High Court partially allows appeal on maintenance calculation but dismisses claim regarding arrears and recoupment.

APPROVED

REDACTED

FOR PUBLICATION

THE HIGH COURT

FAMILY LAW

CIRCUIT COURT APPEAL

IN THE MATTER OF PART 15 OF THE CIVIL PARTNERSHIP AND CERTAIN RIGHTS AND OBLIGATIONS OF COHABITANTS ACT 2010

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 AS AMENDED BY THE CHILDREN AND FAMILY RELATIONSHIPS ACT 2015)

AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976 (AS AMENDED)

[2026] IEHC 474

Record No. H CAF 2025 80

BETWEEN:

K.L

APPLICANT/RESPONDENT

AND

M.N

RESPONDENT/APPELLANT

Ex Tempore judgment of Ms. Justice Nuala Jackson delivered on the 15th June 2026.

1. It is not disputed in this appeal that the parties were cohabitants and that the Applicant/Respondent (“K.L”) is a qualified cohabitant for the purposes of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (‘the 2010 Act’). There are two children of the relationship namely B, now aged 11 years and H, now aged 10 years.1

2. Both children have significant additional needs and medical complaints. I do not consider it necessary to detail these in this judgment save to say that it was accepted by both parties that situations of long-term dependency arise in respect of both children. The parents are to be complimented as regards their commitment to the children. Both address the care needs in a proactive manner and share the care burden relating to them. While there was reference to shared care and the extent of such sharing during the hearing, it is clear that shared care in this instance, as is usually the case, cannot be broken down into percentages based on normal routines. Situations requiring the disruption of the norms occur in all families and particularly so in circumstances of illness and additional care needs.

3. In the present case, the usual term time arrangement is that the children spend two overnights mid-week with the Respondent/Appellant (‘M.N’) as well as every second weekend from Friday to Monday morning.2 I consider the specific timing of these periods to be of significance. Collection of the children for these periods takes place from the former joint residence of the parties (in which K.L and the children now reside) in the late evening, after M.N finishes work. The children are returned to this residence by their father in the early morning, with the children being collected for school about one hour later. K.L has responsibility for the care of the children on these days from their return from school to collection time and also following morning returns until school pick-ups. It is accepted by both parents that the children require considerable routine and it is admirable that they co-parent to achieve this. It is also common case that the children (and, in particular, H) has very disrupted sleep.

It is a matter of concern that the Civil Bill in this matter issued on the 12th June 2020 and in consequence these proceedings were approaching their 6th anniversary when the appeal came on for hearing before me on the 9 th June 2026. As is clear from the Indorsement of Claim on the Civil Bill, the children were aged 5 years and 4 years respectively when the proceedings were commenced. I do recognise that a portion of this period may be explained through the intrusions of the Covid-19 pandemic but, even having regard to this, a period of 6 years is an inordinate time for family life to proceed under the shadow of litigation aimed at resolving the issues arising from the termination of a relationship.

It is common case that the children receive one night of respite care per fortnight which takes place outside their home. Both parties have additional holiday access periods but contact arrangements are relatively similar throughout the year. This obviously impacts upon the parent who has overnight care (and I acknowledge that this must be most difficult for M.N when he must present for work the following day) but I do not think that it was substantially disputed that this sleep disruption often leaves H tired such that he recoups his consequent sleep deficit during the course of the morning, with his mother dropping him to school a number of hours later. I also accept that there are considerable medical and health/welfare related appointments which the children must attend. On the evidence, it appears to me that both parents participate in these to a very considerable degree with M.N making admirable effort to be available for such and K.L doing so invariably. I also accept the evidence of K.L that unexpected issues arise in relation to the children which require them to be collected from school early, in addition to the usual unpredictable circumstances of illness and such like which arise. The evidence supports a

conclusion that both parents engage with these events but that K.L is the first port of call. In the context of the oral evidence heard by me, I concluded that M.N sought to minimise the extent and impact of these unpredictable or irregular events.

4. M.N is in full time employment and is in occupational circumstances involving considerable commitment and some foreign travel. The manner in which he manages substantial periods of care for the children together with the responsibilities of his employment must be commended. He has enjoyed considerable career success and his career has progressed over time such that, at least in terms of income, his earnings have improved since this case was before the Circuit Court. K.L is not in gainful employment outside the home. While I wish to acknowledge and consider it to be clearly proved on the evidence before me that the parents in this case co-parent and that they both accept ample and onerous responsibility for two very loved but very challenging children, I concluded that K.L is what might be described as the anchor parent.

5. The issues arising before me were quite net and an open offer was made by M.N. I do not consider it necessary to reflect upon the Circuit Court order made in this matter in circumstances in which this is a de novo hearing pursuant to section 38 of the Courts of Justice Act, 1936. Before setting out the open offer made, it is necessary to briefly set out the financial positions of both of the parties and, to a lesser degree, the history and trajectory of same.

6. The parties are the joint owners of a property which has a value of between €500,000 and €550,000.3 This property is subject to a mortgage with a current balance of approximately €217,500 (average of figures in the parties’ most up to date Affidavits of Means). It is therefore a property with a significant equity. Both parties have made direct and indirect contributions towards the discharge of the purchase price of this property and towards the mortgage repayments. M.N, who is now married, has in recent times acquired a family home with his wife. There is modest equity in this property. Both parties very fairly recognised the very positive relationship which the boys have with M.N’s wife and her contribution to and support of their care. M.N’s wife is in gainful employment but, of course, family commitments in his marriage may impact upon the circumstances of that household in the future. At present, however, M.N is in a dual income household although I accept that his outgoings in his most recent Affidavit of Means relate to his share of expenses in that household.

7. M.N has substantive and significant pension provision consistent with his occupational circumstances which have permitted accumulation over the years. K.L has but modest pension provision in circumstances in which her altered occupational circumstances arising from the care needs of the children have resulted in her not being gainfully employed outside the home for a considerable period of years.

8. In terms of income, K.L is in receipt of a number of different social welfare payments together with maintenance paid by M.N in relation to the children. These are fully detailed in her Affidavits of Means.

9. M.N is in receipt of employment income. I found the evidence in this regard to be sub-optimal. He has recently changed employment in circumstances in which his base income has increased but he works in an area which attracts performance related bonuses and there was no satisfactory evidence of the extent of such likely bonuses in his current employment. His evidence was that he received and was entitled to receive substantial bonuses in the context of his prior employment and that he had changed employment in order to achieve a higher base income but with less predictability in terms of bonus. He did not produce his current contract of employment but informed me that bonus provision was not predictable in his current position. I do accept his evidence that bonus provision is performance related. In this regard, he does have a very positive track record if his previous occupational

Per the most up to date Affidavits of Means of the parties. performance is taken into account. Overall, the evidence in this regard was opaque and unsatisfactory. M.N would appear, on his evidence, to have made little enquiry in relation to the bonus situation in respect of his now employment which I consider to be a brave approach to employment circumstances. I have concluded that he is undoubtedly going to receive the now higher base salary but that there is an entitlement to bonus which likely will arise. It must be borne in mind that the base income increases between his Affidavits of Means of the 15th July 2025 and the 29th May 2026 was not insignificant being €35,000.

OPEN OFFER

10. Having stated above (and reiterating at this point) that the Orders made by the Circuit Court are of very limited significance in the context of a de novo hearing, the open offer is somewhat incomprehensible without having regard to the rulings of the court below. Broadly stated, the Circuit Court orders provided for maintenance for the children (K.L to have the benefit of incapacitated tax relief or equivalent payment)

and equal division of some direct expenses relating to the children as well as providing that the parties would continue to be responsible in equal amounts for certain outgoings relating to the jointly held property and that, while such property would be transferred to K.L for her to live in with the children, that M.N would have a percentage (30%) share of the value of it in certain circumstances. K.L is content with this provision.

11. While there was some confusion in this regard, it ultimately transpired in his open offer that M.N was agreeable to an outright transfer of the jointly held property to LW but that he sought to pay a fixed and stated sum by way of maintenance and that she would be responsible for all outgoings (including the mortgage) in respect of that property. In this regard, he offered a monthly sum of €1,350 maintenance (inclusive of incapacitated tax relief), divided equally between the two children.

12. While accepting that this would involve a significant capital value in the context of the equity in the property, K.L expressed concern in relation to the discharge of current expenditure and the sufficiency of her income to discharge the outgoings of herself and the children in the context of the reduced contribution by M.N in this regard. The response of M.N to this is that K.L should take up part time gainful employment outside the family home in order to supplement the income available to her and the children. LD’s evidence is that the care responsibilities she assumes do not enable this to occur. She proffers the unpredictability of the care needs of the children in support of this position.

13. Having considered the evidence in this matter, I formed the view that the ability of K.L to assume employment outside the home is extremely limited in nature. As the anchor parent, she is the person who, principally, assumes responsibility for the unexpected and, in addition, she supports the children’s needs at either side of contact periods with M.N and she engages, almost invariably, with the external appointments which the children require. I recognise and acknowledge the evidence of M.N that he substantially so engages and that he would further engage if required but I concluded that his evidence in this regard was to a degree wishful in the context of his employment obligations. It may well be that K.L would be in a position to take up a very minimal amount of engagement in activities outside the home (whether in the form of gainful occupation or otherwise) and there might be a therapeutic benefit in so doing, but I have concluded that, having regard to her role and the needs of the children that her availability and ability to do so is curtailed to such a degree that this would be challenging and difficult to sustain or predict such that I do not consider it appropriate to place such expectation upon her or to include it in the calibration of provision in this case.

14. I do not consider the expenses or lifestyles of either of these parties to be unreasonable or excessive.

CONCLUSION

15. Having regard to the provisions which I must consider under section 173 of the 2010 Act (and, in particular, section 173(3) of that Act) and under section 5A of the 1976 Act as amended (and, in particular, section 5A(3) of that Act), I find that the provision set out below is “just and equitable” (2010 Act) and “proper in the circumstances”

(1976 Act).

16. I have concluded that the jointly held residential property should be transferred into the sole name of K.L and that she should be responsible for the mortgage and all other expenses relating thereto, M.N to be indemnified by her in this regard. This affords the children security in terms of their accommodation and also, importantly, given the care responsibilities which she has assumed and will continue to assume going forward, affords her accommodation security especially in circumstances in which her pension provision is limited and her ability to further contribute to a pension will be curtailed due to such care responsibilities.

17. I do, however, consider the maintenance sum being offered by M.N to be insufficient to satisfy the statutory standard of what is proper in all of the circumstances, having regard to the respective income and expenditure positions of the parties. Pursuant to the Order of the Circuit Court, while retaining (in certain circumstances) 30% of the equity in the property, M.N was required to discharge maintenance of €100 per week per child (€866.66 per month) together with the incapacitated tax allowance (€600 per month),4 plus certain direct expenses (medical, educational and dental), M.N to continue to discharge the health insurance premiums in respect of the children plus 50% of mortgage repayments, household insurance, mortgage insurance and LPT.

These last-mentioned expenses (50% of total such) amount to €595 per month (mortgage €510, house insurance €25, life assurance €50, LPT €10). On the Affidavit of Means of M.N sworn on the 29th May 2026, this amounts to a total payment of €2,061.66 (excluding direct expenses and health insurance premiums)5. I consider the transfer of the jointly owned property to be appropriate for the reasons set out above and there must, obviously, be some calibration of this benefit to K.L into the overall provision which may be considered appropriate but there must also be recognition of the expenditure requirements of herself and the children. This must be viewed in the light of the financial circumstances (income and expenditure) of M.N.

18. In this regard, his base income has increased significantly since this matter came before the Circuit Court and there will also likely be some degree of bonus. I have formed the view that in all of the circumstances the appropriate maintenance provision is €1,650 per month (inclusive of the incapacitated tax relief), this to be divided equally between the two children. This payment should be made by standing order monthly, to commence with the next due maintenance payment following on from the date of this judgment. I am also directing that he continues to be responsible for health insurance premiums for the children at current levels and that he discharges 50% of educational, medical/dental/optical (excluding what is paid by health

I was informed at the hearing that this allowance had increased from €550 to €600.

The health insurance provision is included in the contract of employment of SW although benefit in kind taxation applies to it. It was indicated in evidence that the net monthly income of SW relating only to base income was in the sum of approximately €8,000 per month). insurance or other State funding), such expenses to be subject to prior agreement where the individual item of expense exceeds €250. This will result in M.N having income of €6,350 per month6 after maintenance is discharged, without any provision being made for increase based on bonus payment. K.L will have a total income of €5,029.61 (domiciliary care allowance, carer’s allowance, carer’s grant €3,379.61 per month and maintenance of €1,650). Each will have mortgage repayments (those of M.N being approximately 10% more than K.L) and I recognise that M.N also has other loan repayments. K.L also has some family and family facilitated loans but she will also have the benefit of the current and growing equity in the currently jointly held residential property.

19. I will furthermore direct that this maintenance payment in respect of the children should be utilised by K.L in the first instance in discharge of the mortgage and related necessary expenditure with liberty to apply in the event of default of such payments being made. Appropriate security for such maintenance to be put in place whether through life assurance or pension provision and I will hear from the parties in this regard.

20. There were two other issues raised in the course of the hearing herein. The first related to a possible recoupment claim against M.N by his former employer. I was provided with a letter concerning this but this was far from definitive or specific.

Given the lack of clarity in this regard, I do not consider it appropriate to have recalibration of provision in consequence of it. The past and present strong income position of M.N is, in my view, sufficient to deal with any such claim which may arise.

21. There was, in addition, an issue of maintenance arrears, M.N having paid €75 per week per child only since the date of the Circuit Court order rather than the €100 per week per child provided for in such order. There was a dispute as to whether or not there was an ongoing stay on the Circuit Court order. No copy of the order was provided to me. I have decided not to make any order in respect of arrears in circumstances in which, albeit that he paid less on a weekly basis than was ordered, M.N has continued to discharge utilities in respect of K.L’s residence which he was not obliged to do under such order. His Affidavit sets out such payments at circa.

€160 per month.

Subject to his responsibility for 50% of the named direct expenses.

22. I will affirm the Orders of the Circuit Court save to the extent that varied herein. I request that a draft Order be submitted within seven days of the date of this judgment and, in default of agreement, each party to submit such draft within 10 days of this date. I will grant liberty to apply in respect of matters arising, such application to be made at a date convenient to Counsel but no later than 28 days from this date.