When you are in the middle of an upheaval such as the ending of a relationship or marriage, you crave certainty in an uncertain world. One of the most difficult things for emotionally traumatised clients to learn from their solicitor is the uncertainty of outcomes in family law cases. While some certainty is desirable, viewed from another perspective, this may well be a strength in the Irish family law system. If it were possible to sit down and calculate with mathematical certainty the outcome of family law disputes, the need for a creative and flexible approach, compassionate analysis and attention to the inherent varying circumstances in each case, would disappear and our system would be greatly impoverished as a result. The alternative is not a “free for all”. There are well established guidelines to which individual judges must have regard laid down in statute (i.e., the Family Law Act 1995 and The Family Law ( Divorce) Act 1996) and by way of precedent (i.e., judgements handed down by courts). However, because our family law system operates under cover of the in camera rule (a term which denotes the privacy of family law proceedings i.e., no public allowed which extends even to concerned family law members not directly involved and covers the manner of reporting in such cases) the public’s familiarity with this area of law and its manner of administration is not what it should be in a democracy. However, some light has now shone into this darkness and in particular recent research provides us with a welcome insight into how the family law courts are operating in practice.
Custody and access are often the most vexed issues in a family law case. From a solicitor’s point of view, they are the most difficult to manage as, understandably, emotions run high when it comes to these issues. The overall and abiding principle by which the court must be guided is “the best interests of the children”. Easy to say but hard to apply. Often, judgements, which can seem harsh when viewed against the backdrop of husband versus wife, can make a lot more sense when the children are put into the balance. With their best interests in mind, courts will want children to have security of residence if at all possible, continuity in schooling and access to friends, family and finance to enable them to continue their education and be properly cared for with as much continuity and stability as possible. This does not mean that children will never have to leave their home but it does mean that the preference of the court is to try and ensure that they will not have to leave their home if at all possible bearing in mind the upheaval caused by the marriage breakup and not wanting to add to that, continued access to their schools where possible and to family and friends where that can be achieved. I think of most of us would agree that these are the best and most desirable outcomes for children where they are achievable and since the courts will act primarily to protect the children and secure their interests, this can have the unintentional effect of seeming to unjustly favour one spouse over the other. Quite often when a court is disposed to leave children in situ it means that where the assets are limited they must be given to the partner with whom the children are most likely to reside to ensure financial security, residence and continuity. How does the court decide with whom the children should reside? Recent research into the operation of the family courts would indicate that the courts will take into account the family arrangements prior to the separation in order to determine what is best for the children bearing in mind that their goal is going to be the least possible disruption (ie continuity and security) in their schedule in their best interests. When looked at from this perspective it makes sense out of why so many women get to stay in the family home with the children post separation and divorce. It is still the case that the vast majority of couples arrange their affairs so that it is the mother who is primarily responsible for the care and raising of children. Questions like, who generally organises the children’s clothes, sports gear etc., for school, gets them up and makes lunches and breakfasts for them and ensures that they get to school, ensures they have the right books and other gear for school, takes them to extra-curricula activities or arranges for them to get there, ensures play dates and parties are attended, remembers their school dates and tours and buys the presents for birthdays, who does homework with them and is the point of contact with other parents and the school. Generally speaking while Dads are much more involved now than they were 40 years ago in the day to day routine of their children, it is Mum who carries the primary responsibility. This does not mean that Dad has no role to play or he is not significant. Quite often men will do these routine tasks when time allows or when they are available from their work commitments, however, there is an enormous difference in doing these chores because you have no other option and doing them when you are able. Women will work part time, take less demanding career paths, limit their advancement or not work at all, to ensure permanent availability to their children.Invariably, it is the mother who will take time off work to tend to sick children, who is responsible for the after school runs and who organises and cooks the meals. Of course this is not always the case but it most often the case even now. In nearly 25 years of family law, I have never encountered a couple where the wife regularly went abroad to work, attend conferences or seek international business while the husband maintained a lower key job at home or worked part time and tended to the children. My experience of high flying couples is that they are both high flyers who retain staff to provide housekeeping and child care for their families. I have come across men who work in the home but usually only arising out of a job loss and a resultant decision to remain out of work rather than actually relinquishing a viable career to be more available to their children. I make these points not to be judgemental but to provide insight into how or why judges may reach certain conclusions. As a result of pre- separation arrangements, most children will have their main base or primary residence with their mother following separation and divorce.
Despite the majority of children residing primarily with their mother’s post separation, in Ireland the majority of custody orders are joint custody orders. Custody refers to the day to day care and control of a child, the daily grind if you will.Very few sole custody orders are made now and in so far as they are made, recent research would show that they arise only where there is a risk to the children or where there has been parental desertion. Joint custody is understood as being a legal construct rather than a circumstance where the children are resident half time with each parent. However, a joint custody order would envisage both parents having residential time with the children though invariably less in the case of one than the other. It means that the children will reside with both parents but primarily with one parent. Only a minority of families post relationship breakdown can sustain a 50/50 caring and living arrangement as it requires a great deal of cooperation to be effective. Otherwise, it is a battlefield in which the children are smack in the middle. If this seems hard to fathom then perhaps I can put it in context. Some of the biggest complaints we get around the issues of access and custody post separation are:
the children do not want to come with me and that is because my wife/husband is unfairly influencing them or
when the children return from time with their father/mother they are unmanageable and disrespectful to me and this is because he/she badmouths me to them or
the father/mother buys them rubbish to eat and does not discipline them so I get to be the bad parent because I have to pick up after this or
she/he sends the children back from access with unwashed clothes and missing half the items they left with and then refuses to return them or
when they arrive to my house they have no clothes and I have to buy them new clothes which if I send them back with them, I never see again, or
she/he lets them do whatever they like when they are with him and in fact he/she is not actually spending quality time with them they are watching unsuitable tv/dvds all the time or with relatives, they have no discipline and she/he spends money on them to a degree which I cannot replicate and undermines my parenting regime.
Imagine how much worse these complaints would be in a 50-50 situation where there was no trust, liking or cooperation? No judge is going to put children in the middle of that particular minefield unless he has persuasive evidence of trust and respect between the parents such as existing cooperation and flexibility which, by definition, will not be the case of those matters come before a Judge. Increasingly parents, and most especially Dads, are expressing a desire for shared parenting. It would be my wish that we would at least try and work towards a situation where such orders are at perhaps half of all orders made. That can only be achieved by recognition on the part of parents that there should be balanced parenting within the marriage and that this is as much as issue within the marriage as it is outside it. Furthermore, how they conduct their separation and divorce will determine outcomes in relation to their children. By definition if you appear in front of a judge on matters of access then it is clear that cooperation and trust are not features of your current relationship as parents. In those circumstances, it is highly unlikely that the court will impose a regime of anything resembling 50-50 parenting arrangements. As stated previously, it is far more likely to give limited access with a view to increases on an incremental basis in the hope that once the heat is gone out of the situation the parties will start to work together. However, cooperation does not come about by sitting waiting for it to happen, people have to want to do things in a civilised manner, have to want to work towards a state of cooperation and civility. There are professionals out there with the skills to help and not hinder but the desire to do things in a cooperative way has to come from the parties themselves. While it may not be possible to become best friends after a marital breakdown, it is possible to become cooperative colleagues with the assistance of various professional experts and a strong determination on the part of the parties themselves to arrive at that goal. Frankly, if a marriage is over it may not be desirable to become best friends in any event because as soon as one or other moves on to another intimate relationship this tends to undermine that friendship. To understand the term cooperative colleagues I would ask you to think about a work place where you have colleagues you get on well with in the work situation but you do not socialise with them and this is perhaps the most desirable and sustainable type of relationship to have with an ex- spouse. For those who would like to try and have the best outcomes for the family as a whole going forward, rather than any individual within it, then there are processes such as collaboration and advanced mediation techniques which are offered by specialised family lawyers and other dedicated family systems specialists. In general, the courts will take the view that the more conflict there is, the more need for structure rather than flexibility so as to keep the need to communicate to a minimum and try to minimise the effects on children. As long as people marry there will be marital breakdown and while I am not advocating planning for failure, I do think that common sense would indicate some degree of caution, advance planning and forethought on matters of parenting and expectations for children etc., while still married. Start as you mean to go on.
All married parents are automatically guardians of their children and that remains the case whether the marriage breaks down or not. Sometimes the term “shared parenting” which is not a legal phrase in common usage in this jurisdiction, is used interchangeably with guardianship and very few people, who are not lawyers, mean the same thing by those two terms and so there is much confusion. Guardianship refers to those major decisions that all parents have to make in relation to the upbringing of their children, decisions about where they go to school, what religion, if any, they are raised in, medical treatment, and such like major decisions that relate fundamentally to a child’s wellbeing, it does not refer to the day to day decisions which are the decisions made by custodial parents. In Ireland, while married parents are automatically guardians of their children, unmarried fathers are not, and this is a most vexed subject. Unmarried fathers have to apply to be appointed guardians of their children to the court, if the parents cannot agree this for themselves. If they can agree it between themselves then they can simply fill out forms to that effect. Being on the birth certificate does not entitle you to any right of guardianship per se. In common with the manner in which the courts decide vexed access where there is an accusation that a parent is unfit as discussed above, a contentious application for Guardianship will be treated in the same manner ie the court will generally allow a “probationary” period of say 6 months before granting the application. The amount of time may vary but most Judges will decide such cases in this manner.
There are very good reasons for changing the common use of the words “custody and access” not least because they are terms also used in the criminal system. How we name things is not irrelevant and while a “rose by any other name would smell as sweet” I do not think our understanding of it as a rose would be quite the same or even anything like the same. Custody and access are win and lose words and they are words associated with the law and the law is generally operated in an adversarial manner.
Interestingly, the research shows that spousal maintenance, (i.e., where one spouse contributes income to support the other either by supplementing the lower earning spouse’s own income to bring it up to a standard, or to support them entirely so they do not have to work) is largely speaking a thing of the past. Child support, on the other hand, is pretty standard. Child support is not income tax deductible whereas spousal support is. Child support can last up to the age of 23 depending on whether or not children are in full time education. It therefore, has a time frame whereas spousal support can be life- long. Where a spouse has been entirely dependent on a reasonably high earning working spouse over a number of years, however, spousal support might be viewed somewhat differently. In the case of H v D, High Court in 2011 Judge Irvine said, “While the Respondent (wife) was very well qualified, in the present economic climate it could not be assumed that she could walk into a job tomorrow as she had practically no work experience for the past 10 years. There was also the problem of childcare.” This is a case where the option to pay maintenance for a number of years to enable the wife to return to work and having regard to the ages of the children might have been a worthy proposal in the circumstances. While the court will have regard to the economic climate where it affects a woman’s re-entry into the workplace, they will also have regard to the same climate as far as a man’s ability to provide long term is concerned. The days are gone when any relatively young woman can expect the court to take the view that there is no need for them to work at all regardless of previous circumstances. Obviously the older a woman is, the longer out of the workforce and the longer the marriage, the less likelihood that the courts will anticipate a return to work.
Just as the best interests of the children is the paramount consideration for the courts when it comes to any issue concerning children, the guiding principle for the court in relation to a division of assets and financial support going forward is “proper provision”. The court must be satisfied that there is proper provision for both spouses depending on the circumstances of the family and their dependent children. This has a number of implications. One implication is that even when there is a settlement of a case, the court is still charged with looking at the terms of that settlement in order to be satisfied that “proper provision” has been made. Therefore, evidence has to be adduced and a case presented. This applies even to consent cases as in a consent divorce for example, as much as to settled cases which were up to the settlement contentious. It means that there always has to be a hearing of some sort in each and every case to enable the court to fulfil its statutory obligations and documentation prepared and filed which might be unnecessary in other jurisdictions, which in turn has implications from a costs point of view. Another implication of the term “proper provision” is, as decided in a recent case of YG v NG Supreme Court 2011, that it does not mean that there has to be a division of assets or a redistribution of wealth as such. Rather the court conducts a judicial exercise to look at the family circumstances as a whole and decide based on factors set down in the Act what constitutes proper provision. Such factors as earning capacity, income, property and the financial resources of each of the parties, their ages, their dependents and obligations, their standard of living, their lifestyle arrangements prior to separation, the contribution that each of them made to the marriage, their accommodation needs going forward and such like considerations have to be taken into account by the court in order to determine what is proper provision in each case.From a practical point of view this means that if the marital assets have a value of €5 million both spouses will not necessarily walk away with assets or income to the value of €2.5 million. It depends on how the assets were acquired, how long the parties were married, what each brought to the table and what responsibilities and dependents each of them has going forward, whether or not that would be a fair result.
In Ireland, separation and divorce are generally a two- step process. A marriage breaks down and parties decide to separate and will generally want to sort something out at that stage. Most people will not want to wait the 4 years necessary to get a divorce before sorting out their affairs and accordingly, there may be two cases to be dealt with, the separation and then the divorce. There are cost implications of a significant nature in this and it discriminates against people of modest means. Be that as it may, for most people the possibility that either party can come back to court after a separation agreement or judicial separation order and look for what is euphemistically called “a second bit of the cherry” is too much to bear. This possibility arose because to permit divorce in Ireland we had to change our constitution and accordingly, when we introduced divorce it was a new cause of action. Technically, therefore, as it was a new cause of action, the same parties could apply for the same relief in a divorce as had been previously dealt with in a separation case. This meant that there could be no certainty that a settlement or order made in a separation was the end of the matter as far as money or property issues were concerned and furthermore, because we had legislated for divorce in such a way that parties post- divorce and post settlement or order could still come back looking for further or more relief, the whole system seemed to be tailor made for litigation ad nauseous. Clearly this is not a desirable state of affairs. Gradually, however, as case law is handed down, it becomes obvious that the Higher Courts favour as much certainty in the matter of family law settlements as possible (F and F 1995, DT and CT 2002) and they will only revisit a case in limited circumstances. The case of YG and NG referred to above deals with many of these issues and is instructive. The court had to decide: 1. What weight should be given to a separation agreement which contained a clause saying that the agreement was “in full and final settlement of all matters” on a subsequent application for divorce. 2. What effect, if any, the fact that property was inherited or wealth acquired through inherited property should have on how the courts would look at “proper provision”. 3. What effect the passage of time would have on how the courts might look at an application for divorce made many years after the separation? 4. If one spouse acquires wealth post separation how is the court to regard this on an application for divorce? 5. If there are changed circumstances since the making of the separation order or agreement, what regard is the court to have for these? 6. If a spouse received a settlement in the separation but squandered or spent that money, then what account should be taken of that? These were the questions the court pondered in the case of YG and NG and so the decisions made have great relevance for family law.*
- While significant weight must be given to a legal separation document, the statutory duty of the court to make proper provision still prevails. In looking at “proper provision” the court must look at changed circumstances. The kind of changed circumstances which the court is willing to take account of are fundamental changes such as illness rendering a person unable to work or in need of medical care/physical care which was not provided for at the time of the original agreement. In the case of F and F 2007 J Abbott ordered a property to be sold in divorce proceedings notwithstanding a full and final clause in a previous settlement, on the basis that the wife had acquired Parkinson’s. If property values had significantly reduced (or presumably increased) since the making of the original order, this would count as a changed circumstance. Exceptional change in the value of assets unforeseen at the time of separation must be taken into account (MD and ND 2011). A changed circumstance might well be the discovery of an asset not disclosed at the time of separation. This arose in the case of SN and PO’D 2009 where the husband submitted that the wife had not fully disclosed details in relation to her companies prior to the settlement as was her obligation under the rules of discovery and that she had subsequently sold her companies for a large sum. The husband was awarded a further €500K for what the Judge called an “information deficit loss” which essentially meant that he found that she had not intentionally withheld the information but that it had nonetheless not been made available to the husband and accordingly, impacted on the settlement.
- Assets which are inherited will not be treated as assets obtained by both parties in a marriage. This is a very important decision which has a lot of implications going forward. Of course, while inherited assets may not be treated as marital assets as such, they will be factored in by a judge when considering the overall circumstances of parties in order to determine “proper provision”.
- The length of time since the separation agreement is very relevant. The greater the length of time, barring catastrophe, the less likely the court is to alter the terms of the separation
- If a spouse acquires wealth post separation and the wealth is unconnected to any joint project which the parties were involved in while married, then the acquisition of this wealth is not a factor for consideration by a court in a subsequent application. Facetiously, this seems to rule out the Lotto once and for all unless the ticket was bought while the parties were married or if they used the same numbers or some such argument. This is a surprisingly frequent question, surprising in that it is extraordinary how many people expect this to happen to them. If the wealth was acquired and even though it has a connection to the marital assets, there is no automatic entitlement to an increase in money.
- The manner in which the court should deal with changed circumstances and the type of changes envisaged are dealt with in the response to 1 above.
- A party shall not be compensated for their own incompetence. So if I squander money settled on me post separation whereas my ex- spouse prudently invests and acquires wealth, I will not have an entitlement to come back against his/her wealth except I can make a case that I had no choice but to squander my settlement because he failed to honour his agreement by, for example, not paying me maintenance which had agreed to do or because I got ill or some such.
The court found that a separation agreement, freely entered into, is a legally binding document and therefore, weight must be placed on it and most especially if it has a “full and final” clause in the agreement. In determining whether proper provision has been made under a separation agreement or foot of a separation order, the court will look at the standard of living of the parties at the time of separation and not necessarily the disparity in their standard of living as might exist some years later. The duty to make proper provision does not amount to a duty to redistribute wealth. If the circumstances are the same post separation as when the parties separated then prima facie the provision should be considered proper.
Of increasing relevance in the current climate, is how the court views bank debts and creditors with the competing interests of spouses and children. The case of YX and XY is useful in this regard. In this case which involved substantial assets but even greater debts the court transferred the family home and an attaching mews to the wife being the only assets of worth as all the husband’s property was in negative equity. The court said….”it was the duty of the Family Court while bearing in mind the Bankruptcy Act 1988 to act with probity and only for the purpose of making such provision as was necessary for the spouses in accordance with the 1989 Judicial Separation and Family Law Reform Act as amended. The proper exercise of this jurisdiction involved not the division of assets between the spouses to the exclusion of the creditors but the provision of necessities such as living accommodation, basic maintenance and in appropriate cases security therefore. This should not be allowed to act in an oppressive manner over the rights of creditors. In the case of O’C v O’C 2009 J Dunne found that the needs of the family as a whole must be considered. The family home was the only property to retain any realistic equity given the precarious nature of the Husband’s financial circumstances and the needs of the wife and the dependent children are most closely met by transferring the entire interest in the family home to the wife.
*I think it is only fair to say, in the face of much incredulity from the public now, about this state of affairs is that it has nothing whatsoever to do with lawyers or the judiciary and arises because the public during the divorce referendum debate made it abundantly clear that they would not pass a divorce referendum if there was any possibility that, a woman in particular, would not be able to revert post-divorce seeking further relief should that need arise and this in turn ensured that the legislation was framed in such a way that once off settlements were difficult if not impossible under the terms of the Act but, as is often the case in Ireland, the judiciary as opposed to politicians, have grasped the nettle and have taken decisions based on people’s actual needs and what makes legal sense.