High Court allows divorce appeal, overrides separation deed to grant maintenance and residence rights.

THE HIGH COURT

FAMILY LAW

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

RECORD NO. 2024 29 CAT

BETWEEN

L

APPLICANT/APPELLANT

-AND-

T

RESPONDENT

JUDGMENT of Mr. Justice Jordan delivered on the 25th day of July 2025.

1. This is an appeal from a Circuit Court Order following the hearing of Divorce proceedings on 03 May 2024. The proceedings were commenced by a Family Law Civil Bill which issued in September 2022.

2. The Applicant/Husband and Respondent/Wife are both working and were married for twenty-five years, having known each other for thirty years, since their early twenties

3. There are two children of the marriage namely, -

(a) A who was born in 2001, and

(b) B who born in 2006.

4. A is presently working in hospitality. He did attend third level college and completed two of four years before dropping out. He may yet return to third level education. B hopes to go on to third level education.

5. The parties entered a Deed of Separation on 04 September 2020. Both the Applicant and the Respondent attended separate solicitors in relation to the Deed. Under the Deed the Husband was to provide the sum of €100,000 to discharge the existing charges on folio … on which a cottage is situate and the remainder was to be applied to both renovating and extending the cottage and ensuring that it was finished to a comfortable level. The Husband was to pay €75 per week for each dependent child and he agreed and undertook to deal with all outstanding tax issues and to indemnify the Respondent in that regard. The Husband also undertook to accept sole responsibility for the liabilities of a family company in consideration of the Wife transferring her shares in the company to him, which she did. The Husband undertook to accept sole responsibility for the liabilities associated with a bank account and he indemnified the Wife in that regard. He was further required and did, he says, assume responsibility for all debts. Under the Deed the Wife acknowledged that at the time her circumstances were such that she did not require personal maintenance, alimony or support from the Husband and she acknowledged that she did not anticipate circumstances in the future in which it would be necessary for her to seek personal maintenance, alimony or support from the Husband. The Husband gave a like acknowledgement.

6. Under para. 8 of the Deed the parties mutually surrendered and renounced all rights either of them had under the Succession Act 1965. Under para. 9 of the Deed the parties agreed that the agreement constituted proper provision in the event of Divorce proceedings – and was in full and final settlement of all present and future property and financial claims which either of them might have against the other. Clause 9 of the deed of separation went on to provide that in the event that either of the spouses sought a decree of Divorce in the future then the parties thereby agreed and acknowledged that the only orders and consents to be made in those proceedings were orders and consents in the terms of the Separation Agreement.

7. Amongst other things clause 9 provided that the parties agreed that each of them had executed the Deed on the basis of full disclosure of all their respective material assets, income, liabilities, outgoings and pension entitlements (if any).

8. The family home remains registered in the name of the Husband’s mother (now deceased). His father is entitled to his Wife’s estate but the evidence did not reveal at what stage the administration is at. It is clear that the title to the family home needs to be sorted out and could easily be sorted out if the Husband wanted that to happen. It appears that the title was to be registered in the name of the Husband. A transfer into the joint names of the Husband and Wife would apparently give rise to tax issues. Of note however is the fact that the mortgage on the Family Home is in the joint names of the Husband and Wife. The practical reality is that the Family Home is and has been regarded as jointly owned by the Husband and Wife even though the legal title is not sorted out. Clause 1(c) of the Deed of Separation states “The family home is at …………… and is currently in joint names of the Husband and Wife - ……..”

9. Insofar as the cottage is concerned it appears that there would be no difficulty at this stage in it being transferred into the name of the Wife. However, Retention Planning Permission has had to be applied for and has proved less straightforward than the Court was initially led to believe it would be. It has not yet issued. The up-to-date position is that some works have to be carried out to satisfy the local authority. The court has been advised that these works will cost about €20,000.00 and that the Retention Planning Permission should thereafter issue.

10. The Husband has for decades farmed the substantial farm holding which is in his Father’s name. He has been the sibling with an interest in farming whereas his other siblings are involved in other businesses and occupations. In evidence he said that he has been leasing the lands from his Father and he maintained that he was unlikely to get the lands – whether by inheritance or otherwise.

11. A curious feature of the case is that the Husband is clearly a man of assets but with little legally held in his name. On any view however, the Deed of Separation is of much greater benefit to the Husband than it is to the Wife.

12. Having heard the evidence, the Court is quite satisfied that the substantial farm holding lay at the core of the thinking behind the Separation Agreement and that its protection was a carefully considered objective which was pursued with military precision by the Husband. The farm holding is made up of different farms or holdings

- and may be referred to as the farm or farms.

13. The Husband is from a family of successful businesspeople. The financial crash of 2008 and its aftermath had significant consequences for the family business interests. However, it is clear from the evidence that the siblings of the Husband remain people of substance who pursued their own business careers - whereas the Husband has always been involved in farming the family lands. He was involved in construction but that was a victim of the crash. He remains involved in farming and in another business. The other business is adjacent to a Council facilityand is situated next to family farmland and to the family home.

The Law

14. In the case of Q.R. -v- S.T. [2016] IECA 421, Irvine J. at para. 62 states: - “[62.] The policy considerations which underlie the obligation of parties to be candid and to fully comply with their disclosure obligations in judicial separation and divorce proceedings are well described by Baroness Hale in her

decision in Prest v. Petrodel [2013] AC 415 where, in the context of divorce proceedings, she stated the following at p. 504: ‘There is a public interest in spouses making proper provision for one another, both during and after their marriage, in particular when there are children to be cared for and educated, but also for all the other reasons explored in cases such as McFarlane v McFarlane [2006] 2 AC 618. This means that the court’s role is an inquisitorial one. It also means the parties have a duty, not only to one another, but also to the court, to make full and frank disclosure of all the material facts which are relevant to the exercise of the court’s powers, including of course their resources: see Livesy (formerly Jenkins) v Jenkins [1985] AC

424. If they do not do so, the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.’”

15. In the case of A.A. v. B.A. [2014] IESC 49 Irvine J. found that it was highly likely that even at that stage that the full extent of the husband’s assets at the time of the judicial separation/divorce were not known. Irvine J. distinguished the situation in the Q.R. case. Clarke J. in the Supreme Court upheld the decision of Irvine J. on “substantial and material non-disclosure”. This was in the context of a set-aside case. In her judgment in the High Court decision, Irvine J. referred to the duty of disclosure and emphasized that there is a statutory and constitutional obligation on the Court to consider what constitutes proper provision for the parties and their dependants at the time when it is asked to grant a decree of divorce and in the context of judicial separation there is a statutory obligation on the Court to consider what constitutes proper provision. This a Court can do only when it is fully familiar with the true financial position of the parties. Without the full financial circumstances being brought to the attention of the Court, it cannot fulfil its obligations. The disclosure obligations continue to apply to the parties to notify each other and the Court of any change in their circumstances at any date up to and including the point at which the proceedings are finally disposed of.

16. A useful statement concerning what is meant by “proper provision” is the dicta of Murray J. in D.T. v. C.T. [2002] 3 I.R. 334 at p. 408: - “Proper provision should seek to reflect the equal partnership of the spouses. Proper provision for a spouse who falls into the category of a financially dependent spouse (where the other spouse is the source or owner of all or the bulk of income or assets of the marriage) should seek, so far as the circumstances of the case permit, to ensure that the spouse is not only in a position to meet her financial liabilities and obligations, continue with a standard of living commensurate with her standard of living during marriage but to enjoy what may reasonably be regarded as the fruits of the marriage so that she can live an independent life and have security in the control of her own affairs, with a personal dignity that such autonomy confers, without necessarily being dependant on receiving periodic payments for the rest of her life from her former husband.”

17. In the recent Court of Appeal case of N.O. -v- P.Q. [2021] IECA 177, the farm at issue was one hundred acres (plus the family home valued at €1.1 million) and was farmed by the husband with his father through a company, the father having transferred the farm to the husband.

At paras. 47 and 48 Whelan J. states: -

“[47]....The role of the court under each statutory framework is the same; namely, to endeavour to ensure that the couple together with their dependants are properly provided for having due regard to the non-exhaustive statutory checklist of factors adumbrated and ‘all the circumstances of the case’ as s. 16(1) mandates. [48.] The extensive jurisprudence in regard to ‘proper provision’, in the context of the granting of decrees of divorce, is therefore relevant and of assistance in carrying out the statutory exercise, particularly having regard to the factors specified in s. 16(2) which are to be taken into account by the court in carrying out that exercise. The said factors and matters are not in any sense exhaustive as the words ‘in particular’ in s. 16(2) make clear.”

Whelan J. goes on to state: -

“In Q. R. v. S.T. Irvine J. (as she then was) had characterised the approach to the exercise of discretion by the trial judge in accordance with the statutory provision thus: - ‘106. The onus on the trial judge in the present case was to consider all of the assets potentially available and then to fashion orders for ancillary relief that would likely secure for the parties and for their lifetime the lifestyle which they enjoyed prior to the marriage breakdown…’”

18. The recent case of M. v S. [2020] IEHC 562 contains a clear summary of applicable principles from para. 58 on. Dealing with “Non-Discrimination” at p.43, Barrett J. states: - “[20] The work of a spouse in the home cannot be a basis for discriminating against her by reason only of the fact that the husband was the major earner or the breadwinner during the course of the marriage (D.T. v. C.T., Murray J., at p. 427). Lord Nicholls, in White v White [2001] 1 A.C. 596 emphasised that the whole tenor of English divorce legislation was the avoidance of a discriminatory approach: the fact that, as often happened, the wife had devoted the greater part of her time to looking after the children and caring for the home generally, was no ground for confining her share of the family assets, in the event of a breakdown of the marriage, to so much of the assets as met her ‘reasonable requirements’.

That is also the law in Ireland (D.T. v. C.T., Keane C.J., at p. 389). In Cowan v Cowan [2002] Fam. 97, a so-called ‘ample resources’ case, Thorpe U, at pp. 118-19, summarised his understanding of White v White [2001] 1 A.C. 596 as follows, ‘Disapproved is any discriminatory appraisal of the traditional role of the woman as home maker and of the man as breadwinner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross check against such discrimination…Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements.’ Provided that it is always borne in mind that in ‘ample resources’ cases an equal division of assets is emphatically not mandated by the legislation, Keane C.J. considered that there should be no difficulty in adopting a broadly similar approach in this jurisdiction. (D.T. v.

C.T., Keane C.J., at pp. 389-90). When a court is exercising its discretion in making provision for spouses on an application for divorce, the following should be considered: (i) in making such provision a spouse who has worked principally in the home during the course of the marriage should not be disadvantaged in the making of such provision by reason of that fact; (ii) both spouses are entitled, in principle, to seek that the provision made for them provides them with a measure of independence and security in their lives and there is no reason why, in principle, a non-earning spouse should be confined to periodic payments.

The extent to which this can be achieved in practice will depend on the circumstances of the case, the resources available and the exercise of the judicial discretion in taking into account all the factors referred to in s.20; (iii) a court has power to direct the payment of lump sum payments where this is considered an appropriate means of making proper provision for one or other of the spouses; (iv) all the resources, assets and income of the applicant and the respondent should be taken into account (D.T. v. C.T., Murray J., at pp. 431-32).”

19. The authorities do make clear that -

i) The appropriate date for assessment of assets is the date of the trial;

ii) Discrimination based on the particular role of a spouse in a marriage - for example, the wife as homemaker - is not permissible; iii) Each case must turn on and be decided on its own circumstances and proper provision must be assessed having regard to those circumstances;

iv) There is no rule requiring an equal division of assets (i.e. provision not division).

v) The manner in which assets are held is not to be a significant focus of the court (i.e. jointly or solely).

20. In D.T. v C.T [2002] 3 I.R. 334 the Supreme Court considered that a yardstick of one-third was a useful benchmark at the lower end of the scale - in terms of fairness when looking at the specific circumstances.

Discussion.

21. The need for transparency and honesty when swearing an affidavit of means and when giving and presenting evidence in cases where proper provision is being considered is obvious. A Court is effectively obstructed when deciding on what is proper provision where it is not provided with reliable or complete evidence concerning the means of either one or both of the parties. Transparency, care and thought should go into the preparation of an affidavit of means with a view to presenting an honest, clear and comprehensive sworn affidavit as to the means of the deponent – and in the knowledge that the Court requires full and frank disclosure of all the material facts concerning the resources. Credible evidence is required to persuade the Court of the veracity of the averments as the Court must know that the information presented is complete, correct and reliable.

22. The Husband is an astute and plausible individual from a business background. His sister gave evidence on a discrete issue. She impressed, like the Husband, as a formidable and astute business person. This is of some relevance in the context of what the Wife had to say about the Deed of Separation and in a context where she said she struggled being visible in the marriage relationship. She explained the family business background which she married into and explained that it was, for her, a case of falling in or being reigned in.

23. At the time of a Revenue audit the Wife felt she was being unfairly blamed by the family for issues arising in the audit. As a result, she said that she stepped out of the marriage in 2017 and went to a solicitor for advice. This was the solicitor who was subsequently involved for her at the time the Deed of Separation was executed.

24. Sometime after the split in the marriage occurred the Husband suggested mediation. They attended but it did not work.

25. Then in July 2018 the Wife explained that the Husband inquired if there was a chance of a reconciliation. She explained how he broke down and told her he knew how difficult it was for her with his family. She explained that she thought he was genuine and that they got back together. She explained that she wanted to commit and believed him one hundred percent.

26. Then after a few weeks the Husband said to her that they would have to have a chat – about a legal separation. She said that she and her husband and the two children sat down around the table and that he explained to them the need for the legal separation. If there was a legal separation it would allow them to go forward and receive the farms which would not happen otherwise. He explained that it would all be okay as it would only be on paper.

27. This theme was developed by the Husband explaining that they could build/renovate a cottage he owned and use it for Airbnb and that he would put it in the Wife’s name until such time as the family farm was sorted out. The Wife explained that the Husband told her what to say. She explained that he would look at the emails from her solicitor and tell her how to reply. The Wife explained that she felt very pressured by everything as her Husband had made it clear that she would be responsible for he/the kids not getting the land if she did not do the Separation Agreement. The Wife went on to say that she and her Husband were intimate until the end of January 2021. The Court accepts that there was an intimate relationship between the Husband and Wife after the execution of the Separation Agreement – and this is consistent with her belief as to the reason for and effect of the Deed.

28. It should also be borne in mind that the breakdown occurred in 2017 and there was a “reconciliation” of sorts in July 2018. On the evidence, the Court is satisfied that the requisite period under Section 5(1)(a) of the Family Law (Divorce) Act 1996 is satisfied.

29. The Wife explained that six weeks or so after the Separation Agreement her Husband did a 360 or a 180. She said that he told her what he had done and that she could do nothing about it as long as he did what he was supposed to do under the Separation Agreement. The Wife explained that she was reeling from the deceit at the beginning. She explained that her Husband had turned nasty and would say nasty things to her – such as “I am black by nature” and “you don’t leave a ……….. (the family name is here redacted) - you came from nothing and you will go back to nothing”. She explained that his relationship with his kids deteriorated and that he told them that they had backed the wrong side.

30. Essentially, the Wife’s case boiled down to an assertion by her that she was fooled into signing the Deed of Separation by believing what she was told by her Husband. In effect, she believed that the signing of the Deed of Separation was a necessary ruse in order to ensure that the farm would be transferred into her Husband’s name by his father. As things transpired, she found out that she had been fooled into signing a Separation Deed which was to have the intended consequence of getting her out of the family home and into the cottage (where she never wanted to be) – and very little else. The Deed was really about the husband protecting his wealth.

31. On behalf of the Husband it has been urged on the Court that there is a heavy onus on the Wife to prove that the Deed of Separation was bogus and is not binding on her.

32. In the circumstances of the case the Court is approaching the matter on the basis that it is for the Wife to prove what she asserts insofar as the bogus nature of the Deed of Separation is concerned.

33. It is easy, and perhaps inevitable, that one is drawn in by an argument in these circumstances that the Court is dealing simply with a person who has repented on her bargain – having been afforded ample time to consider the options and having had the benefit of independent legal advice.

34. Much turns on the credibility and reliability of the evidence of each of the spouses. On this, and having regard to all of the evidence, the Court is entirely satisfied that the Wife was a credible historian and that her evidence is reliable. The same cannot be said of the Husband or his evidence.

35. In terms of credibility, there were many aspects of the Husband’s evidence and behaviour which although small in themselves did raise (when taken together) serious concerns in relation to his credibility and ultimately undermined his credibility entirely.

Though not exhaustive, the following points are worth noting; -

(a) The cottage which was to be the Wife’s under the separation agreement – and which was much of what she was getting – still did not have planning permission in order at the time of the Appeal hearing. A retention application was pending. The first retention application was rejected because of an issue concerning the site notice. As mentioned above, the Retention Planning Permission is still awaited and requires further works at substantial cost.

(b) The Court accepts the Wife’s evidence concerning the pile of stone or gravel which appeared outside the rear gate/pillars of the family home shortly after the Circuit Court Order. Again, the Husband has a plausible explanation and rejects utterly any suggestion that there was any malevolence on his part in placing the stone there. Furthermore, he says there is plenty of room to get by. In fact, the placing of the stones where they were placed by the Husband – at the time – was deliberate and was intended to be threatening in terms of what the future held.

(c) Great play was made – undoubtedly on the specific instructions of the Husband – of the fact that the Wife had given the Husband’s sister her authority to deal with the Revenue Commissioners on her behalf resulting in the sister (and thus the Husband) having full access to the Wife’s bank accounts and Revenue documentation. An unsigned copy of the authority to the family accountants was produced. The Court is completely satisfied that these family accountants took their instructions from the Husband - and the Wife had really no say in that regard although they dealt with her accounts also. It is likely that the authority was signed. However, if signed, and if actually signed by the Husband and Wife, that is something which occurred at the direction of the Husband. A letter from the Revenue Commissioners to the Wife which was produced in evidence was a letter to her - but was addressed to the home of the Father of the Husband.

(d) The Husband was anxious to paint a picture of difficulties with the family home. One difficulty was that the access was through the farmyard. Although there is a different and direct tarred laneway leading to the house (and the separate business) the Husband had a story about there being difficulties with the use of this. In the Husband’s evidence he said that it was due to an agreement with the County Council as the gates had to be kept locked. Of late these gates

– which are electric – are not locked at all times. It was manifestly obvious to the Court that there was no difficulty using the direct tarred laneway to gain access to the family home - and it has been used for that purpose for over twenty years without any problem. In addition, the rear access to a minor road on the southside of the farm was problematic according to the Husband because of the elevations and the condition of the surface. The Wife gave evidence – which the Court accepts – of driving in and out this way without difficulty even though her car is a small vehicle (as did her Husband and his father). More recently there has been a difficulty because of the pile of stones placed by the Husband outside the rear gate of the family home.

(e) It is clear to the Court that the Husband has leveraged the absence of his name on titles to property to his advantage – or has sought to do so. There is absolutely no doubt but that the Husband has been earmarked and destined to acquire the family lands. If that does not actually happen then that will be because of a further ploy/strategy and subterfuge on the part of the Husband with assistance from others.

(f) The Husband was wholly unconvincing in relation to his “worth”. The Court believes that the Husband has not made full disclosure of his assets and income.

36. The Court has carefully considered the written submissions - and oral submissions made during the case - on behalf of both parties. The Husband’s representatives have the difficult task of trying to persuade the Court to give effect to the Deed of Separation. The arguments in support of it raise legal and procedural issues but fail to grapple with the following fundamental points: -

(a) When the legislation speaks of a Deed of Separation (as in Section 20(3)) it is speaking of a legitimate Deed of Separation. If the Deed is bogus (as here) the Court cannot ignore that fact.

(b) The Court must in any event be satisfied that proper provision exists or will be made having regard to the circumstances for the spouses and any dependent members of the family.

(c) The latter imperative requires the Court to look closely at any Deed of Separation. In this case there is a Deed of Separation “still in force” and the Court has given it very careful consideration. It is however a bogus or sham Deed and this means that little or no weight can be given to it - and in particular to the terms purporting to make provision for the wife and dependent child. It is not necessary to declare the Deed void as one might in a Deed Suit challenging an improvident transfer. This is so because a Deed of Separation cannot oust the Court’s jurisdiction and duty to see to it that proper provision exists or will be made having regard to the circumstances for the spouses and any dependent members of the family.

37. Returning then to the finances, insofar as his debts and liabilities are concerned, the following are worth noting; -

(a) The Husband says he owes €42,500 in respect of a soft loan which he says he received in order to pay Revenue following the Revenue audit. There is no persuasive evidence that he has any liability in this regard.

(b) Similarly, he says that he owes €38,500 in respect of a back taxes loan agreement for the period 2013 to 2019. This is a loan which he says he received from his father. Again, there is no persuasive evidence that such a liability exists.

(c) The Husband says he owes €183,000 in respect of the cost of doing up the cottage. This he says is owed to family and friends who have given him credit. Again, there is no credible evidence to substantiate the existence of such a loan.

Asserting such a liability is part of the husband’s audacious effort to mislead the court as to his worth.

(d) The Husband says that he owes professional fees as a result of the audit in the sum of €35,100. Again, there is no persuasive evidence of such a debt – although one would have thought it easily obtained if such a debt did exist.

38. The Court is entitled to have credible evidence produced to satisfy it of alleged debts and loans. It ought not to be difficult to prove legitimate debts and loans by convincing evidence - whether that be paperwork or oral testimony, or a combination of both. Here it is as if the Husband believes that his say-so is sufficient and that it is for the wife to dis-prove the alleged liabilities. Absent from this thought process is the realisation that the Court must assess the evidence and decide where the truth lies. When a spouse asserts that certain liabilities exist and fails to prove their existence to the satisfaction of the Court then the Court will draw necessary inferences. The most obvious of those inferences is that the spouse is attempting to mislead the Court as to his or her true worth by asserting liabilities which do not exist. Such an inference is necessary here – and indeed it is manifestly obvious that the Husband has sought to mislead the Court as to his true worth and income.

39. Ultimately, we are here dealing with a situation where the Court must ensure that proper provision is made in accordance with the legislation and the Constitution. The Court is entirely satisfied that the Separation Agreement was not a bona fide agreement by reason of the deliberate deception/deceptions on the part of the Husband. The Husband literally led his wife up the garden path and fooled her into signing the Deed of Separation by persuading her that the farm would be lost to himself and the children if she did not do so. His true motivation and objective was to resolve the financial issues arising out of the breakdown of the marriage at the bare minimum of cost and for a price far removed from what proper provision actually is.

40. It is unfortunate that the Husband has chosen to approach the case in the way he has. He has left the Court without a comprehensive and correct picture of his “worth” and the Court is satisfied that he has concealed his true worth.

41. The Court must proceed and make provision having regard to all of the circumstances and the available evidence. It must draw such inferences as can properly be drawn from all the available material, including what has been disclosed, it’s experience of what is likely to be concealed and the inherent probabilities, in deciding what the facts are.

42. The Court is satisfied that the Husband is wealthier than he pretends to be in so far as assets are concerned. He has failed to properly acknowledge his beneficial ownership of the Family Home and he has deliberately failed to put that title in order although that is easily done. He has sought to pretend that he is not beneficially entitled to valuable assets/farmland which he is entitled to. The pretence in this regard may continue or be maintained and possibly be developed long after this judgment is delivered - if he considers that to be to his advantage. He has less liabilities than he says and he has a greater income than he has deposed to. For example, in the absence of any persuasive evidence as to the alleged credit availed of to renovate the cottage the Court believes that this alleged debt (or the vast majority of it) is a myth - and that the Husband has cash resources and income greater than he has disclosed.

43. It is necessary to consider section 20 of the Family Law (Divorce) Act 1996, which sets out at subsection (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 each of the spouses concerned has or is likely to have in the foreseeable future, The affidavit of means of the Wife which was sworn on 10 March 2025 shows a modest monthly income - and apart from the interest which she has in the family home the Wife has little in the way of assets. It does appear that her employment is stable but it should also be borne in mind that working at home/from home is important to her and it does seem clear that the family home is suited for this purpose – whereas the cottage is not.

The Court has already expressed its view in relation to the Husband’s affidavit of means. The affidavit of means sworn on 11 March 2025 by the Husband is simply not credible. The Husband has failed to make full disclosure of his assets, income and resources. The Court is satisfied that his income is greater than he has maintained. It is satisfied that his assets are greater than he has maintained. Furthermore, the Court is satisfied that much of the alleged debts and liabilities do not in fact exist. Whatever the Husband’s actual income is it does seem probable that it will continue into the future. The Court is satisfied that the Husband is beneficially entitled to assets (and in particular farmland) which is not in his name. As mentioned above, it is quite possible that the Husband will maintain this situation – or develop it – in the hope that doing so will be to his advantage.

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage [or registration in a civil partnership] of the spouse or otherwise), The Wife does need proper and suitable accommodation for herself and the children - and to allow her to continue her current employment. The youngest child remains dependent, and it seems will remain dependent for some time to come – and possibly to age 23. The eldest although no longer qualifying as a dependant because of his age may return to third level education and “be on the books” again whilst in education. The Wife does need maintenance payments from the Husband in respect of the dependent child. In the ordinary course of events one would expect both spouses to support the eldest son if he does return to third level education – but unfortunately there is a likelihood that the father will seek to avoid any such moral obligation.

The father does need to be in a position – like the mother – to provide for himself and to have suitable accommodation. In this regard, he is fortunate that the cottage is available - and it is built/renovated to a high standard and apparently in a good location. On his behalf it is submitted that Retention Planning Permission should issue once certain works required by the local authority are carried out.

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be, It does seem that the family enjoyed a comfortable lifestyle before the marriage breakdown although it cannot be described as an ostentatious lifestyle.

(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another, The Wife is 54 years of age, and the Husband is 55 years of age. The parties got married in 1996 and they had known each other from a young age.

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

It does appear that the Husband enjoys good health - and he presents as a very fit and active middle aged man.

The Wife suffers from rheumatoid arthritis which is erosive in nature. The Wife also has a variety of musculoskeletal complaints which are not related to the rheumatoid. Her disease burden is rated at moderate to severe. Rheumatoid is not curable and lifelong treatment is anticipated. Joint damage already accrued can cause progressive functional decline. The condition has been relapsing and remitting since 2010. She has been attending her doctor several times a year due to difficulties controlling the symptoms. The medications are difficult to tolerate. Typically there is joint pain, stiffness, joint swelling – especially of the feet and hands. There is associated fatigue and anaemia – all of which the wife has experienced. She is aware of constant generalised stiffness.

Her doctor states that the combination of acute events have undeniably impacted on the wife’s activities of daily living and her capacity to live a normal life. She balances disease symptoms and medication side effects as best she can and is obviously very compromised at times to fulfil daily tasks.

The Wife’s health condition is a significant consideration insofar as proper provision is concerned. Her health condition creates a vulnerability for the future – in terms of earning potential and in general.

The Court finds the Covenants against maintenance for the Wife in the Deed of Separation to offend against proper provision in the circumstances – and declares the Covenants attempting to prevent the Wife from seeking and/or being awarded maintenance unenforceable. The Court will declare that the wife is entitled to apply for spousal maintenance in the future if she wishes to do so and if she considers that the circumstances support such an application. This is required in view of the Wife’s health and the Husband’s failure to make full and honest financial disclosure. Any such application in the future will be for the court hearing same to determine in light of the evidence.

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family, It is apparent that the Husband and Wife were hardworking and industrious people. They worked well as a team up until the marriage breakdown. It is clear that the Wife was a hardworking member of the team insofar as the farm enterprise and the other business were concerned – and it is also clear that she got little credit for her work. The Wife was taken for granted by the Husband. After the audit difficulties around 2013 the Wife was effectively sidelined. She decided to study at night and did an honours degreea four-year degree commencing in 2013. Following qualification she has done well in terms of employment – and has maintained employment – although the income is relatively modest.

It is the position that the Husband has worked hard and has generated wealth (the full extent of which is not disclosed by him). Like many others he did suffer financially as a result of the financial collapse in 2008/2009. Even so, the Husband clearly has income and resources which he has not fully disclosed - and he is entitled to assets (and in particular farmland) which he will not admit to – and seeks to conceal.

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family, In addition to the matters detailed in the previous paragraph it must be observed that the Wife would be in a much stronger position financially – and in a much stronger position going forward – if she had started her degree many years earlier rather than committing herself fully to her Husband’s business interests (and in particular the farming and the other business in latter years) – which work was in addition to the work she did in looking after the home. While the Wife no doubt enjoyed the benefits of the income from the businesses – along with the Husband and the rest of the family – she is left with little assets of her own, no pension, no real savings and little to show apart from her interest in the family home and a car. At the time when the marriage breakdown was occurring she was commencing workas a middle aged woman with not insignificant health issues.

(h) any income or benefits to which either of the spouses is entitled by or under statute, Little turns on this consideration.

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it, This is not a case of gross and obvious misconduct although the Husband’s behaviour in trying to limit the provision in favour of his Wife is disgraceful.

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

The accommodation needs of the Husband and Wife are detailed above. Fortunately, there is a newly renovated house (the cottage) available for the husband to move into. There is in addition perhaps the ….. House – another large dwelling which featured in the evidence - and which remained something of a mystery at the close of the case in terms of ownership and title.

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring, The Wife has no pension scheme and the husband has deposed to a small pension in his most recent affidavit of means which he says is worth €27,661.94.

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried. No issue arises under this heading.

44. Section 20(3) provides; -

“ In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.” As previously indicated the reference to the terms of any separation agreement clearly contemplates a legitimate or bona fide separation agreement. The Court notes the terms of the separation agreement in this instance but in circumstances where it is satisfied that it is not a legitimate or bona fide separation agreement. The deed of separation here was the strategy decided upon by the husband to seek to minimise the provision in favour of his wife following the breakdown of the marriage – with a particular emphasis on the protection and preservation of the family farm which has always been earmarked for the husband. The Court will reiterate also that it must ultimately see to it that proper provision is made.

If what is contained in a deed of separation does not constitute proper provision then the Court has an obligation to address that – and rectify it – when granting a decree of divorce.

It must also be observed that the requirement is to “have regard to”. While a court is obliged to consider the terms of any Separation Agreement between the spouses which is still in force it is not obliged to follow or slavishly adhere to a Separation Agreement.

45. The Court is satisfied that the deed of separation does not make proper provision for the Wife. The Court proposes to deal with proper provision in a manner similar to the Circuit Court order – but with some changes.

46. The court order is as follows; -

(a) Insofar as may be necessary, an order affirming the decree of divorce pursuant to s.5(1) of the Family Law (Divorce) Act 1996 (as amended).

(b) An order pursuant to s.14(1) of the 1996 Act directing the transfer without delay of the Husband’s beneficial interest in the family home, free from incumbrances, into the sole name of the Wife.

(c) An order directing the Husband to do what is necessary and as soon as possible and at his expense to secure the registration of the Wife as full owner of the family home free from incumbrances - such title and registration to include sufficient lands and all necessary rights of way and/or easements for services and access (via the tarred road from the north and the other road to the south) and so that the family home is compliant with any planning permission relating to the property and so that the property has a good and marketable title. For the avoidance of doubt, the Husband is to discharge the mortgage on the property.

(d) A permanent injunction restraining the Husband from interfering in any way with the Wife’s quiet and peaceful use and enjoyment of the property aforesaid and the easements, services and accesses thereto.

(e) An order pursuant to s.18(10) of the 1996 Act extinguishing the Husband’s succession rights to the Wife’s estate.

(f) An order pursuant to s.18(10) of the 1996 Act extinguishing the Wife’s succession rights to the Husband’s estate but this is wholly conditional upon the Husband complying with and completing (b) and (c) above in accordance with this judgment.

(g) An order pursuant to s.15(1)(a)(i) of the 1996 Act conferring on the Wife the right to reside in the family home to the exclusion of the Husband – effective forthwith.

(h) An order that the Husband pay to the Wife a sum of €100,000 in two instalments – a sum of €50,000 to be paid on or before 15 December 2025 and a further instalment to be paid on or before 20 July 2026. In default of payment by the due dates then the balance outstanding is to carry interest at the Courts Act rate from the date of default. The sum of €100,000 is to stand charged against the property comprised in folio … until the full sum (including any interest accrued pursuant to the Courts Act) is paid.

(i) An order that property comprised in folio … is to remain registered in the name of the Husband and that the Wife is not entitled to reside there.

(j) An order that the Husband do pay the sum of €440.00 per month to the Wife’s bank account in respect of the maintenance of B whilst she is a dependent (plus his share of the expenses referred to at Covenant 3.4 of the Separation Agreement).

(k) A nil or nominal pension adjustment order pursuant to S.17(2) and S.17(3) of the 1996 Act – mutually as against the parties – with liberty to apply for a formal pension adjustment order if required.

(l) An order permitting the County Registrar to execute any documents necessary to give effect to this Court order in the event of either party failing to do so within 21 days of request being made of them.

(m) A Declaration that the Deed of Separation does not prevent the Wife applying for spousal maintenance in the future - or being awarded same.

(n) A Declaration that the Husband has sole responsibility for the mortgage, debts and liabilities as referred to at clauses 3.6 – 3.7 – 3.8 – 7.1 of the Deed of Separation and is to indemnify the Wife fully in that regard.

(o) Liberty to apply to the Circuit Court.

47. The Court will hear submissions from both sides in relation to the issue of costs and the form of the order and any matters arising.

Addendum. The Court heard from the parties and dealt with some matters outstanding and finalised the order on the 31st of July 2025. It awarded 75% of the costs of the Appeal to the Wife

– a discount was applied in circumstances where the Wife’s side had through some inadvertence failed to appear for the hearing of the Appeal when the matter was first listed for hearing. The Husband’s side was then present and ready to proceed and had thereby incurred costs which were wasted.