Court of Appeal: Spousal maintenance order doubled after High Court failed to make ‘proper provision’ for wife
The Court of Appeal has allowed an appeal against a spousal maintenance order made in the High Court, which provided only €800 per month to the former wife of a farmer and expired after four years.
About this case:
Citation: IECA 177
Court:Court of Appeal
Judge:Ms Justice Máire Whelan
The court considered section 16 of the Family Law Act 1995 and held that the maintenance order failed to make proper provision for the man’s ex-wife.
The High Court had previously found that €800 per month was sufficient in circumstances where the woman was receiving social welfare and child maintenance payments for the couple’s three children.
Further, the High Court held that the woman had a good history of upskilling and had the benefit of a mortgage-free home. However, the Court of Appeal disagreed that this was sufficient.
The couple were about 55 years old and married in 1991. They had three children, aged 24, 20 and 19. Two of the children were diagnosed with Asperger Syndrome and, at the time of the High Court judgment, were dependent children.
The parties lived in the family home which was a farmhouse located on 100 acres of land. The husband was a dairy farmer and worked the lands, which were inherited from his father. From an early point, the husband was the sole earner in the family. The wife had taken up various jobs at different points but these were often for very short periods, measured in months or weeks.
Throughout the marriage, the wife took responsibility for maintaining the home and also assisted in milking the cows. She had previously undertaken courses in reflexology, Indian head massages and jewellery making.
The marriage broke down in 2014 and the husband moved out of the home. In May 2015, the husband provided a lump sum of €200,000 to the wife to purchase a new six-bedroom house. The husband had raised the money by borrowing €70,000 from his brother and €130,000 from his father. Further, a District Court order in 2015 required the husband to pay €1,700 per month to the wife, being €500 for her and €1,200 for the children.
In the High Court, the judge applied section 16(2) of the Family Law Act 1995 in making proper provision for the wife. The court took the view that the wife had already received a “significant share of the available capital” and was also receiving social welfare payments. Further, the court held that the wife had a good history of upskilling and could obtain employment in future.
The judge ordered, inter alia, that the husband 1) pay the wife a lump sum of €120,000 and 2) pay €800 per month in spousal maintenance for four years and €1,200 per month for the children while they were still dependents.
The wife appealed the orders on two grounds. First, on the basis that €800 per month was insufficient to support herself. Second, the wife argued it was incorrect that the maintenance only had to be provided for four years and would cease thereafter.
Delivering judgment in the case, Ms Justice Máire Whelan began by noting that section 16(1) of the 1995 Act required a court to make “proper provision” for a spouse in judicial separation proceedings. Under section 16(2), a court had to have regard to a number of factors to make a maintenance order, including income into the foreseeable future, and financial needs into the future, the effect of a spouse’s marital responsibilities on earning capacity and income/benefits which either spouse is entitled to under statute.
The court held that a trial judge had a wide discretion when applying these factors to a case (M.K. v. J.P. (otherwise S.K.) (Divorce: ancillary relief)  3 I.R. 371; D.T. v. C.T. (Divorce: Ample Resources)  3 I.R. 334). Further, the court had regard to the principles of proper provision outlined in C. v. C.  IECA 410.
The court also considered Article 41.2 of the Constitution and said that only a robust application of the criteria under section 16(2) would meet the constitutional objective for respecting a spouse’s support for the State by remaining in the home (D.T. v. C.T. (Divorce: Ample Resources)  3 I.R. 334).
Applying the principles from the case law to the matter, the court held that there was no strict approach to be taken in “farming cases.” However, in the context of the case, the court held that a lump sum award was the correct approach by the trial judge.
Considering the limited term of the maintenance order, the court said any “step-down” in periodic payments had to be accompanied by a high degree of certainty that the spouse would achieve a specific level of remuneration in future employment. The court held that the previous jobs and “upskilling” of the wife provided no indication of future earning potential and there was a “significant overestimation” of her likelihood of earning an income.
At its height, the evidence was that the wife was a homemaker and raised the children. Insufficient weight was attached to her contribution in the successful dairy farm or to the continuing disabilities of the children.
The court held that the evidence of a future self-sufficient income for the wife was based on “vague generalisations and unrealistic aspirations”. Further, there was no finding of a specific earning capacity for the wife on a per annum basis.
Second, the court considered whether €800 per month was adequate provision for the wife. The court held that the trial judge erred her judgment by “adverting to a series of speculations and surmises which were not supported by probative evidence”. For example, the husband’s outstanding loan was not a factor justifying the low maintenance in the case.
Further, the trial judge erred by speculating that the wife may be entitled to further social welfare payments in the future. This was unsupported by evidence and, in any event, did not relate to her personal income. The trial judge accorded disproportionate weight to the wife undertaking nine weeks of contracted work in 2016 and failed to consider the particular dependency of the youngest child on the wife due to his Asperger Syndrome.
Finally, the court noted that the husband had been relieved of the €1,200 per month payment for the children as each had reached adulthood and were not in education. The wife was left with an average of €184 per week for four years under the maintenance order.
Ms Justice Whelan concluded that the trial judge failed to make proper provision for the wife under section 16(a), (b) (g) and (h) of the 1995 Act. The court considered that €1,600 per month was fair in the case and would only be reviewed downwards when the wife became entitled to pension payments.
On the issue of costs, the court held that it was more appropriate to take the case in the Circuit Court, although the appeal to the Court of Appeal was necessary in the case. The husband was ordered to pay €10,000 towards the costs of the appeal to reflect this.