High Court grants divorce decree and orders property division favoring financially dependent wife.

THE HIGH COURT

FAMILY LAW

[2025] IEHC 612

RECORD NO. 2024 82 CAF

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

BETWEEN

H

APPLICANT/RESPONDENT

-AND-

K

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Jordan delivered on the 15th day of July, 2025.

1. These are proceedings for a Decree of Divorce and ancillary orders pursuant to the Family Law (Divorce) Act 1996, as amended. The proceedings were heard and determined by the Circuit Court on 12 December 2024. The appellant lodged a Notice of Appeal on 16 December 2024.

2. The parties were married in October 1995 at a Roman Catholic Church in County Dublin. They commenced living separate and apart in the Summer of 2015 and the appellant left the family home in November 2020.

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

• A, born in 2001, and

• B, born in 2003. The appellant has a child from a previous relationship, C, in their mid-30s.

4. The family home in Kildare is subject to a small remaining mortgage in favour of the bank - which will be paid off within months. The value of the Family Home is agreed at €605,000.

5. The husband is in his early 60s. The wife is in her late 50s.

6. The wife works with a local authority.

7. The husband is a shareholder of a company. The husband’s expert has valued his 50% share in this company in the range of €10,000 to €20,000. The wife’s expert values the 50% interest in the company at €300,000. The Law.

8. 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.

9. An explanation of what is meant by “proper provision” is to be found in 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.”

10. In the Court of Appeal case of N.O. -v- P.Q. [2021] IECA 177, at paras. 47 and 48 - when discussing the making of proper provision in Judicial Separation and Divorce proceedings - 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” ….. [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 ….. 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.”

11. The unreported case of M. v S. [2020] IEHC 562 contains a clear summary of applicable principles from para. 64 on. Dealing with “Non-Discrimination” 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). [21] 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). [22] In Cowan v Cowan [2002] Fam. 97, a so-called ‘ample resources’ case, Thorpe LJ, 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). [23] 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).”

12. The Supreme Court decision in D.T. v C.T [2002] 3 I.R. 334 is authority for the following propositions:-

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 and be decided on its own circumstances and proper provision must be assessed having regard to those circumstances;

iv) There is no provision requiring equal division of assets. Some cases may require a greater division in favour of a dependent wife for instance, particularly where there are dependent children and others may require a lesser portion due to other factors like inheritance.

13. The scheme established provides for proper provision, not division. It is not a question of dividing the assets at the trial on a percentage or equal basis. That is not to say that a court might not consider approaching the matter on the basis of an equal division. That may well be appropriate and proper provision in the case of a long marriage for example. All the circumstances of the family, including the particular factors referred to in the Act are relevant in assessing the matter of provision from the assets. In D.T. v C.T [2002] 3 I.R. 334 the Supreme Court considered a yardstick of one-third as being a useful benchmark at the lower end of the scale – and which may be a useful guide to fairness when looking at the specific circumstances and the factors in s. 20. The Court has a broad discretion to be exercised fairly, which discretion is only circumscribed by the matters in Section 20 of the 1996 Act.

Section 20 of the Family Law (Divorce) Act 1996.

14. It is necessary to turn now to Section 20 and to consider the factors listed. The Court will do so be reference to the section and deal with the factors in order: - ‘20.—(1) In deciding whether to make an order under section 12, 13, 14 , 15 (1) (a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.

(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 income of the parties is relatively modest as are the available assets. However, the husband’s business is doing well and appears to be growing. The husband has a potential for increased earnings which the wife does not. Talk of the wife’s prospects of an inheritance are quite speculative.

(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 essential need of both, apart from the cost of daily living, is accommodation. While there is substantial equity in the family home the total resources are such that providing two homes in the Dublin area is problematic. The two children reside with their mother and are estranged from their father although he hopes that this will change. The mother has carried most of the responsibility for the education and other expenses of the children since the father left the family home and this looks set to continue for a few years given the age of the children.

(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. The family lived a modest but comfortable lifestyle which both worked hard to maintain.

(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. This was a long marriage and the parties were together for 20 years or so before the marriage failed. They are now within 10 years or so of normal retirement age.

(e) any physical or mental disability of either of the spouses. The wife does have some health issues but she is doing well at work and in general. The husband does not complain of any health issues and appears to be in good health.

(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. The parties worked well together in establishing and operating the business which is now part of the company. Since the husband left the family home the wife has looked after the home and family. The assistance provided by the husband has essentially been the payment of the mortgage and LPT. While he does say he sought to arrange payment of maintenance and failed to do so after he left the family home it is difficult to understand why he did not arrange a monthly payment into a Bank Account to assist the wife with daily expenses and education costs. Education costs will continue into the future notwithstanding the age of the two children. The court will fix a figure for spousal maintenance for a number of years into the future as the mother will be maintaining the children for some time to come. The father in evidence confirmed a willingness to be supportive of his two children.

(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.

The business was a small family business – as indeed was another small family business while it operated. Of relevance is the fact that the husband now has this business as part of the company - which he co-owns with a good friend who is really a passive investor in the company. If the wife had stayed on in employment or gone back to work earlier rather than working in the family business it is likely that she would be better positioned at work now – both in terms of earnings and pension entitlements.

(h) any income or benefits to which either of the spouses is entitled by or under statute. It seems that both spouses will be entitled to the contributory old age pension.

(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. No issue arises in this regard.

(j) the accommodation needs of either of the spouses. As already pointed out this is the core issue.

(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. Nothing of any great significance arises for consideration.

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried. Again, nothing arises for consideration.

15. The Court heard evidence from an expert on each side concerning the Valuation of the company. The wife’s expert valued the company at €600,000 and the husbands share in it at €300,000. The husband’s expert who gave evidence valued the husband’s interest in the company in the range of €10,000 to €20,000. In an affidavit grounding his application for a stay on the Circuit Court Order the husband averred that “The total value of the business on my valuation is €316,000 and on the Applicant’s valuation is €600.000, of which I am entitled to half ”. In so far as the husband’s expert’s valuation of the company is concerned it is impossible to reconcile it with the evidence concerning the success and steady performance of this small business. The company accounts show it to have solid revenue and profits and a sound financial status. It’s bank balances were as follows for the years indicated: -

- 2019 €69,000

- 2020 €141,000

- 2021 €163,000

- 2022 €188,000

- 2023 €223,000

- 2024 €163,000

16. The company appears to be growing and is looking at expanding.

17. There is a Landlord and Tenant dispute between the company and its landlord concerning the warehouse which it currently rents. The husband’s expert considers it appropriate to factor in the Landlord’s full claim for alleged dilapidations (€170,000) when valuing the company. He did so even though the Lease does not appear to support such a claim. While the husband’s expert referred to it as “a material legal claim” he apparently did so without considering the Lease and any actual legal basis for the landlord’s claim. A Valuer for the company looking at the Landlord’s claim estimated any liability at a fraction of the Landlord’s figure. It appears also that the Husband’s expert did not ascribe any value to the business equity which the company has established in the premises – and even though it appears from the husband’s evidence that there has been an approach on behalf of the company to the Landlord to buy out its interest.

18. The Court does not accept as valid the value placed on the company by the expert called on behalf of the husband. The company is a small and successful business which produces good profits and healthy bank balances year on year. Any methodology which does not recognize this is flawed and unreliable.

19. Speaking of the value of the company is in some respects missing the point in terms of its place in the “matrimonial assets/finances ”. Its real value is that it provides good employment for the husband which appears secure and likely to improve in terms of remuneration as the company grows. The other shareholder is clearly well resourced, and he is well disposed to the husband. While he is no doubt interested in his investment his actions to date indicate that a significant objective and motivation for him is looking out for and supporting his long-time friend – the husband.

20. The Court prefers the evidence of the expert called on behalf of the wife in terms of valuation. It is possible to point to likely weaknesses in the methodology used in arriving at the value of €600,000. The multiplier used is high. The key man status of the husband may be underestimated in the approach to the valuation. However, when one looks at the revenues, profits and bank balances of the company – and its undoubted future potential – the Court is satisfied that the valuation is fair and realistic and reflects the true worth of the company. Valuing the company is far from an exact science but the valuation at €600,000 captures the practical reality in terms of its situation.

21. The assets are essentially the house worth €605,000 and the husband’s interest in the company which is worth €300,000 [50%]. The Court is ignoring the remaining small mortgage on the family home [ c. €2000] which the husband is to discharge – as he has been doing. Thus, the assets are worth €905,000. It remains to be seen if a sale of the house occurs and there will be disposal costs in the event of its sale. If the husband keeps the company he requires approximately 25% of the agreed value of the house in order to achieve an equal division.

22. The Court considers such a division to be proper provision and on the basis that the wife will be solely entitled to her pension.

Order of the Circuit Court dated 12 December 2024.

23. The Circuit Court order is as follows; “The Court, in exercise of the jurisdiction conferred on it by Article 41.3.2 of the Constitution, grants a Decree of Divorce in respect of the marriage contracted between the parties herein on….1995 at Roman Catholic Church of…., Dublin…. And the Court doth make the following ancillary orders:

1. An order pursuant to Section 18(10) of the Family Law (Divorce) Act 1996 that neither party shall on the death of the other party be entitled to apply for an order under this section for provision out of the other party’s estate.

2. An order for nil spousal maintenance and nil child maintenance.

3. An order pursuant to the provisions of Section 14 of the Act directing the respondent to transfer his interest in the family home in Kildare to the applicant within a period of eight weeks. i. An order pursuant to Section 15(1)(a)(i) of the Act conferring on the applicant the right to reside to the exclusion of the respondent. ii. And it is further ordered by the Court pursuant to Section 14(5) of the Family Law (Divorce) Act 1996 that the said transfer be effected and in default the County Registrar do all such acts and execute all such documents on behalf of the respondent/applicant to give effect to the said transfer if the respondent/applicant fails to sign the necessary transfer documents on being requested to do so within 14 days of being requested to do so. iii. A declaration pursuant to Section 15(1)(b) and Section 36 of the Family Law Act 1995 that the applicant is entitled to the entire legal and beneficial interest in the family home. iv. An order pursuant to Section 4 of the Family Home Protection Act 1976 dispensing with the consent of the respondent to sell the family home.

4. A declaration pursuant to Section 15(1)(b) and Section 36 of the Family Law Act 1995 that the respondent is entitled to the entire legal and beneficial interest in the company….

5. An order directing the respondent to continue to discharge the… Insurance policy.

6. An order that the respondent is entitled to a 25% share of the applicant’s pension and 100% if the contingency benefit.

7. Liberty to apply.

8. No order as to costs.”

Decision.

24. In all of the circumstances the court is satisfied that the order of 12 December 2024 fails to make proper provision for the appellant. Insofar as it is necessary to do so the court will

- in circumstances where it is satisfied that the provisions of s.5(1) of the Family Law (Divorce) Act, 1996 have been complied with, and in exercise of the jurisdiction conferred on it by Article 41.3.2° of the Constitution, affirm the decree of divorce granted in respect of the marriage contracted between the parties on… 1995 at the Roman Catholic Church of…, Dublin….

25. The Court will make the following ancillary order; -

(1) An order pursuant to s.18(10) of the Family Law (Divorce) Act, 1996 that neither party shall on the death of the other be entitled to apply for an order under this section for provision out of the other party’s estate.

(2) An order for spousal maintenance of €750 per month payable from January 2026 until December 2029 inclusive – on the 10th. of each month by direct transfer into a Bank Account nominated by the wife.

(4) An order pursuant s.14 of the Act directing the husband to transfer his interest in the family home in Kildare to the wife within 8 weeks of the payment by her to him of the sum of €150,000.00 - and conditional upon this payment being made on or before the 31st. July 2026.

(5) That in default of payment of the sum aforesaid on or before the 31st day of July 2026 the property is to be placed on the market for sale then - and the husband is to be paid 25% of the net proceeds of sale. The parties are to agree an auctioneer in respect of the sale of the family home and they are to take the advice and accept the recommendations of the auctioneer in relation to the reserve and related matters. The solicitors for the wife are to have carriage of sale. In default of agreement on any matter relating to the sale of the property there is liberty to apply to this Court to decide on such issues.

(6) It is further ordered pursuant to s.14(5) of the Family Law (Divorce) Act 1996 that provided the sum aforesaid is paid on or before the 31st. July 2026 the transfer may be effected by the County Registrar for the County of Kildare who may also do all such acts and execute all such documents as are necessary on behalf of the husband or wife to give effect to the said transfer - in the event of either party failing to sign the necessary documents on being requested to do so within 14 days of the request being made.

(7) An order pursuant to s.15(1)(a)(i) conferring on the wife the right to reside in the family home to the exclusion of the husband in the event of the transfer aforesaid occurring - and in the interim.

(8) An order pursuant to s.4 of the Family Home Protection Act 1976 dispensing with the consent of the husband to the sale of the family home in the event of the transfer aforesaid occurring.

(9) A declaration pursuant to s.15(1)(b) and s.36 of the Family Law Act 1995 that the husband is entitled to the entire legal and beneficial interest in the company….

(10) An order directing the husband to continue to discharge the… insurance policy.

(11) A Declaration that the applicant is solely entitled to her pension with a pension adjustment order to be made to reflect this – and with liberty to apply to this court for the ruling of a pension adjustment order. In so far as the contingent benefit is concerned the court is informed that the wife is agreeable to the spousal element of the contingent benefit going to the husband and the long form Pension Adjustment Order will provide for this.

(12) Liberty to apply to the Circuit Court save where provided otherwise above.

26. The Court will hear the parties in relation to any matters outstanding at 10.30 a.m. on Wednesday 23rd. July 2025 and will hear submissions in relation to costs if either party wishes to make submissions.

Addendum

The Court dealt with a few minor outstanding issues on the 23rd of July 2025 and made no order as to costs.