In a decision issued in June of 2021, in the case of N.O v P.Q, the Court of Appeal in a judgement delivered by Ms Justice Maire Whelan, provided significant clarity in relation to the factors to be taken into account in making a decision in relation to proper provision.
This was an appeal of the decision of the High Court which the High Court had made various orders including a maintenance order for the spouse which was to last only 4 years and also in relation to the payment of private health insurance for a four year period. The wife argued that the maintenance amount was insufficient and that the period of time for which the maintenance was to be paid was also insufficient and she was seeking for the maintenance to continue until the husband’s retirement. The wife was successful in relation to her appeal.
In making its decision the Court made a number of very interesting and helpful observations by way of guidance and clarification on how to view the concept of proper provision.
We will seek in the course of this article to summarise these as cogently as possible.
- The Court looked at the definition of proper provision in relation to the concept of maintenance. The Court noted with approval the judgment delivered by Ervine J. in Q.R v S.T (2015) in that the test for proper provision in a judicial separation is the same as a divorce.
- The Court cited with approval the statements made by Hogan J. in a 2016 case of C v C where he made the following observations:
- Inherited assets are not to be regarded as marital assets and the extent to which they are to be taken into account will depend on the circumstances of the case.
- Proper provision is to be determined on ‘all of the circumstances of the party’s financial situation.
- The proper provision does not equate to a redistribution of wealth.
- In any assessment particularly in relation to the question of an appeal, the Court can take into account certain changed circumstances which are relevant i.e. an unforeseen illness or a property collapse.
- Post-separation wealth is not a factor in itself to be considered by the Court in proper provision.
- Where one party has accumulated wealth after a separation there is no automatic entitlement for the other spouse to share in that increase in wealth.
- The reference to the standard of living to which an Applicant spouse aspires is the standard of living which existed at the end of the marriage i.e. when they separated.
- A party should not be compensated for his/her own incompetence/indiscretions.
3. Judge Whelan observed that the Court had to carry out an evaluation of all the factors set out in Section 16 of the 1989 Act and must take a bespoke approach to the circumstances. The clear objective of the legislation is to provide a fair outcome bespoke to the individual and specific circumstances of each case and to try and achieve fairness and justice between the parties.
In assessing the contribution of a spouse who has primarily worked in the home the Court made a very important statement in stating that it should attribute the same value to such contribution as it would to a spouse who works primarily outside the home as the principle earner. The Court went on to say that proper provision should reflect the equal partnership of the spouses and the Court has to ensure that the dependent spouse is in a position his/her financial obligations and liabilities into the future.
The Court referred with approval to the observations made in the seminal case of T v T in that the parties must be entitled to continue with a standard of living where possible commensurate with the standard of living enjoyed during the marriage i.e. the dependent spouse should be entitled to enjoy the fruits of the marriage. The dependent spouse should be entitled to carry on an independent life, have security and control of her own affairs with the personal dignity that such autonomy provides. It went on to criticise the High Court for the manner in which it had confined the payment of maintenance for a period of 4 years on the basis that the High Court Judge felt that the wife would be in a position to gain alternative employment and that she may be in a position to obtain social welfare entitlement and an entitlement to a social welfare pension into the future.
The Court quite with approval the statement of Denham J. in T v T where she said that the Court had to be satisfied with a high degree of confidence and certitude that by the contemplated date the dependent spouse “will be in a position to obtain adequate employment a specific level of remuneration of a permanent and stable nature”. The Court of Appeal felt there was not enough emphasis placed by the High Court that it was always intended that the husband would be the primary earner throughout the marriage. It also felt that there was an overestimation by the High Court of the wife’s ability to earn an income.
It also found that assumptions had been made by the High Court judge without sufficient backup in relation to the wife’s possible entitlement to a social welfare entitlement in the form of a respite grant and domiciliary allowance and also in relation to a pension.
It found that there was an absence of cogent reliable evidence in relation to her employment prospects and it increased her maintenance and made the maintenance payment payable until the husband retired and made similar Orders in relation to his obligation to provide private health insurance.
This case provides valuable assistance in relation to the basis upon which maintenance is to be assessed particularly in the case of a dependent spouse and also a factor to be taken into account by a Court. It is often the case that a paying party will argue that the dependent spouse has the ability to work and the Court of Appeal has made a very clear statement in relation to what factors the Court has to take int account when making a determination.
For any other information on any family law matter please do not hesitate to contact Brendan Dillon, Sally-Ann McCoy or Erika Coughlan on 01 296 0666.
