In a case with implications for the status of separation agreements in divorce proceedings, the Supreme Court yesterday directed the High Court to reconsider the question of proper financial provision for the former wife of a wealthy businessman.
A three-judge Supreme Court granted the man's appeal against a High Court decision to award his former wife a lump sum of £1.5 million, transfer to her his entire interest in the family home and pay maintenance amounting to half his salary. The £1.5 million was described as about half of the assets jointly held by the man and his second wife.
Remitting the matter back to the High Court, Ms Justice McGuinness said the case was neither ordinary nor average and raised many difficult questions. In deciding what was proper provision for the former wife, the court had to consider her financial needs, her role in caring for the couple's six children, the separation deed, the fact the couple had lived apart for 20 years and that the man's entire wealth had been accumulated after separation.
She said the Supreme Court had to decide whether the High Court judge, Mr Justice Lavan, had correctly exercised his discretion under the Family Law (Divorce) Act 1996, but such a task was rendered impossible if, as in this case, no indication was given in the judgment as to what regard the judge had to various factors in the Act.
In particular, despite the mandatory requirement in Section 20 of the Act to consider the terms of any separation agreement when dealing with the issue of provision, no reference was made by the High Court judge to the effect of the deed of separation between the man and wife in 1982, which was still in force.
In those circumstances, the Supreme Court had no choice but to return the matter to the High Court.
Ms Justice McGuinness said the parties married in the early 1960s and had six grown-up children. Differences arose and they began to live apart from about 1980. On January 1st, 1982, they entered into a deed of separation which provided the wife should continue to reside in the family home and to have custody of the children and the husband to have reasonable access. He was also to pay maintenance for the wife and their children until the children were 18. He has provided for the children's third-level education.
Since the couple separated, the man had entered a new relationship. He secured a foreign divorce in 1995 and later married his new partner in the US and in a civil ceremony in Ireland. He and his new wife held the vast majority of their property and financial assets jointly.
The former wife had taken divorce proceedings in 1998. In an unwritten judgment in November last year, Mr Justice Lavan granted a divorce and made the disputed orders regarding maintenance, the family home and payment of a lump sum of £1.5 million.
Ms Justice McGuinness said the High Court judge laid considerable stress on the manner in which the man secured a Haitian divorce and later remarried in the US and declared he had "driven a coach and four through Irish legislation".
Mr Justice Lavan also said it was his view the court should continue to adopt "the fundamental rules that have been in existence for nearly 200 years in determining whether a wife is entitled to be maintained according to the style of her husband".
Ms Justice McGuinness said this appeared to be the only passage where the judge indicated the basis in law on which he exercised his discretion. The main ground of appeal was that the judge had failed to have regard to the terms of the 1982 separation agreement and to other aspects of the Divorce Act.
Ms Justice McGuinness doubted a policy of equal division of assets between husband and wife prevailed under common law here or in England in the 19th or 20th centuries. The division of matrimonial assets on separation or divorce had been governed by Statute since the mid-20th century.
The concept of a single capital payment to a wife to meet her "reasonable requirements" for the rest of her life had never been part of Irish family law.
