2026 IECA 79

(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 [Property A]. ii. [Property B]. iii. [Property C]. iv. [Property D]. v. [Property E]. vi. 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 declared that the parties were each entitled to 50% of the shareholding in [Company A] and its subsidiaries, [Subsidiary Company B] and [Subsidiary Company C] which had several property holdings. Save where otherwise indicated, I will refer to the parties’ corporate interests as “the Company”.
3. Paragraphs 5 and 6 were 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”. At the heart of these appeals is the alleged failure of the Wife to comply with these provisions and the action taken by the Husband as a consequence of that alleged failure.
6. Paragraph 7 provided for the making of mutual orders pursuant to s.18

(10)of the 1996 Act. Pursuant to para. 9, each party agreed to mutual exclusion orders as provided for in s.15. 12. Finally, paragraph 12 provided: “12. The parties acknowledge that these terms constitute proper provision and acknowledge the finality thereof subject to the reconciliation exercises provided for herein”. 13. As already referred to, the 11 January 2023 order also incorporated additional terms which were found in a Memorandum of Additional Terms of Settlement. This provided, in summary: • The Wife was to have online access to Company bank accounts. • The Husband and the Wife were to be signatories to all Company bank accounts with full transparency in relation to transactions as regards all signatories. • The salary of a named adult child of the parties [ ] was to be restored at the level which it had been received by her in February 2020. • All of the above was to be without prejudice to the position of the parties in relation to the shareholder’s agreement to be negotiated as envisaged by the Terms of Settlement. -514. Rather unusually, three of the parties' adult children were represented in the negotiations which led to the Terms of Settlement. Of the three children involved in the negotiations, two were said to side with the Husband and one with the Wife. As it transpired, one of the three, [ ], (who sided with the Wife) had a motion before the High Court returnable for 11 January 2023 wherein she was seeking to have an order of the High Court made on 21 December 2022 set aside. That order had set aside a transfer of 40 ordinary shares in the Company which the Wife had made to [ ]. In matter of fact, on 21 December 2022 the High Court had not only set aside the transfer the Wife had made to [ ] but also a transfer of 50 ordinary shares in the Company made by the Husband to two other adult children, [ ] and [ ]. 15. It is common case that following the granting of the divorce and the other orders made on foot of the Terms of Settlement, a dispute arose between the parties as to whether para. 2 of the Terms of Settlement created a joint tenancy or tenancy in common in the family properties and other assets comprised in para. 2. In essence, their dispute in this regard involved Property A (the family home) and the Properties B, C, D and E. 16. This dispute culminated in a motion issued by the Husband on 1 May 2024 wherein he sought a declaration that each of the parties held a 50% interest in the properties in issue. In a judgment delivered on 19 July 2024 ([2024] IEHC 489), Hyland J. concluded that the correct interpretation of para. 2 was that ownership of the properties listed at (

1. i)– (
2. v)(being Property A, Property B, Property C, Property D and Property E) was intended to be held by the parties as tenants in common. 17. The Wife appealed that decision to this Court and in a judgment delivered on 10 December 2025 ([2025] IECA 259), Faherty J. (writing for the Court) agreed with Hyland -6J. that the correct interpretation of para. 2 was that the properties were held by the parties as tenants in common and so dismissed the Wife's appeal. 18. Regrettably, the dispute about the interpretation of para. 2 of the Terms of Settlement was not the only source of conflict between the parties in the aftermath of their divorce. 19. On 21 February 2023, the Husband issued a motion seeking an order re-entering the proceedings on the basis that the 4 and 6-week deadlines in the Terms of Settlement had passed without engagement by the Wife. He also sought discovery. 20. On 15 September 2023, he issued a further motion seeking to set aside a transfer that had been made by the Wife of one of the properties to [ ]. Ultimately, this transfer was set aside by the High Court in November 2023 on consent of the parties. 21. The motion which gave rise to the Orders under appeal was also issued by the Husband on 15 September 2023. Therein, he sought, inter-alia, “an order for the sale of the personal assets listed at para. 2 of the Terms of Settlement dated 11 January 2023… with each party being entitled to a 50% interest in the net proceeds of sale”. This was followed by a further motion issued by the Husband wherein he sought further and better discovery in order to commence the reconciliation exercises referred to in the Terms of Settlement. 22. The Wife, likewise, issued her own motion seeking further and better discovery. On 26 July 2023, orders were made on consent for both parties to file affidavits of discovery on or before 30 September 2023. 23. Between February 2023 and February 2024, the parties’ family law proceedings were before the High Court on some fourteen occasions. Further motions to those listed above were subsequently issued by each side. -724. To return now to the Husband’s 15 September 2023 motion seeking an order for sale, whilst the motion encapsulated the entirety of the personal assets listed in para. 2 of the Terms of Settlement, ultimately, the Husband only proceeded in relation to sub paras. (
3. i)– (
4. v)(i.e. the family home and the other properties). An overview of the affidavit evidence and the arguments in the court below 25. In his grounding affidavit sworn 11 September 2023, the Husband averred, inter alia, as follows, at para. 5: “The Respondent does not appear to take any issue with the sale and division of the sale proceeds relating to the residential and investment properties and other personal assets listed at para. 2 of the Terms. I further say that it was the clear intention of the parties on 11 January 2023 that these properties would be sold. I say and believe and am advised that it is necessary to sell these properties and other personal assets to the benefit of both parties, to reduce the points of engagement between the parties and hence reduce any potential source of conflict, by disentangling the parties’ financial affairs, and give effect to the Terms. I believe the sale of these assets will reduce the sources of conflict between the parties and assist in seeking to resolve difficulties about ascertaining the value of the company assets and reconciling same. I believe that there may be sufficient value in the personal assets such as might go some ways towards resolving and reconciling the company assets.” 26. At para. 7, he repeated his averment that it was necessary to sell the properties and other personal assets to give effect to the Terms of Settlement and his belief that a sale would reduce the source of conflict between the parties and “assist in resolving the difficulties about ascertaining the value of the company assets and reconciling same”. He -8also believed that there “may be sufficient value in the personal assets such as might go some ways to resolving and reconciling the company assets and the parties’ housing needs”. 27. In a lengthy replying affidavit sworn on 2 November 2023, the Wife took issue with the Husband's assertions and objected vehemently to the proposed sale. She denied that a sale of the properties was the intent of the parties on 11 January 2023, averring that same was not consistent with the wording of the Terms of Settlement, particularly paras. 2 and 5, pointing out that para. 5 provided for a “reconciliation” of all real assets to take place. She also emphasised para. 6 which provided that the parties were to agree the distribution of the said assets. 28. She averred that the Husband had not referred to the reconciliation and distribution exercises provided for in the Terms of Settlement. Whilst, as she acknowledged, the parties had not completed that work within the “very aggressive timeline” set out in the Terms of Settlement, each, she said, “have engaged forensic accountants to assist with this process”. 29. The Wife also opposed the proposed sale on the basis that the extent of the Husband's assets was not yet known to her and in that regard, she referred to the discovery made by herself and the Husband on, respectively, 2 October 2023 and 31 October 2023 pursuant to the order made by the Judge on 26 July 2023. Nevertheless, at para. 12, she set out her view that consequent on the discovery made, the process of reconciliation could now commence “with the aim… of reaching an agreement on distribution of both the Personal and Corporate Assets”. 30. She went on, at para. 13, to express her concern that the sale of the properties would unnecessarily trigger CGT liabilities for both parties and, in any event, would not be -9prudent from a personal financial perspective for either herself or the Husband. She pointed out that the Husband had not adverted to any need to liquidate the property assets in order to meet his personal financial needs. At para. 29, she averred that the Husband had no housing needs residing as he was in a substantial premises which had been his parents’ family home. She stated that, in any event, the Husband had ample liquid funds to buy or rent alternative accommodation. 31. She deposed that it was her earnest wish to continue to live in the family home where she had resided for almost 45 years. She contended that there was no objective reason to order the sale of Properties B, C and D. Nor, she said, had the Husband made any proposal as to whether the said properties would be sold with vacant possession or otherwise. She further averred that it was an inappropriate time sell Property E. 32. Overall, the Wife's position was that there was no objective need for a sale of the parties’ personal assets in order to give effect to the reconciliation and division of the personal assets and the corporate assets simultaneously. 33. Addressing the parties’ corporate assets, she stated, at para. 28: “In short, no orders should be made in respect of the Personal Assets in isolation from the Corporate Assets. The continued availability of the Personal Assets without a forced liquidation (carrying a consequential unnecessary tax cost) allow better for equalisation of value thereby facilitating the agreed division of the Corporate Assets. I have retained corporate legal advisers and I have prepared two alternative proposals for discussion purposes in relation to the division of the Corporate Assets…” 34. She concluded, at para. 30, in the following terms: - 10 “The Terms of Settlement contemplate and require an agreed division of all our Assets, both the Personal Assets and the Corporate Assets. I have proactively engaged with the Applicant and his advisers to advance proposals for a mutually beneficial agreed division of the assets, they have failed to engage with me in response. I remain committed to completing the reconciliation and distribution of assets as envisaged by the Terms of Settlement. In that regard, and in order to reach the finality that I and-I believe- the Applicant desire, I believe that once the reconciliation process is completed, the parties should engage in mediation to address the distribution of the Personal Assets and the Corporate Assets. I note that the Applicant and I have both confirmed that we would be open to engaging in mediation”. 35. In an unsworn “affidavit” dated 20 January 2025 (which the Judge agreed to consider on 3 June 2025), the Wife again referred to not just the CGT implications of an order for sale but to her contention that the Husband was forcing sale of the properties in circumstances where there was as of yet no agreement on the distribution of the corporate assets which were the more valuable assets of the marriage. She referred to a “without prejudice” letter sent by the Husband which proposed that he would take 90% of the Company (leaving her with 10%) and that in lieu, she would be given a balancing payment from the Company’s reserves (presumably to achieve the equalisation provided for in the Terms of Settlement). The Wife's position was that such an arrangement would be subject to a CGT liability on her part. On that basis, she advocated that no personal properties should be directed for sale until the distribution of the Company's assets was agreed. In the view of the Wife, the Husband wanted “the bigger share of the company assets and… 50% of the personal assets…” - 11 36. Insofar as the Husband had premised the sale of the personal properties on the need for both parties to have funds for the litigation, the Wife's position was that such monies should be coming from Company funds. 37. At para. 9, she stated that the Husband had control of significant share portfolios which were started some fifty years prior with an inheritance from her late father and thereafter funded by monies from the parties' joint enterprises. It was her position that there would be no tax liability to the Husband in utilising monies he already had from his investments. 38. By the time of the hearing on 3 June 2025, the Wife had a further affidavit before the court, sworn on 3 June 2025, which she was given liberty to file that day once the Husband’s counsel had had opportunity to consider it. 39. At para. 10, she averred that post the settlement agreement, she had become aware of significant undisclosed transactions involving the Company in respect of which she had written to the relevant conveyancing solicitor seeking information about those transactions but had received no reply. At para. 11, she averred as follows: “Despite being a 50% shareholder and co-director of [the Company] and its subsidiaries), I have been systematically excluded from the companies, which are now effectively run by [ ] [one of the parties' adult children]) from whom I am estranged. [ ] has taken over the running of the companies, purporting to be acting as agent for [the Husband] and in a manner inconsistent with my rights as 50% shareholder and the only other director. The [Husband], or more correctly, his nominees (certain of our children), have taken a motion in the commercial court with ancillary orders which seek to take control of the Companies by appointment of the - 12 majority of the Board of Directors. They are seeking formally in this application apparently to oust me and take complete control of the companies from me…” 40. She referenced a letter of 18 January 2023, days after the terms of settlement were agreed, from the Husband's solicitors advising that the Husband had divested his authority in the Company to [ ] and that [ ] had assumed complete control of the Company “and its purse strings”, to her (the Wife’
5. s)detriment. She averred that [ ] had continued to operate the Company and its subsidiaries without her input or consent. 41. At para. 13, the Wife took issue with the chronology relied upon by the Husband which, she said, purported to paint her as “obstructive and delaying”. She maintained that it omitted many transactions conducted by the Husband, including his failure, in his original Affidavit of Means of 2 July 2021, to disclose his shareholdings which had resulted in the family law proceedings being transferred from the Circuit Court to the High Court. 42. Notably, the chronology prepared by the Husband had been directed by the Judge. On 28 May and 3 June 2025, having checked his notes, and that the chronology was accurate, the Judge declared himself satisfied that the chronology was a “fair representation” of the actual timeline and events at various stages. 43. In the Wife’s view, the Husband had caused delay in the proceedings by requesting many adjournments, including as recently as January 2025. Moreover, his chronology had failed to disclose that he had only complied with his discovery obligations in mid-February 2025, despite further order for discovery having been made by the High Court (Phelan J.) in July 2024. She maintained that the Husband had made no proposals in relation to the division and distribution of the family assets including the corporate assets, whereas she had put forward detailed proposals in July 2023 to which there had been no response. The - 13 Husband’s response, she said, was to serve his motion for sale and commence commercial proceedings in the High Court at considerable cost. 44. I note that whilst the Wife complains about the Husband’s tardiness in complying with the July 2024 discovery order, as of 3 June 2024, she herself had yet to comply with that order. 45. At para. 15, the Wife set out the reasons for her objection to the sale the family home and the other properties, a repeat of her previous averments. 46. At para. 16, she averred that even if an order for the sale of the assets was open to the court (which she did not concede), same would require a full hearing, including findings of fact as to (
6. a)whether there was material nondisclosure by either party, (
7. b)whether such non-compliance amounted to a breach of the Terms of Settlement (
8. c)whether there are undisclosed or hidden assets and (
9. d)whether there has been material breach of the Terms of Settlement on the part of the Husband by reason of her exclusion from the running of the Company. 47. She averred, at para. 20, to having been made aware, at a call over on 28 April 2025, of the Husband having “reportedly offered €50,000 from Company funds to both parties in order to pay for legal representation”. She stated that subsequently, she contacted the Husband’s solicitors who, she said, “refused to agree the full payment” leading ultimately to her receiving only €19,000. 48. At para. 22, she described the application to sell the family home as “grossly disproportionate” especially given her age, her position as a lay litigant, her position within the Company of which she was a 50% shareholder and whereby she “cannot get - 14 access to any economic benefit” from her life’s work with [D’s] permission, and the “clear evidence” that she was not in breach of the agreement. 49. At para. 24, she averred that the Husband was obliged to produce evidence of proposals he has made in relation to the distribution of the assets of the marriage, as this was clearly in the terms of the contract entered into by the parties on 11 January 2023. She maintained that the Husband or his nominees had “one foot in the family law court and one foot in the Commercial Court” which, in essence, amounted to an attempt to oust her from the Company which was the biggest asset of the marriage. 50. Prior to the Husband's motion coming on for hearing on 3 June 2025, both parties had filed position papers in accordance with directions given by the Judge. The Husband's position paper, filed on 2 September 2024, advocated that a sale of the properties would assist “in seeking to resolve the difficulties about ascertaining the value of the company assets and reconciling same”, a repeat of what he had said in his grounding affidavit. The position paper also pointed out that as of September 2023, the parties' bank accounts, held by them solely or jointly, amounted to €224,000, and that other assets and investments, including a Cantor Fitzgerald share portfolio and the parties' Directors’ Loan accounts, had an approximate value of €1.4 million. 51. The Wife’s position paper argued that the Husband's motion was outside of the scope of the Terms of Settlement. It was pointed out that she intended to appeal the order made by Hyland J. on 30 July 2024. She advocated that the motion should be adjourned pending the outcome of that appeal. The 3 June 2025 hearing - 15 52. It is common case that when the Husband’s motion came on for hearing on 3 June 2025, the Wife was unrepresented. It should be said, however, that the motion (together with a number of other motions in the case) had previously been opened to the Judge on 6 November 2024, a time when the Wife was represented by solicitor and counsel. On that occasion, legal arguments were advanced by both sides regarding the court’s jurisdiction to make the order sought by the Husband. As the High Court transcript for 6 November 2024 shows, the Judge was satisfied that he had such jurisdiction pursuant to s. 15 of the 1996 Act and s. 36 of the Family Law Act 1995 (“the 1995 Act”). He was also satisfied that he had an inherent jurisdiction to make such orders. He decided however that he would hear further submissions on the motion, which he duly did on 3 June 2025. 53. I should also point out that before the 3 June 2025 hearing, the matter was before the Judge on 28 May 2025. On that occasion, the Wife’s application for was a four-week adjournment of the Husband’s motion. The application was made by her newly instructed legal team (which was to include senior and junior counsel) who, as was explained to the Judge, required time to read into the case. It was also explained that the Wife was intending to retain BDO accountants, a firm who had acted for her previously. 54. The adjournment application was opposed by the Husband on the basis, inter alia, that the Wife’s proposed legal team would be her eighth firm of solicitors and that BDO had been discharged by the Wife prior to the divorce proceedings coming on for hearing and that, moreover, she had since discharged the accountants firm (Devaney and Durkin) who had succeeded BDO. 55. For reasons he set out on 28 May, the adjournment application was refused by the Judge. - 16 56. When the matter came on before the Judge on 3 June 2025, the first argument advanced by the Husband related to what his counsel described as the “foot-dragging” by the Wife in appointing accountants which she had been mandated to do pursuant to the Terms of Settlement. Reference was made to the undertaking she gave to the High Court on 6 November 2024 that she would retain an accountant and that the identity of the accountant would be furnished to the Husband's solicitor. As of 3 June 2025, this had not occurred. This, counsel for the Husband submitted, had “stymied” the orderly winding up of the assets of the marriage. 57. As already stated, at the time of the divorce proceedings the Wife had retained BDO Accountants. However, prior to the divorce hearing, she had retained a different firm of accountants (Devaney & Durkin) but had since discharged that firm sometime in early 2023. In any event, the High Court was apprised that the Husband’s accountants had heard nothing from Devaney & Durkin since March 2023. The Judge was also reminded that the Wife had told the court in the week prior to the 3 June 2025 hearing that BDO were being re-engaged by her together with a new legal team. However, that legal team appear to have been discharged as the Wife was unrepresented on 3 June 2025. 58. The second basis on which the order for sale was being sought was because the Wife had not made the discovery which the High Court (Phelan J.) had directed in July 2024 despite the time for the making of such discovery having been extended by the Judge in February 2025. The consequences of that, counsel said, were that the financial reconciliation to which the parties had agreed in the Terms of Settlement could not be effected without the necessary full disclosure and discovery by each party. 59. The third reason advanced on behalf of the Husband was that despite having agreed on 6 November 2024 (when she was legally represented) to engage in the mediation that - 17 the Judge had suggested in the summer of 2023 and her legal team having advised that she would engage with the agreed mediator (Mr. Delaney), the Wife had not done so. 60. For the foregoing reasons, the Husband was “very reluctantly” seeking to advance matters by way of a sale of the parties' real assets. It was submitted that the order sought was part of “the natural winding up the financial entanglement of any marriage” and that the dissolution of the marriage involved obviously the “disentangling of the parties' financial engagement with each other”. It was also said that the order was being sought because the Wife had consistently pleaded penury as the reason for her failure to retain an accountant and indeed a solicitor. According to the Husband, the properties were “ready assets” which could be sold to provide income to both parties for the purposes of funding their ongoing litigation. 61. Whilst, it was said, the Husband had no desire to see the Wife removed from the family home, nevertheless her reluctance to engage in progressing the Terms of Settlement was a matter of considerable concern and frustration to the Husband. For that reason, counsel for the Husband was instructed to indicate that if an order for sale of the family home was made the Husband would have no difficulty in the court imposing a stay on the order for a period, on condition that the Wife would appoint an accountant and that the reconciliation exercise would take place. 62. Contrary to the Wife’s assertion, the Husband denied the suggestion that the parties’ corporate assets were funding only the Husband’s litigation. His counsel pointed out that on many occasions the Company had distributed money to both parties equally. Counsel submitted that the Wife had made no proposal either on affidavit or in her oral submissions as to how matters could be progressed vis-a-vis a reconciliation mandated by the Terms of Settlement. With reference to the two mutual discovery orders which had been made on - 18 consent, it was said that the Husband had complied with his discovery obligations and that no complaint had been made in writing regarding his discovery. On the other hand, the Wife had not indicated when the Husband would receive her discovery outstanding on foot of the July 2024 order. 63. As the High Court transcript for 3 June 2025 shows, following the submissions made by both parties, the Judge was inclined to make an order for the sale of the parties’ personal properties but with “an order that the sale of the properties other than the family home proceed first”. 64. The Wife's response to this was that such an order would leave her “in limbo” and was not fair to her at age 80. Her proposal was that the three rental properties should be sold, with the Husband to take the proceeds of such sale, that she be left with the family home and that any necessary equalisation of the parties’ interests could be achieved by making of whatever appropriate adjustment might be required. Whilst counsel for the Husband did not demur at this proposal, his contention was that that proposal would not address the Wife’s lack of funds to engage accountants for the purposes of the reconciliation exercise. In other words, leaving her the family home would not solve her cash-flow problem. For that reason, he advocated that all properties should be sold “so that money could then be used by [the Wife] to fund an accountant so that we can move on to phase 2”. 65. The Wife countered that proposal by stating that she had now been put in funds to engage an accountant by means of some €40,000 given to her by her brother. I note that this is also the position she has adopted on the appeals arguing that the reconciliation exercise can be readily completed given that now both sides have accountants which, it is - 19 said, was the position at the time of the making of the 3 June 2025 Order and the 29 July 2025 Order. The Judge’s Ruling 66. The Judge accepted that whilst the Wife was not responsible for all the delays in the proceedings, she was responsible for significant delays and “foot-dragging”. It was difficult, he said, otherwise than to conclude that the Wife had adopted the position she had because she was some twelve years or so younger than the Husband. He accepted the Husband's chronology as a reasonably accurate and fair representation of the actual timelines and events in the case. He noted that the Husband’s motion was one of a number of applications before him, all of which concerned events subsequent to the parties' divorce. He noted that there were proceedings ongoing in the commercial court although he knew little about them apart from what the Wife had exhibited in her 3 June 2025 affidavit. He noted that part of the dispute between the parties centred on the corporate entities in which they were both immersed. He noted that some of the parties' adult children had taken up positions, one siding with the Wife and three with the Husband. 67. All that having been said, the Judge concluded that accountants should have been retained by the Wife long ago, in accordance with the Terms of Settlement. He was satisfied that without accountants it was impossible to progress matters. Moreover, the Husband was still awaiting the Wife's discovery. All of this was “a completely unsatisfactory state of affairs”, particularly in circumstances where the settlement that the parties had reached had been ruled before him with the assistance of full legal teams on both sides. 68. Revisiting the issue of his jurisdiction, the Judge was satisfied that jurisdiction derived from s.15

(1)(b) of the 1996 Act which allowed the court to make “an order under - 20 s. 36 of the Act of 1995”. Moreover, s.15

(1)(a)(ii) of the 1996 Act provided for the making of an order “directing the sale of the family home subject to such conditions if any as the court considers proper …” He also had regard to the provisions of s.15

(1)(e) of the 1996 Act (inserted by s.8 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”)) which provided that the court could make an order under s. 31 of the 2009 Act in respect of land that is co-owned on the application of a co-owner for the sale of land and the distribution of the proceeds of sale. Ultimately, he was satisfied that he had jurisdiction under s.15

(1)(a), (

1. b)and (
2. e)of the 1996 Act to make the order sought by the Husband. 69. The Judge next turned his mind to how he should exercise his discretion. Having had regard to the contents of the Husband’s grounding affidavit and the Wife's replying affidavits, he was of the view that an order for sale was necessary to progress matters, noting that the parties' settlement had been entered into in January 2023 and that since that time there had been no engagement by the Wife with the requirements of the Terms of Settlement. He noted that the Wife had yet to make discovery. 70. Given that pursuant to the Terms of Settlement the Husband was entitled to a 50% interest in the family home and the other properties, the Judge was of the view that “it cannot be the position that [the Husband’s] entitlement to his interest in those Properties is stalled indefinitely in the way implementation of the Settlement has been delayed and stalled since it was entered into”, in circumstances where most of that delay lay at the feet of the Wife. 71. Ultimately, he was satisfied to make an order pursuant to s. 15 of the 1996 Act and s. 36 of the 1995 Act for the sale of Properties B, C, D and E. He directed that the Husband's solicitors have carriage of the sale and made directions as to how auctioneers were to be - 21 selected. He further directed both sides to sign any documents necessary to facilitate the sale of the properties. 72. As regards the family home, the sale of which was also being sought by the Husband albeit with a suggested stay, whilst minded to make that order, the Judge stated that he did not want to cause the Wife “further anxiety which might be unnecessary” and so, he adjourned the issue of the sale of the family home to 2 July 2025 to afford her the opportunity to engage accountants without delay. He stated that if there were no accountants engaged by 2 July 2025 (and he was not talking about engagement on the eve of 2 July), he might have no alternative but to make the order for sale in the manner suggested by the Husband. Whilst not giving any guarantee to the Wife, he stated that if he heard on 2 July 2025 that accountants had been engaged, he “may be persuaded to postpone the family home issue for another month or so”, cautioning that if the Wife wished to retain the family home, she would need to persuade him that there were accountants on board making some progress with the other side. The 2 July 2025 hearing 73. By the time the Husband’s motion came back before the Judge on 2 July 2025 (notably it was one of eight motions associated with the proceedings that were before the High Court on the day) the Wife had actively engaged BDO accountants. Much of the hearing on the day was taken up with the Husband's request that the Wife would sign authorities for the purposes of the procurement of title documents to the properties in respect of which orders for sale had been made on 3 June 2025 and in respect of which the Judge had given certain informal directions. 74. Addressing the issue of the family home, the Judge noted that the Wife had done much of what had been asked of her on the last occasion. He apprised the parties that he - 22 had not decided one way or another whether to direct the sale of the family home but noted that there were strong arguments on both sides. He stated that his objective was for matters to progress, in particular in respect of in the properties which were the subject of the Order made on 3 June 2025. 75. On 2 July 2025, the Wife's accountant, Mr Robinson of BDO, was present in court. On the day, the Wife's complaint was that BDO's request for documents had not been acceded to by the Husband. The Husband countered that complaint on the basis that the documents being sought had already been furnished to the Wife's previous accountants, Devaney and Durkin. The court was advised, however, that if there was anything extra BDO did not have, the Husband's accountants would be happy to provide such information. 76. As he was satisfied that BDO could obtain the requested the documents from the Wife's previous accountants, the Judge did not make any order in favour of the Wife but he directed that if there was any deficit in the information obtained from the previous accountants, BDO could correspond with the Husband's solicitors. 77. The application for the sale of the family home was then adjourned to 29 July 2025. The hearing on 29 July 2025 78. By 29 July 2025, the Wife had lodged an appeal to this Court against the Order made on 3 June 2025 in respect of the Properties B, C, D and E. Both parties had also filed updated position papers. 79. Despite the Judge having indicated on 2 July 2025 what was expected of the Wife so that the Husband’s solicitor could take up title documents, as of 29 July, she had not identified the solicitors who held the relevant title deeds. Nor had she given the Husband - 23 any indication of the status of the tenancy in respect of one of the properties. It was also said that she had declined to sign the necessary authorities to give effect to the 3 June 2025 Order. Hence, the Husband's position on 29 July 2025 was that any progress that had been made in the case had gone “backwards” and in that circumstance, he was applying to the court to make an order for the sale of the family home (albeit in the knowledge that the Wife would appeal any such order). 80. I should say that on 29 July, Mr. Paul McMahon, solicitor, appeared on behalf of the Wife. Mr. McMahon had previously acted for the Wife but had been permitted to come off record sometime in late 2024. The reason for Mr. McMahon’s appearance on 29 July was, it was said, to advise the court that he was seeking to come on record for the purposes of representing the Wife in respect of her appeal to this Court against the order of Hyland J., which appeal was scheduled for hearing on 30 July 2025. 81. As the transcript of 29 July 2025 shows, the Judge was of the view was that Mr. McMahon did not need the leave of the court to come on record for the Wife. He opined, however, that it could not be the case that Mr. McMahon could be the solicitor for the Wife in one aspect of the proceedings (the appeal of Hyland J.’s order) whilst leaving her a lay litigant in respect of another aspect (the within motion). Accordingly, the Judge allowed Mr. McMahon time to attend at the Central Office for the purposes of his coming on record and to take instructions from the Wife in respect of the Husband's application for the sale of the family home. 82. When the matter resumed after the luncheon break on 29 July 2025, Mr. McMahon sought a stay on the Order made on 3 June 2025 which the Judge refused. He was further advised that the Judge had already heard the Husband's application for the sale of the family home on 3 June 2025 and so was not going to rehear the matter. - 24 83. The thrust of Mr McMahon's submissions on 29 July 2025 was that before a decision would be made in respect of the family home, there should be a proper consideration of the affidavit evidence in circumstances where the Wife now had the benefit of legal representation. He submitted that the Court should take cognisance of the contents of the Wife's affidavits in particular her complaints as to how the Company assets were being managed. In that context, he asserted that it was wrong to characterise the Wife as the person who was frustrating the process which, he said, was not consistent with the affidavit evidence. He further submitted that the Husband was in exclusive control of several of the family assets and had control of an investment fund which had gone from €700,000 to zero between 2013 and 2024. He emphasised the fact that the Wife had engaged BDO accountants who were engaging with the Husband's solicitors. Furthermore, she had made proposals to the other side. He highlighted that the Wife had lived in the family home for over 40 years. The Judge’s Ruling 84. At the outset of his ruling, the Judge explained that the decisions taken on 3 June and 2 July had been in the context of the court wishing to see progress in the matter. Whilst the Wife had appointed accountants in the interim, that had not resulted in the matter progressing as it should have. In the view of the Judge, it was “impossible not to conclude that there is a deliberate attempt to delay the finalisation of matters which need to be finalised to give effect to the wording and spirit of the terms of settlement of January… 2023, and the court order that was made in January of 2023.” He stated that the order made on 3 June 2025 had been made in “an effort… [to] do what is necessary to see to it court orders have the force and effect which the court intended, and indeed, in the context of the settlement reached, which the parties intended at the time they entered into it”. - 25 85. As far as the sale of the family home was concerned, the Judge was of the view that the matter should be concluded. Hence, it was, he said, necessary to make an order for sale, otherwise the matter would drag on without a focus by the Wife on what had to be done to finalise matters between the parties. He noted that there had been mention umpteen times in court of mediation and a willingness to mediate (which, he said, was a matter for the parties) but in the view of the Judge, the mention of mediation had, to an extent, “been used as a tool to delay”. 86. He went on to state: “I am satisfied, for reasons set out by me on the 3rd of June, and in circumstances where I was then minded to grant the order for sale of the family home, but postponed, in effect, the decision to do so, in the hope that matters would be progressed appropriately. In circumstances where last November I did indicate I would direct sale of the family home if I felt there was foot dragging - and I'm satisfied that there is - and in circumstances that when the matter came before me on the 2nd of July last, I did tell [the Wife], and dispelled any view she might have had to the contrary, that there was no guarantee in relation to the family home. When the matter was before me on the 3rd of June, I considered the affidavit evidence and submissions, and I spent time considering a large volume of documentation relevant to that application, in addition to the affidavit evidence and the exhibits, and I was satisfied, then, that the proofs required to grant an order for the sale of the family home were satisfied. I remain of that view”. 87. As to his jurisdiction to make the order for sale, this, he said, had been set out by him on 3 June 2025. There was, he said, additional jurisdiction over and above that which had been used for the purposes of the 3 June 2025 Order. This was found in s.15

(1)(

1. a)(
2. ii)of - 26 the 1996 Act which provides for an order for the sale of the family home subject to such conditions, if any, the court considers proper, and which provides for the disposal of the proceeds of sale between the spouses and any person having an interest therein. 88. The Judge duly directed the sale of the family home pursuant to s. 15

(1)(a) (ii), s. 15

(1)(b) and s. 15

(1)(e) of the 1996 Act, and s. 36 of the 1995 Act and made ancillary orders similar to those made on 3 June 2025 as regards the appointment of auctioneers and the solicitor having carriage of the sale. He stayed the order for sale until the Directions List in the Court of Appeal on 10 October

1. The Appeals
2. In essence, the Wife’s argument on the two appeals distils, in essence, into two parts, the first of which is that the Judge had no jurisdiction to make the orders he made on 3 June and 29 July
3. There are several aspects to this argument each of which are considered below.
4. On the basis that if the Court were to find that the Judge had jurisdiction to direct a sale of the assets in question, the second limb of the Wife’s appeals is that the Judge erred in failing to have any or any proper regard to the matters she had canvassed in her affidavits. Discussion and Decision The jurisdiction issue
5. One of the issues raised by the Husband on the appeals is that the Wife has left it too late to appeal the question of whether the Judge had jurisdiction to make the Orders under appeal. He contends that the issue of the High Court’s jurisdiction to make the orders for - 27 sale was dealt with by the Judge on 6 November 2024, a time when the Wife was represented by both solicitor and counsel. It is said that on that day, the matter was fully contested and the High Court determined it had jurisdiction.
6. Hence, the Husband's position is that if the Wife disagreed with that finding she should have appealed the 6 November 2024 ruling. Whilst it is accepted that no order was made by the High Court on 6 November, it is argued that, had she wished to, the Wife could have asked for such an order.
7. To my mind, there is no merit in the Husband’s argument in circumstances where no order was made on 6 November 2024 and where, palpably, the Judge re-visited the issue of his jurisdiction on 3 June 2025 and 29 July
9. I turn now to the arguments the Wife advances in aid of her contention that the Judge had no jurisdiction to make the impugned orders.
10. It is said that one of the crucial aspects of the Terms of Settlement is that it contained no term providing for the sale of the family home or the other properties. There was no clause authorising the court to deem a sale mechanism into the agreement and it did not identify sale as a contemplated or preferred mechanism. The reason for that, counsel for the Wife argues, is the parties' wealth. As the Terms of Settlement show, everything was to be owned by them on a 50:50 basis and they were to divide everything between them including entering into a shareholder’s agreement on a 50:50 basis in respect of their corporate assets.
11. It is also argued that the agreement reached between the parties constituted proposals to be presented to the court with a view to their being incorporated into a court order once the court was satisfied that proper provision had been made for the parties. The proposals, - 28 it is said, did not independently create obligations to transfer or sell property. Nor was a settlement agreement reached in the context of divorce proceedings a contract for the sale or disposition of land as confirmed in CP v. RP [2025] IEHC
13. On these bases, the Wife’s complaint is that what was deposed to at para. 5 of the Husband’s grounding affidavit was not correct in circumstances where the Terms of Settlement made no provision for the sale of any of the parties’ properties. It is also pointed out that there was no response by the Husband, by way of replying affidavit or otherwise, to the Wife’s contention (at para. 5 of her replying affidavit) that the Terms of Settlement did not make provision for the sale of any of the properties. The Wife’s position is that the Terms of Settlement expressly contemplated further agreement by the parties regarding the division and distribution of all classes of the parties’ assets. This, it is said, indicates that a range of mechanisms remained open for consideration by the parties, including transfer of interests, buy out arrangements, deferred arrangements or allocation of specified properties, none of which were considered by the Judge when making the Orders under appeal.
14. Whilst acknowledging that the Wife had tested the Judge’s patience, her counsel submits that the shortcomings in her approach did not confer jurisdiction on the High Court to amend the order made on 11 January 2023, or rewrite the Terms of Settlement, as, it is said, occurred here. Insofar as the 11 January 2023 order required steps to be taken to ensure its enforcement, it is said that the appropriate mechanism to ensure enforcement was for the Husband to proceed by way of an application for attachment and committal rather than the mechanism ultimately used by him.
15. Fundamentally, the Wife's contention is that the Judge erred in fact and in law in treating the Terms of Settlement as containing an agreement that the parties’ properties - 29 would be sold. As regards this argument, I would observe, however, that, as the High Court transcripts show (and as counsel for the Wife ultimately acknowledged), the Judge did not premise his decision to order the sale of the properties on there being an agreement to do so in the Terms of Settlement. Indeed, as the transcripts show, the Judge himself was cognisant of the fact that there was no agreement in the Terms of Settlement for a sale of the properties.
16. Another of the arguments canvassed on behalf of the Wife is that what occurred here was a revisiting by the Judge of the issue of proper provision for the parties. It is argued that if the court were minded to re-visit the issue of proper provision, then that required an in-depth review of all matters such that, in the absence of such review, there was no jurisdiction for the Judge to consider one aspect only of the parties' interests as, it is said, occurred here.
17. Insofar as the Wife argues that any revisiting of proper provision by the Judge required an in-depth hearing, I consider that that argument must fail on the fundamental premise that the obligation on the High Court to satisfy itself as to proper provision fell to be (and was) considered on 11 January
18. In the absence of any application brought by either party pursuant to s. 22 of the 1996 Act to vary the 11 January order (and there was none), there could be no question of the Judge revisiting the question of proper provision and I am satisfied he did not attempt to do so, either on 3 June 2025 or 29 July
19. Here, proper provision was addressed on 11 January
20. It is not a continuing obligation.
21. The case is also made by the Wife that once the Terms of Settlement /order of 11 January 2023 mandated the parties to conduct a reconciliation exercise, it was not then open to the Husband to seek to revise the Terms of Settlement. I am satisfied, however, that the Husband’s motion did not seek to change the Terms of Settlement. Rather, his - 30 objective was to have the Terms of Settlement, which were incorporated into the order of 11 January 2023, enforced including by seeking relief pursuant to s. 15 of the 1996 Act. I will come back shortly to the remit of s. 15 as far as this case is concerned.
22. It is also the Wife’s contention that the Settlement Agreement provided for “proper provision”, not sale, and included a reconciliation process. Specifically, she says, the Terms of Settlement did not provide for the sale of one particular class of assets to the total exclusion of another class of assets without examining the Settlement Agreement as a whole, including the substantial corporate assets and dealing with all out the outstanding motions. Her overarching contention is that the Judge erred in principle in entertaining the Husband's motion which, her counsel submits, was in effect an application to rewrite the order of 11 January 2023, which was not permissible.
23. I do not find merit in any of the above arguments, for the reasons already outlined above and those which follow.
24. As the Terms of Settlement show, the parties agreed to divide the family assets equally and the High Court was asked by both to deem that proper provision. The High Court was satisfied to do so. Moreover, the order made on 11 January 2023 deemed the Terms of Settlement to be part of the order and enforceable as such. As Lord Brandon of Oakbrook observed in Livesey v. Jenkins [1985] A.C. 424: “[W]hen parties agree the provisions of a consent order, and the Court subsequently gives effect to such agreement by approving the provisions concerned and embodying them in an order of the court, the legal effect of those provisions is derived from the court order itself, and does not depend any longer on the agreement between the parties.” (at p. 560) (Emphasis added) - 31
25. I accept of course that the court order must reflect “what the parties intended…to effect by the order” (as per the House of Lords in Dinch v. Dinch [1987] 1 W. L. R. 252 at p. 263). Here, as is clear from para. 2 of the Terms of Settlement, the parties intended that the matter of their ownership of their property assets would be governed by s. 15 of the 1996 Act, a provision to which I will shortly turn.
26. Before doing so, it is necessary to address the argument canvassed by counsel for the Wife on the limitations of “liberty to apply”.
27. One of the bars to the jurisdiction invoked by the Judge is said by the Wife to be para. 11 of the Terms of Settlement, which provides that the parties had “liberty to apply” only.
28. Citing McMullen v. McGinley [2005] IESC 10, counsel for the Wife argues that “liberty to apply” does not give a court the power to revisit issues that have already been fully decided. Nor, it is said, does it permit a rebalancing of proper provision or permit the court to substitute its own views for what the parties have already determined. Reliance is also placed on the fact that there was no Tomlin Order in issue here.
29. In essence, the argument advanced by the Wife is that the provision of “liberty to apply” only in the Terms of Settlement agreement is dispositive of the appeal and that being the case, there was no jurisdiction for the High Court to order the sale of the investment properties or the family home. This position, it is argued, is further reinforced by the contractual provision for finality in the Terms of Settlement itself (as provided for at para. 12) and the acknowledgement that it comprised proper provision for the parties. Whilst it is acknowledged that a co-owner of lands, in common with all other coowners, may make an application under s. 31 of the 2009 Act should this be appropriate or necessary, it is said that the Husband could not do so in the current proceeding absent the - 32 initiation of fresh proceedings. It is further contended that there has been no determination as to a breach of the terms of Settlement by the Wife, nor have the terms been set aside.
30. The Wife thus asserts that where the assets in issue here are governed not only by the statutory rules under the 2009 Act but also by the express statutory provisions in the Terms of Settlement and constitutional protections for the family home, the combination of those legal principles constrained the court’s ability to order a sale, particularly where the parties had voluntarily agreed on a different mechanism for property division. It is said that the High Court lacked both jurisdiction and legal justification to impose a sale of the properties and that the Orders made directly conflict with the binding co-ownership arrangements the parties had voluntarily entered into.
31. Firstly, as regards the Wife’s argument in relation to “liberty to apply”, it is well understood that “liberty to apply” has a precise and limited meaning in Irish jurisprudence being in effect a procedural mechanism which permits parties to return to the court solely for the purpose of giving effect to or resolving ancillary issues arising from the implementation of an existing order or agreement. It does not permit a substantive variation of the underlying terms of a concluded settlement agreement. As stated in Foskett on Compromise (Sweet & Maxwell, 10th ed., 2024) at para. 24-85, “the provision of ‘liberty to apply’ generally, whether in a consent order or otherwise, does not give the court power to set aside, alter or vary the original order. It merely relates to applications for the implementation and enforcement of the original order”. Here, the Husband submits that his motion for the sale of the properties does no more than seek to enforce or give effect the order made on 11 January
32. I agree. I am also satisfied, for reasons which will become apparent, that there is no merit in the contention that the Husband required a “fresh action” to seek the relief sought in his motion. - 33
33. Secondly, there can be no question that the High Court was constrained by the Terms of Settlement in circumstances where the order of 11 January 2023 deemed the terms consented to by the parties to be part of the order and enforceable as such. In this regard, I have already quoted from the decision of the appeal court of England and Wales in Livesey v. Jenkins.
34. Another limb of the Wife’s argument on the jurisdiction issue is that none of the provisions of s. 15 lawfully support the Orders made by the High Court on 3 June and 29 July. Whilst she accepts that the relevant provisions of s. 15 of the 1996 Act confer jurisdiction to direct an order for the sale of property, the argument sought to be advanced is that s.15 was already “spent” by virtue of that section having been invoked for the purposes of the 11 January 2023 order. Hence, the later invoking by the Judge of s. 15 Act to make the orders for sale was not, she says, open to him, and was wrong as a matter of law, in circumstances where s. 15 had already been invoked as the mechanism upon which to hang the Terms of Settlement and the subsequent order of 11 January
35. It is also the Wife’s case that the provisions in s. 15 were intended only to be used in situations of “distress” which, it is said, was not the situation here given that the resources of each of the parties were such that neither required an order for the sale of property to meet their respective needs.
36. In the first instance, I am satisfied that s. 15 of the 1996 Act was not “spent” by virtue of it having been invoked at para. 2 of the Terms of Settlement and thereafter incorporated into the High Court order of 11 January
38. What was invoked on 11 January 2023 was s.15

(1)(b) of the 1996 Act. That provision was referenced in the Terms of Settlement for the purposes of determining the nature of the parties’ ownership of the assets listed in para. 2. However, that in no way - 34 constrained the options available to the High Court thereafter in invoking s. 15 for the purpose of making an order for the sale of the properties pursuant, be that pursuant to s. 15

(1)(b) or s. 15

(1)(e) or, indeed, the additional jurisdiction which s.15

(1)(a)(ii) confers in respect of the family home. This was made clear by the Judge on 3 June

2. The Judge’s rationale derived from his reading of s. 15 of the 1996 Act. I agree with his rationale.
3. In relevant part, s. 15

(1)of the 1996 Act provides: “15.—

(1)On granting a decree of divorce or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders: (

1. a)an order— (
2. i)providing for the conferral on one spouse either for life or for such other period (whether definite or contingent) as the court may specify of the right to occupy the family home to the exclusion of the other spouse, or (
3. ii)directing the sale of the family home subject to such conditions (if any) as the court considers proper and providing for the disposal of the proceeds of the sale between the spouses and any other person having an interest therein, (
4. b)an order under section 36 of the Act of 1995, … - 35 (
5. e)under section 31 of the Land and Conveyancing Law Reform Act 2009…” 119. Section 36 of the 1995 Act (as referred to at s. 15

(1)(b) above) provides: “Determination of questions between spouses in relation to property. 36. –

(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 enquiries, and give such other directions, in relation to the application, as the court considers proper.” 120. In relevant part, s. 31 the Land and Conveyancing Law Reform Act 2009 (as referred to in s. 15

(1)(e) of the 1996 Act) provides: “1.—

(1)Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.

(2)An order under this section includes— … (c) an order for sale of the land and distribution of the proceeds of sale as the court directs… - 36 121. Hence, as is evident from a reading of s. 15

(1)of the 1996 Act, each of the provisions of s. 15

(1)(a), (

1. b)and (
2. e)confer a power of sale on the court. 122. Paragraph 41 of the Wife’s written submissions asserts that a proper analysis of the section demonstrates that s. 15 of the 1996 Act only applies to the family home (the suggestion being that the Judge was wrong in utilising the provision to make an order for the sale of the investment properties). That is clearly not correct. Whilst s. 15

(1)(a) is clearly confined to the family home, the remaining provisions of s. 15

(1)are not so constrained. Indeed, the Wife herself must have accepted as much when she entered into the settlement agreement on 11 January 2023 since she agreed to the invoking of s. 15

(1)(b) to determine the nature of the parties’ ownership of not just the family home but also Properties B, C, D and E. 123. Insofar as it is suggested that s.15

(1)(b) itself was “spent” having previously been invoked in the Terms of Settlement (and, hence, in the order made on 11 January 2023), I do not agree with that submission. As the Judge opined, “it would be quite illogical if the Court did not have a power to make an order for sale in proceedings such as this…”. The wording of s. 36 of the 1995 Act is that the court can make such order with respect to property as the court considers proper. As Hyland J. observed in her judgment in the coownership appeal, this is “a very wide ranging power”. 124. In any event, even if it could be said that s. 15

(1)(b) was “spent”, there remained the provisions of s. 15

(1)(e) which provides for a power of sale and indeed which were in fact invoked by the Judge for the purposes of both Orders, in conjunction with the provisions of s. 15

(1)(b). 125. The argument canvassed by the Wife in respect of s. 15

(1)(e) (i.e. s. 31 of the 2009 Act) is that it was not open to the Judge to invoke s. 31 on the basis that that provision had - 37 been displaced by the parties having agreed their own arrangements as set out in the Terms of Settlement. She also says that s. 31 provides for the sale or partition of co-owned property where co-owners cannot agree, which, it is said, was not the case here. 126. I am satisfied, however, that the Judge was correct in finding that he had jurisdiction pursuant to 15

(1)(e) to make orders for sale in respect of the investment properties (and indeed the family home (of which more anon)). The Terms of Settlement declared that the parties were the co-owners of the properties listed in para.

1. As provided for in s. 31 of the 2009 Act, any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for, inter alia, “an order for sale of the land and distribution of the proceeds of sale as the court directs”.
2. Accordingly, the Husband, as co-owner of the properties, was entitled to invoke s. 15

(1)(e) to seek such sale. Moreover, it was entirely permissible could do so in the context of the within proceedings having regard to the provisions of s. 15

(1)which provides that upon granting a decree of divorce “or at any time thereafter,” on application by either of the spouses, a court may make, inter alia, orders pursuant to s. 15

(1)(a), (b) or (e). Furthermore, the Husband could, in any event, have applied ab initio under s. 31 of the 2009 Act as a co-owner. He was not required to do that, however, given the provisions of s. 15

(1)of the 1996 Act. Nor indeed, contrary to the Wife’s argument that an order under s. 36 of the 1995 Act required “a properly grounded application, the assessment of evidence and careful consideration of any settlement”, was the Husband required to institute fresh proceedings pursuant to 36 of the 1995 Act, again having regard to the provisions of s. 15

(1).

1. As Conway, Co-ownership of Land, Partition actions and remedies, (Bloomsbury Professional, 2nd Ed 2012) puts it: - 38 “The 1995 and the 1996 Acts allow the court to make a number of ancillary orders on or after granting a decree of judicial separation or divorce. These include specific ancillary orders relating to the family home, and ancillary orders under various statutory provisions. While the latter could be obtained by spouses in separate proceedings, the purpose of including them in the 1995 and 1996 Acts is to avoid multiple proceedings.” (Chapter 10 (iii))
2. Hence, for the reasons set out above, insofar as the Wife challenges the Order of 3 June 2025, I am satisfied that the Judge had ample jurisdiction pursuant to the provisions of s. 15

(1)(

1. b)and (
2. e)of the 1996 Act to direct a sale of Properties B, C, D and E. 130. As we see, on 29 July 2025, the Judge directed the sale of the family home pursuant to s. 15

(1)(a), s. 15

(1)(b) and s. 15

(1)(e) of the 1996 Act. The Wife’s submission is that even where s. 15 of the 1996 Act applies, the court cannot simply order a sale of the family home without a hearing of the matter, addressing constitutional requirements, respecting the binding Terms of Settlement and making the necessary evidential findings to justify an order for sale. 131. Insofar as it is suggested that there was a constitutional or indeed a statutory or contractual prohibition on the Judge invoking s.15 to direct a sale of the family home, I reject that suggestion. As I have already referred to, what was agreed to on 11 January 2023 was that the High Court would make an order under s.15

(1)(b) of the 1996 Act that the parties “are each entitled to a 50% interest” (rendering them co-owners) in the properties listed in para. 2 of the Terms of Settlement and which included the family home. Notably, there was no order sought under s. 15

(1)(a)(i) providing for the conferral on the Wife the right to occupy the family home post the divorce. 132. As I observed in my judgment in the co-ownership appeal ([2025] IECA 259): - 39 “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)(a) of the 1996 Act was required.” The High Court was thus within jurisdiction in making an order for the sale of the family home pursuant to s.15

(1)(a)(ii), (

1. b)and (
2. e)of the 1996 Act. 133. In summary therefore, for the reasons set out above, there was no jurisdictional barrier to the Judge making the orders he made, respectively, on 3 June and 29 July 2025. The exercise by the Judge of his discretion in making the Orders for sale 134. Being satisfied that the Judge was vested with jurisdiction to make the orders he made on 3 June 2025 and 29 July 2025, the question that now arises is whether there is any basis for this Court to interfere with the manner in which the Judge exercised his discretion in making the Orders under appeal here. 135. The role of this Court when reviewing the exercise by a trial judge of his or her discretion was considered in Collins v. Minister for Justice Equality and Law Reform [2015] IECA 27, where Irvine J. (as she then was) stated that while an appellate court will pay great weight to the views of a trial judge, the ultimate decision was one for the - 40 appellate court “untrammelled by any a priori rule that would restrict the scope of that appeal by permitting that court to interfere with the decision of the High Court only in those cases where an error of principle was disclosed” (Irvine J. in this latter regard quoting from the judgment of MacMenamin J. in Lismore Homes Ltd. v. Bank of Ireland [2013] IESC 6. As to when an appellate court might intervene, in Lawless v. Aer Lingus Group plc [2016] IECA 235, Irvine put it as follows, “if an appellate court can detect a clear error in the manner of the approach of the High Court judge it is …free to interfere with that decision. Further, even if the appellant cannot identify such an error the appellate court may nonetheless allow an appeal if satisfied that the justice of the case can only be met by such an approach” (para. 22). 136. However, it should be borne in mind that as explained by this Court in Ganley v. RTE [2019] IECA 18, “[A] significant margin of appreciation must be afforded a High Court judge when an appellate court comes to review the manner in which that judge exercised their discretion on an interlocutory application, even if it be the case that the appellate court, had it been deciding the application itself at first instance, might have made a somewhat different order”. 137. More recently, in Trafalgar Developments Limited v. Mazepin [2025] IECA 280, this Court has again reiterated that an appellate court maintains full appellate jurisdiction over discretionary orders and is legally entitled to substitute its own discretion for that of the trial judge (para. 323). Despite having the power to substitute its discretion, the appellate court does not start with a tabula rasa. It begins with the "firm assumption that the trial judge was correct" in their findings and inferences (para. 142). Trial courts are entitled to a margin of appreciation. An appellate court will typically only interfere if it is demonstrated that the judge has "clearly erred" or made a "material error of assessment” - 41 (para. 144) If the trial court makes an error of law, the appellate court is bound to correct it, and in such instances, "no question of deference arises" (para. 280). Furthermore, as noted by Murray J. in AK v. US [2022] IECA 65, the appellate court is also free to correct mistaken inferences or the erroneous application of legal principles (at para. 53). 138. Fundamentally, the import of the jurisprudence just referred to is that the jurisdiction of an appellate court is such that even if no error of principle arises, the appellate court may reach a different conclusion to the High Court in a discretionary matter if “a real injustice” would be done unless the High Court order is set aside, to paraphrase Hyland J. in Killaree Lighting Services Ltd v. Mayo County Council and Electric Skyline Limited [2025] IECA 7 (para. 151). 139. Accordingly, and bearing in mind the scope of this Court’s function in appeals such as the present, I turn now to the arguments canvassed by the Wife as regards the exercise by the Judge of his discretion. 140. Her overarching argument is that in ordering the sale of the family home and the other properties, the High Court failed to consider or give effect to her affidavit evidence, or to take account of other ongoing motions she had filed wherein she, variously, sought disclosure, restoration of administrator powers in relation to Company bank accounts, and the division of liquid assets. She further complains that the Judge gave to much weight to the unsworn chronology compiled by the Husband in circumstances where she, unrepresented at the time, was unable to present a complete narrative or evidence. Fundamentally, she asserts that the Judge failed to properly consider and weigh her affidavit evidence which, it is said, demonstrated the Husband’s “repeated defaults, noncompliance and unilateral actions affecting jointly held assets”. - 42 141. As an example of the Husband’s unilateral actions, in her affidavit sworn on 3 June 2023, she points (at para. 10) to the fact that that in the weeks following the Settlement Agreement, she discovered significant undisclosed transactions involving the Company. 142. She also maintains that the Judge did not pay any or any sufficient regard to her claim that forcing a sale of assets would trigger substantial CGT liability and unnecessarily diminish the estate of the parties. 143. It is also the case that as set out at para. 8 of her replying affidavit, the Wife had put proposals to the Husband's solicitors in July 2023 as to how the parties' corporate assets might be divided. This, her counsel says, shows that the Wife was attempting to pursue the performance of the Terms of Settlement. There was, however, no response from the Husband to those proposals. Her counsel submits that this shows that the “foot dragging” was not the sole preserve of the Wife. 144. I note that the response of counsel for the Husband to this complaint was to the effect that those proposals had been overtaken by the agreement of the parties in November 2023 (following the filing of the Husband's motion seeking a sale of the relevant properties) to go to mediation. On that basis, the Husband’s motion was adjourned to January 2024. However, no mediation happened for the Wife's proposals to be engaged with. In that circumstance, it is difficult to disagree with the Husband’s argument in this regard. 145. One of the principal complaints advanced by the Wife is what she describes as the Husband’s attempts to deprive her of access to or influence in the running of the Company and its subsidiaries despite the fact that pursuant to the Terms of Settlement (and the ensuing court order of 11 January 2023) she was declared to be a 50% shareholder in these corporate entities. I will return to this issue in due course. - 43 146. For the moment it is sufficient to reiterate that the Wife’s overarching contention is that in making the Orders of 3 June and 29 July 2025, the Judge failed to analyse the matters she had canvassed in her affidavits, save his concession that both parties were not entirely blameless. She argues that the Judge ought to have stepped back and assessed the conduct of the Husband and the adult children who sided with him. Had he done so, she says, a reasonable inference could have been drawn of an intention on the part of the Husband to undermine the order of 11 January 2023. 147. Accordingly, it was, it is said, precipitous of the Judge to do what he did in circumstances where he was carried away by the conduct of the Wife and therefore blinded to the overall dynamics of what was happening between the parties. 148. In his replying submissions, the Husband asserts that there was no error on the part of the Judge in the manner in which he exercised his discretion in making the Orders under appeal here. 149. For the reasons set out hereunder, in large part, I agree with the Husband’s submission that the Judge did not err in making the Orders of 3 June and 29 July 2025 although for reasons which will become apparent, I part ways with the Judge on one discrete aspect, namely that he did not temper the effect of the 29 July 2025 Order by the imposition of a stay. But more of that later. 150. In my view, the Judge was entirely within the parameters of his discretion in directing that the properties, including the family home, be sold. A number of factors point to the Judge having properly exercised his discretion in this regard. Quite clearly, the objective of the Terms of Settlement was to provide a clean break for the parties upon the dissolution of their marriage. As provided for by para. 2 of the Terms of Settlement, they were co-owners of the family home and the other properties as tenants in common (and - 44 indeed co-owners of the balance of the assets listed in para. 2). Furthermore, as reflected in para. 4, they were each entitled to a 50% shareholding in the corporate assets. As already alluded to, the Terms of Settlement contained no express provisions regarding the family home which, had the parties wanted, could have been done. 151. In all of those circumstances, it would be untenable if either of the parties (who are tenants in common) could not get an order for the sale of the family home or the other properties. It is also important to recall that the Wife consented to the parties’ ownership as tenants in common of the properties in question. Moreover, she consented to that order being made under the rubric of s. 15 of the 1996 Act one of the provisions of which (s. 15

(1)(e)) specifically provides for the termination of a tenancy in common relationship and an order for the sale of lands. Furthermore, as I have earlier adverted to, at the time of the divorce decree, the Wife did not seek any relief pursuant to s. 15

(1)(a)(i) of the 1996 Act. 152. In making the Orders he did, the Judge was entitled to have regard to what s. 15

(1)provides for, including that an order for sale of lands, or indeed the family home, could be made either at the time of the granting of the divorce “or at any time thereafter”.

1. Moreover, insofar as the Judge invoked the provisions of s. 31 of the 2009 Act to make the Orders under appeal here, I note that in Yippi Trading Ltd v. Costello [2013] IEHC 564, Ryan J. (as he then was) stated that the 2009 Act gave the courts “a wide discretion” in cases of dispute to decide how best to reconcile the competing interests. He also stated that there would be situations “where there is little sense in keeping tenants in common tied into a legal relationship which does not meet their needs and in which shared ownership of property is no longer feasible”. He went on to state, “The benefits of severance of common ownership are clarity and simplicity and freedom to control one’s own property…”. - 45
2. Furthermore, I am satisfied that in making the orders he did the Judge was entitled to take account of conduct of the parties. In this regard, he took account the nature of the Wife’s engagement (or more accurately her non-engagement), post the order of 11 January 2023, with her obligations pursuant to the Terms of Settlement.
3. I note that the Husband had to issue a motion in late February 2023 in circumstances where the 4-and 6-week deadlines in the Terms of Settlement had passed without engagement by the Wife. By then, the accountants (Devaney and Durkin) previously engaged by her had been discharged. In July 2023, the Husband had to seek leave to issue a second motion to set aside a transfer the Wife had made of one of the properties to [ ] (the transfer being set aside on consent in November 2023). Thereafter, he was required to issue a further three motions, namely, the within motion for the sale of the family home and the other properties, the motion seeking a declaration as to the interpretation of para. 2 of the terms of Settlement (the co-ownership motion) and a motion seeking further and better discovery (the latter motion triggering a motion from the Wife also seeking further and better discovery). All of this was in circumstances where no progress was being made in respect of the reconciliation and other actions which the Terms of Settlement provided for.
4. Hence, the Husband was within his rights in issuing the within motion in September 2023, which was some eight months post the 11 January 2023 order, in circumstances where the reconciliation and shareholder’s agreement envisaged by the Terms of Settlement had not been effected. As I have said, whilst the Wife had engaged Devaney and Durkin accountants in November 2022, she had disengaged them by March 2023 – the very time by which the reconciliation exercises provided for in the Terms of Settlement - 46 should have been completed. As the Husband says in his written submissions to this Court, solicitors and accountants engaged by her came and went.
5. Moreover, I note that when making discovery orders in July 2024, the High Court (Phelan J) had enquired of the Wife's solicitor what steps had been taken to comply with the Terms of Settlement. It seems that the only reply to the court on that occasion by the Wife's legal representative was to ask for the Husband's motion to be struck out.
6. Between 2023 and 2025, the within proceedings were before the High Court on 42 occasions (all post the Terms of Settlement and the order of 11 January 2023). Over 38 affidavits have been filed in the proceedings since the divorce order. The within motion for the sale of the properties was before the High Court on some 24 occasions. It is thus difficult to disagree with the Judge’s finding that it was “patently obvious that every effort is being made [by the Wife] to delay the Court in finalising matters. That is in circumstances where [the Husband] is elderly and infirmed. It is almost impossible to avoid concluding that the clock has, again, been wound down in a very deliberate fashion”. The Judge further noted that “[t]ime was not a luxury that [the parties] can afford at their stage of life, and [the Husband] less so than [the Wife]”.
7. In my view, in the 22 months between the issuing of the motion seeking a sale of the properties and the making of the June/July 2025 orders, the Wife was given every opportunity to comply with the Terms of Settlement and so avoid an order for the sale of the properties. It is particularly noteworthy that, although having conceded on 3 June 2025 that the investment properties could be sold, as of by 29 July 2025 she had not taken the requisite steps to enable those properties to be to be placed on the market.
8. Undoubtedly, all of the foregoing factors weighed against the Judge exercising any discretion in the Wife’s favour when directing sale of the properties including the sale of - 47 the family home. Overall, I am satisfied that the Judge had a sufficient basis to find that there was no constructive engagement on the part of the Wife with the requirements of the Terms of Settlement.
9. Whilst I find no basis upon which to interfere with the decision of the Judge to direct a sale of the properties including the family home, as I have intimated earlier, in my view, a frailty nevertheless attaches to the 29 July Order by reason of the fact that the Judge failed to temper that Order by the imposition of a stay. Despite the findings he made about the Wife’s conduct and her likely intentions, there were a number of factors which, to my mind, pointed to the proportionate order in respect of the family home as being an order for the sale of that property with a stay on such order. I am not, however, attributing those factors to the Order made on 3 June 2025 in respect of the other properties particularly in light of the Wife’s concession to the High Court on 3 June 2025 that those properties could be sold.
10. However, as regards the family home, I consider that there was no proper rationale for the Judge not imposing a stay on the sale of that property for the purposes of affording the Wife an opportunity to complete the reconciliation exercises provided for in the Terms of Settlement. To my mind, an order for sale with a stay for a defined period would have been the proportionate response particularly given, as I have mentioned, the Wife’s concession on 3 June 2025 that the parties’ investment properties could be sold, and in light of the fact that there appears to be no dispute between the parties but that the 50:50 division provided for in the Terms of Settlement could still be achieved even if the Wife were to retain the family home.
11. There are also other relevant factors that ought to have weighed more with the Judge in staying the 29 July Order. Firstly, it is the case that in his position paper, the Husband - 48 had stated that he did not want the family home sold. Secondly, as I have already alluded to, in her submissions to the High Court on 3 June the Wife had effectively agreed to the sale of the properties except for the family home. Ultimately, the Husband objected to that offer, apparently on the basis that all the properties required to be sold to provide funds for each of the parties for litigation purposes. On the other hand, the Wife contends that the Husband's objective in seeking the sale of the family home was solely to put pressure on her and she maintains that the Judge was not sufficiently objective in his assessment of the circumstances that presented. I will return in due course to the argument that a sale was necessary to provide the parties with funds.
12. In response to a question from this Court as to why the offer made by the Wife on 3 June 2025 agreeing to an order for the sale of the investment properties, with her to hold on to the family home, did not find favour with the Husband (and where, as I have said, there was no issue but that equalisation could still be achieved if such a course was permitted), counsel for the Husband’s response, whilst acknowledging that the Husband had earlier expressed that he had no desire to see the family home sold, was that as of June 2025 the Husband’s fear was that if the Wife was let retain the family home, she would have no incentive thereafter to progress the reconciliation process provided for in the Terms of Settlement.
13. To my mind, that response failed to appreciate that an order simpliciter for the sale of the family home was hardly likely to progress matters absent some incentive for the Wife to engage constructively with the reconciliation process.
14. I am also conscious of the fact that during an exchange with counsel for the Husband on 29 July 2025 the Judge stated that whilst he had intimated on a previous occasion that the family home would be sold there had been an element of “sabre rattling” to that - 49 statement. The Judge went on to say that he was not disposed to make an order for the sale of the family home given that it was likely to be appealed by the Wife (as indeed has proved to be the case). He further surmised that the sale of the other properties should provide sufficient monies for the reconciliation provided for in the Terms of Settlement to be completed. Moreover, he pointed out that it was not mandatory in the Terms of Settlement that the family home be sold.
15. The Husband's response to those interventions was to say that he was not pressing for an order for sale of the family home simpliciter but rather for an order for sale with a stay. Whilst counsel for the Husband agreed that the Wife taking the family home, and the Husband taking the proceeds of the properties the subject of the 3 June 2025 Order (with whatever monetary adjustment might be necessary to achieve equalisation) would place the parties in a 50:50 position vis-a-vis those combined properties, he nevertheless reiterated the Husband’s concern that if the Wife retained the family home, there would never be a reconciliation exercise or a shareholder’s agreement.
16. As I have earlier observed, again, that response failed to appreciate, having regard to the history to date, that absent some incentive for the Wife to constructively engage in the reconciliation process, it was unlikely that an order simpliciter for the sale of the family would achieve the necessary constructive engagement.
17. I turn now to the Husband’s contention that a sale of the family home was necessary in order to put the parties in funds to deal with the reconciliation exercises mandated by the Terms of Settlement. The Wife contends that there is no rationale in the Husband having resiled from his earlier desire that the family home not be sold in circumstances where, if the premise of his motion was indeed to garner funds for the parties to complete the - 50 reconciliation exercises, that objective could be achieved by recourse to the parties’ bank and investment accounts which, she says, were awash with money.
18. It will be recalled that the evidence in the court below was that there are funds to the tune of €224,000 in various bank accounts, together with other assets amounting to €1.4m in investments, available to the parties. The Wife thus submits that if funds were required, the Husband should more properly have sought access to the bank accounts and other investments listed, respectively, at sub-paras. (vii) and (viii) of para. 2 of the Terms of Settlement. These latter assets, she says, represent the obvious source of funding for the parties if they require such for the purposes of their litigation, or the reconciliation required by the Terms of Settlement.
19. Hence, the Wife’s position is that the Judge did not take any or any sufficient cognisance of her contention, at para. 15 of her 3 June 2025 affidavit, that the Husband had ample liquid assets (including the proceeds of what was formerly joint investment account with Cantor Fitzgerald) to satisfy any requirement for funds. Fundamentally, her counsel says, there were ample liquid funds in the ownership of both parties which could be drawn down to ensure completion of the reconciliation and other exercises provided for in the Terms of Settlement. I agree that is the case.
20. It is also submitted on behalf of the Wife that rather than enquiring why she had been left with no money, the Judge contented himself with the Husband's proposal that each party would be given a top up of their Directors' Loans to the tune of €50,000 each. However, that proposal had only yielded €19,000 for the Wife the effect of which was to continue to leave her starved of funds to engage legal representation or accountants.
21. As to this particular argument, I note that an explanation was in fact given to the Wife by the Company's accountant for that net sum. On that basis, I cannot find fault with - 51 how the Directors’ Loan “top up” was managed. However, there remains the issue of the other substantial funds in the parties’ personal accounts to which recourse could have been had if indeed the rationale for selling the family home was to put the parties in funds.
22. Accordingly, I find no merit in the Husband’s argument (as made on affidavit and in his submissions) that the family home required to be sold in order to put the parties in funds for their litigation in circumstances where there are ample liquid funds at their disposal. It seems to me that had the Judge, on 29 July 2025, adverted more assiduously to the substantial monies which were on deposit, he would likely have viewed the Husband’s contention that a sale of the family home was necessary to put the parties in funds with some scepticism.
23. Moreover, it will be recalled that as of 3 June 2025, the Wife’s financial position had improved via the monies given to her by her brother. Again, had the Judge, on 29 July 2025, afforded more weight to this factor, as I believe he ought to have done, it too would have weighed in favour of some tempering of the Order for the sale of the family home.
24. I turn now to the parties’ corporate assets, I am also of the view that the Judge did not give sufficient weight to the Wife’s complaint about how the corporate assets were being dealt with by the Husband post the divorce decree. In my view, had he done so, this would have weighed in favour of imposing a stay on the Order for the sale of the family home.
25. In her affidavit evidence, the Wife points to the Husband’s 18 January 2023 letter, written by his solicitors within a week of the order of 11 January 2023, advising her that the running of the Company was being put in the hands of [ ], one of the three adult children who were siding with the Husband. She asserts that since then, [ ] has run the Company and that she has been denied access to the benefits of her life’s work. Her - 52 counsel describes this action as the Husband having drawn “a coach and four” through the rules governing the running of the corporate entities in circumstances where [ ] was neither a director nor a shareholder in any of the companies. It is contended that if the Husband's intention was for [ ] to take over the running of the Company, that issue have been addressed in the negotiations leading to the Terms of Settlement. It is difficult to disagree with this argument given the proximity of the Husband’s 18 January 2023 letter to the settlement negotiations.
26. Whilst it is acknowledged by the Wife that the letter of 18 January 2023 does not impact on the legal implications of para. 6 of the Terms of Settlement, it is nevertheless submitted that the Wife rightly perceived the Husband's action as one taken to undermine her. Counsel for the Wife points out that [ ], who was in fact named in the order of 11 January 2023, had, pursuant to that order, effectively agreed not to exclude the Wife from the running of the Company. He further points to the originating notice of motion issued by the Husband pursuant to s.179 of the Companies Act 2014 wherein, inter alia, he sought an order directing himself a quorum for the purposes of appointing [ ], and two other adult children who were siding with him, as directors of the Company and its subsidiaries. Again, this is characterised by counsel as the Husband drawing “a coach and four” through the order made on 11 January
27. I note that no reply was made by the Husband on affidavit to the Wife's averments in respect of those issues.
28. Emphasis is also placed by counsel for the Wife on para. 24(d) of the Wife’s 3 June 2025 affidavit, wherein she refers to the Husband as having “one foot in the family law court and one in the commercial court”. She asserts that the Husband’s objective in the proceedings in the latter court is to take control of the Company and its subsidiaries, - 53 thereby excluding her from those entities notwithstanding the fact that the Company and its subsidiaries were deemed part of the proper provision for her in the divorce.
29. It is also submitted that the Husband's desire to oust the Wife from the Company is further evidenced by the “without prejudice” correspondence received from the Husband offering that he would take 90% of the Company assets, with a balancing payment to be made to the Wife from the Company reserves in cash. The Court is asked to infer that that proposal was again intended again to draw “a coach and four” through the Terms of Settlement. It is also said that the Judge, wrongly, regarded the applications ongoing in the commercial court as a separate matter which, counsel says, they were not, given that the Company and its subsidiaries were specifically referred to in the Terms of Settlement and by implication in the 11 January 2023 order.
30. Furthermore, counsel for the Wife points to the Memorandum of Additional Terms of Settlement (received by the High Court on 11 January 2023) which was made a rule of court and so enforceable as a court order. It provides that the Wife was to have ongoing access to the Company’s bank accounts and that the salary of [ ] was to be reinstated. The inference to be drawn from this, counsel submits, is that the Husband, and the adult children who were supporting him, had been conducting a vendetta against the Wife and [ ] and that the Memorandum of Additional Terms of Settlement was endeavouring to put that right.
31. Counsel contends that the Judge's rulings on 3 June and 29 July 2025 ignored the foregoing considerations such that there was no or no proper analysis of the Wife's complaint in respect of how the corporate assets were being treated by the Husband. It is further submitted that the Judge wrongly ignored the ongoing proceedings in the commercial court which had been commenced by the Husband, whose objective, it is said, - 54 is to deprive the Wife of any influence in how the Company and other corporate entities are to be managed.
32. Whilst I accept that it was not for the Judge to trespass on proceedings that were ongoing in the commercial court, nevertheless I consider that the Judge should have been more alert to the actions taken by the Husband post the divorce decree in relation to the parties’ corporate interests in circumstances where those corporate interests were part of the proper provision for the Wife (as well as the Husband) and in circumstances where the Husband saw fit to initiate his actions within days of the Terms of Settlement having been signed and the making of the 11 January order. Overall, I consider that there is some merit in the arguments the Wife canvasses as regards the parties’ corporate assets such that the “game playing” here was not only on the part of the Wife.
33. In summary, it seems to me that the corporate issues highlighted in the Wife's affidavits and the exhibits thereto, together with her concession on 3 June 2025 that the other properties could be sold, and the fact that the parties has sufficient liquid assets outside of the proceeds of sale of their properties if they required funding for their litigation or to effect the reconciliation exercises, merited the imposition of a stay on the 29 July 2025 Order. Accordingly, in all the circumstances of this case, I consider that the proportionate response to the Husband’s application on 29 July 2025 for the sale of the family home would have been for the Judge to have directed an order for the sale of the property but with the imposition of a stay thereon for a defined period during which the Wife would be required to engage in the actions provided for at paras. 4 and 6 of the Terms of Settlement. Part of that proportionate response would of course have been the proviso that the stay was on condition that if the reconciliation and other processes mandated by - 55 the Terms of Settlement were not completed within the time specified in the court order then the family home would be sold upon the expiration of the specified period.
34. Absent a stay in the terms just described, I consider that the Order of 29 July 2025, as it presently stands, is tantamount to a “real injustice” such that the limited interference which this Court proposes to make with the Judge’s 29 July 2025 Order is warranted.
35. I turn next to BDO's request to the Husband’s solicitors for documentation to assist them in the reconciliation provided for in the Terms of Settlement. As we see, this request has been refused. The Husband’s position is that the information sought has already been furnished to the Wife's erstwhile accountants (Devanny and Durkan) further to the discovery order made in July 2024 and that BDO have been advised of that fact and told that if over and above that they had outstanding queries, they could revert to the Husband’s accountants.
36. The Wife says that the Husband has given no adequate explanation for his refusal particularly in circumstances where the furnishing of the requested information could have been achieved by a simple press of a button on a computer.
37. From the Husband’s perspective, as far as his written submissions to the Court are concerned, I note BDO's request for the said documentation remains outstanding and it appears to be “under review”. Whilst I accept that the information now being sought by BDO has already been given to the Wife’s previous accountants, it seems to me that it would not be an unduly onerous task for the Husband’s accountants to send on the requested information to BDO (if by the time of judgment delivery BDO have not obtained same from the Wife’s previous solicitors), if only to assist in the progressing of the reconciliation process and the shareholder’s agreement envisaged in the Terms of Settlement. - 56 Summary
38. For all the reasons set out above, I would uphold the High Court Orders of 3 June 2025 and 29 July 2025 directing the sale of the properties listed at (i)-(vi) of para. 2 of the Terms of Settlement save that with regard to the 29 July 2025 Order, I would vary that Order by imposing a stay thereon for a period of three months from the perfection of the Order of this Court, for the purposes of the completion by the Wife (qua 50% owner of the parties’ real, personal and corporate assets) of the reconciliation and other exercises provided for in the Terms of Settlement. I envisage that once those processes are completed within the specified period, the Wife will be accommodated in her desire to retain the family home, thereby entitling her to appropriate the family home subject to whatever equalisation exercise may be necessary to ensure the parties’ respective individual 50% interest in the assets set out in the Terms of Settlement is protected. Costs
39. The Court will hear from the parties on a date to be advised as to what order it should make in relation to the costs orders made by the High Court and the costs orders that should be made on the appeals.
40. As this judgment is being delivered electronically, Binchy J. and Pilkington J. have indicated their agreement therewith and the orders I have proposed.