Proper Provision

Since the introduction of the Divorce Act in 1996 the courts have had reason to review and examine the legislation in regard to the proper provision for the spouses and any children of the marriage. Under Section 5 (1) (c ) the court must be satisfied that “such provision as the court considers proper having regard to the circumstances exists or would be made for the spouses and any dependent member of the family”.

In determining the proper provision it is mandatory for the court to have regard in particular to the factors set out in Section 20 (2) (a) to (l), in deciding whether to grant relief orders. (see Court Considerations under More Information) The court is also obliged to take into account the terms of any Separation Agreement. The relevance and weight given to each of the factors will depend on the circumstances of each case.

Section 20 was examined in great detail by the Supreme Court in T. (D.) v T. (C.) { 2002 } IESC 68, 14th October 2002. The Court accepted that where the parties are unable to agree the trial judge must be regarded as having a relatively broad discretion in reaching what he or she considers a just resolution in all the circumstances. The first task of the court will almost certainly be to consider what the financial needs of the spouses and the dependent children are. “At one end of the spectrum, there will be cases in which, at best, no more than basic subsistence requirements at the most can be met. At the other, there will be both substantial assets and income available and the court will be concerned with the proper distribution, in terms of the Section, of the available assets so as to ensure that proper provision is made for the spouses and any dependent children”.

The Supreme Court acknowledged that there would be cases where the court would be solely concerned with the appropriate level of maintenance to be paid by one spouse to the other and as to what is to happen to the family home. Where there are substantial assets and where the parties are unable to agree, the court will have to determine how the assets should be divided and whether that division should take the form of a lump sum order or a property adjustment order.

In T. (D.) v T. (C.) the court made the following observations and rulings. In Irish society today it can no longer be assumed that the husband and wife will occupy their traditional roles as bread winner and home builder and carer. The roles may be reversed or both husband and wife may be in receipt of income – the court is obliged to have regard to the financial consequences for either spouse of his or her having relinquished the opportunity of remuneration activity in order to look after the home or care for the family. Proper provision is based on the constitutional and statutory recognition of the family. The court must have regard to the role of the spouses in relation to the welfare of the family, to their contribution in looking after the home or caring for the family, to the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each and the degree to which the future earning capacity of a spouse was impaired by reason of the spouse having relinquished or foregone the opportunity of remuneration activity in order to look after the home or care for the family.

Article 41.2 of the Constitution provides:

  1. In particular, the State recognised that by her life within the home, women gives to the State a support without which the common good cannot be achieved.
  2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties at home.

A significant weighting is given to a spouse for the time spent in the home. A long lasting marriage, especially in the primary childbearing and rearing years of a woman's life, carries significant weight, especially if the wife has been the major home and family carer. The courts will not discriminate between the spouses solely because their contribution to the marriage and in particular to the welfare of the family was of a different nature.

In looking at Section 20 (2) (b) Justice Fennelly made the following comment “This suggests that any property , whenever acquired, of either spouse and whenever and no matter how acquired is, in principal, available for the purposes of provision. Thus property acquired by inheritance, by chance, or the exclusive labours of one spouse does not necessarily escape the net.

The Chief Justice, Justice Keane also ruled that the value of the assets would be taken as the value on the date of the hearing. The court also decided that a non-earning spouse should not be confined to periodic payments if the trial judge believed a lump sum payment was more appropriate.

In regard on whether it would be unjust to disregard the conduct of each of the spouses, (Sec 20 (2) (i), the Chief Justice agreed with Lord Denning in Watchel v Watchel {1973} “There will no doubt be a residue of cases where the conduct of one of the parties is both obvious and gross , so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone's sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category (obvious and gross), the court should not reduce its order for financial provision merely because of what was formally regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy life. In the financial adjustments consequent upon the dissolution of a marriage which has irretrievably broken down, the imposition of financial penalties ought seldom to find a place”.

So all matters of “conduct” can be taken into account in deciding on proper provision and the division of assets but a court will be reluctant to punish anyone unless that conduct is really questionable. A woman, for instance, who deserts the family home but, has good reason to do so will not be debarred from seeking and obtaining relief.

In the High Court case N. (J.C.) –v- N. (R.T.) [1999] the court looked at Section 20 (2) (d) “the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another”. In this case the parties married in 1955 and separated in 1975. The Applicant wife was 78 years old and the Respondent husband was 74 at time of trial. A Separation Deed was entered into in 1978 whereby the Family Home was sold and divided and whereby the wife also received a lump sum of £30,000, company shares and a car. In 1978 also the husband entered into a new relationship and at the time of the court in 1999 had two dependent children from that relationship.

In 1980 when the lump sum was exhausted the wife applied and was granted maintenance orders. Over the years there were applications for payment of arrears and increases in the payment order. In 1996, twenty one years after separation, a Consent order was made for the payment by the husband to the wife of £198.92 per week plus yearly increases in accordance with the Consumer Price Index. The wife then applied for divorce and relief orders, the subject of this case in 1998. Despite the fact that they were separated over 20 years, had entered into a separation deed and had houses of similar value and considering there were now other dependents of the husband the court still awarded the wife a Pension Adjustment Order for one half of the pension of the husband were she to outlive him. The husband had only started paying into the pension since his separation.

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