A judgment overturning a 22-year-old separation agreement will have major repercussions, writes Carol Coulter.
It's my pension, joked one family lawyer when commenting on Friday's judgment in a divorce case, which ordered a wealthy businessman to give a third of his assets to his former wife, despite the existence of a prior separation agreement. It is likely now there will be many more such cases, providing more work for lawyers.
It has long been acknowledged that our divorce legislation is unusual in that it does not provide for finality. However, Friday's judgment from Mr Justice O'Neill puts flesh on what this might mean in practice.
This all goes back to the circumstances of the divorce referendum in 1995.
The wording of the divorce amendment to the Constitution sought to allay concerns about the rights of the first wife. It provided that a divorce could be granted where the court was satisfied that proper provision, having regard to the circumstances, had been, or would be, made for the spouse and other dependent members of the family. This was elaborated in the Family Law (Divorce) Act of 1996, which spelt out what circumstances had to be taken into account, and what forms the proper provision might take. These ancillary orders can relate to the family home, other property and assets, income and maintenance, and pensions.
Crucially, the law provides for such orders to be made on granting a decree of divorce or at any time thereafter.
This means that one spouse can return to the court for an adjustment of the orders if circumstances change after the divorce has been granted. As far as we know, this has not happened so far but, especially in the light of Friday's judgment, it could.
More immediately, the ruling puts a question mark over the thousands of separation agreements concluded in the years before divorce became legal.
Up until now, divorces have tended to follow the terms of the separation agreements with which people had lived, usually reasonably happily.
The factors to be considered when making orders on divorce include: the income and property of each spouse, both now and likely in the future; their respective needs and responsibilities both now and in the future; the standard of living enjoyed by the family before the marriage broke down; the age of each of the spouses and the duration of the marriage; any physical or mental disability of either of them; the contribution each of them made to the welfare of the family, including that made by work in the home; the effect on the earning capacity of each of them of such work in the home; the accommodation needs of each of them; and the conduct of each of them, but only if it would be unjust to disregard it and the rights of other people, especially a second spouse. It also said the court should have regard to the terms of any separation agreement between the spouses.
These factors were considered in detail by Mr Justice O'Neill when dealing with the case of K v K on Friday last.
The case concerned a couple who married in 1963 and had six children. The marriage broke down in 1979, resulting in a separation agreement concluded in 1981. Under it the husband continued to pay the mortgage on the family home in a provincial town, to be occupied by the wife and children. He also paid maintenance, linked to the Consumer Price Index, and over the years also paid for the children's education and VHI.
He moved to the US with his new partner, where he was successful and accumulated considerable wealth. In 1995 he obtained a divorce in Haiti and married his partner in the US. This divorce was not recognised in Ireland.
His first wife sought a divorce under Irish law in 1998, and in 2000 the High Court ordered the husband to pay his wife £1.5 million, half his salary and bonuses and his share of the family home. The lump sum represented half of the property he owned jointly with his second wife. This was appealed to the Supreme Court, which overturned it and sent it back to the High Court.
The main basis on which the Supreme Court upheld the appeal was that the original High Court judge, Mr Justice Lavan, had not explained his ruling in terms of the 1996 Divorce Act. In particular, he did not explain what regard he had given to the separation agreement.
Mr Justice O'Neill reduced considerably the award given by Mr Justice Lavan, and justified the judgment by detailed reference to the legislation.
He ordered the husband to provide the cost of a home in Dublin for the wife, who is now studying here and wishes to be close to her children and grandchildren, as well as hand over to her his interest in the family home in a provincial town.
Together these are worth about a third of his assets (independently of the share held by his second wife).
He has also been ordered to pay €40,000 a year in maintenance, representing about a quarter of his income.
Mr Justice O'Neill said bluntly that the existing separation agreement failed to make adequate provision for the applicant.