The enactment of the Family Law (Divorce) Act 1996 brought to a close several years of protracted campaigning to permit the dissolution of marriage. Some three years after the event, it is interesting to review the statistics on divorce which reveal a modest increase in the number of applications made and granted throughout the country. The legal year ended July 1997 shows 417 applications were made with 95 decrees granted, in circumstances where the Act had only come into operation on February 27 of that year. In the year ended July 1998, the numbers had risen to 2,765 divorce applications and 1,452 decrees granted, and in 1999 there were 3,240 divorce applications made with 2,475 divorces granted. In summary, a total of some 8,000 divorce applications have been sought since the coming into operation of the Act. It is interesting to note from the available statistical data that female divorce applications outnumber male applications by two to one. Of the 2,475 divorces granted for the legal year ended 1999, 1,611 of the applications were made by the wife, while only 864 were made by the husband.
Much has been made of these conservative numbers, but they cannot be altogether surprising in view of certain factors. They are not indicative themselves of the rate of marital breakdown in Ireland. The figures, to some extent, reflect the apprehension of people towards relatively new legislation and their reluctance to reopen existing satisfactory arrangements.
It is easy to forget, in light of the recent increase of family legislation, that the mechanism for resolving the terms of marriage breakdown has been availed of by many people since the coming into operation of the Judicial Separation and Family Law Reform Act 1989, amended and enhanced by the Family Law Act 1995. Those who may have obtained court orders under these Acts, or indeed those who entered into comprehensive deeds of separation, may have found arrangements working well and to the satisfaction of all concerned. The application for divorce enables all existing arrangements to be reviewed and revised, and ultimately to be decided by the court, in exercise of its requirement to ensure that proper provision exists or will be made for the first family and its dependent members.
In addition, the strict application of the in camera rule in family law proceedings makes it difficult to assess not only people's motives for applying for a divorce, but also the application of the provisions of the legislation by the various Circuit Court judges throughout the country. Ad hoc reporting of family law cases, even with the use of parties' initials, has led to only anecdotal evidence being available as to the approaches of the courts. Consequently, it is difficult to discern whether existing arrangements are being replaced, to the dissatisfaction of one or both parties. It is also not possible to garner a clear picture of what kinds of ancillary relief orders are being made, given that much of the information circulating, outside of reported cases, concerns those where high awards have been made or extraordinary circumstances outlined. It is difficult not to argue the case for some form of relaxation of the in camera rule which could serve to promote a more unified approach by both courts and practitioners.
The plain facts of the situation are that, despite the short period of time which has elapsed since the Family Law (Divorce) Act 1996 came into operation, the courts are carefully examining the facts of each case coming before them and making decisions on the facts as they are presented. It is not possible to state that as a general rule previously existing agreements or court orders will be left in place, unless there are exceptional circumstances. People entering a court to have their divorce application adjudicated upon do not, in the main, know what to expect, even in circumstances where negotiations have produced agreed and settled terms. Given the clear duty imposed on the court by section 5 of the 1996 Act and the fact that there are as many reasons why people would seek to have existing arrangements changed as there are orders which can be made to effect those changes, it is not surprising that uncertainty and hesitancy will bedevil the parties.
THE PATH TO DIVORCE
The Judicial Separation and Family Law Reform Act 1989 (hereafter referred to as the 1989 Act) represented the first attempt to provide for judicial separation and ancillary reliefs on a statutory footing. The Act operated efficiently and effectively from its introduction, and essentially paved the way for the ultimate introduction of divorce, especially when it was amended by the Family Law Act 1995. Mervyn Taylor T.D., the Minister for Justice, Equality and Law Reform at the time, opined:
"If we were to single out measures which laid foundations for divorce legislation it was the 1989 Judicial Separation legislation, the 1992 White Paper on Marital Breakdown and the Family Law Act, 1995." [467 Dáil Debates Col. 1757].
Prior to the introduction of the 1989 Act, there was a limited form of separation available in the form of divorce a mensa et thoro, granted pursuant to the Matrimonial Causes (Ireland) Act 1870. This was a fault-based relief obtained on the grounds of adultery, cruelty or unnatural practices. The only ancillary reliefs available were limited to orders in respect of alimony and custody, and the issue of succession was dealt with by the granting of the decree, which automatically deprived the "guilty" spouse of his/her right to a share in the estate of the other spouse as provided for in the Succession Act 1965. The court in these cases had no jurisdiction to make orders in relation to property or other issues. Accordingly, it was necessary to make separate applications under each piece of relevant legislation, for example the Married Women's Status Act 1957. The decree of divorce a mensa et thoro did not alter the marital status of the parties in any way, but simply relieved them of their duty to cohabit, as became the situation with a decree of judicial separation.
It was, of course, always open to parties wishing to separate to do so by entering into a deed of separation, which is probably how most separations were effected prior to the coming into operation of the 1989 Act. During the 1970s and early 1980s, a number of statutes were enacted providing for reliefs in the areas of maintenance, property and domestic violence. The Family Law (Maintenance of Spouses and Children) Act 1976, the Family Home Protection Act 1976 and the Family Law (Protection of Spouses and Children) Act 1981 all marked significant developments in the burgeoning area of matrimonial disputes. Disputes in relation to custody of and access to children were dealt with then, as now, under the Guardianship of Infants Act 1964. Some of the provisions of these earlier pieces of legislation continue in operation today and may, pursuant to section 26 of the Family Law (Divorce) Act 1996 Act, form part of the ancillary reliefs available on divorce.
Given the foregoing piecemeal approach, the introduction of the 1989 Act came as a welcome relief to both applicants and practitioners who could now seek a comprehensive range of ancillary reliefs under one piece of legislation, including property adjustment orders, lump sum and periodical payment orders, and orders adjusting succession rights. These reliefs were amended and enhanced by the Family Law Act 1995, which introduced new reliefs such as pension adjustment orders and financial compensation orders.
However effective the provisions of the 1989 Act as amended, it did not provide for re-marriage. It was not until November 1995 that a referendum on the proposed amendment to Article 41 of the constitution was, by a narrow margin, passed. A previous attempt, in 1986, to remove the constitutional ban on divorce failed amid heated - and sometimes divisive - debate. The proposed amendment in 1986 did not differ significantly from the amendment ultimately passed in 1995.
THE CONSTITUTIONAL AMENDMENT
The new Article 41.3.2° was incorporated into the Constitution on June 17, 1996 upon the Fifteenth Amendment to the Constitution Bill being signed by the President. This Article now provides that a court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that:
(i) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years;
(ii) there is no reasonable prospect of reconciliation between the spouses;
(iii) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law;
(iv) any further conditions prescribed by law are complied with.
The provisions of the new Article 41.3.2° have been put into effect by the Family Law (Divorce) Act 1996 (hereafter referred to as the Divorce Act) which became law on February 27, 1997. The Divorce Act is closely modelled on the 1989 Act as amended by the Family Law Act 1995. In fact, the basis and criteria for awards of maintenance on divorce contained in the Divorce Act merely replicate those contained in the 1989 Act as amended.
THE FAMILY LAW (DIVORCE) ACT 1996
The Family Law (Divorce) Act 1996 [hereinafter the ``Divorce Act´´] comprises five parts. Part I sets out provisions concerning commencement, interpretation, repeals and expenses. While the date of the coming into operation of the 1996 Act was February 27, 1997, the first divorce granted in Ireland was on January 17, 1997, pursuant to the provisions of Article 41.3.2° of the Constitution [See R.C. v. C.C. [1997] 1 I.L.R.M. 401]. This was the first case in which a decree of divorce was granted since ecclesiastical times. The circumstances of the parties in this case were unremarkable. They had sought to order their affairs as amicably as possible with a view to ensuring that there would be no difficulty in complying with the requirement that "proper provision" would be made for the spouses and for any children of either or both of them.
Barron J. considered the various grounds for the granting of a divorce decree. He stated that the court derived its jurisdiction to grant a divorce decree from the Constitution and not from the statute, which had not come into operation at the date of the hearing of the case. It was also clear that there was no statutory provision limiting the power of the High Court to exercise this jurisdiction.
The court, in R.C. v. C.C., considered the constitutional requirements to be satisfied prior to the granting of a divorce decree. In the case under consideration, all three children of the marriage were adult and no longer dependent. Further, provision had already been made by the applicant husband for his wife and children which essentially resulted in a distribution of almost all the assets of the marriage in their favour. The applicant husband was in a second relationship and had a daughter from that relationship. The court found that there was no reasonable prospect of a reconciliation between the parties, and that it was satisfied that the provisions made for the appropriate parties were proper in the overall circumstances of the family.
An important part of this judgment, and one likely to arise in future applications, was the reference to non-dependent children. The court noted the provisions of Clause 3 of Article 41.3.2° of the Constitution:
"... such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law".
This differs from the corresponding statutory provision in section 5(1)(c) of the Family Law (Divorce) Act 1996:
"... such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family".
The distinction relates to the issue of dependency, and clearly the wording of the constitutional provision does not preclude the possibility of non-dependent children having provision made for them. This clearly opens the door to applications for divorce being brought under the Constitution in circumstances where a child who does not come within the definition of "dependent member of the family" set out in section 2(1) of the Divorce Act requires provision to be made for him/her. To date no such applications appear to have been made.
The term "dependent member of the family" is defined in identical terms to that in the Family Law Act 1995 and means a child up to the age of 18 years or, if in full-time education, up to the age of 23 years. The requirement to provide for a child suffering a mental or physical disability is not limited by age. The Divorce Act extends the definition of children beyond a child of the marriage, either natural or adopted, to a child in relation to whom either parent is in loco parentis. The latter would arise, however, only in circumstances where the spouse in loco parentis was aware that he or she was not the parent of the child but nonetheless treated that child as a member of the family. To date there has been no judicial discussion of this point.
Part II of the Divorce Act deals with obtaining a decree of divorce, and sets out the requirements necessary to comply with the constitutional provisions.
Part III of the Divorce Act contains the comprehensive preliminary and ancillary reliefs available in the context of divorce, and is reviewed in this section in the context of the types of orders which can be made and the factors to be applied by the court in so doing. It is interesting to note that some of the ancillary reliefs available on judicial separation are not necessary, post-divorce, because of the fundamental adjustment in the marital status of the parties, specifically:
(i) the extinguishment of spousal succession rights is no longer necessary;
(ii) there is no need for a similar provision to section 13 of the Family Law Act 1995 in the context of pensions;
(iii) there is no need for provisions similar to those contained in section 4 of the Family Home Protection Act 1976 or section 54(3) of the Family Law Act 1995, as spousal consent to the sale of a family home is no longer necessary.
Part IV of the Divorce Act introduces the necessary taxation reforms to deal with divorce, addressing income and capital taxes, probate and stamp duty.
Part V of the Divorce Act sets out a number of miscellaneous provisions, and amendments to existing legislation.
With the Family Law (Divorce) Act 1996, Ireland adopted a no-fault system. The scheme of divorce entered into continues the old common law tradition of a life-long spousal support obligation. This acknowledgement that marriage may create permanent support obligations can be viewed as incompatible with the "clean break" doctrine.
FULL AND FINAL SETTLEMENT
The issue of whether or not a clean break, or a full and final settlement, is facilitated by the divorce legislation also rumbles on with little guidance from the courts, save for the remarks of McGuinness J. in the case of J.D. v. D.D. [[1997] 3 I.R. 64]. The case involved the ending of a 30-year long marriage, where there were considerable financial resources available for distribution. The principal issue for determination was the form and level of maintenance to be paid to the wife. The court applied the provisions of section 16 of the Divorce Act to the circumstances of the case in deciding whether it was possible to bring financial issues to a conclusion between the parties by making a "sizeable" lump sum order in favour of the wife. The question posed by the court was whether it should, as a matter of policy, provide a situation of certainty and finality on the irretrievable breakdown of a marriage. In addressing that question, the case of F. v. F. [[1995] 2 I.R. 354] (judicial separation) was considered, specifically the judgment of Denham J.:
"Certainty and finality of litigation are important. Some issues in family law are not capable of a final order by law e.g. maintenance. However, the fact that some issues in Family Law Courts are not capable of finality does not deprive this area of the law of the important concepts of certainty and finality. Whereas care for dependants requires that there be no finality in some areas the general law regarding certainty should apply unless excluded by law or justice."[ibid. at 369].
It should be noted that this judgment was delivered prior to the enactment of the Family Law Act 1995 and the Divorce Act. McGuinness J. found herself in agreement with this particular principle in J.D. v. D.D. [[1997] 3 I.R. 64]. In that case, however, she noted that no "clean break" provision could be made when financially reordering a broken marriage. She noted that the Oireachtas had legislated to permit repeated applications to court concerning ancillary relief so that finality could not be achieved, and continued:
"... [I]t appears to me that by the subsequent enactment of the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996, the Oireachtas has made it clear that a `clean break' situation is not to be sought and that, if anything, financial finality is virtually to be prevented. ... The court, in making virtually any order in regard to finance and property on the breakdown of a marriage, is faced with the situation where finality is not and never can be achieved. This also appears to mean that no agreement on property between the parties can be completely final, since such finality would be contrary to the policy and provisions of the legislation. The statutory policy is, therefore, totally opposed to the concept of the `clean break?.´´ [ibid. at 89].
The difficulties for both a court and for practitioners in attempting to guide a settlement negotiation were acknowledged in this decision. The position in England was referred to, where there is a clear policy of attempting to leave the past behind the separating couple, but McGuinness J. pointed out that "over reliance on the `clean break' policy has been criticised as causing future hardship on dependent wives".
The court, in J.D. v. D.D. [supra], went on to order a lump sum payment of £200,000 by way of maintenance, in addition to a direction that the husband finance the wife's future residence and that he provide an annual periodic payment of £20,000.
Specific reference to this case was made by White J. in the case of B.S. v. J.S. [unreported, Circuit Court (western circuit), February 5, 1999]. A decree of judicial separation had been granted in January 1993, with ancillary orders made on consent between the parties. In October 1997, the wife applied for a divorce with new ancillary orders concerning the family home and a pension adjustment order. The issue arose as to the court's jurisdiction to vacate orders previously made, and the application of the doctrine of res judicata to such orders. The court granted the divorce decree and ancillary reliefs sought by the wife, and held that the doctrine of res judicata did not apply to such orders. The decision of J.D. v. D.D. [see para. E.-017] was followed, the court stating the comments of McGuinness J. that the Irish statutory policy was totally opposed to the concept of a "clean break" between spouses upon separation or divorce. Indeed, White J. cited with approval McGuinness J.'s statement that financial finality is virtually to be prevented under the legislation.
The case of J.C.N. v. R.T.N. [unreported, High Court, January 15, 1999] demonstrates the difficulties in achieving finality in circumstances of increasing age and decreasing financial resources. The wife was aged 78 and the husband 74. They had separated by deed of separation in 1975, the husband being advised that this was the end of his financial obligations, this being, as McGuinness J. pointed out [at p. 3], "possible under the law as it stood in 1975, prior to the enactment of the Family Law (Maintenance of Spouses and Children) Act, 1976".
The financial position of both parties had disimproved with the passage of time, with the wife having exhausted the lump sum made available to her on separation, and the husband having retired from his business and now being in receipt of a relatively small pension. He had also been in a second relationship for a long time, having two children from that relationship. The husband had considerable capital, out of which, together with his pension, he discharged a maintenance order to the wife, which she had obtained from the High Court in 1980. Although the court did not refer specifically to the issue of finality or a clean break, the case clearly demonstrated the practical difficulties involved in severing all financial ties where one of the parties remains, despite the passage of time, financially dependent. In granting the decree of divorce, the court went on to adjust the husband's pension by making a form of contingent pension adjustment order, directing that if the husband were to predecease the wife, the trustees were to pay half of the annual pension to the wife, and the other half to the second partner. The existing maintenance position was left as it was, subject to a right to reapply to the court when the taxation position of the parties had been clarified. The most interesting aspect of this case concerns the pension. As the husband's financial circumstances were uncertain, McGuinness J. sought to minimise the disruption of the existing arrangements. Consequently, she granted what can only be described as a contingent pension adjustment order rather than an actual one. While the decision in the case was a sensible one, there appears to be no legislative justification for the order. There is nothing in the Divorce Act to permit a contingent pension adjustment order. There is, however, equally nothing in the Divorce Act that precludes either, and the order could be justified as a pension adjustment order whose operation turns on a condition precedent.
The issue of whether a "clean break" can be provided by divorce regularly exercises the minds of many participants in the Circuit and High Court. Usually one, if not both, of the parties will be hoping to terminate all aspects of the marital relationship, and it hardly needs pointing out that each case will fall to be determined on its own facts. The onus on the lawyers, therefore, is to clearly advise clients about the uncertainty that surrounds each application and about the potential orders which can be made. It is difficult to see how the concept of a "clean break" will be promoted in future by Irish courts unless there is a radical departure from present judicial interpretation of the existing statutory provisions, a departure which seems unlikely against a background of a society reluctant to promote easy escape from marital obligations.
CONSEQUENCES OF A DECREE OF DIVORCE
The most obvious effect or result of the granting of a decree of divorce is set out in section 10 of the Divorce Act, which is that the parties are free to remarry. If the aim of the parties is simply to separate and regulate the terms of the marital breakdown, a deed of separation or application under the 1989 Act and the Family Law Act 1995 would be appropriate.
Another reason widely cited by those looking for a divorce is the desire for a complete cessation of all ties between the parties; in other words, a clean break. It is often said that on divorce, the status of the marriage is irrevocably altered in that the parties are no longer the spouses of one another: the latter part of this sentence is not, however, entirely accurate, as a number of ambiguities arise around the word "spouse", which is referred to in section 2(2)(c) of the Divorce Act in the following terms:
"... a reference to a spouse includes a reference to a person who is a party to a marriage that has been dissolved under this Act."
The foregoing definition is limited to use in the context of the Divorce Act, and is the first indication in the legislation that the word spouse can continue to be used as a description of a person whose marriage has been dissolved pursuant to a decree under section 5 of the Divorce Act. Parties continue to be "spouses" for the purposes of the rights and remedies available to them under the Divorce Act, but not under other Acts. For example, a party who is the beneficiary of a pension adjustment order granted under section 17 of the Divorce Act remains a spouse for that purpose. Indeed, most of the ancillary reliefs available under Part III of the Divorce Act are available to former spouses.
WHEN IS A DIVORCED PERSON STILL A SPOUSE?
After a decree of divorce has been granted, the parties' succession rights are severed completely. Accordingly, there is no need for an order extinguishing those rights similar to section 14 of the Family Law Act 1995. It appears that the status of spouse terminates in the general sense of the word, although this is something that could have been clarified by the Divorce Act with a distinction being made in relation to spouses who remain so for the purposes of the Act. However, it is a striking feature of Irish divorce legislation that the financial obligations of one spouse to another continue beyond the ending of the marriage, except in certain specified circumstances. For example, section 22 of the Divorce Act provides for orders, including maintenance orders, to be varied or discharged if there is a change in circumstances or new evidence. Under the terms of section 22, the court may vary or discharge the following orders:
(i) maintenance pending suit orders (section 12);
(ii) periodical payments, secured periodical payments and lump sums orders (section 13);
(iii) property adjustment orders under section 14(1)(b), (c) and (d);
(iv) an order under section 15(1)(a);
(v) a financial compensation order (section 16); and
(vi) a pension adjustment order (section 17(2)) "retirement benefits".
An explanation of this fact often alarms clients who may have presumed that all ties are being severed and that all connections between them are at an end.
SPOUSAL OBLIGATIONS
There are circumstances when financial obligations between the spouses will terminate with no possibility of resurrection, that is on the death of either spouse or on the remarriage of the recipient, or beneficiary, spouse. There are also certain reliefs which are denied to a spouse who has remarried, which of course raises the issue of whether all relevant reliefs should be sought at the time of the granting of the divorce decree, in anticipation of remarriage. The court has power to take into account the possible future circumstances of the spouses under section 20(2)(b) of the Divorce Act which contemplates the possibility of remarriage:
"[I]n deciding whether to make an order ... and in determining the provisions of such an order, the court shall, [in particular, have regard to the following matters including]: (b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise)".
The future plans of the spouses may not, however, always be before the court, and therefore may not be taken into account. Accordingly, orders can be made which are incapable of review, such as the provision of a lump sum that is quickly dissipated.
The orders which automatically stop operating on the death of either spouse or remarriage of the receiving spouse are as follows:
(i) orders for periodic and secured periodic payments under section 13 of the Divorce Act;
(ii) orders for financial compensation pursuant to section 16 of the Divorce Act;
(iii) orders for the payment of a contingency or death-in-service benefit under section 17 of the Divorce Act; and
(iv) orders where periodical payments are being made to the receiving spouse from the proceeds of sale of any property pursuant to section 19(4) of the Divorce Act.
A former spouse is not precluded under the Divorce Act from seeking a lump sum order on his or her remarriage. That said, such an order would only be granted in exceptional circumstances, with the court taking all the circumstances into account. This situation whereby a former remarried spouse can nearly always seek the payment of a lump sum presents significant difficulties for lottery winners or persons who have made significant gains in the stock or property markets, and is a striking example of how a "clean break" situation is difficult to achieve.
The following orders may not be sought by spouses who have remarried:
(i) an order for periodical or secured periodical payments pursuant to section 13(1) of the Divorce Act [See section 16(2)(c) of the Divorce Act];
(ii) a property adjustment order pursuant to section 16(2)(c) of the Divorce Act [see section 14(3) of the Divorce Act.];
(iii) a financial compensation order pursuant to section 16 of the Divorce Act [see section 16(2)(c) of the Divorce Act]; and
(iv) a pension adjustment order pursuant to section 17 of the Divorce Act [see section 17(23)(a) of the Divorce Act.].
In summary, support obligations after divorce continue for the lifetime of the spouses, save in very limited circumstances.
GROUNDS FOR DIVORCE
INTRODUCTION
Part II of the Divorce Act comprises sections 5 to 10, which deal with obtaining a decree of divorce, pursuant to the provisions of Article 41.3.2° of the Constitution. This Part of the Divorce Act also sets out what are referred to as "safeguards" to ensure that the parties are informed of the alternatives to divorce proceedings and also assists in facilitating reconciliation. Section 5 sets out the legal requirements necessary to obtain a decree of divorce, while section 10 details the effect of the decree. Sections 6, 7 and 8 of the Divorce Act deal with issues of reconciliation, mediation and separation by deed or by decree. These sections also detail actions that can be taken by the court to assist efforts at either reconciliation or at negotiating some of the terms of ancillary relief of the proposed divorce. Sections 6 and 7 are identical in their terms to sections 5 and 6 of the Judicial Separation and Family Law Reform Act 1989, with the obvious addition that judicial separation should be identified as an alternative to divorce. The exact method of imparting this advice by the solicitor is not specified in the Divorce Act, but a certificate pursuant to section 6 must be filed in court with all initiating documentation, and the certificate of the respondent's solicitor must be filed at the same time as the entry of the appearance.
While advice on reconciliation is clearly meritorious and indeed necessary, what most parties to divorce are seeking is a dissolution of the marriage with the consequent freedom to remarry, if necessary. The four-year waiting period is designed to ensure that the marriage has terminated and that people have had time to consider their positions and their futures. It is unlikely in the context of divorce that reconciliation will be entertained, given that in the course of the four years' separation, the parties will have entered into arrangements dealing with the breakdown of the marriage and may have formed new lifestyles. In the Dáil Debates leading up to the enactment of the Divorce Act, consideration was given to the issue of mandatory counselling and mediation, but these proposals were rejected as being impractical and unenforceable. It can be argued that the provisions of sections 6 and 7 are somewhat unrealistic in so far as most applicants who seek recourse to the Divorce Act are doing so for the express purpose of dissolving the marriage.
Whatever about the practicalities or otherwise of counselling, mediation may be useful in allowing the parties to negotiate some or all of the terms of the ancillary relief to be granted by the court. It would probably be somewhat unusual for a couple contemplating divorce not to have arrived at some form of mutually acceptable arrangements prior to the expiration of the four-year period, but mediation is likely to be helpful in redefining those terms. Section 9 of the Divorce Act is significant in that it confers evidential privilege on communications made during reconciliation, counselling or mediation, and a similar provision [section 7A of the 1989 Act] in relation to judicial separation was inserted by section 45 of the Divorce Act.
JURISDICTION OF COURTS AND VENUE
Concurrently with the High Court, the Circuit Family Court can grant decrees under Article 41.3.2° of the Constitution and section 38(1) of the Divorce Act. Both the Circuit Court and the High Court therefore, have an original concurrent jurisdiction to hear divorce applications [section 38(1) of the Divorce Act]. The court may grant a decree of divorce if either spouse is domiciled (i.e. living in a place with the intention of residing in that place permanently) in the State on the date of the institution of the proceedings concerned or, alternatively, either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date [section 39(1) of the Divorce Act]. Most applications will, from the point of view of geographical convenience and a concern for costs, be maintained in the Circuit Court. However, section 38(2) of the Divorce Act facilitates the transfer of the proceedings to the High Court on the application of an interested party where the rateable value of land the subject of the proceedings exceeds £200. An order made prior to the transfer application will be valid unless discharged or varied by the High Court.
It is also possible to transfer proceedings from the High Court to the Circuit Court. The circumstances where this will be possible were discussed by Denham J. in the recent case of M.W. v. D.W. [unreported, Supreme Court, November 25, 1999]. Denham J. stated [at p. 5] that "[t]he test to be applied is that an order to remit should be in the interests of justice". Delay does not preclude a party seeking to remit an action as an application to remit can be made at any time after an appearance has been entered. However, Denham J. held in the instant case that "delay ... was an important factor in considering the interests of justice". In refusing to remit the case from the High Court to the Circuit Court, Denham J. stated:
"This is a dysfunctional family, of parents and children, living under one roof, pending the court decision on the action. In light of the circumstances time is an important aspect of this case. Also important is access to court on interim and interlocutory applications to process the case. The probability is that proceedings in [the Circuit Court] would take longer and while the financial affairs on the surface appear not too complex the intricacy arises in the applicant's suspicion as to other assets and intention to try to prove their existence. The court has a discretion. The discretion should be exercised to remit if that be in the interests of justice. In the circumstances of the case the refusal [of the High Court] to exercise the discretion to remit was just. Further delay should be avoided. The case should be decided as soon as it is reasonably possible. Such procedure would be for the benefit of all the family." [ibid. at p. 6].
Both parties may consent to the Circuit Court having jurisdiction to deal with applications for ancillary relief orders even in circumstances where the rateable valuation of the property exceeds £200. The proceedings may be issued and the case dealt with on the circuit in which any of the parties (including dependent family members) ordinarily resides or carries on business or occupation [section 38(3) of the Divorce Act]. Whilst not intending to encourage "location shopping", it could be useful in certain circumstances to have a choice of locations in which to bring the proceedings.
DIVORCE DECREE
Section 5 of the Divorce Act provides that a court designated by law may grant a divorce decree where, on application to it by either spouse, it is satisfied that:
``(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,
(b) there is no reasonable prospect of a reconciliation between the spouses, and
(c) such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family´´.
It can be seen from the foregoing that no element of fault needs to be ascribed to either party in order to qualify for a divorce under the section. The parties need only satisfy the requirements of section 5 for a decree to be granted, none of which make any reference to fault or blame, although the issue of conduct arises in the context of matters to which the court shall have regard in deciding whether to make an order for ancillary relief [section 20(2)(i) of the Divorce Act]. Issues relating to conduct may be set out in detail in the endorsement of claim of the family law civil bill, but no matter how dreadful the circumstances, they will not prevent the granting of the divorce if the terms of section 5 are adhered to.
This can of course lead to divorces being granted where one of the parties is very much opposed to it, and where that party may not consider the marriage to be at an end, despite the duration of the separation. It is open to a spouse in such circumstances to plead under section 5(1)(b) of the Divorce Act that there may be a prospect of reconciliation. The court is, however, under no obligation in such a situation other than to adjourn the proceedings under section 8 of the Divorce Act, to enable attempts to be made by the spouses to effect a reconciliation.
LIVING APART
The apparent simplicity of the key terms of section 5(1)(a) of the Divorce Act is misleading. Such terms have generally not been defined. The absence of a definition of ``living apart´´ has caused particular difficulty. Living apart was first introduced into Irish law in the Judicial Separation and Family Law Reform Act 1989 as a ground for judicial separation. The Act contained an explanation of living apart in section 2(3) such that:
"... spouses shall be treated as living apart from each other unless they are living with each other in the same household, and references to spouses living with each other shall be construed as references to their living with each other in the same household."
The difficulty with this definition is the word "household", but at least some guidance was provided in the context of judicial separation. Strangely, no such explanation was included in the Divorce Act. In the absence of a legislative definition of living apart, reliance has been placed by the Irish courts on highly persuasive precedents in the English/Welsh jurisdictions.
As a starting premise, it appears clear that parties could be held to be "living apart" while continuing to reside under the same roof, perhaps for economic reasons. During the second stage of the Bill to amend the Constitution, Minister Mervyn Taylor T.D. stated:
"The term `living apart' is used in the Judicial Separation and Family Law Reform Act, 1989 and it is also a familiar term in many other jurisdictions where it has been held that this phrase will clearly cover whether the spouses have physically separated and are living in different places. The case law also states that where domestic life is not shared it is possible for there to be two households under the one roof."
The court in the case of Pulford v. Pulford [[1923] All E.R. 10] determined that the legal concept of living apart does not require a change of address, and was not a withdrawal from a place, "but from a state of things".
In Hopes v. Hopes [[1949] 2 All E.R. 920], it was stated that spouses will be considered to be "living apart", when, although each is living in the family home, they have ceased ``to be one household and become two households´´.
In the case of Bartram v. Bartram [[1949] 2 All E.R. 270] the issue arose in the context of desertion, when the parties separated by way of desertion by the wife. Subsequently, unable to find alternative accommodation, the wife returned to the house where the husband was residing with his mother, and commenced living there in a separate bedroom from the husband, whom she avoided at all times other than for meals. The court held that despite the return of the wife, the desertion had continued and the issue of whether the parties intended to set up matrimonial home together was relevant. Accordingly, the desertion was held to be ongoing. The court stated:
"The question is: Do the facts proved establish that it [the desertion] was brought to an end' In my view, it can only be brought to an end if the facts show an intention on the part of the wife to set up a matrimonial home with the husband. If the facts do not establish any intention on the part of the wife to set up a matrimonial home, the mere fact that, as a lodger, she went to live under the same roof as her husband, because she had nowhere else to go, does not remove the desertion which she had already started and which continued to run."[ibid. at 272].
It was held, in that case, that the requisite three years' desertion had been established by the husband and the decree was granted. Although desertion cannot be equated to ``living apart´´, the fact that the parties did not intend to live as a married couple was relevant.
In the case of Mouncer v. Mouncer [[1972] 1 W.L.R. 321], the parties had continued to live together for the sake of the children. The court held that in those circumstances, applying a test of physicality as opposed to intent, the parties were living together and, accordingly, no divorce was granted.
The case of Santos v. Santos [[1972] 2 All E.R. 246] contained an analysis of the authorities in circumstances where the couple were not living in the same house and the question to be determined was whether this in itself was enough to qualify as "living apart". The court held that something more than physical separation was required, and that the attitudes of mind of the parties in each particular case had to be considered.
The case of Holmes v. Mitchell [[1991] S.T.C. 25] is the most recent instructive English authority on "living apart". In this case, the English Inspector of Taxes issued the following very helpful guidelines as to the questions to be asked to determine whether a couple are "living apart under the same roof":
(i) how is the house divided up and what are the arrangements for using kitchen and bathroom facilities?
(ii) what services do the couple provide for each other, for example, cooking, cleaning, etc.?
(iii) what financial arrangements have been made in relation to the alleged separation?
(iv) what do the husband and wife do to avoid meeting each other in the house'
The first judicial guidance on the no-fault ground of "living apart" in Irish divorce procedings came in the case of McA. v. McA. [[2000] 2 I.L.R.M. 48]. The case was also the first reported contested divorce in this country dealing with ancillary reliefs as well as the issue of ``living apart´´. Since the coming into operation of the Divorce Act, there had been little or no defintion of the term ``living apart´´, despite much discussion amongst lawyers in that regard. Indeed, the concept of ``living apart´´ caused some controversy during the divorce referendum, with anti-divorce campaigners claiming that it could be used unilaterally by a spouse to claim a divorce while continuing to live with the respondent. The applicant and the respondent were married in October 1968. They had two children who were no longer dependent. In 1988 the applicant discovered the respondent was having an affair with another woman. In September of that year, the respondent left the family home to continue the affair. The respondent ended the second relationship in 1991 and returned home to live with the applicant and their two children. On his return, he agreed to pay the applicant wife a sum of £750 per month in cash and later increased this sum to £1,000 per month. He also covered her car and motoring expenses. The applicant stated that she was happy with his return and had never considered the marriage to be finished. The respondent said his primary motive for returning was to develop his relationship with his then 18-year-old son.
The parties slept in separate bedrooms, even when on holidays with the children. They did not recommence sexual relations. While living together they were civil to each other and, when both were present, they ate meals together. When the children were present, the respondent took a full part in household arrangements. The respondent often retired to his bedroom early to watch television and had a telephone installed in that room. The respondent often left at weekends and only saw the applicant for a few hours a week.
In 1995, whilst they were still living together in the same house, the applicant began a relationship, including a sexual relationship, with another man. In 1996, the respondent began a relationship with a woman.
The respondent had established a successful business, of which the holding company was 85 per cent owned by him and 15 per cent owned by the applicant. The value of the business had reached its peak and the respondent had diversified his business in Ireland and abroad. The new businesses were in the respondent's sole name. The respondent had assets of some £2 million in addition to the old business, with an annual income of some £120,000. The respondent had agreed before the court hearing to transfer the family home and an apartment in Tenerife into the sole name of the wife. He had also agreed that the applicant should have the shop that she had been managing for many years and the house adjoining it. The respondent further agreed that the applicant could become the sole owner of another house in Dublin and agreed to purchase the applicant's 15 per cent share in the business, at a price to be agreed with the court.
The applicant sought a decree of judicial separation and the respondent counterclaimed for divorce; the date of the institution of divorce proceedings was August 16, 1999. The respondent's entitlement to a divorce was contested by the applicant on the ground that they had not lived apart for four of the five years preceding the date of the institution of proceedings.
The net point therefore was: did the applicant and respondent "live apart" from one another for at least four years during the previous five years at the date of the institution of proceedings.
McCracken J. considered the law on living apart. He noted that the Divorce Act did not provide any definition guidance and sought assistance from highly persuasive precedents in the English/Welsh jurisdictions. He considered the judgments given in Mouncer v. Mouncer [[1972] 1 W.L.R. 321] and Santos v. Santos [[1972] 2 All E.R. 246]. McCracken J. in McA. v. McA. [[2000] 2 I.L.R.M. 48] distinguished the Mouncer case where the spouses were deemed to have lived as a single household "from the wholly admirable motive of caring properly for their children". The Santos case was accepted by McCracken J. as a case which clearly expressed "the view that the intention of the parties is a very relevant matter in determining issues of whether they live apart of whether there has been desertion" [ibid. at p. 7]. In support of the proposition that intention was a very relevant matter in determining whether the parties had been living apart, McCracken J. noted that there are a number of instances in which the matrimonial relationship continues even though the parties are not living together under one roof, such as while one party is in hospital or obliged to spend a lot of time away from home for the purposes of employment. He referred to the judgment of Sachs J. in Santos wherein the latter stated:
"[L]iving apart ... is a state of affairs to establish which it is in the vast generality of cases ... necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. That involves considering attitudes of mind and naturally the difficulty of judicially determining that attitude in a particular case may on occasion be great ... identification of an attitude of mind is required". [[1972] 2 All E.R. 246 at 255].
McCracken J. accepted this approach in McA. in recognising that just as ``there is a mental element to´´ living apart other than mere physical separation, there is more to living together than being physically in the same house. In this case, the husband's return to the family home in 1991 was not activated by a desire to restart the marriage, but to develop his relationship with his children. Accordingly, he had no intellectual attachment to the marriage, although he did live in the same house as the wife. They ate and holidayed together, though that was in the interests of the children. McCracken J. stated [at p. 8] in relation to the test for ``living apart´´:
"I do not think one can look solely at where the parties physically reside, or at their mental or intellectual attitude to the marriage. Both of these elements must be considered, and in conjunction with each other".
In essence, this is a mixed test: one that encompasses an objective element, though it is primarily subjective in any case where the parties have physically separated. If one cannot look solely at physical separation then the real determinant becomes mental attitude, which must be subjective. In this case, for example, there was no analysis of who looked after the house, who did the shopping and the other mundane activities that express the realities of everyday life.
A larger element of objectivity would in all likelihood enter the equation if the couple were still living under the same roof, or had only physically separated for a short time. More importantly, the real strength of the subjective approach in this case prevented objective factors such as dining together and going on holidays from blocking "living apart" as a state of mind.
It is probable that the broad approach to "living apart" was permitted because the mental attitude was common to both husband and wife. In McA., McCracken J. found that the wife, too, had withdrawn from the marriage, as evidenced by forming a new relationship. In granting the divorce, McCracken J. referred to the mental attitude of the parties, which tends to show the need for both to share this view. Given the subjective approach favoured in McA., this is probably necessary, but would not be the end of the argument on the matter. The Act requires the spouses to live apart from each other, and in theory this could be achieved by the unilateral withdrawal of one of the spouses. In such a scenario, a more objective approach would be desirable.
In summary, following the McA. judgment, it appears that "living apart" means something more than physical separation; the mental attitude of the parties is of considerable relevance. "Marriage", post McA., is not concerned with where the parties live or whether they live under the same roof, and just as physically separated parties can maintain a full matrimonial relationship, parties who live under the same roof may live apart from one another. In determining whether the parties are living apart, it now appears that the court must look to both where the parties reside and their mental attitude to the marriage.
The McA. judgment has the potential to prompt practitioners to adopt a more relaxed approach to the four-year rule. It must be emphasised that the dangers inherent in this practice could lead to a situation where a decree is refused and proceedings have to be re-instituted, with the attendant implication for costs.
NO REASONABLE PROSPECT OF A RECONCILIATION
Section 5(1)(b) of the Divorce Act sets out the second imperative for qualification for a decree of divorce. The court must be satisfied that "there is no reasonable prospect of a reconciliation between the spouses", something that seems to be set out more in hope than expectation in light of the requirement for a four-year separation. The direction to the court is, however, enshrined in the Constitution. Therefore, there is a duty on the court to establish in each case that there is no possibility of a reconciliation [see E.P. v. C.P., unreported, High Court, November 22, 1998, where McGuinness J. was satisfied that the breakdown of the marriage was irretrievable when she stated: "Both parties accept that there is no reasonable prospect of a reconciliation"]. In granting a divorce decree in J.C.N. v. R.T.N. [unreported, High Court, January 15, 1999], McGuinness J. stated [at p. 2]: "There is clearly no prospect of a reconciliation; the husband lived in a permanent second relationship since 1978".
As with the issue of living apart, it is likely that each case will turn on its own facts, and the degree of acrimony or amicability in each case will assist the court in deciding the issue. In the later case of Moorehead v. Tiilikainen [unreported, High Court, O'Sullivan J., June 17, 1999], one of the issues to be determined was whether a reconciliation had been effected between the parties, although this was in the context of a previous separation agreement. In this case, it was held that the intention of the parties was relevant in determining whether a reconciliation had taken place, which could be seen as the flipside of McA.
The relevant word in the subsection is "reasonable", and the court is not charged with the task of ensuring that every last remnant of civility between the parties has been abandoned. The insertion of the word reasonable ensures that a party who does not want a divorce under any circumstances will not be able to disrupt matters by claiming a possibility of a successful reconciliation when clearly there is no such possibility.
That is not to say, however, that the court does not have jurisdiction to refuse to grant a decree of divorce where it believes there is a reasonable prospect of reconciliation. In such circumstances, should the court decide not to adjourn the proceedings under section 8 of the Divorce Act, it would appear to be open to the court to simply refuse to grant a decree, and the matter would then have to be dealt with on appeal. It is unlikely, however, that such a refusal could be envisaged in the absence of agreement from the parties to the proceedings.
PROPER PROVISION FOR THE SPOUSE AND DEPENDENT MEMBERS OF THE FAMILY
By virtue of section 5(1)(c) of the Divorce Act, the court must be satisfied that such provision as the court considers proper, having regard to the circumstances, exists, or will be made for the spouses and any dependent members of the family. Section 2(1) of the Divorce Act defines a "dependent member" as any child under the age of 18 years [or 23 years if in full-time education] of both spouses, or adopted by both spouses or in relation to whom both spouses are in loco parentis, so long as the other spouse is aware that he or she is not the parent of the child and has treated the child as a member of the family. It is surprising that whereas this subsection alludes to "dependent members of the family", Article 41.3.2° of the Constitution refers to "any children of either or both" of the spouses. In the case of R.C. v. C.C. [[1997] 1 I.L.R.M. 401; Barron J. confirms that there is little doubt that the latter interpretation will prevail:
"Since the jurisdiction invoked is that contained in the Constitution and not that amplified by the Act, it is necessary for the court to consider the position of the children. While I do not purport to determine that non-dependent children should necessarily have provision made for them, I am satisfied that in the particular circumstances of the present case it is proper that certainly the two daughters of the marriage should have provision made for them in the interests of the family as a whole".
The reference to "any children" in the Constitution is clearly capable of a much wider interpretation than that of "any dependent members of the
family" as set out in the Divorce Act, where the term is defined as anyone under the age of 18 years, or if over 18 but below 23, is in full-time education. There are no such limitations on the interpretation of "child" used in the Constitution. It is therefore possible to envisage circumstances whereby a divorcing parent could be ordered to continue maintenance payments in respect of an adult child where he/she no longer wishes to do so, in order that the court might be satisfied that proper provision exists or will be made for the "children" of the marriage.
It must be remembered that the requirement of proper provision must be in place to the satisfaction of the court, prior to the granting of the divorce decree. The court, cannot decide to grant the decree first and then examine the issue of ancillary reliefs, but the court need not ensure that the provision exists at the time of the making of the decree, if it is satisfied that it will be in place in the future. The reference to "all the circumstances" means that a subjective view will be taken of each family's situation and there are no standards or guidelines in place as to what constitutes proper provision in general.
The case of McA. v. McA. [[2000] 2 I.L.R.M. 48] is instructive in terms of the ancillary reliefs ordered by the court to form "proper provision". The court in that case referred to the provisions of section 20 of the Divorce Act, and also to the fact that the wife's share of the company being 15 per cent was worth £1.2 million which she would receive as it was hers as of right. The court went on to direct the lump sum payment of £300,000 in recognition of the full value of the husband's business interests, and also made a periodic payments order of £4,500 per month. Issues concerning property had been agreed between the parties prior to the hearing. The manner in which McCracken J. ordered the ancillary reliefs will be of guidance to practitioners in advising wealthy clients.
It would appear that the court is not constrained to consider only the financial circumstances (including property) of the marriage but also the behaviour of the parties might be taken into account and the post-divorce circumstances in which the children are likely to find themselves. Certainly the court is charged with taking conduct into account in deciding whether to make orders for ancillary reliefs under section 20(2)(i) "if ... in the opinion of the court it would in all the circumstances of the case be unjust to disregard it [the conduct]". However, while the court may take cognisance of all the circumstances of the case in deciding whether proper provision exists, or has been made under section 5(1)(c), it cannot refuse to grant a decree on the basis of conduct, if the three requirements set out in section 5(1) have been adhered to.
The criteria set out in section 20 of the Divorce Act bear close resemblance to those contained in section 25 of the Matrimonial Causes Act 1973, which governs divorce applications in England and Wales. In White v. White [[2000] 3 F.L.R. 555], the House of Lords emphasised the need for equality and fairness in the division of assets. The parties in that case, who were both farmers had been married for over 30 years and had had three children. The wife claimed that as well as contracting a marriage, she had contracted an equal farming partnership. They both brought money to the undertaking. One farm was in joint names, although the husband's father had played a significant part in providing the initial capital. Another farm was inherited later by the husband, as his share of the father's estate. The assets were worth £4 to 5 million. While the High Court accepted that the farm was run in partnership over the entire period of the marriage, the Court rejected the wife's claim for an equal division of the farm, which would have enabled her to run an independent farm. Instead, the Court focused on the wife's ``reasonable requirements´´. Adopting this approach, the Court awarded the wife approximately one fifth of the total wealth. The wife appealed to the Court of Appeal. The Court of Appeal accepted that the dominant feature of the case was that from first to last, the parties traded as equal partners. However, the Court did not consider it appropriate to divide the assets equally, as the husband's father had made a significant contribution to the acquisition of the farm. Instead, having regard to the parties' contributions and the goal of overall fairness, it increased the wife's share to reflect approximately, two fifths of the estate. Both parties appealed unsuccessfully to the House of Lords.
The House of Lords held that in the division of assets on divorce, the Court should approach the case from the point of view of fairness between the parties. [This ``yardstick of equality´´ was applied again by the House of Lords in the subsequent decision of Cowen v. Cowen.] All of the factors set out in the statutory guidelines were relevant to the determination of the claim. Lord Nicholls (with whom the other Law Lords concurred), stated that as a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. Lord Nicholls also stated that there should be no bias in favour of the money earner as against the homemaker and child carer. The absence of financial need should not be determinative of the award. In this regard, he noted that there was nothing either in the statutory provisions or in the underlying objective of securing fair financial arrangements, which would lead him to suppose that the available assets of the Respondent became immaterial once the claimant's financial needs were satisfied. Where assets exceeded the financial needs of the parties, there was no reason why the surplus should automatically belong to one party rather than the other. On the facts of a particular case, there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance, but the mere absence of financial need could not, by itself, be a sufficient reason. Regarding the decision of the Court of Appeal in the case before the House, Lord Nicholls noted that in exercising its discretion, the Court had in mind all the available assets, the contribution made by the husband' father, the wife's dual role as business partner and as wife and mother and the overall goal of fairness. In his view, the amount of the award was well within the ambit of the Court of Appeal's discretion.
If proper provision does not exist at the time of the application for the divorce decree, it is probable that it will be brought about by the court by way of orders for ancillary relief. If a court is not satisfied as to proper provision, it may re-examine and amend previous agreements or orders, regardless of whether these were operating to the satisfaction of the parties or not. This is one of the most controversial aspects of the Divorce Act. The power of the court to refuse to grant a decree of divorce unless satisfied with the terms of the orders agreed or being proposed has led to practical difficulties, with some judges adopting an interventionist approach despite the agreement of the parties to future financial arrangements. Difficulties also arise in that regard for practitioners who may have participated in settlement negotiations on behalf of their clients and considered the resulting heads of agreement to be worthy of recommendation to their client. Confidence in hard-fought terms of agreement may then be eroded by the refusal of the judge to make the order. It would appear in such circumstances that there is little option but to renegotiate the terms, not always a welcome proposal for at least one of the parties.
The documentation to be supplied to the court to help it assess whether proper provision has or has not been made will be examined in the section on procedure. It is also instructive to look at the provisions of section 20 of the Divorce Act, which set out in detail the matters to which the court shall have regard in deciding whether to make orders for ancillary reliefs, as doubtless the same matters will be considered by the court in deciding on the issue of "proper provision". The status of a subsisting separation agreement and court orders will be of relevance in deciding the status of the existing ``proper provision´´, and these can be revisited and reviewed to obtain the desired result.
The situation in relation to judicial separation is somewhat different. Provided the parties come within one of the grounds set out in section 2 of the Judicial Separation and Family Law Reform Act 1989, then the decree of judicial separation will be granted. It seems ironic that parties who might have obtained a decree of judicial separation on the basis of having no normal marital relationship for only one year could then avail of almost identical ancillary reliefs to those available on divorce, without, obviously, the right to remarry. However, in circumstances where there are dependent children in a family, the court is again mandated to ensure proper provision exists or has been made for the welfare of the children. The original terms of section 3(2)(a)(i) of the Judicial Separation and Family Law Reform Act 1989 were amended by section 45 of the Divorce Act.
Finally, although not a constituent ground for obtaining a decree of divorce, the provisions of section 5(2) of the Divorce Act must be examined in so far as they permit the court to make, of its own motion, directions in relation to the welfare, custody of or right of access to any dependent family members in any case before it. This power is in addition to the power of the court to make such orders under sections 11 (preliminary orders) and 15 (ancillary orders) of the Divorce Act provided applications in relation to such matters have been brought before it.
In summary, the implications of section 5(1)(c) of the Divorce Act are obvious. The court has the power to refuse to grant a decree of divorce in circumstances where it is not satisfied that proper financial arrangements have been put in place to ensure that the spouses and dependent family members have been catered for and, in this regard, the court may refuse to direct that a settlement agreement entered into by the parties be made a rule of court. This can have very practical consequences for parties who have arrived at such an agreement, in so far as the court has the jurisdiction vested in it by section 5(1)(c) to interfere with a hard-fought settlement. A similar jurisdiction is vested in the court in the context of judicial separation, pursuant to section 3(2)(a)(i) of the Judicial Separation and Family Law Reform Act 1989 as amended by section 45 of the Divorce Act.
For further information please contact Dalippe Lalloo – dalippe@LACS.ie
Disclaimer
This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Lalloo & Company Solicitors for any action taken in reliance on the information contained herein. Any and all information is subject to change
