SUPREME COURT OF IRELAND
19 OCTOBER 2011
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.
The appellant and the respondent were married to each other on the 4th February, 1977.
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.
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.
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.
The parties separated in 1995.
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.
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.
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.
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.
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.
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.
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
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:-
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
An Order and cross Order pursuant to section 18(10) of the Family Law (Divorce) Act, 1996.
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
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:-
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.
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;
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
that the learned High Court judge had failed to give any real weight or proper consideration to the parties' prior separation agreement;
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;
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:
income or maintenance for a spouse and/or child;
security into the future.
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.
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.
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 Family Law (Divorce) Act, 1996 (referred to as "the Act of 1996") is at the core of this appeal. Section 20 provides:-
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.
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:
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.
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:
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.
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?
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.
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.
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.  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.  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.
The constitutional and legislative scheme gives to the Court a specific jurisdiction and duty under the Act of 1996.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
A party should not be compensated for their own incompetence or indiscretions to the detriment of the other party.
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.  I.E.S.C. 18.
It is necessary then to apply the Constitution, the law, and the above principles to the facts of this case.
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.
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.
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.
There was a deficiency in the initial provision for maintenance and security into the future.
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.
The amount of provision ordered into the future by the High Court for the respondent was excessive.
The order providing for an additional house just outside the town was an error and was excessive.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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