D. (B.) v. D. (J.) [2003] IEHC 106 (5 December 2003)

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High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (B.) v. D. (J.) [2003] IEHC 106 (5 December 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/106.html
Cite as: [2003] IEHC 106

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THE HIGH COURT

FAMILY LAW

No. 2002 83 M

IN THE MATTER OF THE JUDICIAL SEPARATION OF FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

B.D.

APPLICANT

AND

J.D.

RESPONDENT

JUDGMENT of Mr. Justice William M. McKechnie dated the 5^thday of December, 2003.

In these judicial review proceedings the applicant, who is the wife of the respondent, seeks, in the special summons issued on her behalf:-

1. A decree of judicial separation pursuant to section 2 (1) (b) and/or section 2 (1) (f) of the judicial Separation and Family Law Reform Act, 1989, and

2. Orders, over 20 in number, including relief under sections 6, 7, 8, 9, 10 (1), (a) (i) (ii), (b), (c), (e), 11, 12, 13, 14, 15, 15 (a), 17 and 35 of the Family Law Act, 1995.

In the replying affidavit Mr. D.. counterclaims for a similar decree but does so not only under the said section 2 (1) (b) and (f) of the Act of 1989, but also under paragraph (a) and (c) of that said sub-section. In addition a variety of consequential orders are also claimed by him.

The applicant wife was born on 10^th May, 1954, with her husband born on 6^th October, 1956. They both married according to the rights of the Roman Catholic Church on 8^th September, 1978. Of that marriage they had three children. Their eldest son was born on 27^th August, 1979; their second child on 16^th October, 1980, and their third on 10^th November, 1981. It can therefore be seen that all these children have reached their majority and it can also be noted that none are "dependent members" of the family as defined in section 2 of the Family Law Act 1995.

Since 1991, approximately, the current family home has been located in the South East of this country. On 7^th November, 2001, Mrs. D. vacated that home and presently lives in rented accommodation nearby.

Section 2 (1) of the said Act of 1989, insofar as is relevant to this application reads as follows:

"2-(1). An application by a spouse for a decree of judicial separation from the other spouse may be made to the court having jurisdiction to hear and determine proceedings under Part III of this Act on one or more of the following grounds:-

(a) that the respondent has committed adultery;

(b) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent

(c) subject to subsection (2) of this section, that there has been desertion by the respondent of the applicant for a continuous period of at least one year immediately preceding the date of the application;

(d) …

(e) …

(f) that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately proceeding the date of the application."

Accordingly, if I am satisfied on the balance of probability that any of the said grounds have been established, then in accordance with section 3 (1) of the Act "the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned."

In deciding whether to make any or all of the orders which are sought in this case the court must have regard to section 16 of the Family Law Act, 1995 as amended by section 52 of the Family Law (Divorce) Act, 1996. Without prejudice to the generality of subsection (1) of section 16, one of the matters which must be considered under subsection (2) is: "(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all of the circumstances of the case be unjust to disregard." This conduct was therefore potentially relevant to the grounds upon which a decree was sought and also to many of the consequential orders which were prayed for. That being so, evidence of conduct was led in the direct examination of the applicant. That same evidence was hotly denied and contested in cross-examination where also the applicant's own conduct was strongly put in issue. At this point, in quite a distraught condition, Mrs. D.. wondered aloud as to why this line of cross-examination was required. In response I queried the parties as to whether either or both of them intended to rely upon conduct or misbehaviour for the purposes of section 2 of the Act of 1989 or section 16 of the Act of 1995. Having taken instructions neither party wished to so rely. Accordingly it became unnecessary to pursue the allegations by the applicant or to further consider her own conduct.

This course was one with which I respectfully agreed. However, it should be expressly recorded that what was suggested in this regard by the applicant against her husband, rested, for the reasons above stated, at mere allegation state only; with it being unnecessary in the circumstances for Mr. D. to fully explore these allegations to finality. He did, of course, on oath deny all such allegations. It is important therefore to stress, not only to the parties in this litigation but also to their children, if this should ever become an issue, that this court has made no findings whatsoever on the allegations so made. In addition, it is also, I think, appropriate that I should say nothing of a specific nature about the applicant's own conduct as that emerged during the course of cross-examination.

Subject to these observations I am satisfied that the statutory requirements above mentioned have been complied with and accordingly I propose on the grounds specified at section 2 (1) (f) of the Act of 1989 to grant a decree of judicial separation to the spouses in question.

The assets the subject matter of the litigation include a business conducted through the medium of a group of companies. A major question arises as to the respective parts played by Mr. and Mrs. D.. in the establishment and development of that business. Being by far the most important item in terms of material value, a decision on this issue becomes necessary. On that point and on the overall factual and legal situation the following submissions were made on behalf of the parties.

On behalf of the applicant, Mr. David Hegarty S.C. suggests that the amendment made by the Act of 1996 to the wording of subsection (1) of section 16 is significant in that it has raised the threshold which must be satisfied before it can be said that the court has made "proper provision" for the spouses of the marriage. In his opinion the evidence in this case would demonstrate that from the very beginning both parties to the marriage conducted their affairs effectively on a partnership basis. Whilst there was nothing in writing to that effect, nonetheless, the de facto way in which decisions were taken, consultations engaged in, monies used and withdrawn, businesses entered into and so forth all lead to the inescapable conclusion that there was an equal participation by both the husband and wife in all of these activities. It was very much like what the court had found in White v. White

[1999] Fam 304

Mr. Bill Shipsey S.C. on behalf of the respondent husband does not believe that the 1996 amendment necessarily altered the basis upon which a court should look at and allocate assets on a decree of judicial separation. He says the position following such a decree is quite unlike the finality that might attach to the situation following a decree of divorce. He urges this Court to be ever mindful of the necessity to retain this business on a functional and profitable basis and points to the distinction between the facts of this case and those which appeared in T v. T

[2002] 3 IR 334

In 1975 the applicant qualified as a general nurse and added psychiatry in 1977. In 1978 she held a permanent post with a local authority. Because of the birth of her first child in August, 1979 she finished with that job some time prior to that event but returned for a three week period, in early 1980, before fully surrendering that post. She obtained a gratuity of £2,200 and later on a further sum of £800 or £900. During this time the respondent was working in his father's business earning what his wife recalls to be the weekly sums of £10 in 1977, £15 in 1978 and only £30 per week in 1983. Mr. D. disagrees with these figures and certainly remembers a weekly wage of about £40 to £50 in 1983. In any event their living requirements were satisfied by rented accommodation with the second house in that category being obtained in August, 1979. Conditions however were very poor and a mobile home was acquired in August, 1980, purchased, as the applicant says, with her money. It was placed on the lands of the respondent's family and to this day Mrs. D.. feels aggrieved at what she alleges to be a charge of £200 demanded by that family for the construction of a water connection. In 1983 a loan was obtained in the sum of £14,000 which led to the acquisition of what one might call their first permanent family home. That was acquired for £18,000 in April of that year with the balance of £4,000 coming from their savings. That house was sold in 1991 with the present family home being acquired in June of that year. The cost price was £167,500 and as of the date of these proceedings there remained due on a loan from A.I.B. the sum of €19,750.65.

12.

In between the births of her three children the applicant continued to work outside the family home. She engaged herself in selling Tupperware, she spent about three months in 1981 working in a nursing home in an adjacent town and in early 1982 got a position in a local hospital, which usually involved working night duty on Saturday night. She signed on at the local labour exchange for the rest of the week. This pattern of work continued into 1983 when she spent a further three months, approximately, again working as a nurse at a local hospital. In addition she was the principal carer of the children and also did a significant number of other tasks such as dealing with the bank, arranging to discharge the mortgage and also having an input into the partie's tax returns.

13.

During this period her husband was, as I have said, working in the family business. He left that job in March, 1983. Within one week he obtained a position with an aluminium company. There he remained until 1984. In February of that year he joined a company which fabricated windows. His commencing salary was £107 per week. He continued working with that company, progressing from the factory floor to quality control supervisor, to the position of production manager in 1987. In the year following he held the position of managing director when that company's financial support from its parent ceased in the circumstances hereinafter outlined.

14.

There is some controversy between the parties as to the extent to which the applicant worked outside the family home in the years leading up to 1988 and there is very considerable conflict between them as to the role which Mrs. D. played after the company last mentioned ceased to operate. She claims that in the three year period up to 1987 she worked to a considerable extent for this company. She alleges that in 1985/1986 she was a retail representative for its business and says that in such capacity she was in effect a full time employee from 9.00 am to 3.00 pm and 7.00 pm to 11.00 pm, for about a 14 month period covering 1986. In addition she says that in or about 1986/1987 the family seriously considered the prospect of emigrating. In preparation for such a move Mrs. D. did a course in the Rotunda and successfully sat an examination in respect thereof. She had secured the promise of a job in Arkansas, U.S. and had also procured an Australian visa. The rest of her time was spent looking after her family and her husband.

Mr. D.. on the other hand heavily disputes the extent of this working claim: he says that she did a sales course for one week and then spent no more than three to six months, at most, working as a representative with that company. She was long gone he recalls when the U.K. directors left, and she never worked for that company in 1988 or 1989 and never had any managerial role, function or input. Furthermore he asserts that emigration was principally her focus with his concentration being on his job.

15.

The acquisition by Mr. D.. in May, 1989 of the entire shareholding in a certain group of companies was the starting point in a business success story, which today involves four companies, the W.G. group, with a significant turnover and a profitable return, however one looks at the underlying business. Since, as I have previously stated, a valuation of these companies lies at the heart of one of the central issue in this case, it becomes necessary to refer to some of the more relevant events which constitute the historical background to their establishment.

16.

In the late 1960's, early 1970's an Irish company commenced to operate in the manufacturing and supply sector of double glazed windows and related products Initially this was quite successful but for a variety of reasons not relevant here, its fortunes declined in the late 1970's and early 1980's. It was then acquired in October or November, 1983 by another Irish company.

For a number of years prior to that time an English company, which I will refer to as "ASL" was operating in the south east of Ireland essentially manufacturing double glazed windows, internal sliding doors and other similar goods for the export market. That company, having previously expressed an interest in the aforesaid acquired company, eventually took over the latter in late 1983. It then established two subsidiaries which I will call "Manufacturing", which operated the manufacturing section of the acquired company and "Sales" which dealt with the sales sector of the company. It was in this formation when Mr. D.. became an employee of Manufacturing in 1984 rising as previously stated to the position of production manager in 1987.

17.

Between 1983/4 and 1987 the English parent company of ASL, Manufacturing and Sales, invested heavily in its Irish operations but despite this financial input it was unable to generate an acceptable return therefrom. As a result the ongoing trading of these operations became dependent on the continuing support of the parent company which fact was noted in the last audited accounts which covered the year to the 31^st March, 1987. In September of that year, a decision was made to withdraw that support with the parent company agreeing to transfer to the then managing director of its Irish operations, the entire shareholding of the Irish group as well as its deposit bonding, for work in hand, which it is estimated had a value at that time of close on half a million pounds sterling. In the immediate aftermath of this transfer the former managing director emigrated to the Isle of Man and for all practicable purposes disassociated himself from the business. In circumstances not material, these Irish companies found themselves with a significant revenue debt of approximately £240,000. In April, 1988 a 21 day winding up notice was served on the company. The revenue then agreed to accept stage payments over an 18 month period with other conditions being attached. As a result of various compromises Mr. D.. obtained the entire shareholding in this group of companies whilst the revenue debt was ultimately discharged as agreed.

18.

The business at this stage was in severe financial difficulties and its entire survival was in jeopardy. In 1988, probably in October of that year, having been appointed managing director, Mr. D. with the help of others, managed to successfully trade the company through this period, largely due to the support of one of its major suppliers. Arrangements were also reached with regard to rent arrears and other obligations of the business. Though the company continued to trade, its workforce was dramatically reduced and a crisis was reached when the supplier last mentioned ceased its support on 17^th March, 1989. It became a matter of absolute necessity to obtain another supplier and it was also clear beyond question that outside investment was required. Such a supplier was found by Mr. D.. and others and the search commenced for an investor. If successful that would inevitably involve the release of part of Mr. D.'s shareholding to the new investor(s). It was ultimately agreed between the said investors, who are hereinafter more particularly referred to, and the respondent, who throughout had the support of his wife, that a new vehicle would be incorporated to facilitate this investment. Accordingly, "W.G.S." was established in September, 1989 with Mr. D. retaining 40% of his original shareholding. The other group of companies apparently ceased to trade in 1988 and may have been dissolved in 1990.

19.

Within the period under review the parties to this litigation met a Mr. K.H., an accountant with offices both in Dublin and in the South East. He was introduced to Mr. and Mrs. D. by a Mr. E.G., the brother of the applicant. He played an important role in the restructuring of the company and the business. He became company secretary in 1989, a position which he held until 1995. He also did the tax returns for both the applicant and the respondent in the early years, was occasionally a financial advisor to Mr. D.. and at the behest of the latter was instrumental in dealing with the old balance sheet and in effecting compromise with its creditors. On behalf of Mrs. D. he gave evidence in this case.

20.

Realising the absolute necessity for financial support in order to sustain the ongoing survival of this business, I am satisfied that Mr. D. in 1989 explored a number of options by which this could be achieved. Discussions took place with the aforesaid Mr. E.G., with a company which I shall call C.P.L., and also with a group of B.E.S. Investments. Some limited documentation with regard to these potential investors was produced during the course of the evidence. One such possible investment scheme involved, as I have said, the applicant's brother, Mr. E.G. and also a Mr. B.C. A minute of a meeting held on the 4^th May, 1989 was referred to in this context. That purported to show the respective interests which these individuals might have in any new entity. This, of course was to include Mr. D.. who with Mr. B.C. was shown as a 24% share holder with Mr. E.G. at 52%.

On behalf of the applicant it is said that document proves that Mr. B.C. was a shareholder in the old group of companies and that there was an agreement with her brother that he would become the major investor and thus the major shareholder in the new company. This is categorically denied by her husband who says that the document in question was but one of many proposals, purely for discussion, involving different parties which were being canvassed at the time. Mr. B.C. was not, I am satisfied, a shareholder but at the insistence of other potential investors it was necessary to buy him out of the company. He was paid £18,000 in respect of his loss of office or service, with £12,000 of this sum coming from the parties joint savings with the balance being obtained from A.I.B. With regard to the said Mr. E.G. the applicant believes, that since the ultimate means of attracting investment was through a B.E.S. scheme which did not involve her brother, her husband, who preferred this method, double-crossed the said Mr. E.G. I do not accept this allegation. I believe that, as any prudent business person would do, Mr. D.. was at the time, together with his advisors, exploring different options in order to finally decide what might be in the best interests of this new company.

Whilst ultimately this did not involve her brother, I am satisfied nonetheless that he was at a number of meetings with third parties, for example the I.D.A., where the refinancing of the company was discussed. I believe that Mr. E.G. did not find favour with Mr. K.H., who at the time made it known to the respondent that it would be inappropriate to have him involved in the future business of this new undertaking. Moreover I note the allegation of the respondent that once Mr. E.G. realised that he was not going to be involved in the company his attitude to its survival was certainly less than helpful.

I therefore do not accept that there was any agreement involving Mr. D.. and the applicant's brother, a conclusion which I feel is borne out by the absence of any enforcement proceedings against the respondent, as well as by the evidence of Mr. K.H.

21.

A second possible source of investment was through a link up with C.P.L., in respect of which reference was made to what appears to have been a five page document. It would seem that this was faxed to some individual(s) on 9^th June, 1989. On p. 4 under the heading "proposed new directors and share holders" there appears the names "J.D./B.D. – Note 1 – 51%" and directly underneath this there is "G .O'B and B.L., C.P.L., 49%." The note reads: (1) "J. D., aged 32, has been employed by the company as production manager for the last six years He was formerly with ……….. Ltd. and prior to that he worked in the plant hire business." This document has been relied upon by the applicant as offering proof that the business was owned and/or operated by herself and her husband as equal partners or that otherwise she was entitled to 50% of the business. I do not believe that the material relied upon is supportive of any such conclusion. In the first instance, there is no evidence to indicate that the insertion of the applicant's name was at the behest of or otherwise had the approval of Mr. D.. Secondly, it seems from an examination of the document that her name was inserted by way of a different print instrument than that used for the rest of the document. Thirdly, by reason of this and the position of her name appearing as it does after the name of her husband, it would be reasonable to infer that the same was inserted at a point in time after the rest of the document had been completed. And finally, the note which is intended to be informative of the names first written makes no reference whatsoever to Mrs. D.. I therefore cannot accept the suggestion made on behalf of the applicant in this regard. There is one further reason why I reject this submission. It is my acceptance of what Mr. D.. recalls as being the working document in the discussions with C.P.L. I believe, as he has said, that this fax was not such a document because he can clearly remember the divide which Mr. G.O.B. and Mr. B.L., of C.P.L. wanted and would only accept namely one third, one third, and one third.

22.

In addition to its role as a potential investor, the involvement of C.P.L. is also relevant in another regard. It is said by Mrs. D.. that she played an active and important role in all of the negotiations which took place in or about 1989, when outside investment was being sought. She says that her husband and herself together with Mr. K.H. travelled to Cork and met representatives of C.P.L. over a two day period. She claims in evidence that she was present throughout all of the major discussions and made a worthwhile contribution to them. On the other hand her husband says that the only reason she was present in Cork was their joint attendance at a wedding. Without wishing at this point in the judgment to overtly comment on Mrs. D.'s involvement with the business and in particular with what role which she may have played at this time, nevertheless I am satisfied that for whatever reason she went to Cork, once there she was involved in the negotiations which took place with C.P.L. It would be extraordinarily unlikely that her role was intended to be solely that of a bystander, if as is the case, she was present throughout the relevant meetings. This is borne out by Mr. K.H. Therefore I do believe that in the context of the discussions with C.P.L. she played a role, but of what significance it is difficult to say. It is however unlikely in my view to have been quite as influential as she says.

23.

Having explored the options available, the preferred method of raising finance, and the one ultimately adopted in 1989, was through the medium of a Business Expansion Scheme, a suggestion perhaps initially made by Mr. K.H. This involved an injection of £300,000 within which Mr. D.. contributed £50,000. The driving force on the investors side was a Mr. J. F., whom the respondent both trusted and admired, together with one of his companies. Between both they invested £150,000. Indeed the division of shareholding came about by Mr. J.F. simply saying to Mr. D.. that he was getting 40% of the new entity with the balance of 60% going to the investors. The £50,000 contribution of the respondent came, as the £30,000 thereof from A.I.B. and as the £20,000 thereof from Mr. D.'s family. Mrs. D.. in her initial evidence took the position that no monies were invested by her husband but later agreed that a sum of £50,000 had been so provided. She doubted strongly, however, that her in-law's provided any money and if the bank was the source of any part thereof, it was also, she claimed, her money. I see nothing in the evidence to dispute the family's involvement and I am satisfied to accept the respondent's memory that he recalls the day when he wrote a cheque for £50,000. It is true to say that this came from the joint account in that a cheque was written on that account for the monies in question. Other than in that way, however I do not believe that it is correct to so describe the £30,000 as being a joint loan to both husband and wife. By far the most dominant customer, if not the sole one in that arrangement, was Mr. D.

This conclusion as to the source of the £50,000 is also doubted by Mr. K.H. who believes that Mr. J.D. got money from the old companies through the restructuring process. This possibly could have been so but I am satisfied that at least to the extent of £30,000 the same came from A.I.B. The end result therefore of this refinancing was that the legal ownership in W.G.S. was as follows:

Mr. D.. 40%

Rest of investors 60%.

With this money the old assets of the previous companies were acquired with a substantial sum also being available as working capital. Mr. J.F. became chairman, Mr. K.H. became company secretary. Mr. J.D. became managing director, and Mr. W.P. sales director, with the latter two being executive as to function.

24.

The applicant's claim, simply put, is that she wants, in cash, 50% of the assets. She says that in effect both she and her husband were de facto partners and that she is entitled to an equivalence of return. She points to her work ethic, to her working life both inside and outside the house, and to the role played by her in all of the aforesaid business activities which she claims to have been the equal to that played by her husband.

Dealing with this submission as it applies up to 1989, or thereabouts, I am afraid that I cannot accept it. I have no doubt but that Mrs. D. was the person who principally looked after her children and who also looked after the family home. Equally so I have no doubt but that she did work outside the family home but not to the elevated extent as she describes. In addition I do not accept that in either terms of importance or duration she had any significant involvement with A.S.L., Manufacturing or Sales being the entities which constituted the old group of companies. Undoubtedly her work generated money including the gratuities which she obtained on surrendering her permanent post with the local authority. However at least £5,600 of this was spent on a new Golf car which she got on 26^th April, 1980. I do not for a moment make criticism of this. I am sure her husband also had what was for him an acceptable motor vehicle. I refer to it simply in order to point out that whilst there were earnings there were also substantial outgoings.

25.

When financial support ended in September, 1987 for A.S.L. and the other companies in that group, a precarious position resulted for Mr. D.. and the rest of the employees of these companies. Breathing time and credit support were achieved by him which took the business up to March, 1989. A crisis then arose when a major supplier discontinued service. Talks with the Revenue Commissioners followed, contact was made with the lesser of the premises and the existing creditors as well as the rest of the balance sheet had to be dealt with. Discussions were held with several potential investors culminating in the success of the B.E.S. scheme. Whilst I am certain that Mrs. D.. knew, and had an interest in what was going on and whilst again I am certain that she gave encouragement and support to her husband, nevertheless, apart from the Cork involvement, I do not accept that she was at first hand instrumental in this restructuring. I believe however that her husband was and that he played a pivotal role in the survival and restructuring of the company during this period. Undoubtedly he had the help of many others but it was he who was in charge of all significant happenings at that time.

26.

In addition there was no question in my view of Mrs. D.. sharing with her husband any equitable interest in W.G.S. at the time. Indeed I firmly believe that there was no discussion whatsoever about the applicant getting a percentage of the shareholding in her own name, or even becoming a director of the new company. In none of the documents which I have been referred to and which relate to this new structure is there any mention of her name save in the one discussed above in the context of C.P.L. Moreover I cannot accept her explanation for not even raising this question, let alone for not insisting upon a percentage of the shareholding being transferred into her name, if in fact that was the true intention of the parties. The explanation she says was that Mr. D.. needed and needed to be seen with a block of 40% shares. But an equal divide of 20% would result in exactly the same voting power. It is my firm belief that at the time there was no question but that the respondent was in his own right the owner of this 40% shareholding.

27.

With this new investment W.G.S. quickly developed a position within its new market. It traded quite successfully in 1990, 1991 and for the most part in 1992. In the process the new entity successfully changed from what had previously been a substantial retail company into one concentrating solely on the manufacture of windows and other products, but this time purely for the wholesale trade. Unfortunately, however, largely due to external factors revenue decreased very substantially in the latter part of 1992. This had a sobering effect on Mr. D. and I am sure on the other executive workers of that company as well as on the new investors. In any event in 1993 a decision was made and approved of at board level to expand into the United Kingdom and in particular into Wales. It was decided to acquire premises and from there to enter, in a selective way. the retail market of that region. Mr. D. was instrumental and pivotal in making this decision. Having done so, a good deal of investment was required, as was time, effort and commitment particularly from the respondent. Over the following two years it became evident that this expansion was not successful with the adventure frequently if not continuously losing money. A decision was made at the beginning of 1995 to cease operations in Wales. The result was that the parent company suffered a deficit on this expansion of more than £250,000.

28.

The applicant's first P. 60 with W.G.S. was for the tax year 1993/1994. However it is virtually agreed between the parties that she worked for this company prior to that date. She claims to have started in 1989 when she was doing product design at home and later in the factory. This work expanded and demanded more of her time. In 1991 she says that she had her own sales office, was involved in customer service, interfaced with the trade and offered follow up technical know how as support for these customers.

On the other hand her husband thinks that for this period her attendance at the factory was intermittent and haphazard, certainly from 1989-1991 approximately.

During this time she had another interest outside W.G.S. In 1990 a company which I will refer to as S.W.L. was incorporated. In its business the applicant played a reasonably active role, though in its own right it had a number of employees and also a manageress. Mrs. D. however spent at least part of her time at its premises and devoted at least some of her energy and commitment to its activities. Unfortunately it was not a success and after about 11 months it ceased business with a financial loss of approximately £100,000.

In 1993 Mrs. D. became a full time employee and despite her husband experiencing some difficulty in persuading the other directors to accept her on the Board, she did become a director in the same year. Up to that time I believe as a matter of probability that her involvement got progressively greater with much of her work being related to data imputting and the logistics of orders and deliveries. Being a director she involved herself closely in the area last mentioned.

Another important member of the company, a Mr. N.C., joined in February, 1994 and some two months later became its financial director. He was therefore present for approximately half of the time during which the Wales operation was ongoing.

29.

During this 1993-1995 period it was claimed by the applicant that her husband spent every second week in Wales and that during his absence she was the person effectively running the Irish business. This not only in the area where she already had responsibility but also with the overall operation of the company. This is heavily contested by the respondent who says that in any two week period he spent no more than three days approximately in Wales. He says that the Irish enterprise was properly staffed and at managerial level, when absent, his role as managing director was fulfilled by Mr. W.P up to 1994, when that individual left the company, and thereafter by the said Mr. N.C. who immediately on becoming a director assumed the number 2 position. In my view it is difficult to accurately quantify what role the applicant performed in addition to the functions which she was already discharging at this time. I do not accept that she was "running the business" to use her own expression. It seems to me however, that during this period, she would have had a more intense interest in the Irish sector of the business not only from her own perspective but also from the point of view of appraising her husband with whom her personal relationship was still ongoing. To say, however, as she asserts, that she was in control of, had full responsibility for and otherwise subsumed the position of managing director is a suggestion which I cannot accept. I believe that the amount of time which the respondent physically spent in the United Kingdom has been overstated by the applicant and that during his absence other employees at managerial level and in particular both Mr. W.P. and Mr. N.C. played key roles. Overall, therefore, whilst I am prepared to believe that during this period the applicant's involvement was greater than it had been prior to that, nevertheless I am not prepared to accept that it reached the additional level of which she speaks.

It should also be pointed out, in the context of this failed adventure, that Mrs. D.. trained some office staff in Wales in a system involving production flow.

30.

As a result of a number of factors including the unsuccessful expansion into Wales, the paucity of dividend payout and a feeling of unease over accountability, many of the B.E.S. investors lost a degree of confidence in Mr. D. as managing director. These investors, including Mr. K.H., who was a prominent advocate amongst them, then suggested that they would buy out Mr. D.'s interest in the W.G.S. and in associated companies, which by then had been established. A condition of any such acquisition however was the signing by him of a restraint of trade clause. He refused to countenance this suggestion. Instead he sought to buy out the investors. This they agreed to so do. As a result in 1995 Mr. D.. acquired the 56% of the company W.G.S. which at that point in time was not in his hands: he having acquired an additional 4% since 1989. This acquisition of the B.E.S. investors cost IR£195,000 which sum was provided by way of financial support from W.G.S., with additional support coming from W.G.C.. In addition there was an individual investment by Mr. D.. of just under £30,000. This assistance from W.G.S. was the subject matter of a statutory declaration, made under Section 60 of the Companies Act 1963. This document, sworn on the 2^nd November, 1995, was signed by Mr. and Mrs. D.., not as shareholders but as directors. Its making was preceded by an extraordinary general meeting held on 28^th October, 1995 when the Articles of Association were amended. There is a suggestion that during this period the entire enterprise was perilously close to financial doubt if not in fact closer. It is likely that because of the troubled state of the company Mr. N.C. stepped down as a director until his reappointment was minuted in February, 1996. Whatever may have been the then position of the company, from that time onwards it went from strength to strength.

31.

The end result of that buyout was as follows:-

(a) W.G.S. which was incorporated in September, 1989, was the manufacturing company within the group. W.G. sales which was established in 1993, was the retail section of the business and through this entity the products of the manufacturing company were retailed to householders in a number of adjoining counties. A third company W.G.A. which made its first contribution in 1994 was the commercial wing of the group with the fourth and final company, W.G.C. being the holding company for W.G.S.

(b) Mr. D.. became the registered owner of 17,092 shares in W.G.S. the balance of 15,808 being held by W.G.C. Mr. D.. owns 99% of the issued shares in W.G.C. with Mrs. D, the applicant, owning 1%. The overall position therefore was that the respondent was the registered owner of 99.52% of this group with the applicant being the registered owner of 0.48%.

(c) This said position remains the existing structure of the group, which group for the purposes of this case can be considered as a single entity, with it being unnecessary to make any distinction between the individual companies or between the group and such companies.

32.

In support of her claim to have played a significant role not only in the business operation of the company but also in its restructuring and refinancing, Mrs. D. called Mr. K.H. to give evidence on her behalf. It will be remembered that he met the parties in 1988 or 1989 and following the B.E.S. investment he became company secretary. He claimed in evidence that both Mr. and Mrs. D. had a strong work ethic, were very ambitious and were, as he described it, "an item". He remembers seeing Mrs. D.. around the factory very frequently and would comment upon her absence on the rare occasions when she was not present. He felt that both parties were dependent on each other and had a very close relationship. He would make no distinction between them in terms of this business.

33.

In assessing this evidence I should firstly say that Mr. K.H. had very little, if any, relevant documentary evidence so as to remind himself of events which occurred several years ago. Secondly, despite his position as company secretary he spends very little time within the company as such. Apparently he attended a board meeting once a month and beyond that may have spent a few additional hours per month at the premises but no more. Thirdly, Mr. K.H. had a feeling in the month's leading up to the B.E.S. buy out that the investors behind the scheme were being short changed through, what he believed to be, were questionable accounting practices. He perceived that certain activities carried on by Mr. D. were solely for the respondent's benefit without the proceeds of such activities being properly distributed amongst the other investors He felt a deep sense of grievance about this. As a result he wanted to involve the Gardaí in the affairs of the company. He said that whilst he himself had the stamina for both a business and legal battle with Mr. D., the rest of the B.E.S. investors did not and as a result this led to a disposal by them of their shareholding. In addition he denied a suggestion put to him in cross-examination that he wanted to be the executive chairman of the company and when that request was denied he became disappointed. However a document headed "Position of Executive Chairman – Terms of Reference", with his firm's name on a fax copy dated 25^th August, 1995, was produced in support of this proposition. In this overall way therefore the accuracy of his evidence and the independence of his memory were questioned on the basis of the factors herein mentioned.

34.

In my view there can be little or no dispute but that the above constitutes a reasonably fair description of Mr. K.H.'s position in late 1994 and in 1995. Moreover, I am satisfied that he did express an interest in becoming executive chairman of the company and that his failure to secure this position was a disappointment to him. As a result it seems to me that I am well justified in treating with some hesitation and with some caution his evidence as to the extent which Mrs. D.. played a role in this company.

35.

From 1995 to 1999 turnover in this group improved steadily from €4.7 million to €7.9 million. During this time Mr. N.C. in mid 1996 became general manager and either at the end of 1995 or early in 1996 Mrs. D.. became production director. This title may not have added in any significant way to her work involvement as there was also within the factory a production manager who was personally in charge of the process and who reported directly to Mr. N.C. the general manger. The applicant was of course interested in production as this impacted on the company's ability to have orders ready on time and to have such orders delivered promptly. In addition, as part of her contribution she was directly instrumental in producing a colour coded system which differed from day to day and which I am satisfied helped to create far greater efficiency within the factory premises.

36.

At this time the applicant was company secretary and there were four executive directors including herself and her husband. There was one non-executive director. From time to time, Mr. D., being conscious of the importance of the composition of the Board, endeavoured to bring in third parties whom he thought would enhance its image and support its operation.

In 1997 there was a serious industrial relations problem in the factory. The applicant,I am satisfied, had no involvement in its resolution, with Mr. D.. being the principal architect of the peace which ultimately developed. In fact all such matters and other related staff problems were dealt with by the respondent.

Another structure within the company was the strategy committee of which the non- executive director was chairman. All directors I am satisfied had an input, of varying degrees, into the meetings called under his chairmanship. The company continued to trade successfully and increased its net profit to almost €900,000 in 1999.

However all was not well between husband and wife.

37.

Mrs. D.. says that as and from 1996 she felt her marriage was effectively over. Whilst continuing to have a relationship with her husband until she moved into a separate bedroom in August, 2000, she had undoubtedly well prior to that, both emotionally and psychologically, withdrawn from him. At the beginning of their breakdown I do not believe that Mr. D.. was in any way conscious of the seriousness of what was happening and certainly the same was not at that time evident on the factory floor. However, as one moved into 1998 or 1999 Mrs. D.'s estrangement gathered pace. In circumstances and for reasons which I do not find it necessary to go into, a Mr. G.L. was dismissed from his position in the company in March, 2000. Legal proceedings against the company followed in which the applicant was a supporter of the said Mr. G.L. By the time she left the family home in November. 2001 matters had deteriorated greatly not only at the personal level but also at the business level.

38.

Mrs. D.. in essence believed that for many years prior to 2001 she was undervalued and failed to get the recognition which her commitment and talents deserved. She said that many of her suggestions and recommendations were ignored, that some of her more important ideas would be entirely disregarded, but that even those which were acted upon were in effect hijacked by Mr. D. who claimed them as his own. Because of this belief on her part she threatened to resign in July, 2000 as company secretary. Some months later she did in fact resign but returned to that post in October, 2001. However, in December of that year she was removed from this position by the company.

39.

Side by side with the deteriorating relationship between herself and her husband, her relationship also deteriorated quite considerably with a number of other employees, including the general manager, Mr. N.C. whom she felt was a "yes" man for Mr. D. All of this led to serious functional problems for the company. I am satisfied beyond question that Mrs. D.. became difficult, suspicious, over complaining and developed an ever increasing hostility towards her husband and those other persons whom she believed were supportive of him. Board meetings, according to Mr. N.C., were both argumentative and time consuming and frequently ended acrimoniously. At one stage she demanded the presence of an independent note taker for all future board meetings. She felt that the minutes were being seriously compromised by the manner in which they misrepresented her position. Complaints were made against her of bullying by a number of employees including Mr. C.S. At times she would carry a tape recorder for self protection. According to her husband her attendance at board meetings was infrequent and incomplete, often turning up late or leaving early. Matters deteriorated even further later on. She was out of work for approximately five months at the beginning of 2001. A list drawn up by Mr. N.C., has been produced by the respondent which purportedly shows a history of her non-attendance and poor time keeping between 2001 and 2003. This list, whilst not completely accurate, nevertheless, if taken in conjunction with the atmosphere of the company, demonstrates just how significantly her relationship with this business had become impaired over the past number of years.

40.

On the company's side Mr. D. responded in a way which likewise indicated that trust, confidence and cooperation had seriously eroded. On 2^nd July, 2002, a warning letter regarding her poor attendance was sent to Mrs. D.. On 9^th September, a written complaint was addressed to her about her behaviour at board meetings. On the same day a second written warning was issued about her work attendance with a final warning coming on 25^th October. On the 10^th of that month an allegation of bullying or aggressive behaviour was also put in writing and sent to her.

41.

Mrs. D.. then took the position that many of the major decisions within the company were being taken entirely against her wishes or in her absence. In particular she disputed the large amount of money being spent on, or earmarked for, the acquisition of new plant, equipment, and machinery. On her behalf Messrs. Ensor O'Connor Solicitors, wrote on the 11^th October, 2002, and threatened the company with legal proceedings. They alleged that these investment schemes were part of a plan to frustrate the applicant's entitlement in the present proceedings and thus were captured by section 35 of the Family Law Act, 1995. On 28^th January, a second solicitor's letter was sent. In evidence Mrs. D.. effectively repeated what she claimed to be the true motive for these investments and alleged that the expenditure of such monies on plant and machinery and a new computer system was entirely unnecessary and wholly irresponsible.

The above is not intended to be any more than a brief summary of the more material facts, matters, events and circumstances which are relevant to the periods under review. It should be recorded that there exists a great deal more material on these issues but, in my considered view, the above represents in broad terms the more serious features of this case with my comments and views thereon.

42.

As is quite evident, from what I have previously stated, there has been for the past number of years a major alteration in the personal relationship between the applicant and the respondent and between the applicant and her work, work colleagues and workplace. Equally so the respondent has either defended his position and the position of the company or has made allegations against his wife in the areas above mentioned. It is inconceivable in my view that matters would have reached this situation but for the breakdown of their marriage. The build up in time and the increasing difficulties which culminated in the applicant's withdrawal from her marriage and from the family home have been long and arduous. This and what she perceives to have been an unreasonable stance on the part of her husband, namely his refusal to accept that the marriage was over and his retention of some hope of re-establishing a relationship with his wife, have I believe, played a significant part in the actions and attitude of the applicant towards her work and work colleagues in the past number of years. Equally so, whilst retaining some expectation of a reconciliation, Mr. D.. went on the offensive in protecting his business. As a result it would, I think, be improper for me to allow such activities to excessively colour my overall impression of this family as it was up to the year 2000. These events do however retain an importance in my overall assessment of the witnesses as well as being influential in a conclusion which I have come to, namely, that as Mrs. D.'s relationship with the business is beyond redemption I could not entertain the granting of any relief which would involve her continuation either in practice or in paper with this company.

43.

Prior to setting out my view on the role played by the applicant in an overall context there are a number of other matters which I wish to deal with. These are as follows:-

(a) In the solicitor's letters dated 11^th October, 2002 and 28^th January, 2003, being those referred to at para. 41 above, it was suggested that certain investment plans of the company were improper and were made to deprive the applicant of her rights in this family law case. To the extent that such letters expressly or by implication constituted a complaint against the board of directors which sanctioned such expenditure I would respectively disagree with it. It is evident from the history of this company and in particular from more recent events, that it is crucially important to keep abreast of the market and for that reason investment may be necessary. I therefore believe that it was wholly within the competence of the board to sanction the investments of which complaint is made in the aforesaid letters.

(b) Mrs. D.. during the course of her evidence alleged that she had been discriminated against in terms of salary increases, bonus or expenses in the past number of years In response a document was produced and not challenged by her, showing what the salaries were of each executive director from 1999 to 2003. I am perfectly satisfied from its content that she has received an increase in each of the past three years with neither herself or her husband receiving any increase for the first two years In fact she received over 4% more of an increase then her husband in 2001 and about 4% less in 2002. Given their respective positions within the company it is hard to see how she could complain on these figures or indeed how she could, on the rest of the evidence, have any genuine basis of concern regarding bonuses or expenses.

(c) Reference has been made to an area of the factory premises referred to as "the graveyard" with the suggestion being that monies were generated from activities within this area which were not properly recorded in the books of the company. I do not accept any such suggestion. I am quite satisfied from the evidence of the relevant witnesses that whatever turnover was generated in this area the same was properly vated and put through the books, and

(d) Lastly there was also some suggestion that an additional source of revenue was obtained through rebates from a company which I shall refer to as P.I.L. Whilst undoubtedly some money was obtained in this way the amounts in question have been fully accounted for and in any event are not significant in the context of this case.

Finally, could I comment, in this part of the judgment, on the involvement of Mr. P.S. with both the applicant and her husband. Apparently Mr. P.S. first approached this company in the mid 1990's offering his services which would seem to concentrate on internal management support. That was rejected at the time. The said Mr. P.S. however re-emerged through the applicant's brother in the year 2000. On at least four different occasions the applicant spent about four days at a time attending a course given by Mr. P.S. Those occasions were in March or April, 2000, October, 2000, May, 2001 and May 2002. On one such occasion, being 19^th October, 2000, whilst that course was being held in Spain, Mrs. D. made four written presentations to her husband. These were handwritten and were on foolscap sheets. Some of what was said involved her position within the company. But much other information was of a personal nature. Apparently a reply was expected or demanded from Mr. D.. He didn't respond at that time. However in December of that year, his reply, at the behest of Mr. P.S., was recorded in video form and on the completion thereof was then given by the applicant to his wife. That video was shown during the course of the evidence and a typed transcript of its contents produced. It has been relied upon as containing admissions or acknowledgments by Mr. D.. of the value and importance of his wife to the business and of the contribution which she was making to it. He speaks as to how they worked together and how the decisions which were made were made jointly. In essence they were both equal. This it is claimed supports the view that in reality she was a coequal partner with Mr. D.. in this business venture.

44.

To this day I do not quite know or understand how Mr. P.S. came to be so involved in the personal and marital relationship of Mr. and Mrs. D.. What is clear to me, however, is that what Mrs. D. was seeking from her husband at that time was his willingness to facilitate an already well developed strategy of hers to exit from the marriage whereas what Mr. D. was trying to convey in the video was his hope that a reconciliation could take place and that the marriage could be saved. He had not appreciated that his wife was irretrievably beyond that point and that her entire goal was to leave the marriage on her terms, namely financial security and personal relief though with no pain, whilst for him this spelt utter rejection. In the witness box she equated his unwillingness to so accommodate as meaning that he had never in fact truly loved her. It is utterly clear therefore that her motives with this presentation were entirely different to those of the respondent, which I am satisfied were designed predominately, if not entirely, with a view to saving his marriage to a person whom it is clear he still felt deeply about. He would, as he said, say anything; his marriage was at stake. Under these circumstances I would not even countenance the suggestion that the respondent husband should be held to anything which he might have said during the course of this video. I therefore do not believe that any evidence emerging from the involvement of Mr. P.S. is germane to this case.

45.

In looking at the business as a whole it seems to me that Mr. D.. played a far more influential part in its survival, restructuring and growth than the applicant. Mr. D.. became managing director in 1988, a position which he holds to the present day. In that capacity he was inherently involved in every major decision which was taken and which had an effect on the company. He was ultimately responsible for all key elements of a successful business. These must have included matters such as budgets, cash flow, investments, investment policy, dividend policy, strategy etc. He spearheaded the movement into Wales and although unsuccessful the real point of its relevance, in the present context, was the decision by him to so move. He dealt with industrial relations within the group and with the many other facets which the position of managing director so demanded. He was also, it must be remembered, effectively the sole legal owner of these companies.

46.

It is true that he had staff, had a number of executive directors and a board of directors all of whom contributed, in a variety of ways, to the functioning success of the group. One of these persons was the respondent wife, Mrs. D.. Her early involvement with the company is set out above where also I have attempted to evaluate her role up to, say, 1995 and 1996.

From this time up to 1999, approximately, I believe that she offered valuable services to the company in her role both as customer service director and production director and that her diligent work, performed on a full time basis, contributed in no small manner to the growth and success of the group.

This contribution in my view was made at most levels within the company but outside her immediate area of personal responsibility, this contribution can I think fairly be described as having been secondary to others. For example, on the financial side the executive director in that area since 1994 was Mr. N.C. and on the production side there was generally a person who held a title of production manager, who for the most part was operationally in control of the process. The non-executive director was in charge of the strategy committee and of course Mr. D. had the overall control of and was ultimately responsible for the health of the company.

47.

Since in or about 1999 I believe that Mrs. D.'s influence and commitment decreased and if at times thereafter she displayed an enthusiastic interest in several aspects of the company's management, one could be forgiven for thinking that this was driven at least in part by her personal plans. She missed much time from work and as previously stated her relationship not only on the floor but also with her fellow directors became seriously strained. In the past three years, or thereabouts, I believe that her positive input has been quite restricted.

48.

Because there is little documentary evidence which would either tend to prove or negative her involvement with the company, it has been important to make some individual assessment of both the applicant and the respondent. In this context I have been struck by the manner of the applicant's insistence upon her own worth to the company. She was utterly forceful in recounting her value and vehemently refused to even entertain any modification however slight of that position. Side by side with this stance was a tendency on her part to avail of opportunities to highlight what she considered to be the many weaknesses in the personality and character of her husband. In truth I felt that she was over conscious of her own importance. That led me to have a sympathetic approach to what the respondent has said about the importance of titles, recognition, and positions within the company. He claimed that his wife was constantly seeking greater recognition, an example of which was her insistence on getting the title of production director. She demanded and apparently obtained, though she would dispute in what precise circumstances, the offices previously occupied by Mr. N.C. and was influential in having the professional qualifications of that person removed from the companys letterhead. She undoubtedly sought a salary equal to that of Mr. N.C. and wanted within the company a position of title underpinned by appropriate support systems. She agreed that she had threatened in July, 2000 to resign as the company secretary because of this lack of appreciation. Overall therefore that characteristic of the applicant has had an effect on my assessment of her evidence with regard to her role.

49.

In conclusion I cannot agree that her contribution was equal to that of her husband though in arriving at this viewpoint I must acknowledge and find as a fact that throughout the years she did make a real and positive contribution to the success of this group.

50.

Following the granting of a decree of judicial separation which has already occurred in this case, it now becomes necessary to consider what are the appropriate provisions which must be applied to the position of each spouse of this marriage when dealing with the ancillary orders as claimed. These orders, which are listed at para. 1 above, are available through Part II of the Family Law Act, 1995. Individually each such order is governed inter alia by section 16 of that Act which has been amended by section 52 of the Family Law (Divorce) Act, 1996. In this amended form the relevant part of the section reads as follows:-

"16-(1). In deciding whether to make an order under section 7, 8, 9, 10 (1) (a), 11, 12, 13, 14, 15 A, 18 or 25 and in determining the provisions of such an order, the court shall endeavour to ensure that such provision exists or will be made for each spouse concerned and for any dependent member of the family concerned as is proper having regard to all the circumstances of the case. (emphasis added).

(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 separated, as the case may be,

(d) the age of each of the spouses and the length of time during which the spouses lived together,

(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 together 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 an opinion of the court would in all the circumstances of the case be unjust to disregard,

(j) the accommodation needs of either spouse 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 judicial separation concerned that spouse will forfeit the opportunity or possibly the opportunity or possibility of acquiring,

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

(3) ……

(4) ……

(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.

(6) ….. "

This section is comparable, to but not identical with section 20 of the Act of 1996 with the amendment made in subsection (1) being the insertion of the word "proper" for what previously had been "adequate and reasonable."

51.

These provisions have been considered by both the High Court and the Supreme Court in this jurisdiction over the past number of years In J.D. v. D.D. [1997] 3 I.R. 64 McGuinness J. discussed what requirement was on the court in considering Ancillary Orders under the Act of 1995. The learned judge contrasted the statutory regime which exists in this jurisdiction with that which prevails in England and pointed out that in at least two material respects there was a significant difference between each jurisdiction. In the first instance, the approach of the courts in England at that time to "big money cases" was still evolving with the predominant view being that the principle in Duxbury v. Duxbury [1987] 1 F.L.R. 7 was the correct stance to adopt when significant assets were at stake, and secondly in that jurisdiction a "clean break" situation was both legally and practically achievable. In Ireland, however, the court of trial was obliged to have regard to the various matters set forth in section 16 of the Act of 1995 as amended and when applying such matters was obligated to make "proper" provision for each spouse.

It was clear, according to the learned judge that whilst a wide discretion existed when hearing an application under the Act of 1995, nevertheless that discretion had to be exercised within the confines of the statutory regime in question, which regime provided that no order could be made under section 16 unless "it would be in the interests of justice to so do" (see subsection (5). A similar view was taken of the Irish position by McCracken J. when giving judgment in McA(M) v. McA(X) [2000] 1 IR 457 though that decision is also of interest as it involved a private company carrying on a business whose valuation was very much an issue in that case.

The Supreme Court in M.K. v. J.P. (otherwise S.K.)

[2001] 3 IR 371

Once again in 2002 this latter provision was addressed by the Supreme Court in DT v. CT

[2002] 3 IR 334

In the judgment of Denham J. at p. 382 of the report the learned judge said:

"Consequently, each case must depend 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."

In the view of both Keane C.J. and Denham J. a figure of one third of the assets could be a useful guideline for, and could not as benchmark of, fairness but aligned to that must be the circumstances, both positive and negative, of each particular case.

The conclusion of the court in D.T. was that on the husband's assets of between 14 and 15 million pounds, a figure which represented 38% of those assets was in the circumstances considered "proper" provision for the respondent wife.

It therefore seems to me, that I must approach this case on the basis of section 16 of the Act of 1995, as amended, and in the process to apply the individual factors therein listed to the particular circumstances of this case, so that by way of doing justice between the parties I should ensure that "proper" provision is made for each of them. Moreover when looking at these individual matters one must consider the facts pertinent to each such matter and must ascribe to them the appropriate weight in accordance with the evidence as tendered. Furthermore I must ensure that neither spouse is discriminated against and that whatever provision is made, is so made in the context of judicial separation proceedings and with the courts inability to achieve asset finality between the parties in mind.

Finally, I should say that whilst a technical evaluation of the differences between the words "adequate and reasonable" on the one hand and the word "proper" on the other would be highly interesting, nevertheless, such an exercise in my view would be unlikely to yield any fruitful dividend in the application of the aforesaid section 16.

55.

In addition to the Irish case law above mentioned I have also referred to a number of English authorities including Thomas v. Thomas, [1995] 32 F.L.R. 668, White v. White

[1999] Fam 304

Lambert v. Lambert

[2003] Fam 103

Thomas

White v. White [1999] Fam 304, on the other hand is an illustration of family circumstances where both parties were held to have effectively traded as equal partners. (See p. 312 of the judgment of Thorpe L.J.) And finally, Lambert v. Lambert [2003] Fam 103 was also relied upon, as affording considerable help in indicating how the English Courts approach the question of ancillary relief particularly in a case like Lambert, which was described as a text book case on that issue.

If my reference to these authorities is somewhat sparse it is not due to any lack of respect for such cases, but rather comes from a belief that there exists in this jurisdiction a body of case law which is particular to our circumstances and which at least in general terms is well capable of facilitating a resolution of the issues present in this case.

The resources of the parties in this litigation include not only the business conducted through the group of companies above mentioned but also the family home, certain untied linked funds, pension policies, quoted shares, bank accounts and other ancillary items. Save for those disclosed in the documentation and referred to in the oral evidence as tendered, I am satisfied that there are no other assets of any materiality to this case which have not otherwise been identified. Apart from the value to be placed on the family home there is no dispute between Mr. and Mrs. D.. as to the ownership of these items. For all practical purposes, save for the pension policies, the balance of the assets above mentioned is and can be regarded as being in the joint ownership of the parties. No oral evidence was called as to the value of the family home, but without objection a report from Messrs. Sherry Fitzgerald O'Leary, Auctioneers and Valuers, on behalf of Mrs. D. was handed in. That report placed a figure of €1 million on this property. Accordingly, in the absence of any contrary valuation evidence I propose to accept this figure as representing the open market value of this property.

This asset, however, as is quite evident, is not of the first importance to the parties, it being secondary to the business and to the group of companies through which the same is carried on. That business, irrespective as to what approach I should adopt in implementing the provisions of section 16 of the Act of 1995, must in my view be valued. Such an undertaking cannot I think be avoided. Accordingly, I now turn to this valuation.

57.

The evidence in this regard was primarily given by Mr. Desmond Peelo who was called on behalf of the applicant and by Mr. Liam Grant who was called on behalf of the respondent. Both are accountants of considerable renown and are accepted as experts in this area. In addition Mr. and Mrs. D.. and Mr. N.C. also contributed in this regard.

58.

The approach to valuing a private company is I believe quite different to that which would apply when valuing the shares of, say, a publicly quoted company. With the former there is no acceptable scientific way of approaching this task and the undertaking cannot be carried out as a matter of art. However there are some generally recognised standards or guidelines which assist in this regard. For Mr. Peelo the primary method of approach was one based on an earnings valuation. Having done this he then conducted a second valuation based on net assets. This was undertaken, not as an alternative choice of valuation but rather as a method of cross checking the results with those which emerged from the earnings based valuation.

The year end for this group of companies is 31^st August and there are in existence audited accounts for each year up to 31^st August, 2002. There are then management accounts on an actual basis for the eights months to 30^th April, 2003, with figures also being given for the projected position as of 31^st August, 2003, and 31^st August, 2004. When using these figures in this judgment I have rounded the same up or down, as the case may be, but otherwise have accurately stated them.

59.

For the years to the 31^st August, 2000, 2001 and 2002 the pre-tax profits respectively were €1.78 million, €2.42 million and €1.95 million. From these Mr. Peelo deducted investment income which gave for the corresponding periods, trading pre-tax profits of €1.76 million, €2.35 million and €1.86 million. He then used a weighted average to produce an annual profit of just over €2 million. By applying a multiplier of 6, that gave him a figure of €12 million to which he added back investments in a sum of over €3 million. By this method therefore, he arrived at a valuation of over €15 million on these companies.

60. On a net asset basis he took the material figure for these companies from the relevant balance sheet and added to that his estimate of what the net-of-tax profits would be for the year ending 31^st August, 2003. He assumed that this figure would be the same as that achievable in the previous year which was €1.7 million. He then uplifted the book value of the buildings, as shown in the last audited accounts, by a sum of over €500,000 as this increased figure was the market value which appeared in the management accounts to the 30^th April, 2003. The revised net asset value of the group was therefore €9.33 million.

He compared this to the acquisition by the building materials group, Heiton of 55% of a Westmeath company for a figure of €5.45 million. Since the net assets of the latter company were €6.6 million the purchase price represented a premium of 50% over net assets. He applied the same premium to the subject company which increased the figure of €9.33 million to €14 million. Having completed this exercise he felt that the result afforded some lateral confidence to the figure based on his primary method of valuation.

61.

However, as the evidence progressed it became clear that there were serious difficulties with this comparable analysis. Some of the problems were as follows:-

(a) the source of the information about Heiton's acquisition was a newspaper cutting with the published details being quite sparse,

(b) it was not known what level of borrowings the partially acquired company had,

(c) it was not known what part of its net assets comprised cash,

(d) it was assumed by Mr. Peelo, without actual knowledge, that there had been a revaluation done of the "buildings" of the takeover company,

(e) it was difficult to see how a person would pay €4.5 million for the €3 million in cash which the subject company had, which of course would be necessary in order to reflect the 50% premium which he had used, and

(f) the figure of €1.7 million, taken by the witness as his estimate of the group's after tax profit for the year ending 2003, was in fact very greatly more than even the projected pre tax profits for the same period, which according to the management accounts were estimated in a sum of €216,000 only.

As a result it seems to me that no reliance can be placed on this methodology as furnishing any support for Mr. Peelo's principal method of valuation as used in this case.

62.

His earnings based valuation was criticised in a number of respects. Firstly, he was questioned as to why he had not taken the year 2003 into account or the projected figures for 2004; secondly, it was suggested that his use of six as a multiplier was too high and thirdly, it was claimed that he should not have added back investments. By far, however, the most important point of contention was the actual years taken by him in order to establish the annual trading pre-tax profit which he used in this calculation. In support of this criticism, Mr. Grant adopted precisely the same methodology as Mr. Peelo had done but substituted in his first example the year to August, 2003 for the year to August 2000; and in his second, took the three years ending respectively in August, 2002, August, 2003 and August 2004. The results in the first example being for the period from August 2001 to August 2003, gave a figure of €6.5 million, instead of Mr. Peelo's figure of €12 million, and in the second example the corresponding figure was only €3.3 million. In response Mr. Peelo not only strongly disputed the appropriateness of taking 2004 into account, whatever about 2003, but also pointed out that this company had cash of €3 million to August 2002, which increased by a further €500,000 to July 2003. In addition he said that it had invested very heavily in plant and machinery, without recourse to borrowing and indeed had expended well over €2.5 million in that regard in a three year period including 2003. In these circumstances he vehemently rejected any notion that the true value of this group could be obtained by conducting the exercise which Mr. Grant did.

63.

Mr. Peelo believed that what one was trying to truly achieve with this exercise was to establish the capacity of the company to earn profits into the future so that any investment could be repaid. In other words what was crucial as future maintainable profits. In this regard whilst historical information was relevant as indicative of future trading, one could not simply take into account the latest set of figures and do the calculations accordingly. In addition one looked at the experience of the company, how it performed over the past number of years, what its financial and structural position was, what were the immediate causes of the problems being encountered, how was the company re-acting to these difficulties and only then should one endeavour to predict future maintainable profits. He accepted that profits had declined substantially from the three years taken by him in his valuation. He did not believe, however, that this was long term. He pointed to the cash balance above mentioned, to the investments above made, to the ever-increasing demand for housing stock particularly with a growing population, and felt that the company was in a position to take corrective action so as to reverse the declining profits and to re-establish itself as a leading force in either its existing brands or perhaps even in new lines. He said that whilst turnover had dropped from €15.5 million in 2001 to an estimated €10.26 million in 2003 nevertheless, even for the year 2004, it was being predicted that the company would generate cash of about €1 million, giving it an estimated profit of approximately €460,000.

64.

In all, therefore, whilst he felt that adjustments would have to be made to his original valuation, he still considered that the company was highly valuable. When asked as to what advice he would give Mr. D.. if a question of selling the company arose, he offered the opinion that its value was not less than €12 million and he would advise the respondent to seriously to look at that figure but only if the latter was interested in selling. If, however no purchaser made an offer in that amount and if Mr. D.. was still anxious to sell, then he would advise him to look at €10.5 million though this was absolutely, in Mr. Peelo's opinion, at the lowest end of any recognisable scale. His conclusion, therefore, was that whilst there had been a downturn and whilst a figure €15 million was no longer tenable, nonetheless even in the new and less favourable circumstances, a valuation of approximately €12 million should be placed on this group of companies

65.

Mr. Grant, who had carefully looked at the figures and who had analysed much of the relevant data, was of the opinion that the explanation for the reduction in profit was quite straightforward. He said that once a company has fixed costs and once its turnover reduces then, inevitably its profits also reduce. In this case the company had a turnover of almost €8 million in 1999, rising to €15.5 million in 2001 and dropping to €10.26 million in 2003. Accordingly, it was inevitable with these figures that the profits recorded in the past number of years could not be repeated. In his view, based on reasonable predictions, the anticipated future profit is not likely to exceed a figure of €500,000 per annum. He said that the ability of the company to retain €3 or €3.5 million was entirely due to the exceptional turnover which it had experienced in the most profitable years which were now gone. It would not be in a position to add to this figure in the future and indeed would have to utilise at least half of it to cover the planned further investment in the company. What had to be done as a matter of urgency, was to stem the decline in profits and once that problem had been addressed, to try and generate some upward movement therein. This meant that new markets and new lines may have to be looked at as well as the company keeping abreast of new technology.

66.

In the context of Mr. Peelo's approach, he was anxious to address the question of future maintainable profits, of what was the correct method of dealing with the cash surplus and finally of what the appropriate multiplier should be. Whilst agreeing that there was no fixed or rigid rules which would govern the use of a particular multiplier, and whilst offering an opinion that, in this case a figure of 5 was the appropriate one, nevertheless he proceeded to do his calculations on the basis of 5.2. He then dealt with the question of the cash and said that this surplus could not accurately be described as the type of investment which ordinarily would be added back into the equation for the purposes of an earnings based valuation. Such type investment generally speaking was external to the company such as for example, stocks and shares. However, whilst maintaining a view that the cash surplus was in a slightly different category than investments, as that term was properly understood, nonetheless he agreed that at least a portion of it could be added back.

Mr. Grant then produced figures for the value of this company by using an earnings basis valuation. He took three scenarios:- firstly he used the projected profits for the year ending to the 31^st August, 2003 and applied the multiplier of 5.2: this gave a capitalised value which was less than €800,000; secondly having taken the profits for the three years ending the 31^st of August, 2003, he used a weighted average which gave an annual profit of €1.17 million and again used the same multiplier which yielded a value of over €6 million. Finally he took the three year period ending with the predicted 31^st of August, 2004 figure, and having used the same weighted average he got a valuation of less than €3 million. Because of this great diversity he felt that an approach based on net assets was justified. Using the available figures and taking the assets at book value in the accounts of the 31^st August, 2002, the ultimate valuation was just over €7 million increasing to €7.4 million if one updated the relevant figures to the 30^th of April, 2003. If however one took these assets to the same date in April, not at book value but at market value then because of adjustments to the figures for buildings, plant and equipment, (with the latter value having been written down by almost €1.6 million), the net asset valuation of the company would be €5.9 million. In his opinion this was the true value of the company.

67.

Mr. Shipsey on behalf of the respondent in a forthright and clear cut way, submitted that this court had to take one set of figures or the other, there being no room for what he described as a "compromise". Of course he is correct in his reference to a compromise but in my view he is not so on the first part of this submission. As has been agreed by the accountants there is no mathematical formula or precise method, leading to figure certainty, which one has to adopt when valuing a company like the present group. It is not a science or an art. Therefore there is unquestionably scope on deciding upon a figure which may be above that advocated by Mr. Grant and below that suggested by Mr. Peelo. Proof of this is evident from the calculations made by Mr. Grant himself. The reason why he did not urge upon this court that figures such as €800,000, €2.9 million or €3.3 million, were the appropriate ones to apply, was that as a professional accountant, familiar with the market and experienced in valuing private companies, he knew that the group's worth was greater than the figures yielded by these particular calculations. Accordingly, I believe that I must therefore consider the overall picture in order to arrive at a proper valuation for the purposes of this case.

68.

In so doing I look at the determination of Mr. D.. in keeping the business afloat in 1989 and the investment which he was instrumental in obtaining at that time. I note the foresight and courageous decision made to repossess the shareholding of the B.E.S. investors in 1995, from which date onwards the company, save for what occurred in 2003, never really looked back.

The turnover and profits generated up to 2002 were excellent if not exceptional. The policy of the board has been cautious and prudent as exemplified by its accumulation of cash, by the virtual absence of borrowings and by its traditional reluctance to pay dividend. It has an experienced staff and whatever difficulties were encountered in the past number of years either on the floor or at board room level should no longer pose any problems.

What has happened in the past 18 months or so is undoubtedly of concern but being managed by an astute business man with an abundance of experience I have no doubt but that as a matter of probability the decline has been halted and that the future outlook for the company is anything but as bleak as some of the respondents' forecasters might suggest. Indeed although the figure is relatively small, it is still interesting to note that the predicted pre-tax profit for the year to the 31^st August, 2004, is put at €460,000 as against the corresponding figure of €216,00 for the year ending to August 2003.

69.

Mr. D. will, I am satisfied, respond in a commercial manner to the recent difficulties and will adapt and implement a recovery plan which will see this company prosper once again. This of course may have to include an assessment of lines, products, work practices and indeed other strategies, but as the fundamentals in my opinion are sound I believe that this is well within the company's capability. Every business must be acutely aware of its market and must consistently re-appraise its trends if that is what is required. This company has been actively engaged in this planning reassessment for at least the past twelve to eighteen months and will continue to work through this upheaval. Its past investment in plant/equipment and its interest in the acquisition of premises, will I believe generate more revenue and ultimately in my opinion lead to more profit.

70.

This being so I am satisfied that Mr. Grant's estimate of value is too conservative there being no way in my opinion that Mr. D.. would ever contemplate a sale at such a level. I believe that Mr. Grant's valuation, whether it be either €6 million or €7 million could be significantly increased by the release of a far greater percentage of the company's cash than suggested by him. I believe that if reasonably marketed over an acceptable period of time, a buyer would be found for this company who would be prepared to pay not less than €10 million for it. Indeed Mr. Peelo may be correct when he suggests that even a greater figure could be obtained. However in the circumstances I am satisfied that I am well justified in placing a value of €10 million on this company and that I so do. See the comments of McCracken J. in McA(M) v. McA(X)

[2000] 1 IR 457

This case in my opinion is not a company law case, or a trust action or a case where a declaration as to beneficial ownership is appropriate. Although covered in the pleadings, at para. 9(1) of the Special Endorsement of Claim, the applicant did not as such pursue the declaration claim. Accordingly, save for what is available under family law legislation, no other relief is prayed for. Therefore I don't propose to approach the division of assets in any manner other than in accordance with section 16 as interpreted and applied by the authorities above mentioned. In particular I do not propose to arrive at a financial conclusion by making a finding in percentage terms of what proportion of the shareholding in this group Mrs. D.. might, or might not be entitled to. Therefore, if I should remain conscious of any particular yardstick it is only because to do so may be useful to guard against any unconscious or inadvertent discrimination.

Finally, in this context it seems to me that since the applicant will not obtain from this court any declaration as to ownership, the question of shares having to be sold, on that account, does not arise. Accordingly the issue of any possible minority discount equally does not arise.

72.

Incidentally, on the issue of share ownership, I should say that I do not believe that Mrs. D.. ever seriously discussed with her husband the question of her obtaining in her own name any shares in this group. Whist I cannot be sure as to how seriously she thought or contemplated making such a request, I am satisfied that the issue was never as such raised between the parties. That is so prior to a suggestion being made by or at the behest of Mr. P.S., that she the applicant, should for a start, obtain 15% of the company, should be assigned an authoritative position in the company and should obtain a return equivalent to that of Mr. N.C., the general manager. By this time however it is clear from what has previously been stated that the marriage was effectively over and therefore in all likelihood the applicant must have realised that her business relationship with Mr. D. could not survive that event. I, therefore, do not accept that in any unconnected way Mrs. D. ever sought a shareholding from her husband.

73.

In applying section 16 of the Act of 1995 as amended, I am conscious that both Mr. and Mrs. D. will continue, after their formal separation, to earn income in their own right with both, based on previous experience, possessing individual earning capacity. I am mindful of the standard of living which they have heretofore enjoyed which was high though not extravagant, and, of course, of the excellent accommodation which they shared up to November, 2001. They have lived together for about 23 years and have three children who, whilst not dependent nevertheless continue to constitute a family within which hopefully they will maintain a relationship with their parents. Finally the fact that Mrs. D.. had three children has never had a serious impact on her ability to work outside the family home and a fortiori, as and from now and into the future, I am satisfied, given their ages and her independence, that this is immaterial to her future work and working capacity.

74.

Therefore in deciding what is proper provision for both spouses, I must be guided by section 16 and must utilise the facts of this case within the provisions of that section so that the resulting orders are fair, just and equitable.

75.

The approach which I have decided to adopt is predicated on affecting in a business sense an entire disengagement between the parties which means that Mrs. D.. on the 28^th February, 2004, will resign from all positions which she has with this company and will transfer her existing share to Mr. D.. or his nominee. As a result apart from the terms of this judgment she will have no further interest either legal or beneficial or otherwise in that business. On a personal basis, I propose to make such extinguishing orders as are available both in favour and against each of the parties to this litigation. Furthermore, whilst I am conscious that no clean break can be achieved between Mr. and Mrs. D.. and that these ancillary orders issue under section 16 of the Act of 1995, nevertheless I should say that it is my intention to bring as much finality and certainty to the situation as the law permits me to so do.

76.

Consequently, the unit linked funds, the quoted shares and all bank accounts, whether in joint names or in individual names must be terminated or otherwise so managed that as of the 28^th February, 2004, the value of each of these assets will be divided equally between the parties.

I propose that the pension arrangements presently in place will stand unaltered.

I am directing that the respondent pay to the applicant the sum of €2 million on or before the 28^th February, 2004, the sum of €1 million on or before the 28^th February, 2005, a further sum of €1 million on or before the 28^th April, 2006. The amounts due in 2005 and 2006 shall carry simple interest at the rate of 4% from the 1^st March, 2004, until the dates of payment or the due dates whichever are the earlier and should the event arise, shall as from the due dates to the dates of actual payment, carry a rate of interest equivalent to that available as if the outstanding sums were a judgment debt.

With regard to the family home on which I have already placed a valuation of €1 million I propose to give Mr. D.. an option of acquiring this property, which option however must be exercised by Thursday, 11^th December, 2003. In the event of the respondent exercising this option, I will direct that the applicant should transfer to him her interest in the family home but in return Mr. D. must in addition to the sums above mentioned, pay to his wife on or before the 30^th April, 2004, a sum of €500,000. In the event of Mr. D.. deciding not to acquire the family home I propose to direct him to transfer his interest in the property to his wife. In that event, the payment due on the 28^th day of February, 2006, will be reduced by €500,000. As and from the closing date the party who becomes full owner shall be solely responsible for all future outgoings.

77.

As a result of the orders which I have made in this case, it is evident that Mr. D. will have a period of over two years to discharge in full his liability to Mrs. D.., and that for the entire duration of this time, he will be solely in charge of this group of companies. With such position, he will have maximum flexibility to structure his resources in the most advantageous way possible from a taxation point of view. During the hearing of this case evidence was given, largely by Mr. Grant, as to how any lump sum payment could be extracted from the company. Such evidence touched upon a number of possibilities including the obtaining of money by way of dividend, by way of director's salary and by way of share sale to a third party. This evidence was, as it had to be, vague uncertain and unclear in that there were no concrete circumstances surrounding the issue. Given the manner in which I have approached the granting of relief to Mrs. D.. which as a result confers full ownership on and gives total flexibility to Mr. D.., I do not believe that it would be correct or appropriate for this court to stand in the shoes of a taxation advisor to the respondent in the post litigation situation. It becomes entirely a matter for him as to how he discharges these financial obligations, which obligations have been deliberately staggered and which, of course, subsume all monies and other benefits which the applicant previously has been in receipt of from this group of companies.

78.

Finally, there are a number of other miscellaneous items of property which have not been specifically dealt with. Accordingly in respect of those and any other matters arising I propose granting liberty to apply.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (B.) v. D. (J.) [2003] IEHC 106 (5 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/106.html Cite as: [2003] IEHC 106