Family law developments
The treatment of “ample resources” cases and “clean break” settlements
“Ample resources” matrimonial cases are not defined by the judiciary but are held to refer to cases where the resources involve several million euros. The scale of the assets involved has made a clean break a possibility which would not arise in lower value cases.
It has often been noted that no “clean break” exists in Irish family law. While the judiciary had been reluctant to provide for finality, the Supreme Court indicated in DT v CT in 2002 that the legislation does not rule out a clean break.
A decision of Hardiman J, in the High Court on Circuit in Cork earlier this year, has been the subject of much discussion. It involved parties who married in 1978 and acquired farmland which they cultivated. They separated in 1988 and a separation agreement was signed in 1993 providing for both parties “in full and final settlement” of all outstanding claims, agreeing that all future properties would be solely owned and agreeing not to obstruct the other in any future divorce.
Since separation the husband prospered and his estimated worth amounted to €7 million while the applicant wife had sold land and built a lavish home. Her assets were estimated at €1.25 million by the Court. Hardiman J did not agree that the clause was binding, but concluded in any event that it would be unfair to make any order against the husband, noting that the wife’s difficulties were of her own making, and granted a decree of divorce with no further ancillary order.
It would appear to follow from this judgment that where proper provision is made, differing fortunes at a later date will not necessarily lead to ancillary relief at the time of granting of the decree of divorce.
However, the more recent case of WA v MA has confused matters somewhat. In this case both parties appealed from the Circuit Court which had made ancillary orders in favour of the respondent despite the fact that a consent order had been made at separation 5 years earlier. Finlay Geoghegan J indicated:
“The principles of certainty and finality of litigation…in relation to the unholding of agreements made between parties and properly and fairly arrived at with competent legal advice are such that I am satisfied that this court should have regard to the Consent Order and Consent as a full and final settlement (subject to any applications for variations permitted) of the then extant judicial separation proceedings…”
Finlay Geoghegan J noted further:
“Finally, it is also important to note that the Consent Order dos not reflect an intention by the parties in 2000 to achieve a “clean break” financially even in so far as permitted under Irish law. On the contrary, it indicates an intention that the husband should continue indefinitely to support the wife with periodical payment for her benefit”
It would appear, therefore, that the intention of the parties on entering into the separation, judged retrospectively, will carry more weight than an acknowledgment that proper provision has been made for the parties. What would appear clear is that no Irish family law settlement should be considered absolutely final at the time it is entered into.
High Court Practice Direction
McKecknie J outlined a new practice direction to apply to family law cases appearing in the High Court, on 6 October following lengthy consultation with family lawyers. The practice direction came into effect from 10 November 2005 and applies both to proceedings issued from that date as well as to proceedings currently before the Court.
The Direction sets out case management requirements and reflects the thinking behind the reforms as set out in the Civil Liability Act.
The aim of the direction is to have proceedings dealt with fairly, quickly and cost effectively. The direction indicates that proceedings should be completed within a year.
The direction aims to provide parties with an opportunity to negotiate at any early stage.
The applicant must now serve a special summons and verifying affidavit and affidavit of means (if required) with all required documents. Applications for numerous or lengthy adjournments will not be granted. Parties will be required to lodge financial statements, details of assets and liabilities and tax returns for a 3 year period.
Recent family law trends
Marriage
Data recently published by the Central Statistics Office Ireland show that the percentage of the population who are married per 1000 has not dropped from 1950 (5.4) by any significant degree. Statistics have varied between 5.0 to 5.2 since 1999, and currently stand at 5.1.
The CSO statistics indicate that the average age at marriage increased by 2 years between 1996 and 2002.
Judicial SeparationStatistics published on the Courts Service website show a dramatic fall from 1,431 decrees in 1997 to 920 in 1998 (presumably flowing from the availability of divorce). The rate currently stands at 1,126 for the year 2004.
NullityIt is interesting to note the rate of nullity, which family lawyers would have expected to drop, in line with trends from other jurisdictions where divorce became available. The rate of nullity decrees stood at 3 in 1997 and has increased to 47 in 2000, 59 in 2001 and 33 in 2004.
Divorce93 decrees of divorce were granted in 1997 and increased dramatically to 1408 in 1998, 2315 in 1999 with a steady incline to a rate of 3305 in 2004. The statistics indicate that 3880 applications were made in 2004, out of which 3305 were granted, 7 refused and 25 withdrawn or struck out.