proper provision, I have had regard to all of the circumstances and to the listed factors set out in section 20 of the Family Law (Divorce) Act, 1996 (“the 1996 Act”). The incomes and earning capacities of each of the parties is set out in detail below. The only asset is the family home and a modest pension held by the Respondent. The financial needs of the parties are similar but the Respondent does assume the primary care burden in relation to the dependent children. The standard of living of the parties was comfortable during the time of their co-habitation but there is no doubt that the combined resources of the family require diminution in this regard in the context of separation and the needs of two households. The parties ages are such that they will be continuing in gainful employment in the foreseeable future. The marriage is of long duration. Both parties have some health challenges which have been fully detailed below. I have determined equal contributions having been made by the parties over the course of the marriage. The Respondent’s earning capacity has, to some degree, been impacted upon by her child care responsibilities. I have considered the statutory benefits to which each of the parties is entitled – child benefit in the case of the Respondent and, currently, housing assistance payment in the case of the Applicant. The Respondent previously had the benefit of domiciliary carer’s allowance, but this has now ended. I do not consider that there is any conduct on the part of either of the parties which it would be unjust to disregard. The accommodation needs of each of the parties and of the dependent children are discussed below. History

13. Much of the relevant evidence at hearing before me was agreed and uncontroversial.

There were certain areas of disagreement relevant to the matters for determination by me:

(a) The occupational circumstances of the Applicant and his consequent income and lifestyle;

(b) The occupational circumstances of the Respondent and her consequent income and lifestyle;

(c) The encashment of a pension by the Applicant and his contribution of same to family funds such that he now has no pension provision save for the State contributory pension;

(d) There was a complaint of lack of documentary financial disclosure by the Respondent;

(e) The conduct of both parties (allegation and counter-allegation);

(f) There was some disagreement as to the extent of health issues arising but not as to the existence of health issues;

(g) The commitment of the Applicant to access arrangements;

(h) The nature and extent of previous court orders and compliance therewith.

14. I have considered these areas of difference below and made determinations on the evidence received by me.

15. The Applicant had a house pre-marriage. The parties cohabited in this property premarriage and in the early stages of the marriage but sold it and thereafter there were a number of moves of residence. The evidence of the Applicant was that these moves were due to the Respondent’s unhappiness with them. The reasons for such moves were not addressed by the Respondent. I did form the view from the evidence that the final move to the current family home was based on a joint decision concerning the best interests of the children. It is clear that both parties worked hard. Both were in comfortable employments. There was support from both families of origin in relation to the moves including residing with them for periods while properties were being completed. It is also undoubtedly the case that the skills of the Applicant were such as enabled him to carry out extensive works on the properties concerned. In the course of these house moves, it is clear that the parties suffered financially through the diminution in property values subsequent to the property crash in 2009/2010. It is also clear that the Applicant’s occupation in construction suffered during the Covid period. He was most fortunate and sensible to find alternative employment at this time which enabled income continuance, albeit at a somewhat reduced level.

16. The Applicant is in rented accommodation and has been since the date of separation.

His current rented accommodation, while not ideal, is much improved from the rental circumstances of the Applicant earlier in the separation. He receives housing assistance payment in this context. The Respondent resides in the family home. Both parties are in agreement that the family home ought to be sold. I think that this should happen without delay as the uncertainty in this regard seems to be adding to the anxiety of the parties. It is unfortunate that the value of the family home is simply not enough to comfortably or easily rehouse two families and it is a fact of life that the Respondent is currently accommodating five people. The Applicant does also need accommodation sufficient to enable the boys to reside with him, although on a more occasional nature than is the case in relation to the Respondent. Both parties have families in the building trade. The Applicant is a tradesman of talent. I have to say that it was in this regard that I found his evidence least credible. The Applicant informed me that he had significant health issues concerning his knees. He is clearly awaiting medical/surgical intervention in this regard. I do not doubt that this is so. However, as with many other people awaiting such surgeries and possibly not without some degree of pain and discomfort, the Applicant is clearly in my view from the evidence continuing to operate a full and complete life and is physically active. It is evident that he drives a commercial vehicle for his work (the evidence was that this was an automatic vehicle) and he also drives a car. He is involved in an occupation which involves physical movement, walking and, more importantly, carrying. He is functioning in this employment. I heard evidence from the Respondent of occasional work or what is popularly called “nixers”.

I found the evidence of the Respondent credible in this regard. I found the photographic evidence provided to be compelling. I cannot contemplate any circumstances in which a person with a physical disability such as is described by the Applicant would be climbing on to roofs and attending at building sites absent some work/occupational aspect to so doing. I further note that the children informed the assessor that the Applicant “sometimes he works with his friend”. Clearly, such work is unrecorded and, as such, will not facilitate borrowing by the Applicant. However, it is my view that this is relevant in two respects – i. The Applicant has a skill set which will enable him to carry out work upon any property which he acquires at a well below market cost. He can acquire a modest property and improve upon it. The evidence also supported him having family and contacts in the various trades concerned.

ii. His disposable income is to some degree higher than simply that which he receives from his employment.

17. I do fully appreciate that there are only so many hours in the day and the Applicant is in gainful employment, but his evidence indicates that his position as a driver is part time only. On the evidence I have seen (the testimony of the Respondent supported by very compelling photographs) I believe that he is engaging in additional work and has additional earnings over and above his employment income. It is common case that the Applicant has Type 1 Diabetes and clearly this does require care and attention in the context of his lifestyle. This does not appear to significantly impact upon his work life or day to day activities provided such care and attention are given.

18. The Respondent asserted that the Applicant enjoyed a high lifestyle which included socialising and travel abroad. I did not find the evidence in this regard to be compelling.

The Applicant clearly has a very considerable interest in sport and engages with social events in this regard. I did not determine this to be at a level requiring adverse comment or censure in the context of financial provision.

19. The Respondent is employed in the healthcare area . She gave evidence of having long Covid and that she was attending a clinic in St. James’ Hospital in this regard. She is working on a part time basis only. I assumed that this was due to her illness but enquiry indicated that she has been working on such part time basis for a considerable period of time, long pre-dating the separation of the parties. I can understand her work arrangements in the context of being the primary carer for four children and obviously her long Covid impacts also. However, the medical report provided did not mention this long Covid (an explanation was given that she had attended a GP other than her usual practitioner). There was no report from St. James’ Hospital. I formed the view from her evidence and from her demeanour in that context that the Respondent is exhausted. It seemed to me that she was carrying a very considerable amount of responsibility for the family post-separation and that she feels very unsupported by the Applicant. Her views in this regard were understandable as she does seem to carry the primary burden of the family and the day to day activities of the children. However, this will be diminishing. She will have decisions to make as to whether she takes on additional work outside the home or not. There was dispute between the parties at hearing in relation to other occasional work carried out by the Respondent relating to sporting activities which yielded an income. Her engagement in such activities was referenced by the children in the assessment. The Respondent denies such remunerative activities. Having regard to all of the evidence before me, I concluded that the Respondent probably has some additional income from this source.

20. There is a long history of orders in this case including domestic violence, access and maintenance orders. It was the testimony of the Respondent at the hearing of this appeal that the Applicant had been convicted of breach of a domestic violence related order. I sought confirmation as to whether this was or was not the position and I afforded time for such confirmation, but it was not forthcoming. It does appear that access has been constantly frustrated for the reasons set out in this judgment. I am not certain that there has been any significant breach of court orders in this regard. A maintenance order of the 29th November 2019 appears to have been substantially complied with and I am of the view that the variation of this order in the context of Covid was substantially complied with and, indeed, I am of the view that the Applicant did his best in relation to maintenance during the Covid period which significantly impacted upon his income.

Clearly, maintenance as ordered by the Circuit Family Court at first instance herein has not been complied with and I did get the clear impression from the Applicant’s evidence that he was inclined to view his own decisions on affordability as capable of superseding court orders.

21. Allegations of property damage caused to his property were made by the Applicant against the Respondent. I was provided with photographs showing damage to the Applicant’s car. The Applicant accused the Respondent of causing such damage and the Respondent denied this. While I am unaware of any reason why any third party would cause damage to the Applicant’s car, I do not consider that the well-being of this family will be assisted by determination in this regard and I do not believe that any determination is required in the context of making proper provision which is what I am required to do. Any future such damage may result in a court having to make such determination but, hopefully, this will not arise.

22. Up to date Affidavits of Means and Welfare were sworn by the Applicant for the appeal.

The Respondent was a litigant in person for the appeal and gave evidence that her financial circumstances were unchanged from her previous Affidavit of Means. This is not strictly accurate. At the time of the Respondent’s last Affidavit of Means, she was in receipt of domiciliary allowance in respect of one of the children. This has now ceased due to the age of the child concerned. I was impressed by the evidence of the Respondent in relation to her efforts to encourage the child concerned towards an independent, working life and away from invalidity based social protection payments.

Of course, invalidity payments are available for those who need them and who ought to receive them, but it demonstrated very considerable diligence and responsible parenting that the Respondent was desirous of assisting the navigation of her children into work and the social and financial advantages derived therefrom.

23. I must record the unsatisfactory nature of the Respondent not swearing an up to date Affidavit of Means and the inadequacy of her financial vouching. I do appreciate that she appeared as a litigant in person but this does not mean that disclosure obligations are any less than apply to any other party in family law litigation in which financial reliefs are for determination. The documents which she did produce were somewhat self-serving and curtailed. She sought to rectify this during the course of the hearing and did so to some extent with documentation in soft copy. However, parties are entitled to have an opportunity to consider, query and test the financial evidence of the other party. This opportunity was denied to the Applicant herein. This is a factor to which I must have regard.

24. I want to be clear – both the Applicant and the Respondent are hard workers and are doing “main” jobs which in normal circumstances might be sufficient and could be their only occupations. The financial demands of two households are such that it is clear that any degree of provision for comfort in the future requires them to do more than ought to be sufficient. This is the price of present and future stability. The alternative will be a lack of stability into the future. Both parties appear to have some degree of family support (I formed the view probably more so for the Respondent than the Applicant).

Of course, this is not guaranteed and is not legally obligated. The financial resources here are so constrained, however, that all circumstances must be taken into account. I have also formed the view that some modest degree of borrowing might be available as both are in full time permanent occupations.

25. The fact remains that the primary responsibility for housing the dependent children (there are currently three of them) will rest with the Respondent. I quandered whether selling the family home made sense. Save in exceptional circumstances, if the family home property is sold and the proceeds divided in whatever division, unless this goes towards assisting in the housing of both in secure accommodation, there may be little point to so doing. This is especially the case where there are remaining dependent children. A modest lump sum to the Applicant would only be spent on day to day matters and might serve to exclude him from State entitlements until the resource was significantly depleted. All the while, the family home would have been disposed of and a much more modest accommodation acquired which would not meet the requirements of the Respondent and the children nearly as well. This is an issue of considerable concern. The valuation evidence before me was limited. It would appear to be agreed that the family home is worth circa. €475,000. There is an outstanding mortgage of approximately €100,000. I do appreciate that the Respondent has been discharging this in recent times with the support of her father but, of course, this is in circumstances in which the Applicant is paying rent.

26. By the time this house is sold, there will be two dependent children. The eldest child is working and hopefully the second will also be working in early course. These will be modest employments and reliance upon their family of origin and most especially the Respondent is likely to continue. The evidence of the Applicant was that he required a minimum of €160,000 to rehouse and I entirely accept that this would be in most modest accommodation which would require work. If there is approximately €360,000 (allowing for the mortgage and modest sale costs in relation to the family home), this would leave the Respondent with €200,000 only, or 55% of the sale price of the family home. I have no doubt as to the equal contributions of the parties to the family homes which they acquired and sold over the years. Of course, there were issues that arose in the context of such moves as is to be expected for any family. Of course, some houses were liked more than others. Of course, with the benefit of hindsight, different decisions might have been made which would have resulted in the parties being in a better financial position at this point. On balance, I am of the view that both worked hard to achieve the property assets which they now have. Their separation has tainted the joint endeavour but joint endeavour I believe it has been. The equal division of the family home proceeds, in my view, would not constitute proper provision in this instance as there are other important circumstances to take into account namely the rehousing of the children and the Respondent who takes primary responsibility for their day to day needs.

27. Save for the information concerning the modest property which the Applicant sought to acquire, I heard little evidence in relation to the plans of the Respondent post sale and how much it would cost her to rehouse herself and the dependent children.

28. On the basis that both parties could and, indeed, will have to endeavour to improve their income circumstances (indeed, I am of the view that the Applicant is doing so already and I would note that his current employment hours are curtailed by the housing assistance payment criteria, a situation which will not arise if he is not seeking or in receipt of this payment; the Respondent also appears to have some additional income source but likely to a more modest degree). Additionally, in the case of the Respondent, this income improvement might involve not contributing to an AVC as she currently does, working additional hours in her employment (her evidence was that such additional hours would likely be available to her), and seeking some low level contribution from the non-dependent children who reside with her; on the basis of modest borrowings; on the basis of some level of family assistance (financial or in kind), I have determined that the net proceeds of sale of the family home should be divided on a one third/two thirds basis.

29. The net proceeds should be after deduction of mortgage, legal and auctioneering costs of sale, outstanding LPT and equal division of the materials costs to decorate the property. It appears to me that the Applicant and/or other family members or friends should be in a position to carry out the necessary pre-sale works to the family home. In this context, if the Applicant is attending to carry out such works, advance notice of the time and duration should be given with full details of all persons likely to attend and the Respondent should vacate the property for this period.

Maintenance

30. There is no basis for maintenance as between the parties as both are in gainful employment. There will be two dependent children shortly. There are many expenses in this regard. I do not consider that vouching and division is appropriate in this case given the acrimony between the parties. I will therefore assess maintenance in the sum of €150 per week while there are three dependent children and, upon cessation of dependency of the eldest now dependent child, €60 per week per child or €120 per week to be paid by standing order. I furthermore order that all sports related expenditure for the dependent children should be paid by the Applicant in its entirety. The mortgage on the family home should be jointly discharged until the property is sold. If the Applicant defaults in this regard, any arrears in respect of this obligation may be deducted from his share of the net proceeds of sale.

Pension

31. The Respondent has a defined benefit pension and has contributed to an AVC over a number of years. I do not have an up to date valuation of this AVC. The oral testimony of the Respondent indicated a valuation of circa. €28,000. The Applicant contends that he encashed a pension and that this was contributed to family funds. He indicated that funds yielded amounted to in or about €25,000. I requested proof of this but this was not forthcoming. In the event that this encashment and contribution was proved, I was of the view that it would be fair and appropriate that the AVC would be equally divided between the parties. If such encashment and contribution, which was denied by the Respondent, was not proved, I determined to make no retirement pension adjustment orders. The latter transpired to be the situation so I make no such orders in respect of the pension adjustment order of the Respondent save that any death in service lump sum should be for the benefit of the maintenance and support of the dependent children during their dependency, divided equally between them, any sums remaining to belong to the child/children upon cessation of dependency. This Order to be vacated as to the percentage relevant to each child upon the cessation of dependency of that child.

Miscellaneous:

32. I will make an Order authorising the County Registrar to sign all necessary documents to give effect to the Orders herein in the event of a default by either party in so doing within 14 days of written request.

33. I will grant an order and cross-order pursuant to section 18(10) of the 1996 Act.

34. I will grant liberty to apply.

35. No order as to costs