M.K. v B.K. [2025] IEHC 683:
Clarifying the Threshold for Transferring Divorce Proceedings to the High Court in Cases Involving Corporate Assets and Alleged Beneficial Ownership

High Court of Ireland (Family Law List), Ex Tempore Judgment of Jackson J, 1 December 2025, [2025] IEHC 683.

1. Introduction

This judgment in M.K. v B.K. addresses when divorce proceedings commenced in the Circuit Family Court should be transferred “up” to the High Court, particularly where:

• there are allegations that one spouse has an undisclosed beneficial interest in a valuable family company; and
• the family home has been placed in an unusual trust arrangement under a prior Deed of Separation.

The case arises as an appeal from an order of the Circuit Family Court which had directed that the divorce proceedings be transferred to the High Court. Jackson J reverses that order and clarifies:

• the relationship between the mandatory transfer regime under s.38(2) of the Family Law (Divorce) Act 1996 (“the 1996 Act”) and the discretionary transfer power under s.22(8) of the Courts (Supplemental Provisions) Act 1961; and
• the evidential and legal threshold for justifying a transfer, especially where alleged corporate interests and complex asset structures are involved.

The judgment is significant for family law practitioners because it:

• re‑affirms the central role and competence of the Circuit Family Court in high-value and complex divorce litigation;
• insists on an evidence-based approach to “mandatory” transfer applications grounded on property value; and
• rejects the notion that the mere presence of a family company, alleged beneficial interests or trusts automatically renders the High Court the “more appropriate” tribunal.

2. Factual Background

2.1 The marriage, separation and prior Deed

The Applicant husband (M.K.) issued a Civil Bill in November 2022 seeking:

• a decree of divorce; and
• ancillary reliefs limited to mutual orders under s.18(10) of the 1996 Act (i.e. essentially inviting the court to find that proper provision had already been made).

The proceedings are grounded on a 2018 Deed of Separation:

• Before the Deed, the family home was held jointly by the parties as joint tenants.
• Under the Deed, the joint tenancy was severed and the husband’s 50% interest was transferred to trustees to hold on trust such that:
  • the wife (B.K.) has the benefit of the property for life; and
  • the children of the marriage take the property thereafter as tenants in common in equal shares.
• The mortgage (circa €191,016) on the family home was redeemed, leaving it unencumbered.

The husband says this redemption was funded by a personal loan from his father. The wife is suspicious of that transaction and contends it “ought to be interrogated”.

The Deed of Separation is, however, unusual in several respects:

• it contains a clause purporting to limit the agreement to four years with a review at the end of that period, but it is unclear if this applies only to maintenance or to all terms;
• it has no “full and final settlement” clause regarding financial claims; and
• it contains no record of financial disclosure having taken place before execution.

The wife contends that disclosure at the time of the Deed was “entirely inadequate”. Jackson J notes that these features will be central in the assessment of “proper provision” at the divorce hearing, especially having regard to s.20(3) of the 1996 Act (requiring the court to have regard to separation agreements but not to be bound by them).

2.2 Affidavits of means and apparent financial picture

The husband swore three Affidavits of Means:

• October 2022 & January 2024: These showed:
  • ownership of a non-family home residential property with a modest mortgage;
  • modest chattels and cash;
  • a weekly salary and a modest pension; and
  • a loan from his parents (apparently the mortgage redemption loan).
  Nothing in these affidavits suggested a case beyond the scope of the Circuit Family Court.
• September 2024: His bank balances had increased by about €150,000, while he recorded no income. The mortgage had modestly decreased; the parental loan remained. The change is linked to an ex‑gratia payment on the sale of the family business (discussed below).

The wife’s Affidavit of Means (June 2023) likewise disclosed no elements suggesting a case of such complexity or value as to be inherently “High Court” in character.

2.3 The family business: Company A, B and C

The wife’s Defence and Counterclaim (October 2023) marked a shift in focus. She alleged:

• that the husband had a beneficial interest in Company A, a specialist trading company founded and owned by his parents through a holding company (Company B); and
• that the circumstances around the Deed of Separation and the loan used to pay off the mortgage warranted further scrutiny.

Key facts about the business (largely uncontested) are:

• Company A’s shares are held by Company B, whose shareholders are the husband’s parents.
• Prior to August 2024, Company A held real property as well as operating the trading business.
• As part of a restructuring and sale:
  • Company A’s real property was transferred to a new company, Company C, owned by Company B (and thus ultimately by the parents);
  • Company B then sold the trading shares in Company A to a third party; and
  • Company A (under its new ownership) appears to lease or occupy property owned by Company C, generating income for Company C/Company B/the parents.
• The husband worked in the business for his entire working life, was a director, and received director’s emoluments, but was never a shareholder.
• The husband’s sister was similarly a director and non‑shareholder.
• On the sale of the business, the husband received an ex‑gratia payment of €200,000 (partly in kind via a car), characterised as a non-contractual reward for long service.

The wife’s forensic accountant noted the possibility that past or future restructurings might facilitate tax-efficient transfers of shares from the parents to the children, but there was no evidence that such transfers had actually occurred.

2.4 Competing positions on beneficial ownership

The wife’s case on beneficial ownership was, as Jackson J notes, somewhat confused and internally inconsistent:

• The Defence and Counterclaim plead a present beneficial interest of the husband in Company A.
• The solicitor’s affidavit avers similarly.
• However, the wife’s own affidavit evidence is framed in terms of:
  • an expectation that the business would be “settled” on the husband and his sister in the future; and
  • repeated statements by the husband that he would become “a millionaire by virtue of inheritance” and that money would “never be an issue” due to his expected inheritance of the family business.
  These averments suggest a future inheritance or settlement, not an existing beneficial entitlement.

In contrast, the husband and his father consistently deny any current beneficial interest:

• The husband states that Company A, Company B and Company C are “legally and beneficially owned” by his parents, that they are not “the family business” in the sense of him having a proprietary stake, and that he has no beneficial interest in any corporate or personal assets of his parents.
• The father swears an affidavit:

  I confirm that the Applicant is not and never was a legal or beneficial owner of any shareholding in any company owned by me or my wife… [and] we do not hold any assets in trust for the Applicant.

• A letter from the solicitors for Company B confirms that the parents are both the legal and beneficial owners, and that they are not aware of any beneficial interest held by the husband in Company A/B/C.

Notably, no non‑party discovery has been sought to test these positions. The wife asserts that such discovery “will be required” but has not actually applied for it.

2.5 The motion to transfer and the Circuit Court’s order

Against this background, the wife brought a motion in the Circuit Family Court seeking transfer of the proceedings to the High Court. The written motion did not clearly specify the statutory basis for transfer, but the grounds advanced were:

1. Value-based ground: an averment that the assets, “including real property”, exceeded €3 million (the statutory threshold for mandatory transfer where land of that value is “concerned” in the proceedings: s.38(2) 1996 Act).
2. Complexity ground: the alleged complexity of the corporate structures, the need for extensive non‑party discovery, and the assertion that the husband’s beneficial share was “substantial” and that he was in receipt of “significant dividend/remuneration” therefrom.
3. Family home trust ground: the “unorthodox” trust arrangement over the family home under the Deed of Separation, potentially raising complex arguments under s.14 of the 1996 Act (which allows the court to vary certain trusts and settlements).
4. Future inheritance ground: the suggestion that there may be a novel question as to how anticipated future inheritances or asset acquisitions should be treated when making proper provision under s.20(1) and the “foreseeable future” language in s.20(2)(a).

The Circuit Family Court granted the transfer. The husband appealed that order to the High Court.

3. Summary of the Judgment

Jackson J allows the husband’s appeal and sets aside the order transferring the proceedings to the High Court. The case is to proceed (and be urgently dealt with) in the Circuit Family Court where it was started.

Her key conclusions are:

1. No mandatory transfer under s.38(2) of the 1996 Act:
   • The statutory trigger (“proceedings … concern land with a market value exceeding €3,000,000”) is not satisfied.
   • The parties’ own Affidavits of Means show assets well below this threshold.
   • There is no evidence supporting the bare assertion that the relevant assets exceed €3 million.
   • Alleged beneficial interests in company shareholdings are not land for the purposes of s.38(2).
2. Discretionary transfer under s.22(8) of the 1961 Act:
   • Because of concurrent jurisdiction in divorce matters (s.38(1) 1996 Act), any such case is, in principle, “fit to be tried” in the High Court.
   • The real question is whether the High Court is, in fact, the “more appropriate tribunal in the circumstances”.
   • On the evidence, the Circuit Family Court is not shown to be a less appropriate or inadequate forum.
   • The mere presence of corporate structures, alleged beneficial interests, and a trust over the family home does not—without more—justify transfer.
3. Circuit Family Court’s competence:
   • The Circuit Family Court is “hugely experienced” in divorce and ancillary relief applications.
   • It routinely deals with:
     • pre‑existing Deeds of Separation;
     • contested claims of undisclosed or beneficial property ownership; and
     • non‑party discovery applications in complex financial cases.
   • There is no legal or practical bar to that court addressing any novel argument about future assets or inheritances under s.20 of the 1996 Act.
4. Delay and proportionality:
   • The proceedings are already over three years old; the transfer motion alone consumed over a year.
   • The wife herself contributed to delay (late Defence and Counterclaim requiring multiple extensions).
   • A further layer of High Court procedure would likely exacerbate delay and cost without clear necessity.

Accordingly, the High Court:

• refuses to retain the case; and
• requests the Circuit Family Court to grant such expedition as possible for any necessary disclosure applications and for the substantive hearing.

4. Detailed Analysis

4.1 “Precedents” and legal framework

The judgment does not cite prior case law by name. Instead, it is rooted in a careful reading of the relevant statutory framework, which effectively operates as the controlling “precedent”:

• Family Law (Divorce) Act 1996
  • s.18(10): allows the court to make certain orders where a separation agreement is in place; the husband’s Civil Bill appears to assume that the 2018 Deed of Separation largely constitutes proper provision.
  • s.20(1) and (2): set out the “circumstances” to be considered in making proper provision, including “the financial resources of each of the spouses” and, critically, under s.20(2)(a), their “income, earning capacity, property and other financial resources which each of them has or is likely to have in the foreseeable future”. This is the basis for the wife’s interest in the husband’s prospective inheritance and the family company.
  • s.20(3): requires the court to have regard to separation agreements when determining proper provision, but does not make them conclusive.
  • s.38(1): confers concurrent divorce jurisdiction on the High Court and Circuit Court.
  • s.38(2): provides for mandatory transfer to the High Court where the proceedings concern land with a market value exceeding €3,000,000, if either party so requests.
• Courts (Supplemental Provisions) Act 1961, s.22(8), as amended by Courts Act 1971
  • Allows a party in Circuit Court proceedings to apply for the action to be “forwarded” to the High Court.
  • The judge may order transfer only if:
    1. the action is “fit to be tried” in the High Court; and
    2. the High Court appears to be “the more appropriate tribunal in the circumstances”.
  • An appeal lies from the decision to grant or refuse such an application.

In effect, Jackson J’s decision itself now becomes a leading authority on how these provisions interact in family law practice, particularly in cases involving corporate assets and alleged beneficial interests.

4.2 The Court’s legal reasoning

4.2.1 The mandatory transfer test under s.38(2) 1996 Act

The first question was whether the case fell within the mandatory transfer regime. Jackson J’s reasoning can be broken down as follows:

1. Focus on “land”:

   The statute requires that the proceedings “concern land” with a market value exceeding €3 million. The wife’s suggestion that the husband had a substantial beneficial interest in the family company, whose assets included (or had included) real property, does not turn those corporate shareholdings into “land” for the purposes of s.38(2). Shares are personal property, not land.

2. Evidential foundation:

   The only support for the claim that “assets including real property” exceed €3 million is a bare assertion in the solicitor’s affidavit:

   I say and believe that the assets including real property exceeds a Market Valuation of €3,000,000.

   The Court finds “no evidence” to support this. The Affidavits of Means of both parties, which are sworn evidence, show no such value. No valuation evidence is produced for any alleged beneficial shareholding.

3. Contested nature of the alleged interest:

   Even if (contrary to the Court’s view) an alleged beneficial shareholding could be analogised to “land”, the existence and value of such a beneficial interest are strongly contested. The Court is not prepared to treat such a contested, unquantified, unvouched allegation as sufficient to trigger a mandatory statutory transfer.

Jackson J therefore holds that the mandatory transfer condition in s.38(2) is not satisfied.

4.2.2 The discretionary transfer test under s.22(8) 1961 Act

Once mandatory transfer is ruled out, the Court turns to the discretionary transfer mechanism. The analysis proceeds in two stages prescribed by s.22(8):

1. Is the action one “fit to be tried” in the High Court?
2. If so, is the High Court “the more appropriate tribunal in the circumstances”?

Given the concurrent jurisdiction in divorce matters (s.38(1) 1996 Act), Jackson J accepts that the case is, in principle, “fit” to be tried in the High Court. The more important question is therefore the second limb: appropriateness.

(a) Circuit Family Court’s competence and experience

Jackson J places strong weight on the institutional reality that:

• the legislature has deliberately given the Circuit Family Court concurrent jurisdiction in divorce;
• that court is “hugely experienced” in:
  • assessing Deeds of Separation and their adequacy for “proper provision”;
  • complex property and financial disputes;
  • contested beneficial ownership claims; and
  • procedural issues such as non‑party discovery.

Nothing in this case—whether it be:

• the alleged beneficial interest in a family company,
• the unusual trust of the family home, or
• possible novel questions about future inheritance—

is beyond the competence of the Circuit Family Court to adjudicate upon, with a full right of appeal thereafter.

(b) Nature and quality of the wife’s allegations

The Court is clearly concerned about the evidential thinness and internal inconsistency of the wife’s case on beneficial ownership:

• The pleadings and solicitor’s affidavit speak of a present beneficial interest.
• The wife’s own evidence is framed in terms of future expectations of inheritance.
• The forensic accountant’s report explicitly acknowledges that the husband is not currently a shareholder, merely that there are tax advantages to a possible future transfer.
• Independent documentation (company solicitors, auditors and beneficial ownership registers) all confirm the husband’s lack of any beneficial interest.
• No non‑party discovery has been sought to challenge or test that corporate documentation.

The Court does not determine—nor does it need to determine—whether the husband does or does not have a beneficial interest. That is a matter for the trial court. But for the purpose of a transfer motion, the Court is clearly unwilling to allow:

• bare, unvouched, internally inconsistent allegations

to drive jurisdictional escalation to the High Court.

(c) The Deed of Separation and trust of the family home

The wife argues that the trust arrangement over the family home, and the circumstances of the mortgage redemption via a parental “loan”, add a level of complexity apt for High Court determination, particularly in light of s.14 of the 1996 Act (variation of certain settlements).

Jackson J rejects this argument as a basis for transfer, noting that:

• consideration of prior Deeds of Separation and of trust structures over the family home is “not uncommon” in the Circuit Family Court; and
• the existence of potentially complex legal arguments under s.14 does not exceed that court’s jurisdiction or ability.

(d) Future inheritance and s.20 “foreseeable future” arguments

The wife foreshadows a potentially novel legal argument as to:

• how the court should treat possible future inheritances or asset acquisitions when determining “proper provision” under s.20; and
• whether the husband’s anticipated acquisition of business assets falls within “financial resources … likely to have in the foreseeable future” under s.20(2)(a).

Jackson J expressly declines to decide any such substantive arguments at this stage, but observes that there is no reason why such issues cannot be fully ventilated and decided in the Circuit Family Court. The existence of a potentially interesting or “novel” point of law does not in itself make the High Court the more appropriate forum where jurisdiction is concurrent and the lower court is well‑versed in family law.

(e) Delay, cost and procedural economy

The Court is also plainly concerned with delay and procedural economy:

• The divorce proceedings have been in being for over three years.
• The transfer motion, grounded on an affidavit sworn in October 2024, was issued in January 2025 and has itself delayed the substantive resolution by more than a year.
• There have already been three Circuit Court hearing dates lost due to vouching issues and procedural delays.
• The wife’s Defence and Counterclaim were filed 11 months after the Civil Bill, requiring multiple County Registrar extensions.

In this context, the Court is reluctant to endorse a transfer that would add further delay and cost unless clearly justified. Jackson J therefore explicitly asks the Circuit Family Court to give the case such expedition as possible for:

• any necessary disclosure (including potential non‑party discovery) applications; and
• the substantive hearing itself.

Pulling these strands together, Jackson J concludes that:

• While the case is “fit” to be tried in the High Court,
• The High Court is not the more appropriate tribunal in the circumstances; and
• Accordingly, the discretionary transfer power should not be exercised.

4.3 Impact and significance

4.3.1 Re‑asserting the primary role of the Circuit Family Court

This judgment is an important reaffirmation that:

• the Circuit Family Court is the primary, and fully competent, forum for the vast majority of divorce and ancillary relief proceedings, including those involving:
  • family companies;
  • trusts and unorthodox arrangements over the family home; and
  • allegations of hidden or beneficial ownership.
• Practitioners should not assume that any appearance of complexity or corporate structuring makes a case inherently suitable for transfer to the High Court.

4.3.2 Evidential discipline in transfer applications

The decision sends a clear message that:

• Mandatory transfer based on asset value requires , not assertion:
  • Valuation evidence of land exceeding €3 million is needed.
  • Contested, unquantified beneficial interest allegations, especially in corporate shares, will generally be insufficient.
• Discretionary transfer applications must be grounded in:
  • identified legal or factual features that genuinely make the High Court more appropriate; and
  • a realistic assessment of what the Circuit Court can, and routinely does, handle.

In practice, this means that family law litigants and solicitors should:

• pursue ordinary case management tools (e.g. better vouching, non‑party discovery) before seeking transfer; and
• avoid using transfer motions as a de facto tactic for delay or forum shopping.

4.3.3 Clarifying that corporate shares are not “land” for s.38(2)

While the point is dealt with tersely, the reasoning implicitly clarifies that:

• ownership of, or alleged beneficial interest in, shares of a company—even one whose principal asset is land—does not equate to “land” within s.38(2); and
• the mandatory transfer provision is to be interpreted strictly by reference to land values, not to general asset values or corporate valuations.

This clarification will significantly limit attempts to trigger mandatory transfer based merely on the existence of a high-value family company.

4.3.4 Future inheritance and the “foreseeable future” under s.20

Although Jackson J deliberately does not resolve the underlying substantive question, the judgment frames an issue likely to be litigated more fully in future cases:

• To what extent, if any, should a spouse’s anticipated inheritance or expected receipt of family business assets be treated as:
  • an existing “financial resource”; or
  • a financial resource “likely to have in the foreseeable future” (s.20(2)(a))?

By holding that such arguments can be addressed in the Circuit Family Court, the judgment ensures that any future jurisprudence on this question will not be confined to High Court-only cases. It sets the stage for more consistent, system‑wide development of the law.

5. Complex Concepts Simplified

5.1 Concurrent jurisdiction (High Court and Circuit Court)

“Concurrent jurisdiction” means that both the High Court and the Circuit Court have legal power to hear and decide divorce cases. A party can start a divorce in either court (subject to certain rules), and the case will be validly heard there.

Because of this, the question on transfer is not whether the High Court is the “only” court competent to hear the case—it plainly is not. Instead, the question is whether, in the particular circumstances, it is the more appropriate court.

5.2 Mandatory vs. discretionary transfer

• Mandatory transfer (s.38(2) 1996 Act):
  • If divorce proceedings concern land worth more than €3,000,000 and either party asks for transfer, then the case must be transferred to the High Court.
  • Key points:
    • Requires land (not just general assets).
    • Requires evidence (not bare assertion) of the land’s value.
• Discretionary transfer (s.22(8) 1961 Act):
  • The Circuit Court judge may order transfer to the High Court if:
    1. the case is “fit to be tried” in the High Court; and
    2. the High Court is the “more appropriate tribunal in the circumstances”.
  • This calls for a judgment-based, case-by-case assessment.

5.3 Beneficial ownership

“Beneficial ownership” refers to who actually enjoys the benefits of property (income, control, ultimate value), even if someone else holds the legal title.

Examples:

• If X holds shares in a company as trustee for Y, then:
  • X is the legal owner;
  • Y is the beneficial owner.
• In family law, a spouse may argue that:
  • although shares, bank accounts or houses are in the name of the other spouse’s parents or companies, they are held for that spouse’s benefit.

In M.K. v B.K., the wife claimed the husband had a beneficial interest in his parents’ company. The husband and his parents denied this, and documentation corroborated their denial. The Court did not decide who was right; it simply held that such contested, unproven allegations were insufficient to drive a transfer to the High Court.

5.4 Deed of Separation and “proper provision” on divorce

A Deed of Separation is a private agreement between spouses dealing with:

• living arrangements;
• maintenance;
• property division; and
• often succession rights.

However, in Irish law:

• The court must make “proper provision” for both spouses and children upon divorce.
• Under s.20(3) 1996 Act, the court must “have regard” to a separation agreement but is not bound by it.

Therefore, even a carefully drafted Deed does not prevent the court from revisiting assets and maintenance on divorce, especially if:

• disclosure was inadequate;
• the agreement was imbalanced or unfair; or
• circumstances have materially changed.

In this case, the Deed’s lack of full and final settlement language and missing disclosure provisions mean that its terms will be heavily scrutinised at trial.

5.5 Trust structure over the family home

Before the Deed of Separation, the parties owned the family home as “joint tenants”—a form of co‑ownership where each owns the whole and, typically, the survivor automatically inherits the other’s share.

The Deed:

• severed the joint tenancy; and
• transferred the husband’s half interest to trustees, to hold:
  • for the wife for her lifetime; and
  • then for the children as tenants in common in equal shares.

This is a relatively unusual structure in Irish family settlements. The Court accepts that its validity and implications (including possible variation under s.14 of the 1996 Act) may require careful legal argument, but stresses that such work is well within the competence of the Circuit Family Court.

5.6 Non‑party discovery

Non‑party discovery is a procedure whereby a person or entity not a party to the proceedings (such as a company or accountant) is ordered to produce relevant documents.

Here, the wife asserts that non‑party discovery from the companies will be needed to explore:

• the nature of the ex‑gratia payment;
• any hidden or indirect shareholding structures; and
• the true financial state of the business.

Jackson J notes that:

• no such application has been made yet; and
• the Circuit Family Court has “ample jurisdiction and procedural rules” to handle such applications.

6. Conclusion: Key Takeaways

M.K. v B.K. is a carefully reasoned, practical judgment that clarifies the law on transferring divorce proceedings from the Circuit Family Court to the High Court in cases involving alleged corporate interests and complex asset structures. The core messages are:

1. Mandatory transfer is narrow and evidence-based.
   • It applies only where the proceedings concern land worth over €3 million and where that is proved, not merely asserted.
   • Corporate shareholdings are not “land” for this purpose.
2. Discretionary transfer demands more than complexity or suspicion.
   • The Circuit Family Court is fully competent to deal with Deeds of Separation, trusts, family companies and contested beneficial interests.
   • The High Court will not be treated as the default or superior forum merely because of perceived complexity or tactical considerations.
3. Evidential rigour is essential.
   • Bare assertions about asset value or beneficial interests, particularly when contradicted by documents, are insufficient to justify a transfer.
4. Delay and proportionality matter.
   • Transfer motions that significantly delay resolution will be scrutinised.
   • Where a case can be fairly tried in the Circuit Court, it should remain there, and efforts should focus on expedition and substantive resolution.
5. Future inheritance and “foreseeable future” issues remain open—but in the Circuit Court too.
   • Questions about how anticipated inheritances and family business succession fit within s.20’s “foreseeable future” are acknowledged but left for the trial court.
   • Importantly, the judgment confirms that such issues can and should be addressed in the Circuit Family Court where appropriate.

In sum, the decision re‑balances the practice of transfer motions in family law, emphasising the centrality of the Circuit Family Court and insisting that jurisdictional escalation must be justified by concrete evidence and real necessity. It will likely serve as a benchmark for future disputes where family businesses and alleged beneficial interests are invoked as reasons to seek High Court determination.