j.d. v. d.d

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THE HIGH COURT 1995 Record No. 660 SP

MATRIMONIAL

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

BETWEEN

J. D.

APPLICANT

AND

D. D.

RESPONDENT

Status: Reported at [1997] 3 IR 64JUDGMENT of Mrs. Justice McGuinness delivered the 14th day of May, 1997

In the proceedings before the Court the Applicant wife seeks a decree of Judicial

Separation together with ancillary Orders. The Special Summons was issued on 24th October, 1995

pursuant to the Judicial Separation and Family Law Reform Act, 1989. The matter was first listed for

hearing in July 1996 but, for reasons to which I will refer later, was adjourned and subsequently came onfor hearing before me on the 4th day of February, 1997 and on a number of other days during that month.

The Family Law Act, 1995, which was enacted on 2nd October, 1995, came into force on

1st August, 1996. Under Section 3 of that Act Part II (other than Section 25) and Sections 39 and 40 ofthe Judicial Separation and Family Law Reform Act, 1989 (the 1989 Act) were repealed. Part II of the1989 Act deals with ancillary financial, property, custody and other Orders to be made on the granting of

a decree of Judicial Separation under Sections 2 and 3 of that Act. Sections 39 and 40 are not relevant to

J.D. v. D.D. file://///GOFLEX_HOME/GoFlex Home Personal/My Documents...

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the present proceedings.

The provisions of Part II of the 1989 Act are re-enacted, with some important

amendments, in Part II of the FamilyLaw Act, 1995 (the 1995 Act) which is entitled "Preliminary andAncillary Orders in or after proceedings for judicial separation". Section 3 subsection (2) of the 1995 Act deals with the transition between the twostatutes. Section 3(2)(c) provides as follows:-

"(c) Proceedings instituted before such commencement under a provision of theAct of 1989 repealed by subsection (1) may be continued and determined as ifinstituted under the corresponding provision of this Act and Orders made inthose proceedings after such commencement shall be in force and be treatedas if made under the corresponding provision of this Act."

In the context of the present proceedings the most relevant change from the position under

the 1989 Act is in regard to the making of Property Adjustment Orders. Under the 1989 Act the power to grant a Property Adjustment Order was given underSection 15 of that Act. Section 15(2) provided that in general a Court could grant a Property AdjustmentOrder once and once only in the context of a particular marriage. The subsection provided as follows:-

"15(2) The Court may, following the granting of a Decree of Judicial Separation,consider and determine whether an Order or Orders should be made by it in

favour of a spouse under this Section on one occasion only unless on thatoccasion a spouse wilfully conceals information of a material nature relevantto the making of any such Order or Orders".

Section 15 of the 1989 Act has now been replaced by Section 9 of the 1995 Act. There is

no equivalent to Section 15(2) in the 1995 Act (nor, indeed, is there any such equivalent in thecomparable section of the Family Law (Divorce) Act, 1996). It would therefore appear that there is nolimit to the number of occasions on which a spouse can seek and the court can grant, if appropriate, a

Property Adjustment Order, save that such an Order can only be granted during the lifetime of the otherspouse and cannot be granted in favour of a spouse who has remarried.

In these proceedings, therefore, Orders in regard to maintenance and property may be


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made pursuant to Sections 8, 9, 10, 14 and 15 of the 1995 Act.

The provisions of Section 29 of the 1989 Act, which provided for the voidance of

transactions intended to prevent or reduce financial relief, are replaced by similar though slightly

differently worded provisions in Section 35 of the 1995 Act.

THE FACTS

The parties were married on the 28th June, 1966 at St. Mary's Roman Catholic Church,

Carrightwohill, Co. Cork. They have always been domiciled in Ireland and are natives of Cork. They

have five children ranging in age from 29 to 19. The only remaining dependant child is J., aged 19, who is

a student at University College Cork. J. at present resides with her mother. It appears that her father has

always met her educational expenses and continues to do so. He also provides a weekly sum towards her

other expenses. In addition J. is in receipt of 100 per month from a family trust of the D. family of which

she is a beneficiary. No Order in regard to J. is sought by the Applicant in these proceedings and it

appears she is being educated and maintained in a suitable manner.

The wife is fifty-five years of age. She comes of a comfortably off family and is one of

eight children. She received her secondary education at boarding school and subsequently attended a

finishing school in Paris. On her return to Cork she was employed in secretarial work and at one stage

worked as a secretary in the Cheshire Home in Cork. She has known her husband virtually all her life,

although they saw little of each other when she was away at boarding school.

After the marriage she did not continue in paid employment but worked in caring for the

home and family. She also did some charitable work . Recently, with the breakdown of the marriage, she

has undertaken a re-training course and has obtained what is described as a "permanent part-time" job in alocal college. She works as an administrator for evening students three nights a week, earning

approximately 114 per fortnight net. The work covers only the academic term and is not available during

the summer period. From her evidence I formed the impression that the wife, while she was willing to

work to help support herself, had no great interest in pursuing a career outside the home. Given her

relative lack of qualifications and her age group this is probably a realistic approach.

The husband's family of origin was involved in the wine and spirit trade and prospered in

that business. He has one sister, who is at present employed in the Middle East. It appears that the

husband's mother had an eye for good antique furniture and paintings , and had the means to pursue these

inclinations . The husband has inherited much of this furniture and these paintings and now describes

them as heirlooms which he wishes to pass on to his children.


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Following his secondary education the husband was employed in the family wine and spirit

business until 1968. He then moved into the auctioneering and estate agency business, being employed by

Messrs. Lisneys from 1968 to 1975. He continued in this business on his own behalf from 1975 to 1987

and then worked for some four years with Messrs Keane Mahony Smith. Since 1991 he has again been in

business on his own behalf. He is a prominent businessman and holds quite a number of directorships

including one in a major dredging and shipping company and he is a member of Cork Harbour Board. Subsequent to the marriage the parties lived in a large house of unusual design at

Currabinny, some fourteen miles from Cork City. This house had belonged to the husband's parents and

now forms a part of the assets of the D. Family Trust to which I have already referred. It appears that the

couple lived there rent free at the discretion of the trustees. The wife in evidence said that she felt very

cut off in this house especially as her husband was heavily involved in his business in Cork City.

In 1972 the parties moved to Rockmount, a substantial five bedroomed house in the

Montenotte area and continued to reside there until the break-up of the marriage. The house is held in

the husband's sole name and is free of mortgage. The purchase of the house was financed solely by the

husband. It contains valuable furniture, some modern and some inherited by the husband from his

mother. There are also some valuable paintings.

The wife seeks a Decree of Judicial Separation on the grounds set out in Section 2

subsections (a), (b) and (f) of the 1989 Act. The relevant subsections set out the grounds as follows:-

"2(1) An application by a spouse for a Decree of Judicial Separation from the otherspouse may be made to the court having jurisdiction to hear and determineproceedings under Part III of this Act on one or more of the followinggrounds:-

(a) that the Respondent has committed adultery; (b) that the Respondent has behaved in such a way that the Applicant

cannot reasonably be expected to live with the Respondent; .........

(f) that the marriage has broken down to the extent that the court issatisfied in all the circumstances that a normal marital relationship hasnot existed between the spouses for a period of at least one yearimmediately preceding the date of the application".


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In her evidence the wife said that the marriage relationship had broken down over a long

period of time. She described a life where her husband was heavily committed to his business interests

and spent little time in the home. When he was at home there was little communication and he did not

discuss his work or any aspect of his life outside the home with her. While they went away on quite a

large number of trips abroad - some of them in considerable luxury - these were always trips which arose

in connection with the husband's business interests, particularly the dredging company and the Harbour

Board. The wife would have preferred that at times they could go on a personal holiday on their own

rather than as a part of a business group.

The wife acknowledged that the husband always fully provided for her and the children in

a financial sense, although she saw him as being very careful about his money. She said that he often

complained that he was not at all well off. During the marriage the husband paid all the major householdbills. He gave the wife a weekly sum for minor expenditures on the household. In the later years of the

marriage this sum was 100 per week. It appears that on the Tuesday of each week she asked him for her

money and he gave her a cheque. He did not give her the money unless she asked and she found this

situation demeaning. In addition the husband provided the wife with a credit card for which he paid the

account each month. She described him as going through the account with her each month, raising

queries and at times complaining about the level of expenditure on particular items. It was clear from the

wife's evidence that she believed that the family's means were somewhat limited and that she was nervous

of spending more than her husband approved. She seems to have been in general rather afraid of her

husband. In the pleadings there is mention of violence by the Respondent but this was not fully borne out

in oral evidence. However the wife's evidence paints a picture of general unhappiness and lack of

closeness and communication.

During the latter part of 1994 and the beginning of 1995 the husband was increasingly

absent from the family home. At the end of March 1995 the wife was informed by a telephone call that

the husband was having an affair with a named woman. The following day the husband admitted this

affair and according to the wife said that that he very much loved the woman concerned and that the

affair had been going on since the previous summer. He refused to go to a marriage counsellor and instead

went to Dublin to meet his mistress. When he returned a couple of days later the wife asked him to leave

the family home. He did so and stayed with friends for a while. He subsequently resided in an apartment

in Cork City.

There was a considerable amount of contact between the parties during this period and

efforts were made to arrange counselling or to settle matters between them but these proved


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unsuccessful. At the beginning of December 1996 the husband returned to the family home and on 23rd

December the wife and the daughter J. left and went to reside at a house which the wife had acquired in

the intervening period. This remains the position to date.

The husband in evidence expressed deep regret at the breakdown of the marriage but

accepted that the breakdown seem irretrievable and that a Decree should be granted. He admitted the

adultery but said that the affair was at an end. From his point of view he felt that over the years the

marriage had been reasonably happy. He felt that he had always provided well for his family and given a

good education to his children. He did not agree that his method of providing the weekly housekeeping

money at the request of his wife was in any way demeaning and he felt that some supervision of the credit

card accounts was a reasonable procedure. The husband saw himself as a good provider, who had always

fulfilled what he saw as the proper role of a husband and father. He also repeatedly stated in evidence

that despite the breakdown of the marriage he had at all times been anxious to make proper provision for

his wife. He was anxious to settle financial matters between them; as he put it, he wanted it "fixed". He

did not file a replying affidavit to the proceedings and he explained this by saying that he "wanted to settle

and make proper provision for his wife - he was disappointed that it had come to this". During the period

of negotiation between the parties he was resentful of the role of his wife's solicitors (who over a longperiod were seeking full disclosure of the husband's assets) and felt that they were not properly informinghis wife of his "generous offers". It did not "occur to him" that he would have to reveal his assets.

On the evidence it appears that over a lengthy period the wife suffered considerable

unhappiness in the marriage. She and her husband had very different views of the respective roles of

marriage partners. She sought communication and closeness and wanted to play a genuine part in her

husband's life outside the home. He held a much more traditional view of the husband's role; he had

fulfilled his duty by providing a good home, a good lifestyle, and good education for his children - all of

which he certainly did. Both from the wife's evidence and from his own it is clear that he saw himself as

being very much in control. Financially in particular he was the one to make the decisions. He also, I

consider, underestimated the catastrophic effect that his extra marital affair had on his wife and, I think,

still does not really understand his wife's unhappiness with the marriage relationship over the years. Sadly,

this is a marriage which might have been saved by counselling had it been undertaken in the early years,

and even up to the time of the husband's affair the wife might well have struggled on in the relationship.

However, the combination of the husband's affair and the fact that the children, who for her were the main

source of happiness in the marriage, are now adults and largely gone from the family home, means that the

marriage has now reached a stage of irretrievable breakdown.


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While accepting that a Decree would be granted, Ms. Dunne S.C. for the husband

submitted that the Decree should be granted pursuant to Section 2 (1)(f) only, since the wife's evidencewas that the marriage relationship had broken down a long-time prior to the husband's actual adultery. I

have already set out my view of the history of the marriage as shown in the evidence. I accept that the

wife, in hindsight, believes that the marriage had broken down for some years before the actual separation

of the parties but I feel that some slight hope of reconciliation remained up to the time that the husband

embarked on his extramarital relationship in the summer of 1994. The husband's adultery put the nail in

the coffin of the marriage and I am not, therefore, prepared to ignore it as a ground for a Decree of

Judicial Separation. I will therefore grant a decree pursuant to Section 2(1)(a) and Section 2(1)(f) of the1989 Act.

THE FINANCIAL BACKGROUND

The parties in these proceedings are fortunate in that this is a family with ample financial

resources, sufficient to provide for both parties. The Court is not, therefore, faced with the all too

common situation where a family has barely enough resources to provide for one household and where

the breakdown of the marriage brings both parties below the poverty line.

During the course of this marriage the wife was by and large financially dependent on her

husband . However, she has her small earnings from her employment and she possesses shares which she

inherited from a relative. At one stage these were worth some 60,000 but in the summer of 1996 she

realised some of her shares in order to put down a deposit on a house. In her affidavit of means and in her

oral evidence she gives the present value of her shares as 46,433.87 giving her an income of 67.04 per

week for the year 1995. During the marriage she used this income for extras for herself and the children.

The family home at Rockmount, Montenotte is valued by Mr. Peter Cave of Messrs.

Hamilton Osborne King as between 150,000 and 175,000 in January 1996. In evidence Mr. Cave said

that the market had risen some 10% since that date. He said that it would be possible to sell part of the

garden of the house as a separate site for between 35,000 and 40,000 (if planning permission were to berenewed) but that if this was done it would reduce the value of the house by about 20,000. During theperiod of negotiations between the parties the family home was put up for sale and was viewed by a

number of interested parties but the best offer received was 165,000. The husband was unwilling to

accept this offer feeling, correctly on the evidence, that the house was worth more. The husband himself,

in his capacity as an auctioneer was handling the sale and I have some doubts as to whether his heart was

fully in it. He has now returned to live in the family home and may well remain there.


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During negotiations between the parties and in his evidence before this Court the husband

made it clear that, despite the fact that the family home was in his sole name, he accepted that his wife

was a joint owner. Relying on this submission and on a tentative agreement that the family home wouldbe sold and the proceeds divided the wife took steps in July 1996 to acquire a new home for herself and

her daughter J. At this point it appears that both parties believed that the family home was worth

200,000. The wife purchased a newly built house in the same area as the family home for a sum of

110,000. As already stated she financed the deposit from the sale of some of her own shares. Her

brother lent her 62,000, and in addition she borrowed 50,000 from Allied Irish Banks. All of this was

done in reliance on the proposed sale of the family home and a division of the proceeds. It was to this

house, which is at present minimally furnished, that the wife and her daughter moved in December 1996

when the husband returned to the family home.

In purchasing this house prior to either a definite settlement or the determination of a court

proceedings the wife acted somewhat prematurely, not to say precipitately, particularly as she does not

appear to have given the husband any notice of what she was doing. However, in his evidence the

husband stated that he was willing to raise funds to pay all monies owing both to the wife's brother and to

Allied Irish Banks as he accepted that his wife must be properly housed. This is both fortunate and

sensible; on the criteria set out in Section 16 of the Family Law Act, 1995 the Court would undoubtedly

have made a Property Adjustment Order transferring the family home into the joint names of the parties. I accept the assurance of the husband and there is now no need to make such an Order.

Mr. Nicholas Nicolson, Fine Art Consultant, of Messrs. Hamilton Osborne King gave

valuation evidence in regard to the valuable furniture and works of art that form part of the contents of

the family home. For insurance purposes he valued these items at 191,570 but stated that the market

value would be somewhat lower. Three paintings which form part of the assets of the husband are on

permanent loan to the Crawford Gallery in Cork. These are valued at 80,000. The husband regards

these pieces of antique furniture and works of art (which were purchased by his mother) as "D. familyheirlooms" and plans that they should be inherited by children of the family. He stated that his only sister

has no children. The wife in evidence stated that she did not wish to lay claim to any of these heirlooms;

she was happy that her husband should keep them. The wife did, however, wish to have some of the

modern furniture from the family home to help her to furnish her new home and she felt that the husband

should contribute towards the furnishing and equipment of her new home.

While I accept the wife's willingness to leave the antique furniture in the possession of her

husband, it is of course clear that these valuable items form part of the husband's financial assets and


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cannot be ignored in assessing the resources of the family as a whole.

The financial position of the husband is more difficult to ascertain. Throughout the period

prior to the actual Court hearing he was remarkably reluctant to swear an affidavit of means or to make

discovery, either voluntarily or in response to Orders of this Court. I do not accept his explanation that it

"did not occur" to him that he would have to reveal his assets and I find it hard to believe that his solicitor

would not have impressed on him the importance of full disclosure. The case was originally listed for

hearing on the

18th July, 1996. The husband's affidavit of means was sworn on the 12th July, 1996, as was his Affidavit

of Discovery. Both were incomplete in several highly material matters.

In his Affidavit of Means the husband gives his income from his auctioneering business as

19,827 per annum - based on 1993/94 accounts. He lists other income from directorships, investments,

bank deposit interest and the D. Family Trust totalling 18,600. This gives a total gross income of in or

about 38,500.

His assets are also listed in the affidavit of means. Like his wife he values the family home

at 200,000. He gives no valuation for the heirlooms from the D. family but values the remainder of the

contents of the family home at 20,000. He lists shares valued at 101.568, and deposits in various bank

accounts at in or about 165,000. He has a BES scheme of investment at 10,000. He has various

pension investments and a life assurance policy.

On 27th September, 1966, shortly after the marriage of the parties, the D. family set up a

family trust. The settlor of the trust was the husband's mother, now deceased, and the trustees were J. D.,

a relative residing in London, and J. O'L., a Cork accountant. The initial sum settled was 100,000. The

beneficiaries were the settlor herself, her children, their spouses and children and remoter issue. The

present beneficiaries, therefore, are the husband and the wife, their five children, the husband's sister and

her husband. The present assets of the Trust are considerable, being the house at Currabinny, valued at

about 200,000, and shares worth approximately 400,000.

By the time of the hearing of the proceedings Mr. O'L. was advanced in years and suffering

from ill health; he was unable to come to Dublin to give evidence.

Mr. J. D. had died on the 17th October, 1974 and from that date until very recently Mr. O'L. had been the

sole trustee. Mr. N. B., who had been appointed a trustee on the 16th January, 1997, gave evidence to this

Court. Mr. B. had little detailed knowledge of the Trust but had gained some outline information from Mr.

O'L. It is a discretionary Trust and no letter of wishes exists. Currently the D. children are paid an

allowance of 100 per month. In some cases this allowance was paid at the request of the wife. The


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husband received a lump sum payment of 10,000 in April 1976 and is paid a sum of 50 per month. In

the early 1980's a sum of 67,000 was paid to the husband's sister to enable her to purchase a house in

London. No monies had been paid at any time to the wife. In her evidence she said that, while she was

aware of the existence of the Trust and had asked for the allowances for her children, she was unaware

until shortly before the proceedings that she herself was a beneficiary. After the husband left the family

home in April 1995 the wife appears to have been very much afraid that she would be left without means.

She approached Mr. O'L. to ask if it was possible for the Trust to make some provision for her. Mr. O'L.

replied that "in no circumstances could she touch the Trust". At a later stage the husband's sister, A.,

conveyed the same message to her in even stronger terms.

Both the husband and wife and his sister and her husband have at different times resided

rent free at Currabinny. A somewhat curious feature is that a local solicitor who is a friend of the D.

family was permitted to live rent free at Currabinny for in or about twelve years. No real explanation of

this was given by either Mr. D. or Mr. B., both of whom said that the matter was entirely in the control of

Mr. O'L.. Mr. D. in his evidence stated that the purpose of the Trust was the protection of the D. family

property and I have no difficulty in accepting this evidence. I also reached the conclusion that Mr. D.'s

knowledge of and influence over the Trust was somewhat greater than he was prepared to admit. It may, I

think, be safely assumed that the discretion of the trustees is unlikely to be used in future to make

payments to Mrs. D. as a beneficiary.

A Family Trust also exists in the family of the wife. This Trust dates from the 1st July,

1941 and appears to be a form of marriage settlement for the wife's mother,

Mrs. L. (ne D.). The capital assets of this Trust have always been in the form of shares and the trustdeed provides (at paragraph 4) that:-

"The trustees shall pay the income to be derived from the said shares specified in theSchedule hereto or the investments representing the same to the said D. D. and her

assigns during her life for her separate estate and without power of anticipation."

Mrs. L. (ne D. D.) is still living. After her death the beneficiaries of the Trust are to beher children and remoter issue and Mrs. L. has a power of appointment by deed or will. At present Mrs.

L. has eight children, twenty three grandchildren and two great grand children. The family solicitor Mr. K.

O'K., who gave evidence in regard to this Trust, stated that Mrs. L. had to date made no appointment by

deed. He was unaware of the contents of her will. The present assets of the Trust are valued at 285,230


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as at 7th February, 1997.

The wife's parents own two houses, one at Glanmire valued at approximately 150,000 -

180,000 and one in Kerry valued at approximately 150,000. Apart from the Trust their sole income at

present is the contributory old age pension.

Subsequent to the swearing of the husband's affidavit of means and affidavit of discovery

in July 1996, the wife found certain bank documents in the family home which referred to accounts which

did not appear in the husband's affidavit of means . One of these was a sterling account in the National

Westminster Bank; another was a Swiss account at Kantonalbank. More importantly there were

documents in connection with accounts held in the Bishopstown branch of the Allied Irish Banks in the

names of D.J. Byrne Esq., and

Mrs. J. Byrne which indicated deposits of in or about 150,000.

In part on account of the unsatisfactory nature of the financial information the

matrimonial proceedings which had been listed for 18th July, 1996 were adjourned and the wife soughtfurther and better discovery. On 18th October, 1996 an Order for Discovery of the relevant accounts was

made by Barron J. An affidavit was sworn on the 7th November, 1996 by the husband. This, however,

was by no means the end of the matter.

Evidence was given at the trial before me on subpoena by two bank officials - Mr. Frank

O'Meara, Branch Manager, Bishopstown branch AIB and Mr. Jim O'Shea, an official in Bishopstown

branch AIB. From their evidence certain facts emerge. Mr. D. had

opened a deposit account in the name of D. J. and J. Byrne in July 1989 in the sum of 141,000. The

bank was well aware of Mr. D.'s identity and that the sample signatures given for the account were false; I

do not accept the somewhat feeble efforts which

Mr. O'Shea made to explain away this situation.

A couple of weeks after the account was opened 125,000 was transferred to a term

deposit account in Allied Irish Finance. The interest from this account was transferred back to the original

account from time to time and was used on a regular basis to pay

Mrs. D.'s Visa Account, which was also held through AIB. This fact in itself gives the lie to Mr. O'Shea's

attempt in his evidence to imply that he thought the accounts were opened by Mr. D. for a business client.

Mrs. D. issued her judicial separation proceedings on the 24th October, 1995. By May1996 it was clear:-

(a) that all negotiations for settlement had broken down, and


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(b) that Mr. D. was shortly going to have to swear an affidavit of means and an affidavit ofdiscovery.

On the 10th May, 1996 Mr. D. instructed the bank to close the accounts and to withdraw

148,283.77. On the 14th May, 1996 this money was transferred to AIB's branch in the Isle of Man by

Mr. D.. On the 17th May, 1996 Mr. D. set up a Trust through the AIB Trust Company (Isle of Man)Limited, which he stated in evidence was for the benefit of his children. A Trust document which was in

the form of a standard charitable discretionary trust was handed into Court. The beneficiaries named in

this document are Cancer Research and the International Red Cross. By letter dated the 24th July, 1996

the AIB Trust Company acknowledged to Mr. D. that the names of his five children had been added as

beneficiaries. This letter was also handed into Court.

When cross-examined about his failure to disclose this major asset in his affidavit ofmeans, Mr. D. said that he did not include it because the money was "no longer under his control". He did

not tell either his regular business accountant,

Mr. Humphries, or the accountant who had been advising him for the purpose of the present proceedings,

Mr. James Mangan, about the existence of the Bishopstown accounts or the transfer of the monies to the

Isle of Man trust. Both accountants gave evidence before me and I accept absolutely that they knew

nothing of the undisclosed accounts until the matter was raised by Mrs D.'s Solicitor. It is also clear on Mr

D.'s own evidence that these monies were never at any stage disclosed to the Revenue Commissioners.

When asked about the source of the monies in cross-examination, Mr D. said they came from good deals

that he had done from time to time over the years.

On 8th February, 1996 an open letter was written by Mr D.'s Solicitors to Mrs D.'s

Solicitors making an offer of payment of 20,000 gross per annum by way of maintenance, plus a lump

sum of 110,000 from the proceeds of the sale of the family home when that sale was completed. In the

ensuing correspondence, the wife's Solicitors, not unnaturally, pointed out that they were unable properly

to advise their client in the absence of any full disclosure of the husband's assets and liabilities. Given the

fact that the statutory position both under Section 20 of the Judicial Separation and Family Law Reform

Act, 1989, and under Section 16 of the Family Law Act, 1995 is that the Court, when fixing periodic or

lump sum maintenance and when making property adjustment Orders, must take into account all theassets and liabilities of both parties, the attitude of the wife's Solicitors was perfectly proper. In evidence

the husband said that his Solicitors informed him that he need not swear

affidavits of means or discovery until all negotiations had failed, and it was certain that the matter was


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proceeding to a Court hearing. I hope that this was a misunderstanding on the husband's part, as such an

attitude on the part of a Solicitor handling a family law matter can only militate against parties reaching a

proper and desirable settlement without the need for lengthy and costly Court proceedings.

The husband, on his own evidence, at this stage felt that he had made a generous offer and

that his efforts at settlement were being "repulsed" by his wife and by her Solicitor. He then proceeded to

transfer the monies to the Isle of Man. While the husband declares that he did this solely for the benefit

of his children, there seems little doubt that his predominant motive was to remove these monies from the

assets which fell to be declared in the proceedings and which might be used to benefit his wife.

Further evidence as to the husband's financial position was given by his business

accountant, Mr Barry Humphries, and by Mr James Mangan of Messrs Cooper and Lybrand, who had

been retained to advise the husband for the purpose of the matrimonial proceedings. There is no necessity

to detail their evidence but a number of points emerge. Financial statements for the husband's

auctioneering business for the years 1993, 1994 and 1995 were handed in. I have no doubt that these

reflected the information which was given to Mr Humphries who struck me as an honest and candid

witness. He prepares the accounts each year for tax purposes, and the tax position of the business as

reflected in the accounts is well in order. He stated that the accounts for 1996 were at roughly the same

level as 1995. The business has had its ups and downs like any auctioneering business.

A curious feature and one which must give rise to query is that the business operates three

client accounts, which at present total 95,000, but no client ledger is maintained. There is therefore no

record whatever (other than in Mr D.'s head) of who actually owns the money in these accounts. In replyto cross-examination, Mr D. admitted that some of the money in these accounts could well be his own,

rather than that of his clients. Secondly, there is a comparatively large cash element in the business, about

which Mr Humphries is given no information. In reply to cross-examination, Mr D. admitted to receiving

cash payments of an average of 5,000 to 10,000 per annum, which he simply put in his pocket and did

not lodge in any bank account.

In addition to his fees for directorships Mr D. is given, as has already been mentioned,

quite numerous trips abroad as part of the benefits of his office. For some of these trips he receives very

generous expense allowances - a figure of 8,000 was mentioned for one of them.

Mr Mangan, the husband's second accountant, gave evidence of an up to date valuation of

Mr D.'s shareholdings; these are now valued at 150,000.

Taking all the financial evidence together, it is very difficult for the Court to rely fully on

any of the husband's statements with regard to his assets or his income. It is certainly clear that both


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considerably exceed what was set out in his original Affidavit of means sworn on the 12th July, 1996.

Even a cursory perusal of his credit card accounts would show that his lifestyle is certainly not that of a

man whose gross income is 38,000 per annum.

Mr Tadhg Lombard, accountant, gave evidence on behalf of the wife. He expressed

considerable doubts about the reality of the business accounts. He considered that, allowing for her

shares and her part-time employment, the wife would require an additional 20,000 gross per annum by

way of maintenance from her husband. He considered that the most secure way that this could be

provided would be by a lump sum payment by the husband with which the wife could purchase an annuity

to cover the remainder of her life. He calculated that to purchase such an annuity, a sum of 400,000

would be required. He provided a calculation of the husband's total assets, which he said were 1.6

million. It should, however, be noted that this included 600,000 from the family trust, which is not in

fact part of the husband's assets. Mr Lombard calculated that some 700,000 of Mr D.'s assets were

realisable and available. This did not include the trust funds. Mr Lombard stressed the wife's

inexperience in handling money or property and her wish for complete security.

As far as the actual amount needed for the proposed annuity was concerned, Mr Mangan,

the husband's accountant, did not challenge Mr Lombard's calculations. However, he felt that an annuity,

while secure and requiring little or no management by the recipient, was a very poor type of investment.

A lesser sum could be invested in shares or, for example, the purchase of a house/property which could be

rented out, and which would provide an income at the same level. Such an investment would also have an

advantage of keeping the capital asset in being and allowing it to pass to the children of the family on the

death of the wife. Mr Mangan spoke of the importance of tax efficiency in any financial arrangement

between the parties and this I accept is a desirable aim. He pointed out the advantages, from an income

tax point of view, of the payment of periodic maintenance by the husband to the wife. Much of these tax

advantages would be lost if the lump sum/annuity plan were put into practice.

SUBMISSIONS

In opening the case to the Court, Mr McMenamin, Senior Counsel for the wife, raised the

issue of the D. family trust and suggested that the wife would be seeking orders directly affecting the

assets of the trust. In his concluding submissions, however, he did not seek such orders, confining himself

to submitting that the Court should take the existence of the trust and its possible benefits to Mr D. into

account. He strongly supported the plan put forward by Mr Lombard for the payment by the husband of a

lump sum of 400,000, which would provide a satisfactory income for the wife for her lifetime. This he


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saw as having the advantages of security and ease of management for a person who was unaccustomed to

any form of financial management. He also strongly argued that the wife was extremely desirous of a

"clean break" situation, where she could have her own income and run her own life. He stated that the

wife was anxious to avoid a position where she was continuously dependant on the husband for

maintenance; as I understand the position, the wife fears that in such a situation the husband would

continue to exercise power over her and to dominate her life.

Mr McMenamin also submitted that a continuing maintenance situation might well be

difficult for the Court to "police" in the future, given Mr D.'s history of reluctance to be open or honest

about his true financial position.

With regard to the monies held in the Isle of Man trust, set up by the husband, Mr

McMenamin, on behalf of the wife, sought an order pursuant to Section 35 of the Family Law Act, 1995

setting aside that disposition and bringing the relevant monies into the general pool of assets available for

distribution between the husband and the wife.

On behalf of the husband, Ms Dunne, Senior Counsel, submitted that the payment of so

large a lump sum would deprive the husband of virtually all the disposable capital he had accumulated by

his work over the years and that the purchase of an annuity would frustrate the husband's intention of

passing on capital assets to his children. She advocated the making of orders which would ensure that the

wife would have her present house free of mortgage, together with a sum to assist with providing

furniture, and a proper periodic sum by way of maintenance. In the witness box the husband had himself

made an open offer of a lump sum of 200,000 to provide for house and furniture, together with periodic

maintenance in the sum of 20,000 per annum gross. Ms Dunne argued that this was a very fair offer and

correctly pointed out that the husband had no history of defaulting on maintenance, so that the wife's fears

for the future were ill-founded. She also argued that to provide through a lump sum/annuity arrangement

for a continuing secure income for the wife would be to deprive the husband of his right to vary the

maintenance downward should his income decrease. The wife would thus be placed in a more secure and

more advantageous position than the husband.

As regards the D. family trust, Ms Dunne argued that the husband and the wife were

equally beneficiaries, that the trust was discretionary and that it should not be taken into account. She

also stressed that the wife could have expectations from her own family's trust on the death of her mother

and that the wife's own shares must be taken into account.

It therefore appears both from the evidence and from the submissions of Counsel that the

main question before the Court is the form of financial relief to be granted to the wife. The only


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dependant child of the marriage is, it seems, fully provided for. The wife, as has been previously set out,

has already acquired a separate residence, worth rather more than half the value of the family home. The

husband has proposed fully to finance this residence and if he undertakes to the Court to follow this

course of action there should be no need to make either a property adjustment order affecting the title tothe family home or an order for its sale. In that situation, the family home would remain in the sole name

of the husband and he would be enabled either to sell it and purchase another property for his own use or

to raise finance by way of mortgage. I consider that this course of action has considerable practical

advantages of simplicity and flexibility.

The principal matter at issue between the parties, therefore, is the level of maintenance

which should be paid either by lump sum or by periodical payments by the husband to the wife and the

form which this maintenance should take. In particular it falls to the Court to consider whether it is either

feasible or desirable for the husband to discharge his duty to maintain his wife (which is accepted by him)by the payment of a global lump sum which would, as far as possible, create a situation of finality and

certainty.

THE LAW

In considering both the amount and the form of maintenance and in considering the

financial resources now available to the husband, the Court must have regard to certain legal principles, in

particular those set out in the relevant statutes.

I shall deal first with the question of the various trusts involved - the D. family trust, the

D./L. family trust, and the Isle of Man trust. Since, in the event, Counsel for the wife did not seek an

actual order affecting the D. trust, he did not open any authority to me on this question. While Ms Dunne

asserted in argument on a number of occasions during the trial that it was not open to the Court to make

any order affecting the D. family trust and indeed that it could play no part in the Court's decision, she

likewise did not refer me to any authority on the matter. In fact the authorities that I have been able to

trace on the subject are sparse, but appear to indicate that the Court can only deal with property to whichthe beneficiary is entitled in possession or in reversion. This principle is set out in the case of Milne v

Milne [1871] LR2 P and D 295, in the judgment of the Judge Ordinary at page 299 of the report. However, the whole context of that decision is so firmly set in the law affecting married women's property

at the time that it may not be entirely relevant to today's very different statutory and general legal

framework.

A rather more modern decision of the English Court of Appeal, Howard v Howard [1945]


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1 All ER 91, may be of more assistance. In that case the husband had an annual allowance of 150 from

a great-aunt; and he was one of the possible beneficiaries

under the discretionary of an ante-nuptial settlement made by the great-aunt. On the petitioner's

application for maintenance and for variation of the settlement, an order was made whereby (a) theappellant should pay the petitioner during their joint lives or until further order 150 per annum; and (b)the ante-nuptial settlement was varied by directing the trustees to pay the petitioner out of the settlement

funds the sum of 150 per annum during her life dum sola et casta. On the appeal by the husband the

Court held that it had no jurisdiction to make an order with a view to putting pressure on trustees whohave a discretion. Lord Green, Master of the Rolls, stated - at page 94 of the report:-

"Counsel for the wife informed the Court that the basis of the Judge's decision was this. He appreciated that, by taking 100 out of the voluntary allowance of 150 the resultwould be that only 50 would be left. But he took the view that, if he made an order ofthis kind, the effect would be to bring pressure upon the trustees to make to the husbandan allowance out of the settlement income. If that was the object of this order - and Ihave difficulty in seeing what other justification for the order could be suggested - in myopinion, it was quite wrong in principle. Trustees who have a discretion are bound to

exercise that discretion, and, if they do so, nobody can interfere with it. In my opinion,there is no jurisdiction in the divorce Court to make an order which will leave thehusband in a state of starvation with a view to putting pressure on trustees to exercisetheir discretion in a way in which they would not have exercised it but for that pressure. Under discretionary trusts - as, indeed, under this trust, - other persons are potential

beneficiaries. In many such trusts the range of potential beneficiaries is a very wideone. Here it extends

to any future wife that the husband may marry and the children of any future marriage. The settlement is not being varied in that respect. On what grounds should pressure be

put upon the trustees to exercise their discretion in such a way as to pay the husband, in

order that he may pay maintenance to his wife, sums which, in their discretion, they wouldnot otherwise have paid to him?"


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The learned Judge went on to say that if the trust took the form of an ante-nuptial

settlement of which the spouses alone were beneficiaries it would be open to the Court under the statutory

power given by Section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925 to vary such asettlement. This power corresponds to the power to vary ante and post-nuptial settlements which was

provided in Section 15(1)(c) of the Judicial Separation and Family Law Reform Act, 1989 and which isnow provided in Section 9(1)(c) of the Family Law Act, 1995 and Section 14(1)(c) of the Family Law(Divorce) Act, 1996. On a previous occasion I have at some length traced the history of this power tovary ante and post-nuptial settlements in my judgment in the case of N(C) -v- N(R), a judgment reportedat [1995] 1 Fam LJ 14 and there is no need to repeat it here. In the Howard case this power is referred to by McKinnon L J in his brief judgment at page96 of the report as follows:-

"The power of the Court, after a decree of divorce, to vary settlements with the object ofproviding alimony was first conferred by the Matrimonial Causes Act, 1859 Section 5which was replaced by the Supreme Court of Judicature (Consolidation) Act, 1925Section 192. That refers in terms to nuptial settlements made 'on the parties'. I aminclined to think that this refers to settlements under which the late spouses - or one ofthem are cestuis que trustent and, therefore, entitled to call upon the trustees to accountto them or him or her. A settlement by which the terms of which the trustees may at theirdiscretion use the capital or income for the benefit of persons they may select would notseem to be such a settlement merely because the spouse or spouses is or are within the

class of possible beneficiaries whom the trustees in their discretion are entitled toselect".

In the present case neither the D. trust, with its variety of beneficiaries, nor the D./L. trust,

which gives the wife's mother a power of appointment among an even wider variety of beneficiaries,

would, it seems to me, fall to be dealt with under Section 9(1)(c) of the Family Law Act, 1995, and anorder should not be made either directly affecting either trust or putting pressure on the trustees in the

exercise of their discretion.

However, it seems to me that I should not entirely ignore the existence of these trusts and

the comparative likelihood of either spouse to benefit from them. Section 16(2)(a) of the Family LawAct, 1995 directs the Court, in deciding whether to make a periodical or lump sum maintenance order, to


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have regard to "other financial resources which each of the spouses concerned has or is likely to havefor the foreseeable future". In looking at this "foreseeable future" I feel that I should bear in mind thatthe husband is a beneficiary of a very considerable family trust and one which has in the past made

sizeable capital payments to his only sister to enable her to acquire property. Ms Dunne quite correctly

points out to me that the wife is also a beneficiary of the D. trust. However, the unchallenged evidence of

the wife as to the attitude of the (then sole) trustee and of the husband's sister would indicate that, to saythe least, the wife is unlikely to reap any benefits from the D. trust. In the circumstances it would be

surprising if she did.

While the wife may indeed benefit to some extent in the future from her mother's trust, the

size of the trust is much less and the number of possible beneficiaries very much greater. It seems

doubtful that the wife's financial position in the "foreseeable future" will be greatly altered from this

source.

The Isle of Man trust is of course entirely different. I have already referred at some length

to the circumstances of the establishment of this trust by the husband.

Section 35 of the Family Law Act, 1995, insofar as it is relevant, provides as follows:-

"35(1) In this section - 'disposition' means any disposition of property howsoever made other than a disposition

made by a will or codicil;

'relief' means the financial or other material benefits conferred by - (a) an order under section 7, 8 or 9....... and references to defeating a claim for relief are references to - (i) preventing relief being granted to the person concerned, whether for the benefit of

the person or a dependant member of the family concerned, (ii) limiting the relief granted, or (iii) frustrating or impeding the enforcement of an order granting relief; 'reviewable disposition', in relation to proceedings for the grant of relief brought by a

spouse, means a disposition made for any other person but does not include such adisposition made for valuable consideration (other than marriage) to a person who, at thetime of the disposition acted in good faith and without notice of an intention on the partof the respondent to defeat the claim for relief.

(2)(a) The court, on the application of a person ('the applicant') who - (i) has instituted proceedings that have not been determined for the grant of relief, .....


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may - .....

(II) if it is satisfied that the other spouse or other person has, with that intention, made areviewable disposition and that, if the disposition were set aside, relief or differentrelief would be granted to the applicant, make an order setting aside thedisposition......

(c) An application under paragraph (a)shall, in a case in which proceedings for relief have been instituted, be made in thoseproceedings.

(3) Where the court makes an order under paragraph (a) or (b) of subsection (2), itshall include in the order such provisions (if any) as it considers necessary for itsimplementation (including provisions requiring the making of any payments or thedisposal of any property).....

(5) Where an application is made under subsection (2) with respect to a disposition thattook place less than three years before the date of the application or with respect to adisposition or other dealing with property that the other spouse concerned or any other

person proposes to make and the Court is satisfied - (a) in case the application is for an order under subsection (2)(a)(I), that the disposition

or other dealing concerned would (apart from this section) have the consequence, or (b) in case the application is for an order under paragraph (a)(II) or (b) of subsection

(2), that the disposition has had the consequence, of defeating the applicant's claim for relief, it shall be presumed, unless the contrary is

shown, that the other spouse or other person disposed of or otherwise dealt with theproperty concerned, or, as the case may be, proposes to do so, with the intention ofdefeating the applicant's claim for relief".

When the wife issued her proceedings on the 24th October, 1995 the husband had in his

possession and under his control the monies contained in the accounts at the Bishopstown branch of AIB.

In May 1996, as already set out, he transferred these monies to the Isle of Man and set up the charitable

trust. It is crystal clear that this is a reviewable disposition under Section 35. Even were the presumption

contained in subsection (5) not included in the section, I have already made clear my view that thisdisposition was, in essence, an effort to reduce the monies available for distribution to the wife. I consider

that the husband's explanation of his action as given in his evidence falls very far short of rebutting the


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presumption in subsection (5). I therefore propose to make an order under Section 35(2)(a)(II) settingaside this disposition, together with any ancillary orders directed to the husband and to Allied Irish Banks

which may be needed to put such an order into effect.

It is unfortunate that the husband saw fit, some six weeks before the trial of the action, to

inform his children that he had set up this trust for their benefit, as the setting aside of the trust may cause

some resentment against their mother. I can only hope that the matter can be clearly and fairly explained

to them.

I might add at this point that I am more than a little concerned at the part played by the

officials of Allied Irish Banks in this whole matter. They must, at the very least, have had the strongest

suspicions as to the nature of the accounts in question and as to the reasons for the sudden transfer of

monies to the Isle of Man. Their duty to their client (to put their duties at the lowest level) should surelyhave included some advice as to the inadvisability, if not illegality, of some of his actions but there is not

the slightest evidence of any such advice being given. I will make no further comment.

The next question that arises is as to whether it is open to this Court to endeavour to create

a situation of finality - what is commonly called a "clean break" - by making a sizeable lump sum order in

favour of the wife and making no order for periodic maintenance. This was most strongly sought by the

wife in her own evidence and by her Counsel in his submissions. It was also emphatically recommended

by her accountant, Mr Lombard.

Firstly, of course, it is not possible, nor has it been possible since the enactment of the

Family Law (Maintenance of Spouses and Children) Act, 1976, to make an order which purports to cut offthe right of a spouse to apply for maintenance. This is clear both from the provisions of that statute itself

in Section 27 and from the oft-quoted judgment of the Supreme Court in the case of H.D. -v- P.D. (unreported) Supreme Court 8th May, 1978. The judgment of Walsh J. in that case deals in the main withthe situation where spouses have provided for the payment of maintenance by some form of agreement

but the principle would clearly apply to the future variation of maintenance orders made by the Court.

This was, indeed, accepted by Counsel for the wife, and Ms Dunne argued that if the Court were to

provide for the annuity income sought by the wife the husband would lose his "right to vary" the

maintenance. It seems to me that, in a sense, the contrary is the case. Just as the payment of a large

capital sum for an annuity could not prevent the wife, in certain circumstances, from applying for further

maintenance in the future, so also it could not prevent the husband, if he fell on hard times, from applying

for maintenance to be paid to him by the wife, thus reducing her annuity income.

However, in a family which has, and which is likely to have, reasonable substantial


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financial resources it might well seem unlikely that either of the above situations will occur in the future.

Should it then, in the light of the statutory provisions, be the policy of the Court to try to provide a

situation of certainty and finality on the irretrievable breakdown of a marriage? The desirability of finality

was referred to in the Supreme Court decision in the case of F -v- F (Judicial Separation) reported at[1995] 2 IR 354. In that case the applicant had brought proceedings for divorce a mensa et thoro in theCircuit Court in 1986. The proceedings were settled on 2nd June, 1987 and were stayed with liberty to

apply. In 1992 the Applicant instituted new proceedings for Judicial Separation pursuant to the 1989 Act,

seeking a decree of Judicial Separation and ancillary orders including a property adjustment order. TheCircuit Judge stated a case to the Supreme Court which by a majority held that the Applicant was notentitled to bring the second set of proceedings. In her Judgment the learned Denham J., under the heading

of finality, stated at page 369 of the report

"Certainty and finality of litigation are important. Some issues in Family Law are notcapable of a final order by law e.g. maintenance. However, the fact that some issues inFamily Law Courts are not capable of finality does not deprive this area of the law of theimportant concepts of certainty and finality. Whereas care for dependants requires thatthere be no finality in some areas the general law regarding certainty should apply unlessexcluded by law or justice".

On principle I find myself entirely in agreement with the learned Denham J. and I can well

understand - and indeed sympathise with - the reasons why the wife in the present case wishes to achieve

a position of certainty and finality. However, F -v- F was decided in the context of the Judicial

Separation and Family Law Reform Act, 1989, where at least in the important area of property adjustmentorders finality could be reached as such an order could normally be made on one occasion only. With all

the respect which is due to the views of the learned Denham J., it appears to me that by the subsequent

enactment of the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996, the Oireachtas hasmade it clear that a "clean break" situation is not to be sought and that, if anything, financial finality is

virtually to be prevented. Under both the 1995 Act and the 1996 Act, as pointed out earlier in this

judgment, there appears to be no limit on the number of occasions on which a property adjustment ordermay be sought and granted. 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.


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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. Such an

approach unfortunately not only renders the Court's task in making financial and property orders more

difficult; it also I fear will create considerable difficulties for parties and their legal advisors when

endeavouring to reach a settlement and avoid costly Court proceedings.

The policy of the legislation and of the Courts in England has tended in entirely the

opposite direction. There the principle of the "clean break" was first elucidated by Lord Scarman in

Minton -v- Minton [1979] AC 503, where he gave judicial approval to the attempt to encourage spousesto diminish the bitterness of family breakdowns by putting the past behind them and "to begin a new lifewhich is not overshadowed by the relationship which has broken down". This policy has since been

followed both in case law and in the legislation.

Both approaches have their advantages and disadvantages; while the lack of finality in this

jurisdiction has the disadvantage of uncertainty, over-reliance on the "clean break" policy has beencriticised as causing future hardship to dependant wives.

Given that the whole tenor of the 1995 Act (and indeed the 1996 Act) is against theconcept of finality, I do not consider that in making financial orders in this case I should fly in the face of

the clear policy of the legislature and endeavour to create a "clean break" which cannot, in any event, be

achieved. I make this decision with some regret, since the concepts of certainty and finality of litigation

are indeed important. I propose, therefore, in addition to the arrangements with regard to the wife's

residence already referred to, to make both a lump sum order and an order for periodic maintenance.

The question then arises as to what level of maintenance should be payable and, more

particularly, at what level should a lump sum payable to a wife be set in the context of a relatively wealthy

family. The Family Law Act, 1995, like the preceding 1989 Act, provides statutory guidelines to assist the

Court in exercising its undoubtedly wide discretion in making this type of order. Section 16 (whichbasically re-enacts Section 20 of the 1989 Act) provides that in the making of financial orders anddetermining the provision of such orders, the Court shall in particular have regard to the following

matters:-

"(a) the income, earning capacity, property and other financial resources which each ofthe 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


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is likely to have in the foreseeable future (whether in the case of the remarriage of thespouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings wereinstituted or before the spouses separated, as the case may be,

(d) the age of each of the spouses and the length of time during which the spouses livedtogether,

(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 ofthem to the income, or earning capacity, of property and financial resources of the otherspouse and any contribution made by either of them by looking after the home or caringfor the family,

(g) the effect on the earning capacity of each of the spouses of the maritalresponsibilities assumed by each during the period when they lived together and, in

particular, the degree to which the future earning capacity of a spouse is impaired byreason of that spouse having relinquished or foregone the opportunity of remunerativeactivity 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, benefit under a pension

scheme) which by reason of the decree of judicial separation concerned that spouse willforfeit the opportunity or possibility of acquiring,

(l) the rights of any person other than the spouses but including a person to whom eitheris remarried".

It is clear that very many of these guidelines are relevant to the present case. Even given

these guidelines however, the Court still has a wide area of discretion particularly in cases where there are

considerable financial assets. In these cases should the Court seek simply to provide for actual day to day

needs of the dependant spouse or should it endeavour to divide the family assets in a more equal way by

the operation of a lump sum and/or property adjustment order? In such a division of the family assets,


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should the "stay at home" wife be treated differently from the wife who works outside the home? Since

the enactment of the 1989 Act there has been little or no development of a body of case law in this

jurisdiction in regard to such questions: where there have been written Judgments - and they are few -each case has been specifically dealt with on its own facts.

Apart from its emphasis on the "clean break" much of the English legislation covering

ancillary relief on marriage breakdown is very similar to that in this jurisdiction and includes the samebreadth of judicial discretion. There is a large body of English case law in this area and it is instructive toconsider some of the approaches to calculating financial relief which have been introduced and tested in

the English Courts.

For many years the English Courts operated what is known as "the one third rule",

whereby the wife received in or about one third of the husband's income as periodic maintenance and in

addition in or about one third of the capital assets of the family. The rule had its origins in the operation of

the old ecclesiastical Courts and is classically expressed by Lord Denning M R in the case of Wachtel -v-

Wachtel [1973] 1 All ER 829. At page 840 of the report Lord Denning sets out the position thus:

"In view of (a wife's) calls on (her husband's) future earnings, we do not think she canhave both half the capital assets and half the earnings .... Giving it the best considerationwe can, we think that the fairest way is to start with one third of each. If she has one thirdof the family assets as her own - and one third of the joint earnings - her pastcontributions are adequately recognised, and her future living standards assured as far asmay be ..... We would emphasise that this proposal is not a rule. It is only a starting

point. It will serve in cases where the marriage has lasted for many years and the wifehas been in the home bringing up the children. It may not be applicable where the

marriage has lasted only a short time, or where there are no children and she can go out

to work".

However, the operation of this arithmetical rule has been much criticised in recent years

and it is now regarded as more or less obsolete.

More recently what might be described as a dual approach has been adopted by the English

Courts, depending on the income of the parties in question. Where low income families are concerned

what is described as the "subsistence level approach" is used. This term is reasonably self-explanatory

and is not relevant in the present case. In the case of wealthy couples the tendency is to follow the


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approach used in Duxbury -v- Duxbury [1987] 1 FLR 7. In that case the parties had been married for 22years and had three adult children. The wife had brought no capital to the marriage nor had she engaged

in any paid employment during the course of the marriage. The couple had had a luxurious lifestyle. The

husband had considerable capital and a very large income. On the breakdown of the marriage the

husband went to live with his mistress and the wife remained in the family home and began living there

with a man of very modest means who was fourteen years her junior. The husband agreed to the transferof the house to the wife but argued against the award of a lump sum lest it fall into the hands of the wife's

lover. He sought the making of an order for periodical maintenance only. The Court rejected thisapproach and made a lump sum order of 600,000 based on actuarial calculations, which would produce a

net income of 28,000 per annum for the wife which, the Court felt, should support her in the luxurious

lifestyle to which she was accustomed for the remainder of her life.

The "Duxbury" approach - and indeed the method of calculation used in the case - has

been widely followed in the English Courts, although it has been frequently been stressed that it is only a

guideline - see for example B -v- B (Financial Provisions) [1990] 1 FLR 20, Gojkovic -v- Gojkovic [1990]1 FLR 140, Hodgson -v- Trapp [1988] 3 WLR 1282. In Gojkovic -v- Gojkovic the approach was varied to take account of the fact that the wifehad made a crucial and continuing contribution to the building up of the family's successful business. In

that case the Court of Appeal held that in deciding whether to exercise its powers to order a very wealthy

man to pay to his former wife a lump sum, the Court was not limited to calculating the wife's share

according to her needs and awarding her a lump sum which would produce sufficient income to make her

self-sufficient but, instead, if the wife had made an exceptional contribution to the creation of the family

assets the Court should award her the share of the assets which she had earned. The facts in Gojkovic -v-Gojkovic have no application in the present case, but the decision of the Court of Appeal illustrates theapproach which may be taken where family wealth permits it.

Both Duxbury and Gojkovic were decided on "clean break" principles and, for the reasonswhich I have set out above, are not directly applicable to the situation in this jurisdiction. Nevertheless, Ifeel that the approach of the English Courts in cases involving wealthy families is both instructive and

persuasive. From the English case law I would deduce the principle that in the case where there are

considerable family assets the Court is not limited to providing for the dependant spouses actual

immediate needs through a periodic maintenance order, but may endeavour, through the making of a lump

sum order, to ensure that the Applicant will continue into the future to enjoy the lifestyle to which she wasaccustomed.


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While, therefore, in the context of the statutory provisions of the 1995 Act, I am not

prepared to accept entirely the "clean break" approach advocated by Counsel for the wife, I do not accept

that on the financial facts of the present case that the proper course is to rely in the main on the periodic

maintenance order with the addition of a relatively small sum for furniture or what was described in

evidence as "provision for a rainy day". In a case such as this I feel that considerable reliance should be

placed on lump sum provision, while the periodic maintenance should also play an important part. In

making the necessary calculations full regard, of course, must be paid to the guidelines set out in Section

16 of the 1995 Act.

Section 16(2)(i) provides that the Courts should have regard to "the conduct of each of thespouses 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". At this point I should state that I do not think that any injustice would be donein this context by disregarding the adultery of the husband. I have also carefully considered the question

of his financial conduct. On balance I have decided that I have dealt with this aspect sufficiently by

making an order pursuant to Section 35 and I will not take it into account any further.

These principles and in particular the statutory criteria set out in Section 16 of the 1995

Act must now be applied to the facts of the present case.

Firstly, the husband has undertaken to discharge the outstanding cost of the wife's present

residence. On the present valuations this represents her share of the family home at Rockmount and of

the ordinary furniture (apart from the antique furniture) in that family home. I accept this undertaking. The family home at Rockmount should, therefore, remain in the husband's sole name and he should retain

the bulk of the ordinary furniture. It may well be that there are certain pieces to which the wife has a

particular attachment and I hope that if this is so agreement may be reached between the parties for her to

have those pieces of furniture.

The husband is an auctioneer by profession and he requires readily available capital to run

his business. In the helpful statement of the husband's assets prepared by

Mr. Lombard, accountant, he estimates the auctioneering capital at 121,000 at the end of 1994. I would

see this capital asset as the three main bank deposit accounts held by the husband - the Allied Irish

Finance Account at 38,000, the AIB Plc. deposit account at 50,000 and the Sterling Account at

National Westminster Bank at 66,000 Sterling. Allowing for the present difference between Sterling and

the Irish Pound this together would amount to an approximate sum of 160,000. This sum together with

any of his own money which is at present held in client accounts should be left to the husband for the

purposes of running his business.


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The husband's present pension investments, which in the future could benefit the wife in

addition to himself, should be left in being with an Order that any benefits which may be available to the

wife from them should not be reduced by the husband. A similar position applies in regard to the

husband's life policies which again should be kept in being with the retention of any future benefits to the

wife which at present form part of these policies. It appears to me that a cash realisation of either the

pension investments or the life policies would not represent good financial sense.

The amounts of money contained in the second National Westminster Bank account and

the Swiss account are relatively small and can be ignored.

The husband's remaining assets consist of 150,000 in shares, 150,000 from the Isle of

Man Trust (after the Section 35 Order) and the antiques and paintings which are worth approximately150,000 at market value. He also has a BES Scheme worth 10,000. This makes a total of 460,000 in

assets outside his business. The wife holds assets of 46,000 in shares.

This has been a lengthy marriage. The wife has given up any real hope of a career. The

husband was the sole earner of income during the marriage but the level of matrimonial expenditure was

such as to enable him to accumulate considerable assets. It cannot be said that the wife was extravagant

in any way during the years of the marriage. She cared for the home and brought up the children and the

husband accepted and approved the traditional distinction of roles between financial provider and home

maker. On a practical level this marriage was a lengthy partnership of complementary roles and it seems

to me that it should result in a reasonably equal division of the accumulated assets. I will therefore order

the payment of a lump sum by way of maintenance of 200,000 by the husband to the wife in addition to

his financing of the wife's residence.

This capital sum should enable the wife to generate some income and she clearly needs to

take financial advice on this subject. Personally I am inclined to share the view of Mr. Mangan, thehusband's accountant, in regard to the desirability of the purchase of shares or house property as opposed

to buying an annuity but it is of course for the wife to make her own decision, just as it is for the husbandto make his decision as to how to raise the capital sum to be paid to the wife.

With regard to periodic maintenance the husband has offered a sum of 20,000 per annum

gross. Given that, with the tax relief available to him, this would amount to a net payment by him of not a

great deal more than half that sum, it seems to me that this is a reasonable periodic payment, particularly

in the light of my finding that his actual income is probably quite considerably higher than that which is

declared in his Affidavit of Means.

Since I propose to divide the family assets at the point of the irretrievable breakdown of


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the marriage, I will make an Order pursuant to Section 14 of the 1995 Act extinguishing the share that

both of the spouses would otherwise be entitled to in the estate of the other spouse as a legal right or on

intestacy under the Succession Act, 1965. The husband's failure to file a replying Affidavit has meant that

such an Order is not specifically sought in the pleadings, but I consider that it is a necessary part of the

balance of assets I have endeavoured to create between husband and wife. I also consider that such an

Order meets the criteria set out at Section 14(a) of the 1995 Act. With regard to the Family Home Protection Act, 1976 it is clear that the wife's present

residence is not a family home as defined in that Act. In the light of the decisions which I have made the

requirement for the wife's consent to any conveyance of an interest in the family home at Rockmount

should also be extinguished.

I would welcome the submissions of Counsel for the husband and the wife as to the form

which the various Orders which I have outlined above should take.


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