THE HIGH COURT
FAMILY LAW
			Record No.  1997 99M
IN THE MATTER OF ARTICLE 41.3.2
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996
BETWEEN
J C N
			APPLICANT
AND 
R T N
			RESPONDENT

JUDGMENT of Mrs Justice McGuinness delivered the 15th day of January, 1999.

	In these proceedings the Applicant wife seeks a decree of divorce together with a number of ancillary financial orders.  Section 5(1) of the Family Law (Divorce) Act, 1996 ("the 1996 Act") provides as follows:-

	"5(1)    Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the Court is satisfied that -
	(a)	at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years, 
	(b)	there is no reasonable prospect of a reconciliation between the spouses, and 
	(c)	such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses and any dependant members of the family,
	the Court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a decree of divorce in respect of the marriage concerned".

	In this case the parties have lived separate and apart since at least 1975, when they entered into a Deed of Separation.  There is clearly no prospect of reconciliation;  the husband has lived in a permanent second relationship since 1978.  The two sons of the marriage are adults, having been born in 1956 and 1957.  In her evidence the wife stated that both suffered from manic depression but there was no medical or other evidence before the Court to suggest that either son was a dependant member of the family as defined in Section 2 of the 1996 Act.  Before granting a decree of divorce, therefore, the remaining requirement under Section 5 is that proper provision exists or will be made for not only the Applicant but also the Respondent.
	In her application the wife seeks a number of financial reliefs which, she submits, are necessary to ensure proper provision for her.  Through her solicitor, Mr. Shatter, and in her own evidence, she particularly stressed her need for financial support should her husband predecease her.
	This is an elderly couple;  the wife is aged 78 and the husband 74.  During his working life the husband was involved with members of his own family in a company in the building trade.   He has now retired and the company has been wound up.  He is in receipt of a pension which is administered through a scheme put in place by the Construction Industry Federation.  The wife is not in gainful employment and it appears from the evidence that she has never worked outside the home.
	The parties were married on the 2nd July, 1955 in accordance with the rites of the Church of Ireland at St. Thomas' Church, Mount Merrion.  The husband is a member of the Church of Ireland and the wife is a Roman Catholic.  There are two children of the marriage, T born the 2nd March, 1956 and R born the 30th May, 1957.  The family home of the couple was at 27 Granville Park, Blackrock.
	Marital difficulties arose and the couple separated.  In his evidence before me the husband blamed the marriage breakdown on his wife's drinking problem, but there is no need for the Court to deal with the cause of the marriage breakdown in these proceedings and accordingly I make no finding as to this.
	The parties entered into a Separation Deed on the 10th July, 1975.  In accordance with this agreement the family home was sold and the proceeds divided, the wife receiving £27,000 as her share.  In addition the husband paid to the wife a lump sum of £30,000 together with shares in his family company and a car.  This was expressed as, and was intended to be, a once-off final settlement.  The husband stated that he was advised by Senior Counsel that this was the end of his financial obligations;  this was, of course, possible under the law as it stood in 1975, prior to the enactment of the Family Law (Maintenance of Spouses and Children) Act, 1976.  Both parties, in addition, waived their rights under the Succession Act, 1965.
	The wife purchased a four bedroom home for herself in Foxrock for the sum of £27,500 together with £2,000 expenses.  It appears that the lump sum of £30,000 was paid out to her in instalments through her then solicitor.  She had exhausted all of this capital sum by 1980.
	The husband purchased a premises in his sole name at Castlecourt, Booterstown.  On the 22nd December, 1978 the husband entered into a second marriage with B D according to the rites of the Roman Catholic Church.  There had been no annulment of Mr. N's original marriage, nor any attempt at a dissolution through a foreign divorce. It is not clear whether the Roman Catholic Church authorities were unaware of his first marriage or whether they took a (somewhat high-handed) view that his Church of Ireland marriage could simply be ignored;  what is clear in any case is that this second purported marriage has no legal validity.  There are two sons of this relationship who are both still dependant.  One is a pupil at St. Andrew's College and the other a student at University College Dublin.
	In 1980 when her capital sum was exhausted the wife brought maintenance proceedings in this Court.  A Consent Order for £100 per week was made.  Over the years further maintenance applications were made;  a number of High Court Orders reflect the fact that although at times there were problems due to arrears, in general Consent Orders were made dealing with periodic increases in maintenance.  Finally in January 1996 an Order by Consent was made by Budd J. providing for a weekly payment of £198.92 plus yearly increases in accordance with the Consumer Price Index.  This sum has now increased to £211.08 per week which is paid regularly by the husband.
	As regards the sons of the marriage, R has employment and resides in his own apartment.  T, aged 42, lives with his mother in Foxrock.  He appears to have had employment both in his father's firm and elsewhere in the past.  At present he is engaged on a FÁS course and is involved in a Community Employment Scheme.  His total income appears to be in or about £86 per week which he spends entirely on his own needs such as travel and clothing.  In her evidence, Mrs N paints a picture of him as being a virtual dependant who is unlikely ever to obtain proper employment.  It appears to me, however, that even on his present income he should contribute some regular sum to his mother to assist in the household expenses.  As I have said, there is no evidence before the Court to suggest that he is unable to take on at least this minimal responsibility.
	The wife's Affidavit of Means sets out her weekly outgoings at £277.07.  These are in the main unexceptionable, except that £96.70 for food and groceries plus £20 for miscellaneous household expenditure might, in her circumstances, be thought somewhat high for one person.  It may well be that she is including food and groceries for her son;  there is no statutory justification for her claiming such expenditure against her husband.
	The wife's credit card accounts, which were produced in evidence, show a rather curious feature in that on each day she makes purchases in the local supermarket, two separate charges of roughly equal amounts are made against her account.  It was suggested to her in cross-examination that in each case one of the charges represented a purchase of alcohol in the off-licence section of the shop.  She denied this but I found her explanation that her son collected all the dry goods and paid for them with his separate credit card on her account, while she purchases the remainder of the shopping, a little difficult to accept.
	The wife has a very small sum by way of savings but is not in debt.
	As regards her present house in Westminster Lawns, she claims that it is in poor repair and bad decorative order and estimates its value at £150,000.  He husband estimates its value at £225,000.  There was no professional valuation before the Court.  Purely on general knowledge of the present housing market and a certain familiarity with the area, I would consider that the husband's valuation is much nearer the mark for a four bedroom house in the Foxrock area, even allowing for poor repair.  Very naturally, however, the wife does not wish at her age to move out of her home in which she has been living for some 23 years.
	As regards the husband's financial position, I heard both his own evidence and that of his Accountant, Mr. Mullan.  Evidence was also given by Mr. Des O'Sullivan, the Marketing and Administration Manager of the Construction Industry Federation Executive
Pension Scheme.  I had also before me the Trust Deed and Book of Rules of the Pension Scheme, together with a Benefit Schedule applying to E. Stone and Sons Limited (the husband's family firm) and an Explanatory Booklet.
	From this documentation it appears that the husband became registered as a member of the Pension Scheme on the 1st June, 1975, approximately the same time as he separated from his wife.  All his contributions were to be paid by his company and the pension payable at his retirement at aged 65 was to be two-thirds of his average salary over the three years immediately proceeding retirement.  No widow's pension was provided.
	In February 1991 Mr. N paid in a lump sum of £23,000 to enhance his existing pension benefits.  This occurred just before he retired.  The effect was that his personal pension was increased to £12,662 gross per annum.  In the event of his death in retirement, a widow's pension would become payable to his wife, B N, amounting to £8,442 per annum, or £703.50 per month.
	It will be seen from this firstly, that all contributions to Mr. N's Pension Fund were paid subsequent to his separation from his wife, and secondly, that no benefit by way of either lump sum or pension would fall to be paid to his wife J from the Pension Scheme as it stands.
	Mr. O'Sullivan in his evidence explains that under the Rules of the Pension Scheme there was normally no benefit for dependants, but that under Rule 10 of the Scheme a member could, subject to the consent of the Trustees and his employer, arrange to provide a pension for a dependant which would commence after the member's death.  This was what Mr. N had done in 1991.  In Rule 1 of the Rules "dependant" is defined as follows:-

	"Dependant means any person who is, immediately prior to the event in which his dependence falls to be considered in the application of any of these rules, wholly or partly dependant upon the member for the ordinary necessities of life and means in particular the spouse or any child, including a legally adopted child, of the member or any other child to whom the member is in loco parentis, provided that such child is under the age of 18 years at the date of the event or, if aged 18 years or more, is an invalid or is in full time attendance at any school or university".

	Mr. N provided his Roman Catholic Church marriage certificate to the Construction Industry Federation and, as far as the Pension Scheme was concerned, B N was accepted as being his legal wife.  The Trustees knew nothing of his first wife until on the 1st July, 1998 they were put on notice by the wife's solicitor that she was seeking a Pension Adjustment Order pursuant to Section 17 of the 1996 Act.
	Mr. O'Sullivan indicated that he saw no difficulty in the Trustees co-operating with any Order which might be made by this Court, and the Trustees have not made any representations to the Court pursuant to Section 17(18) of the 1996 Act to which, under the Statute, I should have regard.
	It is clear from Mr. O'Sullivan's evidence that the husband's pension has now reached its maximum at £12,662 per annum and will not increase further.
	In addition to his pension, the husband over the years accumulated a considerable amount of capital.  While in former times this may have arisen from the family building business, in recent years it has come from the sale of a house and lands in Co. Wicklow.  The lands concerned were owned jointly by him and his three siblings and he received one quarter of the proceeds of sale.  Over the years he lost some of his capital funds through what appear to have been ill-advised and ill-managed investments both in a company
which imported goods from Japan and in a Managed Fund operated by Irish Life.  According to the figures presented to me by his Accountant, his present capital fund amounts to £170,000 from which he receives a deposit interest income of £5,440 per annum.  It may be that he will receive some additional payments arising from the sale of lands and stock, but I do not accept that this will make an appreciable difference to his annual income.
	On the figures as calculated by his Accountant, Mr. N's projected annual income after tax is in total £15,846.  His annual maintenance payments to his wife amount to £10,400.  Since Mrs. N has no earnings, the couple have opted to continue to be taxed jointly so that Mr. N has the benefit of a married couple's tax allowances.  This is allowed for in the Accountant's calculations.
	Mrs B N has part-time employment as a bookkeeper.  Her net earnings per annum are £7,320 or £610 per month.  While I have no detailed evidence in regard to her tax position, I can only presume that she is taxed as a single person with the benefit of her own personal and PAYE allowances.
	As in the case of the wife, the husband complains that his home is in very bad repair and in need of re-decoration.  He estimates its value at £240,000 which seems realistic.
	In his Affidavit of Means he claims that his weekly outgoings are £524.58.  This schedule clearly includes his outgoing on behalf of Mrs. B N and the two children.
	It is abundantly clear that Mr. N is not meeting these weekly outgoings (which by and large are not particularly extravagant) out of the income of  £12,766  which he and B N have after maintenance is paid to his wife.  According to both himself and his Accountant, he has been meeting the shortfall out of his capital.  While it may be that he has some other minor sources of income, I accept the basic accuracy of this evidence.  In the last four years his capital has decreased by in or about £20,000 per annum in order to meet the maintenance of his wife and of his present partner and family.
	In her Special Summons the Applicant wife seeks both an increase in maintenance and lump sum payments under various headings.  On the figures before me, it is abundantly clear that the husband's resources would not permit of an increase in the weekly maintenance payment.  The question then arises as to whether this payment should be reduced as is sought by the husband.
	It is notable that the maintenance figure was fixed by Budd J. in 1996 on a Consent Order.  At that time the husband's income appears to have been little different from what it is at present.  I am therefore somewhat reluctant to reduce the agreed payment.  However, I foresee that some difficulties may arise in the near future as regards taxation.  The husband does not oppose the granting of an actual decree of divorce and there is no doubt that such a decree is desirable in a situation which the couple concerned have been separated for over 23 years.  In my understanding of Section 32 of the 1996 Act, if a divorce decree is granted the parties to the original marriage may only continue to be assessed jointly for the remainder of the current tax year.  Even this concession will not apply if either spouse enters into another marriage.  It seems very likely that Mr. N will, if a divorce decree is granted, enter into a legal marriage with his present partner, B.  If he does so, he and B will be taxed as a married couple.  It may well be that the maintenance payment will then fall to be taxed in the hands of the present Applicant.  Since the Court has had no expert evidence as to the future income tax position of any of these parties, and since there has been so far little practical experience of the attitude of the Revenue authorities to divorced persons, it would be most undesirable for the Court itself at this point to attempt to forecast what effect a divorce decree will in fact have on the  taxation of all of the parties' incomes.
	Given that the present maintenance level was ordered by consent, I consider that the best course at present is to leave the maintenance position unchanged but to give liberty to apply to either party once the taxation position becomes clear.
	While the husband has at present a reasonable amount of capital, it seems to me undesirable to order the payment of a capital sum under any heading to the wife.  At present interest rates, only a large capital sum would provide the wife with an appreciable investment income, and this would leave the husband without the capital which he needs to finance his own household and the educational expenses of his dependant children for whom provision must also be made.
	There remains the question of the wife's position should her husband predecease her.  There is no doubt that this would leave her in a very precarious situation since the maintenance payments would cease on her husband's death and she has, by the Separation Deed, waived her rights under the Succession Act, 1965.
	I appreciate that the husband built up the Pension Fund with a view to a pension being paid to his present partner.  Nevertheless, I must bear in mind not only the provisions of Section 5 of the 1996 Act but also the criteria set out in Section 20 of the Act.  In particular in this case, I feel must have regard to Section 20(2)(d) which refers to "the age of each of the spouses, the duration of their marriage and the length of time during which the spouses lived with one another".  Mrs N is a lady of 78 years of age.  She married the Respondent 43 years ago and lived with him for some 20 years.  It is clear that she is not able and will not be able to earn a living for herself.  While this situation is far from satisfactory for any of the parties, I consider that some provision must be made for her out of the husband's Pension Fund.  I will therefore order by way of Pension Adjustment Order that, if the Respondent pre-deceases the Applicant, the Trustees of the Pension Fund are to pay one
half of the annual pension, being a sum of £4,221 per annum, to Mrs J N, the Applicant, the remaining half to be paid to B N.  Should Mrs J N predecease B N the payment of the entire annual pension should revert to B N.
	The income thus generated for Mrs J N would not be sufficient for her needs.  If her son, Thomas continues to live with her, she will have to make clear to him that he must make a realistic contribution to the household, either from his earnings or from any State payment which he may receive.
	I can well understand why Mrs N does not wish to leave her present home.  Nevertheless, it represents a considerable capital asset which cannot be ignored in assessing the resources of both families in this case.  In future she may find it necessary to sell it and move to more modest accommodation thus acquiring a capital sum to assist in her maintenance.
	As far as B N is concerned, the Pension Adjustment Order which I propose to make will also leave her in an unsatisfactory situation, and I am very conscious of this.  It is to be hoped that Mr. N will live long enough to see his two sons by his present relationship reach adulthood and independence.  As far as B N is concerned, should Mr. N predecease her, she will in all probability remain in possession of the present family home.  If she and Mr. N enter into a legally valid marriage, she will have rights against his estate pursuant to the Succession Act, 1965.  Even if they do not marry, it is open to him to make some provision for her by other means.
	The final Order which the Applicant seeks in her Special Summons is an Order pursuant to Section 18(10) of the 1996 Act.  Section 18(1) of the Act provides:-

	"Subject to the provisions of this section, where one of the spouses in respect of whom a decree of divorce has been granted dies, the Court, on application to it in that behalf by the other spouse ("the Applicant") not more than six months after representation is first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by Order make such provision for the Applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter .....  ".

	Section 18(2) provides that the Court shall not make an Order under Section 18(1) in favour of a spouse who has remarried since the granting of the decree of divorce concerned.  Section 18(10) provides:-

	"On granting a decree of divorce or at any time thereafter, the Court, on application to it in that behalf by either of the spouses concerned, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, if it considers it just to do so, make an Order that either or both spouses shall not, on the death of either of them, be entitled to apply for an Order under this section".

	Since it seems likely that Mr. N will re-marry subsequent to a decree of divorce, it is unlikely that he will qualify to apply under Section 18(1) should Mrs N predecease him.  However, it seems preferable that the position should be made clear under Section 18(10) at this stage and I will accordingly make the Order sought.  The husband has not sought a corresponding Order pursuant to Section 18(10).  It is, however, open to him to apply for an Order under the section in the future.
	In conclusion, therefore, I will grant a decree of divorce pursuant to Section 5 of the Act of 1996.  In addition I will make a Pension Adjustment Order pursuant to Section 17 of the Act as set out above and also an Order pursuant to Section 18(10) blocking the Respondent from applying for an Order at any future date for his benefit pursuant to Section 18(1) of the Act in the event of the Applicant predeceasing the Respondent.