This is the headline in a recent Irish Times Article. It raised a few questions for me so I decided to read the judgement and assess whether there are any lessons we can learn from this case. Is there something that people going through the divorce process can gain from reading this case? I am not so much interested in the specifics of the decision but what issues it raises for us. Let’s dive in.
The case itself is called FF and SB and the judgment in full is published on the court’s website. The Judge delivering the judgement was Ms Nuala Jackson who was an experienced Family Law Senior Counsel and now a High Court Judge who deals with a lot of family law cases. This type of case would not usually have a written judgment because it is a circuit court case ie assets below €3 million. The only reason that it has a judgment is because it was appealed to the High Court. So what is the first thing that jumps out at us?
The Cost of Delay in Divorce Cases
Well, the delay in the case is quite notable. The case was started in February 2017 and this decision wasn’t handed down until November 2024 – the final orders probably won’t all be completed until May 2025. That’s more than eight years. Now the intervention of Covid may have contributed to a certain amount of delay but only a small amount. The Judge attributed much of the blame to the respondent’s husband as it was he who did not file certain documents and held up the case. The judge felt that this was because he was living in this large house rent free whereas his wife was obliged to rent another home for herself.
Should You Move Out of the Family Home?
This brings us to a very contentious area of advice in Family Law: Should you ever advise your client to move out of the family home? In criminal law, the first maxim is “say nothing and keep saying it” when speaking to the Police. In family law, the maxim would be “never move out of the family home”.
However, just like criminal law, that maxim can be incorrect in certain situations. The general reason one advises to stay in the family home is the idea that if one moves out (especially where children are involved) – then the status quo changes and you are creating a new “normal” that could last for a number of years. It could be argued that a judge will say that you have proven that you can afford to rent elsewhere and that the children are fine visiting you at weekends for example.
If one stays in the house, then there is no new “status quo”. In addition, it is felt that when one spouse moves out, their interest or engagement in the divorce proceedings wanes as they have no impetus. They effectively have what they wanted ie living in the house on their own.
The opposite view would be that (especially where children are involved), if relations with your spouse are very poor, the animosity increases while living together, and long term the results for everyone are far worse. I have received advice from barristers in cases in just those terms and that we should write to the spouse or solicitor setting out that this is temporary and is only to safeguard the family relationships. Essentially nobody wants a war of the roses on their hands.
In this particular case, the wife moved out in 2016, and the judge said contributed to the delay as effectively the husband wanted to stay in the family home.
When the Family Home is the Main Asset in the Divorce
This brings me to another interesting facet of the case which is very common in cases we deal with. This is where the family home is the main asset of the marriage. It has acquired a huge amount of value and objectively needs to be sold to allow both parties to re-house. The problem arises when one party simply does not accept this. At an early stage, this can be ascertained from the party wishing to buy out the other party receiving financial planning advice ie how much can you borrow. The specifics in this case is that presumably the couple were married for almost 30 years and the property had no mortgage and was worth in excess of €1 million. Accordingly, the husband in this case was in his 50’s and may not have been able to raise a mortgage to purchase the wife’s share. In this case, the Judge emphasised that the husband’s wish to remain in the family home did not outweigh the need for a fair division of assets, noting that the house was “far in excess of what he requires for his personal accommodation needs.” She also stated that the accommodation needs of S.B.’s mother (who resided with him) were not a “factor for consideration in this case.”. The lesson to be learned (easy in hindsight) is that in situations like these both sides should very quickly decide whether this “buying out” is a realistic possibility. If its not then the case should just plough ahead.
The Importance of Acting Proactively in Family Court
This is a point I felt that Justice Jackson was also making in the case. She says that yes, the husband in this case was responsible for the delay as he effectively was happy with the status quo of him residing rent-free in the family home. However, she did not entirely blame the husband. She says specifically “but settlement attempts are not a reason not to take the usual and procedurally required steps in the context of the family law, or other, litigation.”.
Essentially in this case, the husband does not seem to have engaged as he would be expected to do, ie he didn’t file his defence until 4 years after receiving the proceedings (February 2021). \
By way of context, this should have been filed in June 2017. However, there are court procedures available to the wife in this case to compel the husband to move the case along which don’t seem to have been done expeditiously.
The Judge stated that “Little was done by F.F. to utilise the available procedures to compel the filing of a Defence and the taking of the other procedural steps by S.B.. Proactivity is an obligation upon all parties to litigation”.
There can be many factors involved in a litigant’s decision not to take all these court procedures but one of the major factors is the cost of these actions. Each time you are obliged to bring one of these motions to court could cost €3,000.00 and in family law, it is very rare where the other side pays these costs. In this particular case the judge did order that the husband pay the legal costs of the compelling motion that was taken by the wife.
Hidden Cash and Proving Undeclared Income in Court
The other interesting angle in this case is how the judge dealt with the allegations by the wife that the husband was untruthful in his affidavit of means. She suggested that her husband who was a builder had a substantial cash element of his business and essentially kept very large amounts of cash in the house. She had evidenced this by producing lists of building jobs which she says that her husband had performed in exchange for cash payments. The husband accepted in this case that yes he did works for cash but not at the level suggested and that he no longer does work of this nature. One can see that this is always a difficult area for a judge as she can only make an order based on evidence of cash and there seems to have been no smoking gun in this respect. There does not seem to have been a forensic accountant engaged to parse through the records of the business which might have helped the court to definitively say that yes there is materials being bought for jobs and that no money is received in accounts from and hence the husband is hiding money. Of most concern to the judge was what is the current position. She basically said as much and said “I have concluded that there was a cash income over the years, that this was retained within the family home and used for exceptional and luxury expenditure and that, while there may be some such funds remaining at this time, I do not believe them to be very significant”. She also said “such building works are no longer being carried out or, if they are, they are at a most modest level”. This may have proved frustrating from the wife’s perspective but she would no doubt have been advised of this in advance. The reason that no forensic accountant may not have been utilised is that the costs of this would be unlikely to get her any extra money in this case.
The Final Judgment: A Costly Lesson in Litigation
Finally, after all the noise in the case about delays, hidden cash assets, and family home, the Judge like all judges went back and decided the case based on proper provision. She set out the specific factors. She looks at both parties’ finances, earning ability and position in life. She states that she is disregarding any potential future inheritances and essentially splits everything 50/50.
There are nuances in this decision in that the husband does not gain from staying in the family home and is required to pay back the money spent by the wife on rent. Effectively, the judge made the point that after 8 years of litigation – she was making an order which was what the parties had agreed between themselves 8 years ago.
I imagine that both parties expended approximately €40-€50k in legal fees to achieve the same result. I can only think that if they had both received legal and financial advice back in 2017, this legal expense could have been avoided.
Or maybe not – as some people don’t listen to advice and unfortunately, need a court to force them to achieve this result.
