Provision for spouses/children does not interfere with property rights

Mon, Dec 10, 2012, 00:00

LB v Ireland and the Attorney General and PBNeutral citation: 2012 IEHC 461. High CourtJudgment was delivered on November 9th, 2012 by Mr Justice Gerard Hogan.


The requirement under the Judicial Separation and Family Law Reform Act 1989 and the Family Law (Divorce) Act 1996 to make proper provision for spouses and children does not amount to an unjustified State interference with the property rights of the affected spouse for which compensation is payable.


A divorced father of five claimed damages and various declarations from the State arising from family law proceedings that resulted in court orders excluding him from his family home, providing for sale of the property and division of the proceeds, and for a pension adjustment. He claimed he bought and paid for the family home out of his own resources.

The couple married in 1964. The wife brought judicial separation proceedings in 1998 which led to a judgment directing sale of the family home with each spouse receiving 50 per cent of the proceeds. The sale did not go ahead at that time.

The man then brought divorce proceedings resulting in a High Court decision, on appeal, directing the family home be sold with the man to get 40 per cent of the proceeds and the wife 60 per cent. She was also to get 25 per cent of his pension between 1964 and 2004.

In further proceedings , the High Court rejected challenges by the man to the constitutionality of those sections of the Family Law Act 1995, the Family Law (Maintenance of Spouses and Children) Act 1976 and the Family Law Divorce Act 1996 providing the legislative basis for the making of property and pension adjustment orders.

In his judgment on that case, Mr Justice John MacMenamin also dismissed claims that section 2.1.f and section 3.1 of the Judicial Separation and Family Law Reform Act 1989 were unconstitutional on grounds they amounted to a failure by the State to protect with special care the institution of marriage as guaranteed by article 41 of the Constitution.

The enactment of laws requiring proper provision were not just constitutionally permissible but also constitutionally required as those laws reflected fundamental constitutional values relating to the family, the judge said. In July 2009, the Supreme Court affirmed that decision on appeal.


Mr Justice Hogan said, in directing the transfer of part of Mr B’s assets to his wife, the State was doing no more than giving effect to that which is inherent in the nature of marriage itself as marriage involves mutual giving and sacrifice.

While there could not be unnecessary and disproportionate interference with family autonomy, article 41.3.2. of the Constitution not just permitted but enjoined the State to enact legislation providing for proper provision to be made for the benefit of another spouse.

Such obligations stemmed from the very nature of marriage and, by providing for such laws, the State acted to uphold and safeguard the institution of marriage in the manner required by article 41.3.

Neither the 1989 Act nor the 1996 Act should be seen as involving the taking by the State of property of a spouse because they provided for the inter-spousal transfer of capital assets, he said.

Insofar as the legislation did involve the taking of property, that was not an unjustified interference with the property rights of the affected spouse for the purposes of article 40.3.2 as the legislation was designed to give effect to fundamental values cherished by article 41 and sanctioned by article 41.3.2.

That situation was not at all affected by the fact compensation is not payable to the spouse whose property is transferred in this fashion, he said. Compensation was not payable as that would mean the State assuming a responsibility in relation to the financial obligations one spouse owed to the other.

The laws providing for making proper provision amounted to the State doing no more than providing for an independent dispute resolution mechanism, via the judicial system, of disputes between family members as to the extent of such provision, he said.

The State was effectively sanctioning the transfer of assets of spouses between each other following separation or divorce.

This situation could not be compared with either the compulsory acquisition of property or the de facto sequestration of assets by legislative action without compensation as this was not a situation of the State taking Mr B’s assets.

As Mr B’s claim for compensation must fail, he would exercise the court’s inherent jurisdiction to strike out his claim, the judge said. He also struck out the proceedings on grounds they effectively relitigated, in a slightly different form, the matters decided in Mr B’s earlier proceedings.

Mr B represented himself.

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