Supreme Court allows appeal against excessive post-separation property provision order due to changed asset values.

THE SUPREME COURT

[Appeal No: 271 & 272 of 2009]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Finnegan J.

Between/

Y.G.

Applicant/Respondent

and

N.G.

Respondent/Appellant

Judgment delivered on the 19th day of October, 2011 by Denham C.J.

1. This is an appeal by N.G., the respondent/appellant, husband of the respondent, referred to as "the appellant", from the judgment

and order of the High Court (Abbott J.) delivered on the 12th December, 2008. Y.G., the applicant/respondent, wife of the appellant,

is referred to as "the respondent" in this appeal.

2. The appellant and the respondent were married to each other on the 4th February, 1977.

3. At the start of the marriage, the parties took up residence in a house inherited by the appellant from his aunt and uncle. The

respondent came to the marriage with £3,000 savings, and the parties both ran a garage and a farm in the early years of their

marriage.

4. The appellant began to pursue an interest in property development, and was involved in building and selling houses in an estate

developed by a company, referred to as C.P. Limited.

5. There were no children of the marriage. The respondent had a miscarriage of twins six months into the pregnancy in 1978, which

caused her great distress.

6. The parties separated in 1995.

7. The parties entered into a separation agreement on the 22nd August, 1996. The appellant agreed to pay to the respondent £100

per week for an initial 24 month period, with a revision after that down to £50 per week, subject to the CPI indexation, and the

appellant paid for the respondent's VHI subscription, provided a house for the respondent in the C.P. Limited estate, and an additional

lump sum of £70,000.

8. The settlement had a "full and final settlement" clause. It stated in paragraph sixteen:-

"The husband and wife hereby agree that the within Agreement is in full and final settlement of all present and future

property and financial claims which either of them may have against the other under the Married Women's Status Act

1957 or the 1976 Act or the Judicial Separation and Family Law Reform Act 1989 or the Family Law Act 1995 or otherwise

or under any Act of the Oireachtas amending the said Act or Acts under the provisions of any other similar legislation of

this or any jurisdiction.

It is agreed between the parties that this Agreement is intended as being in full and final settlement of all matters arising

between the parties and, in the event of either party being granted a Decree of Judicial Separation as provided for in

Section 2 of The Judicial Separation Act 1989, the terms of this agreement shall be incorporated into the Order of the

Court and, similarly, in the event of legislation permitting the granting of a Divorce being introduced and one or other

party applying for such a Divorce, that again, in the event of such Divorce being granted, the terms of this Order shall be

incorporated into the Order of the Court granting the Divorce."

9. The maintenance for the respondent was not increased from £50 per week until 2002, when it was increased to €70. On an interim

maintenance application in October, 2004 the appellant agreed to pay to the respondent €1,200 per month pending the hearing of the

application, which sum was increased to €2,500 per month by the High Court.

10. The respondent continued to live in the house provided for her under the separation agreement. However, she has spent the

£70,000 lump sum and did not invest it in any wealth producing activity.

11. The appellant lives a comfortable lifestyle. The respondent, on the other hand, claims that she does not enjoy the same lifestyle,

and that she incurred debts until her maintenance was increased in 2007.

12. The respondent brought a claim seeking a decree of divorce and that provision be made pursuant to s.20 of the Family Law

(Divorce) Act 1996.

13. The appellant argued that proper and permanent provision had been made by him for the respondent in the deed of separation

which was intended to be in full and final settlement.

The High Court

14. On the 5th March, 2009, the High Court ordered that, being satisfied with regard to the requirements of s.5(1) of the Family Law

(Divorce) Act, 1996, the court granted a decree of divorce to the parties. Further provision was made for the respondent and it was

ordered as follows:-

(i) An Order pursuant to Section 13 of the 1996 Act directing the [appellant] to purchase for the sum of

€600,000.00 an annuity for the [respondent] for her lifetime, which said annuity shall increase annually in

accordance with the Consumer Price Index. The said purchase shall be made with the sum of €600,000 to be

deducted from the sum of €1,750,000.00 held by the [appellant's] solicitors in trust or on joint deposit of the

solicitors for the parties herein.

(ii) An Order pursuant to Section 13 of the 1996 Act directing the payment of €300,000.00 by the [appellant] to the

[respondent's] solicitors to invest in a pension fund on the advice of Mr. Shane Brown. The said pension is to be

available to the [respondent] when she reaches the age of 65 years. The said sum of €300,000.00 to be paid out of

the sums on deposit totalling €1,750,000.00 (plus interest).

(iii) An Order pursuant to the provisions of Section 13 of the 1996 Act directing the payment of €100,000.00 by the

[appellant] to the [respondent's] Solicitors, Michael Houlihan & Partners, in part-payment of their costs, fees and

outlays. The said amount to be paid out of the sum of €1,750,000.00 on deposit (plus interest).

(iv) Subject to paragraphs 1, 5 and 6 of this Order an Order pursuant to the provisions of Section 13 of the 1996

Act directing the payment of maintenance by the [appellant] to the [respondent] in the sum of €54,000.00 per

annum, which said sum shall be increased annually on the basis of the cost of living index, the base date to be the

1st January 2009 and the first increase to take effect on the 1st day of January 2010 and on the 1st of January

each year thereafter.

(v) An Order pursuant to Section 13 of the 1996 Act that, until such time as the maintenance payments provided

for in Paragraph 4 above are fully payable by way of annuities purchased in the manner provided for in this order,

the [appellant] shall pay to [respondent] such part of the sum of maintenance per month as is not provided for by

such annuities as are purchased for the [respondent], under the foregoing provisions. The said payments shall

cease upon the full extent of the said maintenance being annuitised in accordance with the Order of this Court.

(vi) An Order pursuant to Section 13 of the 1996 Act directing that the balance of maintenance, if not yet

annuitised, be annuitised by the [appellant] by expending such funds as are necessary to purchase additional

annuity for the [respondent] to provide her with an income equal to the amount of maintenance payable to her as

adjusted in accordance with the cost of living index on or before the 1st of December 2011.

(vii) An Order under Section 13 of the 1996 directing the [appellant] to pay to the applicant a lump sum of

€1,000,000.00 on or before the 1st of December 2011 for the purpose of enabling the [respondent] to purchase

housing accommodation, which said housing accommodation shall be within two miles of the town in which the

[respondent] now resides on a road route serviced by public transport, which said accommodation shall be insured

against fire and theft, and shall be insured in respect of employers, occupiers and public liability. The said sum shall

be capitalised maintenance for the purpose of maintaining the [respondent] in the proper accommodation of her

choice, within the meaning and for the purpose of the Brussels I Regulations.

(viii) An Order under Section 13 of the 1996 Act directing the [appellant] to pay the VHI premia on behalf of the

[respondent] and further directing the [appellant] to set up a joint account on or before 1st December 2011 to be

kept by the [respondent] and [appellant]. Under this order, the sum of €65,000 shall be lodged into the account for

the purpose of automatic payment of the said VHI on the basis of a direct debit mandate signed by the parties

hereto with instructions by the parties hereto to the bank that no withdrawal by either party or both parties shall

be permitted from the account save by Order of the Court.

(ix) An Order under Section 16 of the 1996 Act directing the [appellant] to keep in place the policy of insurance of

€500,000.00 with the Ark Life Assurance Company Limited, being Policy No. HTO 393 Y held in trust for the benefit

of the [respondent], and to continue paying the instalments of this policy until all maintenance has been annuitised

and all payments due to the [respondent] pursuant to this Order have been made. The [appellant] shall be entitled

to retain such policy for his own use after the requirements of the Order of this Court are fulfilled.

(x) An Order pursuant to Section 13(1)(b) and 13(3) of the 1996 Act directing that, until such time as all payments

have been made and annuities in lieu of maintenance payments purchased, the balance of maintenance payments

and other payments due pursuant to this Order shall be secured upon [appellant's] home and other fixed assets. A

list of the said fixed assets and properties are attached to this Order at Schedule 2 hereto.

(xi) An Order under Section 13 of the 1996 Act directing the[appellant] to pay the sum of €600,000.00 to the

[respondent] for her own use and benefit absolutely on or before the 1st day of December 2011.

(xii) An Order and cross Order pursuant to section 18(10) of the Family Law (Divorce) Act, 1996.

(xiii) An Order that the [appellant] pay half the costs of the [respondent] in this case when taxed and ascertained

over and above the costs previously awarded to the [respondent] in respect of the case management and

disclosure process such that there shall be no duplication of costs in respect of these matters.

Notice of Appeal

15. The appellant has appealed against the judgment and order of the High Court. The following grounds of appeal were filed in the

Notice of Appeal:-

(i) That the level of capital provision required by the Learned High Court Judge to provide maintenance and lump

sum provision for the benefit of the [respondent] is excessive and unreasonable having regard to the evidence

adduced, submission made and the law applicable to the making of proper provision.

(ii) That the level of periodic maintenance ordered by the Learned High Court Judge for the benefit of the

[respondent] is excessive and unreasonable having regard to the evidence adduced, submission made and the law

applicable to the making of proper provision;

(iii) That Learned High Court Judge erred in law, and on the evidence adduced, submission made, and the law

applicable to the making of proper provision, in rejecting or failing to accord with, the contention made on behalf of

the [appellant] that proper provision for the benefit of the [respondent] existed by reason of the previous provision,

or could be made, having regard to the prior provision of accommodation, maintenance and security for same by

way insurance cover by the [appellant] for her benefit.

(iv) That in directing the payment of the lump sums to the [respondent] the Learned High Court Judge applied

compensatory criteria analogous to damages for personal injuries in purporting to make proper provision for the

benefit of the [respondent] contrary to the statutory requirements of section 20 (2) of the Act of 1996.

(v) That the Learned High Court Judge erred in law in seeking to secure and provide for the maintenance payable by

the [respondent] to the [appellant] by the provision of annuities such that an excessive and disproportionate

financial burden or penalty was levied on the [appellant] to the detriment of the making of proper provision.

(vi) That the method of securing of the periodic maintenance payable to the [respondent] as directed by the

Learned High Court Judge unreasonably and unfairly fetters the [appellant's] use and control of his assets to the

detriment of his long term financial security and business activity.

(vii) That the purchasing of annuities imposed an unreasonable and unfair financial burden upon the [appellant]

amounting to a confiscation of assets contrary to the making of proper provision for the benefit of both parties, and

is an unreasonable waste of assets.

(viii) That the mode and manner of the security ordered by the Learned High Court Judge to secure the

maintenance payments was not warranted by the evidence adduced as to [appellant's] business activity or the

nature of his assets and unreasonably and unfairly fettered the freedom of discretion and control by the [appellant]

over his assets and resources.

(ix) That the mode and manner ordered by the learned High Court Judge for the payment and securing of

maintenance unreasonably deprived the [appellant] of the entitlement to apply for review of maintenance by reason

of any variation or change in circumstances such that same is unfair and unreasonable.

(x) That the Order of maintenance, and mode and the manner in which it is to be paid and secured, together with

the funding of pension provision as ordered at paragraph 2 of the Order, unfairly allows to the [respondent]

additional income or maintenance on attaining the age of 65, and in circumstances where the appellant is deprived

of the entitlement to review periodic maintenance.

(xi) That the Learned High Court Judge failed or neglected to give a proper weight to the terms and provisions of

the parties' Separation Agreement having regard to the evidence adduced and the submissions made.

(xii) That the Learned High Court Judge erred in law, and contrary to Section 20 (3) of the Family Law (Divorce)

Act, 1996 and the evidence and the submissions, in that he failed to have any regard, or any sufficient regard to

the "full and final" nature of the matters agreed between the parties pursuant to their Separation Agreement.

(xiii) That the Learned High Court Judge misdirected himself in the computation and assessment of the [appellant's]

financial resources upon which he based the provision of lump sums and annuities.

Submissions

16. When this case was first before this Court on the 19th October, 2010, Mr. Hegarty, S.C., counsel for the appellant, submitted

that the learned High Court judge had erred. Several matters were stressed in argument: (a) that the learned High Court judge had

failed to give any real weight or proper consideration to the parties' prior separation agreement; (b) that in purporting to comply with

the requirement to consider the matters mandated by s.20 of the Family Law (Divorce) Act,1996, the learned High Court judge had

embarked on a distributive or re-distributive financial process in favour of the respondent; (c) that where there exists a mutually

agreed "full and final" separation settlement, the proper function of the court is not to make proper provision "de novo", but rather to

assess the previous provision, and then assess the parties' current financial circumstances, and only if there is some material change

in a party's personal non-financial circumstances or if there is some deficiency in the initial provision, make it proper. He submitted

that proper provision requires three essential ingredients, and insofar as resources permit, provision for both parties in the form of: (a)

accommodation; (b) income or maintenance for a spouse and/or child; (c) security into the future.

17. Ms Inge Clissman, S.C., counsel for the respondent, submitted that, inter alia, that the learned trial judge gave proper

consideration to the matters required under s.20(2) and considered the provisions of s.20(3) of the Family Law (Divorce) Act, 1996,

before proceeding to make proper provision for the respondent. She submitted that the learned trial judge had applied the relevant

criteria and considerations. It was submitted that proper provision had been made by the High Court and not unjust enrichment, and

that the judgment and order of the High Court should be upheld.

18. On the continued hearing of this matter on the 17th February, 2011, counsel made submissions as to the weight to be attached

to the separation agreement. References were made to the standard of living of the parties and comparisons drawn. Counsel referred

to the terms of the Family Law (Divorce) Act, 1996.

19. Counsel for the appellant requested that the case be remitted to the High Court for consideration under s.22 of the Family Law

(Divorce) Act, 1996. He stated that there had been fundamental changes.

The Law

20. The Family Law (Divorce) Act, 1996 (referred to as "the Act of 1996") is at the core of this appeal. Section 20 provides:-

"(1) In deciding whether to make an order under section 12 , 13 , 14 , 15 (1) (a), 16, 17, 18 or 22 and in determining the

provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the

circumstances exists or will be made for the spouses and any dependent member of the family concerned.

(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in

determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has

or is likely to have in the foreseeable future,

(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),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the

spouses commenced to live apart from one another, as the case may be,

(d) the age of each of the spouses, the duration of their marriage and the length of time during which the spouses

lived with one another,

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

(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,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during

the period when they lived with one another and, in particular, the degree to which the future earning capacity of a

spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity

in order to look after the home or care for the family,

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

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the

circumstances of the case be unjust to disregard it,

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

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by

reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,

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

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions

of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by

the spouses and is still in force.

(4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that

subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order,

the court shall, in particular, have regard to the following matters:

(a) the financial needs of the member,

(b) the income, earning capacity (if any), property and other financial resources of the member,

(c) any physical or mental disability of the member,

(d) any income or benefits to which the member is entitled by or under statute,

(e) the manner in which the member was being and in which the spouses concerned anticipated that the member

would be educated or trained,

(f) the matters specified in paragraphs (a), (b) and (c) of subsection (2) and in subsection (3),

(g) the accommodation needs of the member.

(5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of

justice to do so."

[Emphasis added]

Issues

21. The first issue on this appeal concerns the weight to be given to the deed of separation. The parties entered into a separation

agreement on the 22nd August, 1996. The respondent has brought these proceedings seeking a decree of divorce and that provision

be made for her pursuant to s.20 of the Act of 1996. The appellant submitted that proper and permanent provision was made by him

for her in the deed of separation which was intended to be in full and final settlement. This submission raises questions. What weight

is to be given to the previous separation agreement? Was the previous settlement a full or partial estoppel? What happens if there

has been a change in circumstances? A windfall? A financial disaster? A serious illness? A change in needs? How relevant is it if a

party has mismanaged his or her provision made in an earlier agreement?

General Principles

22. In light of the law and the Constitution, there are a few general principles which may be applied where there has been a prior

separation agreement followed by a subsequent application by a party to court. These principles are drawn up in light of the

circumstances of this case, but they are general principles.

(i) A separation agreement is an extant legal document, entered into with consent by both parties, and it should be given

significant weight. This is so especially if the separation agreement, as here, provides that it was agreed between the

parties that the agreement was intended to be a full and final settlement of all matters arising between the parties; and,

in the event of either party being granted a court decree, the terms of the agreement should be incorporated into the

court order.

(ii) Irish law does not establish a right to a "clean break". However, it is a legitimate aspiration. As Keane C.J. said in D.T.

v. C.T. [2002] 3 I.R. 334 at p. 364:-

"It seems to me, that, unless the courts are precluded from so holding by the express terms of the Constitution and

the relevant statutes, Irish law should be capable of accommodating those aspects of the"clean break" approach

which are clearly beneficial. As Denham J. observed in F. v. F. [1995] 2 I.R. 354, certainty and finality can be as

important in this as in other areas of the law. Undoubtedly, in some cases finality is not possible and thus the

legislation expressly provides for the variation of custody and access orders and of the level of maintenance

payments. I do not believe that the Oireachtas, in declining to adopt the"clean break" approach to the extent

favoured in England, intended that the courts should be obliged to abandon any possibility of achieving certainty

and finality and of encouraging the avoidance of further litigation between the parties."

In that, case Murray J. stated at p.411:-

"I also agree that when making proper provision for the spouses, a court may, in the appropriate circumstances,

seek to achieve certainty and finality in the continuing obligations of the divorced spouses to one another. This is

not to say that legal finality can be achieved in all cases and any provision made may be subject to review pursuant

to s. 22 of the Act of 1996, where that provision applies. However, the objective of seeking to achieve certainty

and stability in the obligations between the parties is a desirable one where the circumstances of the case permit."

(iii) The constitutional and legislative scheme gives to the Court a specific jurisdiction and duty under the Act of 1996.

(iv) Under s. 20(1) of the Act of 1996 "the court shall ensure that such provision as the court considers proper having

regard to the circumstances exists" will be made for the spouses and any dependant children. Thus this duty requires the

Court to make proper provision, having regard to all the circumstances. A deed of separation stated to be in full and final

settlement is a significant factor.

(v) If the circumstances are the same as when the separation agreement was signed then prima facie the provision made

by the Court would be the same, as long as it was considered to be proper provision.

(vi) If the circumstances of the spouses, one or both, have changed significantly then the Court is required to consider all

the circumstances carefully. However, the requirement is to make proper provision and it is not a requirement for the

redistribution of wealth.

(vii) Relevant changed circumstances may include the changed needs of a spouse. If there is a new or different need,

that may be a relevant factor. Such a need may be an illness.

(viii) The changed circumstances which may be relevant include the bursting of a property bubble which has altered the

value of the assets so as to render an earlier provision unjust. These are two example illustrations and are not intended to

be a conclusive list of relevant changed circumstances.

(ix) If a spouse acquires wealth after a separation, and the wealth is unconnected to any joint project by spouses during

their married life, then that is not a factor of itself to vest in the other spouse a right to further monies or assets.

(x) If, in the period subsequent to the conclusion of a separation agreement, one spouse becomes very wealthy, there is

no right to an automatic increase in money or other assets for the other spouse.

(xi) If a party seeks additional funds, the Court has to look at all the circumstances and its duty is to make proper

provision, not to enter into a redistribution of wealth.

(xii) The facts and circumstances to be considered will include the length of time since the separation agreement was

entered into. The greater the length of time which has passed, barring catastrophic circumstances, the less likely a court

will be to alter arrangements.

(xiii) The standard of living of a dependent spouse should be commensurate with that enjoyed when the marriage ended.

The Act of 1996 specifically refers to matters to which the Court shall have regard and these include the standard of

living enjoyed by the family before the proceedings were instituted or before the spouses commenced to live apart, as the

case may be.

(xiv) However, if a party has new needs, for example a debilitating illness, that will be a factor to be considered by a

court in all the circumstances of the case.

(xv) Assets which are inherited will not be treated as assets obtained by both parties in a marriage. The distinction in the

event of separation or 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 on 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.

(xvi) A party should not be compensated for their own incompetence or indiscretions to the detriment of the other party.

(xvii) If there has been an exceptional change in the value of assets, which was unforeseen at the time of the judicial

separation or High Court hearing, it is a relevant factor, as not to take account of such a factor would result in an

injustice. See M.D. v. N.D. [2011] I.E.S.C. 18.

This Appeal

23. It is necessary then to apply the Constitution, the law, and the above principles to the facts of this case.

24. At the hearing in February, 2011, counsel for the appellant informed the Court that at the trial before the High Court the net

assets were agreed at €21 million. Apparently these assets were mainly investments in Bulgaria, €4 to €5million in Norway

(telecommunications), and property in Ireland valued at €3 to €4 million. Without determining the value of the assets, it is clear that

there has been a radical change in circumstances. On the evidence before the Court, it is apparent that this case will have to be

remitted to the High Court so that proper provision in a just manner may be ordered.

25. However, general principles may be applied to the circumstances at this stage so that such proper provision may be made, and to

assist the High Court. The duty of the Court is to make proper provision; that is the Court's remit. While significant weight must be

given to an extant document of legal separation, the statutory duty prevails. Proper provision means that the provision is reasonable

in all the circumstances.

26. A change in circumstances between a deed of separation and an application to the High Court under s.20 of the Act of 1996 may

be relevant if there has been a significant change, such as a need of a spouse or a calamitous drop in the value of assets. The

separation agreement in this case envisaged the respondent's needs tapering off and that she would support herself. However, she

suffered an illness, she could not work, and she used her capital. Circumstances such as her illness are such as to enable a court to

increase her maintenance so that she has proper provision. Thus there was no error in ordering increased maintenance for the

respondent.

27. There was a deficiency in the initial provision for maintenance and security into the future.

28. However, the overall quantum of maintenance and financial provision by the High Court was excessive and was an error. The

quantum of provision was in excess of proper provision.

29. The amount of provision ordered into the future by the High Court for the respondent was excessive.

30. The order providing for an additional house just outside the town was an error and was excessive.

31. The respondent resides in the house provided under the separation agreement. She gave evidence that it was not suitable

because of his family being neighbours. She said she would prefer a house outside the town where she could keep chickens. It was

envisaged as a house of €700,000 to €800,000 plus stamp duty. The Act of 1996 requires that the Court have regard to the

accommodation needs of a spouse. This was done by the provision of the house within which the respondent lives. It was an error by

the High Court to award to the respondent a second house. It was an error to order under s.13 of the Act of 1996 that the appellant

pay to the respondent €1 million for the purpose of enabling the respondent to purchase more housing accommodation, within two

miles of the town in which the respondent resides. I would allow the appellant's appeal in relation to this specific issue.

32. The High Court directed the appellant pay the sum of €600,000 to the respondent for her own use and benefit. In all the

circumstances, where provision has been made for a house, maintenance, VHI etc, this order of €600,000 capital sum was excessive

and was an error.

33. Where a party fails to maximise or utilise resources under a separation agreement that of itself is not a basis upon which to alter

the provision made in a separation agreement and to grant further provision to a party. However, the circumstances may require a

change in order to make proper provision. In this case the respondent did not maximise her capital resources. She did not utilise her

settlement advantageously. This is not "moral hazard" as referred to. However, it may be relevant in all the circumstances. Factors in

the use of her capital, by the respondent, were the low level of her maintenance and her ill health. While in some cases the lack of

stewardship by a party may be a determining factor against any further order for assets, in this case the situation is ameliorated by

her health issues and the level of her maintenance under the previous arrangement. Thus the lack of stewardship is not a bar in this

case for making further provision so that there is proper provision.

34. If one party obtains a windfall after a separation agreement or judicial settlement the other party is not entitled as of right to part

of it. Such an application would only be considered if it addressed a need of a party. Thus where there is a great improvement in one

party's finances after a full and final settlement the concept of "proper provision" should not be dominated by that change. But if

there is a new or different need that may be met now that the resources exist, it may be considered. The general standard of living

of a spouse should be commensurate with that enjoyed when the marriage ended, to the extent possible. The standard of living of a

spouse, when the other party has subsequently achieved further wealth, is not entitled to be elevated on that basis.

35. In this case the appellant received further assets after their separation. He inherited property and he sold it all after the

separation. The respondent bought lands in 1997, after the separation, and he sold them for approximately €19 million. These asset

movements were after the separation deed. Whereas there may be some merit in considering that the possible gain of his inheritance

was not properly identified at the time of the separation and, accordingly, assessed; this does not apply to his buying of land in 1997

and the later sale and profit. These latter funds are subsequent wealth of the appellant. Thus they are not prima facie relevant to

the proper provision of the respondent, except if there is a requirement for a special consideration of her changed needs, such as

health.

36. In this case, the needs of the respondent are met by her increased maintenance and provision of a pension. The specific details

of those provisions are not determined at this time but, in light of the dramatically changed values of the appellant's assets, are

matters for the High Court on the remit of the case.

Conclusion

37. The Court has judicial knowledge of the fact that some assets which were highly valued some years ago are not so valued now.

No decision on the value of the assets is made on this appeal.

38. I would allow the appeal of the appellant on the general ground that the level of provision ordered by the High Court was

excessive. In particular, I would allow the appeal against the order of the High Court of €1 million for the purchase of an additional

house, and against the order directing the appellant pay to the respondent the sum of €600,000 for her use and benefit.

39. In the interests of justice, I would remit the case to the High Court so that proper provision may be ordered, applying the

principles discussed in general and in particular in this judgment and the decisions on this appeal.