Supreme Court of Ireland Decisions

T. (D.) v. T. (C.) [2002] IESC 68 (14 October 2002)

The Supreme Court

Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.

31/02

BETWEEN:

D. M. P. T.

APPLICANT

AND

C. T.

RESPONDENT

Judgments delivered by Keane C.J., Denham J. Murphy J. Murray J. and Fennelly J..

JUDGMENT delivered the 14th day of October, 2002 by Keane C.J.

Introduction

1. This is an appeal from a judgment and order of the High Court (Lavan J) in proceedings brought by the applicant under The Family Law (Divorce) Act 1996, hereafter "the 1996 Act").
2. The factual background is as follows. The applicant who, at the date of the hearing in the High Court, was aged 52, is a solicitor in practice in a country town. The respondent was aged 48 at the date of the hearing in the High Court and is a medical doctor by profession. The applicant and the respondent were married on the 20th March 1980 according to the rites of the Roman Catholic Church.
3. In the proceedings in the High Court, the applicant sought a decree of divorce pursuant to s.5(1) of the 1996 Act together with various ancillary orders. While the respondent opposed the granting of a divorce decree in the High Court on religious grounds, it is accepted on her behalf that the constitutional and legal preconditions to the granting of such a divorce have been met and there is, in the result, no appeal from the grant of a decree of divorce by the High Court.
4. The provisions of the order of the High Court which were the subject of the appeal to this court were the requirements that

(a) the applicant paid to the respondent a lump sum of £5 million and

(b) 55% of the benefits accrued to the applicant's Eagle Star policy No. 1855093 and to the applicant's Standard Life policy [Nos. specified] from the date of entry to each individual scheme to the date of the order be paid to the respondent.

5. The sum of £5 million was to be paid as follows:

(a) as to the sum of £1 million on or before the 31st December 2001;

(b) as to the sum of £2 million on or before the 30th September 2002 and;

(c) as to the remaining sum of £2 million on or before the 30th June 2003.

6. There are three children of the marriage who were born on the 21st April 1981, 5th August 1983 and 20th January 1989. Each of them is a dependent child within the meaning of the 1996 Act, but no issue arises in this appeal as to the provision being made for them by the applicant.
7. The evidence in the High Court established that the applicant had built up a lucrative practice and that, in addition, he had made shrewd investments in property in the area where he lived and in Dublin. While there was not complete agreement between the parties as to his financial worth, and it will be necessary to consider it in a little more detail at a later stage, it is sufficient to say at this point that it is in the order of at least £14 million. The respondent's assets were estimated to be worth in the region of £1 million.
8. The respondent obtained her primary medical degree at university in 1976 and thereafter held a number of junior hospital appointments until 1979. She subsequently worked as a locum general practitioner in a country area from July 1979 to September 1979. In October 1979, she pursued a postgraduate course in public health in University College Dublin qualifying in 1980 with a Diploma in Public Health. At the time of the marriage in 1980, she owned a four bedroomed semi-detached house with an attached single bedsitter in Rathfarnham, Dublin. That house was leased for a number of years and ultimately sold in 1984. The proceeds were used for the benefit of the family generally.
9. The applicant and the respondent began their married life in another town and in 1980, moved to the town where they lived together until 1994 when the applicant left the family home. The applicant built up his successful practice in the town and initially he carried on his practice from the house which they used as the family home.
10. At this stage, the respondent, who before meeting the applicant had intended to pursue a career as a general practitioner, changed her plans on assuming the responsibilities of marriage and a family and took up a post as an area medical officer for a health board. She resigned from that position on the birth of the youngest child in 1989 and thereafter worked part-time - not more than six hours a week - as a general practitioner between 1990 and 1998.
11. It is also not in dispute that for some years after they were first married the respondent acted as the applicant's unofficial receptionist, meeting clients and taking phone calls from them both before and after hours and at the weekends. She also did a typing course so as to save the applicant the expense of hiring a secretary at the outset. She furnished the offices from her own resources and cleaned it for many years.
12. The marriage is described by both parties as having been "turbulent" and the applicant has not denied the respondent's averment that, during the course of the marriage, he conducted a number of extra-marital affairs. The applicant at the time of the High Court hearing had been in a relationship for two years with a new partner who had recently given birth to their child. It was his intention to marry his partner on the court granting the decree of divorce.
13. At the time the applicant left the family home, he and the respondent continued to operate a joint bank account which the respondent drew on when necessary. That arrangement continued for eighteen months, at which stage the applicant closed the account and opened an account in the respondent's name. The applicant at present pays the respondent a sum of approximately £400.00 per week by way of maintenance of the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The High Court order provided for the payment by the applicant to the respondent of the sum of £800 in respect of the maintenance of the youngest child until he attained the age of 18 years and for the payment to continue while he was in third level education up to his attaining the age of 23 years.
14. When the applicant left the family home, which had previously been held in the joint names of himself and the respondent, he transferred his interest in it to the respondent. There were a number of valuable paintings and antiques in the house, some of which he left there. He also transferred to the respondent a house in the Sandymount area of Dublin. The applicant is now living in a house in the country near to the town where he practices and which he bought for approximately £140,500.00. It is on a farm of approximately 48 acres.
15. The applicant also owns other premises in the town where he carried on practice. He is also the owner of property in Dublin, consisting of a house in Ballsbridge, some apartments, and an office block. In addition, he has other assets, including shares in a number of companies. He estimated his taxable income from his practice as a solicitor for the year preceding the High Court hearing at £208,479.00. However, he is also in receipt of income from his other properties and interests and his total income was estimated by him in his affidavit of means in the High Court at £1,006,812.
16. The office block was purchased by the applicant in 1996, i.e., sometime after the breakdown of the marriage but before the hearing in the High Court, for the sum of £4,300,000. Its net valuation at the time of the hearing in the High Court, after deducting the cost of realisation, including capital gains tax, was £11,450,000. It represents a significant proportion of the assets of the applicant.
17. The respondent has been working as a sole general practitioner since November 1998, but says that she has found it extremely difficult to build up a practice. In 1998/99 she estimated her income from the practice at £7,223.00.

The High Court Judgment

18. The trial judge approached the case on the basis that provision should be made for the respondent solely by way of a lump sum, rather than by way of periodic payments or a combination of a lump sum and periodic payments. It is not disputed that, on the facts of the case, he was entitled to adopt that approach. It had been submitted on behalf of the respondent that the lump sum should be between one third and one half of the applicant's assets. On the basis that the total assets of the applicant were of the order of £15 million, it was submitted that the appropriate range of the order for provision should be between £4.4 million and £7 million. In the event, as already noted, the trial judge considered the appropriate sum to be £5 million, to be paid in instalments over a period of 18 months.
19. The respondent had also sought a pension adjustment order. The trial judge was of the view that, in the absence of any other factors, this should have been divided as to 49% to the applicant and 51% to the respondent. However, because he considered it appropriate to take into account the conduct of the applicant, he adjusted that apportionment to a finding of 45% to the applicant and 55% to the respondent.

Submissions on behalf of the parties

20. On behalf of the applicant, Mr. Michael Cush SC submitted that the High Court judgment was vitiated by a failure on the part of the trial judge to have sufficient regard to the following matters:

(1) the assets to which the parties were respectively entitled;

(2) the income of the respondent;

(3) the financial needs of the parties;

(4) the fact that a significant proportion of the applicant's assets i.e., the office block, amounting to approximately 80%, had been acquired by him after the separation;

(5) the fact that the applicant had transferred 30% of his assets to the respondent at the time the marriage broke down;

(7) the new relationship entered into by the applicant and the responsibilities which would result therefrom;

21. Mr. Cush further submitted that the trial judge had been in error in treating as applicable, as he apparently did, the approach adopted to cases of this nature - described in England as "big money cases" - in White -v- White [2000] 2FLR 981 and Cowan -v- Cowan [2001] 2FLR 982. He said that in English law the effect of a divorce was to achieve what is described as a "clean break" between the spouses but that, as had been made clear in the judgment of McGuinness J in this court in M.K -v S.K. [unreported; judgment delivered 6th November 2002], it was not possible to adopt that approach in Irish law. He submitted that, on the contrary, the Irish legislation was designed to allow a dependent spouse to be financially supported throughout his/her life by the other spouse. The trial judge had, in the result, been in error in not taking into account, when making provision of the order of £5 million for the respondent, that she would be entitled, so long as she remained unmarried, to return to the court to seek further maintenance or financial provision.
22. Mr. Cush further submitted that the trial judge had made no attempt in his judgment to indicate what weight he was attaching to the matters to which he was required to have regard under s.22 of the 1996 Act, including, in particular,

(a) the income, earning capacity, property and other financial resources of the respondent;

(b) the financial needs, obligations and responsibilities of each spouse;

(c) the age of each of the parties, the duration of their marriage and the length of time during which they lived with one another.

23. Mr. Cush further submitted that the trial judge was in error in treating the date of the hearing as the appropriate date for the purpose of valuing the assets of the parties, when he should have had regard to the assets held by the parties respectively at the time of the breakdown of the marriage. He submitted that this was of critical importance, given that 80% of the assets to which the applicant was now entitled had been acquired by him since the breakdown of the marriage.
24. As to the adjustment made by the trial judge to the pension entitlements in the light of the applicant's conduct, Mr. Cush submitted that the applicant's conduct during the marriage was not such as to render it "unjust" within the meaning of s.20(2)(i) of the 1996 Act to disregard it. He submitted that the appropriate test was that laid down by Lord Denning MR in Wachdel -v Wachdel [1973] 1All ER 829 where he said that only conduct which was "obvious and gross" was intended to be captured by such a provision.
25. On behalf of the respondent, Mr. Frank Clarke SC submitted that the trial judge was fully entitled to give considerable weight to the fact that not merely had the parties been married for a significant period but that, in the case of the respondent, these were years of primary importance to her, being the years in which her children were born and reared. He said that, in assessing the contributions which the parties had made to the marriage, the court was obliged to have regard to the fact that, on the unchallenged evidence in the case, the respondent had effectively abandoned any attempt to establish herself in a secure position in her chosen profession in order to concentrate on her marriage and family.
26. Mr. Clarke further submitted that the trial judge was correct in treating the English authorities as affording assistance in the construction of our legislative provisions. In this jurisdiction, as in England, in a "big money" or "ample resources" case such as the present, while equality in the division of the assets was not required, it was a yardstick against which it was appropriate to assess the contribution to be made by the spouse who, because of the manner in which the parties agreed to conduct their lives together, was endowed with significantly greater assets. In the present case, the respondent's relinquishing a full time medical career, and her commitment to her marriage and children, enabled the applicant to devote considerable energy and time to the development of his practice. This was properly reflected in the assessment of the lump sum. Similarly, in this jurisdiction, it was appropriate to have regard to the fact that the effect of the divorce was to deprive the respondent of the one third fixed share to which she would have been entitled in the applicant's estate in the event of his predeceasing her.
27. Mr. Clarke further submitted that, while the doctrine of the "clean break" did not apply in Ireland, in a case such as this where the resources were so ample as to render possible the provision of a relatively large sum, there was no reason to anticipate future applications on behalf of the respondent for maintenance or other support. The court was entitled to have regard to the fact that there was no order to make periodic payments and unlikely to be any such order in the future. He also said that, in view of the provision in the order for the payment of the lump sum in three instalments over a period of eighteen months, the actual lump sum being paid by the applicant, in terms of its present value, was £4.6 million.
28. As to the submission that the court should not have regard to so much of the applicant's wealth as was represented by the office block since it had been acquired after the breakdown of the marriage, Mr. Clarke submitted that the court was entitled to have regard to the fact that it was as a result of the profits generated by his practice that the applicant was in a position to make that investment and that, in turn, that reflected the respondent's committment to the marriage and the support she gave to the applicant in his career. He said that in any event, the language of s.20(2) and, in particular, the reference to property and other resources which a spouse "is likely to have in the forseeable future" made it clear that the court was not confined, in considering the provision to be made, to the assets as they existed at the time of the breakup of the marriage.

The Applicable Law

29. Article 41 of the Constitution, as amended by the 15th Amendment, provides that

"A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that -

i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii there is no reasonable prospect of a reconciliation between the spouses,

iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by la, and

iv any further conditions prescribed by law are complied with."

30. The statutory machinery is contained in the 1996 Act, s.5(1) of which provides, in language identical to that of Article 41, for the grant of a decree of divorce. Part III of the Act enables the court to make a variety of orders relating to the financial position of the spouses, including periodical payments and lump sum orders, property adjustment orders, financial compensation orders and pension adjustment orders. Section 20(1) then provides that, in determining the provisions of such orders,

"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."

31. Subsection (2) then provides that

without prejudice to the generality of s.s. (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,

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

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

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

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

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

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

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,

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

32. Subsection (3) requires the court, in making the orders concerned, to have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force. There is no such separation agreement in the present case.
33. Finally, s.20(5) provides that

"The court shall not make an order under a provision referred to s.s(1) unless it would be in the interests of justice to do so."

34. The 15th Amendment to the Constitution, which removed the prohibition on any law providing for the dissolution of a marriage and enabled the courts to grant decrees for the dissolution of marriages, was a change of far reaching importance. The Matrimonial Causes Act, 1857 which provided for the establishment of a divorce jurisdiction in England and Wales, did not apply to Ireland and, while there was no express prohibition on divorce in the Constitution of the Irish Free State equivalent to that in the present Constitution, the only manner in which a divorce could be obtained, in the absence of any legislation, was by the promotion of private bills. Since no standing orders were adopted enabling such legislation to be promoted, no divorce jurisdiction existed in Ireland until the passing of the 15th Amendment. That amendment and the 1996 Act fundamentally altered the nature of our law affecting marriage and the family.
35. There were two important features of this change in the law. First, it was now possible, where the constitutional and statutory preconditions for a divorce were met and a divorce granted, for the parties to remarry. Secondly, the court in granting such a divorce was required to ensure that such provision as it considered proper would be made for the spouses and any children of either or both of them.
36. The legislation which was enacted by the Oireachtas in this radically different context was clearly modelled to some extent on modern English divorce legislation. In particular, sub paragraphs (a) to (i) of s.20(2) of the 1996 Act correspond exactly to the provisions of s.25(2)(a) to (h) of the English Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984.
37. There is, however, an important difference. Section 25(A) of the English Act enables the court, when ordering periodical payments to be made or lump sums to be paid by either spouse to the other, to provide that the financial obligation of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable. In relation to such orders, accordingly, the English legislation embodies the "clean break" principle first laid down by the House of Lords in Minton -v- Minton [1979] AC 593.
38. No such provision appears in the 1996 Act. Moreover, under s.22, the court may, if it considers it proper to do so having regard to any change in circumstances or any new evidence inter alia vary or discharge the following orders referred to in s.22(1):-

"(b) a periodical payments order....

(d) a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires the payment of any such instalments to be secured..."

39. Lord Scarman in Minton -v- Minton said

"There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other - of equal importance - is the principle of the 'clean break'. The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down."

40. It is, of course, beyond argument that the Irish legislation precludes the courts from giving the same effect as does the English legislation to the "clean break" principle. In so providing, the Oireachtas was undoubtedly mindful of the express requirement in Article 41 that proper provision should be made for the spouses and their children. It was presumably considered that to include a "clean break" provision on the English model could expose dependent spouses to hardship in the future and that this would not be consistent with the constitutional protection which they were being afforded.
41. In this connection, it is of interest to note that, while expressing his concurrence with the "clean break" approach adopted in Minton -v- Minton, Lord Fraser of Tullybelton gave this warning:

"I respectfully agree that there are great advantages in the finality of a 'clean break'. But it is easy to envisage an exceptional case in which a totally unforeseeable change in the circumstances of one of the former spouses occurs soon after a final court order has been made disposing of the financial issues between them. Such a change might render the order so inappropriate as to appear harsh and unjust. The change might be for better, as by unexpected inheritance of property, or for worse, as by a sudden serious illness. To cover such exceptional cases it would, in my view, be desirable that the jurisdiction of the court to vary any order should invariably be preserved as a matter of general law."

42. It seems to me, that, unless the courts are precluded from so holding by the express terms of the Constitution and the relevant statutes, Irish law should be capable of accommodating those aspects of the "clean break" approach which are clearly beneficial. As Denham J observed in F -v- F (Judicial Separation) [1995] 2IR 354, certainty and finality can be as important in this as in other areas of the law. Undoubtedly, in some cases finality is not possible and thus the legislation expressly provides for the variation of custody and access orders and of the level of maintenance payments. I do not believe that the Oireachtas, in declining to adopt the "clean break" approach to the extent favoured in England, intended that the courts should be obliged to abandon any possibility of achieving certainty and finality and of encouraging the avoidance of further litigation between the parties.
43. In this context, I would respectfully disagree with the view of McGuinness J on this in D (J) -v- D (D) [1998] FLJ 17 where, speaking as a High Court judge, having referred to the observations of Denham J to which I have already referred, she commented

"It appears to me that by the subsequent enactment of the Family Law Act 1995 and the Family Law (Divorce) Act 1996 the Oireachtas has made it clear that a 'clean break' situation is not to be sought and that, if anything, financial finality is virtually to be prevented .... The court, in making virtually any order in regard to finance and property on the breakdown of a marriage, is faced with the situation where finality is not and never can be achieved. This also appears to mean that no agreement on property between the parties can be completely final, since such finality would be contrary to the policy and provisions of the legislation.

"The statutory policy is, therefore, totally opposed to the concept of the 'clean break'. This policy is not only clear on the face of the statutes but was most widely discussed, referred to and advocated in the considerable debate that surrounded the enactment of divorce legislation."

44. I am satisfied that, while the Irish legislation is careful to avoid going as far as the English legislation in adopting the "clean break" approach, not least because of the constitutional constraints, it is not correct to say that the legislation goes so far as virtually to prevent financial finality. On no view could such an outcome be regarded as desirable and I am satisfied that it is most emphatically not mandated by the legislation under consideration.
45. While s.20(2) 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 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 he or she considers a just resolution in all the circumstances. While an appellate court will inevitably endeavour, so far as it can, to ensure consistency in the approach of trial judges, it is also bound to give reasonable latitude to the trial judge in the exercise of that discretion.
46. Some principles which are to be applied in the exercise of the discretion are beyond dispute. As Lord Hoffmann said of the corresponding English legislation in Piglowski -v- Piglowski [1999] 1 WLR 1360, it establishes no hierarchy of factors. In what is probably still the typical Irish case, where one or both parties are in receipt of income, but their joint assets are not of such significant value as is the case here, the first task of the court will almost certainly be to consider what the financial needs of the spouses and the dependant 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.

It is, of course, the case that the 1996 Act does not require the assets of the spouses to be divided between them and the dependant children in every case. There will undoubtedly 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 such as the present where there are substantial assets which have admittedly been brought into being in circumstances where it would be unjust not to effect some form of division between the parties, the court will inevitably find itself having to determine, where the parties are unable to agree, how the assets should be divided between them and whether that division should take the form of a lump sum order or a property adjustment order.

47. In Irish society today, it can no longer be assumed that the husband and wife 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(f), the court must have regard to that as a relevant factor. Moreover - and this is of particular significance in the present case - the court is obliged by virtue of subparagraph (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.
48. Other factors which bulk large in the present case and 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. The conduct of the parties will also be relevant where, in the opinion of the court, it would be unjust to disregard it and, as already noted, this played a part, albeit a relatively minor one, in the trial judge's determination in the present case. Ultimately, however, when all these factors have been assessed by the trial judge, he or she must be satisfied that any financial orders which he may make as a result under Part III constitute proper provision for each of the spouses, and the dependent children, within the meaning of the Constitution and the 1996 Act.
49. In the present case, as already noted, the trial judge was invited by counsel for the respondent to treat the appropriate range within which a lump sum in favour of the wife should be assessed as between one third and one half of the net assets. Assuming for the moment - and there was some disagreement as to the figures - that this suggested a lump sum of somewhere between £4.4 million and £7 million, it was submitted in this court that the figure ultimately arrived at by the trial judge was significantly closer to the lower end of the range. Counsel for the applicant in this court argued that neither the Irish nor the English authorities rendered that approach legitimate.
50. The Irish authorities - McA -v- McA [2000] 1 IR457, D -v- D, and MK -v- SK (Supreme Court; unreported; Judgment delivered 6th November 2001) turn largely on their particular facts and do not give any express guidance as to the issue to which I have just referred. In what have come to be known, somewhat unattractively, as "big money" cases, and which I would prefer to categorise, as counsel for the respondent suggested, as "ample resources" cases, there are some observations by the English courts as to the relationship, in those cases, between the division actually effected of the assets and a division of the assets on the basis of equality. Those decisions did not afford any guidance, however, to whether the suggested lower level - i.e., one third of the net assets - is a relevant consideration, since there is no equivalent in that jurisdiction to the fixed share provisions of the Succession Act 1965.
51. In the first of the English decisions, White -v- White, the House of Lords rejected an approach which had found favour in earlier decisions of the Court of Appeal, i.e., that the "reasonable requirements" of both spouses was a determinant factor in arriving at a just result in such cases. It has not been suggested in this case that the position is any different under our legislation. It was, however, urged on behalf of the applicant that the court should not adopt the approach proposed by the House of Lords in that case to the concept of equality in the distribution of assets.
52. That approach is explained as follows by Lord Nicholls of Birkenhead:

"Sometimes, having carried out the statutory exercise, the judge's conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.

"This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by parliament 30 years ago, enabled the courts to recognise and respond to developments of this sort."

53. He also, however, rejected in that case an invitation to enunciate a principle that, in every case, the "starting point" in relation to a division of the assets of the husband and wife should be equality.
54. Despite that caveat, the passage in question might be construed as resting on the assumption that, 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. As I have already indicated, such an approach could not be adopted in this jurisdiction, where the appropriate criterion is the making of proper provision for the parties concerned. But it by no means follows that what is referred to as "the yardstick of equality of division" is, in every case and for all purposes, irrelevant. To take an extreme example, had the respondent in this case been awarded more than half the assets of the applicant and appealed to this court on the ground that this was not proper provision, the yardstick of equality would certainly have been a relevant consideration. The age old maxim, "equality is equity", may have only the most limited of applications in the complex exercise which the court of first instance is obliged to undertake in a case such as the present: that is not to say that it has disappeared completely from the picture.
55. Lord Nicholls, in the course of his speech, also emphasised that the whole tenor of the 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". There can be no doubt that this is also the law in this jurisdiction.
56. The Court of Appeal returned to the somewhat more problematic question of equality of division in Cowan -v- Cowan. In that case - also an "ample resources" case - it was claimed on behalf of the wife that she was entitled to equality when the assets were being divided. That claim was rejected by the Court of Appeal, on the basis of White -v- White, but the share of the wife was increased from what was regarded as an inadequate provision by the trial judge to one representing 38% of the assets. Thorpe LJ summarised his understanding of the consequences of the decision in White -v- White as follows:

"Disapproved is any discriminatory appraisal of the traditional role of the woman as home maker 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."

57. 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, I think there should be no difficulty in adopting a broadly similar approach in this jurisdiction. It is sufficient to say, by way of qualification, that the cross-check to which he refers may not be necessary in every case of "ample resources".
58. The use of the one third share of the estate to which the respondent would otherwise have been entitled under the Succession Act as a yardstick is more questionable. Such an inheritance depends on the contingency of the applicant predeceasing the respondent and, in the normal course, would, in any event, be deferred for many years. The Irish courts, however, dating from times when family law cases were far less frequent and complex, traditionally approached the assessment of maintenance on the basis that, all things being equal, the amount of maintenance should be one third of the disposable income of the earning partner, then almost invariably the husband. To that limited extent, the court might be justified in treating, in "ample resources" cases, one third of the net assets as a yardstick at the lower end of the scale.
59. The next question that arises is as to the time at which the assets should be valued. That is of considerable importance in the present case, given that the office block, which constitutes so significant a proportion of the applicant's assets, was acquired after the breakdown of the marriage.
60. 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" seems to me to be more consistent with an assessment by the court of the value of those assets as of the date of the hearing. Any other construction, moreover, would seem to give rise to the possibility of injustice to either party. Thus, if the office block had been acquired by the applicant immediately before the breakdown of the marriage and the property market had collapsed between its acquisition and the date of the hearing in the High Court, it would seem singularly unfair to him that the value of his assets should be ascertained by reference to the position as of the date of the breakdown. That was also the view taken by the Court of Appeal in Cowan -v- Cowan. Thorpe LJ said:

"[the submission] that much of the husband's fortune was generated in the 6 years post separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party had deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife's unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife's share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor had any relevance it is within the evaluation of the husband's exceptional contribution."

61. I would adopt that as a correct statement of the law in this jurisdiction.
62. Finally, there is the question as to when it would be "unjust" within the meaning of s.20(1)(i) to disregard the conduct of each of the spouses.
63. In Wachdel -v- Wachdel [1973] 1 All ER 829, Lord Denning MR said

"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 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."

64. The Master of the Rolls was speaking at a time when there was no statutory equivalent in England to s.20(2)(i). The law was altered in 1984 so as to require the court to have regard to the conduct of each of the parties where it would be, in the opinion of the court, "inequitable" to disregard it. It would appear, according to the statement of the law in Bromley on Family Law (7th Edition) p.841 that there has been no change in the practice as a result.
65. I would agree with the view expressed in Wachdel -v- Wachdel that the court should not reduce the financial provision which it would otherwise make to one of the parties save in cases where the misconduct has been, as the Master of the Rolls put it, "obvious and gross". The same approach should logically be adopted to a proposed increase in the level of financial support because of the suggested misconduct.

Conclusions

66. While the judgment of the trial judge was criticised in the written submissions on behalf of the applicant because, as it was said, he had erroneously described the applicant's assets as being in the region of £20 million, it is clear, from the analysis of his judgment already conducted, that the sum which he ultimately arrived at was calculated by reference to the net disposable assets. While there was some disagreement between the parties as to the precise extent of those assets, it was accepted on behalf of the respondent that they should be ascertained by deducting from the net assets (i.e., the gross assets less any liabilities) the costs, including capital gains tax, which would be incurred by the applicant in disposing of any of them. While there was some disagreement between the parties as to the resultant figure, which mainly concerned the question as to whether the applicant's practice as a solicitor could be regarded as a disposable asset and the value that should be attached to the paintings and the furniture, it seems clear that the minimum figure was in the region of £14 million. Since counsel for the respondent is clearly correct in his submission that the lump sum of £5 million awarded by the trial judge must, in relation to the net disposable assets of £14 million, be treated as having a present value of £4.6 million, given that it was to be paid by instalments over 18 months, it follows that the effect of the trial judge's order is to transfer to the respondent 38% of the net disposable assets, while making no provision for periodic payments.
67. In determining whether that was a reasonable exercise by the trial judge of the range of discretion which he was clearly invested with under the legislation, two factors are, in my view, of critical importance.
68. In the first place, it was clearly open to the trial judge to infer from the evidence, as he did, that, in this case, the respondent had effectively relinquished the possibility of establishing herself to a significant degree in her chosen profession in order to concentrate on her role in the home. At the time she married the applicant, she had received both her primary medical degree and also specialist postgraduate qualifications and would undoubtedly have gone on to establish herself as a general practitioner. Although she did not sever her links with the practice of medicine completely at any stage, she undoubtedly gave up the opportunities that the practice of medicine would have afforded her both in terms of income and of personal fulfilment. The court was required to have regard both to this factor and the actual contribution made by her to the marriage and the home. While, on the other side of the scales, the court was required to have regard to the energy and hard work of the applicant which has resulted in the family as a whole enjoying a standard of living far above the expectations of the average person, it also has to be acknowledged that, once he had become married and started a family, this would have been far more difficult for him to achieve without the commitment of the respondent to the home and the family.
69. The second important factor is the relative financial positions of the parties if the provision made by the trial judge is upheld. The applicant will be left with assets in the order of £9.4 million and an income of approximately £210,000. The wife will have assets of approximately £5.6, but her income will be more problematic. As the children of the marriage will be increasingly less in need of her active presence and support, she will be correspondingly free to concentrate on the demands of her professional life. She is, however, re-entering the profession on a full time basis at, in modern terms, a relatively late stage in her life and, in the result, may find it more difficult to generate the sort of income that might otherwise have been available to her. The large capital sum which she was awarded in the High Court should be seen in that context, although, properly managed and invested, it will undoubtedly give her financial security for the rest of her life.
70. It has not been suggested that the trial judge erred in principle in deciding to approach this case on the basis of the payment of a lump sum to the respondent without any provision for periodic payments by way of maintenance. In this context, it would appear that, having regard to the provisions of s.22 of the 1996 Act, neither party will be entitled to a variation of the amount of the lump sum itself, even should circumstances change: the extent of the permitted variation under s.22(1)(d) would appear to be as to the payment of the sum by instalments. Similarly, it will not be possible for the court on the application of the respondent to provide for a periodic sum by way of maintenance, since the power of the court under s.22(2) is confined to varying or discharging an order for periodic payments already made. However, since the case was not approached on that basis either in the High Court or this court, I would also approach it on the basis that, whether or not it is permissible, it is unlikely in the extreme that a court in the future would order the payment of an increased lump sum or payment by way of maintenance. To that extent, the approach of the trial judge appears to have been to have effected a "clean break" between the parties in financial terms insofar as that is permissible having regard to the constitutional and legal provisions; and, given the desirability of avoiding future litigation between spouses whose marriages have irretrievably broken down, I have no doubt that this was the correct approach for him to have adopted.
71. As I have already indicated, I am also satisfied that the trial judge was correct in the approach he adopted of ascertaining the value of the assets as of the date of the trial rather than the time when the marriage broke down.
72. I am further satisfied that, applying the legal principles which I have endeavoured to set out, the trial judge was entitled to exercise his discretion in the manner which he did by awarding the respondent a lump sum of £5 million to be paid in instalments over an 18 month period.
73. There remains the finding by the trial judge as to the pension adjustment order. In my view, applying the legal principles already referred to, I do not think that he was entitled to alter the division which he had considered appropriate of 49% to the applicant and 51% to the respondent. In my view, the misconduct as found by him was not so gross or obvious as to warrant the setting aside of that division and the substitution therefore of the division of 45% to the applicant and 55% to the respondent.
74. In the result, I would dismiss the appeal and affirm the order of the learned High Court judge save to the extent indicated in the preceding paragraph.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Fennelly J.

Appeal No. 031/2002

Record No. 2000/30M

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN/

D.T.

APPLICANT/APPELLANT

and

C.T.

RESPONDENT

Judgment delivered on 14^th October, 2002 by Denham J.

1. Issues

75. This case raises for consideration and decision issues relating to the payment of a lump sum as part of the reliefs available under the Family Law (Divorce) Act, 1996 and a pension adjustment order. While there were proceedings between the parties as to divorce, judicial separation and access to children the kernel of this appeal relates to financial ancillary orders.

2. Appeal

76. This is an appeal by D.T., the applicant/appellant, (hereinafter referred to as "the applicant") from the judgment of the High Court (Lavan J.) delivered on the 28^th November, 2001 and from the order made on the 6^th December, 2001.

3. Facts

77. The learned High Court judge found the following facts, which are not in dispute. The applicant was born in 1949 and the respondent in 1952. The parties were married in 1980 according to the rites of the Roman Catholic Church. The applicant sought a decree of divorce and various ancillary orders. The respondent accepted that the grounds established in constitutional and statutory law for divorce existed but counterclaimed for a judicial separation; she made it clear that she did not wish to be divorced. The respondent sought financial orders, including a lump sum order. The learned trial judge described the background facts as follows:

"The applicant and respondent were married on the 29^th March, 1980. They have three dependent children of the marriage. The applicant is a solicitor by profession while the respondent is a medical doctor, working as a general practitioner.

Shortly after their marriage in 1980, the parties moved into a house in . . .. At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the respondent worked in the applicant's practice. The respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the applicant subsequently moved to his present offices in about 1983, the respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.

Their relationship was very turbulent and there were many arguments between the parties, which at times resulted in the applicant leaving the family home and staying overnight elsewhere. Shortly after the parties' youngest child was born in January, 1989, the parties began to occupy separate bedrooms.

The applicant left the family home in August, 1994. The respondent and the children had gone for a week's holidays, having no idea of the applicant's plans. On their return they discovered that the applicant had left the family home and all his possessions had been removed. On his departure from the family home the applicant took up residence in another one of his properties. There is no reasonable prospect of a reconciliation between the parties.

It is the respondent's belief that the applicant has been unfaithful throughout their marriage. In particular, she believes that at the time the applicant vacated the family home he was involved with a woman some twenty years his junior.

The applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the applicant's intention to marry his partner on the court granting a decree of divorce herein.

Both parties disagree as to the level of financial adjustments to be made between them. When the applicant initially left the family home the parties continued to operate a joint account which the respondent drew on when necessary. This arrangement continued for 18 months upon which time the applicant unexpectedly closed the account and opened an account in the respondent's name. The applicant currently pays the respondent a sum of approximately £400 per week by way of maintenance for the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The applicant's total net assets are somewhere in the region of £20 million, the majority of which come from property. The respondent's assets in comparison stand at around £1 million.

The respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The respondent re-entered part-time general practice in 1991 on a very limited basis. Between 1990 and 1998 the respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.

The respondent's work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the respondent and she feels that it is not in her children's interest that she continues working at this frantic level. Accordingly, she is anxious that lump sum provision be made in order to secure her own and her children's future."

4. High Court Order

78. On the 6^th December, 2001 the High Court ordered as follows:

". . . being satisfied with regard to the requirements of section 5(1) of the Family Law (Divorce) Act, 1996, the Court doth grant a decree of divorce in respect of the marriage solemnised in . . .1980 between the applicant and the respondent herein.

and it is ordered -

. . .

3 that the applicant do pay to the respondent the sum of £800 per month for maintenance of the said D until the said D attains the age of 18 years and that the said payment do continue thereafter while the said D is in third level education up to his attaining the age of 23 years;

4. that the applicant do pay to the respondent a lump sum of

£5 million in the following fashion, that is to say:

a. as to a sum of £1 million thereof on or before the 31^st day of December, 2001;

b. as to a sum of £2 million thereof on or before the 30^th day of September, 2002; and

c. as to the remaining sum of £2 million thereof on or before the 30^th day of June, 2003;

5. that the respondent do have the right to occupy for life the family home situate at . . . to the exclusion of the applicant;

6. that the consent of the applicant to convey any interest in the said family home be and same is hereby dispensed with;

7. that 55% of the benefits accrued to the applicant's . . Policy No. . . and to the applicant's . . Policy Nos. . . from the date of entry to each individual scheme to the date hereof be paid to the respondent . . ."

5. Notice of Appeal

79. Against the High Court judgment and order the applicant appealed. There were a number of fundamental grounds of appeal: (a) that there was error in fact and law by the learned High Court judge in complying with the terms of s. 20(2) and its subsections; (b) that no proper regard was taken of the provision made on the commencement of the parties living apart; (c) that the finding of the net worth of the applicant was £20 million was unsupported by evidence; (d) that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal; (e) that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately; (f) that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each, and as to the principles to be applied in making "proper provision"; and (g) that the order to make a lump sum payment of £5 million to the respondent was a disproportionate and excessive distribution of the applicant's assets.

6. Submissions on behalf of the Applicant

80. In essence counsel for the applicant addressed five issues. He submitted that:

(a) the learned trial judge failed to identify correctly the assets of the applicant and the respondent when considering the lump sum;

(b) the learned trial judge failed to have appropriate regard to the income and earning capacity of the respondent;

(c) the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant;

(d) the learned trial judge failed to have regard to the percentage of the applicant's assets which he acquired after the parties separated and to the contribution made by the applicant to the respondent at the time of their separation; and

(e) the learned trial judge erred in his approach to the conduct of the applicant.

81. Counsel for the applicant submitted that there were six matters which indicated that the respondent should receive a lump sum of less than £5 million. These were:

(i) that there is no finality in this jurisdiction, that the respondent could return to court at any time;

(ii) that the respondent has income and earning capacity of her own;

(iii) that at the time of the separation the applicant transferred assets of approximately £1.5 million to the respondent being approximately one third of his assets;

(iv) that 80% of the applicant's assets were acquired in two years after the separation;

(v) that the respondent does not have exceptional needs; that the children are substantially provided for or provided for by the applicant; that the applicant has new obligations; and

(vi) that the standard of living of the respondent prior to the separation can be achieved by a sum of less than £5 million.

82. Counsel for the applicant submitted that the learned trial judge failed to have proper account of these six matters.

7. Submissions on behalf of the Respondent

83. On behalf of the respondent it was accepted that the evidence established that the requisite period of separation and the irreconcilable nature of the relations between the parties were such as to satisfy the constitutional and statutory test for the granting of a decree of divorce. The issues on the appeal concerned only the financial arrangements. It was submitted that the court must be satisfied that proper provision is made for the respondent and the children. It was submitted that the test, the approach of the court to financial orders, should be as follows:

(a) the court should apply the statutory criteria set out in section 20;

(b) in evaluating the contributions of both parties to the welfare of the family [in accordance with subs. (2)(f)] the traditional role of women in the home should not be valued lower than the role of the breadwinner, for to do so would be to discriminate;

(c) the assessment of assets should be at the date of trial, save where there was deliberate or reckless wasting of assets;

(d) there is necessarily an interaction between the various financial orders that may be made so that if the court is to make no, or a very low, maintenance order in favour of a spouse, then that must be reflected in a correspondingly high award of a lump sum.

8. The Constitution

84. The Constitution of Ireland, 1937 provides for divorce. Article 41.3.2 of the
85. Constitution provides that:

"A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that,

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or period amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of a reconciliation between the spouses,

iii. such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with."

9. Statute Law

86. The Family Law (Divorce) Act, 1996, (hereinafter referred to as "the Act of 1996")
87. provides for divorce. The long title to the Act states that it is "an Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce, to enable the courts to make certain preliminary and ancillary orders in or after proceedings for divorce, to provide, as respects transfers of property of divorced spouses, for their exemption from, or for the abatement of, certain taxes (including stamp duty), and to provide for related matters."
88. Part II of the Act of 1996 is relevant, especially s. 5 which provides:

"S. 5(1) Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that

(a) at the date of the institution of the proceedings the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years.

(b) there is no reasonable prospect of a reconciliation between the spouses and

(c) such provision as the court considers proper having regard to the circumstances exists or would be made for the spouses and any dependent members of the family,

the court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned"

89. Section 20 of the Act of 1996 sets out the criteria relating to the making of a financial ancillary relief order. Under s. 20 the court, in deciding whether to make an order under ss. 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such order, shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned. Without prejudice to the generality of subs. (1) in deciding whether to make such an order, and in determining the provisions of such an order, the court shall in particular have regard to certain matters. The matters are set out in the subsections. The wording of s. 20 is as follows:

"(1) In deciding whether to make an order under section 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.

(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,

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

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

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

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

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

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

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,

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

(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

(4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:

(a) the financial needs of the member,

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

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

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

(e) the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,

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

(g) the accommodation needs of the member.

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

10. Proper Provision

90. The Constitution and the law require that proper provision be made having regard to the circumstances for the spouses and any dependent member of the family. In determining the proper provision it is mandatory for the court to have regard in particular to the factors set out in s. 20(2)(a) to (l) of the Act of 1996. The relevance and weight of each of the factors will depend on the circumstances of each case.
91. In this case the learned trial judge, in relation to a number of the factors, stated that he had regard to the provisions, or that he had taken them into account. Better practice would be to consider all the circumstances and each particular factor ad seriatim and give reasons for their relative weight in the case.
92. The wording of the law and Constitution relates to 'proper provision'. It is a proper provision based on the constitutional and statutory recognition of the family. The special place of the family and of family duties are recognised. In assessing the 'proper provision' under Article 41.32 the court must look at both aspects of a spouse's role in the family, 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) of the Act of 1996. 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) of the Act of 1996. 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.
93. 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. This is consistent with the express recognition within the Constitution of the work done by the women in the home. Article 41.2 provides:

"1. In particular, the State recognises that by her life within the home woman gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home."

94. This Article expresses an important fundamental principle underlying the constitutional family in Ireland. I referred to this Article of the Constitution in Sinnott v Minister for Education [2001] 2 IR 545 at p. 662 to 665.
95. In this case the learned trial judge assessed correctly the family role of the respondent and gave a significant weighting for her time spent in 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.

11. A "clean break" principle

96. A "clean break" principle may be found in the law as to financial orders relating to divorce in other jurisdictions. However, such a provision is not part of the Irish Constitution or legislation. There is no provision providing for a single payment to a spouse to meet all financial obligations. Rather the fundamental principle is one of "proper provision". However, the absence of a 'clean break' principle does not exclude a lump sum order. 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.

12. A lump sum order

97. 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. A lump sum may be part of the proper provision for a spouse. Once such an order is made it becomes part of the circumstances of the family. If any further application were to be made to court such a previous order would be relevant as having been an order that the court considered proper having regard to the circumstances. The fact that such a lump sum order may exclude or greatly limit any further financial order by a court does not make the provision improper or the order unfair. The underlying principle of the Act of 1996 is fairness. As s. 20(5) provides:

"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."

98. This concept of justice, fairness, applies to both spouses. A lump sum arrangement may bring a fair financial decision and certainty to the financial affairs of the family. In this case both parties sought a lump sum order, at issue was the amount.

13. Assessment of Assets

(i) Date

99. The learned trial judge held that the assessment of assets must be as of the date of trial or the appeal. I would affirm and uphold this finding. It 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 . . .". It is noteworthy that the statute is framed in this manner given that the scheme under the Constitution and the legislation requires separation prior to the proceedings. Thus the ordinary meaning of the words make it clear that assessment is as of the date of trial. 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. It may impact on the particular factors stated in s. 20(2)(a) – (l) of the Act of 1996, it may be relevant to the generality of the provision, or it may impact on the fairness of the provision. Thus, 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.

(ii) Not division

100. The scheme established under the Act of 1996 is not a division of property. The scheme established under the Act of 1906 provides for proper provision, not division. It is not a question of dividing the assets at the trial on a percentage or equal basis. However, all the circumstances of the family, including the particular factors referred to in s. 20(2) of the Act of 1996, are relevant in assessing the matter of provision from the assets.
101. The assets in this case acquired post separation by the applicant are property and he has benefited from the great increase in property prices. However, the funding of this property was assisted by his legal practice, which in itself (a) had benefited directly from the work of the respondent by her work as receptionist, cleaner, etc. on occasions, as found by the High Court, and (b) had benefited indirectly by her as the home maker leaving the applicant free to grow the practice. Consequently, such property falls for inclusion under several heads of s. 20 of the Act of 1996.
102. In this case the applicant did acquire considerable property after the spouses separated and before the trial date. However, the acquisition of the property was not unconnected with his solicitor's practice. The significant role of the respondent in the development of that practice was established before and determined by the learned trial judge. The increased assets of the applicant had a direct link with the input of the respondent in growing the practice, which itself could be said to be a basis for the property acquisition. I am satisfied that the learned trial judge was correct in applying these and other factors so as to include all the applicant's assets in determining the proper provision of the respondent and the situation of the applicant.
103. 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) – (l) must be applied it may affect the benchmarking of fairness.

(iii) Benchmark

104. Irish law on divorce does not provide for property division. Indeed it is irrelevant in very many cases where there is not enough money for two homes where one had existed and where lack of money is a severe concern and limiting factor for both spouses and children. In cases of ample provision, such as this, the sums involve more than essentials. Each case must be decided on its own circumstances. However, there are relevant fundamental legal principles – such as to recognition of spouses' work in the home – as to spouses' rights under the Succession Act – as to the place of the family in our society. Consequently, I agree with the Chief Justice that a figure of one third of the assets may be a useful benchmark to fairness. Against that bench may be aligned, both positively and negatively, the specific circumstances of a case, and in particular the factors set out in s. 20(2)(a) – (l) of the Act of 1996.
105. The concept of one third as a check on fairness may well be useful in some cases, however it may have no application in many cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means if, for example, such a sum could only be achieved by a sale of assets which would destroy a business, or the future income of a party or parties, or if it related to property brought solely by one party to the marriage, or any other relevant circumstance. It may not be applicable to a situation where a party has wealth from his or her own endeavours to which the other party has no claim except under the factors set out in s. 20(2)(a) – (l) of the Act of 1966.

(iv) Value of assets

106. There were some inconsistencies between the figures found in the judgment of the learned trial judge and the evidence as to the assessment of the assets of the applicant. I am satisfied that the figure of £20 million was incorrect. This was accepted by both sets of counsel. Counsel for the applicant made the case that the net assets of the applicant were approximately £14 million. Counsel for the respondent put the figure nearer to £15 million. Similarly, there was disagreement as to the respondent's net assets. Counsel for the applicant placed them nearer to £1.5m while counsel for the respondent placed them at a slightly lower figure. However, within these broad parameters there was agreement. Counsel did not seek a retrial. Counsel sought finality in this case.
107. The finding of the net worth of the applicant to be £20 million was unsupported by evidence. In light of the variation between the evidence given in the High Court and the findings of the High Court, applying Hay v O'Grady [1992] 1 I.R. 210, I am satisfied that it is appropriate to determine the facts on the evidence given. I am satisfied that this is a decision within the principles of Hay v O'Grady, taking into consideration also that both parties urged determination of the matter, to reach finality in the case, and to find the fair conclusion. On the evidence I am satisfied that the appropriate figures are that the applicant had an estate of approximately £14.5 million and the respondent had an estate of just over £1 million at the date of trial.

(v) Lump sum of £4.6 million

108. In this case, because of the scheme of payment ordered, the lump sum is worth £4.6 million approximately. I would not interfere with the exercise of discretion by the learned High Court judge in making this determination. There is no maintenance order for the respondent. In its place is an additional capital sum to give security to the respondent, which is not unreasonable in the circumstances. As the right of succession is being given up it is legitimate not only to have that as a factor in mind, but also to consider the fact that it is legitimate for a spouse to have some independent estate to leave to her children. This is so especially if there are children existing or potential in a subsequent marriage of one spouse.

(vi) Earning capacity of respondent

109. It was submitted that proper regard had not been given to the income of the respondent. It is clear from the facts found by the High Court that the learned trial judge carefully considered her professional and work life in the past, present and the future. Clearly it was very limited work while she was the home and child carer. Her move back to work in her forties was analysed. This work involves a limited income. The limitation was found to be because of her prior and present home circumstances. The learned trial judge made a clear determination of the facts, grounded on the evidence. As to the precise future income of the respondent, I am satisfied that the learned trial judge did not fail to have regard to either the income or earning capacity of the respondent. However, it would be of assistance if such factors are considered in an express manner and reasons for decisions given.

(vii) Financial needs of the applicant

110. Counsel for the applicant submitted that the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant. However, I am satisfied that this submission must fail. In fact, the learned trial judge considered the needs of both spouses. Recognition was given to the applicant's second family and the learned trial judge referred specifically to the presence of a child of the new family. I would not interfere with the exercise of the discretion of the learned trial judge. While it is better practice to consider more expressly the needs of the parties in the circumstances of this case I would not allow the appeal on this basis.
111. While the mandatory provisions of s. 20(2) must be considered, the weight to be given to the issue of needs may vary. In a case where money is tight 'needs' may weigh heavily. In a situation where ample resources are in issue a more detailed analysis of the 'needs' of the parties may not be necessary and may not be weighted too heavily. Thus in the situation where the applicant will leave the marriage with millions of pounds and his practice and the respondent will have millions of pounds and her work there are clearly ample resources to meet needs. There are no exceptional requirements in this case calling for special consideration.

(viii) Conduct

112. Counsel for the applicant submitted that the learned trial judge erred in his approach to the analysis of the conduct of the applicant. The learned High Court judge held at p. 22 to 23 of the transcript of the judgment:

"One outstanding matter that has given me much difficulty is the specific provision of s. 20(2)(1) of the Family Law (Divorce) Act, 1996. It seems to me on the evidence that I am obliged, in exercise of the discretion which undoubtedly arises, to take it into account. In doing so this creates a further difficulty, namely how to quantify it and in this regard I note that the particular provision does not offer any formula for its proper assessment. I note that McGuinness J. in her judgment and McCracken J. in his judgment did not deal with this aspect.

In these circumstances I propose, from a monetary point of view to deal with it by way of what I consider to be a proper adjustment of pension provisions in favour of the respondent.

. . .

In respect of the pension provisions as set out in the Delaney Bacon and Woodrow report dated the 10^th July, 2001, I would have been disposed to divide this to the applicant as to 49% and the respondent as to 51%. However, having regard to the view I have expressed as to the taking into account of s. 20(2)(1) of the aforesaid Act of 1996 I will in deference to my findings thereunder allow a finding of 45% to the applicant and 55% to the respondent."

113. The Act of 1996 makes provision for the court to have regard to the conduct of the parties. Specifically the Act states in s. 20(2that the court shall have regard inter alia to:

"(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."

114. The circumstances of this case include the facts leading to the breakdown of the marriage and the applicant's application for a divorce. These are part of the circumstances of the case. The facts as to the applicant's affairs and ultimate relationship and child outside marriage do not equate with a concept of 'conduct' set out in s. 20(2)(i), which has an element of penalty. It is unfortunate that the circumstances of the family are such as they are but the Act of 1996 does not seek to establish a fault system. Thus the concept of 'conduct' established by s. 20(2)(i) is of conduct which it would be unjust to disregard. There is little Irish law on the interpretation of such a factor. The law in England is a useful analogy. Specifically I refer to the description by Denning M.R. in Wachtel v Wachtel [1973] All E.R. 829 at p. 835 to 836 where he stated:

"There will no doubt be a residue of cases where the conduct of one of the parties is in the judge's words '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."

115. I adopt this description and apply it to the circumstances of this case.
116. The circumstances of this case are relevant to many of the factors set out in s. 20(2(a) – (l) of the Act of 1996. This includes the fact that the applicant left the home, and the fact that the applicant is in a second relationship with a child. These and other factors affect the proper provision for the spouses and dependent children of the family. These circumstances have been correctly taken into account in assessing the lump sum. However, I am satisfied that the learned trial judge erred in penalising the applicant by his pension adjustment order on the basis of the conduct of the applicant.

(ix) Conclusion

117. It was submitted that there was an error in fact and law by the learned trial judge in complying with s. 20(2) of the Act of 1996. The learned trial judge indicated that he was applying the provision of s. 20(2) of the Act of 1996. From the body of the judgment it is clear that he did analyse and apply the said provisions of s. 20(2) to the facts of this case. While it would be better practice to refer ad seriatim to each of the provisions of s. 20 and to give reasons for the relevance and weight of each subsection to the determination, in all the circumstances of the case I am satisfied that this ground of appeal fails. The discretion given by the legislature to the trial judge under this scheme is ample. In view of the submissions of counsel and the facts of the case I would not allow the appeal on this ground.
118. It was submitted that no proper regard was taken of the provision made on the commencement of the parties living apart. In assessing the assets and circumstances of the parties the situation on their separation was an integral part of the whole analysis. The determination made by the court was for the long term and without provision for maintenance for the respondent. A lump sum was sought by both parties. In light of the ample discretion vested in the trial judge, the circumstances of the case, the use of the lump sum as a provision, I would not interfere with the exercise of discretion by the learned trial judge.
119. The applicant submitted that the finding that the net worth of the applicant was £20m was unsupported by evidence. As indicated previously, I am satisfied that there was not evidence to support a finding that the applicant was worth £20m. There was a degree of confusion in the judgment as to this fact. As indicated above, on the evidence I am satisfied that the net worth of the applicant was approximately £15m. I would allow the appeal on this ground.
120. It was submitted that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal. For the reasons stated previously I would dismiss this ground of appeal.
121. It was submitted that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately. For the reasons stated herein I would dismiss this ground of appeal.
122. It was submitted that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each and as to the principles to be applied in making "proper provision". The discretion set out in s. 20(2) of the Act of 1996 is ample, and while it would be better practice to consider and determine ad seriatim with reasons each of the matters set out in the said s. 20(2), for the reasons given I would not interfere with the exercise of the discretion of the learned trial judge and I would dismiss this ground of appeal.
123. The applicant submitted that the order of a lump sum payment was disproportionate and excessive. For the reasons given I would dismiss this ground of appeal.
124. Having considered the appeal, and submissions, for the reasons stated, while not upholding all the reasoning of the High Court, I would uphold the provision for a lump sum as ordered (with the obvious need for variation in the dates).
125. However, for the reasons stated, I would allow the appeal in relation to the pension order. The appropriate order in relation the pension would be as prior to adjustment, that is 49% to the applicant and 51% to the respondent.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Fennelly J.

Appeal No 031/2002

Record No 2000/30M

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

Between:

D. T.

Applicant/Appellant

AND

C. T.

Respondent

Judgment of Mr Justice Francis D Murphy delivered the 14^th day of October , 2002

126. By order dated the 6th December, 2001, Mr. Justice Lavan granted a decree of divorce in respect of the marriage solemnised between the applicant and the respondent herein on the 29th March, 1980. In addition to ordering the payment of maintenance for the benefit of the two children of the marriage the order provided as follows:-

1. that the applicant should pay to the respondent a lump sum of £5,000,000 by instalments over a period of three years;

2. that the respondent should have the right to occupy for life the family home to the exclusion of the applicant;

3. that 55% of the benefits accrued under certain life insurance policies therein mentioned should be paid to the respondent;

4. that neither spouse should be entitled on the death of the other of them to apply for an order under s. 18(10) of the Family Law (Divorce) Act 1996;

5. that the applicant should pay to the respondent her costs of the proceedings when taxed and ascertained.

127. The reasons for the order aforesaid were set out in the judgment of the learned trial judge delivered on the 28th November, 2001. By notice of appeal dated the 8th February, 2002, the applicant has appealed to this Court against so much of the judgment and order aforesaid as:-

1 directed the applicant/appellant to pay to the respondent the sum of £5,000,000 by way of lump sum payment;

2 directed the making of the pension adjustment order in favour of the respondent;

3 awarded the costs of the proceedings to the respondent.

128. The applicant is 53 years of age. The respondent is four years his junior. They have three children only one of whom is dependent on them. The applicant is and has been a very successful solicitor and the respondent is a medical doctor. She has worked as a general practitioner but her commitment to the family has prevented her from exercising her professional qualifications to the full or expanding her practice to its probable potential. The applicant has - particularly in recent years - invested very substantially and successfully in property.
129. The applicant left the family home in August, 1994. The parties have lived apart since that time. The applicant is currently in a relationship with a new partner. It is agreed that there is no reasonable prospect of a reconciliation between the parties. It was in relation to the provision to be made for the respondent that the parties disagreed.
130. As at the date of the hearing in the High Court the combined wealth of the parties was very substantial indeed. It would appear from the documents exhibited in evidence that the total value of the assets of the applicant was not less than £15 million and that his income (before tax) from his practice as a solicitor in that year was £334,335. The assets of the respondent were valued at something under £1.25 million and her income from her profession as a doctor was in the order of £25,000 (again before tax). No precise analysis appears to have been made of the income and assets of the parties as of August, 1994 but it must have been very substantially less than it was to become six years later. Almost certainly the assets of the applicant were less than £2 million and his professional gross income under £150,000. I infer that the assets and income of the respondent, at that stage, were not such as would have materially affected the standard of living of the parties even if the recommencement in 1991 by the respondent of her professional practice did give her a measure of independence and possible future security.
131. If great wealth can solve some problems, it can create others. If there is validity in the distinction between routine divorce cases and what has been described as "big money" cases the present matter undoubtedly falls into the latter category. However, even within that category it might have been expected that the legal and constitutional rights of the parties could be met by the type of analysis of fact and finance such as was undertaken by McCracken J. in Mc A .v. Mc A [2001] 1 I.R. 457. In that case, however, McCracken J. was not called upon to decide any significant point of law in relation to the financial provisions which he was required to make or approve. The judgment – what I think may be described as the revolutionary judgment – of the House of Lords in White .v. White [2001] 1 AC 596 was not delivered until some nine months after the decision in the Mc A .v. Mc A case. It might be said that the issue in the present appeal concerns the extent, if any, to which the principles laid down by the House of Lords in White .v. White for the interpretation of the UK Matrimonial Causes Act, 1973 (as amended) should be applied in the interpretation in this jurisdiction of the Family Law (Divorce) Act, 1996, which, in its detail is "uncannily similar" to the provisions of the UK legislation (see: Conor Power "Equality in Ancillary Relief" (2001) IFLJ 24).
132. The basic facts of White .v. White were relatively simple, if somewhat tragic. Both husband and wife were dedicated farmers who, after their marriage in 1961, farmed substantial holdings together under the terms of a written partnership agreement. By the time they separated in 1994 their combined assets amounted to £4.6 million of which, as Holman J. held, £1.52 million belonged to the wife. The High Court Judge then went on to express the view that the reasonable requirements of the wife would entail the buying and equipping of a suitable house which he estimated would cost £425,000 and an income which he capitalised at £555,000. From the total of £980,000 certain pensions fell to be deducted leaving a lump sum of £795,000 which he rounded up to £800,000. This was a sum he directed to be paid by the husband to the wife on a "clean break" basis. The learned Judge did, however, recognise that in limiting the payment to £800,000 he in fact benefited the husband to the extent of £700,000 from the assets of his wife. The Court of Appeal (consisting of Butler Schloss, Thorpe and Mantel L.JJ.) though applying substantially the same principles as those set out in the judgment of Holman J. required the husband to pay to the wife the sum of £1.52 million being the full amount of the estimated value of the wife's proprietary share of the total assets. From that decision both parties appealed to the House of Lords: the husband seeking the restoration of the order of the High Court and the wife claiming an equal share with the husband in the combined assets. Both appeals were dismissed. In his speech with which the rest of the Court agreed Lord Nicholls of Birkenhead rejected the principle of equality or the ascertainment of "reasonable requirements" of either spouse as being determinative of the amount to be paid to a spouse under the UK Matrimonial Causes Act, 1973 (as amended) on or after the making of a decree of divorce. The decision in White .v. White by the House of Lords was of enormous importance in the UK. As Lord Nicholls pointed out, that case gave the House of Lords an opportunity to review the legislation in this important area. He expressed his observations in that respect (at p. 600) in the following terms:-

"The powers conferred by the 1973 Act have been in operation now for 30 years. This is the first occasion when broad questions about the application of these powers have been considered by this House…. It goes without saying that these principles [the principles trial judges should apply when hearing applications for financial relief in divorce proceedings] should be identified and spelled out as clearly as possible. This is important, so as to promote consistency in court decisions and in order to assist parties and their advisors and mediators in resolving disputes by agreement as quickly and inexpensively as possible. The present case is an unhappy, if extreme, example of how the parties' resources can be eroded significantly by legal and other costs."

133. Having dealt with the facts of the case Lord Nicholls went on to examine the statutory provisions and how they had evolved from the Matrimonial Causes Act, 1857. He explained how a fresh start was made by the Matrimonial Proceedings and Property Act, 1970, following upon the report of the Law Commission prepared in 1969 under the chairmanship of Scarman J. The Act of 1970 was subsequently re-enacted in substantially the same terms by the Matrimonial Causes Act, 1973. Sections 23 and 24 of the Matrimonial Act 1973 empowered the court, on granting a decree of divorce and in certain other circumstances, to make financial provision orders and property adjustment orders. Section 25 of the Act of 1973 (as substituted by the s.3 of the Matrimonial and Family Proceedings Act, 1984) set out a list of matters which the court is to have regard to in deciding how to exercise those powers. That list is virtually identical with the comparable provisions of s.20 of our Act of 1996. That similarity would encourage any observer to pay particular attention to the speeches in White .v. White in interpreting the Act of 1996. However, notwithstanding the widespread similarities there are fundamental distinctions to be noticed in the legislative provisions in the two jurisdictions.
134. Again it was Lord Nicholls who pointed out that s.5 (1) of the United Kingdom Act of 1970 having set out a list of factors to be taken into account by the court contained what he described as "the tail piece" which declared what should be the objective of the court when exercising its statutory powers to make financial provision orders and property adjustment orders. The statutory objective was:-

"… to place the parties, so far as is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other."

135. That tail piece was later deleted from the legislation and, as was noted, nothing was inserted in its place. It was that lacuna which the House of Lords filled by ascertaining an implicit objective in the following terms at pp. 604-605:-

"In consequence, the legislation does not state explicitly what is to be the aim of the courts when exercising these wide powers. Implicitly the objective must be to achieve a fair outcome. The purpose of these powers is to enable the court to make fair financial arrangements on or after divorce in the absence of agreement between the former spouses: see Thorpe L.J. in Dart .v. Dart [1996] 2 FLR 286, 294. The powers must always be exercised with this objective in view, giving first consideration to the welfare of the children."

136. In accordance with the objective of fairness the House of Lords pointed out that this goal was inconsistent with discrimination against a spouse – traditionally the wife – whose contribution to the marriage was historically made in domestic and social areas the value of which was not reflected in any apparent financial terms. It was emphasised that the division of assets between spouses on a divorce should not be biased in favour of the money earner against the home maker and child carer. The principal speech went on to point out that it would sometimes happen that a judge having carried out the statutory exercise would reach a conclusion involving a more or less equal division of the available assets. However, Lord Nicholls pointed out that this would happen less, rather than more, often. However the decision went on to make the following suggestion at p. 605:-

"Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality and division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination."

137. However, having offered that useful advice, Lord Nicholls went on immediately to issue a warning in the following terms at pp. 605-606:-

"This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by Parliament 30 years ago, enable the courts to recognise and respond to developments of this sort. These wide powers enable the courts to make financial provision orders in tune with current perceptions of fairness. Today there is a greater awareness of the value of non financial contributions to the welfare of the family…. Despite these changes, a presumption of equal division would go beyond the permissible bounds of interpretation of section 25. …. A presumption of equal division would be an impermissible judicial gloss on the statutory provision. That would be so, if though the presumption would be rebuttable. Whether there should be a presumption in England and Wales, and in respect of what assets, is a matter for Parliament."

138. On that analysis Lord Nicholls rejected the appeal of the wife to treat the principle of equality as "the starting point" in relation to the division of the assets of the husband and wife. The House of Lords then turned to the argument made on behalf of the husband. Again, Lord Nicholls traced the evolution of what he described as "the alluring phrase of 'reasonable requirements'". It was first coined by Ormrod L.J. in O'D .v. O'D [1976] Fam. 83 where he suggested that the position of the wife should be considered "not from the narrow point of 'needs' but to ascertain her reasonable requirements". It was recognised that reasonable requirements were more extensive than reasonable needs. This approach was rejected by Lord Nicholls as being unjustified by the relevant legislation. He said at p. 607:-

"This conclusion, I have to say, seems to me worlds away from any ordinary meaning of financial needs. Moreover, this conclusion gives an artificially strained meaning to reasonable requirements, the more-

especially as this phrase was adopted originally as a synonym for financial needs".

139. He then went on to say at p. 608:-

"The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative."

140. An observation contained in the principal speech which must be of great practical importance in the United Kingdom is set out on p. 608 in the following terms:-

"But I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent became immaterial once the claimant wife's financial needs are satisfied. Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court's assessment of her reasonable requirements, and the husband left with a much larger share? Or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with a much larger balance. But the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division."

141. Lord Nicholls urged the abandonment of the expression "reasonable requirements" and the application instead of the language of the relevant statute. Similarly, in K. (M) v. P. (J). (orse. K. (S)) (Unreported, Supreme Court, 6th November, 2001) McGuinness J. stated that the Irish courts should be guided in the exercise of their discretion by the provisions of the statute:

"The provisions of the 1996 Act leave a considerable area of discretion to the Court in making proper financial provision for spouses in divorce cases. This discretion, however, is not to be exercised at large. The statute lays down mandatory guidelines. The Court must have regard to all the factors set out in section 20, measuring their relevance and weight according to the facts of the individual case. In giving the decision of the Court, a judge should give reasons for the way in which his or her discretion has been exercised in the light of the statutory guidelines."

142. It may be surprising in the light of the observations of the learned Judge that his conclusion and that of the House of Lords upheld the decision of the Court of Appeal who had reached their conclusion by identifying what that court had described as "the reasonable requirements" of the wife.
143. It is not surprising that the decision in White .v. White gave rise to considerable discussion and debate in legal and academic circles as well as a flood of literature which continues to debate whether equality is a relevant yardstick in determining the division of property between a husband and wife in "big money" divorce proceedings (see: Brasse, "White v. White – A Return to Orthodoxy?" 31 (2001) Fam. Law 191;
144. Miles, "Equality on Divorce?" 60 (2001) CLJ 46 and Northover and Peat "Cowan – Departure from Equality of Division" 31 (2001) Fam. Law 510 at p. 512). In his analysis of the judgment of Lord Nicholls, Thorpe L.J. in Cowan v. Cowan [2001] 3 WLR 684 stated that:

"The decision in White v. White [2001] 1 AC 596 clearly does not introduce a rule of equality. The yardstick of equality is a cross-check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure. However it would seem to me undesirable for judges to be drawn into too much specificity, ascribing precise percentage points to the various and often counter-balancing reasons which the facts of individual cases render relevant."

145. Thorpe L.J. then went on to summarise the English position as follows:

"In summary therefore these seem to me to be the consequences of the House of Lords' recent review of the ancillary relief cases in this court. (i) Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25. (ii) Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution. (iii) 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 the 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. (iv) Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements…."

146. A fundamental distinction between the United Kingdom legislation and the Irish Act of 1996 is the absence from the United Kingdom legislation, as Lord Nicholls explained, of any clause expressly stating the objective of the financial orders to be made by the court and the presence in the Irish legislation of an express and positive obligation imposed in accordance with the requirements of Article 41.3.2.ii of the Constitution that the court must be satisfied that proper provision has been made for each spouse. As stated by McCracken J. in M.Mc.A. v. X.McA. [2000] 1 IR 457, at p. 463:

"It must be borne in mind that the right to a divorce in this country is a constitutional right arising under Article 41.3.2 of the Constitution, and that the Act of 1996, sets out the circumstances under which such constitutional right may be exercised."

147. The people in the referendum by approving the fifteenth amendment of the Constitution in the Act of 1995 permitted the abolition of the longstanding constitutional barrier to divorce but only on terms that where legislation empowered the granting of a decree of divorce that "such provision as the court considers proper" would be made for each spouse. Such provision would appear to be a condition precedent to the granting of a decree of divorce. The narrow requirement that a spouse was entitled to a periodic payment to meet his or her – usually her – needs or that each spouse was entitled to such a payment to meet his or her reasonable requirements is not the test in this jurisdiction. The statutory and constitutional test and requirement is that there must be proper provision irrespective of by whom it is provided. What that will amount to in any particular case will depend upon the examination of the factors set out in s. 20 of the Act of 1996 and the exercise by the trial judge of his discretion within the application of those principles.
148. Apart from the difference in legislation there is a fundamental distinction to be made between the proceedings in the present matter and those in White .v. White. In the English case the court was concerned to ascertain the terms on which the parties could make what is described as "a clean break". In this jurisdiction the "clean break" is not an available option. This point was highlighted by McGuinness J. in K. (M) v. P. (J). (orse. K. (S)) (Unreported, Supreme Court, 6^th November, 2001) when she stated:

"The concept of a single capital payment to the wife to meet her 'reasonable requirements' for the remainder of her life has never in fact formed a part of Irish family law. There are two main reasons for this. Firstly, such a capital payment is inevitably a part of a 'clean break' settlement in divorce proceedings. In this jurisdiction the legislature has, in the Family Law (Divorce) Act, 1996, laid down a system of law where a 'clean break' solution is neither permissible nor possible. Secondly, the approach of the Irish courts, in accordance with both Article 41.2 of the Constitution and the statutory guidelines, has been to give full credit to the wife's contribution through her work in the home and as a mother to her children. (See, for example, J.D. v. D.D. [1997] 3 I.R. 64. In this jurisdiction the overriding requirement of a fair outcome is governed by section 20(5) of the 1996 Act:-

'The Court shall not make an order under a provision referred to in sub-section (1) unless it would be in the interests of justice to do so.'"

149. The combination of the clean break and the objective of achieving fairness has led the courts in England to approaching that sort of case as a division of assets. Lord Nicholls repeatedly refers to the division of assets and has emphasised the necessity of achieving fairness in that context. Indeed it would be difficult to conceive of "fairness" as an object in itself as distinct from a particular standard by which an identified objective was achieved. The Act of 1996 and the constitutional provision pursuant to which it was enacted makes no reference to division. In any divorce proceedings the court in making an order approving or imposing financial dispositions in favour of a spouse is concerned with provision and not division. It is of course obvious that the court does have powers to make adjustment of property orders which, to some extent, might have the appearance of division of property but any such order is ancillary to the periodic payments which would ordinarily be the means by which provision would be made for the disadvantaged spouse. Not only does the Act of 1996 make no provision for a "clean break" between the separating couple but clearly the scheme of this Act is that the continuing provision for what I have described as the disadvantaged spouse should, in accordance with the provisions of s.13 (5)(a) terminate on the remarriage of that spouse. It would seem unwise for the paying spouse to agree to a lump sum order or a property adjustment (and unfair for the court to impose one) which would enable the receiving spouse to continue to enjoy provision notwithstanding his or her remarriage and with it the cesser of his or her statutory entitlement to be provided for.
150. Counsel on behalf of both parties urged this court to make whatever adjustments it thought fit to resolve the dispute between them without the necessity of the matter being remitted to the High Court for further proceedings which would undoubtedly involve costs and perhaps accentuate differences. Whilst I am fully sympathetic to that course I do not believe it is possible. The proceedings in the High Court in this matter were in fact dominated by the existence of the substantial assets which were acquired by Mr. T. in recent years and the value of which has escalated enormously in that relatively brief period. Very regretfully I believe that the matter must be remitted to the High Court to enable it to determine the "proper provision" to be made for each spouse. Before embarking on that course it is self evident that the parties must agree, or the judge must determine, what the proprietorial rights of each of the parties are. Under our legislation that course is unavoidable. The court must know at least in approximate terms the property and income available to each party before it can proceed to determine what more must be added to ensure that each party has been properly provided for. In that context I have no doubt that the relevant date is the date of the hearing by the court granting the decree of divorce. Counsel in this court understandably, in my view, raised the question whether an outstanding issue as to whether proper provision had been made could cast doubt upon the validity of the decree of divorce notwithstanding the fact that neither party sought to challenge that decree in the appeal proceedings. Undoubtedly proper provision is linked to the divorce decree and accordingly should, in my view, be ascertained as of the date of the decree.
151. On the other hand, other material factors prescribed in s.20 of the Act of 1996 will fall to be dealt with as of different dates and perhaps different periods. Indeed s.20 (2) (c) expressly provides that in considering the standard of living enjoyed by the family concerned the relevant period is either the period before the proceedings were instituted or before the spouses commenced to live apart from one another. Clearly that factor can only be considered in the present case by reference to a period prior to August, 1994. On the other hand contributions made by each of the spouses to the welfare of the family and calling for consideration under para. (f) of the subs. 2 aforesaid will range back over a long period.
152. Having established the proprietorial rights – be they legal or equitable: vested or contingent – of each party and their existing and potential future incomes the court will have the difficult task of determining what is required by the constitutional imperative of "proper provision". Obviously the term itself and the criteria identified in s.20 aforesaid makes it clear that this is far beyond mere "needs" and probably exceeds what is comprised in the alluring term of "reasonable requirements". Indeed I would have thought that "the tailpiece" originally contained in s.5 of the United Kingdom Matrimonial Proceedings and Property Act, 1970 might provide helpful guidance as to what is sought if it had been incorporated in the Irish legislation but with the words in brackets deleted and so as to read:-

"To place the parties, as far as is practicable [and having regard to their conduct, just to do so] ….in the financial position in which they would have been if the marriage had not broken down and each properly discharged his or her financial obligations and responsibilities towards the other."

153. It is unlikely that on the breakdown of a marriage that both parties will continue to enjoy the standard of living which they had achieved together but it would not seem to me proper to invite either party to accept less if that is available. On the other hand, unlike Lord Nicholls, I have no difficulty in accepting that neither party is entitled to more. If there is a surplus beyond making proper provision I see no reason why the party entitled to that surplus should not retain it. This is in no sense discriminatory. If an impoverished man were to marry a wealthy heiress and he – whether through illness or indolence – contributed little or nothing in financial contribution or social commitment to the marriage he would be still entitled under Irish law to have proper provision made for him on the dissolution of the marriage. That having been achieved, and a surplus remaining, I see no reason why it should not be retained by the heiress. The significance of either party to a marriage having substantial assets or significant income is that these are factors which would determine the lifestyle of the married couple and to a large extent dictate the nature of the provision which would properly be made for each of them. Regretfully I can find no formula by which this can be achieved. Clearly in recent years attention has been focused on equality. Previously a view was taken that one third of the combined assets might be an appropriate starting point from which to calculate the share of the wife: Wachtel v Wachtel [1973] 2 W.L.R. 652. In earlier days, when the only relief available in this jurisdiction was a decree of divorce a mensa et thoro, similar fractions were relied on very largely on the basis that an order requiring a husband to pay a larger fraction of his income would discourage him from continuing to work.
154. It may be little consolation to litigants or their advisors but in the final analysis one can but recognise that our current legislation requires that proper provision be made for each spouse (whether male or female) and that in reaching that objective the court is bound to have regard to the factors set out in s.20 in the Act of 1996 aforesaid. It may be that the wisdom of the parties and the encouragement of their legal advisors may enable them to negotiate a settlement which the court could approve under the provisions of the Act of 1996. If that cannot be done I see no alternative but to remit the matter to the High Court to determine the proper provision to be made for, as it happens in this case, the wife. As a matter of law I would merely add that I believe that the decision in White .v. White and the observations contained therein would be of very little assistance in interpreting the Irish Act of 1996 notwithstanding the many similarities between the United Kingdom and the Irish legislation.

The Supreme Court

Keane, C.J.

Denham, J.

Murphy, J.

Murray, J.

Fennelly, J.

Appeal No. 031/2002

Record No. 2000/30M

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN/

T.

APPLICANT/APPELLANT

and

T.

RESPONDENT

Judgement delivered on the 14^th October, 2002 by Murray, J.

155. The parties to these proceedings were granted a decree of decree of divorce by order of the High Court dated the 6th day of December, 2001 in respect of the marriage solemnised between them on the 29th of March, 1980.
156. The issues in this appeal stem from the dispute between the parties which are the nature and extent of the financial provisions to be made for the Respondent should the Appellant be granted a decree of divorce. These are core issues because it is a constitutional precondition that proper provision be made for spouses and their children before a Court may make an order granting dissolution of a marriage. This pre-condition is repeated in the Family Law (Divorce) Act 1996. No issue arises in this appeal concerning proper provision for the children of the spouses.

The fundamental issue in the appeal before the court, therefore, is whether the High Court Order fulfils the constitutional and statutory requirement that "such provision as the Court considers proper having regard to the circumstances exists or will be made …" for the Respondent spouse. The Family Law (Divorce Act) 1996 makes provision for and regulates the exercise by the courts of the jurisdiction created by the Constitution to grant decrees of divorce. Section 5(1) of the Act repeats the constitutional requirement that proper provision be made for the spouses as a pre-condition to the granting of such a decree of divorce.

In exercising its jurisdiction the Order of the High Court made provision for the Respondent by providing: -

"(a) That the Applicant should pay to the Respondent a total sum of £5,000,000 by instalments over a period of 3 years;

(b) That 55% of the benefits accrued to the Applicant under specified life insurance policies should be paid to the Respondent;

(c) That neither spouse should be entitled on the death of the other to apply for an order under section 18(10) of the Family Law (Divorce) Act, 1996;

157. The facts and circumstances of the case, including the legal issues raised and the arguments of the parties, have been comprehensively set out in the judgement of the Chief Justice. I am in agreement with the Chief Justice that the appeal should be dismissed to the extent specified in the order which he proposes that the court should make. I do however wish to address certain of the issues which have been raised in this appeal.

First of all some preliminary observations. It is common case that the discretion conferred on the courts in the exercise of their jurisdiction to grant a divorce is extremely broad. The very general statement in Article 41.3.2.iii of the Constitution that the courts must satisfied that proper provision has been made for spouses "having regard to the circumstances" is reflected in the broad and general manner in which the relevant provisions of the 1996 Act are framed. Section 20 of the Act, which is set out in full in the judgment of the Chief Justice, describes an extensive range of factors to which the court shall have particular regard in deciding whether or not to grant a decree of divorce. The weight to be attached to each of these matters will always depend on the particular circumstances of the case. Often many of the factors mentioned in section 20 will have no pertinence to the particular case and therefore will not be taken into account. The Oireachtas studiously avoided giving any prescriptive guidelines as to how the court should deal with the income and assets of the parties in making proper provision for the spouses. I draw attention to the particularly broad discretion conferred on a court in order to emphasise that while this court may decide on principles which should guide a court when exercising its jurisdiction under the Act, the very broad discretion conferred on a judge hearing a case of this nature will still remain to be exercised having regard to the circumstances of any particular case. Furthermore, it must be borne in mind that this is a case which the Chief Justice has aptly described as an "ample resources case", which has the effect of giving full reign to the discretion which a court exercises in such cases. 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.

158. The particular circumstances of this case, therefore, are likely to be the exception rather than the rule, something to be borne in mind when considering how the issues in the case are resolved.
159. While the facts and the circumstances of the parties are comprehensively set out in the judgment of the Chief Justice I would like to recall here, in order to put matters in context, some of the salient features of the case as summarised by the learned High Court Judge in his judgment: -

"The Applicant and Respondent were married on the 29th March, 1980. They have three dependant children of the marriage. The Applicant is a solicitor by profession while the Respondent is a medical doctor, working as a general practitioner.

Shortly after their marriage in 1980, the parties moved into a house in ... . At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the Respondent worked in the Applicant's practice. The Respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the Applicants subsequently moved to his present offices in about 1983, the Respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.

The relationship was very turbulent and there were many arguments between the parties which at times resulted in the Applicant leaving the family home and staying overnight elsewhere. ...

The Applicant left the family home in August, 1994... There is no reasonable prospect of reconciliation between the parties. ...

The Applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the Applicant's intention to marry his partner on the court granting a decree of divorce herein.

Both parties disagree as to the level of financial adjustments to be made between them. …

The Applicant's total assets were somewhere in the region of £20 million, the majority of which came from property. The Respondent's assets in comparison stand at around £1 million.

The Respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The Respondent re-entered part-time general practice 1991 on a very limited basis. Between 1990 and 1998 the Respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the Respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.

The Respondent's work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the Respondent and she feels that it not in her children's interest that she continues working at this frantic level. Accordingly, she is anxious that lump-sum provision be made in order to secure her own and her children's future."

160. As explained by the Chief Justice in his judgment the value of the net assets of the Applicant as of the time of his application for a divorce to the High Court maybe considered as approximately £14 million. The value of the lump sum award made by the High Court to the Respondent represents approximately 38% of that valuation.

'Proper Provisions' for the spouse

161. The duty of the courts to ensure that proper provision is made for a spouse before a decree of divorce is granted flows directly from the provisions of Article 41 of the Constitution and it is in the context of that Article as a whole that the nature and extent of the duty set out in the 1996 Act must be interpreted. Article 41 of the Constitution provides as follows: -

The Family

Article 41

Article 41.

"1.

1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2.

1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3.

1. The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2. A Court designated by law may grant of a dissolution of marriage where, but only where, it is satisfied that

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of a reconciliation between the spouses,

iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with.

3. No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved."

162. As I have previously had occasion to state the Constitution and in particular Article 41 reflects a shared value of society concerning the status of the "family" in the social order as a natural primary and fundamental unit group in society. The State is required to protect the family, inter alia, because it is indispensable to the welfare of the nation and the state. Moreover, the constitution requires the State 'to guard with special care the institution of Marriage…'.
163. With these purposes in mind the constitution as adopted in 1937 contained a complete prohibition on the dissolution of marriage. The fifteenth amendment to the Constitution, with which we are now dealing, replaced that prohibition and clearly with those purposes also in mind was placed in Article 41 and specified four pre-conditions which must be fulfilled before an order dissolving a marriage may be granted. It is in this context that the notion of proper provision for the spouses must be interpreted.
164. In acknowledging the nature and status of marriage and the family in society, the Constitution reflects its historical, cultural and social role underpinned by values common to all religious traditions. This is by no means unique to Ireland and is reflected in the constitutions of many states and the Universal Declaration of Human Rights, adopted by the general assembly of the United Nations in 1948.

(See my judgment in North Western Health Board -v- H.W. [2001] 3 I.R. at 736).

165. Of course society, as always, evolves and continues to evolve and there are a far greater number of committed partnerships established outside marriage than was heretofore the case. Nonetheless, marriage itself remains a solemn contract of partnership entered into between man and woman with a special status recognised by the Constitution. It is one which is entered into in principle for life. It is not entered into for a determinate period. The moment a man and woman marry their bond acquires a legal status. The relationship once formed, the law steps in and holds the parties to certain obligations and liabilities. Even where a marriage is dissolved by judicial decree the laws of many if not most states require that the divorced spouses continue to respect and fulfil certain obligations deriving from their dissolved marriage for their mutual protection and welfare, usually of a financial nature. This reflects the fact that marriage is in principle intended to be a lifetime commitment and that each spouse has fashioned his or her life on that premise. If the law permitted a spouse to cut himself or herself adrift of a marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of the marriage contract itself and fail to protect the value which society has placed on it as an institution. It would give rise for example to a complete disregard for the status of a spouse whose principal role in the marriage was working in the home in support of the other partner who was the principal earner or breadwinner. Hence the constitutional imperative of proper provision for spouses.
166. The life-long commitment which marriage in principle entails means that there is a mutuality of an intimate relationship in which singular aspirations in life of each partner are adapted to mutual life goals. They adapt their lives to live and work together for the mutual welfare of their family which usually, but by no means necessarily so, also involves the birth and rearing of children. Husband and wife having mutual duties and responsibilities for the welfare of each other and the marriage, will throughout the marriage, make private decisions as to the role each of them will play in the support of the marriage, the achievement of their goals and their lifestyle. These decisions are likely to have an effect on their way of life even after the eventuality of a divorce, such as the capacity of one of them at that stage to establish an independent and secure way of life.
167. In contemporary society both spouses may work to financially support the family, the husband may support the wife or the wife may support the husband. Historically of course in this country and in many other countries and it was certainly the position at the time when the Constitution was adopted, there was usually only one breadwinner in the family, almost invariably the man. Limited value was often attached to the contribution made to the marriage by a non-earning spouse. She, and it was usually she, was treated more as simply a dependant rather than a partner when financial provision was made on separation. Her basic or essential needs tended to be the primary yardstick in such arrangements.
168. In many marriages one spouse either does not work outside the home, works part-time or works intermittently over the years in casual or part-time work. All of these private decisions are taken because there is a fundamental importance to the role of parents in the home and it is frequently seen as desirable for the welfare of the family that one parent should devote most of his or her time to the home particularly where the rearing of children is involved. While these considerations may apply to either spouse it must be said that in the vast majority of cases the spouse who gives the primary commitment to working in the home is the wife.
169. That was the position in this case. The parties commenced a married life with comfortable but relatively modest resources and assets. They were young practitioners in their respective professional careers which were initially the only source of the family income. The Respondent adapted her own lifestyle and limited her own professional career in order to pursue other mutual goals of the family, namely the establishment and development of a successful solicitor's practice on behalf of her husband and looking after the home and the children. At different times and different ways she took an active part in directly helping her husband to develop his professional practice. By working in the home she facilitated and enabled her husband to give the kind of commitment necessary to establish such a successful practice.
170. In my view the work of a spouse in the home, in this case the Respondent's wife, 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. The Constitution views the family as indispensable to the welfare of the State. Article 41.2.1. recognises that by her life in the home the woman gives to the State a support without which the common good cannot be achieved. No doubt the exclusive reference to women in that provision reflects social thinking and conditions at the time. It does however expressly recognise that work in the home by a parent is indispensable to the welfare of the State by virtue of the fact that it promotes the welfare of the family as a fundamental unit in society. A fortiori it recognises that work in the home is indispensable for the welfare of the family, husband, wife and children, where there are children. In my view 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."
171. I would observe in passing that the Constitution, as this court has stated on a number of occasions, is to be interpreted as a contemporary document. The duties and obligations of spouses are mutual and, without elaborating further since nothing turns on this point in this case, it seem to me that it implicitly recognises similarly the value of a man's contribution in the home as a parent.
172. This is not to say that in making financial provision for spouses that their assets should be divided between them. Neither the Constitution nor the 1996 Act requires that, expressly or implicitly. It is rather that spouse, in this case, the wife, 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.
173. I think it is appropriate to recall, for example, two of the factors which the courts is required to take into account pursuant to Section 20(2)(f) and (g): -

( f ) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

( g ) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,"

174. So for example in having regard to the considerations cited above (which have particular relevance in this context but the same must apply in all other considerations taken into account by the court) the court will not discriminate between the spouses solely because their contribution to marriage and in particular to the welfare of the family, was of a different nature.
175. Paragraph (b) of the same provision refers to the financial needs, obligations, and responsibilities which each of the spouses had or is likely to have in the foreseeable future. But the Oireachtas did not limit the 'proper provision' for a spouse solely to his or her financial needs and responsibilities. The 1996 Act requires regard to be had to all the relevant considerations set out in Section 20 always with the objective of making proper provision. 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 dependant spouse (where the other spouse is the source or owner of all or the bulk of income or assets of the marriage) should seek, so far as the circumstances of the case permit, to ensure that the spouse is not only in a position to meet her financial liabilities and obligation, continue with a standard of living commensurate with her standard of living during marriage but to enjoy what may reasonably regarded as the fruits of the marriage so that she can live an independent life and have security in the control of 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 her former husband. I say 'in principle' because it is evident that in so 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 husband. Quite evidently this maybe because, for example, the sole source of income may be a salary or income from a business or profession. The latter two may have an asset value which needs to be left in the hands of the earning spouse in order that the income necessary to make proper provision for both spouses can be generated. I therefore agree with the Chief Justice there is nothing in the Act which prohibits the making of lump sum payments to a spouse when the court is exercising its jurisdiction in these matters. Indeed, the Constitution would require that this be done 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.
176. In cases of this nature, 'ample resources' cases, the payment by one spouse to another of a very substantial lump sum maybe the appropriate manner in which to ensure that proper provision is made, as I believe is the position in this case. It seems to me that 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. It is not so much that there should be a division of these resources between the spouses. 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, what I have figuratively referred to as the fruits of the marriage, taken into account by the court in determining what provision should be made for each of them.
177. In this case I also agree with the Chief Justice that the very substantial amount of wealth which accrued to the Applicant in this case after separation and before the application for divorce was properly taken into account by the learned High Court Judge. That wealth accrued from a very successful transaction involving the purchase of an office block. However, this transaction was facilitated by the resources available to the Applicant by reason of the fact that over the years a successful solicitors practice had been established. That is not to say that the resources of one spouse which could be said to have been acquired completely independent of the marriage should be excluded from consideration by the court. Each spouse has a continuing obligation to make proper provision for the other and the resources which are available to each of them maybe taken into account so far as is necessary to achieve that objective. Each case will necessarily depend on its own particular circumstances. Where there are quite limited resources available it may only be possible to provide for the basic needs of each spouse. On the other hand different considerations would also arise where one spouse who was independently wealthy before the marriage and the marriage was a very short duration.
178. In the course of their arguments Counsel referred to a number of important English decisions interpreting and applying the relevant English legislation. They were considered relevant not least because the provision of the 1996 Act and in particular those of Section 20 were clearly modelled on the English Act. Murphy J. has highlighted in his judgment the divergences between the English Act and the 1996 Act including the fact that the English Act makes provision for a full and final determination of the financial obligations of the parties when the decree for divorce is granted – the "clean break" provisions. In my view the decisions of English courts on these matters should be viewed with circumspection. Apart from the divergences in the legislation highlighted by Murphy J. account must be taken of the fact that the 1996 Act falls to be interpreted and applied in the light of provisions of the Constitution. Furthermore, there are passages in the English decisions which take account of the history of matrimonial legislation and of social conditions in England which again may diverge from those which arise in this country. I hasten to add that where the same or similar issues of law arise in another jurisdiction, in particular a common law jurisdiction, judicial solutions to similar complex issues such as arise here maybe very beneficial and useful in identifying such solutions. There are passages in some of the English cases cited in argument by Counsel which articulate considerations or an approach to the manner in which proper provision should be made for spouses which coincide with the approach to be adopted under the 1996 Act. For example in White -v- White [2001] (1 AC 596) there is a passage in the judgment of Lord Nicholls which coincides with the law as I see it in this jurisdiction, where he says "If, in their different spheres, each … 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." However, for present purposes I do not consider it necessary to refer to the English decisions.
179. I conclude therefore that when a court is exercising its discretion in making provision for spouses on an application for divorce:

(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 Section 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) In the present case all the resources, assets and income of the Applicant (as well of course the more limited income and assets of the Respondent) should be taken into account.

180. Having so concluded I am in agreement with the Chief Justice as to the manner in which proper provision should be made for the parties in these proceedings and the Order which he proposes in this respect. This includes his ruling on the exclusion of the misconduct element in this case and his ruling on the pension adjustment.
181. I also agree that when making proper provision for the spouses a court may in the appropriate circumstances seek to achieve certainty and finality in the continuing obligations of the divorced spouses to one another. This is not to say that legal finality can be achieved in all cases and any provision made may be subject to review pursuant to Section 22 of the 1996 Act 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.
182. Accordingly, I agree with the Chief Justice that the appeal should be dismissed to the extent specified in the Order which he proposes should be made.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Fennelly J.

Appeal No. 031/2002

Record No. 2000/30M

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996

BETWEEN

D. T.

Applicant/Appellant

and

C. T.

Respondent

JUDGMENT delivered on the 14^th day of October, 2002 by FENNELLY J.

183. I agree with the Chief Justice that this appeal should be dismissed except to the specific and limited extent described by him. I agree with him also in that respect.
184. I wish, nonetheless, to address some general questions concerning the interpretation of this important legislation.
185. By voting in 1996 to pass the Fifteenth Amendment of the Constitution, the people voted to make a fundamental change in the law relating to marriage. The Constitution now permits a Court designated by law to grant a decree dissolving the marriage bond with the consequence of permitting each partner to remarry. The amendment substituted the following provision for the former prohibition of divorce in subsection 2 of section 3 of Article 41 of the Constitution:

"A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that -

i at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

ii there is no reasonable prospect of a reconciliation between the spouses

iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iv any further conditions prescribed by law are complied with."

186. Article 41 of the Constitution was not, however, otherwise altered. The text retains provisions pursuant to which the State still:

"recognises the Family as the primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law." (Article 41.1);

"recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved." (Article 41.2);

"pledges itself to guard with special care the institution of Marriage, on which the family is founded, and to protect it against attack." (Article 41.3, paragraph 1).

187. The Constitution, in the new provision adopted in 1996, circumscribes the power which it confers on the designated Court, by obliging it, before it may grant a decree of divorce, to be satisfied of certain matters. It specifies four preconditions. There can be no doubt that these matters form an essential element in the new constitutional regime upon which the people cast their votes. The first two relate directly to the core of the marriage bond itself. The spouses must not only have lived apart for the requisite period but there must be no reasonable prospect of reconciliation. The court must, if it is to act constitutionally, satisfy itself that the evidence proves these matters. The consent of the marriage partners cannot confer upon the court the power to dissolve their marriage so as to absolve it from this duty.
188. The present case is concerned with the third constitutional requirement, namely that relating to proper provision for the divorcing spouses and their children. In the nature of things, the issue of proper material provision will normally be subsidiary to and consequential upon the existence of conditions which unhappily render it no longer possible for the parties to the marriage to continue as married persons. It enjoys the same level of constitutional importance as the first two in the sense that the Court is obliged to see that it is satisfied. Otherwise, the court is not empowered to grant the order dissolving the marriage. On the other hand, 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.
189. Article 41.3, subsection 2 (iii) enunciates the duty of the Court in very general terms. The "provision" is "such as the Court considers proper in all the circumstances …" emphasis added). In the Irish version ("cibé socrú is dóigh leis an gCúirt a bheith cuí"), uses the word, "socrú", which may be equated with "arrangement." (see Micheál O'Cearúil, Bunreacht na hEireann: A Study of the Irish Text, published by the All-Party Oireachtas Committee on the Constitution 1999 at page 601.) The word "cuí" is used at several points in the Constitution in the sense of "due." (see the Preamble and Articles 40, sections 1 and 3.3; 42, sections 4 and 5 and the declaration prescribed to be made by each judge by Article 34, section 5, subsection 1. The Court must do what is "proper" in the sense of "appropriate." I would have thought that this is also 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.
190. The Family Law (Divorce) Act, 1996 ("the act of 1996") provides the Court with a range of statutory powers designed to enable it to fulfill its constitutional function. Most materially for present purposes, it may, "on granting a decree of divorce or at any time thereafter ...:" make orders for periodical payments or lump sum payments (section 13), property adjustment orders (section 14); various ancillary orders (section 15); financial compensation orders (section 16); pension adjustment orders (section 17); provision for one spouse out of the estate of the other (section 18). The power which the High Court exercised was that specified in section 13, which states, in relevant part:

"On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned………during the lifetime of the other spouse,…………make one or more of the following orders, that is to say:

(c) (i) an order that either of the spouses shall make to the other spouse a lump sum payments of such amount or amounts as may be so specified, …

191. The expression, "as may be so specified," refers to the antecedent expression, "as may be specified in the order." The section does not otherwise indicate the objective to be achieved. The Court must seek its guidance in section 20, interpreted in the light of the applicable constitutional provisions.
192. The relevant guidance is furnished to the Court by section 20 of the act of 1996, in a case when it has to consider the exercise of any of these powers. It has already been set out fully in the judgment of the Chief Justice and I will not repeat it.
193. Sub-paragraphs (a) to (j) are an almost verbatim restatement of the corresponding provisions in section 20 of the Judicial Separation and Family Law Reform Act, 1989 ("the act of 1989"). The Oireachtas, in choosing the approach it enshrined in section 20 made a considered decision to confer upon the Court a duty of a particularly broad discretionary character, one already enshrined in our family law, prior to the constitutional amendment. 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. It reflects, in this respect, the constitutional provision. Thus also the legislature eschewed any more prescriptive model such as has been said to exist in the divorce laws of some countries (such as Scotland and New Zealand).
194. It is also the fact that the act of 1996 incorporates, like the act of 1989, and, subject to some important qualifications, not merely the essence but large parts of the wording of the provisions of the present divorce legislation of England and Wales. The parties have drawn attention to certain departures form that model whose relevance needs to be considered and to which I will shortly refer.
195. It is common ground between the parties that the financial resources that are available in the present case for the purpose of making provision for the respondent spouse, the wife, and the children of the marriage are very substantial indeed. For that reason, the case is quite untypical; thus it may be of comparatively limited value in the much more normal but more difficult cases where "proper provision" has to be made from meagre resources. I share the Chief Justice's preference for the description "ample resources" over the less attractive expression, "big money."
196. Happily, the level of co-operation between the parties in the High Court and the quality of the financial expertise available to the parties was such that there was a large measure of agreement as to the gross and net and the realisable value of the relevant assets. The only major are of disagreement concerns the treatment of those assets, constituting at the date of the High Court hearing, the great bulk of their value, acquired by the husband after the parties ceased to live together. That, however, is a matter of principle and of interpretation and of law.
197. A simple and broad approach can be taken to the value of the available assets. The learned trial judge decided to make provision for the wife in the form of an order for the payment to her, by instalments, of a sum of £5 million. The parties are in agreement with this approach, but not the amount of the lump sum. All values were expressed in Irish pounds and it is not necessary to convert them to Euro values. The husband says, however, that the provision is excessive. Both parties, in addition, agree that this court should exercise the statutory and constitutional discretion de novo, in the event that it is of opinion that the High Court was in error in its approach.
198. In this light, it is sufficient to refer, firstly and briefly, to the extent of the assets and to their nature. It was agreed in evidence that the gross value of the assets held by the husband is of the order of £25 million. They were acquired, however, with the assistance of substantial bank borrowing. The value, net of liabilities, is agreed to be between £18 and £19 million. The order is not one for the transfer of assets or interests in assets. Hence, the parties accept also that, in order to make provision in the form of a lump sum for the wife in accordance with the law, assets will have to be realised. This, in turn, necessarily entails the incurring of realisation costs and expenses in the form of legal and other professional expenses and tax liability, in particular capital taxes. On this last basis, it is accepted that the relevant value of the assets is reduced to approximately £14 million.
199. I need to say very little more about how such wealth came to be acquired by these parties. I am happy to adopt the account given in the judgment of the Chief Justice.
200. The spouses in this case are from fairly normal reasonably comfortable middle-class background. The husband is a solicitor, the wife a medical doctor. They did not set out on their married life with any substantial capital resources, though the wife owned a house in Dublin. They expected to live from the earnings of their respective professions. The husband, of course, prospered spectacularly. The wife, on the other hand, contributed to the husband's capacity to build up his practice in ways which may now appear modest, but which were undoubtedly crucial, in the important early stages, to the capacity of the husband to build up his own independent practice as a solicitor. She did unpaid secretarial work and used to clean the office. She also provided some office furniture.
201. The wife also limited the pursuit of her own career as a medical doctor. She devoted herself to maternal and household duties at the expense of her own career for the benefit not only of her husband but for the welfare of the entire family.
202. The striking imbalance between the resources of the two spouses does not result only from the comparatively traditional adoption of the respective roles of breadwinner and homemaker. In the case of this model of marriage, it has been commonplace that the husband becomes the owner of the great bulk of the family property, the wife being in a dependant position. The present case is exceptional. Firstly, the husband has been able to benefit from the very high level of earnings in recent years of solicitors in Ireland in the practice of personal injury litigation. Secondly, he was able, to avail of the profits of and the cash resources available to him through his practice as a solicitor to borrow very large amounts of money. The principal bone of contention on the appeal has been the fact that the husband, after the parties commenced to live apart, acquired an office block, which constitutes some eighty per cent of the value of his assets. Thus over a small number of years, he became a man of great wealth.
203. The task of the learned High Court judge was to make proper provision for the wife and the children of the marriage in the light of the statutory provisions and "having regard to the circumstances."
204. The matters listed in the twelve sub-paragraphs of section 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."
205. 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." (sub-paragraphs (a) and (b) respectively).
206. This suggests that any property, whenever acquired, of either spouse and whenever and no matter how acquired is, in principle, available for the purposes provision. Thus, property acquired by inheritance, by chance, or the exclusive labours of one spouse does not necessarily escape the net. I lay emphasis on the term, "in principle." On the other hand, not all such property is automatically available either. It is easy to think of cases where such a result would not be just. A short-lived marriage by a fortune hunter to a wealthy heiress comes to mind. Other sub-paragraphs are designed to ensure that the Court has a very broad discretion. It may consider "the standard of living enjoyed by the family …before the proceedings were instituted or before the spouses commenced to live apart from one another as the case may be ..." (sub-paragraph (c). This provision appears to have been taken verbatim from the act of 1989 (section 20(2)(c) ). In the case of divorce, the parties will necessarily have been living apart for at least four of the five years preceding the issue of proceedings. Regard is also to be had to the "age of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another …" (sub-paragraph (d)).
207. On the facts of this case, I think the learned High Court judge was entitled, in the light of the relevant circumstances, to have resort, for the purposes of making a lump-sum order, to the full range of the husband's resources. In particular, I think there was a close link between the acquisition of the office block and the resources of the husband's solicitors practice. I think the wife was entitled, by reason of her contributions to the family generally and her direct and indirect contributions to the capacity of the husband to build his great fortune to have those assets considered for the purposes of provision. It is the fact that it actually passed into his ownership between the date of the separation of the parties and the hearing of proceedings in the High Court; but none of the sub-paragraphs excludes it for that reason. On the contrary, both the Constitution and the act of 1996 envisage the Court considering the issue of "proper provision" at the same time as the divorce decree. The use of the present tense in sub-paragraph (a) further supports this view. So also does the point made by the Chief Justice in his judgment that it would be unjust to require a spouse to make provision from resources which he formerly had but no longer has at the date of the proceedings or whose value had fallen greatly in the interim.
208. Sub-paragraphs (f) and (g) are also of particular relevance in this case:

"20(2)(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family.

(g) the effect on the earning capacity of 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,"

209. The first of these sub-paragraphs, in particular, obliges the Court to give due weight and consideration to the respective roles of the breadwinner and the homemaker. By that, I mean such weight as is appropriate in all the circumstances. Once more, it is important to note that the sub-paragraph 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.
210. It is only with the greatest care, therefore, that one should formulate any general propositions. The judge must always and in every case have regard to the particular circumstances of the case. In this connection, I would cite one passage from the speech of Lord Nicholls of Birkenhead in White v White [2001] 1 AC 596. Before doing so, I should say that we should be careful not to follow English cases uncritically. Murphy J has dealt with this matter some in detail by in his judgment. Nonetheless, I find Lord Nicholls persuasive in one respect. When, referring to the provision corresponding to sub-paragraph (f) at page 604 he says:

"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."

211. It is fair to say that Lord Nicholls, in the ensuing passage, proceeded to advocate a "yardstick of equality." The act of 1996 does not, in my view, warrant the introduction of a yardstick in those terms. It certainly does not ordain an approach based on the division of assets. Nonetheless, I would adopt the language of Lord Nicholls 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.
212. In this connection, it should be noted that the underlined words in the expression, "including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse …" in sub-paragraph (f) were added by the Oireachtas to, originally in 1989 but repeated in the act of 1996, to a provision otherwise closely modelled on the English version. These words demonstrate that the Court should have regard to the possibility that the efforts of one spouse may contribute, directly or indirectly, to the resources of the other.
213. Furthermore, sub-paragraph (g) appears only in the two acts of the Oireachtas; the English legislation contains no corresponding provision. The legislator has taken care to include provision not only for the possible contribution, both direct and indirect, by one spouse to the material resources of the other, but also for the corresponding detriment suffered by that spouse in terms of his or her own resources.
214. I approach the case, as does the Chief Justice in his judgment, on the basis that the provision that is to be made for the wife should be made by way of lump sum. The parties agreed both in the High Court and at the hearing of the appeal that this was the most desirable way of making provision. I am in full agreement with the Chief Justice, for the reasons he gives, that 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 present case, where the amplitude of resources makes it possible, the desire of the parties for financial finality should not be frustrated. The act expressly empowers the Court to make orders at any time after the divorce, but that fact does not preclude to Court from taking note of a provision already made in the form of a lump sum intended to facilitate a clean break.
215. I do not consider that the Court should have regard to the legal right to which a surviving spouse may become entitled pursuant to the Succession Act. It is not one of the statutory matters. The Court might well, of course, arrive at a result of a similar kind based on the general considerations in section 20.
216. I have emphasised the breadth of the discretion conferred on the trial judge by the Constitution and by the act of 1996. This Court is required, on the appeal, to consider whether the trial judge made any error in law. In particular, he should have given consideration to the matters to which the statute requires him to have regard and he should not have regard to matters which are beyond the scope of his discretion. Subject to that, this Court must be conscious of the fact that this important and far-reaching statutory and constitutional power is to be exercised by the judge granting the decree of divorce, in this case the judge of the High Court. It is for the High Court judge to decide on the weight to be accorded to each of the statutory matters. This Court should be very slow to substitute its own view.
217. I turn then to consider the judgment of the learned trial judge. Given the scale of the assets and the divergence between the parties as to the level of proper provision, it would have been preferable if the judgment had set out precisely the judge's conclusion on the valuation of assets of the husband. At times, he appears to have treated them as being valued at £20 million. On the other hand, he refers to the wife's argument which was based on a net value, after the expenses of realization, of some £15 million and which sought provision in the range £4.3 to £7 million. I conclude from the fact that the lump sum payment ordered was a total of £5 million that he must have been working on a value of some £14 to £16 million.
218. The learned trial judge was correct to hold that the assessment of assets must be made at the date of the trial, for the reasons I have set out above. This proposition may require some refinement in the light of the circumstances of other cases. It is not simply a question of assessing the value of the assets at the date of the trial and making an appropriate division. A more systematic consideration of the weight of the different statutory matters will be very desirable for future cases. On the facts of this case, it is clear that the learned trial judge regarded the office block, which constituted some eighty per cent of the value of the husband's assets, as being part of his resources out of which it was "proper" for him to make provision. I believe he was entitled to come to that view, in the light of the particular history of the acquisition of that asset and the origin of the financial resources, based on the solicitors' practice, which enabled the husband to acquire it and the wife's important contribution to the laying of its foundations.
219. At one point, the learned trial judge stated that the wife "has made an overall greater contribution to the marriage than the" husband. He went on to say that he was "mindful of the need for care and discretion when dividing a fortune as substantial as that with which [he was then] dealing." The first of these statements appears designed to consider some at least of the statutory matters. It is regrettable that the judge did not consider the matter more precisely in relation to the respective contributions of the parties to the property and financial resources in question. The judge was mistaken in speaking of dividing a fortune. That is not a correct description of the Court's function in making proper provision.
220. Nonetheless, I think that in reality the learned judge reached the conclusion that the wife had contributed very substantially to the financial resources in question. If one substitutes the notion of "provision" for " division," the ultimate question is whether he was entitled, in the exercise of his discretion, and, having regard to the relevant circumstances, to make provision for the wife in the form of a lump sum of £5 million to be paid by her husband. In my view, he was. I do not think that this Court should interfere with that discretion.
221. Accordingly, I would dismiss the appeal except to the extent proposed by the Chief Justice.

ar T -v- T July 2002