O'C. -v- O'C., [2009] IEHC 248 (2009)

Docket Number:2007 37 M
Party Name:O'C., O'C.
Judge:Dunne J.








  2. O'C.RESPONDENTJUDGMENT of Ms. Justice Dunne delivered on the 14th day of May, 2009

The applicant herein brought proceedings seeking a judicial separation commenced by special summons issued on the 23rd May, 2007. The proceedings were listed for Thursday 7th February, 2008, and on that date a settlement was announced to the court and orders were made on foot of the terms of that settlement. I will refer to the terms of that settlement shortly.

The parties herein were married on the 22nd July, 1988, and there were six children of the marriage. The eldest of those children was born on the 20th July, 1989 and the youngest was born on the 26th June, 1998. Of the children the four youngest children reside with the applicant and the two older children reside principally with the respondent.

At the time of entering into the settlement, the parties had a number of properties and the settlement contemplated a transfer of various properties from one party to the other. The family home is a property known as Cluain Ard. There is also a property known as The Rivers. In addition to those properties, the parties were the joint owners of a commercial premises which was held subject to a loan in favour of Anglo Irish Bank Plc. That property was registered solely in the name of the respondent, but it was acknowledged by him that the parties were joint beneficial owners of that property. The parties had a holiday home, known as The Billows. There was also an apartment owned by the parties at The Dell. There was a computer company in which the applicant had an interest as did her parents.

The settlement made provision for the transfer of the various properties I have referred to above. There were also arrangements made in relation to the payment of maintenance and also the payment of a lump sum, I will deal with those matters subsequently.

The principal issues in the hearing before me relate to property adjustment orders made pursuant to s. 9(1) of the Family Law Act 1995. The settlement required the respondent to transfer to the applicant his legal and beneficial interest in the property known as The Rivers to the applicant free of encumbrance. The respondent was to discharge the existing mortgage on that property and to vacate the property by no later than the 1st October, 2008. The applicant was ordered by means of a property adjustment order pursuant to s. 9(1) of the Family Law Act 1995, to transfer to the respondent her legal and beneficial interest in the family home, Cluain Ard. The order provided that the applicant was to have the right to reside in the family home to the exclusion of the respondent until the 1st October, 2008. She was to vacate those premises not later than that date. In addition to those orders, orders were also made directing the applicant to transfer her legal and beneficial interest in the property known as The Billows; the commercial premises; her shareholding in the computer company and she further agreed to procure the transfer of her parents' shares in that company. A declaration was also made that the respondent was the sole legal and beneficial owner of two other properties including The Dell. One of the other provisions of the settlement noted that the applicant was to facilitate the respondent in preparing the family home for sale and she agreed to provide access to the premises and gardens and agreed to the placing of that property on the market. It was also agreed that in the event of a sale, the applicant was to vacate the premises to facilitate the closing of the sale of that property.

As can be seen from the above, it was contemplated that the terms of the settlement would be complete on or before the 1st October, 2008. A key element was the removal of the applicant from the family home to the property known as The Rivers, which property was to be mortgage free.

The applicant has complied with her obligations under the terms of the settlement save for the transfer of the family home. She has transferred her interest in The Billows to the respondent, her shares in the company and she procured the transfer of her parents' shares in the company. The respondent has also had the benefit of the declarations as to his beneficial interest in a number of properties made pursuant to the settlement.

There are some issues in relation to the maintenance required to be paid by the respondent to the applicant and it is also the case that the respondent has not discharged a sum of 20,000 which was to be paid to the applicant by the respondent by way of lump sum payment.

One of the issues that arose at the outset of the hearing before me was whether or not the hearing should take place by way of hearing on affidavit or by way of oral evidence. I indicated at the outset that I would reserve my position in relation to that aspect of the matter in circumstances where neither party had given any indication to the court that the matter ought to be heard on oral evidence and neither party had served notice of intention to cross examine the other party on the affidavits sworn herein. In the event, as the hearing progressed, it became clear that there were less issues of conflict between the parties than might have been anticipated and it seemed to me to be unnecessary to hear oral evidence in respect of the applications before the court save in respect of one issue which I deal with later.

I should briefly refer to the various applications before the court. Three notices of motion were before the court. The first of those was a motion seeking the attachment and/or committal of the respondent for his failure to comply with the terms of the consent order made herein on the 7th February, 2008. That notice of motion was issued by the applicant on the 19th November, 2008. In addition to that relief the applicant sought a number of further orders designed to give effect to the outstanding terms of the settlement. A number of affidavits were sworn by both parties on foot of that motion. A further motion was then issued by the respondent, in which he sought to set aside the ancillary orders made herein on the 7th February, 2008, or alternatively reviewing the ancillary orders or in the alternative, an order pursuant to s. 18 of the Family Law Act 1995, discharging and/or varying the ancillary orders. In addition, the respondent sought an order pursuant to s. 9 of the Family Law Act 1995, directing the applicant to transfer to the respondent such property or properties as to the court seemed just and equitable. The respondent also sought a lump sum payment from the applicant to the respondent. The final notice of motion was a motion issued on behalf of the applicant seeking an order pursuant to s. 9(1) of the Family Law Act 1995, directing the respondent to transfer the entire of the interest, legal and beneficial held by him in the family home.

Both parties exchanged affidavits of means. The affidavit of means of the respondent herein was sworn on the 13th March, 2009. In the course of that affidavit, the respondent has listed a series of assets and has also set out details in relation to his liabilities. The position painted by the affidavit of means is one of extreme financial difficulty. It is clear from the affidavit of means that the financial position of the respondent is critical. The commercial premises referred to above is currently valued at approximately 7m. There is a loan outstanding in excess of 9.5m due to Anglo Irish Bank. A further property is valued at 250,000 with a loan outstanding to Anglo Irish of 1.3m. The property known as The Billows has a value of approximately 650,000 with a loan outstanding of 61,500 approximately. The property known as The Rivers has a loan outstanding of just over 1m while it retains a value of approximately 650,000. The value of the...

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