This case raises for consideration and decision issues relating to the payment of a lump sum as part of the reliefs available under the Family Law (Divorce) Act, 1996 and a pension adjustment order. While there were proceedings between the parties as to divorce, judicial separation and access to children the kernel of this appeal relates to financial ancillary orders.

2. Appeal

This is an appeal by D.T., the applicant/appellant, (hereinafter referred to as “the applicant”) from the judgment of the High Court (Lavan J.) delivered on the 28th November, 2001 and from the order made on the 6th December, 2001.

3. Facts

The learned High Court judge found the following facts, which are not in dispute. The applicant was born in 1949 and the respondent in 1952. The parties were married in 1980 according to the rites of the Roman Catholic Church. The applicant sought a decree of divorce and various ancillary orders. The respondent accepted that the grounds established in constitutional and statutory law for divorce existed but counterclaimed for a judicial separation; she made it clear that she did not wish to be divorced. The respondent sought financial orders, including a lump sum order. The learned trial judge described the background facts as follows:

“The applicant and respondent were married on the 29th March, 1980. They have three dependent children of the marriage. The applicant is a solicitor by profession while the respondent is a medical doctor, working as a general practitioner.

Shortly after their marriage in 1980, the parties moved into a house in . . .. At this time the applicant commenced his legal practice from the family home. In the early years of their marriage the respondent worked in the applicant’s practice. The respondent furnished and cleaned the offices and worked as an unofficial receptionist, available to talk to clients both after hours and at weekends. When the applicant subsequently moved to his present offices in about 1983, the respondent assisted him in the furnishing of that office, buying paintings and furnishings for the property.

Their relationship was very turbulent and there were many arguments between the parties, which at times resulted in the applicant leaving the family home and staying overnight elsewhere. Shortly after the parties’ youngest child was born in January, 1989, the parties began to occupy separate bedrooms.

The applicant left the family home in August, 1994. The respondent and the children had gone for a week’s holidays, having no idea of the applicant’s plans. On their return they discovered that the applicant had left the family home and all his possessions had been removed. On his departure from the family home the applicant took up residence in another one of his properties. There is no reasonable prospect of a reconciliation between the parties.

It is the respondent’s belief that the applicant has been unfaithful throughout their marriage. In particular, she believes that at the time the applicant vacated the family home he was involved with a woman some twenty years his junior.

The applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child. It is the applicant’s intention to marry his partner on the court granting a decree of divorce herein.

Both parties disagree as to the level of financial adjustments to be made between them. When the applicant initially left the family home the parties continued to operate a joint account which the respondent drew on when necessary. This arrangement continued for 18 months upon which time the applicant unexpectedly closed the account and opened an account in the respondent’s name. The applicant currently pays the respondent a sum of approximately £400 per week by way of maintenance for the children of the marriage, along with some other outgoings and expenses in relation to the children and the family home. The applicant’s total net assets are somewhere in the region of £20 million, the majority of which come from property. The respondent’s assets in comparison stand at around £1 million.

The respondent has spent most of her professional life working in low-key medical posts, as both parties agreed that this was more compatible to family life. The respondent re-entered part-time general practice in 1991 on a very limited basis. Between 1990 and 1998 the respondent devoted herself to her home and family and organised a limited work schedule around this. In November, 1998 the respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life. However, she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work.

The respondent’s work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day. The twin demands of her career and motherhood have put a considerable strain on the respondent and she feels that it is not in her children’s interest that she continues working at this frantic level. Accordingly, she is anxious that lump sum provision be made in order to secure her own and her children’s future.”

On the 6th December, 2001 the High Court ordered as follows:

“. . . being satisfied with regard to the requirements of section 5(1) of the Family Law (Divorce) Act, 1996, the Court doth grant a decree of divorce in respect of the marriage solemnised in . . .1980 between the applicant and the respondent herein.

and it is ordered -

. . .


3 that the applicant do pay to the respondent the sum of £800 per month for maintenance of the said D until the said D attains the age of 18 years and that the said payment do continue thereafter while the said D is in third level education up to his attaining the age of 23 years;

4. that the applicant do pay to the respondent a lump sum of £5 million in the following fashion, that is to say:


a. as to a sum of £1 million thereof on or before the 31st day of December, 2001;

b. as to a sum of £2 million thereof on or before the 30th day of September, 2002; and

c. as to the remaining sum of £2 million thereof on or before the 30th day of June, 2003;


5. that the respondent do have the right to occupy for life the family home situate at . . . to the exclusion of the applicant;

6. that the consent of the applicant to convey any interest in the said family home be and same is hereby dispensed with;

7. that 55% of the benefits accrued to the applicant’s . . Policy No. . . and to the applicant’s . . Policy Nos. . . from the date of entry to each individual scheme to the date hereof be paid to the respondent . . .”

Against the High Court judgment and order the applicant appealed. There were a number of fundamental grounds of appeal: (a) that there was error in fact and law by the learned High Court judge in complying with the terms of s. 20(2) and its subsections; (b) that no proper regard was taken of the provision made on the commencement of the parties living apart; (c) that the finding of the net worth of the applicant was £20 million was unsupported by evidence; (d) that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal; (e) that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately; (f) that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each, and as to the principles to be applied in making “proper provision”; and (g) that the order to make a lump sum payment of £5 million to the respondent was a disproportionate and excessive distribution of the applicant’s assets.

6. Submissions on behalf of the Applicant

In essence counsel for the applicant addressed five issues. He submitted that:

(a) the learned trial judge failed to identify correctly the assets of the applicant and the respondent when considering the lump sum;

(b) the learned trial judge failed to have appropriate regard to the income and earning capacity of the respondent;

(c) the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant;

(d) the learned trial judge failed to have regard to the percentage of the applicant’s assets which he acquired after the parties separated and to the contribution made by the applicant to the respondent at the time of their separation; and

(e) the learned trial judge erred in his approach to the conduct of the applicant.

(i) that there is no finality in this jurisdiction, that the respondent could return to court at any time;

(ii) that the respondent has income and earning capacity of her own;

(iii) that at the time of the separation the applicant transferred assets of approximately £1.5 million to the respondent being approximately one third of his assets;

(iv) that 80% of the applicant’s assets were acquired in two years after the separation;

(v) that the respondent does not have exceptional needs; that the children are substantially provided for or provided for by the applicant; that the applicant has new obligations; and

(vi) that the standard of living of the respondent prior to the separation can be achieved by a sum of less than £5 million.

7. Submissions on behalf of the Respondent

On behalf of the respondent it was accepted that the evidence established that the requisite period of separation and the irreconcilable nature of the relations between the parties were such as to satisfy the constitutional and statutory test for the granting of a decree of divorce. The issues on the appeal concerned only the financial arrangements. It was submitted that the court must be satisfied that proper provision is made for the respondent and the children. It was submitted that the test, the approach of the court to financial orders, should be as follows:

(a) the court should apply the statutory criteria set out in section 20;

(b) in evaluating the contributions of both parties to the welfare of the family [in accordance with subs. (2)(f)] the traditional role of women in the home should not be valued lower than the role of the breadwinner, for to do so would be to discriminate;

(c) the assessment of assets should be at the date of trial, save where there was deliberate or reckless wasting of assets;

(d) there is necessarily an interaction between the various financial orders that may be made so that if the court is to make no, or a very low, maintenance order in favour of a spouse, then that must be reflected in a correspondingly high award of a lump sum.

The Constitution of Ireland, 1937 provides for divorce. Article 41.3.2 of the Constitution provides that:

“A court designated by law may grant a dissolution of marriage, where, but only where, it is satisfied that,

i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or period amounting to, at least four years during the previous five years,

ii. there is no reasonable prospect of a reconciliation between the spouses,

iii. such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them, and any other person prescribed by law, and

iv. any further conditions prescribed by law are complied with.”

The Family Law (Divorce) Act, 1996, (hereinafter referred to as “the Act of 1996”) provides for divorce. The long title to the Act states that it is “an Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce, to enable the courts to make certain preliminary and ancillary orders in or after proceedings for divorce, to provide, as respects transfers of property of divorced spouses, for their exemption from, or for the abatement of, certain taxes (including stamp duty), and to provide for related matters.”

Part II of the Act of 1996 is relevant, especially s. 5 which provides:

“S. 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 would be made for the spouses and any dependent 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”

“(1) In deciding whether to make an order under section 12, 13, 14, 15(1)(a), 16, 17, 18 or 22 and in determining the provisions of such an order, the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned.

(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:


(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another, as the case may be,

(d) 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,

(e) any physical or mental disability of either of the spouses,

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

(h) any income or benefits to which either of the spouses is entitled by or under statute,

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

(j) the accommodation needs of either of the spouses,

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of divorce concerned, that spouse will forfeit the opportunity or possibility of acquiring,

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.


(3) In deciding whether to make an order under a provision referred to in subsection (1) and in determining the provisions of such an order, the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force.

(4) Without prejudice to the generality of subsection (1), in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters:


(a) the financial needs of the member,

(b) the income, earning capacity (if any), property and other financial resources of the member,

(c) any physical or mental disability of the member,

(d) any income or benefits to which the member is entitled by or under statute,

(e) the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained,

(f) the matters specified in paragraphs (a), (b) and (c) of subsection (2) and in subsection (3),

(g) the accommodation needs of the member.


(5) The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”

The Constitution and the law require that proper provision be made having regard to the circumstances for the spouses and any dependent member of the family. In determining the proper provision it is mandatory for the court to have regard in particular to the factors set out in s. 20(2)(a) to (l) of the Act of 1996. The relevance and weight of each of the factors will depend on the circumstances of each case.

In this case the learned trial judge, in relation to a number of the factors, stated that he had regard to the provisions, or that he had taken them into account. Better practice would be to consider all the circumstances and each particular factor ad seriatim and give reasons for their relative weight in the case.

The wording of the law and Constitution relates to ‘proper provision’. It is a proper provision based on the constitutional and statutory recognition of the family. The special place of the family and of family duties are recognised. In assessing the ‘proper provision’ under Article 41.32 the court must look at both aspects of a spouse’s role in the family, two sides of the coin. Thus the court must have regard to the role of the spouses in relation to the welfare of the family, to their contribution in looking after the home or caring for the family: s. 20(2)(f) of the Act of 1996. On the other side of the coin, the court must have regard to the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each, and the degree to which the future earning capacity of a spouse was impaired by reason of the spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family: s. 20(2)(g) of the Act of 1996. By this total approach to the family role of a spouse and its effect, formal recognition is given to the role of caring for the family.

Article 41.3.2 of the Constitution and the Act of 1996 clearly require that value be placed on the work of a spouse caring for dependents, the family and the home. This is consistent with the express recognition within the Constitution of the work done by the women in the home. Article 41.2 provides:

“1. In particular, the State recognises that by her life within the home woman gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

In this case the learned trial judge assessed correctly the family role of the respondent and gave a significant weighting for her time spent in the home. A long lasting marriage, especially in the primary childbearing and rearing years of a woman’s life, carries significant weight, especially if the wife has been the major home and family carer.

11. A “clean break” principle

A “clean break” principle may be found in the law as to financial orders relating to divorce in other jurisdictions. However, such a provision is not part of the Irish Constitution or legislation. There is no provision providing for a single payment to a spouse to meet all financial obligations. Rather the fundamental principle is one of “proper provision”. However, the absence of a ‘clean break’ principle does not exclude a lump sum order. The principles of certainty apply to family law as to other areas of the law. Certainty is important in all litigation. Certainty and consistency are at the core of the legal system. However, the concepts of certainty and consistency are subject to the necessity of fairness. Consequently, each case must be considered on its own facts, in light of the principles set out in the law, so as to achieve a just result. Thus while the underlying constitutional principle is one of making proper provision for the spouses and children, this is to be administered with justice to achieve fairness.

12. A lump sum order

There is nothing in the Constitution or legislation which prohibits a lump sum as part of a financial ancillary order. In considering whether such an order is applicable the provisions of the Act of 1996 must be applied. A lump sum may be part of the proper provision for a spouse. Once such an order is made it becomes part of the circumstances of the family. If any further application were to be made to court such a previous order would be relevant as having been an order that the court considered proper having regard to the circumstances. The fact that such a lump sum order may exclude or greatly limit any further financial order by a court does not make the provision improper or the order unfair. The underlying principle of the Act of 1996 is fairness. As s. 20(5) provides:

“The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so.”

13. Assessment of Assets

(i) Date

The learned trial judge held that the assessment of assets must be as of the date of trial or the appeal. I would affirm and uphold this finding. It is consistent with the wording of the statute which refers to “. . . circumstances exist . . .”, “. . . the income . . . which each of the spouses concerned has or is likely to have . . .”, “. . . the financial needs . . . which each of the spouses has or is likely to have . . .”. It is noteworthy that the statute is framed in this manner given that the scheme under the Constitution and the legislation requires separation prior to the proceedings. Thus the ordinary meaning of the words make it clear that assessment is as of the date of trial. However, while the assessment of assets is at the date of the trial or the appeal there may be important factors relevant to that sum to be taken into consideration in determining the proper provision for the spouses. It may impact on the particular factors stated in s. 20(2)(a) – (l) of the Act of 1996, it may be relevant to the generality of the provision, or it may impact on the fairness of the provision. Thus, the fact that a considerable sum of money was acquired by a spouse after their separation, the basis for such a new acquired sum, or the existence of a deed of separation, may be very relevant.

(ii) Not division

The scheme established under the Act of 1996 is not a division of property. The scheme established under the Act of 1906 provides for proper provision, not division. It is not a question of dividing the assets at the trial on a percentage or equal basis. However, all the circumstances of the family, including the particular factors referred to in s. 20(2) of the Act of 1996, are relevant in assessing the matter of provision from the assets.

The assets in this case acquired post separation by the applicant are property and he has benefited from the great increase in property prices. However, the funding of this property was assisted by his legal practice, which in itself (a) had benefited directly from the work of the respondent by her work as receptionist, cleaner, etc. on occasions, as found by the High Court, and (b) had benefited indirectly by her as the home maker leaving the applicant free to grow the practice. Consequently, such property falls for inclusion under several heads of s. 20 of the Act of 1996.

In this case the applicant did acquire considerable property after the spouses separated and before the trial date. However, the acquisition of the property was not unconnected with his solicitor’s practice. The significant role of the respondent in the development of that practice was established before and determined by the learned trial judge. The increased assets of the applicant had a direct link with the input of the respondent in growing the practice, which itself could be said to be a basis for the property acquisition. I am satisfied that the learned trial judge was correct in applying these and other factors so as to include all the applicant’s assets in determining the proper provision of the respondent and the situation of the applicant.

Assets should be assessed as at the date of trial. However, there may well be circumstances as to their relevance as an asset base in providing proper provision. Thus if the parties had no joint enterprise (such as a farm or business or professional practice) and one party after separation commenced and achieved success in a wholly new area, that may be a circumstance applicable to the determination of the asset base relevant to proper provision. While the factors set out in s. 20(2)(a) – (l) must be applied it may affect the benchmarking of fairness.

(iii) Benchmark

Irish law on divorce does not provide for property division. Indeed it is irrelevant in very many cases where there is not enough money for two homes where one had existed and where lack of money is a severe concern and limiting factor for both spouses and children. In cases of ample provision, such as this, the sums involve more than essentials. Each case must be decided on its own circumstances. However, there are relevant fundamental legal principles – such as to recognition of spouses’ work in the home – as to spouses’ rights under the Succession Act – as to the place of the family in our society. Consequently, I agree with the Chief Justice that a figure of one third of the assets may be a useful benchmark to fairness. Against that bench may be aligned, both positively and negatively, the specific circumstances of a case, and in particular the factors set out in s. 20(2)(a) – (l) of the Act of 1996.

The concept of one third as a check on fairness may well be useful in some cases, however it may have no application in many cases. It may not be applicable to a family with inadequate assets. It may not be relevant to a family of adequate means if, for example, such a sum could only be achieved by a sale of assets which would destroy a business, or the future income of a party or parties, or if it related to property brought solely by one party to the marriage, or any other relevant circumstance. It may not be applicable to a situation where a party has wealth from his or her own endeavours to which the other party has no claim except under the factors set out in s. 20(2)(a) – (l) of the Act of 1966.

(iv) Value of assets

There were some inconsistencies between the figures found in the judgment of the learned trial judge and the evidence as to the assessment of the assets of the applicant. I am satisfied that the figure of £20 million was incorrect. This was accepted by both sets of counsel. Counsel for the applicant made the case that the net assets of the applicant were approximately £14 million. Counsel for the respondent put the figure nearer to £15 million. Similarly, there was disagreement as to the respondent’s net assets. Counsel for the applicant placed them nearer to £1.5m while counsel for the respondent placed them at a slightly lower figure. However, within these broad parameters there was agreement. Counsel did not seek a retrial. Counsel sought finality in this case.

The finding of the net worth of the applicant to be £20 million was unsupported by evidence. In light of the variation between the evidence given in the High Court and the findings of the High Court, applying Hay v O’Grady [1992] 1 I.R. 210, I am satisfied that it is appropriate to determine the facts on the evidence given. I am satisfied that this is a decision within the principles of Hay v O’Grady, taking into consideration also that both parties urged determination of the matter, to reach finality in the case, and to find the fair conclusion. On the evidence I am satisfied that the appropriate figures are that the applicant had an estate of approximately £14.5 million and the respondent had an estate of just over £1 million at the date of trial.

(v) Lump sum of £4.6 million

In this case, because of the scheme of payment ordered, the lump sum is worth £4.6 million approximately. I would not interfere with the exercise of discretion by the learned High Court judge in making this determination. There is no maintenance order for the respondent. In its place is an additional capital sum to give security to the respondent, which is not unreasonable in the circumstances. As the right of succession is being given up it is legitimate not only to have that as a factor in mind, but also to consider the fact that it is legitimate for a spouse to have some independent estate to leave to her children. This is so especially if there are children existing or potential in a subsequent marriage of one spouse.

(vi) Earning capacity of respondent

It was submitted that proper regard had not been given to the income of the respondent. It is clear from the facts found by the High Court that the learned trial judge carefully considered her professional and work life in the past, present and the future. Clearly it was very limited work while she was the home and child carer. Her move back to work in her forties was analysed. This work involves a limited income. The limitation was found to be because of her prior and present home circumstances. The learned trial judge made a clear determination of the facts, grounded on the evidence. As to the precise future income of the respondent, I am satisfied that the learned trial judge did not fail to have regard to either the income or earning capacity of the respondent. However, it would be of assistance if such factors are considered in an express manner and reasons for decisions given.

(vii) Financial needs of the applicant

Counsel for the applicant submitted that the learned trial judge failed to have regard to the financial needs of the parties, especially the applicant. However, I am satisfied that this submission must fail. In fact, the learned trial judge considered the needs of both spouses. Recognition was given to the applicant’s second family and the learned trial judge referred specifically to the presence of a child of the new family. I would not interfere with the exercise of the discretion of the learned trial judge. While it is better practice to consider more expressly the needs of the parties in the circumstances of this case I would not allow the appeal on this basis.

While the mandatory provisions of s. 20(2) must be considered, the weight to be given to the issue of needs may vary. In a case where money is tight ‘needs’ may weigh heavily. In a situation where ample resources are in issue a more detailed analysis of the ‘needs’ of the parties may not be necessary and may not be weighted too heavily. Thus in the situation where the applicant will leave the marriage with millions of pounds and his practice and the respondent will have millions of pounds and her work there are clearly ample resources to meet needs. There are no exceptional requirements in this case calling for special consideration.

(viii) Conduct

Counsel for the applicant submitted that the learned trial judge erred in his approach to the analysis of the conduct of the applicant. The learned High Court judge held at p. 22 to 23 of the transcript of the judgment:

“One outstanding matter that has given me much difficulty is the specific provision of s. 20(2)(1) of the Family Law (Divorce) Act, 1996. It seems to me on the evidence that I am obliged, in exercise of the discretion which undoubtedly arises, to take it into account. In doing so this creates a further difficulty, namely how to quantify it and in this regard I note that the particular provision does not offer any formula for its proper assessment. I note that McGuinness J. in her judgment and McCracken J. in his judgment did not deal with this aspect.

In these circumstances I propose, from a monetary point of view to deal with it by way of what I consider to be a proper adjustment of pension provisions in favour of the respondent.

. . .

In respect of the pension provisions as set out in the Delaney Bacon and Woodrow report dated the 10th July, 2001, I would have been disposed to divide this to the applicant as to 49% and the respondent as to 51%. However, having regard to the view I have expressed as to the taking into account of s. 20(2)(1) of the aforesaid Act of 1996 I will in deference to my findings thereunder allow a finding of 45% to the applicant and 55% to the respondent.”

“(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it.”

“There will no doubt be a residue of cases where the conduct of one of the parties is in the judge’s words ‘both obvious and gross’, so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. In such a case the court remains free to decline to afford financial support or to reduce the support which it would otherwise have ordered. But, short of cases falling into this category, the court should not reduce its order for financial provision merely because of what was formerly regarded as guilt or blame. To do so would be to impose a fine for supposed misbehaviour in the course of an unhappy married life.”

The circumstances of this case are relevant to many of the factors set out in s. 20(2(a) – (l) of the Act of 1996. This includes the fact that the applicant left the home, and the fact that the applicant is in a second relationship with a child. These and other factors affect the proper provision for the spouses and dependent children of the family. These circumstances have been correctly taken into account in assessing the lump sum. However, I am satisfied that the learned trial judge erred in penalising the applicant by his pension adjustment order on the basis of the conduct of the applicant.

(ix) Conclusion

It was submitted that there was an error in fact and law by the learned trial judge in complying with s. 20(2) of the Act of 1996. The learned trial judge indicated that he was applying the provision of s. 20(2) of the Act of 1996. From the body of the judgment it is clear that he did analyse and apply the said provisions of s. 20(2) to the facts of this case. While it would be better practice to refer ad seriatim to each of the provisions of s. 20 and to give reasons for the relevance and weight of each subsection to the determination, in all the circumstances of the case I am satisfied that this ground of appeal fails. The discretion given by the legislature to the trial judge under this scheme is ample. In view of the submissions of counsel and the facts of the case I would not allow the appeal on this ground.

It was submitted that no proper regard was taken of the provision made on the commencement of the parties living apart. In assessing the assets and circumstances of the parties the situation on their separation was an integral part of the whole analysis. The determination made by the court was for the long term and without provision for maintenance for the respondent. A lump sum was sought by both parties. In light of the ample discretion vested in the trial judge, the circumstances of the case, the use of the lump sum as a provision, I would not interfere with the exercise of discretion by the learned trial judge.

The applicant submitted that the finding that the net worth of the applicant was £20m was unsupported by evidence. As indicated previously, I am satisfied that there was not evidence to support a finding that the applicant was worth £20m. There was a degree of confusion in the judgment as to this fact. As indicated above, on the evidence I am satisfied that the net worth of the applicant was approximately £15m. I would allow the appeal on this ground.

It was submitted that the learned trial judge erred in holding that the assessment of assets be at the date of trial or appeal. For the reasons stated previously I would dismiss this ground of appeal.

It was submitted that the High Court failed to have any or any proper regard to the fact that the applicant acquired a significant part of his property at a time when the parties were living separately. For the reasons stated herein I would dismiss this ground of appeal.

It was submitted that the High Court misdirected itself as to the balance to be achieved in considering the factors set out in s. 20(2) of the Act of 1996 and the weight to be attached to each and as to the principles to be applied in making “proper provision”. The discretion set out in s. 20(2) of the Act of 1996 is ample, and while it would be better practice to consider and determine ad seriatim with reasons each of the matters set out in the said s. 20(2), for the reasons given I would not interfere with the exercise of the discretion of the learned trial judge and I would dismiss this ground of appeal.

The applicant submitted that the order of a lump sum payment was disproportionate and excessive. For the reasons given I would dismiss this ground of appeal.

Having considered the appeal, and submissions, for the reasons stated, while not upholding all the reasoning of the High Court, I would uphold the provision for a lump sum as ordered (with the obvious need for variation in the dates).

However, for the reasons stated, I would allow the appeal in relation to the pension order. The appropriate order in relation the pension would be as prior to adjustment, that is 49% to the applicant and 51% to the respondent.