The 2012 Supreme Court case of G versus G is a case that we, as solicitors, constantly have in the forefront of our minds when advising clients going through the divorce process. People impacted by marriage breakdown often struggle to understand the issues and their rights and are not aware of what steps they need to take in order to safeguard themselves and their families. This struggle is often due to the huge range of emotions and grief that people are going through.

G v G became synonymous with “second bite of the cherry” cases. This case remains instrumental in Irish law and has made it more difficult to revisit an existing deed of separation or judicial separation at a later divorce application.  Until the referendum in 2019, in order to obtain a divorce, separating couples were required to live apart for a period of four out of the previous five years. Understandably people wanted some clarity and certainty following their separation rather than waiting a number of years to obtain a formal divorce in the Courts. This element of certainty was achieved by way of a deed of separation or judicial separation.

Deed of Separation

A deed of separation is a legal contract and is a written document that is then signed by the parties. It is essential that each party receives independent legal advice in the preparation of a deed of separation. A deed of separation will make provision for custody, access to children, maintenance, division of matrimonial property, and succession rights. A deed of separation is not binding on third parties and so any agreement made in respect of pension policies or a mortgage is not binding unless agreed upon by the relevant institution, ruled and made an order by a Court.

Judicial Separation

A judicial separation on the other hand is a Court application. This application can be done on a no-fault basis provided the Court considers that no normal marital relationship has existed between the spouses for at least one year. An order for judicial separation can make provision for custody, access to children, maintenance, division of matrimonial property, succession and pension rights and is formally ruled on by a Judge. The same principles of “proper provision” apply to the Judges granting the judicial separation.

G v G

By way of brief background, in G v G, the case concerned an appeal by the husband against a series of High Court orders in a divorce case. The Court had to consider the weight to be given to a “full and final settlement” clause, and the meaning of “proper provision” in the 1996 Family Law (Divorce) Act. The couple were married in 1977 and lived in a house inherited by the husband. The wife brought £3,000 in savings to the marriage. They had no children and they ran a farm and garage. The husband began to pursue property development, building and selling houses. The couple separated in 1995 and entered a separation agreement in August 1996, under which there were certain agreements made in respect of spousal maintenance, property division and contained a “full and final settlement” clause, which stated that the agreement constituted a full and final settlement of all present and future financial claims to be made by either party, including where one party is seeking a divorce at a later date. The wife then brought a divorce application in circa 2004. The wife claimed she did not enjoy the same lifestyle as her husband and that she incurred debts until the maintenance was increased. She brought a claim for divorce and that “proper provision” be made for her under the 1996 Act. The divorce was granted by the High Court in 2009 and various substantial orders were made. The husband appealed the matter and argued, among other things, that the High Court judge failed to have sufficient regard to the “full and final” clause in the separation settlement.

The Supreme Court determined that a deed of separation should be given significant weight when it comes to making provision for the parties at a later divorce hearing, especially when the deed of separation contains a “full and final settlement clause”. It was held that exceptional circumstances would be needed for a Court to upset the separation agreement freely entered into. These circumstances would be, for example, a substantial change such as the illness of one of the parties. The Court confirmed that if a person achieved wealth after the separation, and this was unconnected to any joint project of the spouses, there was no automatic right to an increase in the financial provision for the other spouse. It was stated that a clean break is a legitimate aspiration in Irish law, but it is not a guaranteed right and “proper provision” may see a change in circumstances being reflected in the final divorce ruling provisions. The Court clarified that inherited assets should not be seen as assets obtained by both parties in the marriage if possible.

Since G v G, Courts have been seen to vary in what weight they attach to previous agreements but the following general points can be made:

1. Courts will have regard to prior agreements and the circumstances of that time.
2. Courts’ ability to make proper provision for spouses and dependent children cannot be ousted by a deed of separation or consent terms in judicial separation.
3. The Court will consider the financial resources of both parties at the time of divorce.
4. More recent settlements will have greater weight than older ones as the circumstances of both parties are less likely to have significantly changed.
5. A full and final settlement reached at the time of divorce will have greater weight than one reached on judicial separation.
6. Courts may be less likely to intervene where generous provision was made for the less wealthy spouse in a prior settlement.
7. Prior settlements are much more likely to be revisited where proper disclosure was not made at the time.
8. The source of assets of the marriage, for example inherited assets introduced by one spouse to the marriage, will carry some weight and the Court has decided that inherited property does not necessarily form part of matrimonial assets.

All of these cases tend to be decided on the particular circumstances of each case so hard and fast guidelines or rules are difficult to arrive at.

Conclusion

The deed of separation was designed to be a document that, once the relevant separation period has passed, would later be presented to the Court and the divorce finalised according to the terms of the agreement. Deeds of separation are becoming less common following the 2019 referendum. This referendum reduced the mandatory separation period from four of the previous five years to two of the previous three years. However, as a consequence of this Supreme Court decision, separating couples can enter into deeds of separation which contain full and final settlement clauses with greater confidence that they will not be overturned later on.

By Aislinn Collins Solicitor

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

August 2023 Wolfe & Co. LLP Solicitors

Market Street, Skibbereen, Co. Cork - web: www.wolfe.ie

Tel: 028-21177, e-mail: info@wolfe.ie