[2025] IEHC 332
RECORD NUMBER 2024/19 CAT
CIRCUIT COURT RECORD NO. FL00017/2019
THE HIGH COURT
FAMILY LAW
CIRCUIT COURT APPEAL
EASTERN CIRCUIT COUNTY OF MEATH
IN THE MATTER OF THE JUDICIAL SEPARATION & FAMILY LAW REFORM ACT, 1989 &
IN THE MATTER OF THE FAMILY LAW ACT, 1995, &
AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 AS AMENDED
BETWEEN/
C. P.
APPLICANT/RESPONDENT
-AND-
R. P.
RESPONDENT/APPELLANT
-AND-
N. P.
NOTICE PARTY
Joined by Court Order of the 12/03/2025
Judgment of Ms. Justice Nuala Jackson delivered on the 16th May 2025.
1. The matters at issue in this decision are extremely net but they are extremely important issues in the context of the compromise of proceedings and, in particular, the compromise of family law proceedings. For ease of reference, C.P., the Applicant and Respondent to this Appeal, shall be referred to as 'the wife', R.P., the Appellant, as the 'the husband' and N.P. as the 'Notice Party'.
BACKGROUND
2. The wife herein sought a Judicial Separation and ancillary relief by Family Law Civil Bill filed on the 6th of April, 2019. There was considerable delay in getting the proceedings on for hearing, which delay, the Applicant contends, was due to the failure by the Respondent to make proper financial disclosure. The case was finally heard in 2022 and Orders were made by the Circuit Family Court (His Honour Judge Patrick Quinn) on the 22nd day of July, 2022, who converted the proceedings into a divorce and made ancillary Orders under the 1996 Act. The husband, after further delay, succeeded in having an application to extend time to appeal granted by Order of the Deputy Master of the 16th January 2024 when the time for the service and lodgement of a Notice of Appeal was extend by a period of three weeks and the Appeal came for hearing on the 25th and 26th of March, 2025, before me, some two years and eight months after the Order of the Circuit Family Court. The Notice Party, who was formally joined to the proceedings on the 12th of March, 2025 (this was to clarify some potential uncertainty in this regard arising from the Circuit Family Court proceedings), was present for the hearing and the submissions, accompanying his father, the husband.
3. After negotiations between Senior Counsel on the 25th of March, the Court was advised after lunch by Senior Counsel for the wife that the case had settled and needed to be reduced to writing. The Court gave the parties until 4.15p.m. that day if it was ready to rule and otherwise adjourned the matter into the following morning at 11.00 a.m.
4. I was informed on the morning of the 26th March 2025 that the wife was no longer satisfied with the arrangements and that she wished to proceed for hearing. Counsel for the husband then informed me that it was the husband's position that the matter was settled and that the case should proceed on that basis. Counsel for the wife disputes that there is a legally binding settlement in this instance.
5. Oral and written submissions were received from the parties in relation to the issues arising.
6. It is important to clearly set out that I have no knowledge of the terms of settlement or alleged terms of settlement. No such details have been given to me and it was entirely appropriate that no such details be provided to me until the issue of whether or not the case had settled in a legally effective or relevant manner has been resolved.
7. I have not heard any evidence in relation to this matter i.e. the matter of whether a compromise agreement has been reached or not. Clearly, submissions were made to the court by Counsel in the context of keeping the court informed of progress in discussions between the parties on the 25th March 2025.
8. The issues arising are as follows:
(a) Can oral settlements be achieved in family law proceedings?
(b) If so, how are the terms of such settlements to be ascertained or determined in the event that there is a subsequent dispute in this regard?
(c) Is compliance with the Statute of Frauds/Land and Conveyancing Law Reform Act, 2009 required where settlement terms between the parties include property adjustment orders or orders for the disposition of land?
(d) What is the role of such settlements in the exercise by the Court of its functions under the relevant matrimonial legislation? The position in this regard is complicated by the fact that these are proceedings for judicial separation under the Judicial Separation and Family Law Reform Act, 1989 ("the 1989 Act") and the Family Law Act, 1995 ("the 1995 Act") which were ruled by the Circuit Family Court under the Family Law (Divorce) Act, 1996 ("the 1996 Act") (which that Court undoubtedly had jurisdiction to do under section 39(4) of the 1996 Act). A Notice of Appeal from the whole of the Order of the Circuit Family Court has been filed as I understand it (I was not provided with a copy of such Notice of Appeal) and therefore the matter comes before me under the 1989 and 1995 Act, although I obviously have the same jurisdiction to determine the matter as an application for a divorce decree as the first instance court had.
9. In the circumstances which pertain in this case, I considered it imperative that a transcript of the relevant information which was indicated to me on the 25th March 2025 be prepared and, consequently, I arranged for this to be done. It is annexed hereto at Annex "A".
10. The reason why I consider the transcript important is that the husband relies upon what the court was informed as being proof of settlement. Of course, if the matter had settled, so informing the Court would be but one route by which settlement could be contended. Even if the fact of settlement was not communicated to the court, that there was such settlement and the terms of such settlement are matters which could be argued by adducing evidence in this regard. This would likely involve evidence being given by Counsel involved in the negotiation. I have heard no such evidence and I therefore cannot make any determination in this regard.
11. Therefore, it seems to me that there are three possible routes of travel in the context of progressing this matter:
(a) Was the court definitively informed that the matter had settled and, if so, the legal status of oral settlement must be considered and ascertained? For the reasons stated below, I answer the first part of this question in the negative. As to the second issue, the legal status of an oral settlement in family law litigation such as the present (divorce or judicial separation) is considered below.
(b) If the court was not so informed but rather the submissions/representations to the Court indicated continuing conditionality in terms of an agreement, does the husband wish to pursue the issue of settlement by adducing evidence to this end and what legal purpose would this serve? The former is a matter for the husband to determine. The latter is addressed below. The result of this investigation will either lead back to (a) above or to (c) below.
(c) The matter was not settled in which case the hearing of the appeal must proceed as a contested matter.
SUBMISSIONS OF THE PARTIES
12. I wish to thank Counsel for their most comprehensive and useful submissions herein.
13. The husband contends:
The wife responds:
The husband contends:
The wife responds:
The husband submits:
The wife responds:
These are most important issues in the context of family law, spousal autonomy and litigation compromise generally.
THE LAW
(a) Can oral settlements be achieved in family law proceedings?
14. I conclude that they can. Delany and McGrath, referenced above, consider the law of civil compromise in some detail in Chapter 20. They state:
"20-01 Foskett defines a compromise or settlement to mean "the complete or partial resolution by agreement of differences before final adjudication by a court or tribunal of competent jurisdiction". This definition reflects the fact that parties to a dispute are free to reach a settlement at any stage prior to judgment, and even after judgement where one of the parties has launched an appeal. The law of compromise is fundamentally based on the law of contract but, as will be seen below, the form of any court order made has important ramifications for the implementation and enforceability of a settlement.
20-02 There is a strong public policy in favour of the settlement of proceedings. In Greencore Group plc v. Murphy, Keane J. stated that "parties should be encouraged as far as possible to settle their disputes without recourse to litigation" and, where litigation has commenced, the policy of the courts is one "of encouraging litigants to settle their differences rather than litigate them to a finish". The courts are, therefore, strongly supportive of settlements and where the parties agree to the making of a particular order by consent, the court will make such order unless to do so would involve illegality or the court exceeding its jurisdiction."
15. The learned authors proceed on to consider the elements required for a valid compromise and list these as being:
i. There must be a dispute in existence between the parties;
ii. The parties must reach an agreement to compromise the dispute;
iii. There must be consideration for the compromise;
iv. There must be an intention to create legal relations
v. There must be a complete and certain agreement and
vi. Court approval may arise (cases involving minors and persons of unsound mind are referenced).
16. Importantly, at paragraph 20-06, it is stated:
"20-06 Where a doubt arises as to whether the negotiations between the parties, whether oral or written, have resulted in an agreement to compromise a dispute, the court will have recourse to the contractual rules of offer and acceptance." (underlining added)
17. It is clear from the English authorities that oral compromise of proceedings is sufficient although, as in Xydhias v. Xydhias, where the fact of compromise is in dispute, documentary evidence may assist in resolving the "doubt" referenced by Delany and McGrath in the reference above to paragraph 20-06. I am of the view that this conclusion is also supported by the provisions of sections 6, 7 and 8 of the 1996 Act as referenced by the husband in his submissions.
(b) If so, how are the terms of such settlements to be ascertained or determined in the event that there is a subsequent dispute in this regard?
18. This is a matter of contract law and a matter for evidence. In the Xydhias case, the Court of Appeal concluded on the evidence that such an agreement had been reached. I note that outcome in Xydhias is not without its critics [2] but this does not alter the fundamental principle that whether or not there is a concluded agreement is a matter of evidence. I do not consider that the legal principles applicable are impacted upon by the postscript to the judgment of Thorpe LJ. I am of the view that this postscript is expressly in the form of "lessons" to be learned and guidance on best practice which lessons are clearly wise ones:
"There are perhaps 2 lessons for specialist practitioners.
The first is to distinguish clearly between the 2 stages of negotiation. The first stage is to establish what the applicant is to receive. That should be expressed in simple terms in heads of agreement signed by both counsel and their clients. (Emphasis added)
All who appeared before the late Mr. Jackson Q.C. will remember that was for him a cardinal rule. The formality marks the conclusion of that part of the negotiating process which the parties dominate. The subsequent task of expressing the heads of agreement in the language of an order of the court is one to which they ordinarily make little contribution and although it generally precedes the presentation of the agreement to the judge for his consideration, it can as well be done after the judge has determined the issue. The signature of the parties to a draft order hardly seems apt.
Second it seems to me desirable that counsel should explicitly agree whether their negotiations are open or without prejudice. Ordinarily they are likely to be without prejudice and if they do not achieve a concluded agreement the aftermath is likely to be an exchange of Calderbank and/or open correspondence."
In this regard, Foskett likewise usefully opines:
"The spectre of one party seeking to claim the existence of a concluded agreement relying upon Xydhias, whilst the other denies having reached that stage, is not illusory. It may be avoided if the parties agree to the two-stage process advocated by Thorpe LJ whereby the agreement is concluded upon the heads of agreement being signed. However, negotiation are often not that formal and take place through a chain of correspondence and conversations, with new matters emerging as negotiations develop. Whilst it is normally not too difficult to determine whether a complete agreement is reached at any point, it may be far more difficult to discern if the principles of agreement are agreed at some earlier stage.
From a practical point of view, it is suggested that it is now particularly important for negotiators to ensure that all material issues are raised at an early stage and that it is made clear that no agreement is to be regarded as concluded until final agreement is reached on all those material issues. Negotiations should remain expressly "subject to final agreement" until agreement is reach on all the material terms."
Indeed, it may be expressly stated that there is to be no concluded agreement until signed terms are executed.
(c) Is compliance with the Statute of Frauds/Land and Conveyancing Law Reform Act, 2009 required where settlement terms between the parties include property adjustment orders or orders for the disposition of land?
19. Section 51 of the Land and Conveyancing Law Reform Act, 2009, which repealed Section 2 of the Statute of Frauds and re-enacted it to state:-
"..., no action shall be brought to enforce any contract for the sale or disposition of land unless the agreement on which the action is brought or some memorandum or note of it is in writing and signed by the person against whom the action is brought or that person's authorised agent."
Clark, R. "Contract Law in Ireland" (8th Edition) at paragraph 4-46 is clear:
"4-46 While the contract caught by the 1695 Statute will be unenforceable at common law for want of a memorandum, it is important to note that the 1695 Statute will not be interpreted so as to render the contract void."
The statutory requirement relates to enforceability and not to validity.
20. In this context, a compromise of divorce or judicial separation proceedings is not enforceable per se in any event as it is merely a step in the litigation which must then proceed on to consideration by the court. In this context, the dictum of Thorp LJ in Xydhias expresses the matter clearly:
"My cardinal conclusion is that ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for compromise of an ancillary relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The only way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court."
21. It seems to me clear that any compromise of divorce or judicial separation is not and does not contain "a contract for the sale or disposition of land" rather it may, inter alia, contain an agreement that it is appropriate to request the court to make an order requiring the sale or disposition of land. I again reference the dictum of Thorp LJ in Xydhias:
"In my opinion this point too is settled by a proper analysis of the nature and effect of an agreement to compromise ancillary relief proceedings. The agreement, if concluded, is not one for the disposition of an interest in land but an agreement as to the terms which the parties themselves considered fair with the object of avoiding the expense and stress of a contested hearing."
(d) What is the role of such settlements in the exercise by the Court of its functions under the relevant matrimonial legislation?
22. It does not appear to me that this issue requires to be definitively determined at this point having regard to the fact, as detailed below, that the issue of whether or not there was a concluded agreement remains to be determined, if being pursued by the husband. By way of observation only, I have considered the submissions made in this regard and the analysis of the law in this regard in England as set out in Foskett and the relevant authorities referenced. However, when considering the role of the court following compromise and the determination of proper provision in that context, for the purposes of the divorce or judicial separation legislation, regard must be had to the Constitutional origins of the jurisdiction being exercised [3] and to the Constitutional protection of marriage and the family [4]. In the context of divorce and judicial separation, the factors which a court is mandated to consider are set out in section 20 of the 1996 Act and section 16 of the 1995 Act. It should be noted that the agreement of the parties as to what constitutes proper provision is not an express factor listed in section 20(2) of the 1996 Act or section 16(2) of the 1995 Act. However, section 20(1) of the 1996 Act and section 16(1) of the 1995 mandates the court to consider "the circumstances" in determining proper provision. The support of the courts for inter partes compromise and the support of the courts and the Constitution for spousal autonomy is clear from the R. v M. decision [2023] IEHC 748 and from the dicta of Hogan J. in Gorry v. Minister for Justice and Equality [2017] IECA 282.
23. I do not consider that the "show cause" mechanism adequately reflects the Constitutional status of divorce applications in this jurisdiction and the Constitutional background in which litigation of the type under discussion herein is taking place. English authorities can be but of limited persuasion in this context. All relevant circumstances, of which the compromise is one (albeit an important one) together with the specific listed matters in sub-section (2) of section 20 of the 1996 Act (and section 16(2) of the 1995 Act) must be considered and the court addressed in relation to them. It remains open to a court where proceedings are litigated unreasonably or prolonged unnecessarily to reflect this in the context of costs.
WHAT REPRESENTATIONS/SUBMISSIONS WERE MADE TO THE COURT WHAT WAS THE LEGAL IMPACT OF THESE SUBMISSIONS?
24. I have considered in detail the exchanges between Counsel for the parties and the court in the afternoon of the 25th May 2025. It is my view that these exchanges cannot and ought not to be interpreted as having indicated that an unconditional settlement had been arrived at. It was clear that there was more to be done and these additional steps, according to what the court was told, would take some time and were not entirely simple in nature. When a period of one hour for this exercise was suggested, Counsel for the husband informed the Court that this was optimistic. It therefore seems to me that these submissions/representations cannot, in their totality, be viewed as informing the Court of an unconditional and finalise agreement but rather that significant steps along the route to compromise were in train subject to a further exercise which was likely to take some time which further exercise would, obviously, involve steps upon which the parties would have to reach agreement.
25. The court offered arrangements to rule the matter by 4.15 pm if ready at that time or, if not, the matter was to be adjourned to the following day at 11 am. This was not stated by either side to be an adjournment for ruling only but an adjournment simpliciter.
26. On the basis of these exchanges, I am not prepared to find a complete and unconditional settlement having been reached.
27. It is for the husband to determine whether he wishes to proffer evidence (none such having been heard by me so far) that there was a concluded agreement in all material respects and the terms thereof.
28. The matter is in the list to fix dates on Monday 19th May 2025. At that time, I direct that a two day hearing slot be provided for the matter. If the husband wishes to argue the settlement point (which, if successful, will then result in the court progressing to consider the issue of proper provision under the 1995/1996 Acts with the settlement being a "circumstance" under section 16(1) of the 1995 Act or section 20(1) of the 1996 Act) that can be done at that time. If this issue is being pursued, I will list the matter for case management and for directions in relation to pleadings/issue papers on the 28th May 2025 at 10.30 am or such other date convenient to the parties and their representatives, such case management date to be confirmed or an alternative fixed in the list to fix dates mentioned above. If such contention of concluded compromise is unsuccessful or if the husband determines not to proceed with the agreement issue, the substantive hearing may proceed in the normal way. I will hear argument and submission from the parties as to whether, following an unsuccessful outcome in relation to settlement, the substantive hearing must be or ought to be heard by another judge once the settlement issue, if pursued, has been determined.
CONCLUSION
29. Compromise of litigation may be orally agreed and often would be so agreed by way of example in the settlement of personal injuries cases. There is no legal requirement for these to be in written form or, indeed, signed by the parties. In so far as the Statute of Frauds (or equivalent) is concerned, I agree that compromise of matrimonial proceedings does not have to be broken down into the sum of its parts. Terms agreed by way of compromise may involve issues comprised within the statutory evidence categories but, in this context, they are but part of a totality of provision being proffered to the court as being proper.
30. While agreements in compromise of litigation can be oral, clearly the advisability of this diminishes the more complex the proceedings are and settlements in divorce or judicial separation are invariably most complex involving many different terms and aspects and involving a combination of matters which involve orders and settlement terms to be made a rule of court.
31. For there to be a binding agreement, there must in my view have been no conditionality to it or any further substantial or significant steps to be progressed or terms to be agreed (Delany and McGrath refer to a "complete and certain" agreement).
ANNEX "A"
25th March 2025 at 14.51 pm
Transcript
"ROR: Judge thank you for your patience I am happy to tell you that it has been successful and we have settled the matter it will take me about an hour
NEJ: Well that is good news ...
ROR: thank you Judge it will take and I thank Mr Fitzgerald for his sterling efforts I think it will take about an hour to write up it is actually on one level it is quite simple but because of the previous orders I will need to vacate and substitute and so on so just want to make sure that I get it absolutely right
NEJ: Absolutely
ROR: I've no difficulty if the court would prefer to take it tomorrow or whether it was happy to take it in say about an hour's time
CF: I think an hour may be an tiny bit optimistic it is not going to be that straight forward I'm just letting the court know
DISCUSSION WITH REGISTRAR ABOUT TIMINGS
ROR If we get to 3.45 and we're not getting ...
NEJ: I'll tell you what we will do what I suggest is that Ms Keenan will take a number and contact you at 3.45 for an update and if
ROR Fair enough
NEJ: If we are going to be in a position to do it by 4.15 we will do that and if not you can just tell Ms. Keenan and you need not come back, we'll just adjourn it to tomorrow morning so essentially you will either be back to rule it no later than 4.15 or if that is not on the cards you need not come back and [the Registrar] will put it in for tomorrow morning at 11o'clock without any other requirement - does that make sense?
ROR: thank you Judge, yes.
[Agreement also from CF]