A.Y. v B.Y.
| Jurisdiction | Ireland |
| Judge | Mr Justice Binchy |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] IEHC 411 |
| Docket Number | [2007 No. 48 M] |
| Court | High Court |
| Date | 28 March 2018 |
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989
AND IN THE MATTER OF THE FAMILY LAW ACT 1995
AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996
[2018] IEHC 411
[2007 No. 48 M]
THE HIGH COURT
FAMILY LAW
Family – Divorce – Settlement – Order made by way of settlement – Honouring of terms – Financial non-disclosure
Facts: The parties were married in 1986, and after having two children had divorced. The respondent was a successful businessman with extensive assets in the State and elsewhere. In 2011 the parties agreed a settlement, but the applicant contended that the respondent had not complied with the settlement terms and had failed to make proper disclosure. She now applied to the High Court for reliefs, the Court hearing said application with a motion on behalf of the respondent to vary the settlement.
Binchy J stated that the applicant would be able to enforce the terms of the settlement order unless the Court was minded to vary the settlement itself. Having considered the application to vary, the Court was persuaded that the parties’ respective circumstances justified varying the settlement to relieve the respondent of certain obligations. In relation to the alleged non-disclosure, it was apparent from the evidence the respondent had made sufficient disclosure to the applicant’s advisors.
On 14th January, 2011, the parties entered into written terms of settlement of these proceedings (the ‘terms of settlement’). This was following upon the commencement of the trial of the proceedings which by that time had been at hearing for three days on 11th, 12th and 13th January, 2011. The terms of settlement were detailed and comprehensive, and were set out in a document running to some thirteen pages. They were made an order of this Court on 17th January, 2011 (the ‘Order’).
On 19th September, 2014, the applicant issued a motion seeking reliefs in the following terms:-
‘(i) an order pursuant to O. 44, r. 1 of the Rules of the Superior Courts, 1986 (As Amended) directing that the respondent be brought before this Honourable Court at a time and date to be specified to answer his contempt of court arising from his wilful failure to comply with the terms of the Order of this Honourable Court (Mr. Justice Abbott) dated 17th January, 2011.
(ii) An order committing the respondent to prison arising from his failure to comply with the terms of the Order of this Honourable Court (Mr Justice Abbott) dated 17th January, 2011.
(iii) An order directing the respondent to make further and better disclosure, on oath, concerning any security entered into by him during the period in which this Honourable Court was seized of the proceedings and, in particular, a purported security dated 22nd October, 2010 between the Bank A, the respondent and his brother.
(iv) An order determining whether or not the respondent has occasioned an information deficit in respect of his financial disclosure to this Honourable Court in respect of the within proceedings and the order of 17th January, 2011.
(v) An order directing the respondent to disclose to this Honourable Court and the applicant any sums or amounts due and owing to his creditors that he had discharged in part or in full since 17th January, 2011, the identity of such creditors and the dates upon which such was made.
(vi) If necessary and further to the orders sought herein, an order pursuant to para. 34 of the Order of this Honourable Court dated 17th January, 2011 re-entering the proceedings and providing pursuant to s. 22 of the Act of 1996, for such variation of the terms of the said order or such other orders as will make proper provision for the applicant.
(vii) The directions of this Honourable Court as to the nature and extent of the matters arising herein that may be disclosed to NAMA or NALM Ltd and whether or not any of the aforesaid parties ought to be joined as notice parties herein and to such extent and in respect of such matters as may be deemed necessary.
(viii) Further or other relief;
(ix) Costs.’
This judgment is concerned with the motion described above (the ‘applicant's motion’) and also with a motion subsequently issued on behalf of the respondent (the ‘respondent's motion’) on 10th April, 2015. Before dealing with those motions any further, it is useful to set out some background information concerning the parties, and their relationship. The parties were married on 12th February, 1986. The applicant, who at the time the hearing of these motions commenced, was in her 72nd year, had previously been married and there are three children of that marriage, T., aged 50, U., and V.. I was not informed as to the ages of U. and V. but they are mature adults.
The parties themselves have two children, D1. is twenty years of age and D2. will shortly be seventeen years of age. The Court has heard evidence and concerns expressed in the course of the hearing herein, relating to D1. and D2., which it is neither necessary nor appropriate to set out in detail, as to the legal status of and inheritance rights of D1. and D2..
The respondent has been a very successful businessman, with extensive interests both in the State and in two other jurisdictions. His main business activities outside Ireland have been in a country which I will refer to as X.. In the other jurisdiction outside Ireland, which I will refer to as H., he owns, together with his brother, valuable lands (the ‘H.’ lands). According to a memorandum from Bank A exhibited in the proceedings and dated 14th December, 2009, the respondent had submitted a statement of affairs to that bank indicating that he had assets of €128 million at that time, but that this was down from €240 million in 2007. While I cannot be certain from this document, it is very likely that this is a reference to the net worth of the respondent and not simply a reference to his assets without any regard to his liabilities.
At the commencement of the hearing of these motions the respondent was aged 64 years. He remarried in 2016, and has a child from that relationship who will be eleven years of age this year. Both of the parties live in Ireland. While I will be dealing in more detail with the assets of the parties, suffice to say for now that the applicant resides in a substantial period residence, surrounded by substantial grounds some twelve and a half acres of which have significant development potential and are zoned for residential development. There are also four high quality modern residences within the grounds of the family home which yield the applicant a rental income. I will refer to this entire property as the ‘Family Home’, but where the context requires it, I may refer to individual parts of that property, such as the development lands, by which I mean the lands within the Family Home that are zoned for development. The Family Home is subject to a security originally given to Bank A, but which was taken over by NAMA. The loan related to the security is of the order of €5.9 million, having reduced from €6.9 million at the time of the settlement of these proceedings in 2011. The respondent lives with his wife and their child in rented accommodation.
The applicant's motion was grounded upon her affidavit of 19th September, 2014. In general terms the applicant complains firstly, that the respondent had not, as of the date of the affidavit, honoured specific financial obligations undertaken by him to the applicant in the terms of settlement and, secondly, that the respondent caused a serious and material non disclosure of relevant financial information in the course of the proceedings leading up to terms of settlement and the making of the Order. The non-disclosure alleged concerns a facility letter dated 28th October, 2010 issued by Bank A to the respondent's brother and about which the applicant says she knew nothing at the time that she entered into the terms of settlement. There was some confusion about this letter, because NAMA initially informed the applicant that a facility had issued to the respondent on 22nd October, 2010, which does not appear to have been the case. In any case, the applicant says that she only became aware of this facility letter when it was referred to in a letter sent to the applicant by NALM dated 8th September, 2014. The applicant's concern is that NAMA/NALM are relying upon this facility letter to support an argument that the mortgage granted by the applicant and the respondent to that bank over the Family Home secures not just liabilities of the applicant and the respondent relating to the Family Home, but also all other liabilities of the respondent to that bank that were acquired by NAMA. The applicant asserts that the failure by the respondent to disclose this letter before the completion of the terms of settlement amounts to a serious and material non-disclosure of relevant financial information, and she asserts that ‘accordingly, a pertinent information deficit may arise in the making of the Order and terms settlement of 17th January, 2011.’
I set out below a summary of the key provisions of the terms of settlement, as well as the specific complaints of the applicant as regards non compliance by the respondent with the same. The paragraph numbers referred to the corresponding paragraph numbers in the terms of settlement:-
(1) A decree of divorce pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act, 1996;
(2) An order pursuant to the provisions of s. 13(1)(a)(i) of the Family Law (Divorce) Act, 1996 directing the respondent to pay to the applicant the sum of €12,916 per month for her ongoing maintenance and support. The respondent has complied with this obligation to date.
(3) An order pursuant to the provisions of s. 13(1)(a)(ii) of...
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