High Court of Ireland Decisions

THE HIGH COURT

                          [2023] iEHC 765

           [2021 No. 86 M]

 

 

In the matter of the Judicial Separation and Family Law Reform Act 1989,

 

In the matter of the Family Law Act 1995, as amended

 

 

BETWEEN

 

D

 

                               APPLICANT

  - AND –

 

 

D

 

RESPONDENT

 

JUDGMENT of Mr Justice Max Barrett delivered on 12^th January 2023.

 

 

I. Background

 

1.        Ms D went to [Country A] [1] to study, met her husband (a national of [Country A]) at college and later married him. They then set up a business in [Country A]. That business has proved to be a great success. There are a number of children from their marriage, all still dependents. Though the corporate structure of [Company A] - the company (registered in [Country A]) through which the family business is operated - might suggest otherwise, ([Company A] is owned by Mr D and a sibling and they are also both directors), it was clear from the evidence that the business (not [Company A]) was in reality a husband and wife venture operated jointly by both parties.

 

2.        I was struck by Ms D's oral evidence (Mr D elected not to give oral evidence) as to just how hard she and Mr D had to work to make their business a success. Ms D's expertise was initially needed to perform the basic services provided by [Company A]. She then progressed to managing and organising the operational side of the business, including staff management, case management, and policy creation and implementation. She also seems to have collated and processed the information  needed by tender writers when [Company A] was tendering for business. She was also responsible for rotas and staffing.  And she gave evidence of her initial financial contribution at the start-up stage of the business (as well, I note, as her contribution to the former family home in [Country A]). It was not quite so clear to me what Mr D did. He seems to have assisted with the administrative/managerial side of things and as a director he obviously had responsibility for the company accounts and corporate governance.  

 

II. Possible Problems and False Evidence

 

3.        Regrettably, trouble may lie ahead for Mr D as regards his actions as a director of [Company A]. It is clear from the evidence that he has been using [Company A]'s monies as something of a privy purse, latterly spending large untaxed amounts of the company's funds on what might euphemistically be described as 'personal entertainment'. Mr D accepts that this expenditure occurred and has suggested that it has ceased (though, as will be clear from the next paragraph below, it has not). This usage by Mr D of [Company A]'s monies has not been accounted for properly in [Company A]'s account-books. Consequently, the annual accounts filed with [Country A]'s equivalent of the Companies Registration Office do not correctly represent [Company A]'s financial position. Mr D says that he intends now to approach the authorities in [Country A] and tell them the truth of what he has done. I do not know if he will or not. What I do know is that he has been saying this since at least August 2021 and has done nothing about it. If the authorities of [Country A] are ever approached or otherwise become interested in the affairs of [Company A], Ms D may well have reason to be thankful in the years ahead that she was never a director of [Company A].

 

4.        Although Mr D maintained in his questioning of Mr Harding (a forensic accountant called by Ms D) that he had ceased to use [Company A]'s proceeds as he had previously done, Mr Harding was able to show that in a roughly 4-month period across April to August 2022 Mr D's 'personal entertainment' expenditure (using primarily or exclusively untaxed company monies) has continued unabated. Thus, Mr. Harding gave evidence that the average amount of what he called "anomalous expenditure" (revenue authorities and lawyers might use alternative terminology) was close on  €16k per month (yielding an annualised figure of about €190k). I  note too (with regret) that the irregular accounting in [Company A] only came to light due to queries raised by Mr Harding and the details of same were never volunteered by Mr D. I must also regretfully observe that it is clear from the evidence before me that Mr D's affidavits of means of 15^th November 2021 and 15^th November 2022 contain falsehoods (especially as regards Schedule 2 Income and Schedule 4 Expenditure). It is very hard, as a court, to achieve an optimally fair outcome between parties when one of the parties presents evidence that is patently wrong.

 

5.        In passing, though the issue was discussed when the financial evidence was given in this case, I do not see that I need to get into how [Company A]'s affairs (or indeed Mr D's personal tax situation) might be regularised with the authorities of [Country A]. They should of course be regularised and, for the avoidance of doubt, I disapprove of the fact that (i) taxes owed in [Country A] have not duly been paid in [Country A] to this time, (ii) Mr D has used company funds as he has, potentially to the detriment of the creditors of [Company A] and of course with an impact on the accounted-for profits of [Company A], and (iii) Mr D has allowed incorrect accounts to be filed with [Company A]'s equivalent of the Companies Registration Office.

 

III. Background (continued)

 

6.        A couple of years before the Covid-19 pandemic, the couple decided that they would like to live in Ireland. Ms D found that Mr D was away a lot (for reasons then unclear but at which one can now perhaps guess, given the manner in which company monies have latterly been spent by Mr D). Because of Mr D's absences, Ms D wanted to be back in Ireland where she could have family help with the children. I must admit that it was not clear to me how exactly the parties thought the family business could be run from Ireland had they both settled down here but that is a matter for them. Ms D has clearly done work online and Mr D has been over and back to Country A but it must be challenging to run a business in that country largely from here.   Ms D, in any event, came here with the children, moving to rented accommodation in a country town and then to other rented accommodation closer to her natural family. Throughout this time, Ms D continued to operate the business remotely/online. Mr D remained in [Country A] and also helped with the business. In addition, he came to Ireland from time to time to see the children. The couple even had plans to build a family home on lands they had bought in a country area. But in or about November 2020 there appears to have been a precipitous decline in the couple's relationship, from which it has never recovered, leading ultimately to Ms D bringing these proceedings. The family house, I should add, was never built, though the lands on which it was to stand have been bought; I return to the property details later below.

 

IV. Ms D's Ill-Health and HR Experience

 

7.        I come now to the ill-health that Ms D has suffered in recent years. She has been very unwell and had to have a number of operations of a type which are very challenging for a woman. I was sad to hear on the first day she gave evidence that her latest medical diagnosis/prognosis may not be good and I am sorry for her that she has suffered as she has. Mr D behaved awfully throughout the period that his wife was at her most sick, reeling from operations that are not just physically hard for a woman to bear but which I suspect also bring particular psychological challenges. In his oral evidence, Professor Sheehan - the psychologist who acted in these proceedings - described Mr D's behaviour towards Ms D throughout this period as "appalling".

 

8.        What Mr D did was this. He began asking his wife to document her illnesses to their joint business so as to accord with [Company A]'s HR policy. Ms D rightly did not do so: [Company A] may have belonged to Mr D but the business it operated was a joint enterprise and Mr D was still married to Ms D. So the notion that Ms D would formally document her illness to her business and her husband was, with all respect, silly. Aggrieved by Ms D's alleged breach of HR policy Mr D then engaged a notably 'tough-nosed' HR company which bombarded Ms D with messages, sometimes on a daily basis. These messages, e.g., demanded that she document her illness, asked her to engage in a disciplinary process, and even re-assessed her pay for the job she did and (quelle surprise) arrived at the conclusion that she was overpaid. Ms D quickly and rightly declined to engage in this farce.

 

9.        Much of the correspondence sent by the HR company indicates that it was acting at the behest of [Company A]'s board of directors. But [Company A]'s board comprises Mr D and a sibling, and as that sibling never appears to have taken an active role in [Company A]'s affairs, the board is essentially Mr D. So all of this harassment was being visited directly by Mr D on his wife, the co-founder/co-operator of [Company A]'s business, at a time when she was very sick (and the latest medical advice, most regretfully, indicates that she may continue to be sick).

 

10.    At the hearing of this matter, Mr D spent about a day cross-examining his wife. I must admit that I was uneasy throughout this process as such cross-examination offers a spouse a chance to antagonise and intimidate. I am grateful to Mr D that he sought to conduct himself politely towards his wife throughout the cross-examination process. In the end I thought we got through matters about as well as we could. Mr D threatened to leave the court at one time when he thought that he was being shouted at by counsel when the latter rose to make a point. For my part, I did not see anything to have happened that merited Mr D threatening to leave. Plus counsel, if I recall correctly, indicated that he did not believe himself to be at fault but apologised in any event just in case. Once a person says 'sorry' that to me is the end of matters. Mr D maintains that he is now a bit afraid of counsel; however, there is no rule that our opponents in litigation should be at ease in our presence, still less that they must like us.

 

11.    A substantial amount of Mr D's cross-examination concerned Ms D's alleged breaches of [Company A]'s HR policy with Ms D making the perfectly reasonable point that although she was a staff member, as a co-founder and co-operator of the business and as Mr D's wife she was and is in a rather different category to other employees. She is right in this, though one would hope that any employee who is seriously sick in any company would be treated with more sympathy than was ever shown to Ms D. I rather wondered to myself as I listened to Mr D's litany of questions about Ms D's alleged non-compliance with [Company A]'s HR policy why Mr D thought this was a good line of questioning when it actually showed him in a bad light: arranging for his wife to be harassed (for harassed she was) by the external HR company at a time when she was seriously ill. And of course the 'elephant in the courtroom' was that at the same time that he perceived his wife to be in transgression of [Company A]'s HR policy – hardly the worst of wrongs even if it in fact presented – Mr D was delving into the company funds for extravagant 'personal entertainment' expenditure and allowing inaccurate accounts to be filed with [Country A]'s equivalent of the Companies Registration Office.

 

12.    In the end, having threatened to cease all payments from [Company A] to Ms D, Mr D appears to have retreated from this position and [Company A] continues to pay Ms D her salary. This is touted in Mr D's submissions as a virtue on the part of [Company A]. Given all the circumstances presenting I am not sure that much cause for praise presents, not least as at this time it is pursuant to interim court orders that the salary (and [Stated Amount 1] by way of monthly maintenance for the children) is paid. I note in passing that there was also an order, not yet complied with, that Mr D arrange that [Country A]'s equivalent of the NCT be done on a car that the couple own and the vehicle tax paid on same and the car given to Ms A).

 

V. Untested Propositions

 

13.    I should note in passing that none of the propositions put by Mr D to any of the witnesses and most particularly, to Ms D, can be relied upon by me in circumstances where Mr D chose not to support any of those propositions by giving evidence and being cross-examined on same.  In contrast, the entire of the evidence of Ms D, which was tested in cross-examination, can be relied upon by me. It follows that attempts by Mr D in his submissions to rely on propositions that should have been given in evidence by him cannot be relied upon by me.

 

VI. Custody

 

14.    [Text redacted]

 

15.    [Text redacted]

 

16.    [Text redacted]

 

17.    [Text redacted]

 

18.    [Text redacted]

 

19.    [Text redacted]

 

20.     [Text redacted]

 

21.      [Text redacted]

 

22.     [Text redacted]

 

23.     [Text redacted]

 

VII. Sports Events and [Text redacted]

 

24.     [Text redacted]

 

25.    [Text redacted]

 

26.    [Text redacted]

 

VIII. Open Offers

 

27.    Open offers were made in court when these proceedings were called on. Ms D sought the following: (i) the transfer of the residential and development sites at [Stated Place A] into her sole name; (ii) a lump sum in the amount of [Stated Amount 2] to build a family home and in return she would release her beneficial interest in [Company A]'s business and [Related Venture 1] upon full payment; [2] (iii) maintenance of [Text redacted] per month for the children and [Text redacted] for Ms D; (iv) an order continuing joint custody with primary care and control to her with access as directed by the court; (v) transfer of the car (having had [Country A]'s equivalent of the NCT done on it and vehicle tax paid and finalised) and the transfer of a family camper van; (vi) Mr D to pay the educational and dental expenses of the children; (vii) access to storage facilities in [Country A] in respect of the family items therein; and access to the family photos on iCloud.

 

28.    Mr D agreed to items (i), (iv) and (it seemed) (vi) and (vii), as mentioned in the previous paragraph. Mr D also indicated that (a) he had no money for a lump sum or to contribute to Ms D's legal costs. His position regarding maintenance for the children was unclear as he stated that his expenses had gone up with the [Text redacted], he needed to buy a house for €250,000 for himself and he was considering the place in [Stated Place B], he wanted 50% access (though Professor Sheehan has cautioned against focusing on percentages in this regard), and he was open to a discussion on educational and dental costs contingent on what happened as regards maintenance.

 

IX. Financial Matters

 

i. Land.

 

29.    The parties own what they have described as residential land and development land here in Ireland. Ms D put forward a professional valuer's valuation of 14^th November 2022 of [Stated Amount 3] in respect of [Stated Acreage 1] of residential land and contemplating the erection of a dwelling-house thereon.  (The valuer noted the purchase price in 2019 was [Stated Amount 4] and planning permission was granted in [Stated Date 1]. The same valuer valued the development land ([Stated Acreage 2] acres with planning permission for several houses) at [Stated Amount 5]. She noted that the purchase price in 2019 was [Stated Amount 6], with planning permission granted in June 2021. 

 

30.    Mr D initially produced a valuation of 3^rd March 2022 that departed quite radically from the figures mentioned in the preceding paragraph. However, immediately before the proceedings, he furnished a different but older valuation that accords with the figures shown above. I am therefore confronted with three valuations, two of which essentially accord with one another and one of which is something of an outlier. I propose to disregard the outlier and proceed by reference to the figures discussed in the previous paragraph (which essentially accord with the figures shown in the preceding paragraph). I note in passing Ms D's evidence at the hearing (which I accept) that the planning permission for the family home was only granted because of the size of the entire site with one entrance so that the site cannot be split.

 

31.    Mr D has submitted valuations of two properties in [Country A] which have not been disputed.   

 

ii. [Company A]'s Business.

 

32.    As to the value to be placed on [Company A]'s business, I have addressed in the opening paragraphs the role played by both parties in that business. Evidence as to the valuations to be placed on [Company A]'s business was provided by Mr Harding (for Ms D) and Ms Kingston (for Mr D). I have previous experience of Ms Kingston giving evidence to the court and she is a very impressive witness and a highly competent professional. However, in these proceedings all her evidence was coloured by the quality and limited nature of Mr D's instructions to her, (and I am conscious in this regard that (i) Mr D has not hesitated to place false statements of means before the court and (ii) his improper use of company monies was discovered by Ms D in these proceedings and not disclosed by Mr D. So he is, I must regrettably note, a man who is clearly prepared to deceive as regards financial matters). It follows that I respectfully do not (I cannot) believe anything that Mr D has to say from a financial perspective and I have no faith that he will have been open and honest with Ms Kingston when, I must regretfully observe, he has not been fully open and honest at all times with the court.

 

33.    Mr. Harding gave evidence as to (i) why the financial statements were not reliable, (ii) why he could not rely on the inaccurate unaudited management accounts to September 2022, (iii) the fact that the previous management accounts were understated by one million when compared to the statutory accounts, (iv) the value of the business, using the average adjusted EBITDA value over a four and also a three year average, arriving at a midpoint valuation of [Stated Amount 7]. I asked Mr Harding in his evidence whether we were not all standing on quicksand in terms of arriving at a proper valuation of [Company A] given all that has happened.  Certainly, it seems to me from the evidence that the valuation of the company's business is affected by the understatement of profits (due to Mr D consistently taking an income from the company which is simply not reflected in the company's accounts). And I note that (unsurprisingly perhaps given what has been going on) Mr Harding did not receive a full response to all of the various reasonable requests that he has raised and has never received [Company A]'s nominal ledger, which he was satisfied that he had requested.

 

34.    Mr D maintains that Ms D should receive nothing from [Company A] (or in respect of its business) or [Related Venture 1] despite her having a beneficial interest in both. [3] (In passing, I fully accept Ms D's evidence that she was unaware before these proceedings of Mr D's irregular expenditure and was not involved in the financial management of the company. It is clear from the parties' educational backgrounds that it is Mr D's accounting and financial management skills that he brought to the couple's business doings and Ms D has good cause to feel very let down in this regard.) If I were to accept Mr D's proposition that Ms D should receive nothing - based on [Company A] having no value thanks to Mr D's financial improprieties (and the evidence I note did not suggest that it has no value) - that would in effect be to rid Ms D of her beneficial interest and to reward Mr D by allowing him to continue to engage in the errant financial behaviour that he has hitherto manifested. I do not see how that would be fair or just to Ms D.

 

35.    Mr. Harding gave evidence as to the value of Ms D's shareholding in [Related Venture 1]. This evidence differed from that of Ms. Kingston. The main difference between them was in the description by Ms. Kingston of Mr D as a minority shareholder (resulting in a minority discount being applied to his shareholding).  The idea of a minority discount being applied was rejected by Mr. Harding.  He stated (and I think he is right in this when one looks at the truth of matters, rather than the strict corporate structure employed) that he would describe [Related Venture 1] as a quasi-partnership in the way that family members have worked in unison in relation to the operation of the business for the mutual benefit of each other. If one accepts that logic (and I do) Mr Harding's evidence was that what presents is not a situation in which it would be appropriate to apply a minority discount.

 

X. In Camera Proceedings

 

36.    Both parties have claimed in their submissions that there have been breaches by the other party of the 'in camera' rule after these proceedings were heard. [4] I have no doubt that people leave family and child law proceedings and are asked by, say, a worried parent or partner or sibling what happened and respond by telling them the truth of what occurred. Strictly speaking, that is a breach of the notion inherent in private court proceedings that 'what happens in court stays in court'. However, such limited disclosure is perhaps inevitable (and essentially unpoliceable as the family member will almost certainly state that she was never told anything). But what is not inevitable (and what is thoroughly objectionable) is that children should effectively be brought into the detail of proceedings by being told some version of what has happened and both sides allege that that is what has happened here. I would be grateful if both parties would, from this point on, rigorously observe the private nature of these proceedings. There is good reason why they are conducted in private. It is to their respective benefit that they observe the private nature of the proceedings. More importantly, it is to the benefit of their children (and their ongoing relationships with their children).

 

XI. Parental Alienation

 

37.    In passing, I note that allegations of parental alienation were made to Professor Sheehan by Mr D against Ms D. However, these appear not to have been accepted by Professor Sheehan who makes no mention of them in his report.

 

XII. Mr D's Written Submissions

 

38.    I respectfully refer the parties to my observations in Section V above. In this section I address a number of points raised in those submissions that I do not consider have been addressed elsewhere in this judgment:

 

(1) Mr D claims to suffer from mental ill-health and to have suffered harassment from Ms D. There is no evidence before me that Mr D suffers from mental ill-health. In fact Mr D has averred to being in good health but now says that he lied when he said this because he could not at the time bring himself to admit to being in poor health. I am genuinely sorry if he considers himself to suffer from mental ill-health but there was nothing in his demeanour or performance in the court or in his lifestyle more generally to suggest that, to the extent that he suffers from mental ill-health (if he does), it has in any way affected his competencies as an adult. Beyond Mr D's say-so there is nothing before me to suggest that he has ever been harassed by his wife. There is abundant evidence before me that Mr D repeatedly had his wife harassed by a HR firm at a time when she was very unwell.

 

(2) Mr D claims that after he continued with his cross-examination (following on threatening to leave the courtroom at the hearing) he was not mentally in a condition to proceed with the cross-examination. In fact Mr D conducted himself admirably after this episode, there was nothing in his behaviour or performance to suggest the contrary, and if he felt unable to proceed on the day he could simply have told me so. I respectfully see no merit to this submission.

 

(3) Mr D complains about some material being handed to him during the proceedings. I see nothing untoward in how counsel and the solicitors for Ms D conducted these proceedings.

 

(4) Mr D complains that [Text redacted] drove past his house in [Stated Place A], parked and looked at his house, drove towards him and glared at him. There is nothing unlawful in driving past a house, looking at a house, driving towards somebody without the intention of hitting them, or even glaring at them. If it is the case that someone drove at Mr D with the intention of hitting him, that would be a matter for complaint to the Gardaí and I note that Mr D has in fact made complaint to the Gardaí concerning this episode. There is no suggestion that Ms D participated in, knew of, or instigated this alleged episode, so I see it to have no relevance to these proceedings.

 

39.    As to Mr D's submissions regarding the financial side of matters, I have treated extensively elsewhere in this judgment with how I see the financial side of matters to lie.

 

XIII. Law and Case-Law

 

40.    Turning to the law:

 

–        I note that, as regards proper provision in judicial separation and divorce cases, the Court of Appeal in Q.R. v.  S.T.  [2016] IECA 421 standardised the approach to be brought (see para.51). The Court also considered that a similar approach should be taken to both judicial separation and divorce cases by virtue of the fact that the criteria in both s.16 of the Family Law Act 1995 and s.20 of the Family Law (Divorce) Act 1996 are practically identical.

 

–        drawing on M v. S [2020] IEHC 562 and N.O. v. P.Q. [2021] IECA 177 which between them also refer to, e.g., the decisions of the Supreme Court in D.T. v. C.T. [2002] 3 IR 334 and Y.G. v. N.G. [2011] 3 IR 717 and the High Court in M.K. v. J.K. (No 2) [2003] 1 I.R. 326, it seems to me that the following propositions arise. (References to page numbers are to the page numbers indicated on the Lexis database). The propositions are stated in Bold text; my  observations appear in plain text immediately after each block of Bold text. I have proceeded in accordance with all the propositions stated.

 

 

Clean Break?

 

41.    (1)  When,  following  the  15th  Amendment,  the  Oireachtas  came  to  introduce  divorce  legislation,  it  was  modelled  to  some  extent  on  modern  English  divorce  law.  There  is, however,  an  important  difference.  English  legislation  embodies  the  'clean  break' principle laid down by the House of Lords in Minton v. Minton [1979] A.C. 593 (D.T. v. C.T., Keane C.J., at p. 384).

 

42.    (2)  Irish  law  does  not  establish  a  right  to  a  'clean  break'.  However, it is a  legitimate  aspiration (Y.G. v. N.G., Denham C.J., at p. 729).

 

43.    (3) The absence of specific statutory machinery for the making of 'clean break' provision should  not  preclude  the  court  from  seeking  to  do  so  in  appropriate  cases.  In  the  case  where the amplitude of resources makes it possible, the desire of the parties for financial finality should not be frustrated (D.T. v. C.T., Fennelly J., at p. 440; see also Y.G. v. N.G., Denham C.J., at p. 729).

 

44.    This is not a 'clean break' case.

 

Certainty and Finality

 

45.    (4) Keane C.J. did 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 (D.T. v. C.T., Keane C.J., at p. 385).

 

46.    (5) The principles of certainty apply to family law as to other areas of the law. Certainty is important in all litigation. Certainty and consistency are at the core of the legal system. However, the concepts of certainty and consistency are subject to the necessity of fairness. Consequently, each case must be considered on its own facts, in light of the principles set out  in  the  law,  so  as  to  achieve  a  just  result.  Thus  while  the  underlying  constitutional  principle  is  one  of  making  proper  provision  for  the  spouses  and  children,  this  is  to  be  administered with justice to achieve fairness (D.T. v. C.T., Denham J., at p. 403).

 

47.    (6) 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 (D.T. v. C.T., Murray J., at p. 432).

 

48.    All noted.

 

Broad Discretion

 

49.    (7) While s.20(2) of the Act of 1996 lists in detail the factors to which the court is required to have regard in making the various financial orders provided for in Part III of the said Act,  it  is  obvious  that  the  circumstances  of  individual  cases  will  vary  so  widely  that,  ultimately,  where  the  parties  are  unable  to  agree,  the  trial  judge  must  be  regarded  as  having a relatively broad discretion in reaching what she or he considers a just resolution in all the circumstances (D.T. v. C.T., Keane C.J., at p. 386; see also Murray J., at p. 422).

 

50.    Noted.

 

51.    (8) Normally, even in cases where the parties might be considered to enjoy a substantial decree of financial comfort, the finite resources of the parties will be an underlying prescriptive factor in the exercise of a discretion as to how those resources can be applied in making proper or fair provision for both spouses (D.T. v. C.T., Murray J., at p. 423).

 

52.    Noted.

 

53.    (9)  The Oireachtas, in choosing the approach it enshrined in s.20, made a considered decision to confer upon the court a duty of a particularly broad discretionary character. This requires the court to pass judgment on the presence and, where they are present, the weight it attributes to an extremely wide range of specified considerations (D.T. v. C.T., Fennelly J., at p. 435).

 

54.    Given the absence of agreement between the parties on  a range of points this is a case in which I have had to invoke that relatively broad discretion.

 

55.    (10) The matters listed ins.20(2) of the Act of 1996, are designed to ensure that the court will have regard to all the wide variety of circumstances which should, in the interests of justice, be weighed in the balance when considering what is proper provision. The starting point in that regard must be, on the one hand, to the resources and on the other to the needs, obligations and responsibilities of the parties. There is no stated limitation on the financial resources or on the "financial needs, obligations and responsibilities..."  to  be  considered by the court and which may be available for the purpose of making provision. They may extend to resources or to needs, obligations or responsibilities which either spouse "is likely to have in the future" (D.T. v. C.T., Fennelly J., at p. 437).

 

56.    The parties enjoyed a comfortable standard of living prior to separation. (This despite the fact that Mr D clearly indulged in a secret lavish lifestyle before their separation of which Ms D was unaware). This excessive expenditure has continued post-separation and only come to light during the course of queries raised by Mr Harding.   

 

Financial Needs

 

57.    (11)  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 (Y.G. v. N.G., Denham C.J., at p. 731).

 

58.    Please see my responses to Points (1)-(3) and (10).

 

59.    (12) 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 (Y.G. v. N.G., Denham C.J., at p. 731).

 

60.    Though Ms D has been grievously unwell I do not see that, at this time, she is suffering from a debilitating illness.

 

61.    (13) "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." (Y.G. v. N.G., Denham C.J., at p. 732).

 

62.    This is not relevant here.

 

63.    (14) Where one or both parties are in receipt of income, but their joint assets are not of such significant value, the first task of the court will almost certainly be to consider what the financial needs of the spouses and the dependent children are. At one  end  of  the  spectrum,  there  will  be  cases  in  which,  at  best,  no  more  than  basic  subsistence  requirements  at  the  most  can  be  met.  At  the  other,  there  will  be  both  substantial assets and income available and the court will be concerned with the proper distribution,  in  terms  of  the  section,  of  the  available  assets  so  as  to  ensure  that proper  provision is made for the spouses and any dependent children (D.T. v. C.T., Keane C.J., at p. 386).

 

64.    I have considered the financial position at some detail in the main text above and had due regard to Mr Harding's evidence and report as the more reliable in this case for the reasons stated above. Despite Mr D's transgressions, I consider that there are still sufficient assets available to the parties to enable me to make the financial orders set out in Appendix 2 to this judgment.

 

65.    (15) The Act of 1996 does not require the assets of the spouses to be divided between them and the dependent children in every case. There will be cases in which it would be solely concerned with the appropriate level of the maintenance to be paid by one spouse to the other  and  as  to  what  is  to  happen  to  the  family  home.  But  in  cases... where  there  are  substantial  assets brought  into  being  in  circumstances  where  it  would  be  unjust  not  to  effect  some  form  of  division,  the  court  will  inevitably  find  itself  having  to  determine, where the parties are unable to agree, how the assets should be divided and whether that division should take the form of a lump sum order or a property adjustment order (D.T. v. C.T., Keane C.J., at pp. 386-87).

 

66.    Please see my response to (14).

 

Non-Discrimination

 

67.    (16) The work of a spouse in the home cannot be a basis for discriminating against her by reason only of the fact that the husband was the major earner or the breadwinner during the course of the marriage (D.T. v. C.T., Murray J., at p. 427).   

 

68.    (17) Lord Nicholls, in White v. White [2001] 1 AC 596, emphasised that the whole tenor of English divorce legislation was the avoidance of a discriminatory approach: the fact that, as often happened, the wife had devoted the greater part of her time to looking after the children and caring for the home generally, was no ground for confining her share of the family assets, in the event of a breakdown of the marriage, to so much of the assets as met her 'reasonable requirements'. That is also the law in Ireland (D.T. v. C.T., Keane  C.J., at p. 389).

 

69.    All noted. This is not really such a case. Mr D and Ms D worked jointly in their business and appear to have split the homemaking tasks between them. That said I have taken account of the fact that it is likely that Ms D will sacrifice some of her out-of-house earning ability by virtue of her role as primary carer. And I have taken into account that there is no reality in all the circumstances presenting to her continuing to work in [Company A]'s business.

 

70.    (18) In Cowan v. Cowan [2002] Fam 97, a so-called 'ample resources' case, Thorpe LJ, at pp. 118-19, summarised his understanding of White v. White [2001] 1 AC 596 as follows, "Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as breadwinner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross check against such discrimination....Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements." Provided that it is always borne in mind that in 'ample resources' cases an equal division of the assets is emphatically not mandated by the legislation, Keane C.J. considered that there should be no difficulty in adopting a broadly similar approach in this jurisdiction. (D.T. v. C.T., Keane C.J., at pp. 389-90).

 

71.    Please see my response to (17). Despite Mr D's transgressions, this remains something of an ample resources case - though not a very ample one.

 

72.    (19)  When  a  court  is  exercising  its  discretion  in  making  provision  for  spouses  on an application for divorce, the following should be considered: (i) in making such provision a  spouse  who  has  worked  principally  in  the  home  during  the  course  of  the  marriage   should not be disadvantaged in the making of such provision by reason of that fact; (ii) both spouses are entitled, in principle, to seek that the provision made for them provides them with a measure of independence and security in their lives and there is no reason why,  in  principle,  a  non-earning  spouse  should  be  confined  to  periodic  payments.  The  extent to which this can be achieved in practice will depend on the circumstances of the case, the resources available and the exercise of judicial discretion in taking into account all the factors referred to in s.20; (iii) a court has power to direct the payment of lump-sum payments where this is considered an appropriate means of making proper provision for one or other of the spouses; (iv) all the resources, assets and income of the applicant and the respondent) should be taken into account (D.T. v. C.T., Murray J., at pp. 431-32).

 

73.    As to (i), please see my response to (17). As to (ii), I consider that the course of action that I intend to take will provide both spouses with a measure of independence and security in their lives. As to (iii) please see my response to (1)-(3), As to (iv), I have so proceeded.

 

'Breadwinners' versus 'Homemakers'

 

74.    (20) The role of the dependent homemaker and child carer, usually the wife, is not to be disadvantaged in the distribution of assets by reason of having a non-economic role (M.K. v. J.K. (No 2), O'Neill J., at p. 349).

 

75.    (21)  In  Irish  society  today,  it  can  no  longer  be  assumed  that  the  husband  and  wife [in mixed-sex marriages]   will occupy their traditional roles in which the husband has been the breadwinner and the wife the home builder and carer. The roles may on occasions even  be  reversed  and,  in  many  instances,  both  husband  and  wife  will  be  in  receipt  of  income from work. In those cases where one spouse alone is working and, in the result, a significantly greater responsibility for looking after the home has devolved on the other, it is clear that under s.20(2)(f) of the Act of 1996, the court must have regard to that as a relevant factor (D.T. v. C.T., Keane C.J., at p. 387).

 

76.    (22) A court is obliged by virtue of s.20(2)(g) to have regard to the financial consequences for  either  spouse  of  his  or  her  having  relinquished  the  opportunity  of  remunerative  activity in order to look after the home or care for the family (D.T. v. C.T., Keane C.J., at p.387).

 

77.    (23) In assessing the "proper provision" under Article 41.3.2°, the court must look at both aspects of a spouse's role in the family, i.e. the two sides of the coin. Thus the court must have  regard  to  the  role  of  the  spouses  in  relation  to  the  welfare  of  the  family,  to  their  contribution in looking after the home or caring for the family: s.20(2)(f). On the other side of the coin, the court must have regard to the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each, and the degree to which the  future  earning  capacity  of  a  spouse  was  impaired  by  reason  of  the  spouse  having  relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family: s.20(2)(g). By this total approach to the family role of a spouse and its effect, formal recognition is given to the role of caring for the family (D.T. v. C.T., Denham J., at p. 402).

 

78.    (24) Article 41.3.2° of the Constitution and the Act of 1996, clearly require that value be placed on the work of a spouse caring for dependents, the family and the home. A long-lasting marriage, especially in the primary childbearing and rearing years of a woman's life, carries significant weight, especially if the wife has been the major home and family carer (D.T. v. C.T., Denham J., at pp. 402-03).

 

79.    (25)  In  ensuring  that  proper  provision  is  made  for  the  spouses  of  a  marriage  before  a  decree  of  divorce,  the  courts  should,  in  principle,  attribute  the  same  value  to  the contribution of a spouse who works primarily in the home as it does to that of a spouse who works primarily outside the home as the principal earner. The value to be attached to  their  respective  contributions  in  those  circumstances  is,  perhaps,  underscored  by Article 42.1 of the Constitution which refers, inter alia, to the "duty of parents to provide, according  to  their  means,  for  the  religious  and  moral,  intellectual,  physical  and  social  education of their children" (D.T. v. C.T., Murray J., at p. 428).

 

80.    (26) Where substantial assets and income have accrued to one spouse in the course of the marriage, the court should take them into account in determining the proper provision to be made for the other spouse. They are available in order to make a proper provision for the other spouse. In the case of a wife who has worked primarily in the home, she is just as entitled as her husband to have the 'fruits of the marriage', taken into account by the court in determining what provision should be made for each of them (D.T. v. C.T., Murray J., at p. 430).

 

81.    (27)  Section  20(2)(f)  obliges  the  court  to  give  due  weight  and  consideration  to  the respective roles of the breadwinner and the homemaker, i.e. such weight as is appropriate in all the circumstances. It does not erect any automatic or mechanical rule of equality. Nor does it institute any notion of family resources or property to be subjected to division. Several considerations militate against the adoption of such rules of thumb. The children of the marriage have to be considered and their provision by one spouse may mean that property should not be equally divided. One or both of the parties may have entered into new   relationships,   possibly   involving   children.   The   supposed   'breadwinner'   or   'homemaker', as the case may be, may not, depending on the circumstances deserve to be placed  on  an  equal  footing.  It  is  only  with  the  greatest  care,  therefore,  that  one  should  formulate any general propositions (D.T. v. C.T., Fennelly J., at pp. 438-39).

 

82.    (28)  In  White  v. White [2001]  1  A.C.  596,  Lord  Nicholls  observes,  at  p.  605,  that "If,  in  their different spheres, each [spouse]contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer". Fennelly J. adopted this language to the extent that he argues for equal recognition of the value of the contributions that may have been made during the marriage, in their respective roles, by the money-earning spouse and the home-making spouse (D.T. v. C.T., Fennelly J., at p. 439). 

 

83.    All noted. Please see my response to (17).

 

Other Relevant Factors

 

84.    (29) Other factors to which the court is obliged to have regard is the standard of living enjoyed by both parties before the breakdown of the marriage, their respective ages and the duration of the marriage (D.T. v. C.T., Keane C.J., at p. 387).

 

85.    As to the standard of living, please see my response to (10). The parties are now in their 40s and the marriage was of relatively long duration, lasting for about 15 years until it essentially ceased in November 2020.

 

86.    (30) A party should not be compensated for their own incompetence or indiscretions to the detriment of the other party (Y.G. v. N.G., Denham C.J., at p. 732).

 

87.    Here one has to be careful not to see Mr D rewarded for having depleted the resources of [Company A] as he has.

 

Conduct of Parties

 

88.    (31) The conduct of the parties will be relevant where, in the opinion of the court, it would be unjust to disregard it (D.T. v. C.T., Keane C.J., at p. 387).

 

89.    I have considered Mr D's (ab)use of [Company A]'s resources previously above. I have also raised concern about how he has conducted himself when the children are in his custody (removing one from the jurisdiction for a time, leaving them alone, and perhaps being unduly lax). I have also noted the unintended but reprehensible fact that one of the children accessed photographic material of Mr D engaged in consensual sexual encounters. I have said what I have said in this regard with a view to ensuring that there is not a repeat in the future. I do not see that there is more to be said in this regard.

 

90.    (32)  Ultimately,  when  all  these  factors  have  been  assessed  by  the  trial  judge,  he  or she  must be satisfied that any financial orders made constitute proper provision for each of the spouses, and the dependent children, within the meaning of the Constitution and the Act of 1996 (D.T. v. C.T., Keane C.J., at p. 387).

 

91.    I am satisfied for the various reasons stated in this judgment that I am making proper provision for all.

 

92.    (33) As to when it would be "unjust" within the meaning of s.20(2)(i) to disregard the conduct of each of the spouses, in Wachtel v. Wachtel [1973] Fam 72, Denning MR said, at p. 90, that: "There will no doubt be a residue of cases where the conduct of one of the parties is...'both obvious and gross', so much so that to order one party to support another whose conduct falls into this category is repugnant  to  anyone's  sense  of  justice.  In  such  a  case  the  court  remains  free  to  decline  to  afford  financial  support  or  to  reduce  the  support  which  it  would  otherwise  have  ordered.  But,  short  of  cases  falling  into  this  category,  the  court  should  not  reduce  its  order  for  financial provision merely because of what was formerly regarded as guilt  or  blame.  To  do  so  would  be  to  impose  a  fine  for  supposed misbehaviour  in  the  course  of  an  unhappy  married  life  ...  in  the  financial adjustments consequent upon the dissolution of a marriage which  has  irretrievably  broken  down,  the  imposition  of  financial  penalties ought seldom to find a place." Keane C.J., in D.T., agreed with the view expressed by Lord Denning in Wachtel that the court should not reduce the financial provision which it would otherwise make to one of the parties save in cases where misconduct has been "obvious and gross". (D.T. v. C.T., Keane C.J., at p. 391; see also Denham J., at pp. 408-09).

 

93.    Please see my observations at (31).

 

 

Date of Valuation of Assets

 

94.    (34) As to the time at which the assets should be valued, the language of s.20(2)(a), and, in particular, the reference to "property ... which each of the spouses concerned has or is likely to have in the foreseeable future" is more consistent with an assessment by the court of the value of those assets as of the date of the hearing. Any other construction would seem to give rise to the possibility of injustice to either party. That was also the view taken by the Court of Appeal in Cowan v. Cowan [2002] Fam 97, at p. 122 (D.T. v. C.T., Keane C.J., at pp. 390-91).

 

(35) The assessment of assets must be as of the date of trial or appeal. This is consistent with the wording of the statute which refers to "circumstances exist", "the income...which

each of the spouses concerned has or is likely to have", "the financial needs which each of

the spouses has or is likely to have". However, while the assessment of assets is at the date

of the trial or the appeal, there may be important factors relevant to that sum to be taken

into consideration in determining the proper provision for the spouses. E.g., the fact that a considerable sum of money was acquired by a spouse after their separation, the basis for  such  a  new  acquired  sum,  or  the  existence  of  a  deed  of  separation,  may be  very  relevant (D.T. v. C.T., Denham J., at p. 404).

 

95.    (36)  Assets  should  be  assessed  as  at  the  date  of  trial.  However,  there  may  well  be  circumstances as to their relevance as an asset base in providing proper provision. Thus, if the parties had no joint enterprise (such as a farm or business or professional practice) and one party after separation commenced and achieved success in a wholly new area, that may be a circumstance applicable to the determination of the asset base relevant to  proper provision. While the factors set out in s.20(2)(a)-(1) must be applied, it may affect the benchmarking of fairness (D.T. v. C.T., Denham J., at p. 405).

 

96.    All noted.

 

Ad Seriatim Consideration

 

97.    (37)  In determining proper provision, it is mandatory for the court to have regard, in particular, to the factors set out in s.20(2) of the Act of 1996. The relevance and weight of each factor will depend on the circumstances of each case. Best practice is to consider all the  circumstances  and  each  particular  factor ad  seriatim and  give  reasons  for  their relative weight in the case (D.T. v. C.T., Denham J., at p. 402).

 

98.    (38) What the court of first instance must do is go through the various factors set out in s.20(2) seriatim and  deal  with  the  circumstances  of  the  case  in  the  light  of  these  factors  insofar as they are relevant to the circumstances of the case, assessing in the light of the evidence,  the  weight  to  be  attached  to  each  factor.  Having  completed  that  exercise,  the  court must then, in the light of s.20(5) of the Act of 1996, consider in a residual way and on the basis that the court's discretion is not confined solely to the factors set out in s.20(2) but must have regard to whether or not an order which the court might be disposed to make,  having  weighed  up  the  various  factors  in  s.20(2),  should  not  be  made  unless  it  would be in the interests of justice to do so (M.K. v. J.K. (No 2), O'Neill J., at p. 350). 

 

99.     All noted. I have  so  proceeded.

 

Lump Sum

 

100. (39)  There  is  nothing  in  the  Constitution  or  legislation  which  prohibits  a  lump  sum  as  part of a financial ancillary order. In considering whether such an order is applicable, the provisions of the Act of 1996 must be applied (D.T. v. C.T., Denham J., at p. 403).

 

101. (40) The Constitution would require that the making of lump sum payments be ordered if, in the particular circumstances of the case, the court considered in its discretion that that  was  the  appropriate  manner  by  which  proper  provision  should  be  made  for  the  spouse in question (D.T. v. C.T., Murray J., at pp. 429-30).

 

102. All noted.

 

 

 

 

Proper Provision (not Division)

 

103. (41) 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 dependent children. Thus this duty requires the court to make proper provision, having regard to all the circumstances (Y.G. v. N.G., Denham C.J., at p. 730).

 

104. (42) The Act of 1996 enables the court to make a variety of financial and property orders; the  purpose  of  the  making  of  these  orders  upon  the  granting  of  a  divorce  decree  is  to  ensure that proper provision is being made for a dependent spouse and children (M.K. v. J.K. (No 2), O'Neill J., at p. 332).

 

105. (43) In English matrimonial law, the court in divorce proceedings is primarily concerned  with dividing assets as fairly as possible between the parties rather than making proper provision for the spouses and their dependent children. Such an approach could not be adopted  in  this  jurisdiction,  where  the  appropriate  criterion is  the  making  of  proper  provision for the parties concerned (M.K. v. J.K. (No 2), O'Neill J., at p. 348).

 

106. (44)  The  scheme  established  under  the  Act  of  1996  is  not  a  division  of  property.  The scheme provides for proper provision. It is not a question of dividing the assets at the trial on  a  percentage  or  equal  basis.  All  the  circumstances  of  the  family,  including  the  particular factors referred to in s.20(2) are relevant in assessing the matter of provision from the assets (D.T. v. C.T., Denham J., at p. 404).

 

107. (45) It is not the case that in making financial provision for spouses their assets should be  divided  between  them.  Neither  the  Constitution  nor  the  Act  of  1996  requires  that,  expressly or implicitly. It is rather that a spouse should not be disadvantaged by reason of the fact that all, or nearly all, of the assets and income in the marriage are those of the other spouse. It also means that in cases where there are very substantial assets belonging to one  spouse  which  greatly  exceed  any  conceivable  day-to-day  needs  of  either  spouse,  whatever their standard of living, those assets should not as a matter of course remain with the spouse who owns them, with the other spouse being confined to depending on periodic payments (D.T. v. C.T., Murray J., at p. 428).

 

108.  All noted. In this case it seems to me that Ms D ought not to be discriminated against by virtue of the fact that her co-founding and joint operation of the day-to-day business of [Company A] is not accurately reflected in the ownership of Company. It is also necessary to reflect the ownership arrangements as regards [Related Venture 1].

 

109. (46) Proper provision should seek to reflect the equal partnership of the spouses. Proper  provision for a spouse who falls into the category of a financially dependent spouse should seek, so far as the circumstances of the case permit, to ensure that the spouse is not only in a position to meet his/her financial liabilities and obligations, continue with a standard of living commensurate with his/her standard of living during marriage but to enjoy what may  reasonably  be  regarded  as  the  fruits  of  the  marriage  so  that  he/she  can  live  an  independent life and have security in the control of his/her own affairs, with a personal dignity  that  such  autonomy  confers,  without  necessarily  being  dependant  on  receiving  periodic payments for the rest of her life from his/her former wife/husband. 'In principle' because in many cases the resources or circumstances of the parties will dictate that the only  means  of  making  future  provision  for  the  spouse  in  question  will  be  by  periodic  payments from the other spouse (D.T. v. C.T., Murray J., at p. 429).

 

110. I have nothing further to add in this regard that has not previously been stated above.

 

111. (47)  The  court  must  do  what  is  "proper"  in  the  sense  of  'appropriate'.  This  is synonymous  with  what  is  "fair"  or  "just".  In  the  moral  sense,  this  is  a  clearly  stated  objective. In practice, it requires the court to weigh in the balance the infinite variety and complexity of the elements of human affairs and relationships and to arrive at a just result (D.T. v. C.T., Fennelly J., at p. 434). 

 

112. Noted.

 

113. (48) Any property, whenever acquired, of either spouse and whenever and no matter how acquired,  is, in  principle,  available  for  the  purposes  of  the  provision.  Thus,  property  acquired  by  inheritance,  by  chance,  or  the  exclusive  labours  of  one  spouse  does  not  necessarily  escape  the  net.  On  the  other  hand,  not  all  such  property  is  automatically  available either (D.T. v. C.T., Fennelly J., at p. 437).

 

114. Noted.

 

Continuing Obligation

 

115. (49) Each spouse has a continuing obligation to make proper provision for the other and the resources which are available to each of them may be taken into account, so far as is necessary, to achieve  that  objective.  Each  case  will  necessarily  depend  on  its  own  particular circumstances (D.T. v. C.T., Murray J., at p. 430). 

 

116. Noted.

 

Agreement Between Spouses

 

117. (50)  It  is  evident  that  parties  may  well  be  able  to  compose  their  material  and financial  differences by agreement. Agreement is, in its nature, to be encouraged, a matter which is recognised in the legislation, in particular, by requiring the court to have regard to the terms of any existing separation agreement (D.T. v. C.T., Fennelly J., at pp. 433-34).

 

118. There is no agreement here.

 

Section 20

 

119. Section 20 of the Act of 1996 provides as set out in the Bold text that follows; my comments appear in plain text.

 

120. 20.— (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.

 

121. I have treated with this aspect of matters above.

 

122. (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,

 

123. I have treated with this aspect of matters above.

 

124. (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  or  registration  in  a  civil  partnership of the spouse or otherwise), 

 

125. I have treated with this aspect of matters above.

 

126. (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,

 

127. I have treated with this aspect of matters above.

 

128. (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,

 

129. I have treated with this aspect of matters above. The parties appear to have lived together throughout their marriage.

 

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

 

131. Neither spouse suffers from any such disability.

 

132. (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,

 

133. I have treated with this aspect of matters above.

 

134. (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,

 

135. I have treated with this aspect of matters above.

 

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

 

137. Each of the parties will at some point come into receipt of the old age pension. However, given the scale of the private assets available in this case, I do not see that this is an especially relevant factor. (It is of course a factor but not an especially significant one in all the circumstances presenting).

 

138. (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,

 

139. I have treated with this aspect of matters above.

 

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

 

141. I have treated with this aspect of matters above. It does not seem that there is any risk of either party not being able to finance accommodation into the future following on the orders that I will make.

 

142. (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,

 

143. There are minor pensions enjoyed by each party and it seems to me that the fairest way to proceed is to leave each spouse with his/her respective pension rights.

 

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

 

145. I have obviously had regard to the interests and rights of the children. No other third party rights have been raised as an issue, though I have also had regard to the position of Mr D's brother as shareholder insofar as that is known to me.

 

146. (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.

 

147. There is no such agreement.

 

148. (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.

 

149. Noted. Apart from the custody/access orders I am not making any order in respect of a dependent family member.

 

150. (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.

 

151. Noted. I am satisfied that it is in the interests of justice to make the orders I intend to make.

 

XIV. Conclusion

 

152. There are a few minor outstanding points which have been touched upon in the submissions and which I cannot believe will be the subject of much controversy. Thus, Ms D has sought access to (i) storage facilities in [Country A] in respect of certain family items therein, and (ii) certain family photos on iCloud. Although I will make both orders, it may be that my order as regards point (i) has little if any consequence if it comes to enforcing same in [Country A]. I would respectfully ask that Mr D act sensibly and allow Ms D the access and retrieval that she has sought at (i) and which (for what it is worth) I will order.

 

153. I will make the decree sought and the orders indicated above for the reasons stated above, subject to the caveat as to further interaction with Professor Sheehan concerning the proposed access arrangements. Given that Mr D is unrepresented legally, I would ask that counsel for Ms D prepare a draft order that accurately reflects this judgment which I will then consider. I will hear the parties as to costs. There is no reason why Professor Sheehan cannot immediately be approached. I will also make such other ancillary orders as may be necessary including but not limited to (a) that the Principal Registrar would sign and/or execute the transfer of sites in default; (b) a declaration that the habitual residence of the children is in the Republic of Ireland. 

 

154. Finally, although this was not touched upon at the proceedings, it seems to me that there is a real prospect that Mr D's actions vis-à-vis [Company A] may yet be the subject of criminal investigation in [Country A] should he approach the authorities or should his actions otherwise be discovered. That being so, I propose not to make any element of this judgment public at this time in case to do so would somehow prejudice Mr D's rights, including his presumption as to innocence, under [Country A]'s criminal law. If elements of the judgment will require to be disclosed in order that the proposed orders be effected, it would help if these could be referenced in the proposed draft order, rather than having the parties engage in the time and expense of reverting to me again.

 

To Mr D/Ms D:

What does this Judgment Mean for You?

 

 

Dear Ms D, Mr D

 

I have just written a detailed judgment about the application brought by Ms D. The judgment contains a lot of legal language which can be hard (even boring) to read. In a bid to make my judgments easier to understand by those who receive them I often now attach a note in 'plain English' briefly summarising what I have decided. I thought it might assist for me to add such a note in this case.

 

In a bid to ensure that people do not know who you are, I refer to you in my judgment and in this note as Mr D and Ms D. This may seem a bit artificial. However, I think it is for the best.

 

This note is a part of my judgment. However, it does not replace the text in the rest of my judgment. It is written to help you understand what I have decided. Any lawyers that you have engaged or may engage will explain the rest of my judgment in more detail.

 

I am granting the decree sought. As regards the financial and custody arrangements that should apply, I propose to make the orders indicated in Appendix 2 to my judgment. (You will find Appendix 2 a few pages after this page. It starts on the page headed 'Appendix 2'.) It is not clear to me that Professor Sheehan, when preparing his report, was familiar with all the evidence that I heard at the hearings. So before I finalise the proposed access orders I will be giving Professor Sheehan a copy of my judgment to see if there is anything further that he wishes to state regarding access.

 

I wish you both the very best.

 

Yours sincerely

 

Max Barrett (Judge)

 

Date: 12^th January, 2023.