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2025 IECA 259

Approved No Further redaction required THE COURT OF APPEAL Record Number: 2025/104 Neutral Citation Number [2025] IECA 259 Faherty J. Binchy J. Pilkington J. BETWEEN/ G APPLICANT/ RESPONDENT - AND – G RESPONDENT/ APPELLANT JUDGMENT of Ms. Justice Faherty delivered on the 10th day of December 2025 1. This appeal concerns the interpretation by the High Court (Hyland J., hereafter “the Judge”) in a judgment dated 19 July 2024 ([2024] IEHC 489) of para. 2 of the settlement agreement (hereafter the “Terms of Settlement”) entered into by the appellant and the respondent (hereafter, for ease of reference, “the Wife” and “the Husband”) on foot of family law proceedings instituted by the Husband. -22. The Judge concluded that the correct interpretation of the properties listed at (

  1. i)to (
  2. v)in para. 2 of the Terms of Settlement was that the ownership of those properties was intended to be held by the parties as tenants in common. Background 3. The parties were married in 1969. The Husband is now in his 90s and the Wife is in her 80s. The family law proceedings commenced in 2021 when the Husband issued a family law civil bill seeking a divorce. The proceedings were transferred to the High Court in February 2022. 4. The proceedings were listed for trial on 11 January 2023. The High Court had facilitated an early trial date due to the parties’ respective ages. Each side were represented by a solicitor, Senior Counsel and Junior Counsel. Agreement between the parties was reached on the trial date and the Terms of Settlement gave rise to a consent Order in the High Court (Jordan J.) dated 11 January 2023. 5. To put the present dispute into context, it is necessary to refer in some detail to the terms agreed by the parties on 11 January 2023. 6. Paragraph 1 of the Terms of Settlement provides for a decree of divorce dissolving the parties’ marriage. Paragraph 2 provides as follows: “An order pursuant to s.15

(1)(b) of the Family Law (Divorce) Act 1996 directing that the parties are each entitled to a 50% interest in the following real properties: i. The family home at [Property A]. ii. [Property B]. iii. [Property C]. iv. [Property D]. v. [Property E]. -3vi. All antique furniture, paintings and ornaments to include those on list appended. In the event of a failure to agree a division the parties will select by turn. vii. All bank accounts held by the parties either solely or jointly held. viii. Any other assets or investments including [Share Portfolio A]
  1. At para. 3, the parties agreed, inter alia, that they were to retain their respective pensions but were to equalise the incomes derived from their respective State pensions, the respondent's ARF and the applicant's annuity during their lifetimes.
  2. Paragraph 4 of the Terms provide for a declaration that the parties are each entitled to 50% of the shareholding in [Company A] and subsidiaries, [Subsidiary Company B] and [Subsidiary Company C] which have several property holdings. Notably, the Wife accepts that the parties’ co-ownership of the corporate shareholding is as tenants in common rather than joint tenants.
  3. Paragraphs 5 and 6 are in the following terms: “
  4. The parties' accountants to carry out a reconciliation of all real assets to include cash and investments and substantial dispositions by either party within a period of four weeks from the date of this agreement and to that end the disclosure period in respect of both parties' assets to be extended as and from 01 July 2016 to date.
  5. The parties shall meet within six weeks of the date of this agreement to agree a shareholder's agreement with respect to the aforesaid companies and to agree the distribution of the assets aforementioned”.
  6. Paragraph 7 provides: “
  7. Mutual orders pursuant to s.18
(10)of the 1996 Act.” -
  1. Paragraph 9 provides: “
  2. Mutual exclusion orders pursuant to s.15 of the 1996 Act”.
  3. Finally, paragraph 12 provides: “
  4. The parties acknowledge that these terms constitute proper provision and acknowledge the finality thereof subject to the reconciliation exercises provided for herein”.
  5. As is clear from the Order of 11 January 2023, Jordan J. was satisfied that the requirements of s.5
(1)of the Family Law (Divorce) Act 1996 (“the 1996 Act”) were met. The Order further provides as follows: “AND THE COURT DOTH receive the Consent terms the original of which is filed with and attached as the First Schedule hereto and DEEMS them to be part of this Order and enforceable as such.”
  1. Regrettably, matters did not thereafter proceed as envisaged by the Terms of Settlement.
  2. On 21 February 2023, the Husband issued a motion to enforce the settlement in light of the fact that the 4 and 6-week deadlines in the Terms of Settlement had passed without, it was claimed, engagement by the Wife. He also sought an order for discovery. On 15 September 2023 the Husband issued a motion seeking to set aside a transfer that had been made by the Wife of one of the properties. On the same date, he issued yet another motion seeking the sale of certain of the properties including the family home. This was followed by a further motion which issued on wherein the Husband sought further and better discovery in order to commence the reconciliation exercises referred to in the Terms of Settlement.
  3. For her part, the Wife, likewise, issued a motion seeking further and better discovery. -
  4. Between February 2023 and February 2024, the parties’ family law proceedings were before the High Court on some fourteen occasions without, however, the current controversy having been raised by the Wife either on those court occasions, or in correspondence.
  5. According to the Husband, the present dispute was first raised in telephone correspondence between the Wife’s present solicitor (Mr. Paul McMahon) and the Husband’s solicitor (Mr. Finian Dullea) on 2 February 2024 (which was some twelve months post the divorce order) when it was intimated by the Wife’s solicitor that the High Court Order of 11 January 2023 did not say that the Terms of Settlement provided for the severing of the joint tenancy.
  6. Further motions to those listed above were subsequently issued by each side and included the Husband’s motion, the subject matter of this appeal, which issued on 1 May
  7. Therein, he seeks “a declaration that each of the parties hereto hold a 50% interest in the properties listed in paragraph 2 of the Terms of Settlement dated 11 January 2023 as tenants in common”.
  8. The Husband’s motion is grounded on an affidavit sworn by Mr. Dullea on 29 April
  9. Mr. Dullea avers that the division of the parties’ assets on a 50/50 basis was in recognition of their equal efforts in raising their family and running their family business. He avers, at para. 7, that “It was readily understood by the parties and their Counsel that the 50/50 division of the real property severed the parties’ joint tenancy in the properties and converted their tenancy into a tenancy in common”.
  10. Mr. Dullea goes on to identify the difficulties that arose in relation to the enforcement of the terms against the Wife and avers to the telephone conversation with the Wife’s solicitor on 2 February
  11. The latter stated that the High Court Order did not say that the Terms of Settlement provided for the severance of the joint tenancy. As a -6result, Mr. Dullea wrote on 7 February 2024 and 19 February 2024 to Mr. McMahon requesting that the issue be clarified. He received a reply from Mr. McMahon on 5 April 2024 wherein Mr. McMahon stated, inter alia, that he did not seek to add to or subtract from the terms of the Order and Terms of Settlement. Mr. Dullea wrote again to Mr. McMahon on 23 April 2024 and received a reply from Mr. McMahon dated 25 April 2024 wherein he stated that “the agreement and order did not sever the joint tenancies”.
  12. It was in the above circumstances that the within motion issued.
  13. At para. 15, Mr. Dullea avers that both parties, via their solicitors, Senior Counsel and Junior Counsel, consented to the Terms of Settlement and that no objection was raised by the Wife about the severance about the joint tenancy concerning the properties at para. 2 of the Terms of Settlement. He deposes to his belief that the Wife had only raised her objection in order to “further delay and frustrate the prosecution of these proceedings”.
  14. At para. 17, he states: “I say and believe that [the Wife] is aware that what was envisaged by the Terms was that the company and personal assets would be divided and reconciled such that each would get 50% of the true value of same. I believe that here (sic) is no basis whatsoever for the position seemingly being taken by [the Wife] with regard to the tenancy in common. She could not have contemplated a position whereby both parties would hold the assets as joint tenants in view of their age, health and the heavily contended nature of the proceedings. I say and believe that the position being taken by [the Wife] on this issue is creating unnecessary stress and conflict for the parties, which should be avoided in view of their health and age.”
  15. The Wife’s replying affidavit was filed on 21 June
  16. At para. 5 she avers that the family home which she has lived for almost fifty years and the other real properties -7have been held by the Husband and herself “with a 50% interest as Joint tenants with Right of Survivorship”. With regard to para. 2 of the Terms of Settlement, she avers: “Paragraph 2 of the terms of Settlement states that the Parties are entitled to ‘a 50% interest’ in the real properties which is exactly the same position (and in fact identical wording) adopted in [the Husband’s] Affidavit of Means dated 2nd of July 2021, where he swears as to having a ‘50% interest’ in the real properties, thereby confirming the same position.” (para. 9)
  17. At para. 10, she claims: “The Terms of Settlement did two things only (i) They established and confirmed ‘a 50% interest’, which reflected our existing ownership of the Family Home and the listed real properties-apart from [a named property], which was previously in my sole name prior to the Order and (ii)The Terms directed the Parties to agree the distribution of the assets aforementioned.” As indeed noted by the Judge, on the Wife’s analysis, this demonstrated that there was to be no change in the parties’ ownership of the properties after the Terms of Settlement.
  18. At para. 11, the Wife avers that para. 2 of the Terms of Settlement established and confirmed the existing 50% interest in the family home and the other listed real properties with a clear understanding that the division and distribution of the listed properties was to be agreed by the parties in subsequent negotiations, and, specifically, did not change the co-ownership type from joint tenants into tenants in common. In response to para. 15 of Mr. Dullea’s affidavit, she avers that “[n]o objection was raised about the severance by this Deponent as there was no discussion regarding a severance of joint tenancy or loss of survivorship on 11th January
  19. This matter is only being raised for the first time, almost one and a half years’ later by [the Husband’s] solicitor”. She further avers that the -8Husband had only brought the within motion to gain leverage in subsequent negotiations and that the motion had a lot to do with gaining control of the family home.
  20. The Wife goes on to repeat her claim that the Terms of Settlement “provided for the confirmation of the existing property ownership position between us. The Terms of Settlement declare that [the Husband] and me are entitled to a 50% interest in the properties reflecting and declaring our existing joint tenancy in the Family Home and real properties. They do not purport to adjust our respective interest in the Family Home and/or real properties”. (para. 14)
  21. As, again, noted by the Judge, certain of the Wife’s averments constituted legal argument more appropriately made in legal submissions. By way of example, the Wife identified that the Terms of Settlement were made pursuant to s.15
(1)(
  1. b)of the 1996 Act which provides for orders under s.36 of the Family Law Act 1995 (“the 1995 Act”). She refers to the fact that no property adjustment orders were made on 11 January 2023. As deposed to in her affidavit, the Wife’s argument in respect of s. 36 of the 1995 Act is that the section relates to the determination of questions relating to existing title of married couples to property and does not provide for a change or adjustment to the pre-existing property holding position such as conversion of joint tenancies into tenancies in common. Her contention is that she consented to the Terms of Settlement on the understanding the division of assets would be the subject of subsequent negotiations in circumstances where the Husband would have an immediate divorce on 11 January 2023 having been granted an early hearing due to ill health. 30. In essence, she deposes to the following reasons as to why she would not have agreed to forfeit her right of survivorship: • There was no agreement on same in the Terms of Settlement. -9• There was no discussion on the day regarding severing joint tenancies and converting the ownership into tenants in common. • She would never have agreed to convert the properties to be held as tenants in common without an order agreeing on the division and distribution of the properties. • Had the properties been converted to being owned as tenants in common, then that risked the Husband’s beneficiaries, in the event he predeceased her, being foisted on the Wife in her own home and the likelihood of further litigation regarding ownership of the assets. • The conversion of the properties into being owned as tenants in common also gave rise to the possibility of the Husband seeking a sale of the family home. (As we see, the Husband duly sought the sale of the family home. At the hearing of the within appeal the Court was advised that an order for the sale of the family home was made by Jordan J. on 29 July 2025.) • Conversion to ownership of the properties as tenants in common attracted negative tax consequences such as the properties having to go through probate in the event of the death of the Husband which could leave the Wife in limbo and with lack of certainty. 31. The Wife further avers that if the effects of a change to holding as tenants in common had been discussed on 11 January 2023 she would not have signed the Terms of Settlement and would have waited until a full division of the assets was achieved. 32. At para. 24, she deposes that had it been intended that there would have been severance of the joint tenancies without right of survivorship, then express or implied words of severance would have been included in para. 2 which would have included words - 10 such as “(
  2. i)‘distinct share’ (
  3. ii)‘no right of survivorship’ (iii) ‘property adjustment order’ (
  4. iv)‘undivided shares’ (
  5. v)‘separate and distinct’”. 33. She argues, at para. 25, that in a joint tenancy two co-owners both have a 50% interest in the property and that, therefore, the mere reference in the Terms of Settlement to a “50% interest” is not sufficient to convert the joint tenancy into a tenancy in common. Somewhat curiously, whilst the Wife contends for a joint tenancy as regards the properties listed at para. 2 (
  6. i)– (
  7. v)inclusive of the Terms of Settlement, she does not take issue with the contention that the parties’ joint ownership of the assets listed at para. 2 (
  8. vi)– (viii) inclusive was severed by the words of severance employed in para. 2. 34. In short, the Husband contends that the Terms of Settlement mean that the properties listed at para. 2 are held by the parties as tenants in common, whereas the Wife argues that the parties continue to hold those properties as joint tenants as was the case prior to the consent Order. The High Court judgment 35. The arguments canvassed on behalf of the Wife in the court below did not find favour with the Judge. All in all, she was satisfied that the correct interpretation of the Terms of Settlement was that the properties identified at para. 2 were intended to be held by the parties as tenants in common and not joint tenants. The Judge’s rationale for her decision is considered more fully below. 36. Consequent on the judgment, by Order dated 30 July 2024 (as perfected on 26 March 2025) the High Court declared that each of the parties holds a 50% interest in the properties set out at para. 2 of the terms of Settlement as tenants in common. It is from this Order that the Wife now appeals including that part of the Order which awarded the Husband the costs of the motion. - 11 37. I should add at this juncture that in her notice of appeal the Wife also appealed against the refusal of the Judge to grant her an adjournment of the hearing which adjournment was sought on health grounds. This ground of appeal, however, was not pursued. The Appeal 38. In essence, the Wife’s appeal advances four broad arguments, as follows: 1. The words of severance used in para. 2 of the Terms of Settlement are not sufficient to create a tenancy in common in lieu of a joint tenancy and the Judge erred in finding otherwise. 2. The High Court erred in deploying the “text in context” approach to interpretation to impute or imply severance where the language used in para. 2 does not meet the requisite standard. 3. The provisions of s. 36 of the 1995 Act are declaratory only and as such ought not to have been interpreted as they were by the Judge. 4. The Judge erred in awarding the Husband his costs. Discussion and Decision 39. In addressing the issues that arise on the appeal, it is apposite to first consider the legal principles to be applied to the interpretation of a settlement agreement. It is well established that a settlement agreement is to be treated as a contract between the parties and the same principles of interpretation apply to such settlements as those applicable to any contract (Jackie Green Construction Limited v. IBRC [2019] IESC 2). As noted by the Judge, the task of the court is to decide what the intention of the parties was having regard to the language used in the contract itself and the surrounding circumstances. In his judgment in Jackie Green Construction Limited Clarke C.J. referred to his earlier judgment in Lanigan v. Barry [2016] IESC 46 where he had identified the text in context approach as - 12 requiring the court to consider the text used in the context of the circumstances in which the document concerned was produced, including the nature of the document itself. In Jackie Green Construction Limited, he observed at para. 5.4: “…it is important to give due recognition both to the text of any document creating legal rights and obligations and to the context in which the words used in the measure concerned were chosen. To fail to give adequate weight to the words is to ignore, or downplay, the fact that those were the words that were chosen to define the relevant legal arrangement. To fail to give adequate weight to the context is to ignore the fact that all language is inevitably interpreted by reasonable persons in the light of the context in which that language is used.” Clarke C.J. went on to state: “In addition, it is clear from the authorities referred to that part of the relevant context is the nature of the document governing legal rights and obligations whose construction is at issue. The more formal the document the less one would expect to find errors or looseness of language. Contractual documents entered into after careful negotiations between experienced lawyers on behalf of the parties may be seen to operate in a different context to for example the informal rules of a small association. In all cases the text is important, but part of the context in which the text needs to be considered is the manner in which that text was arrived at, and the circumstances which led to the text being required and/or agreed.” (Para. 5.5) 40. Thus, as the case law (including Lanigan v. Barry and Jackie Green Construction Limited) makes clear, the text in context approach requires the court to consider the text used in the context of the circumstances in which the document concerned was produced, including the nature of the document itself. In Point Village v. Dunnes Stores [2021] IEHC 628 Barniville J. (as he then was) referred to the judgment of O’Donnell J. (as he - 13 then was) in Law Society of Ireland v MIBI [2017] IESC 31. There, O’Donnell J. referred to the “importance of approaching the Agreement in a holistic way rather than having immediate resort to case law”. The meaning of a particular provision was to be derived from a consideration of the agreement as a whole, whose interpretation not only relies on those features supportive of the interpretation but also must plausibly interpret the entire agreement including those provisions which appear to point to a contrary conclusion. O’Donnell J. observed that the court must consider not just the words used but also the specific context, the broader context, the background law, any prior agreements, the other terms of the agreement, other provisions drafted at the same time and forming part of the same transaction “and what might be described as the logic, commercial or otherwise, of the agreement” (para. 12). 41. In Point Village, Barniville J. also referred to the helpful drawing together of the relevant principles derived from the case law by McDonald J. in Brushfield Ltd. v. Arachas Corporate Brokers [2021] IEHC 263, as follows: “(
  9. a)The process of interpretation of a written contract is entirely objective. For that reason, the law excludes from consideration the previous negotiations of the parties and their subjective intention or understanding of the terms agreed; (
  10. b)Instead, the court is required to interpret the written contract by reference to the meaning which the contract would convey to a reasonable person having all the background knowledge which would have been reasonably available to the parties at the time of conclusion of the contract; (
  11. c)The court, therefore, looks not solely at the words used in the contract but also the relevant context (both factual and legal) at the time the contract was put in place; (
  12. d)For this purpose, the context includes anything which was reasonably available to the parties at the time the contract was concluded. While the negotiations between - 14 the parties and their evidence as to their subjective intention are not admissible, the context includes any objective background facts or provisions of law which would affect the way in which the language of the document would have been understood by a reasonable person; (
  13. e)A distinction is to be made between the meaning which a contractual document would convey to a reasonable person and the meaning of the individual words used in the document…in order to ascertain the meaning of words used in a contract, it is necessary to consider the contract as a whole and it is also necessary to consider the relevant factual and legal context… (
  14. g)As O’Donnell J. made clear in the MIBI case, in interpreting a contract, it is wrong to focus purely on the terms in dispute. Any contract must be read as a whole and it would be wrong to approach the interpretation of a contract solely through the prism of the dispute before the court…” 42. Whilst not gainsaying that the agreement reached by the parties here is a contract in law, the Wife’s solicitor disputes that the Court should apply the long established “text in context” approach to the interpretation of paragraph 2 of the Terms of Settlement. 43. In the court below, he argued that the text in context approach to settlements in family law (in particular, cases involving the family home) was not appropriate and submitted that there was a need to have a higher standard applied to such settlements. However, the solicitor cited no authority for that proposition. 44. The Judge found no basis for that argument in law and thus proceeded on the basis that the established approach to the construction of settlements applied in family law proceedings in the same way as it does in any other context. 45. In this Court, the argument advanced by the Wife for the imposition of some higher standard for the interpretation of para. 2 of the Terms of Settlement than the text in context - 15 approach was premised on the alleged error on the part of the Judge in deploying the text in context approach to interpretation to impute or imply severance of the parties’ joint tenancy in the relevant properties. It was said that the language used in para. 2 did not meet the requisite standard for severance of a joint tenancy to have occurred. Whilst the Wife agrees that when interpreting an agreement, the court must consider the logic, commercial or otherwise, of the agreement, she nevertheless argues that viewing the agreement through the lens of logic cannot assist in the present case in circumstances where, she says, the words used in para. 2 are not clear. Her solicitor contends that the “text in context” approach should take cognisance of the fact that, here, the words actually employed in para. 2 indicate that no severance of the joint tenancy took place. 46. Whilst not saying that the text in context approach does not apply to family law proceedings, the point being advocated by the Wife’s solicitor is that in the circumstances as contended for here by the Wife, the bar is higher before severance of joint tenancy can be said to have occurred. In his written submissions, the solicitor argues that the text in context approach was not appropriate where an agreement is drafted with the assistance of experienced solicitors and counsel on both sides. As the written submissions put it: “A declaratory provision was specifically engaged and recognised words of severance were not chosen”. 47. In the first instance, I am satisfied that the Judge was correct to reject the Wife’s argument that in family law cases a higher standard applies to the construction of settlement agreements. I agree with the Husband’s submission that this proposition is not borne out by the case law. It bears emphasising, however, that my rejection of the Wife’s argument is not a bar to her making the argument she makes in relation to how the words “each entitled to a 50% interest” should be construed. Nor, as we see, did the Judge’s rejection of the necessity for a higher standard than the text in context approach present - 16 any impediment to the Wife, in the court below, from arguing as to how para. 2 of the Terms of Settlement should be construed. As the judgment under appeal shows, the text in context interpretation exercise engaged in by the Judge duly took account of the arguments canvassed by the Wife. 48. In essence, the Wife’s position is that the words “each entitled to a 50% interest” as appear in para. 2 of the Terms of Settlement are not words of severance and, moreover, are merely declaratory of the ownership position as pertained prior to the Terms of Settlement. This contention mandated, first, a close analysis of the words used in para. 2. and, secondly, as assessment of the basis upon which it is said that “a declaratory provision was specifically engaged” (emphasis added). 49. The Judge commenced her analysis at para. 31 of the judgment by noting that para. 2 of the Terms of Settlement employed the following form of words: “The parties are each entitled to a 50% interest” in the identified properties.” 50. In the view of the Judge, various words in that formula “indicate an intention to sever the joint tenancy and hold the properties as tenants in common”. In the first instance, the words “each entitled” denoted, in the Judge’s view, “a distinct and individual interest in the identified properties” on the part of the Husband and the Wife. She concluded that the words “a 50% interest” indicated that each of the parties had been given a separate and identifiable share of the properties. She stated, at para. 32: “The cumulative effect of these two sets of words suggests to me that what is envisaged is that the interest in the identified real properties is divided, whereby each party has been given an entitlement to a distinct interest, with each of them holding a separate 50% interest”. 51. She regarded the reference to “50%” as “very significant” given that it represented an identified share in the property for each party, “as opposed to a joint holding of the - 17 entirety of each of the properties, as would be the case in a joint tenancy”. She was also satisfied that “the textbook analysis confirms that the reference to ‘each’ is a well-known denominator of a tenancy in common, being a word of division”. 52. Whilst alert to the warnings in the case law against over reliance on the wording of a provision alone, the Judge was nevertheless of the view that the words at para. 2 “strongly suggests that the starting point here must be that the properties were intended to be held as tenants in common following the conclusion of the [Terms of Settlement]” (para. 33). 53. On appeal, the Wife argues that neither the Husband nor the Judge cited any case in which the words “each holding a 50% interest”, “50% interest” or even “each” have been held to indicate the creation of a tenancy in common or the severance of a joint tenancy. It is further contended that the phrase “50% interest” is commonly used to describe a joint tenancy between two parties. This, it is said, reflects the fact that each is entitled to 50% of the benefits of ownership including rent. She describes “interest” as a “neutral” term and submits the use of the word “each” necessarily follows from the fact that there are two joint tenants. 54. Asked by the Court what words would have served to sever the joint tenancies, the solicitor for the Wife offered the formula “share and share alike in equal shares as tenants in common” as words which would effect a change from a joint tenancy to a tenancy in common. 55. In this Court, and in the court below, the Husband cited Halsbury’s Laws of England (5th ed. 2022) Vol 87 para. 216 entitled “Creation of tenancy in common by grant or devise” and Wylie Irish Land Law (6th Ed, Bloomsbury Professional 2020) in aid of his position. 56. Halsbury treats of the creation of a tenancy in common as follows: - 18 “A conveyance of property to two persons in moieties creates a tenancy in common between them, and a grant of a moiety creates a tenancy in common between the grantor and the grantee. If, therefore, a will directs that property is to be divided, or to be equally divided, or to be distributed in joint and equal proportions, or that the parties are to participate, or if the gift is among persons equally, or share and share alike or in equal shares and proportions, or in moieties, or among or between the donees, or is given to them respectively or to each of them, a tenancy in common is created…” 57. In response to the observation of the Court that the words in para. 2 of the Terms of Settlement were equivalent to the “in moieties” described in Halsbury, the solicitor for the Wife whilst conceding that “in moieties” may be analogous to “each entitled to a 50% interest” contended that the case law considered in Halsbury was not applicable to the circumstances in the present case. He states, moreover, that Halsbury does not cite any case in which the words used in para. 2 were held to be indicative of a tenancy in common. 58. Turning next to Wylie: Para. 8.19 thereof addresses the expressions that have been held to be words of severance for the purposes of creating a tenancy in common instead of a joint tenancy. It states: “The following expressions have been held to be words of severance: ‘in equal shares’, ‘equally’, ‘share and share alike’, ‘to be divided between’, ‘between’, ‘respectively’.” The authors go on to say: - “This matter is largely one of construction of the particular conveyance, so that absence of express words of severance does not mean that the court will not find evidence of an intention to create a tenancy in common from other provisions in the conveyance.” - 19 59. As regards para. 8.19 of Wylie, on behalf of the Wife it is argued that none of Wylie Irish Land Law or Lyall, Land Law in Ireland cite any case in which the words used in para. 2 of the Terms of Settlement have been held to be indicative of a tenancy in common at the moment of creation or severance. 60. Again, by way of response to the Court’s observation that the words used in para. 8.19 of Wylie are indistinguishable from “each entitled to a 50% interest” as appear in para. 2 of the Terms of Settlement, the Wife’s solicitor’s submission was that the words employed at para. 8.19 of Wylie derive from case law which harkened back to situations that preceded the enactment of the Land and Conveyancing Act 2009, in particular ss. 30 and 31 thereof. 61. In the court below, in arguing that it was not possible in the present circumstances for the Terms of Settlement to have converted the parties’ joint tenancy in the properties at para. 2(i)-(
  15. v)to a tenancy in common, the Wife relied on Chapter 13 “Severance of Joint Tenancies” from Conway, “Co-ownership of Land, Partition actions and remedies”, 2nd Ed, Bloomsbury Professional 2012, to argue that the provisions of s. 30
(1)of the 2009 Act raised the bar for severance of a joint tenancy, predicated as that section is on “consent”. 62. Section 30
(1)of the 2009 Act provides: “
(1)From the commencement of this Part, any— (
  1. a)conveyance, or contract for conveyance, of land held in a joint tenancy, or (
  2. b)acquisition of another interest in such land, by a joint tenant without the consent referred to in subs.
(2)is void both at law and in equity unless such consent is dispensed with under s. 31
(2)(e).” 63. Section 30
(4)states: - 20 “Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity”. 64. The Judge disposed of the Wife’s argument at para. 13 of the judgment by observing that the wording of s. 30
(1)made it quite clear that it was intended to apply to a situation quite different to that in the instant case, namely “where there is an attempt by a joint tenant to unilaterally sever a joint tenancy”, the Judge noting that prior to the enactment of the 2009 Act the law permitted such a unilateral severance. In her view, s.30
(1)“has no application to the present circumstances where what is at issue is the correct construction of an agreement between the parties”, the Judge having earlier noted the provisions of s. 30
(4)of the 2009 Act. 65. In this Court, whilst acknowledging the content of s. 30
(4), and the fact that the Terms of Settlement here were the subject of a consent Order before Jordan J., the Wife nevertheless advocated that there was no “mutual agreement” in this case since the words used in para. 2 did not include the expression “as tenants in common” or otherwise spell out severance in “black and white”.
  1. In my view, this argument cannot succeed. As the Judge held, the words “each entitled” indicate a distinct and individual interest in the properties identified in para.
  2. Moreover, the reference to “a 50% interest” indicates that each party has been given a separate and identifiable share of the properties. The cumulative effect of these two sets of words indicates a distinct and separate share of the properties being given to each of the parties. To my mind, the words are entirely in keeping with the formulae identified in Wylie as capable of creating a tenancy in common.
  3. The argument is also advanced that the Wife was not told on 11 January 2023 that para. 2 of the Terms of Settlement were effecting a change from joint tenancy to a tenancy - 21 in common or that that would have an implication for her rights on survivorship. It is argued that in those circumstances, there could be no power to make an order dispensing with the Wife’s consent. In this regard the solicitor for the Wife cited Bank of Ireland v. Smyth [1996] 1 ILRM 241 where Blayney J. stated, with reference to the requirement for consent and the power to dispense with consent under ss. 3 and 4 of the Family Home Protection Act 1976, that “consent must be fully informed. The spouse giving it must know what it is that he or she is consenting to...”.
  4. I agree with the Judge that the Wife’s reliance on s. 30
(1)of the 2009 Act has no application to the present case given that what is at issue is the correct construction of an agreement reached by the parties. Indeed, her reliance on s. 30
(1)of the 2009 Act is contradicted by the provisions of s. 30
(4)of that Act where provision is made for a court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy.
  1. Insofar as the Wife contends that she was misled on 11 January 2023, if that is her contention then her remedy for that alleged state of affairs lies elsewhere. It does not, however, translate into the adoption of a different approach to the interpretation of the Terms of Settlement to that long established in the relevant case law, or otherwise preclude the Court from considering what was provided for in the Terms of Settlement.
  2. As we see, para. 2 of the Terms of Settlement provided for an order to be made pursuant to s. 15
(1)(b) of the 1996 Act directing that the parties are each entitled to a 50% interest in the relevant properties. One of the arguments advanced by the Wife in the court below (and in this Court) was to the effect that para. 2 could not be read as having severed the parties’ joint tenancies given that s. 15
(1)(b) of the 1996 Act and s. 36 of the 1995 Act preclude such an interpretation of para. 2. - 22 71. Section 15
(1)(b) of the 1996 Act provides that on granting a decree of divorce or at any time thereafter, the court may make an order under s. 36 of the 1995 Act. Section 36 provides, inter alia, as follows: “
(1)Either spouse may apply to the court in a summary manner to determine any question arising between them as to the title to or possession of any property.
(2)On application to it under subsection
(1), the court may— (
  1. a)make such order with respect to the property in dispute (including an order that it be sold or partitioned) and as to the costs consequent upon the application, and (
  2. b)direct such inquiries, and give such other directions, in relation to the application, as the court considers proper.” 72. Hence, an order pursuant to s. 15
(1)(b) is in effect an order pursuant to s. 36 of the 1995 Act.
  1. The Wife’s contention was that s. 36 does not entitle a court to make an order that would transfer property or impact upon the ownership of property. This, it was said, derived from the fact that s. 36 was the successor to the Married Women’s Status Act 1957 which did not provide for property transfer orders. She argued that s. 36 could only preserve the existing position in law and could not be used to effect an alteration in how properties were to be held.
  2. The Wife’s proposition was rejected by the Judge who was satisfied from the wording of s. 36 that “it envisages a wide power for the court and not simply a power to preserve the existing position”.
  3. In his submissions to this Court, the solicitor for the Wife argues that the Judge erred in holding that s. 15
(1)(b) of the 1996 Act and s. 36 of the 1995 Act provide for an order changing parties’ proprietary interests and not merely a power to declare the parties’ preexisting interests. It is submitted that s. 36 of the 1995 Act, and its predecessor s. 12 of the - 23 Married Women’s Status Act 1957, are declaratory only and thus cannot be used to change title. In this regard, the solicitor quotes from Conway, Co-Ownership of Land at p. 329: “The court may make an order for partition or sale of matrimonial property as incidental to determining questions between spouses in relation to such property. Section 36 of the Family Law Act 1995 replaces s.12 of the Married Women’s Status Act 1957 which in turn was based on s.17 of the Married Women’s Property Act 1882… It appears that s.36 is a procedural provision and merely permits the court to determine property disputes between spouses according to established legal principles. Furthermore, it can only declare the existing legal and equitable property rights of the spouses, and cannot order the transfer of any proprietary rights between them. Thus, the court’s discretion under s.36 is more restricted than the wording of the provision might suggest. As with s.12 of the 1957 Act, s.36 may be invoked by a spouse (for convenience, a wife) who is seeking to establish a beneficial interest in a family home through direct or indirect contributions. Under s.36, the court now has a specific power to order partition or sale of matrimonial property, and it appears the conclusion of these powers was aimed at simplifying pleadings.” 76. In further support of his contention that s. 36 of the 1995 Act is declaratory only, the solicitor for the Wife cites the decision of the Supreme Court in L v L [1992] 2 I.R. 77. 77. In refuting the Wife’s argument, the Husband contends that the import of s. 15
(1)(b) of the 1996 Act is to invoke the jurisdiction provided for by s. 36 of the 1995 Act which, he argues, specifically includes a power for the court to make an order for the sale or partition of property. Counsel for the Husband says that insofar as the Wife now contends that her challenge to the interpretation the Husband (and the High Court) has put on para. 2 - 24 is being made to protect the family home, then in that circumstance, she should have sought provision in the Terms of Settlement for an order to be made pursuant to s. 15
(1)(a) of the 1996 Act. Counsel points out no such order was sought by the Wife. Rather, she consented to an order under s. 15
(1)(b) which allows for the partition or sale of property.
  1. I find no merit in the Wife’s argument as to the limited declaratory nature of the relief which s. 36 of the 1995 Act provides in light of the power which is given to the court pursuant to s. 36 to “determine any question arising between [spouses] as to the title to or possession of any property” and “make such order with respect to the property in dispute (including an order that it be sold or partitioned)… as the court considers proper”. (Emphasis added)
  2. Here, the parties were asking the High Court to make an order pursuant to s. 15
(1)(b) on foot of terms agreed between them. For the reasons already set out above, and for further reasons referred to below, I am satisfied that the parties agreed pursuant to the Terms of Settlement that, going forward, they would hold the marital assets (including the properties and identified at para. 2) as tenants in common. That is a salient factor here, in my view. Having regard to the provisions of s. 36
(1)of the 1995 Act, I perceive no basis upon which it can be said that the High Court was precluded from making an order pursuant to s. 15
(1)(
  1. b)of the 1996 Act directing that each of the parties held the properties identified in para. 2 as tenants in common which, for the reasons already referred to above and for other reasons to which I will shortly allude, was the effect of the words “each entitled to a 50% interest” as appear in para. 2. 80. I agree with the Judge that it is difficult to see why the legislature would enact a section limited to confirming an existing position. In this regard, the Judge stated: - - 25 “More fundamentally, the argument is not supported by the wording of s.36. That makes it clear that the court can make such Order with respect to the property in dispute as the court considers proper”. 81. I also agree with her observation that the wide-ranging nature of the power vested in the court by s. 36 “must encompass a power to make an order in respect of the manner in which the parties hold identified property”. 82. In summary, the Wife’s argument regarding the limited remit of the court pursuant to s. 36 of the 1995 Act is not made out. 83. My finding that words “the parties are each entitled to a 50% interest” were capable of severing the joint tenancy in the properties identified at para. 2(i)-(
  2. v)of the Terms of Settlement, and my conclusion that the Judge was correct to rule as she did in relation to s. 36 of the 1995 Act largely dispose of the Wife’s principal arguments on the substantive appeal. However, as the case law mandates, to satisfy herself as to what was intended by the words “each entitled to a 50% interest”, the Judge was required to not only look to the disputed wording in para. 2 but also to the whole of para. 2, the balance of the document and the surrounding circumstances for the purposes of the requisite interpretation exercise. This the Judge did. 84. As we see, having concluded that the words “each entitled to a 50% interest” strongly suggested that the parties’ joint tenancy in the properties listed at para 2 (i)-(
  3. v)were intended to be held by them as tenants in common following the settlement agreement, but properly alert to the requirement that the interpretation of the disputed words necessitated a text in context approach, the Judge’s first port of call was to look to the remainder of para. 2 as to whether it could assist in the proper interpretation of the words “each entitled to a 50% interest”. - 26 85. Whilst the issue to be decided by her was concerned only with the real properties listed in para. 2(i)-(v), she noted that there was no distinction between what was to happen between those properties and what was to happen to the assets listed at para. 2 (vi), to wit “All antique furniture, paintings and ornaments …”. She noted that the wording of (
  4. vi)made it clear that the furniture paintings and ornaments were not being held jointly by the parties since, if that were in fact the case, there would be no need to either a agree a division of same or select by turn (para. 34). She further found, contrary to the Wife’s submissions, that there was no justification for the “carving out” of the goods governed by para.2 (
  5. vi)“as paragraph 2 makes no distinction between any of the categories of property identified therein”. She found that the existence of (
  6. vi)“tends to suggest that paragraph 2 intended that all the goods referred to therein were to be held as tenants in common …”. 86. As the Terms of Settlement show, para. 2 deals with four classes of personal matrimonial assets (as opposed to the parties’ corporate assets) all of which are termed “real properties”. I agree with the Husband’s submission that the term “real properties” in para. 2 was to be understood as referring to all the properties identified in that paragraph. The Judge was thus correct to find that what was provided for in para. 2(
  7. vi)assisted her interpretation of how the assets at para. 2(i)-(
  8. v)were to be held. 87. A point of some note is that on 24 December 2024, the Wife issued a motion in the proceedings seeking an order that the “liquid assets” of the parties be liquidated and distributed 50% to the Wife. The liquid assets were described by her as being the Cantor Fitzgerald portfolio and all bank accounts. 88. The Judge next considered the words used in para. 2 in the context of the other provisions of the Terms of Settlement. She found that para. 4 appeared to support her interpretation of para. 2, as para. 4 referred to a declaration that the parties were each entitled to 50% of the shareholding of various companies, which was almost the same - 27 wording as used in para. 2. She noted that the Wife “frankly concedes that there is a 50/50 split of the shareholding rather than a joint holding of same”. She opined: “Had the parties intended the properties at paragraph 2 to be held jointly, it is difficult to understand why they would not have used different language to that used at paragraph 4, where the agreed intention is to divide the shareholdings into distinct shares.” The Judge’s observation in this regard is entirely logical, in my view. 89. As we see, para. 6 of the Terms of Settlement provided that the parties were to meet within 6 weeks of signing to agree a shareholder’s agreement with respect to the companies and agree the distribution of the other assets as listed in para. 2. In the court below, the contention put forward by the Wife was that para. 6 meant that both the division and the distribution of the parties’ assets was yet to happen and that this tended towards the interpretation that the properties had not been subject to an agreement to hold them as tenants in common. The Husband’s contention, on the other hand, was that para. 6 was concerned with how the assets should be distributed but that the decision as to their division had been resolved by the Terms of Settlement. 90. Whilst acknowledging that had there been no words of severance in para. 2 the reference in para. 6 to agreeing the distribution of the assets might mean that the parties were intending to agree the division of the assets after the conclusion of the Terms of Settlement, the Judge was nevertheless satisfied that the words employed in para. 2 were “sufficiently clear such as to rebut any such interpretation”. She further observed that there was an alternative interpretation of para. 6 that accorded perfectly with the words in para. 2, namely that “The properties are required to be distributed according to the 50% divisible shareholding that each of the parties hold in same”. - 28 91. The alternative argument put forward by the Wife to support her claim that no division of the assets had yet occurred was that the terms of para. 2(
  9. vi)meant that there was a requirement to agree a division in relation to all the real properties identified in para. 2. The Judge did not find that to be the case in circumstances where (
  10. vi)was applicable only to the furniture, paintings and ornaments captured at (vi), although she considered that absolute consistency of language throughout the Terms of Settlement dictated that (
  11. vi)should more properly have provided for what would happen in the event of the failure of the parties to agree the distribution of the assets listed in (
  12. vi)rather than the division of those assets. She found, however that that lack of consistency could not undermine the fact that when read as a whole, the Terms of Settlement suggested that the parties had agreed the basis upon which they were to hold their properties post-divorce and had not postponed the consequence of that approach. In my view, the Judge had a more than adequate basis to come to this conclusion. 92. For the reasons she outlined at para. 42 of the judgment the Judge found that para. 7 did not appear to assist in the interpretation of para. 2. I agree with the Judge’s reasoning in this regard. Nor did she consider that para. 9 was of any assistance since its purpose was “simply to delineate the respective households of the separating parties”, 93. The Judge’s analyses of paras. 7 and 9 demonstrate her adherence to the requirement on her to interpret the entire agreement as part of the requisite construction exercise. 94. The Judge found that para. 12 pointed in the direction of the Terms of Settlement being interpreted as providing for finality in relation to the division of the assets of the parties given that therein it was acknowledged that the Terms of Settlement constituted proper provision and acknowledged finality subject to the reconciliation exercises provided for in the agreement. This, according to the Judge, “signifies that both parties understood that this was not simply a bare agreement for a divorce with the substantive division to be - 29 left to another day but was rather an agreement designed to allocate the parties' existing assets in a way that was certain and provided for each of them appropriately”. She drew support for that construction from the reference in para. 12 to “finality… subject to the reconciliation exercises”, noting that she already interpreted para. 6 as not meaning that the decision as to the division of the assets remained extant. In my view, the Judge was well entitled to consider the provisions of para. 12 of assistance in interpreting what was intended by the words “each entitled to a 50% interest”. 95. Consistent with the established case law, the Judge next considered the overall context of the agreement reached by the parties on 11 January 2023. She concluded that she was entitled to consider whether, viewed objectively, the parties were more likely to have agreed terms as interpreted by the Husband or as interpreted by the Wife. Whilst, as identified by the Wife, there were some disadvantages for both parties in holding properties as tenants in common (i.e. tax, probate and the necessity for distribution of the properties), the Judge was of the view that there were also significant advantages in the context of a divorce. As she put it: “Most fundamentally, holding the properties as tenants in common separates the parties' financial interests and severs the financial interdependence that is a hallmark of joint tenancy. It ensures that both parties are free to dispose of their share of the real property in whatever way they wish, thus allowing them to distribute and benefit from their share of the properties, as opposed to being obliged to hold them jointly for the remainder of their lives with the right of survivorship.” 96. In the Judge’s view, it would be “somewhat unusual” for parties who are divorcing to continue to hold property as joint tenants since such an arrangement binds them together beyond the death of either of them in relation to that property. She considered that “[i]n short, the context of the agreement suggests that it is more likely that the properties were - 30 intended to be held as tenants in common rather than continuing to be held as joint tenants”. 97. I entirely agree with the Judge’s various conclusions as set out above, consequent on her analyses of the various provisions of the Terms of Settlement and the overall context of the agreement reached by the parties. As regards the overall context, the starting point was the very lengthy marriage of the parties, their advanced years and the fact that the Husband wanted a divorce. It follows, as a matter of logic, and indeed more fundamentally, as mandated by the Constitution and the 1996 Act, that before a divorce could be granted proper provision was required to be made for both parties in any settlement that might be negotiated, which would represent a fair outcome for the parties after such a lengthy marriage. The Husband says that the object to be achieved was that the family assets be divided on a 50:50 basis, a desire, it is said, also shared by the Wife. Indeed, the Wife does not gainsay that but says, as regards the assets identified at para. 2(i)-(v), that the 50:50 division was to be achieved post 11 January 2023 via the reconciliation and distribution exercises provided for at paras. 5 and 6 of the Terms of Settlement. 98. There is little or no logic to the Wife’s argument in this regard. For the purposes of the settlement negotiations, both sides had a solicitor and both Junior Counsel and Senior Counsel, the latter, being, it was said, specialists in family law. The Terms of Settlement were negotiated and signed on the trial date and were ruled by Jordan J. (the family law judge) in the context of the divorce application before him. It is axiomatic, given the nature of the proceedings listed before him on 11 January 2023, that upon being presented with the Terms of Settlement, Jordan J. had to satisfy himself that the settlement constituted proper provision for the parties. Palpably, he did so as he granted a decree of divorce. Moreover, there was no suggestion by the parties’ respective legal advisors on 11 - 31 January 2023 that proper provision was not being made for both parties pursuant to the Terms of Settlement. 99. As the High Court Order makes clear, the Terms of Settlement were deemed to be part of the Order and enforceable as such. 100. It is, in my view, wholly illogical given the context (i.e. the divorce proceedings) in which the Terms of Settlement were agreed that there would have been an agreement, as the Wife seems to suggest, only about how some of the joint family assets would be held going forward but not as to how other assets would be held. I am also fortified in this conclusion by the fact that, as the Judge indeed observed, the wording used at para. 4 of the Terms of Settlement to achieve a 50:50 split of the shareholding of the parties’ companies (in respect of which the Wife does not demur) is almost the same as that used in para. 2. 101. It is also contrary to logic, in the context of a divorce, that the parties would continue to remain as co-owners of those of the properties listed at para. 2 that were rented out. In the context of the factual matrix as presented on 11 January 2023, where the parties were to be divorced, the Wife offered no explanation as to why she and the Husband should, post the divorce, remain joint tenants of those rented out properties in circumstances where it was not disputed that the parties’ liquid assets and their corporate shareholding were to be held by them as tenants in common post the Terms of Settlement/divorce. 102. Whilst the Wife’s position in the court below (and in this Court) was that the properties identified at para. 2(i)-(
  13. v)continued post the Terms of Settlement to be held by the parties as joint tenants, it is clear from her notice of appeal that her focus was on the family home (the property identified in para. 2(
  14. i)of the Terms of Settlement). There is, however, no distinction drawn in the Terms of Settlement between the family home and the other properties identified in para. 2. Indeed, the Terms of Settlement provide, in relation to all the marital assets be they the parties’ personal assets or their corporate assets, - 32 that the parties are each entitled to a 50% interest in such assets, albeit I acknowledge that slightly different wording is used to achieve this objective in para. 4 (which deals with the corporate assets) to that used in para. 2. Nothing turns, however, on this difference. 103. As the Husband’s written submissions point out, it was open to the parties to carve out some special treatment for the family home, but that was not done. As with the balance of the properties identified in para. 2, what was agreed by the parties in respect of the family home was that the High Court would make an order under s. 15
(1)(b) of the 1996 Act. There was no order sought under s. 15
(1)(a) providing for the conferral on the Wife (or indeed for that matter the Husband) of the right to occupy the family home to the exclusion of the other spouse. Indeed, pursuant to para. 9 of the terms of Settlement, the parties agreed to “[m]utual exclusion orders pursuant to s. 15 of the 1996 Act”. Moreover, Jordan J. in granting a decree of divorce on 11 January 2023 did not consider that an order pursuant to s.15
(1)(
  1. a)of the 1996 Act was required. 104. Here, the overall context was the “clean break”, and the “finality” sought to be achieved by the parties in the context of a divorce. Logic (which any proper interpretation of the Terms of Settlement must employ) would dictate that there should be “finality”, insofar as it could be achieved on 11 January 2023, in relation to all the parties’ assets. In the absence of any carving out of the family home, logic would therefore dictate that the properties identified at para.2 (i)–(
  2. v)of the Terms of Settlement would, post-divorce, be held by the parties as tenants in common. Hence, the only logical interpretation of the words “the parties are each entitled to a 50% interest” is that the words severed the parties’ erstwhile joint tenancy ownership of those properties. There is no logic to the Wife’s position that the words used in para. 2 were only declaratory of the parties’ (erstwhile) joint tenancy in respect of the properties listed at para. 2(i)-(v). - 33 105. In summary, therefore, the words deployed in para. 2, when looked at (
  3. i)in the context of para. 8.19 of Wylie as to what has been held as indicating an intention to take distinct shares in property such as had the effect of creating a tenancy in common, (
  4. ii)the Terms of Settlement as a whole, (iii) the surrounding circumstances, and (
  5. iv)the background law, all point to the creation of a tenancy in common in respect of all the properties identified in para. 2. As Wylie observes at para. 8.12, “the basic principle of a tenancy in common…is that each tenant in common holds an undivided share in the property.” Palpably, that was the objective sought to be achieved (and was achieved) in the Terms of Settlement. Since that was the case, and in the context of the parties’ divorce, it is readily understandable why para. 2 made provision for an order to be made pursuant to s. 15
(1)(b) of the 1995 Act.
  1. Another of the other arguments advanced by the Wife in the High Court (and in this Court) was that she would not have agreed to an order in the terms the Husband was advocating because they were not advantageous to her.
  2. In contesting that contention, the Husband referred to an affidavit sworn by the Wife on 2 November 2023 in response to a motion issued by the Husband on 15 September 2023 wherein he sought the sale of certain of the parties’ assets. At para. 8 the Wife avers, inter alia, that “The Terms of Settlement confirm our respective 50% interest in the specific assets listed at paragraph 2 and the agreement then sets out a pathway to reconciling and distributing those assets...”. The argument advanced by the Husband was that the contents of para. 8 showed that the Wife understood the impact of the Terms of Settlement.
  3. In this Court, counsel for the Husband pointed to correspondence sent by the Wife’s solicitor on 1 November 2023 to the Husband’s solicitors in the context of the parties’ respective discovery applications, wherein reference is made to the court having “previously ordered that all of the assets of [the parties] are beneficially owned 50% each - 34 and so steps were taken to regularise this…”. This correspondence, counsel submitted, contradicted the position now being taken by the Wife. Counsel also referred to the affidavit sworn by the Wife on 2 November 2023 opposing the Husband’s motion for the sale of certain assets. He contended that in para. 8, the Wife herself was advocating that the parties had each agreed in the Terms of Settlement that each was to get a 50:50 division of the family assets subject only to the reconciliation and distribution exercises which is provided for in para. 5 of the Terms of Settlement. It was submitted that the Wife’s clear understanding of “our respective 50% interest” echoes what is provided for in para. 2 of the Terms of Settlement and which fall within the lists of words which both Halsbury and Wylie accept constitute words of severance of a joint tenancy.
  4. When this argument was canvassed in the High Court, in line with the guidance contained in the relevant case law, the Judge declined to take account of the Wife’s subjective understanding of the parties’ agreement for the when construing the Terms of Settlement. I do likewise.
  5. A further argument deployed by the Wife in the court below to counter the interpretation the Husband put on the words “each entitled to a 50% interest” was to point to how the Husband had described his assets in his affidavit of means. In the first of such affidavits sworn 2 July 2021, he identified that he had a “50% beneficial interest” in four of the five properties in dispute here including the family home. In the second such affidavit sworn 2 July 2022, he referred to a “legal and beneficial interest” in the family home and a “beneficial interest” in the other properties.
  6. Whilst the Judge considered that there was some similarity in those descriptions to the description of ownership in para. 2 of the Terms of Settlement, she did not accept that the descriptions in the affidavits of means were sufficiently significant to result in the interpretation of para. 2 contended for by the Wife. This was because, first, only one of the - 35 affidavits of means had used the type of language employed in para.
  7. Secondly, the wording in the affidavits was in fact significantly different to that used in para. 2 given that the latter contained the words “each entitled”. Moreover, she noted that a correction of the language used in the first affidavit of means had occurred in the second affidavit which, to the Judge, suggested that a correction of the description was intended. Ultimately, the Judge was not convinced that the language used by the Husband in his first affidavit of means was “sufficiently compelling” to persuade her to ignore “the clear words of severance at para. 2, or the context of the agreement”.
  8. The comprehensive analysis undertaken by the Judge allowed her to (correctly) conclude that the “clear words of severance at paragraph 2” and the context of the agreement meant that the parties intended to hold the properties identified in para. 2 as tenants in common after their divorce. In my view, that comprehensive analysis also permitted her to disregard the somewhat similar language the Husband’s first affidavit of means and find that any such similarity as arose could not displace her finding as to the true meaning of the words used in para.
  9. More fundamentally, the Judge was correct to characterise the Wife’s argument based on the first affidavit of means as “at best, an assertion by [the Wife] that she did not fully understand the terms of the settlement because of the wording in [the Husband’s] affidavit of means” and to find that because that went to her subjective understanding, it could not be used to interpret the Terms of Settlement.
  10. For completeness, I should add that, in this Court, the solicitor for the Wife laid emphasis on the nature of the pleading in the Husband’s family law civil bill. He pointed to para. 5 of the indorsement of claim wherein reference is made to the family home being registered in the parties’ joint names. He also referenced para. 7 where it is pleaded that the properties identified at para. 6 were “originally registered in the Parties’ joint names”. - 36 These pleadings, the solicitor contended, were suggestive of the parties having held the family home and the other properties as joint tenants. As I understand it, the case being made on behalf of the Wife was that the aforesaid pleadings constituted the context in which the Terms of Settlement were agreed and, so, should be weighed accordingly.
  11. I do not take issue with the contention that the pleadings in the case formed part of the overall context in which the Terms of Settlement were agreed. However, even taking the Wife’s argument at its height, the pleadings are only a part of the overall context in this case. They cannot override the fact that the actual words used in para. 2 of the Terms of Settlement when looked at in the context of the balance of that document, the parties’ respective ages, the fact that they were divorcing (with the element of finality that that suggests) and, indeed, the finality aspiration provided for in para. 12 of the Terms of Settlement, all point to the parties’ intention to hold the properties described in para. 2 as tenants in common.
  12. I would also add, in any event, that para. 12 of the family law civil bill is not helpful to the argument that the Wife makes, pleading, as it does, that the Husband “claims a legal and/or beneficial interest in the family home and other properties referred to herein and/or all property accounts, monies investments, shares, bonds…” all of which, it could be said, is language more consistent with a claim to a tenancy in common rather than a joint tenancy. However, for he reasons set out above, there is no need to further rehearse the pleadings in the family law civil bill.
  13. I would dismiss the substantive appeal on all grounds. The High Court costs Order
  14. The Order made by the High Court on 30 July 2024 (as perfected on 26 March 2025) directed the Wife to pay to the Husband the costs of the within motion. - 37
  15. At ground 15 of her notice of appeal, the Wife appeals the costs order and asserts that in family law matters the principle that costs follow the event does not apply. In his submissions to the Court, the solicitor for the Wife reiterated the contention that the starting point in family law proceedings is that each party should bear their own costs. He cited the decision of this Court in D.K. v P.I.K. [2023] IECA 7 which, it is said, confirmed the conventional rule in family law proceedings that both parties are to bear their own costs, Whelan J. (writing for the Court) stating: “Conventionally, as was acknowledged by Clarke J. in D v D [2015] IESC 66, [2016] 2 IR 438 - Denham C.J. concurring - the starting point in family law proceedings is that both parties are to bear their own costs”.
  16. As put by Clarke J. (as he then was) in D v. D: “It seems to me that a different approach needs to be taken to the costs of matrimonial proceedings than that which is appropriate in many other forms of civil proceedings. This is so not least in matrimonial cases which are substantially concerned with the division of assets and other financial resources… It seems to me that in any case where the Court is minded (as the Court was in this case) to divide the available financial resources on a broadly equal basis between the parties (even if not necessarily on a strict 50/50 basis), the starting point or default position should be that the Court should make no order as to costs and thus require both parties to bear their own costs. …”
  17. The submission advanced on behalf of the Wife was that there is nothing in the facts and circumstances here which justify the different approach taken by the Judge. The solicitor for the Wife also disputed the Husband’s proposition that the motion the subject of this appeal was not in the nature of a family law matter because it relates to post-divorce steps. The case was also made that the Terms of Settlement effected only the dissolution of marriage, leaving subsequent family law/divorce matters such as the division and - 38 distribution of certain of the parties’ assets to the agreement of the parties once the divorce is granted or, presumably, the event of disagreement about such division, to the adjudication of the court. Quite clearly, this latter argument cannot succeed given my findings in relation to the substantive appeal.
  18. It is also said there has been no conduct or behaviour on the part of the Wife such that the normal starting position regarding costs in family law proceedings should be displaced. Whilst it is acknowledged by the Wife that in relation to other applications brought by both parties to the High Court post the signing of the Terms of Settlement and the Order of 11 January 2023 the Judge did not take those applications into account when determining the costs of the within motion, the Wife asserts that the Judge erred in distinguishing the within motion from the myriad other motions that were before the family law court and consequently making a costs award against the Wife. The Wife’s position is that the within motion should be viewed as part of the family law proceedings and that she should not be penalised for unsuccessfully opposing the motion. It is in those circumstances that she asserts that the Husband should not be awarded the costs of the motion or, alternatively, that the matter of costs should be reserved until the determination of all related motions in the within proceedings.
  19. The Husband’s position is that the High Court did not err in awarding him costs. Whilst it is accepted that a costs order is a form of discretionary order and that this Court has full appellate jurisdiction in determining to overturn such an order, that discretion, the Husband says, must be exercised judicially and in accordance with the principles established in the case law. The Husband’s submission is that the Judge in making the costs order did not depart from the established principles-demonstrably or otherwise.
  20. Section 35 of the Judicial Separation and Family Law Reform Act 1989 states: “The costs of any proceedings under this Act shall be at the discretion of the court”. - 39 Pursuant to s. 38
(5)of the 1996 Act, s. 35 of the Act of 1989 applies to proceedings under the 1996 Act. 124. Section 169
(1)of the Legal Services Regulation Act 2015 provides: “169
(1)A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including— (
  1. a)conduct before and during the proceedings, (
  2. b)whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings, (
  3. c)the manner in which the parties conducted all or any part of their cases…” 125. The locus classicus of costs in family law is the decision of McKechnie J. in B.D. v. J.D. (Unreported, High Court 4th May 2005) where he states as follows: “In my view I do not believe that any category of family law case should as a matter of principle be exempt from these costs provisions. It cannot be right that litigation can be open ended without even the risk of any type of costs order. Whilst I appreciate that the available assets are most frequently accumulated within marriage and that decrees of judicial separation or divorce are available without establishing fault, nevertheless, I cannot accept that a court should be powerless to award costs even where the case, or the parties to it or their conduct within the proceedings, merit the making of such an order. If that were so, I firmly believe that both justice and the public would be ill served”. 126. More recently in B.C. v. P.K. [2020] IEHC 432, Jordan J. addressed the argument that the usual rule in family law proceedings is that an order for costs ought not to be made. He stated: - - 40 “I have heard what the parties have said in relation to costs. The respondent to the motion is seeking her costs. The applicant says that an order for costs ought not to be made and that the usual rule applied in family law proceedings ought to be applied, that is, that there ought to be no order as to costs. Firstly, I have already said that I believe that this application is singularly unwise. Secondly, the notion that there should be no order as to costs in family law proceedings as a standing protocol is a myth. It is a view which McKechnie J. has dealt with in some detail in B.D. v. J.D. (unreported, High Court, 4th May 2005) and which is quoted in the recent judgment which this court gave in B.R. v. P.T. [2020] IEHC 205. It is the position when a court is dealing with substantive proceedings involving a resolution of a dispute concerning matrimonial assets owned by either one or both of the parties following a relationship breakdown that it will ordinarily make no order as to costs. This is so in circumstances where the Court, will in the ordinary course of events, have regard to the cost of the litigation in deciding the issues in the case including the division of the matrimonial assets. There is frequently evidence given in relation to those costs in the substantive proceedings. But where applications, such as motions of an interlocutory nature or applications such as this, after the resolution of matters, are made or brought, then the court is entitled to exercise its discretion in relation to an award of costs in the ordinary way. It seems to me, that in an application such as this, the court needs to be persuaded to depart from the position that costs ordinarily follow the event if it is to decide to make no order as to costs.” 127. Jordan J. also addressed the question of costs in family law cases in B.R. v. P.T. [2020] IEHC 205 where he noted: - - 41 “It is true that there is still a tendency to consider family law proceedings to be separate and apart from other types of litigation insofar as costs are concerned. Of course, that must be the situation in the initial stages of family law proceedings where the parties are endeavouring, with the assistance of the court, to untangle themselves from a failed relationship. But there comes a point in time where the situation changes; it changes when the litigation becomes unreasonably protracted and bitter and in particular when that has arisen by reason of the conduct of one of the parties in particular”. 128. Notwithstanding the submissions advanced on behalf of the Wife, I find no basis upon which to interfere with the costs order made by the Judge. In my view, she was entitled to exercise her discretion in the manner she did. She was entitled to take account of the fact that the costs incurred by the Husband were as a result of the Wife’s unsuccessful challenge to a settlement which had been negotiated between them (and I might add where each were fully legally represented) and where all matters in the divorce proceedings were resolved between them subject only to the reconciliation and distribution exercises provided for at paras. 5 and 6 of the Terms of Settlement. As of the time of the making of the costs order, the parties were not in the position to which Whelan J. alluded in D.K. v. P.I.K. but rather in the territory to which Jordan J. alludes in B.C. v. P.K.: “[W]here applications, such as motions of an interlocutory nature or applications such as this, after the resolution of matters, are made or brought, then the court is entitled to exercise its discretion in relation to an award of costs in the ordinary way. It seems to me, that in an application such as this, the court needs to be persuaded to depart from the position that costs ordinarily follow the event if it is to decide to make no order as to costs.” - 42 129. In this case, nothing that has been said on behalf of the Wife displaces the entitlement of the Judge to exercise her discretion in the ordinary way, namely that costs should follow the event. 130. In all the circumstances, I would dismiss the Wife’s appeal against the High Court costs order. Summary 131. I would dismiss the appeal in its entirety. Costs 132. As the Wife has been unsuccessful in her appeal, it would seem to follow that the Husband should be awarded his costs. If, however, either party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within 28 days of the receipt of the electronic delivery of this judgment, and a short costs hearing will be scheduled, if necessary. If no indication is received within the 28-day period, the order of the Court, including the proposed costs order, will be drawn and perfected. 133. As this judgment is being delivered electronically, Binchy J. and Pilkington J. have indicated their agreement therewith and the orders I have proposed.

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