Solicitor Ann FitzGerald, speaking at a seminar on marital breakdown, said a number of High Court decisions since 2002 had shown that “so-called full and final settlement clauses agreed upon at separation stage, are not necessarily binding” and that “further adjustments may be made at the time of divorce or even post-divorce”.
“In order to advise our clients, we urgently require further guidance from the Supreme Court on whether and in what circumstances such cases can be re-opened,” said Ms FitzGerald. She was speaking at a seminar entitled ‘Marital Breakdown: the Tax and Legal Issues’, which took place this week in the Clarion Hotel in Cork.
Ms FitzGerald said there was a major need for a definitive decision.
“Can somebody re-open the agreement if they did poorly at the separation stage especially if they are not self-sufficient and may have children to look after? At present the law is unclear as some agreements can be re-opened and others not. There have been a number of recent decisions going in different directions and while judicial discretion is paramount in deciding what is fair and equitable in each case, nonetheless firm guidelines would be most welcome.”
Commenting on this week’s British House of Lords divorce rulings, Ms FitzGerald said they appeared “quite radical” but added that the Irish courts had already ruled there could not be any discrimination against a spouse as ‘homemaker’. “However changes in divorce law are happening quite fast with lengthy High Court judgments being handed down very regularly” she added.
The House of Lords ruled for the first time this week that wives who sacrifice potentially lucrative careers to raise a family are entitled to compensation in cases where the family’s resources exceed their needs. Melissa Miller aged 36, had a £5 million (€7.3m) award out of her former husband’s £20-£30 million fortune (€29m-€44m) fortune upheld by the court whilst Julia McFarlane aged 46, had a five year limit on her annual maintenance payments of £250,000 (€364,774) extended. The Millers had been married for less than three years and had no children while the McFarlanes were married for 18 years.