High Court grants judicial separation and orders substantial financial provision for respondent's undisclosed inherited lands.

APPROVED

REDACTED

FOR PUBLICATION

[2025] IEHC 706

THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

RECORD NO.: 2022 69M

BETWEEN:

G.C.

Applicant

AND

J.C.

Respondent

Judgment of Ms Justice Nuala Jackson delivered on the 29th October 2025

INTRODUCTION

1. Proceedings for judicial separation were instituted by the Applicant on the 20th June 2022. A Decree of Judicial Separation is sought together with ancillary reliefs. The Decree is sought by the Applicant on multiple alternative grounds being section 2(1)(a) and/or section 2(1)(b) and/or section 2(1)(f) of the Judicial Separation and Family Law Reform Act, 1989 (‘the 1989 Act’). The Respondent moved to reside in the former family home (adjacent to the present) in or about March 2022, but the evidence was of marital disharmony of long standing.

2. A counterclaim is contained within the Replying Affidavit of the Respondent, which Affidavit was sworn on the 7th July 2022. The counterclaim seeks a Decree of Judicial Separation and ancillary reliefs, the former pursuant to section 2(1)(f) of the 1989 Act. On the evidence, heard originally over 5 days,1 it is clear that no normal marital relationship existed between the parties for in excess of twelve months prior to the issuing of proceedings herein and I will consequently grant a Decree of Judicial Separation on this ground. The issue of proper provision in this context will be considered below in terms of the appropriate ancillary reliefs to be granted.

PROCEDURAL POSTURE

3. The path and history of the proceedings have been protracted. From an early stage, the Respondent contended that the appropriate jurisdiction for them was the Circuit Family Court. He deposed to this in his Replying Affidavit referenced above. His solicitors first corresponded in this regard in or about September 2022. A response, written in October 2022, contained confirmation from the solicitors for the Applicant that, in the event of any costs order being made, this should be on the Circuit Court scale, certified for Senior Counsel. On this basis, the proceedings remained before this court.2 There is clearly concurrent jurisdiction between this Court and the Circuit Family Court and the circumstances of this case, including the asset values, even having regard to the disparity as between the parties in this regard, indicate that Circuit Family Court proceedings would be appropriate. In consequence, it is appropriate that I deal with the matter on the basis agreed between the parties in the correspondence indicated above.

4. Discovery was protracted in this matter. This undoubtedly resulted in additional costs being incurred by both parties as well as by the Respondent’s father against whom third party discovery was sought. The setting aside of a purported agreement between the Respondent and his father dated the 11th November 2022 was also sought in an amended Special Summons but, although Affidavits were sworn by the Respondent’s

This excludes the post-conclusion motion brought by the Applicant referrable to issues of non-disclosure.

There was further correspondence from the Respondent’s solicitors in or about June 2023 seeking remittal of the proceedings but no motion in this regard issued.

father consequent upon a motion brought by the Applicant and pursuant to a consent order of this Court of the 12th October 2024 (both narrative and discovery affidavits), he was not joined as a party to the proceedings and no application to join him was made. The motion concerning this matter issued on the 12th October 2023 and sought discovery reliefs, amendment of pleadings and, in the alternative, relief pursuant to section 35 of the Family Law Act, 1995 (‘the 1995 Act’). I did not hear oral testimony from the Respondent’s father in the context of the oral hearing herein.3

FACTUAL BACKGROUND

5. The parties were married on the 4th May 2002 and there are three children of the marriage all of whom are dependent. The Applicant and the Respondent are both in their 50s.

6. The principal assets comprise the family home, the farmyard with stock and machinery and a land holding of approximately 100 acres, including approximately 9 acres of forestry. All of these properties are held in the sole name of the Respondent and were gifted to him by his family of origin prior to marriage. The parties originally lived in a small residential property on the farm but, during the course of the marriage, they built a family home on the lands. The family home is situated adjacent to the farmyard. The construction of the family home was funded by way of monies supplied by the Respondent’s family of origin and a mortgage which mortgage is now modest and has been discharged from the farm earnings. The mortgage is secured on folios relating to the lands but not on the folio relating to the house and farmyard.

7. There was some considerable controversy in relation to the manner in which the monies which were used in the construction of the family home were advanced to the Respondent by his father. The precise amount advanced for this purpose was unclear to me as it would appear that the Respondent’s father was most generous and advanced monies on several occasions for several purposes. The Applicant contended that the funds advanced were by way of gift. She indicated that she had no

Order 70A rule 13(2) of the Rules of the Superior Courts states:

“(2) Save where the court otherwise directs the hearing of any application under the Acts shall be on the oral evidence of the parties.” No contrary direction was sought in this case.

knowledge of these funds at the time they were received but that, when she became aware of them, she was informed that they were by way of gift. It struck me as most strange that despite the strength of this assertion, the Applicant had never thanked her father-in-law for such generous support of the family and she seemed perplexed as to why she would do so, this being something between him and her husband. She also indicated that she had little knowledge of the manner in which the construction of the family home was funded. The Applicant is a most competent and able and intelligent woman and the family home which was constructed is a large and comfortable, wellappointed property. Whatever about the details, it must have been amply clear that the construction of it required considerable resources. The Respondent contended that the monies received from his father were advanced by way of loan. There would, regrettably, appear to have been some documentation, executed for the first time during the course of the proceedings, to support this. This document must be viewed with suspicion. The Respondent also indicated that the loan had been recorded in the farm accounts although this was far from clear as to the date of advance and as to the amount(s) advanced. The purported lender was not a party to the proceedings and neither party had sought to join him. There had been a motion seeking non-party discovery against the Respondent’s father and such discovery was made (albeit late in the day) and, in the context of this motion, a narrative Affidavit was sworn by the Respondent’s father. None of these steps caused him to be joined in the proceedings and I was not asked to do so. Therefore, I do not consider that it is open to me to make any definitive determination in relation to the basis upon which the monies were advanced in circumstances in which one of the parties to the transaction concerned is a stranger to the within proceedings and no evidence was heard from him in the context of the oral hearing.

8. For the purposes of the within proceedings and as between the Applicant and the Respondent only, from the evidence I have heard I believe that the monies in question were probably in the nature of an informal loan/quasi-gift which is not unusual in families. Monies are advanced on the basis that the recipient will look after the donor in the future, if the need arises. They are not in the nature of a formal loan but a gift with expectations. It would appear that these monies were not treated as gifts for revenue purposes, but this was on the basis that the Respondent would “see his father right” if the need arose in the future. It is not necessary for the purposes of these proceedings to make any definitive determination as to the nature of the advances. In any event, it is obvious that the Respondent’s father has been a most generous man to his family members and has sought to utilise his good fortune and resources to their benefit. In all of the circumstances, I have concluded that the best manner in which to approach these funds is to allocate responsibility for or benefit of them to the Respondent. If they are a loan, it is his responsibility to repay it. If they are a gift, the gift is his responsibility and for his benefit. If they are a hybrid arrangement, the responsibilities arising are his.

9. The Respondent is a farmer and has been a farmer throughout his working life. I was not impressed by the Applicant’s continual efforts to demean his abilities and activities in this regard, criticisms which were levelled seemed to me to be without justification based upon the evidence of the Applicant’s agricultural expert who indicated that the earnings from the farm accorded with a level to be expected in the context of good husbandry. Further analysis of the expert evidence will be carried out below. Indeed, I was impressed by the versatility of the Respondent in relation to his farming endeavours which he appeared to have modified over time in order to address changing market demands, some of which changes were more successful and desirable than others. The Applicant’s evidence in relation to alternative careers which she asserted he should now pursue seemed to me to be unrealistic having regard to his age and qualifications.

10. The Applicant worked outside the family home until 2005. Thereafter, she became a full-time carer for her children and homemaker for the family. She remained occupied within the family home until she resumed employment on a part time basis in or about 2017. For the twelve years between 2005 and 2017, the parties would appear to have adopted traditional farm family roles. The Applicant cared for the children and carried out works in support of the farming enterprise. I did not form the view that she engaged substantially in farming activities or that she was greatly interested in such activities, but I believe she had a very busy life combining the demands of family life and the important ancillary support engagements which are a normal feature of farming life. The Applicant has, since 2017, been working part time as an [REDACTED], working 3.5 hours per day, Monday to Friday. In this context, she can work from home sometimes. Her evidence was that her current employer is in a position to offer her full-time work and that she expected, in this context, that her salary would be double what it is at present.

11. A number of Affidavits of Means were sworn by both parties. The Applicant’s Affidavits of Means were sworn on the 20th June 2022 and on the 25th June 2024. The Respondent’s Affidavits of Means were sworn on the 7th September 2022 and on the 8th July 2024. The income of the Applicant appears to have increased (although still modest) between the dates of her two Affidavits of Means. The deposed to income is on the basis of part time employment only so the information in the Affidavit of Means is of limited usefulness in determining the earning potential of the Applicant on a full-time basis. The evidence of the Respondent, unsurprisingly, was more optimistic than that of the Applicant in this regard. The first Affidavit of Means of the Respondent indicated a gross monthly income of €3,424.00. This did not precisely accord with the farm accounts provided but was not significantly out of line with these accounts when certain add backs were included. The income deposed to in the second Affidavit of Means of the Respondent was higher and again there was not precise calibration with the accounts provided. I find and accept as proven that the Applicant has the capacity to significantly improve upon her income in the context of full-time work, but it is unlikely that she will achieve an income equivalent to that of the Respondent. The income resources of the Respondent are discussed further below.

12. Two of the children are at third level education stage and living away from home.

The youngest is in a school proximate to the family home and farm. The Applicant agreed with me that he could go home from school to the farm and be cared for by his father until she returns from work. This arrangement would support the demands of full-time employment upon the Applicant. The Applicant’s work is currently with members of her family of origin. Her evidence was that they would be retiring in due course and that, thereafter, she would seek to continue her career in a similar area of management but in the Dublin area where she envisages that the children will be based. All of the evidence supports the continued employability of the Applicant having regard to her competence, skills and experience. The evidence adduced indicates that the earnings of the Applicant would be less (but not substantially so)

than those of the Respondent in the event of the Applicant assuming full time employment.

13. The Applicant’s evidence is that she wishes to move away from the farm and its locality. She wishes to reside closer to Dublin where one of the older children is now based and, in this context, she wished to move to a satellite town to Dublin, while remaining relatively proximate to the family home where she clearly envisaged the Respondent would be, albeit that the sale of the entirety of the farm enterprise was one of her proposals. This aspiration gives rise to a not uncommon and regular difficulty in matrimonial cases in that the cost of accommodation in the area in which the Applicant wishes to reside is in a somewhat higher value bracket than applies to the area of the family assets. It is most difficult to fund such aspirations from the lesser value assets. Valuations of prospective properties were produced by both parties, the Applicant’s being larger, more salubrious properties with valuations of circa. €700,000, and some of those produced by the Respondent being most modest and located in an area in which the Applicant expressly did not wish to reside. He produced a long list of property valuations which indicated that appropriate accommodation could be purchased for €250,000 - €350,000. As with all house purchasers, accommodation requirements must be calibrated with financial resources.

14. The two oldest children are in university, and they are in receipt of some level of SUSI grant. One of the older children appears, most fortunately, to have or to have had accommodation in a property in Dublin owned by the Applicant’s family of origin although the Applicant indicated that this was an asset bought by her parents for the benefit of her mother and the Respondent was refusing to pay rent when accommodated there notwithstanding that he was well aware that this asset provided income for her mother and was not available free of charge to grandchildren residing there. The second child appears to be providing some support for herself from her own endeavours in the context of third level education together with support from grant assistance and her parents.

15. The Applicant indicated that neither she nor her husband had pensions of any significance and that she considered the farm to be their pension, and that the Respondent had so indicated to her. Both parties will likely have entitlements to State pension provision.

16. The Applicant indicated that the Respondent could work off farm to supplement family income. She asserted that the nature of the farming done by the Respondent involves “very little work” and that he spent unnecessary amounts of time involved in farming associations and organisations which time could be better employed. On the totality of the evidence before me, I cannot agree with her assertions in this regard. It is clear from the evidence that the Respondent has revised his farming activities over time to embrace market trends and that he carries on a diverse range of farming activities, aimed at maximising returns and reducing the risk of exposure from adverse market trends in a particular farming area. I found no evidence to support the Respondent being anything other than a committed and successful farmer. It is all too easy to sit in judgment and tell others how they might manage their lives, occupational and personal, to greater advantage. Many, if not most, people do not achieve the absolute maximum potential. However, it seems to me unfair and inequitable to critique a standard which, in my estimation, exceeds good enough.

This is the position in this case.

17. Undisclosed cash income was asserted, and this undoubtedly is the case. It is difficult to quantify the amount of such income, but I have endeavoured to do so from the evidence presented. Two sources of such income were proven being [REDACTED - agricultural activities]. The evidence of the Respondent that the former yields, at most, €1,500 per annum was not contradicted. In relation to the latter, the evidence indicates a total annual turnover from this activity of approximately €24,000, with a 30% - 50% profit margin (€7,200 - €12,000 per annum). The Applicant’s farm expert indicated an expected profit of 50%. However, it was put to him in cross-examination that this was more likely to be 30% in the context of higher production prices in the context of [REDACTED] farming and the expert accepted that this might be so. The farm accounts provided did not clarify this matter as the income from the various livestock endeavours contained therein was not further broken down as between the various income streams. A figure of €650 per month for cash income was proffered by the Applicant4. Given the proven overall size and profit figure from the [REDACTED] activity, this would appear excessive. However, as it is likely that all expenses relating to the activity were deducted in the farm accounts and the consequential profit relating to the “on farm” sales higher than the norm achieved, it appears that the total “cash” income is likely in the region of € 500 per month (I have calculated on the basis of approximately 20% of sales of [REDACTED] in this context). This results in a total such income of approximately €6,000 per annum.

18. At the commencement of oral hearing herein, the husband indicated his legal costs in respect of the proceedings (this does not include the costs arising from unfortunate post-proceedings events addressed below) to be in the sum of €120,000. At the same

This was the figure proffered by the Applicant in the Opening of the case. The figures proffered in submissions were somewhat lower where figures of €420 to €425 per month are stated.

time, the Applicant estimated a sum of €80,000 but there have been significant litigation events since being the lengthy proceedings and the prolongation due to the Respondent’s admitted non-disclosure (this is dealt with below). I do not intend to make any substantial comment on the legal fees incurred herein as my observations conclude that the parties were both well served by their lawyers, who were diligent and committed to their tasks. However, it does seem to me that there was much unnecessary prolongation of these proceedings by suspicion, denial and criticism which ill-served the family and which was uncalled for given the de facto knowledge which both parties had about the activities of the other.

19. The husband placed emphasis on the uncontested provenance of the farm, being property gifted to him pre-marriage. He contended that he is an efficient farmer and the farm and yards, stock and machinery are the tools of his livelihood which he wishes to retain in order to continue his livelihood going forward.

EVIDENCE OF THE PARTIES AND ANALYSIS OF SAME

20. The Applicant provided me with an account of the children’s lives and achievements and the history of the relationship. The parties have three children of whom they are both, deservedly, proud. I formed the view from the evidence that both parties are close to the children although this closeness might not be fully appreciated by each of them as regards the other. It is a matter of concern to me that the relationship between the Respondent and the children seemed to have been damaged during the course of the proceedings and it is difficult not to conclude that this derived from some level of involvement of the children in the proceedings. There seemed to be some discord in relation to the payment of expenses pertaining to the children, but this appeared to me to be largely due to lack of communication and unilateralism in decision making. I did find it somewhat extraordinary that a decision to move one of the children to fee paying secondary school would appear to have been made by remoter relatives in the Applicant’s family in consultation with the minor child concerned without reference to the Applicant and the Respondent, the evidence of the Applicant being that she knew nothing of this until the interview with the school had been completed. Despite his late knowledge of the proposal, the Respondent would appear to have discharged the fees for the second year of attendance. I formed the view that both parties sought the best for the children although the Respondent was more cautious and alert to the costs involved in certain additional activities, sometimes excessively so. The elder two children are now in third level education and, while in need of some financial support additional to grant resources and resources from their own endeavours, they are adults embarking upon their independent lives. They appear to be resourceful young people which is to their credit. The youngest child clearly gets on well with both parents. This child is now in secondary school and will continue to be in school in the locality of the family home and the Applicant admitted that he would be in a position to return home from school daily to the care of his father.

21. The Applicant expressed the hope that the youngest child would have the opportunity to continue to third level education. The Respondent did not demur from this view.

The only matter in significant contention in this regard related to the interest of the youngest child in farming pursuits. Having regard to photographic evidence provided to me and uncontested evidence of machinery restoration endeavours, I formed the view that, while the youngest child is still very undecided in relation to his future aspirations (consistent with his age and stage), it cannot be discounted that he may in the future have an interest in pursuing farming as a career. It seemed to me that the Applicant sought to diminish these interests. I did not find them to be overstated by the Respondent. The position of the Respondent is that the youngest child has demonstrated an interest in farming, and he is therefore anxious to preserve the farming assets for him. This was downplayed (although not dismissed) by the Applicant. In truth, the child in question is young and, while clearly having some interests related to agriculture, these may develop or not. Any expression of view concerning this at the present time is but speculation. It seems unlikely that the older children will pursue farming careers, but it is clear that their study choices would in no way preclude this and, indeed, might well support such a path being travelled.

22. It was common case that the farm asset derived from the Respondent’s family and the Respondent had grown up there. The Respondent pursued education in the agriculture area and the farm was transferred to him by his father under the early retirement scheme in or about 1998, a number of years prior to marriage. The Respondent has farmed the land since that time, and it has been the primary income source of the family throughout the marriage.

23. It is uncontested that the parties experienced accommodation challenges in the early stages of the marriage. A small residential accommodation on the farm was modestly improved with both parties contributing to this. Subsequent to this, the parties lived in rented accommodation for a number of years before moving to reside in a much more extensive and comfortable property built on the farm. The family home was constructed close to the farmyard as is most common. While such positioning does impact upon the value and, indeed, the saleability, of the residential property, it is entirely understandable that proximity to farming activities is most desirable for a working farm family. I will return to this below. The building of the family home was funded by a mortgage and by an advance of monies from the Respondent’s family of origin. Both of these sources of finance require some comment. At the instigation of the lender, the mortgage was secured upon farmlands, not upon the family home itself. This was undoubtedly for the very reasons which I have referenced above being the saleability of a residential dwelling mid-farm. A large portion of the land the folio which had originally included the yard and residential unit was split from the residence and yard so that both would be in separate folios and the mortgage for the family home was attached to the land portion. I accept the evidence of the Applicant that it was intended that the subsequent folio reflecting the yard and residence would be transferred into joint names but that this “just did not happen”.

24. In relation to the second element of funding, however, I found the position much less satisfactory. I have referred to this second source as being by way of an advance of monies from the Respondent’s family of origin. The Applicant’s evidence was that this was a gift. The Respondent’s evidence was that this was a form of conditional advance of funds involving obligations, most properly described as moral in nature. I found the evidence of the Applicant most unsatisfactory in this regard. She was strongly of the view that this was a gift but when asked by me as to whether or not she had ever expressed her thanks to the donor for such considerable generosity, she replied in the negative. More confusing was her lack of understanding as to why there should be any expectation that she should have expressed gratitude for the advance.

She appeared, from her evidence, to take the view that this was a matter between the Respondent and his family and something in relation to which she was a stranger. I found this approach difficult to comprehend in circumstances in which the advance was relatively large, the family home being built was a large, comfortable property and there appears to have been an expectation, albeit unrealised, that the property would be jointly held. On the other hand, it can only be described as unfortunate that, during the course of the proceedings, members of the family of origin and the

Respondent attempted to create a situation supportive of a legally binding loan existing in respect of the funds advanced. This has been previously referenced together with the litigation steps of the Applicant concerning it. In his testimony before me, I found the Respondent to be open, direct and honest about the circumstances of the advance. I formed the view that the idea for the retrospective attempts to render the loan scenario more concrete derived not from him although he clearly did go along with/co-operate with such endeavours. Having regard to the totality of the evidence, real and oral, I believe that it is not necessary to definitively categorise the monies concerned. Monies were advanced in the context of which the Respondent clearly believed himself to have moral obligations. The Applicant, likewise, clearly, was not of the view that any obligations of any nature arose in respect of such monies. For the purposes of this decision, I believe that in all of the circumstances it is not appropriate to determine these advances (which would, in any event, appear to have ebbed and flowed and which would appear to have related to other items of expenditure relating to the farm also) to be debts to be deducted from the assets herein. The overall background of generous support provided by the Respondent’s family is, I believe, a circumstance to which I am entitled to have regard under section 20(1) of the 1996 Act.

25. At the start of the marriage, the Applicant worked outside the home, but she ceased doing so about one year into the marriage. She resumed working outside the home in or about 2017. She has experience and expertise in the area of her resumed work at this time. The Applicant gave evidence of the assistance she provided on the farm over the years. The Respondent had denied such assistance in his pleadings in the within proceedings. However, as the case progressed and based on the evidence of both parties, it is clear that she did assist in the working of the farm, both in terms of administration and husbandry, but having regard to the totality of the evidence, I am of the view that this was very much on a part-time/support basis. In this regard, it is important to recognise the very considerable parenting role which she played. The parties, it appears to me, had what might be called a modern family farm arrangement.

Both were involved in the family farm business (but this was primarily the role of the Respondent) and both were involved in childcare (but this was primarily the role of the Applicant).

26. The Respondent is a career farmer. He has never had any other career. He has operated the farm of his family of origin since his youth. He is now in his mid-50s.

There have been financial challenges over the years which would appear to have been addressed in part by family of origin assistance. The Applicant gave evidence of the disorganisation of the Respondent and the financial problems that ensued in consequence. She expressed her concern at the lack of joint ownership of assets and at her lack of ownership such that she was unable to engage in normal financial activities. I accept her evidence that there would appear to have been some disorganisation and chaos in the business affairs of the Respondent over a number of years. This would appear to be a situation which has significantly diminished in more recent years. The precise reason for this improvement is unclear but may be linked to the Respondent’s adopting of a particular type of farming to which he has become very committed. The Applicant’s evidence was to stress the lack of farming expertise and success of the Respondent. She dismissed his farming endeavours as being parttime only and that there was much less work involved than previously. She was critical of time spent with farming bodies and committees. She expressed the view that he could take up alternative, agriculture-related employment.

27. The Applicant’s evidence was of a lack of financial support for the family by the Respondent over the years. It was difficult to reconcile this with the farm being the sole source of family income over many years and the photographs provided to me showing a most comfortable family home.

28. The Applicant would not appear to be a person committed to country life. Her evidence indicated a wish to move to reside in a more urban location. Despite the duration of her residence in the rural location of the farm holding, her evidence displayed little attachment to it although I expect that this has soured somewhat due to undoubted deterioration in relations between her and the Respondent and his family, some of whom reside nearby. However, from the history of her work and her expressed plans for the future, it appears clear that she wishes a more urban based lifestyle.

29. There are two particular issues which arose from the evidence of the Applicant which I consider it appropriate to address. These relate to certain activities of the Respondent which he carried out alongside his farming activities one of which gave rise to findings of criminality and one of which, arguably, gives rise to a regulatory infraction. The first was of some antiquity. It was clearly an activity which caused considerable distress to both parties and was a time reflected upon by both in their respective testimonies as involving trauma and worrying uncertainty. The primary responsibility for this undoubtedly rests with the Respondent. However, I do not believe that these events and conduct leading to the criminal conviction are matters to which I ought to have regard under section 16 of the 1995 Act. The events took place some considerable time ago while the marital relationship was ongoing. The relationship continued thereafter. The conduct did not relate to the marital relationship. The conduct related to attempts to garner additional off farm income for the benefit of the family. The parties co-operated together and faced these issues together. The issues were resolved and the family moved on. The support of the Applicant in the context of this activity is something which should be recognised and acknowledged but I do not believe that this constitutes ‘conduct’ to which regard ought to be had under section 16(2)(i) of the 1996 Act. The possible regulatory infringement related to occasional acts [REDACTED] on the farm. These actions had taken place over a long period of time, well known to both parties. The nature of the activities was not disputed. I formed the view that this was an effort by the Applicant to bring an element of squeamishness into the proceedings which had little probative worth. It was argued that the regulatory breach might jeopardise the farming activities. If it does so, it is the Respondent who will suffer. It has not had any such impact to date and therefore has had no impact on the valuations before me. I will make proper provision based upon the current untainted circumstances. If there are future implications, they will be matters for the Respondent alone to contend with.

30. The Respondent made an allegation of a serious domestic violence event involving physical violence immediately prior to the separation of the parties. The Applicant denies this. There is no doubt that the relationship ended in circumstances of acrimony which animosity remained clearly evident during the hearing.

VALUATION EVIDENCE

31. Both parties called valuation evidence in respect of the lands and buildings. There was some valuation disparity, but this was further accentuated by the differences of valuation approach of both of the parties in terms of parcelling the lands and buildings differently. The total land acreage is expressed to be circa 100 acres (of which circa

10 acres comprises forestry). Additionally, there is the family home ([REDACTED])

and a farmyard with a variety of outbuildings used in the farming endeavour.

Photographs appended to the valuation of the Applicant indicated that these farm buildings, of varying quality, were all being used in the farming enterprise. The Applicant’s valuer valued the whole at €2,300,000 gross. This was broken down as €750,000 for the family home and farmyard on 2 acres, forestry lands at €2,000 per acre (the entirety of the folio of which the forestry form’s part was valued at this level.

It was later accepted that circa 4 acres of this folio is more valuable agricultural land)

and the other farmland at €17,500 per acre. The Applicant’s valuer also advanced a valuation for a parcel comprising the farmhouse, farmyard and circa 10 acres (being one particular folio) of €1,025,000. The case advanced by the Applicant was that the sale of such a configuration would yield a premium result. The balance of the forestry and other agricultural lands (on the basis of this valuation) would yield €24,000 (forestry) and €1,557,500 (89 acres of land), a total of €1,581,500. These agricultural lands would not have a farmyard or associated buildings or a residential property. The farm expert of the Applicant gave evidence that a new farmyard could be constructed.

I will deal with this evidence below.

32. The valuer of the Respondent updated his valuation during the course of the hearing, and he valued the entirety at €2,000,000. Separate valuations were provided for each of the folios. Of particular note, in terms of valuation disparity, was the valuation of the family home, farmyard and circa 10 acres of land at €670,000. The acreage valuation of the farmlands by the Respondent’s valuer is in the region of €15,900 per acre. The valuation of the forestry lands appeared to be somewhat higher (circa.

€6,000 per acre) than that of the Applicant’s valuer but there was also a lack of clarity in this regard as the valuation seems to accept a valuation of €24,500 which would increase significantly the valuation per acre of the other agricultural lands comprised in the ‘forestry’ folio (the circa 4 acres).

33. Both valuers provided comparators, but these showed extremely disparate valuations probably indicative of fundamental or significant differences between the comparator property and the assets in this case. Overall, these distinctions limited the usefulness of the valuations provided. I have concluded as follows:

(a) The family home is a well-appointed and large property.

(b) The family home in this instance is most likely not saleable (or only saleable at a much-reduced price) as a separate entity, carved off from the farmyard. This is due to the proximity of the farm buildings to the family home. Access to it is isolated and remote in nature.

(c) The family home and farm buildings with a small acreage (1/2 acres) is unlikely to attract purchasers as the farm buildings, being of the nature they are, would be of little practical use and, most likely, would serve only to detract from the family home.

(d) While the valuation allocated to it is likely generous, I agree with the Applicant’s valuer that selling the family home and farmyard with circa. 12 acres would most likely attract a premium value in terms of its being a sustainable unit for a ‘hobby’ farmer.

(e) The farmyard is a fully utilised working farmyard. While the Applicant’s expert gave a most positive account of the feasibility of moving the farmyard to elsewhere on the farm, I found the evidence in this regard to be optimistic and sub-optimal in its consideration of very real challenges to so doing in terms of construction costs and planning and development issues which might arise.

34. In terms of gross values, the real assets fall into three distinct categories:

1. The family home and farmyard with 1 to 2 acres

2. The agricultural land

3. The forestry land

1. There was considerable disparity between the parties in relation to the valuation of this asset. The Applicant’s valuation is in the sum of €750,000 while the Respondent placed a valuation of €450,000. There must be some concern in relation to this latter valuation as this was initially provided without inspection and appeared to relate to a portion only of the property while it was subsequently applied to the house, farmyard and two acres. Having regard to comparator properties, I concluded that the valuation of the Applicant was likewise unrealistic. While the circumstances of the initial valuation of the Respondent’s valuer was, to say the least, unfortunate, I formed the view that when he gave evidence in November 2024, he had visited the property and was alive to the challenges of selling a residential property, closely proximate to a farmyard and remotely located. Having regard to the particular circumstances and location of these properties, I find and accept as proven that a valuation of the property described in 1. above would be unlikely to achieve a sale price of more than €550,000.

2. The disparity between the auctioneers was less in relation to the agricultural land.

The Applicant’s valuer placed a value of €17,500 per acre. The Respondent’s valuer placed a value of €15,800 – €16,000 per acre. The Applicant’s valuer expressed the view that a sale of the property described at 1. with some extra acreage would be attractive to a particular cohort of purchasers who wished to engage in small scale or hobby farming. In this context, his evidence was that 10/11 acres within this parcel would achieve a sale price of circa. €25,000 per acre. I accept his evidence that some land value uplift might well be achievable in the context of the sale of such a parcel. However, in the context of valuing the whole of the family farm, I have decided to accept an acreage valuation of €17,500 for the entirety (being the Applicant’s higher acreage value), which will incorporate such possible uplift for a portion.

3. The valuer for the Applicant put a value of €2,000 per acre on the forestry land (circa 10 acres). The Respondent’s valuation had a composite valuation for the forestry land and the circa 4 acres of agricultural land on the same folio.

Extracting the forestry land from this valuation appears to indicate either a higher value for the forestry or a higher value for the non-forestry portion. I note, however, from the valuation of the Respondent that there is some issue of forestry disease and the Respondent’s valuation expresses a current plantation value of €24,600. Therefore, there would appear to be substantial agreement on the €2,000 per acre valuation.

35. On this basis, the entirety has a gross value of

1. €550,000

2. 90.4 – 91.4 acreages of agricultural land (depending on the acreage with the house being 1 or 2 acres) @ €17,500 per acre - €1,584,000 – 1,599,500 (I will use a median for valuation purposes being €1,591,750)

3. Forestry €24,600 (the circa 4 acres of agricultural land in the ‘forestry’ folio are included in 2. above)

4. There is an outstanding mortgage of approximately €50,000.

Total: €2,116,350 gross (approximately €2,050,000 after sales costs of 3%).

36. Calculating the net value presented further difficulty as issues of indexation and potential relief from capital gains tax in the form of retirement or enterprise relief having regard to the conditions attaching to each. It is clear that the house and a small acreage of “pleasure grounds” would attract principal private residence relief. There would be sale costs of approximately 3% (these have been deducted above). In relation to the lands, the evidence is that the indexation multiplier would be 1.262.

Capital gains tax would range between 10% and 33% depending upon the reliefs (retirement and/or entrepreneurial) available.

37. The Applicant’s agricultural expert calculated a capital gains tax liability of approximately €120,000. However, this was based upon entrepreneurial relief and upon the higher valuation of lands (c. 11 acres) being sold with the family home. A number of different scenarios involving partial sales and full sales were also provided to me with varying capital gains tax calculation methodology. However, it is the net of the whole which must concern me in terms of determining proper provision.

Having regard to a multitude of imponderables, it would appear to be safe to conclude that the net valuation of the whole of the assets is likely to be in the range of €1,800,000 to €1,900,000.

AGRICULTURAL EXPERT

38. The Applicant provided evidence from an agricultural expert. The mixed farming enterprise is clear from his first report dated 8th July 2024. In relation to farm trading, this expert’s report states:

“The performance of the dry stock/tillage farm is generally in line with expectation where the target is to ensure that the farm trading activity doesn’t deplete the subsidy/grant income received each year. In this case, farm profit retained c. 85.6 per cent of subsidies received over the five years 2018/19 to 2022/23.”

39. In circumstances in which the Applicant was advocating a sale of the farmyard, a further report was provided by the expert dated the 18th November 2024. This report is premised on the Respondent adopting an “alternative beef cattle system” such that he would not require “any cattle housing or silage/hay or slurry facilities”. It is clear from the evidence of the expert that it is his view that the Respondent might adopt a different form of farming which would result in maintained or increased farm income without the need for a comprehensive farmyard. The evidence of the farm expert had, additionally, albeit earlier in the hearing, been that the farmyard could be relocated without significant cost.

40. The farm expert also referred me to a chart entitled “Standard Labour Requirements”

from the 2020 Farmers Handbook and Tax Guidance from the Agricultural Consultants Association. This seems to be an efficiency matrix based on the type of farming carried out and the numbers of livestock/acres of crops husbanded. It did not seem to have figures relating to poultry enterprises. The Applicant’s agricultural expert made calculations on the basis of the figures therein to conclude that the farming time for the Respondent, if he farmed efficiently, should enable him to take up additional off farm earning opportunities. I was unimpressed by this evidence. It appears to me that no account was taken of individual circumstances in terms of farm location and geography, in terms of farming methodologies adopted (the Respondent operates a particular farming methodology) or in terms of the age and stage of the farmer concerned. From the evidence presented to me, the Respondent appears to have been a farmer for the entirety of his adult life. That is his occupation, and he is at an age and stage where opportunities for changing this position appear to me to be limited and unlikely, if not impossible. For much of his life as a farmer, the Applicant did not engage in gainful employment outside the family home and farm and the farming enterprises afforded a reasonable standard of living to the parties. The Respondent seems to have been open to change and transition and to embracing new farming techniques, reflective of changing societal trends.

41. Of course, aside from building a replacement farmyard or changing his farming techniques so that yard facilities were reduced and significantly curtailed, the issue of re-housing the Respondent (and the children when with him) also has to be addressed.

The suggestion of a log cabin being built to this end also appeared to me to be suboptimal particularly viewed through the lens of the standard of accommodation proposed by the Applicant in her open offer as being requisite to her needs (and those of the children when with her).

OPEN OFFERS

Applicant

42. The Applicant’s open offer at the commencement of proceedings indicated that she required €850,000 by way of lump sum. She estimated a rehousing cost of €700,000 and, over and above this, she required a sum for costs (the €80,000) and an amount of resources remaining by way of a contingency fund. She estimated that the sale of the family home, farmyard and approximately 11 acres would yield a net sum of €900,000. She also indicated that she required periodic maintenance, the amount being dictated by the level of lump sum. However, in her evidence, it appeared that she was seeking maintenance only for the children and not for her own support.

Respondent

43. The Respondent indicated that he was a farmer and wished to retain the “tools of his livelihood”. He made alternative proposals (although there was retreat from these proposals as the case progressed based upon the legal costs which had accrued):

A. A lump sum of €550,000 payable over a period of nine months with a sale of lands in default.

B. The Applicant to have the family home with one acre without the cottage or sheds which she could keep or sell (with all appropriate rights of way and/or wayleaves)

plus a lump sum of €100,000.

44. Additionally, he proposed a maintenance package for the children which involved a weekly payment together with the payment of certain educational expenses and health insurance for the children. The open offer of the Respondent at the commencement of the proceedings complained about the level of legal costs incurred due to the Applicant having fought the case at a “granular level” and there being a “cussedness” in her approach.

THE LAW - PROPER PROVISION

45. The legal principles applicable require me to make proper provision for the parties and their dependent children5 and to do so having regard to all of the circumstances and, in particular, the matters listed in section 16 of the 1995 Act. I received most comprehensive and useful submissions from both parties in this regard.

Section 16(1) of the 1995 Act.

46. The Respondent in his submissions referenced the authority of this Court (Jordan J.)

in T v. K [2022] IEHC 529 at paragraphs 121 to 132 in the context of the legal principles applicable to proper provision:

“121. The written and oral submissions of both sides refer to relevant case law in the area. Most of the cases relied on are common to both sides.

122. A useful starting point 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.”

123. In the recent Court of Appeal case of N.O. -v- P.Q. [2021] IECA 177, the farm at issue was a much smaller unit (100 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.

124. The case involved the following distinguishing factors; there were three dependent children, both parties were much younger and the husband had to maintain the family from his annual earnings of €100,000.00 from the farming enterprise. A lump sum of €120,000.00 was awarded in addition to the €200,000.00 already provided to the wife which allowed her to obtain a sixbedroomed house for herself and the children. The appeal did not relate to this award but rather to the fact that the trial judge had awarded 4 years maintenance at €800.00 per month for the wife, meaning the capitalised maintenance together with lump sum amounted to one-third value of the assets. The Court of Appeal found that the court had erred in the approach to maintenance and the award was overturned and amended to €1,600.00 per month maintenance without a time limit.

125. 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.”

126. 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…””

127. In dealing with the fact that the only asset was the inherited asset, Whelan J. stated:- “The statutory remit and the principle of fairness requires a more calibrated approach where a farm holding has been within one spouse's family for generations and was assured to one spouse, who carries on the business of farming on a full-time, or substantially fulltime, basis and where it constitutes the sole or a significant source of income to the family, particularly if it was acquired from a parent or relative with at least an implicit expectation that it would be retained in specie for future generations. In my view the nature of the inherited property is relevant as are all the material circumstances surrounding its acquisition. Furthermore, if an inherited property provides the entire or a substantial portion of the income for one of the spouses and/or provides employment for a spouse, same are material factors which must be taken into account in balancing the competing rights and interests of the parties. Having said that, I do not think that there are any strict rules governing the approach of a trial judge in “farming cases” per se. Each case will turn on its own particular facts and the circumstances of the case. The nature and source of an asset and the moral duties and obligations implicitly attendant upon the acquisition of same may well be factors to be taken into account by a trial judge in determining what constitutes “proper provision” in the context of a claim where one of the parties derives a significant source of income from an inherited or acquired farm holding.”

128. The case of HN v. BN (BY) [2016] IEHC 330 involved lands which had been transferred in their entirety to the respondent wife by her father. She then

44 transferred the lands into the joint names of herself and her husband, and her husband subsequently made a significant investment into the farm. The marriage between the parties lasted from December 2004 until November 2010. There were no children of the marriage. Although a short marriage, the husband had financially contributed both to the farm and the marriage. The farm was the subject matter of the proceedings and consisted of 90 hectares of land which had been in the wife’s family for several generations. The notice party was the wife’s mother who had rights of residence and maintenance registered on the title deeds of the farm, as she had lived in a period home on the farm since she married the wife’s father. A brother also had rights registered on the land in question.

129. At para. 89 of the judgment, Keane J. cited Denham J. in G v. G [2011] 3 IR 717:- “Assets which are inherited will not be treated as assets obtained by both parties in a marriage. The distinction in the event of a separation or a divorce will all depend on the circumstances. In one case, where a couple had worked a farm together, which the husband had inherited, the wife in a separation sought 50%. However, the order given by a court was 75% to the husband and 25% to the wife. This is a precedent to illustrate an approach, but the circumstances of each case should be considered specifically.”

130. Keane J. went on to find that on the authority of T v. T [2002] 3 IR 334:- “Property acquired by inheritance does not thereby ‘escape the net’ of proper provision”

131. Murray J. in the same case, although in the slightly different context of assets acquired after separation, said:- “That is not to say that the resources of one spouse which could be said to have been acquired completely independently of the marriage should be excluded from consideration by the court. Each spouse has a continuing obligation to make proper provision for the other and the resources which are available to each of them may be taken into account so far as is necessary to achieve that objective. Each case will necessarily depend on its own particular circumstances. Where there are quite limited resources available it may only be possible to provide for the basic needs of each spouse. On the other hand, different considerations would also arise where one spouse was independently wealthy before the marriage and the marriage was of a very short duration”.

132. Keane J. referenced High Court judgments of O’Higgins J. [B v. B (Unreported High Court Ex Tempore 11th of April 2005) and C. -v- C. (Unreported High Court O’Higgins J 25th of July 2005)] and Abbott J. [N v. N (High Court 18th December 2013)]. In each of those cases the Court permitted the relevant party to retain the full benefit of the inherited farm or estate. He goes on to state:- “ ……. it does seem to me relevant to observe that in each of those cases the Court was able to make significant alternative provision for the non-inheriting spouse out of the other assets and income available to the parties”.”

47. Section 16 of the 1995 Act is recited, and I have addressed the relevant legislatively expressed circumstances, below.

16.—(1) In deciding whether to make an order under section 7 , 8 , 9 , 10 (1) (a), 11 ,

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

(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.

48. Both parties are in gainful employment, the Applicant on a part-time basis at present.

There would not appear to be any reason why the Applicant cannot work full time in the career which she pursues and has pursued for eight years. She impressed as a most able and competent person. I formed the view that she enjoys her work. The parties are of equivalent ages and their remaining career capacity would appear similar. On the evidence, there is likely to be some disparity between the earning capacities of the parties, and I do accept that there is some flexibility in the Respondent’s income and the clear evidence of cash income being received by him.

49. The Respondent is the legal owner of all of the real assets and plans to transfer the folio which contains the family home into the joint names of the parties did not progress. The Applicant does not hold assets of any significance and is dependant in this context although not in an income context. I accept that the Applicant does not have borrowing capacity and is unlikely to have such capacity at any significant level.

The Respondent has the capacity to rise capital through the realisation of assets and, perhaps to a lesser degree, through borrowing.

50. Over and above the real property assets, the Respondent has livestock and machinery assets. In circumstances in which these comprise the stock which he trades and from which he derives his income and machinery required for that purpose also, I have concluded that it is not appropriate to include them in asset division. Without these, he could not earn the income which he does.

(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 of the spouse or otherwise).

51. In addition to making financial provision for themselves, the parties will have ongoing financial obligations as regards their dependent children, all of whom remain in education. The Respondent, in the context of previous generosity, may well have moral obligations towards his parents but I do not believe it appropriate to have regard for this as regards the alleged loan in the context of proper provision given the said alleged loan.

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

52. From the evidence proffered, it was difficult to ascertain a clear picture of the previous standard of living of this family. The Applicant was negative in this regard and her evidence was of a failure on the part of the Respondent to make adequate provision. However, it is clear that the Applicant did not work outside the home enterprise for many years and the parties appear to have had a comfortable lifestyle, evidenced by the photographs of a most comfortable family home proffered. The totality of the evidence appeared to demonstrate that the Respondent was somewhat parsimonious and financially conservative, and that exceptional family expenditure required a degree of persuasion. Overall, the family would appear to have lived a life of restrained comfort.

(d) the age of each of the spouses and the length of time during which the spouses lived together, (e) any physical or mental disability of either of the spouses.

53. The parties are both in their mid-50s and the marriage and relationship are of long duration, twenty years plus as of the date of the institution of proceedings. Neither party has any physical or mental disability.

(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.

54. The Respondent brought assets to the marriage and these assets were ameliorated from further financial benefit derived from his family of origin. The provenance of these assets was not contested. These assets have been retained throughout the marriage and form the foundation stone of the financial resources and financial wellbeing of the family throughout the marriage. He has worked hard as a farmer throughout the marriage and has made care contributions to the family also, although to a lesser degree than the Applicant. The assets of the family are in substantial part also essential to the carrying on by the Respondent of his career. The Applicant has worked both within and outside the home during the marriage. She contributed to the family through looking after the home and caring for the family and also in carrying out work supportive to the farming enterprise. She has experience and expertise in a secretarial/administrative/office managerial capacity over a number of years at this point. Two of the children have now attained their majorities and are attending third level education. It is likely that, in the short term, they will have greater reliance upon the Applicant than the Respondent, but they are both on the cusp of independence.

The youngest child will be dependent for many years to come. The evidence supports a positive relationship with both parents and an ability and desire on the part of both parents to have an active and hands on caring role in his life. The evidence of the Applicant supported a caring role by the Respondent such as would assist her in maximising her full occupational potential. I accept, however, that the Applicant will continue to have a substantial caring role as regards the youngest child.

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse 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.

55. In the present instance, the Applicant went back into the work force some years ago and has gained marketable skills and expertise which she has used on a part time basis to date but which she is in a position to convert into full time remunerative employment. She has received and continues to receive the support of her family of origin in this regard.

(h) any income or benefits to which either of the spouses is entitled by or under statute.

56. This does not arise in the present instance.

(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.

57. Allegations of a serious instance of domestic violence was made by the Respondent against the Applicant which she denied. The Applicant made allegations of financial support deficits on the part of the Respondent and also of activities which threatened the financial and lifestyle security of the family, some of antiquity. The Applicant alleged adultery as against the Respondent. The Respondent accused the Applicant of unilateralism in relation to decision making concerning the children. I have formed the view that the accusations and counteraccusations arise in the context of an acrimonious marital breakdown giving rise to mistrust on both sides. Both parties are fearful of the future and in particular in relation to their own financial futures.

Positions have become polarised to this end. Circumstances have created a narrative aimed at promoting the outcome which they each seek to advance. I do not consider that the evidence of conduct received in this case has been such that it would be unjust to ignore it. There is no evidence of any gross and obvious misbehaviour. Of course, this is excluding the issue of litigation misconduct which arose post-conclusion of the hearing which I have considered separately below.

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

58. Both parties require to be accommodated. Their accommodation requirements are not dissimilar given that the minor child is likely to spend time with them both and the two older children are on the cusp of independence. The financial circumstances of the Applicant require that she be put in a position to acquire unencumbered accommodation both to address the needs of herself and the children at this point and her own needs in the future.

(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 judicial separation concerned that spouse will forfeit the opportunity or possibility of acquiring,

59. None such arising.

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.

60. None such arising.

APPLICATION OF LAW TO FACTS

61. The provenance of the assets in this case is that they derive from the Respondent and were acquired by him pre-marriage. Additionally, the parties were sub-vented and assisted in the building of the family home property by financial advances made by the Respondent’s family.

62. The Respondent is a career farmer and clearly is committed to this career path. The agricultural assets therefore represent a necessary tool of his business as well as a capital asset.

63. Having regard to the information provided to me, I value the assets as follows:

€1,800,000 - €1,900,000 net.

64. Having regard to the evidence before me, I find that the Applicant will require between €500,000 and €550,000 to rehouse herself in accommodation suited to her needs and those of the children. It may be that this budget will require her to purchase a lesser property in the district in which she expresses a preference to live or, alternatively, she may be required to rehouse herself in a less expensive district where values are more proximate to those in the area in which the family home is situated. I do not consider that she will be in a position to raise any substantial sum by way of borrowing given her part time employment record and having regard to her age. She must also discharge her legal costs in respect of these proceedings (the post-hearing events being separately considered below).

65. I am therefore directing that the Respondent pay a lump sum to the Applicant of €650,000 together with the additional sum referenced at paragraph 77 below (precise sum to be calculated) same to be paid within nine months of the date of this judgment.

In the event that this is not paid by that date, I am directing a sale of Folio [REDACTED] with the Applicant to receive the said sums from the net proceeds of sale. If the net sale proceeds exceed the said sum, the Respondent is to be entitled to the balance. If the net sale proceeds are less than the said sum, a lump sum due and owing for the balance will remain with an Order for sale of so much more of the lands as is required to discharge the said sum. As a percentage of the value of the assets of the family as determined by me and having regard to the provenance of the assets, the lump sum constitutes a percentage which might be considered high in the circumstances but I have had to have regard to the generally unsatisfactory nature of disclosure (even before the issue of the undisclosed asset arose), the various income sources of the Respondent and the commitment of the Applicant to the family over the course of a long marriage. I have also had regard to the earning capacities of both parties and the percentage reflects the maintenance provision which I have made for the children only.

66. The parties are each in a position of competence in the context of gainful employment and therefore, having regard to this and to the lump sum provision made, it is not appropriate that there would be periodic maintenance payable as between them. It is appropriate and necessary that there be maintenance payable by the Respondent in respect of the dependent children. The evidence before me indicates that the youngest child will continue to spend time with both parents (during which times they will each be responsible for his support), but I expect that he will primarily reside with the Applicant. In these circumstances, I am directing that a sum of €500 per month be paid by the Respondent to the Applicant for his support. The Respondent should continue to discharge health insurance costs in respect of the youngest child. In addition, all educational and medical, not insured, expenses in respect of the youngest child should be shared equally between the parties. My understanding is that both of the children currently attending third level education are in receipt of SUSI grants.

The Respondent should discharge health insurance in respect of these two children during their dependencies and he should also discharge university registration fees (in respect of Irish universities) for them both over and above what is paid from the SUSI grants. I am also directing that the Respondent pay to these two students directly an annual sum of €3,000 each, €1,000 each on the 1st September, on the 1st January and on the 1st April of each year during their dependencies, such sums to be paid to these adult children directly. Upon the youngest child completing secondary school, a similar maintenance arrangement should apply in relation to him should he continue to be dependent.

67. The parties do not have pension provision. I accept the evidence of the Applicant that the real assets were considered to be their pensions. In this context, having made provision for division of the real assets (on the valuations determined, the lump sum payable to the Applicant constitutes between 34% and 36% of the net assets together with the larger percentage in relation to undisclosed assets discussed below), I have had regard to making pension provision going forward. The assets of the Respondent will be diminished by the sum payable to the Applicant and, arising from this, she will be in a position to have unencumbered accommodation into the future.

ISSUES ARISING SUBSEQUENT TO THE CONCLUSION OF THE HEARING AND PRIOR TO JUDGMENT

68. There were two issues which arose subsequent to the finalising of the oral hearing herein and these necessitated further hearings in respect of these issues. The first related to the non-disclosure by the Respondent of certain real property which he holds. The undisclosed agricultural land consists of circa 8 acres and was inherited by him [REDACTED] in or about 2022, the grant of probate in respect of this estate having issued in March 2024 during the course of the within proceedings. These lands were not included in his Affidavit of Means and, in addition and concerningly, the issue of ownership of these lands was specifically raised by the Applicant’s Counsel in cross-examination and ownership was denied.

69. A Notice of Motion was brought by the Applicant, and three affidavits were sworn in support of such motion. No replying affidavits were sworn by or on behalf of the Respondent and, in consequence, the contents of the Affidavits by or on behalf of the Applicant must be viewed as uncontested.

70. There are three distinct contexts in which this non-disclosure is relevant. Least controversially, the financial circumstances of the family are now greater than was known at the time of the oral hearing as there is an additional asset. Additionally, clearly issues of litigation misconduct arise relating to this non-disclosure. Thirdly, legal costs have been incurred in the re-opening of this matter to address the issue of non-disclosure.

71. The valuation of the lands in the uncontested Affidavit of [REDACTED] of the 12th March 2025 is in the sum of €150,000. While not entirely clear, it would appear that there is an expected taxation liability arising in respect of this inheritance, but such liability will diminish if the property is retained for a specified period of time. The capital acquisitions tax liability arising is dependent upon the extent to which agricultural relief is available and whether or not the Respondent has a non-relative tax free threshold. The agricultural expert deposes that, depending on the application of these reliefs and thresholds, no tax liability may arise. The evidence of the Respondent, which I did not find very convincing in this regard, was that he had considered refusing the bequest. I do not believe that I am required to make a determination in this regard as the devise was not refused and the lands in question are beneficially held by the Respondent. The inheritance of these lands serves also to increase the income of the Respondent in that he no longer will have to pay rent for these lands as he previously did, and he will be entitled to such annual subsidy income as attaches to them. In an Affidavit sworn on the 13th March 2025, the agricultural consultant valued the income potential of these lands at €2,000 per annum. I understand this to be a gross figure.

72. The second post-hearing issue which arose relates to the correct income of the Respondent. Inconsistencies in relation to income as averred and testified to by the Respondent and as contained in the 2024 accounts were referenced. This was a previously noticed feature of financial disclosure in this matter, and I have referred to this earlier in this judgment. Furthermore, the Applicant asserted that a larger income had been indicated by the Respondent in information provided by him in the context of application for third level grant funding by the children of the marriage than was deposed to by him in the within proceedings. As previously indicated in this judgment, I have during the course of the hearing of this matter had some concerns in relation to the involvement of the older children in the proceedings and in relation to the partisan attitudes displayed by (in particular one of) these children in respect of the marital troubles of their parents. On the evidence which I have heard, I find no parental or parenting deficit on the part of either of the parties to these proceedings.

Both appear to me to be loving, committed and appropriate parents. I harboured concerns that such partisanship was re-emerging with this issue and with the suggestion that the allegation of inconsistencies would be made while these adult children would not permit access to the application documentation consequent upon which the allegation was made. Fortunately, the documentation was provided and examined. I must first of all state that it would appear somewhat self-defeating that income levels would be over-stated on an application for grant funding. Having heard the submissions of the parties and having examined the documentation, I have concluded that there was an error made on the grant application forms and that this is not a non-disclosure or false disclosure issue about which I need to have concerns.

73. In terms of how I must deal with the undoubted flagrant non-disclosure of assets, it appears to me that it is appropriate to consider this in the context of the non-disclosure (litigation misconduct and consequential costs arising) and in the context of the additional assets. Having regard to the considerations in section 16(2)(a) of the 1995 Act, the property resources of the family have increased. It is clear that the net value of the lands must be added to the overall available assets in the context of addressing proper provision as clearly this is the true value of the financial assets of the parties.

In the context of section 16(2)(i) of the 1995 Act, is this non-disclosure conduct “such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it”?

74. The issue of litigation misconduct was considered by Irvine J. (as she then was) in QR v. ST [2016] IECA 421. The learned judge stated:

“Litigation Misconduct

61. As to whether litigation misconduct and in particular the failure of a party to meet their statutory obligation in terms of disclosure is conduct which it would be unjust for a court to ignore in the context of s. 16(2)(i), that is a matter for the discretion of the trial judge having regard to all of the circumstances of the case.

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 we l 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 of the parties have a duty, not only to one another, but also to the court, to make full and frank disclosure of al 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.”

63. Further guidance is to be found in the decision of Ryan J. in K.C v. T.C. (Unreported, Court of Appeal, 12th February 2016), where in the context of one party’s alleged litigation misconduct he stated as follows:

“To the extent, therefore, that the court was deciding that one party’s conduct constituted litigation misconduct giving rise to grave consequences in the case, I think there had to be clear evidence to establish it and anything tended to demonstrate the innocence of the party has to be carefully weighed up by the court. One can have a situation where somebody makes a mistakeas opposed to telling lies or seeking to mislead - and the court must be alive to that possibility.

It can also be the case that a person is reluctant at first and then comes forward with the relevant information so that he or she is open to legitimate criticism in respect of previous behaviour, but may not now be engaging in similar conduct. The short point is that before a party is condemned for failure to co-operate, and even more so, before somebody is declared to be guilty of litigation misconduct by actively trying to mislead the court, the trial court must be careful about its findings.”

64. This helpful passage from the decision of Ryan J. would suggest that when determining the manner and amount of the provision to be made for the parties it would be unjust to rely upon litigation misconduct, unless, having considered carefully all of the evidence which might favour a finding of mistake or innocence, the court was convinced that the party concerned had deliberately told lies, had sought to mislead the court and/or had still not made full disclosure.”

75. In the present case, there is nothing to support innocence on the part of the Respondent as regards this non-disclosure. The Respondent swore Affidavits of Means dated after the death of the testatrix and after the date the grant was extracted and, additionally, he denied ownership of the asset under cross-examination.

Referencing the second limb of Ryan P.’s dictum, the Respondent did not come forward with the relevant information and disclosure was only forthcoming in the context of a post-hearing motion brought by the Applicant. Regrettably in this case, the high standard of proof set out by Irvine J. is met – there was a deliberate telling of lies (or, at least, a concealment of the truth) and a misleading of the court in terms of non-disclosure. This is conduct which I conclude would be unjust to disregard.

76. However, in the exercise of the discretion of the Court in the making of proper provision, an appropriate and calibrated response must not include double jeopardy to the Respondent. I must therefore consider what impact the increased value of the assets should have on proper provision, what impact the litigation misconduct should have on proper provision and what impact it should have on the costs which accrued because of it.

77. In apply these principles, I consider it appropriate that the Respondent is responsible for the Applicant’s costs which arose by virtue of this non-disclosure. This prolongation of the matter was entirely due to his actions. Therefore, the Applicant is entitled to all costs arising subsequent to the 17th December 2024, being the date when the oral hearing ended. As agreed between the parties, these costs will be on the Circuit Court scale, certified for Senior Counsel. I do not believe that awarding these costs to the Applicant is sufficient response to the litigation misconduct which has arisen as there can be no doubt that the additional hearings which were required were due to the actions of the Respondent and therefore the Applicant should not be penalised by having to bear the costs which thus arose. Unsurprisingly in all of the circumstances, the Respondent accepted that he should be responsible for these costs.

In relation to the substantive impact of the non-disclosure of the asset itself, as stated previously, proper provision must include consideration of the overall asset increase and the litigation misconduct. Obviously, it now forms part of the family “pot”. It was inherited by the Respondent post separation. The donor died in early 2022 and the Special Summons herein, issued on the 20th June 2022, pleads, inter alia, that there was no normal marriage between the parties for at least 12 months prior to that date. While arguments might be made that the Applicant ought not to have any claim on this inheritance and especially so where the inheritance came so proximate to the end of the marital relationship and the issuing of proceedings, in the unfortunate circumstances which arise, I am of the view that the lump sum ordered to be paid to the Applicant herein should be augmented by a sum equivalent to 60% of the current net value of these lands after the deduction of all inheritance taxes payable with full benefit of all available taxation reliefs and thresholds having been availed of by the Respondent. This is a sum of €100,000 gross (net to be calculated with accountancy advice). With this additional provision, I do not consider that any further recalibration is required to address the matter. The Applicant would have claimed a maximum share of 50% of this asset in normal course. The Respondent would have referenced the provenance of the asset and argued that she should not receive anything from his inheritance. Without the non-disclosure, a Court most likely would have adopted a course somewhere between these two extremes (given the asset valuations arising and the needs of the parties) so I am of the view that the provision of 60% of the current net asset value to the Applicant addresses the approach a court would make in the event that there had been due and proper disclosure of the asset, augmented by the impact of litigation misconduct. In this case, it has been possible to isolate the asset and deal with non-disclosure in a ring-fenced manner relative to the asset. This may not always be the case and other approaches may be more appropriate to other circumstances with litigation misconduct of another nature.

CONCLUSION AND ORDERS

1. A Decree of Judicial Separation pursuant to section 2(1)(f) of the 1989 Act.

2. An Order pursuant to section 10(1)(f) of the 1995 Act granting to the parties’ joint custody of the minor child. The child arrangements in respect of such child to include overnight (weekend and mid-week) and holiday access with both parents. The child to continue to attend his secondary school in the locality of the family home and, subject to alternative arrangements agreed between the parties, the Respondent to collect the said child from school each afternoon and care for him until the Applicant finishes work or overnight as appropriate. Liberty to apply in default of agreement.

3. An Order pursuant to section 8 of the 1995 Act directing the Respondent to maintenance to the Applicant in respect of the youngest child of the marriage as follows (this periodic maintenance provision to apply during that child’s time in secondary education):

a. €500 per month to be paid by standing order to a bank account of her nomination;

b. 50% of educational and medical (non-insured) expenses of this child;

c. Health insurance cover at current levels for this child.

4. An Order pursuant to section 8 of the 1995 Act directing the Respondent to maintenance to the Applicant in respect of the two older children of the marriage for the duration of their dependencies as follows:

a. College registration fees to the extent that not covered by the SUSI grant;

b. Health insurance cover at current levels;

c. Direct payment to each of these two children of €3,000 per annum (total €6,000 per annum) payable as to €1,000 to each on the 1st September, €1,000 to each on the 1st January and €1,000 to each on the 1st April of each year.

5. The maintenance arrangements at 3. to apply in respect of the youngest child also in the event of his attendance at third level education.

6. An Order pursuant to section 8(1)(c) of the 1995 Act directing the Respondent to pay to the Applicant a lump sum of €650,000 together with a further lump sum comprising 60% of the net value of the undisclosed inherited lands6 such lump sum to be paid within nine months of the date of this judgment. In the event of default, there is to be an Order for sale of the lands and premises comprised in Folio [REDACTED] with the lump sums aforementioned to be discharged therefrom. In the event that the net proceeds of sale of such folio exceeds the lump sums due and owing pursuant to this Order, the Respondent to be entitled to the balance. In the event that the net proceeds of sale of such folio are insufficient to discharge such lump sums in their entirety, an Order for the sale of such further lands as are necessary to discharge the lumps sums due and owing to the Applicant pursuant to this Order.

To be calculated based on optimal usage of taxation thresholds and reliefs available to the Respondent.

7. An Order pursuant to section 9(5) of the 1995 Act authorising the Chief Registrar of the High Court to sign all documents necessary to give effect to the Orders and terms made herein.

8. Upon payment of the lump sums provided for herein, the Respondent to have, pursuant to section 10(1)(a)(i) of the 1995 Act, an exclusive right of occupation in the family home to the exclusion of the Applicant.

9. Subject to payment of the lump sums provided for herein, a declaration pursuant to section 10(1)(b) of the 1995 Act and section 36 of the 1995 Act that the Applicant is entitled to the legal and beneficial ownership of all assets set out in his Affidavit of Means of the 8th July 2024 sworn herein together with the previously undisclosed inherited lands.

10. A Declaration pursuant to section 10(1)(b) of the 1995 Act that the Respondent is responsible for any indebtedness due and owing to his parents and to indemnify the Applicant in respect of same.

11. Upon payment of the lump sums provided for herein, an Order pursuant to section 54(3) of the 1995 Act dispensing with the requirement of the consent of the Applicant to any future disposition of the family home.

12. Mutual Orders pursuant to section 14 and section 15A (10) of the 1995 Act with such Orders in favour of the Respondent’s estate to be subject to full compliance with the payment of the lump sums ordered herein with the claim of the Applicant upon his estate to be confined to compliance with the provision made pursuant to the Orders made herein.

13. Liberty to apply.

14. An Order for costs on the Circuit Court scale, certified for Senior Counsel, in favour of the Applicant as against the Respondent from the 17th December 2024 to the date of this judgment. No further Order as to costs as between the parties.

15. I will list this matter at a date convenient to Counsel to address any issues that arise from this judgment.