Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 610
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Background

Ms A appealed against the financial provision made by the Circuit Court following a divorce. Mr Justice Max Barrett noted that the day-and-a-half High Court hearing, where both parties represented themselves, was “notably challenging… thanks entirely to Mr B’s demeanour and behaviour”.

The judge said Mr B was verbally abusive to Ms A, and more than once “he was so intemperate that the court had to indicate that a Garda would have to be called” in if he persisted in his behaviour, “with the risk that when a Garda is about an arrest may follow”. The court, unlike Ms A, also had the power to find him in contempt, and still found him difficult to manage. Ms A indicated that this was what living with Mr B was like.

Two of their children gave evidence about how challenging their father’s behaviour was. “Remarkably, Mr B at one point in the proceedings sought to justify striking his wife during their marriage”, the judge noted. The court “set him straight”, noting that it “disturbingly, must reiterate, yet again, a point that it made as recently as X v Y [2020] IEHC 525, that domestic violence is never acceptable”.

Mr B asserted that he is a reasonable man: “A man who behaves in as unpleasant and unyielding a manner as Mr B did in court will inevitably face an uphill struggle in establishing that actually he is a reasonable man – and Mr B did not triumph in that struggle.”

Mr B “seemed to set great store in the fact” that Ms A had a child in a previous relationship. The court said this was irrelevant, and that Ms A was “patently a good mother to all of her children and that is all that counts. As to the fact that a previous relationship had ended badly, the court asked “what of it? Some relationships end well, some relationships do not end so well, c’est la vie.”

Following the breakdown of the marriage, Ms A was forced by economic circumstance to quit her agreed role as homemaker, to take up a job so that she could meet the mortgage repayments on the family home. They have been paid almost exclusively by her since the marriage effectively ended in 2013.

While most of the maintenance due to Ms A under the Circuit Court order had been paid, Ms A believed that this was to make Mr B look good to the court, and that he would stop paying when the proceedings ended. Mr B called out “speculative!” when she made this submission. The court noted, however, that it was not speculative: “Mr B decided of his own volition that he would break the Circuit Court order and pay her reduced maintenance. He never sought the court’s consent.”

The court reiterated the points made in M v S [2020] IEHC 562 on proper provision. The judge noted Mr Justice Adrian Hardiman’s consideration, qua the High Court, of the meaning of ‘proper provision’ in WA v MA [2005] 1 IR 1. The dictionary definition of “proper” to bear, and extends inter alia to what is “in conformity with social ethics or with the demands or usages of polite society”. Mr Justice Barrett said that polite society “frowns with singular severity on a husband such as Mr B” who had acted so badly that one of his children succumbed to a dissociative identity, and who so openly treated Ms A with contempt. “Polite society”, the judge said, “expects that the court will move as far as is legally possible in remediating these wrongs if it is to make ‘proper provision’.”

The court referred to DT v CT [2002] 3 IR 334, YG v NG [2011] 3 IR 717, and ML v JK (No 2) [2003] 1 IR 326. Irish law does not establish a right to a ‘clean break’, but it is a legitimate aspiration (per Ms Justice Susan Denham in YG v NG). The court noted that given Mr B’s “truly impossible” behaviour towards Ms A and their children, the court could countenance this aspiration.

The standard of living of a dependent spouse should be commensurate with that enjoyed when the marriage ended (YG v NG). It would discriminate against Ms A, and her original role as “housemaker”, if the court were to consider Mr B’s mortgage payments during the years when he was sole “breadwinner” as conferring a benefit on him. Lord Nicholls, in White v White [2001] 1 AC 596 (cited with approval in DT v CT) emphasised such a discriminatory approach must not occur. The homemaker is not to be disadvantaged in the distribution of assets by reason of having a non-economic role (MK v JK). Mr Justice Barrett, echoing the sentiments of Lord Justice Matthew Thorpe in Cowan v Cowan [2002] Fam 97, noted that it can no longer be assumed that the husband and wife will occupy their traditional roles and “may on occasions even be reversed and, in many instances, both husband and wife will be in receipt of income from work.”

A court should consider the conduct of the parties, and it should not reduce the financial provision which it would otherwise make to one of the parties save in cases where misconduct has been “obvious and gross” (per Mr Justice Tom Denning MR, as he then was, in Wachtel v Wachtel [1973] Fam 72, cited with approval in DT). The same approach should logically be adopted to a proposed increase in the level of financial support because of the suggested misconduct (DT v CT). Mr Justice Barrett noted that Ms B had behaved appallingly throughout the marriage, “and is most definitely in Wachtel territory”.

Conclusion

Mr Justice Barrett affirmed the Circuit Court order as regards the granting of the decree of divorce and custody and access. The court amended certain maintenance obligations.

Ms A sought a barring order against Mr B pursuant to the Domestic Violence Act 2018 s.7(1)(a), which allows a “spouse of the respondent” to apply for a barring order. Section 2(1) provides that the word “spouse” includes “a person who was a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State”. The court granted such an order.