Ten years after the divorce referendum, how the courts interpret the law can vary greatly, leaving many separated couples a long way from final closure, writes Carol Coulter, Legal Affairs Correspondent
Late last year a woman went to the Supreme Court seeking an increase in the €150-a-week maintenance she had been awarded in a lower court, as well as a "property adjustment order" which would have transferred some of her husband's considerable wealth to her.
The couple were agreed in seeking a divorce, having separated some years earlier. However, what was at issue was whether the separation agreement they entered into at that time should hold for the divorce, or whether all the financial issues involved should be revisited 10 years after they concluded the separation agreement.
This is an issue that has exercised the courts a lot since the introduction of divorce by the Divorce Act of 1996, which followed the constitutional amendment narrowly accepted in the referendum on November 24th, 1995. Both the amendment and the legislation specifies that "proper provision" be made for the spouse and any dependent member of the family at the time of divorce, and that various matters be taken into account when deciding what such provision should be.
This means that neither a separation agreement nor, indeed, a divorce, is final from a financial point of view. Arrangements in place prior to the divorce are revisited. It is up to the court to decide if they amount to "proper provision" in the light of all the circumstances at the time of the divorce.
This case concerned a farming couple in their 50s. In the words of Mr Justice Hardiman, who gave the lead judgment in the Supreme Court, they both came from "comfortable agricultural backgrounds", and both brought land to the marriage. They married in 1978, but the marriage lasted less than a decade. They had no children.
In 1993 they entered into a separation agreement, which included very detailed provision for the division of the family assets, primarily the land owned jointly. They each received close to 200 acres of land, and the wife remained in the family home. She also had a milk quota.
After the separation their fortunes diverged widely, with the husband becoming very wealthy, while her farm enterprise failed.
They lived their separate lives until the husband sought a divorce some time in 2003. The wife counter-claimed for divorce, seeking a number of ancillary orders including a "property adjustment order" (where property is transferred from one spouse to another), an order for maintenance, a pension adjustment order, a financial compensation order, an order for sale of such property as the court considered appropriate, and some other orders.
The case was heard in the High Court on circuit in January 2004. The court ordered the payment of €150 a week in maintenance to the wife, but denied the property adjustment and other orders. The wife appealed.
According to Mr Justice Hardiman, the husband "prospered exceedingly" following the separation, primarily through the acquisition and sale of land close to the nearby provincial city, which was expanding. The court estimated his worth at the time of the case as at about €7 million.
"The wife's post-separation fortunes are in sad contrast," the judge stated. She farmed the land she had retained but, according to experts, "in the most inefficient and expensive manner possible", by employing on a full-time basis the services of a company designed to provide short-term relief for farmers on a stop-gap basis. She ended up selling some land and the house, and built another large house on the remainder of the land.
Mr Justice Hardiman estimated her worth at the time of the divorce at about €1.25 million, with an estimated income of €25,000 a year, just over half of what she had been worth at the time of the separation.
He found that the separation agreement "undoubtedly represented proper provision for both parties . . . [ providing both with] the means to be, and to remain, financially independent." He considered their respective worth at the time as about €2 million each.
While acknowledging that their fortunes diverged since, he commented that the principal reason for the wife's worsened position was "the fact that she did not work her substantial holding in an assiduous manner".
He added that he did not think this was due to any incapacity on her part. "At the time of the separation agreement she was a healthy 40-year-old woman," he said. Nor did he accept that she suffered from any emotional incapacity to run the farm.
The wife may well have expected a different outcome based on previous court judgments. In a divorce application more than two years earlier, the High Court, in a case known as K v K, had overruled a separation agreement concluded in 1981, and ordered the husband to provide his ex-wife with the cost of a house in Dublin (she had previously had just a share in the family home in a provincial town), his interest in the former family home, and €40,000 annually in maintenance, index-linked.
These represented about a third of his assets, and about a quarter of his income, and were a substantial improvement on the wife's situation prior to the divorce. Both his assets and income had increased significantly since the separation, partly through joint business ventures with his second wife.
However, Mr Justice Hardiman pointed out that the two situations differed in important respects. In the K case the separation agreement was 20 years old, the family had six children, and the wife's work in the home had freed the husband to pursue his business interests. In this case there were no children, and the wife had been a full-time farmer like her husband.
Furthermore, the provision made at the time of the separation was equitable and adequate. In the K case, the wife, who returned to study when her youngest child finished school, ended up living in a bedsit in Dublin. Her prospects of gainful employment were greatly reduced by the years she spent caring for her family.
"The conduct of the party in himself (or herself) bringing about the circumstances giving rise to the alleged need for [ further] provision is itself of relevance to considering whether such provision should be made, and in what amount," said the judge.
In other words, the family courts should offer no welcome to an incompetent businessperson or an able-bodied person capable of working but seeking additional support from a former spouse instead. Such people, especially if unencumbered by children, should make some attempt to support themselves if their fortunes decline.
NONETHELESS, IT REMAINS true that each and every family law case that arrives before the courts, especially where there is plenty of money involved, will be examined on its own specific circumstances. Different judges are likely to give different weight to different circumstances.
Some will take account of how land was acquired by one party; others will look instead at the needs of both and, if required, divide up the land. Some people may expect the judge to punish a spouse for certain types of behaviour, such as adultery, for example, but are likely to be disappointed. The vast majority of cases are decided in the Circuit Court where there are no written decisions.
Another recent High Court judgment illustrated both how a judge might view the question of property that had been in the family for a long time, and whether the conduct of one of the spouses was a relevant factor to be taken into account.
The case concerned a couple seeking a judicial separation. They had not lived apart for the required period of four years necessary for a divorce, but the marriage had come to an apparently sudden end.
They married in 1987, and had four children. The husband was born into a wealthy family, which owned a manor house and linked tourism business. The family lived on a farm attached to the main house, which was generally not occupied. The family's income derived from the tourism business and various investments.
Although the husband had a drink problem, and the family had certain financial difficulties from time to time, the wife considered the marriage to be generally happy. The High Court judge in the case, Mr Justice O'Higgins,commented that this appeared difficult to reconcile with the fact that gardaí were called to the house on at least two occasions to deal with domestic disputes.
In 2003 they took up full-time residence in the manor house, following the death of the husband's father. In that year also the family planned to holiday together abroad in December.
On the morning of the planned departure on holiday the father said he would not be going, claiming he feared there would be arguments. The eldest child stayed at home trying to persuade him to join the family, but failed, and then joined his mother and siblings.
The day they left for the holiday an old woman friend of the husband, whom he had met again earlier that year, came to the house by prearrangement to move in with him. When the wife and children returned from holiday they found the husband and his new partner installed in the manor house.
While they were on holiday he had also sought legal advice about ending the marriage, and began legal proceedings in January. Both wife and children were understandably very distressed. They moved back into the farmhouse, and there were various unpleasant incidents between the two households in the following weeks and months.
When the question of the assets came to be considered during the judicial separation hearing, the wife made it clear she wanted the main house and lands transferred to her, as well as maintenance. They were valued at €7.7 million, and the other property was valued at about €22.5 million, though this value would be reduced by the expenses involved in any eventual sale. The net value of the properties was estimated at €24.3 million.
The wife argued that the conduct of the husband during the break-up should be taken into account in calculating the provision to be made for her and the children. The judge did not agree. While the legislation lists the conduct of the parties as one of the circumstances to be taken into account, this is qualified by the sentence "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."
"The ending of a marriage because of the infidelity of one of the parties is always likely to be hurtful and upsetting," he said. He added that it was hardly surprising that the specific circumstances, where another woman was installed in the family home while the wife and children were on holiday, "had a serious effect on the respondent and the children" who now did not wish to see their father. But he concluded that these actions did not come within a previous definition of the Supreme Court as "obvious and gross" which would justify additional financial penalties.
While understanding the wife's wish to live in the historic house, he said: "I do not think it sensible that the parties should live in proximity," in the light of the obvious tension between them.
He continued: "The applicant [ husband] has a strong claim to the house. Firstly, he is the sole owner. Secondly, he has had family connections with it for a long time. Thirdly, the respondent [ wife] did not contribute either directly or indirectly to its acquisition as it was inherited. In my view too it is desirable that the option is kept of using the manor house as part of a development plan." It would therefore be "punitive and unfair" to transfer the manor house to the wife.
Instead, he ruled that the wife should be given €3.3 million to buy a suitable house for herself and the children. In addition she was to be paid €240,000 annually in maintenance, with €20,000 each for the children, on top of their school fees.As this judicial separation was concluded after the introduction of divorce, in full knowledge of the considerations that apply when divorces are granted, it is unlikely that its provisions will be upset in any significant way if and when the parties come to divorce when they have lived apart for four years.
HOWEVER, NOT EVERYONE who inherits a substantial farm can hope to keep it in the event of a marriage break-up. The courts have by now heard dozens of cases that have resulted in the sale of some or all of a farm that has been in a family for generations, in order to provide for a wife and children following the breakdown of the marriage.
Of concern to more people whose marriages break down, however, is the issue of finality. Is it possible to come to a "full and final settlement", or will it be possible for a dependent spouse to return to court, even after a divorce, and seek further financial support? In theory, yes, though, as we have seen above, this may not always be successful. The phrase "all the circumstances" is key.
However, those who think they can agree a "final" settlement are likely to be disappointed. In the High Court earlier this year Ms Justice Finlay Geoghegan subjected a document agreed in the course of a judicial separation (called a "consent") to close analysis as part of a divorce hearing. The "consent" included the statement that the terms of the document "constitute a full and final settlement of all matters arising . . . The parties in particular acknowledge that the within terms constitute 'proper provision' within the meaning of the Family Law (Divorce) Act, 1996, and that neither party shall be entitled to make a claim . . ." The husband subsequently sought a divorce decree, which the wife opposed on the grounds that no "proper provision" existed for her and the three children. In the meantime the husband had made a lot of money from property development.
The judge stressed in her judgment that a decree of divorce could only be granted where the court considered proper provision had been made. "The obligation on the court to make such determination cannot be removed either by an acknowledgement or agreement such as that contained in . . . the consent between the parties. The time for the assessment of the assets of the husband and wife for the purpose of exercising such judgment is the date of the divorce hearing." She acknowledged that the court in family law proceedings should "seek to uphold the principle of certainty and finality of litigation", but pointed out that there were limits on this under the Constitution and relevant statutes.
In ordering the husband to make property transfers to the wife and increase her maintenance, she took into account the amounts agreed during the separation, the lack of any indexation and the subsequent rise in the consumer price index, the significant rise in the husband's earnings since, and the limitations on the wife's capacity to earn due to her family responsibilities.
When the removal of the constitutional prohibition on divorce was debated in 1995, much stress was laid on the danger of women being left destitute by reckless men abandoning them in order to marry someone else. As a result, the amendment proposed by the Government imposes a constitutional obligation on the courts to ensure that "proper provision" is made for dependent spouses and children. Subsequent legislation spells out all the circumstances that must be taken into account.
There is no finality, and if some of these circumstances change (either for the better or worse for either party) one or the other can go back to court for new orders.
However, in 1995, no-one envisaged the wealth that would be involved in some separation and divorce cases. In the past decade many millionaires and multi-millionaires have been created. Some of them have experienced marriage breakdown. This issue now is often not whether wives (normally) are being left destitute, but rather whether they can become millionaires in their own right in the course of divorce proceedings.