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[2006] IEHC 333

THE HIGH COURT

[2000 No. 28M]

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

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

F.T.M.

APPLICANT

AND

C.T.M.

RESPONDENT

JUDGMENT of Mr. Justice Abbott delivered on the 14^th day of March 2006.

The applicant and the respondent were married to one another on the 21^stOctober, 1970, in London. They have two children born to the marriage, a daughter A. born on the 21^st July, 1977, and R. born on the 27^th October, 1978. Both children, having completed most of their third level education, are heading into their chosen professions at this stage.

The family home (loosely defined) consists of the period house, which is set on 750 acres of land ('the house and land'). This property is held by a company, hereinafter called "the company," in addition to agricultural machinery, livestock, investments, and other family assets. At the time of initiation of proceedings herein on the 12^th April, 2000, the respondent had the controlling shares in the company, with the assets held by a discretionary trust (the Repus Trust) of which the applicant (as spouse) and the respondent and the children of the marriage and their spouses and issue were in the class of beneficiaries. Since proceedings have been initiated the respondent has ceased to own the controlling shares in the company and these are now held by the trustees of the Repus Trust. The applicant is 58 years of age and the respondent is 64 years of age. The applicant is not in any substantial paid employment and the respondent is in employment as Farm Manager by the company and he is also in receipt of a pension arising from his employment in the company, over the years. Both parties continue to reside at the house.

The applicant claims in these proceedings a decree of judicial separation pursuant to the provisions of s. 2(1)(a), (b) and (f) and s. 3 of the Judicial Separation and Family Law Reform Act, 1989 and the usual extensive and ancillary reliefs. Subsequently by order dated the 22^nd June, 2004, Mr. Justice McKechnie ordered:

1. Pursuant to the provisions of s. 40 of the Family Law Act, 1995 that the trustees for the time being of the Repus Trust be giving notice of the within proceedings and be joined as a notice party to the proceedings.

2. That liberty to amend the special summons dated the 6^th March, 2000, to include a claim pursuant to the provision of s. 9(1)(c) of the Family Law Act, 1995 varying for the benefit of the applicant and the dependent members of the family the terms of the settlement made by the respondent.

3. That the applicant recover the costs of the preliminary issue against the respondent and the notice party (trustees).

History of the Marriage

The applicant had worked in the catering trade serving the city and also, some ski resorts before her marriage, and the respondent had established himself in his profession. It was envisaged initially that he would progress in this profession up the management ladder. This decision brought the respondent into employment in Asia and the applicant followed. They did not buy a property in Asia but the applicant was in a position to find employment in the property area which provided a greater income than the respondent. The respondent subsequently got a posting to America. This time the applicant did not follow and they established their family home in London in the premises which shall be called CVC. Both parties made contributions towards its purchase and the respondent appears to have had wealth from New Zealand sources which facilitated the purchase significantly. They became joint owners of CVC and it was the family home. After his posting, the respondent endeavoured to ascend the management ladder in his chosen profession, but was not successful and resigned at a time when he was just short of qualifying for the minimum pension. He had ambitions at obtaining employment in the city. This was in 1974 and his ambition did not meet with success. At this time, a relative in Ireland with an interest in the house and land suffered a deterioration of health and the succession to the house and land became an issue. Not only was the succession an issue, but also there were serious concerns about the burden of tax such succession would bring, at a time when new inheritance and property taxes were either applying or in the offing.

These concerns and the availability of the respondent (freed from other professional activities) led to the establishment of the Repus Trust and the conveyance/transfer of the house and land to the company on the 12^th November, 1980, in accordance with an agreement made on the 5^th July, 1976. The manner in which the entail was barred in respect of the house and land, and the respondent becoming the remainder man, together with the detail of the setting up of the Repus Trust is set out extensively in the judgment of McKechnie J. delivered on the preliminary issue on the 22^nd June, 2004, and, from the respondents evidence, I accept he spent a considerable amount of time himself considering and investigating the best way of putting this arrangement in place. The respondent ultimately represented himself in these proceedings having been represented in the first part of the hearing which commenced on the 5^th April, 2005, by senior and junior counsel. While representing himself he argued that the Repus Trust and conveyance/transfer to the company were a nullity, insofar as the house and land were still subject to an earlier family settlement. I have had the benefit of senior counsel's opinion in relation to the title of the house and lands in the hand of the company, and having considered same and having considered the arguments of the respondent, I do not accept any proposition of the respondent which goes contrary to my holding that the owner of the freehold in the house and lands is the company and that the company is owned by the Repus Trust.

When arrangements for transfer/conveyance of the house and land to the Repus Trust and the company were made, the applicant (who had a South African-English background) studied agriculture with a view to setting up as manager of the house and land. The parties moved to Ireland about 1976 and the two children A. and R. were born in the years immediately thereafter. The respondent applied himself enthusiastically to being the farm manager as also did the applicant in being the manager's wife. The respondent drew a salary from the company and the applicant participated as any farmer's wife with a few small farm yard enterprises for the purposes of earning pin money and rearing their children. The children initially attended at the school in the local town and from there progressed to further primary and secondary schooling in England. They attended third level education in England. While the children were being educated in England they nevertheless participated in outdoor and sporting events during their holidays in Ireland and the applicant and indeed to some extent the respondent engaged in the usual parental rounds of facilitating these activities for teenage children. The farming enterprise of the company progressed satisfactorily in accordance with the ups and downs of Irish farming. It is fair to say that the farming enterprise on the land, as exemplified by the EU Farm Headage and Area Aid Payments, is indicative of a successful primarily tillage farm mixed with livestock with some of the grazing area let from time to time.

Difficulties in the marriage arose, in my view, from the intervention of a particular series of misfortunes commencing with the financing of an enterprise initiated by the respondent's brother by a loan raised and secured on the assets of the company. Extensive developments were put in train in America with a view to setting up a business by the respondent's brother and, before these could come to a conclusion or achieve any degree of success or liquidity, the respondent's brother tragically died.

The tragic death of the respondent's brother led to the Hong Kong and Shanghai Bank pressing for payment of their loan against the company and this claim was held at bay, initially at least by the applicant, seeking legal advice and asserting that the house with the 90 acres or so parkland surrounding same was the family home within the definition of the Act of 1976. The applicant would argue that this intervention by her on behalf of both herself and the respondent to keep the Hong Kong and Shanghai Bank at bay was the crucial element in securing settlement of a potential claim which could have had the effect of swallowing up the value of the assets of the company. The respondent on the other hand argued that the matter was more complex than that, insofar as the bank were dependent on him to use his best endeavours to hunt down and recover such assets of his brother's business as might be found and wrenched out of the hands of joint operators in America (who by this stage were by no means cooperative in securing assets in the interest of his deceased brother).

Having heard the evidence of both parties I am satisfied that the settlement of the liability of the company to the Hong Kong and Shanghai Bank at the relatively modest level of £450,000 to £500,000 was the result of the joint endeavour of both applicant and respondent. This joint endeavour consisted of the applicant making the first decisive move, and the respondent negotiating with the bank to put his goodwill behind the endeavour of recovery on behalf of the bank in America. In a vicarious way, the applicant too participated in the respondent's endeavours on behalf of the bank, because she and her children had to put up with life in the home without the company of the respondent while he was on his long and arduous endeavours over a number of years seeking to comply with what he regarded as a debt of honour with the bank to ensure as much recovery as was possible. Not only did the applicant and her children miss the respondent in family and social terms during his absences in America, but also the applicant stood in for the respondent as farm manager on these occasions. The applicant gave evidence of not understanding or perhaps not being fully briefed in relation to the complexities of the American recovery and painted a picture of the respondent being perhaps too obsessed with his endeavours in America. The respondent took a different view. These are subjective matters on which it is difficult to form a definite opinion, but suffice it to say that for the purposes of these proceedings the applicant became less secure in her perception of the tenure of the family in the house and lands. This sense of insecurity of the family in the house and land became more acute when the respondent (like many others at the time), became the potential target of serious financial liabilities as a name at Lloyds. Although the Lloyds issue was settled ultimately for the respondent, I accept that for a number of years before settlements were arrived at in relation to the issues involved, the potential liability of persons involved in Lloyds such as the respondent was extremely worrisome.

This emerging financial strain arising from circumstances beyond the control of either of the parties, coupled with the strain on the family relationships, gave rise to two main strands of developments within the marriage. The first strand was that notwithstanding that the applicant and respondent were tied hand and foot in most ways by the settlement contained in the Repus Trust, they jointly sought to leave many of their assets beyond the reach of potential creditors (and notwithstanding the previous Lloyds difficulty the applicant herself became a name at Lloyds subsequently, in a manner which left most of their property beyond reach, save such property which would be sufficient to meet the requirements to be a "name"). The second strand is that the applicant became psychologically upset to the point of seeking security outside the home in terms of having a second relationship to provide a separate home for herself and her children. This latter development led to her financing a house in Europe (from funds which she had in the Credit Suisse Bank which had been given to her as a legacy in the will of a friend whom she knew in her younger years). This venture was not a success insofar as the second relationship broke down very quickly and the applicant was constrained to take legal proceedings to recover expenditure on the proposed second home. This unsuccessful venture in relation to the second relationship and home led to bad feeling on the respondent's side which could be described as being tempered by an element of forgiveness and tolerance. The applicant became depressed and had a feeling that neither she nor her children were getting the attention they deserved from the respondent. This was compounded by the feeling on behalf of the applicant that neither she nor the respondent were in a position to save the value of the house and land as an inheritance for their children, by reason of the fact that the house was a wasting asset of high value which could not be put in repair by the profits generated by the company on the land.

For a significant time prior to proceedings being issued in this case, the applicant and the respondent were looking at a position where the marriage had broken down and separation was in prospect. Settlement negotiations in respect of any solution as between the applicant and the respondent were made difficult by reason of the fact that the vast proportion of the assets of the family were beyond reach in the Repus Trust and assets such as CVT were by this stage out of reach in the same sense in that the Vinca Trust and other properties and assets coming in mainly from the applicant's side were similarly circumscribed. The only significant assets, which on a cursory glance appear to be liquid, were the investments in the Credit Suisse Bank, most of which the applicant had inherited earlier. When the applicant first made efforts to seek a property payment out of the house and land, the respondent's attitude to this demand could be summarised that "she had more money than he" had in terms of free assets.

Added to this attitude of the respondent was his apprehension that the applicant had more money than she was disclosing. This attitude continued after the initiation of the proceedings and is most dramatically exemplified by the cross examination of the applicant in relation to correspondence she had with an elderly friend, where he suggested that she would pay funds into his accounts in an exotic off shore location with no strings attached and that he would pay her legal costs as they accrued from that account. While this proposal was made, the applicant is adamant that while some legal expenses were paid out of this account, that the proposals of her elderly friend were not acted upon and that she did not avail of this highly dubious facility offered to her. I am satisfied that the proceedings have not shown any proof that any funds of the applicant in this exotic location are of financial significance in these proceedings and that the dubious proposal made by her elderly friend (who is now sadly deceased) was made primarily by them with a view to keeping assets which might be liquid enough to discharge solicitor's costs away from the view of her solicitors, in the hope perhaps of making them "mean and lean" in the pursuit of her claim.

The respondent is now in a second relationship, but nevertheless, the applicant and the respondent continue to live in the house. The respondent has argued that the applicant has merely continued to reside there for the purpose of keeping her foot in, so to speak, for the purposes of the proceedings, and that she has spent long periods of time abroad, particularly in England, pursuing her property interest there. While the domestic arrangements of the parties no doubt gave rise to considerable strain and sometimes serious rows, the parties nevertheless have conducted their domestic affairs with commendable civility and politeness.

The Applicant's English Property Dealings

The applicant in her time in England proved adept at property management and as a result the Vinca Trust not only comprises CVC, but also a property at Rivermeade, a portfolio referred to as the Colin Stewart Portfolio and sterling accounts in Bank Natwest. She was also in a position with the respondent to create a children's settlement held by Natwest, now primarily consisting of a premises at Breamnar Road, UK. There was also a separate fund held by the applicant with her children known as the CBJ funds, otherwise known as the nursing home fund relating to her parents. These latter funds are gone. Considerable debate occurred in relation to the valuation of these properties and rather than spend more time on the subject, and in the light of the fact that there were all held in various trusts giving rise to the difficulty and high cost of making trustees of English property amenable to any order of the Court, I took the view that a working assumption should be made in relation to the valuation of these assets in the amount of €2.14 million.

Having considered the case in the round and having regard to the fact that it is unnecessary to seek to disturb these English trusts, I have decided that it is fair and just to adapt that working assumption which was made having heard the evidence at the time as a finding in relation to how the English property is to be credited to the parties in any provisions made for them in this judgment.

Health of Parties

At the initial hearing which took place in April, 2005 both parties were in good health and partook in outdoor and sporting activities suitable to their age. However the applicant was suffering from a recently incurred orthopaedic injury which by then had not responded to treatment. By the time of the second hearing the situation had reversed insofar as the applicant's orthopaedic problem had been solved by surgical intervention and the respondent had been advised that he had cancer but in a treatable form. At the earlier hearing the attention of the Court was directed towards the specific provision of housing accommodation, both in England and Ireland, for the applicant together with provision for her maintenance by way of capital sum. This focus manifestly changed at the second hearing where the applicant could be viewed as the more resourceful of the two in terms of establishing residence and where the attention of the Court was directed more towards ensuring continuity of accommodation and activity for the respondent. In terms of professional and vocational activities the applicant says that she will not go back into the catering business but would engage in interior decoration/house refurbishment in the event of the proceedings being concluded. This factor is one which may be taken into account in determining the overall adequacy of the provision without assigning a potential income in monetary terms to it. However it should determine at 65 when the applicant's right to maintenance from the respondent's pension should commence. The respondent's position is that notwithstanding his health challenges he should be in a position to continue to farm, albeit on reduced acres, giving some attention to the saving of the house, by exploiting its architectural and heritage status.

The Repus Trust

The trustees have been left secure with the comfort of an order of the court in Jersey in relation to exercising their power of sale in respect of the house and land. The respondent asked the Court to override this order, particularly with a view to avoiding the costs which he and the house and land must bear as a result of the Jersey litigation and the preliminary application. Without hesitation, I refuse to interfere with the order of the Jersey court in anyway as the Jersey court clearly had jurisdiction to deal with the matter. The applicant has not appealed the preliminary ruling of McKechnie J. and again, I consider that he is estopped from successfully arguing the issue before this Court. However it was an important aspect of the hearing that the respondent was in a position to inform the Court of his attitude to the state of affairs which litigation has produced at this stage and his anxiety that the litigation would not be the cause of him losing the house and lands as the ancestral home of his family "on his watch". I consider the fact that the Jersey court have confirmed the power of sale of the trustees as a comfort for this Court, as on any outcome of this case, some of the property comprised of the house and land must be sold.

Contribution of Parties to Family Assets

Although the house and land were to a large degree inherited property subject to the value of the loan raised by the respondent, the threat from the failed enterprise of the respondent's brother was such that the house and lands could have been entirely lost to the family were it not for the joint efforts and frugality of the applicant and the respondent. Although the applicant did not invest any capital sum into the saving of the estate, her early intervention against the bank and her continued involvement as wife and mother in rearing the family and acting as farm manager's wife were such as to enable the respondent to make his contribution in fending off the bank. While the respondent was instrumental in providing the capital for the acquisition of CVC in England, it appears that the efforts of the applicant were mainly concerned in building up what I have in rough terms, on the basis of the working assumption, to be English assets in the region of €2,140,000 million. The fact that all these assets would be assets of the family to be inherited by the children and protected for their inheritance is indicative that the parties intended them to be joint assets, however the contributions of both parties to the assets must be the English and the Irish assets determined. In that regard I consider that the proportions in respect of the English assets should be three quarters from the applicant and one quarter from the respondent and in respect of the Irish assets, being principally the house and land, one third from the applicant and two thirds from the respondent.

Single Farm Payment

Estimates of between €80,000 and €90,000 per annum were given in evidence of the annual value of the single farm payment. As the attaching of such entitlements have not established a clear influence on the value of land from the evidence of either of the valuers, I am of the view that in any option involving retention of some of the land by the respondent that he should have an entitlement to "stack" the entitlements to such lands to a level permitted by the Regulations. In the event of an outright sale of the house and land then the entitlements should be apportioned proportionately to the lands from which they arose, obviously with the arable entitlements being apportioned to that part of the main farm and Monkstown from which such entitlements arose. The reason for favouring the respondent with the option of stacking is that such a process is probably the most efficient and profitable way of dealing with them and also, having regard to the historical tendency and policy of new Regulations to favour the original user, it is more probable that any future review would most benefit the respondent.

Tax Implications

From the evidence of the tax expert, the most efficient means of disposing of the house and land would be for the company to dispose of any of the property by sale and by means of suitably amended Memo and Articles of Association, give the property to the recipient party intended by the Court. In that way, the tax expert was of the opinion that the tax integrity of the Repus Trust would be saved and that the company would have a liability for 20% capital gains tax. The tax expert was less sanguine in relation to the gifting of components of the house and land to the parties in specie as a way of making provision for them. The Court is aware that there would be stamp duty implications on the transfer of such land from the company to the recipient which the recipient would have to bear and it would be for the recipient to ascertain if any capital acquisition or inheritance tax liability would arise. Notwithstanding the clear preference of the tax expert for a "tax clean" sale of the lands and payment of proceeds to the recipient parties, I have factored in to the options provided in the disposal of this case, the option of gifting of particular sites of land in specie to either or both of the parties, as both parties have expressed an interest in such outcome.

Adjusting the Trust

The respondent suggested that the Court would break the trust, suggesting that the lands were not in fact conveyed to the company or comprised in the Repus Trust but were still the subject of an earlier family trust. I find that the evidence goes entirely the other way.

Section 9(1)(c) Order

In making an order pursuant to s. 9(1)(c), the Court has the guidance of the judgment of McKechnie J., where he held that the Repus Trust might be appropriately the subject of an order under s. 9(1)(c). While McKechnie J. did not purport to enter into the manner in which this Court should determine the extent and the nature of this order, he did very helpfully review the English and Irish authorities in relation to how courts have approached the issue in both jurisdictions. On the basis of the tax experts' advice, it will be necessary to ensure the trustees (whether existing or new) cooperate with the solution offered by the Court by way of "judicial encouragement" highlighted by the authorities. In the event of such cooperation not being forthcoming, then the matter would have to be considered further by the Court under the general rubric of liberty to apply to be given in the order now to be made by the Court. However, it would seem to me to be entirely premature to cross that bridge before the parties or the Court comes to it. It has been submitted by Mr. Hegarty, counsel for the applicant, that it is open to the Court to make an order under 9(1)(c), effectively divesting the trust of the house and land, indicating that there would be tax advantages to making an order divesting the entirety of the house and land in the first instance in favour of the applicant, and then making the appropriate order for the applicant to make provision for the respondent under Irish legislation. I am prepared to follow this course but I will make no formal order until the parties indicate what course they propose to follow as a result of considering the indicative order herein. Varying the settlement is a necessity to make provision for both parties and in any event, equality of treatment indicates that it should be considered for both.

Not all solutions offered by the Court in the order providing for a cascade of options for the parties, involve such total divestment of the assets of the Repus Trust. Such total divesting is a course which, in principle and in the last analysis, I am prepared to take for the following reasons:

1. In setting up the trust the respondent and the applicant would not have considered that the Trust would be out of the reach of the Court dealing with their affairs on a judicial separation.

2. The house and land, being the substantial part of the assets of the Trust, were effectively saved by the joint efforts of the applicant and the respondent from an event for which neither the applicant nor the respondent can be blamed and which was not foreseeable by them.

3. The applicant and the respondent have, through their efforts in educating their children up to a professional level and in providing a separate childrens' trust and ensuring that the children are the primary beneficiaries of the Vinca Trust, provided for the children and ring fenced property for their benefit which is unassailable by any financial misfortunes which have or may be inflicted either upon the applicant or the respondent. As the children of the parties are beneficiaries under the Repus Trust they should, with the trustees and any other interested party, have a right to address the Court in relation to the manner in which the Court finally deals with the matter while being so motivated.

4. In the circumstances of these proceedings it would be unjust to depart from parity of treatment in not allowing a variation order under section 9(c) to be made for the benefit of the Respondent as well. On the basis that the Court has very cogent reasons for proceeding as proposed, I find that this particular case present facts which enable the Court to proceed with more conviction than might have been the case, particularly in some of the English decisions where the discretionary trust was significantly more outside the reach or influence of the wife and sometimes out of reach of both husband and wife. I am also strengthened in my view by reason of the fact that the Act of 1989 and 1995 are legislation which not only shadow the provisions of equivalent English legislation but are also highly relieving pieces of legislation, which ultimately achieved a form of constitutional provenance insofar as they constituted very important influences and preparations for the subsequent constitutional referendum on divorce.

Costs

While the parties are at liberty to address me in relation to how the ultimate costs order might be modulated, having regard to specific factors which they would wish me to take into consideration, I bear in mind that the parties themselves have indicated that in a case of this nature where substantial allocations of resources are to be made as between the parties that both parties would bear their own costs. I also would bear in mind that apart from tax considerations, one of the chief stumbling blocks in the parties achieving an out of court settlement of this case, has been the cloud which the costs order from the Jersey court casts over the proceedings. Any solution proposed by the Court in this case has, as a condition precedent attached, that the costs of the trustees of the Repus Trust would be discharged as soon as they are taxed and ascertained.

The Court will direct that the property below the railway would be sold by the company to produce a fund, which on valuations of that property may be in the region of £2,000,000. In the event of this property not being sufficient to discharge what may be described as trustees' expenses, then further land should be sold with the provision for both parties being reduced rateably and the facility of liberty to apply in the order to be made by the Court herein is to relate to this process if it is regrettably necessary. The respondent is already liable to costs in respect of the preliminary issue and I bear that in mind in relation to not bringing the investments of the company and the value of the contents into consideration when ascertaining the values of the property with a view to making provision for the parties.

In disposing the lands below the railway the parties should apportion such single farm payments as are appropriate and which are consistent with the general preference of the respondent to stacking if that is the option being pursued by him. If there is any surplus from the sale of the lands below the railway then the net proceeds thereof should be divided in the proportions one third and two thirds between the applicant and the respondent respectively.

Valuation of the House and Land

Subject to my comments made in relation to the costs and with a view to isolating parcels of land which may give rise to an order for conveying and/or transferring them in specie to the parties and having regard to the reports of the two valuers and the evidence heard, I value the lands as follows:

Monkstown lands including Monkstown house at together with 31 acres comprised in Deerpark - €3,000,000.

House and parkland surrounding - €4,000,000.

Remainder of lands in the demesne not including the lands below the railway - €4,200,000.

Total - €11,200,000.

Division of Assets.

The values are as follows:

Two houses and land - €11,200,000.

English assets (on working assumption) - €2,140,000.

Personal investments and investments of the company - €150,000.

Total - €14,490,000.

Provision

On the basis of one third/two thirds for the applicant and the respondent respectively in the house and land, I consider that on the foregoing analysis the applicant should be entitled to a share of an estimated €4,830,000 of the family assets, making allowance for the finding that the contributions of the parties were in the proportion of three quarters and a quarter for the applicant and the respondent in respect of the English assets. The sum of €1,612,000, being three quarters of €2,140,000, should be taken and subtracted from the sum of €4,830,000, resulting in a figure somewhat more than the estimated value of €3,000,000 for Monkstown house and lands and Deerpark. To cater for this discrepancy, Deerpark should be extended at the base by a parallel line to include 16 acres more.

Accordingly, I allocate the Monkstown house and lands and Deerpark to the applicant in satisfaction of the provision of a capital sum to her on the separation of the parties and on condition that the respondent renounces any entitlement as a beneficiary to any of the English assets. In the event of the applicant taking Monkstown land and house in specie concerned in this provision, the company is to sell Deerpark in discharge of capital gains tax arising and other appropriate costs to the sale arising and pay over the balance to the applicant. Otherwise at the option of the applicant the company may sell all or part of the Monkstown house and land and pay over netted proceeds accordingly. The applicant should opt in relation to what arrangement in relation to sale or in specie is to be pursued, so that the interests of the company in relation to liability for tax, etc is to be protected. The house and remainder of the land in the demesne above the railway are to be allocated to the respondent, but the respondent's allocation is subject to being primarily responsible for discharging any costs of the trustees not being discharged by the lands below the railway and any tax or costs of disposition in relation to his allocation of the house and land.

In relation to any investments and cash which are left in the hands of the respondent, which have already not been spent on his costs to date in these proceedings, and the contents of the house, I propose to leave them in the hands of the respondent as it is likely that he will incur further costs as the main driver in ensuring completion of the proceedings as regards disposal of the property with goodwill.

I do not propose to make any immediate maintenance order for the benefit of the applicant, but the applicant should be entitled to half the respondent's pension when she reaches the age of 65. This pension to include social welfare pension at whatever rate the applicant qualifies for when he reaches 65 and the applicant should be in a position to succeed to the widow's entitlement to the respondents pension, in the event of the respondent predeceasing the applicant. This is on the assumption that the respondent's pension annuities have been provided for in the usual way with provision for surviving spouses pension at the appropriate rate. The applicant is at liberty to make such application to the Court in relation to binding the trustees of the pension to these arrangements as are appropriate. I find that the parties have failed to live together within the meaning of the Act of 1989 for a period of one year and accordingly am prepared to make an order for judicial separation.

Order of the Court

I make the following indicative order, subject to the parties addressing me in relation to the detail of the final order, having had regard to the provisions of s. 9 and 16 of the Family Law Act, 1995 and considering all aspects thereof, but having particular regard to the matters referred to in this judgment, and having regard to the fact that I consider that it is in the interests of justice to do so. In addition to having regard to the fact that the house and land were the inherited property, by and large, of the respondent, as taken into consideration in ascertaining the appropriate shares of the applicant and respondent in respect of the house and land, I also bear in mind with the preferences health and professional potential of the respondent in relation to saving the house and land at least to some extent, even if it is only one of the options. While the respondent has indicated in the strongest possible terms that he wished to have the involvement of the Repus Trust finalised in whatever order the Court would make, I do nevertheless bear in mind that it is not in the interest of the parties nor indeed in the interest of the beneficiaries of the trust to have wholesale liquidation of the house and lands either by sale or disposition to the parties pursuant to s. 9(1)(c) giving rise to at least a very substantial overall 20% capital gains tax change. For that reason I factor into the options the possibility that at least the respondent should be given a chance within a limited period to have second thoughts about leaving the trust in place in respect of the balance of the land.

The Indicative Order is as follows:

1. Regardless of any options taken by any of the parties in the case, the lands below the railway are to be sold forthwith by the company and the costs of the trustees in relation to the Jersey court proceedings, the preliminary issue and other matters related therewith to be discharged from the net proceeds after cost of sale and tax, with any surplus to be divided in the proportions of one third and two thirds as between the applicant and the respondent.

2. The Monkstown house and lands together with Deerpark as extended in this judgment to be allocated to the applicant on the terms hereinbefore described, with the option of the applicant to have same sold by the company in whatever parts or proportions she would indicate within two months of the making of this order, provided however that the liability of the company for costs for sale expenses and taxation are to be discharged by the company out of sale by the company of Deerpark as extended or such further part of these lands as is appropriate.

3. The house and lands surrounding same together with the remainder of the demesne lands above the railway to be allocated to the respondent with the following options, one of which may be exercised within two months of the making of this order, the applicant consents to the trustees or whatever new trustees would be appointed to remain as trustees of these lands on the same trusts with same being held by the company as heretofore with appropriate stacking from the other lands of single farm payment entitlements as appropriate or within two months to opt for conveying of the house and land remaining in specie to him subject to the company selling such land as is necessary to discharge tax and expense liabilities from these lands.

4. An order pursuant to 9(1)(c) adjusting the trust in respect of all of the house and lands to provide for the payment of costs and expenses of sale by the company and to provide for the conveyance by the company of all the lands being kept on the exercise of either of the parties to their option to have lands allocated to them in specie subject to the applicant being bound by a property adjustment order directing her to convey the lands so adjusted insofar as the effect that the house and land allocated to the respondent as proper provision in this action for the respondent.

While the Court does not formally order that the memo and articles of the company be amended to facilitate the gifting of the property to the parties or either of them, the urgent necessity for this course is clearly indicated.

5. In the event of the respondent not within two months taking up either of the options provided, the house and lands allocated to him in this judgment shall be sold and the proceeds thereof, which exceed the sum of €8,200,00.00 after deduction of appropriate expenses and tax, shall be paid and divided among the applicant and the respondent in the proportions of one third and two thirds respectively.

6. Liberty to Apply

Adjourn to allow parties make submissions on form or order including ancillary reliefs .