Starting Point
The Judicial Separation and Family Law Reform Act 1989, in the context of granting a Court Separation, sets out a number of matters to be considered by a Judge. They include the contribution made by a spouse in looking after the home or caring for the family, the degree to which the future earning capacity of a spouse was impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family. The Family Law (Divorce) Act 1996 requires the court to take these factors into account and to make “such provision as is proper for each spouse and any independent member of the family having regard to all the circumstances”. Other legislation prior to that required a court to make provision such as was adequate and reasonable, having regard to all the circumstances.
It is difficult for lawyers to establish clear precedents for guidance in Family Law cases. These cases are invariably held in private and published judgements are not normally given.
The first benchmark decision was made in the case of T v T. That case came before the Supreme Court nearly twenty years ago. The Net Value of the Family Assets was in the order of €14,000,000.00. The marriage had lasted fourteen years. The wife had sacrificed her career to build up the husband’s business. She was awarded 1/3 of the value of the assets by the Supreme Court. In establishing this so-called yardstick, Chief Justice Keane compared it to her entitlement under the Succession Act 1965 had her husband died. He seemed to use this as his yardstick more than ‘fairness’ or ‘need’.
It is interesting to see how the courts have moved away from this yardstick in subsequent cases.
By 2011, in H v ON, another case involving millions of euro, Mr. Justice McMeniman noted that a practice had developed in large cases for the Judge to use a benchmark of 30% of the total assets as a starting point for assessment of what might be considered “proper provision”.
In C v C, however, the court dealt with a marriage of approximately sixteen years in duration. There were dependent children. Assets were valued at approximately €24,000,000.00 net. The assets were inherited on the husband’s side. Judge O’Higgins directed a capital sum payment of €3,300,000.00 to be paid by the husband and very substantial maintenance on an ongoing basis. This represented significantly less than the so-called T v T yardstick.
By 2016, the case of QR v ST came before the Court of Appeal to consider the question of “proper provision”. The parties had been in a relationship since the early 1990s. They had been engaged for three years. They were married out of the country in 2006. They had difficulties over a number of years. The assets were not set out in the Court Judgement in detail. The husband was awarded well in excess of €30,000,000.00. €22,000,000.00 of this fortune was built up by the husband prior to their marriage. The High Court had awarded the wife a lump sum of €3,800,000.00 plus maintenance of €7,000.00 per month. The Court of Appeal confirmed the High Court Judge’s decision, which, effectively, awarded the wife between 11% and 12% of the Family Assets.
Where do we go from here?
The High Court and Supreme Court seem to have moved from a yardstick of fairness or equality to a measure of need. Of course, an individual could well afford to live on a fortune of €3,000,000.00 / €4,000,000.00 with substantial income. It has well been said that the Dáil has passed the buck to judges and has given them responsibility for deciding these cases involving vast wealth. In future articles, I will chart the comparison between Irish cases and UK decisions and consider how the Irish Constitution should impact on these arguments.