B (P) v B (A)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 24 May 2012 |
| Neutral Citation | [2012] IEHC 616 |
| Court | High Court |
| Date | 24 May 2012 |
[2012] IEHC 616
THE HIGH COURT
BETWEEN
AND
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989
FAMILY LAW ACT 1995 S16
FAMILY LAW ACT 1995 S16(2)
FAMILY LAW ACT 1995 S16(1)
G (Y) v G (N) 2011 3 IR 717 19.10.2011 2011/22/5853 2011 IESC 40
MCM (S) v MCM (M) UNREP ABBOTT 29.11.2006 2007/36/7510 2006 IEHC 451
B (G) v B (A) UNREP ABBOTT 15.3.2007 2010/3/703 2007 IEHC 491
WELLS v WELLS 2002 EWCA CIV 476 2002 2 FLR 97 2002 FAM LAW 512
N v N (FINANCIAL PROVISION: SALE OF COMPANY) 2001 2 FLR 69
WHITE v WHITE 2001 1 AC 596 2000 3 WLR 1571 2001 1 AER 1 2000 2 FLR 981 2000 3 FCR 555 2001 FAM LAW 12 2000 97 43 LSG 38 2000 150 NLJ 1716
FAMILY LAW ACT 1995 S16(5)
FAMILY LAW
Judicial separation
Income of spouses - Property partnerships - Finances of foreign company - Possibility of increase in income - Earning capacity of spouses - Financial resources of spouses - Needs of spouses - Standard of living enjoyed by family prior to proceedings - Age of spouses - Length of marriage - Contributions of spouses - Inherited assets - Whether wife had connection to business - Gifts - Whether provision consistent with interests of justice - YG v NG [2011] IESC 40, [2011] 3 IR 717; McM v McM [2006] IEHC 451, (Unrep, Abbott J, 19/11/2006); GB v AB [2007] IEHC 491, (Unrep, Abbott J, 15/3/2007); N v N [2001] 2 FLR 69 and Wells v Wells [2002] Fam Law 512 considered - Family Law Act 1995 (No 26), s 16 - Orders made (2009/15M - Abbott J - 24/5/2012) [2012] IEHC 616
B(P) v B(A)
Facts: The applicant wife and the respondent husband had married in 1989 and there were three children of the marriage, all of whom remained in education and were dependant. Throughout the marriage, the husband had been involved in business and the wife had worked in the medical care sector in a neighbouring jurisdiction prior to her marriage and from 1993, permanently ceased to work outside the home. In granting a judicial separation, the Court made a number of provisions. In light of Y.G. v. N.G. [2011] 3 I.R. 717, it was conceded that the husbands wealth was inherited. Whilst that case determined that assets inherited by one spouse would not always be treated as though they were obtained by both parties in a marriage, Counsel for the wife laid particular emphasis on the higher standard of living enjoyed by the parties before the downturn and suggested property adjustment orders or such other arrangements as might be appropriate in respect of the private company shares of S. Ltd. Counsel for the wife also brought the attention of the court to decisions in relation to making postponed orders for provision in the event of a pickup and realisation of business, such as G.B. v. A.B. [2007] IEHC 491, Unreported, High Court, 15th March, 2007. Counsel for the wife proposed that the court would consider a transfer of shares of S. Ltd. or such other corporate entity as might be found by the court with suitable protection so as to prevent undue interference by the wife by having the husband hold the shares transferred to the wife for the benefit of the wife. Counsel for the wife argued that the wife had a connection to the business as follows: A. The wife accepted a moderate standard of living and made a sacrifice to ensure that the financial stability and viability of the business in the early stages of the marriage. B. The respondent"s business was and continued to be the primary source of the family assets. C. The respondent"s business the most valuable asset upon the judicial separation of the parties which occurred at a time of unprecedented difficulties. In setting out the factual differences between the Y.G. v. N.G. [2011] IESC 40, [2011] 3 I.R. 717 case and the instant case, Counsel for the husband argued that the uncontroverted evidence was that the respondent"s mother and father had set up S. Ltd. in 1990s. The respondent"s parents retired from the business and his father gifted the shares of his business to the respondent, his brother and sisters. Counsel for the husband submitted that gifted assets should be treated in a similar manner to inherited assets. Counsel for the husband submitted that in an open offer the husband had made proposals for providing mortgage free accommodation for the wife for the payment of maintenance and for provision for the applicant from this pension, and she submitted that that type of provision was mandated by the act in accordance with the Supreme Court decision in the case of Y.G. v. N.G. [2011] IESC 40, [2011] 3 I.R. 717 and to go further would be to engage in a redistribution of wealth. She argued that the first priority was to have proper accommodation, maintenance and security for the future for all parties, including the children. Finally, she argued that it was open to both parties to make an application for further relief on the hearing of a divorce as there was no agreement for consent containing a full and final settlement clause, and that such divorce application would be decided on general principles including the general principles set out herein.
Held by Justice Abbott that, on the evidence, that the circumstances of the marriage were such that it was appropriate that an order for judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989 ('the Act of 1989'), ought to be granted. In light Y.G. v. N.G. [2011], Justice Abbott stated that in relation to the submissions made it was concluded that provision in the case must be confined to provision of accommodation, maintenance and pension considerations with the usual provision regulating applications in respect of income earning capacity so as to avoid unnecessary costs and abuse of process and to provide an incentive for each party to do better. On the basis that the judicial separation order had already been made upon the approval of the sale of the family home the Court made the following provisions: 1. Sale of family home for the sum of €950,000. 2. Out of proceeds of family home sale of €950,000 after discharge of mortgage and sale costs, the sum of €500,000 to be paid to the wife. The balance of such proceeds (estimated to be €340,000) to be paid to the husband. 3. The husband to pay to the wife the sum of €1,500 per calendar month on the basis that the maintenance for the youngest daughter is €400 per month, and on the basis that the wife be separately assessed for income tax so that the gross sum to be paid was such as to ensure that the gross maintenance payable to the wife was such sum as will result in a sum net of tax and other deductions of €1,100 per month. 4. Pension adjustment orders on the basis of 99% to 1% in favour of the wife in respect of held pensions. 5. An order assigning the husband"s interest in any life assurance policies available for the securing of maintenance until age 65, and in the absence of available life assurance policies, the wife was at liberty to apply for such alternative order going towards provision of reasonable security for maintenance. 6. Custody arrangements for youngest child O., to remain as ordered by the court. 7. The court did not make an order extinguishing the share of either wife or husband in the estate of the other. 8. An order inviting the parties to nominate an arbitrator or mediator to decide upon or mediate any future disagreements between the parties. 9. The husband shall procure the payment of Voluntary Health Insurance ('VHI') or health insurance. 10. The proceedings shall be adjourned for the purpose of finalising pension adjustment orders and making such further orders in relation thereto as may be indicated by the terms of the pension schemes and to enable the parties to calculate for the court the gross amount to be paid to the wife in respect of her own maintenance so as to receive the net sum of €1,100 per month. 11. No order as to costs.
JUDGMENT of Mr. Justice Henry Abbott delivered on th e 24th day of May, 2012
1. The applicant wife and th e respondent husband (hereinafter referred to as th e wife and th e husband respectively) were married in a faith ceremony in a neighbouring jurisdiction on th e 13 th May, 1989. The husband was born on th e 8 th January, 1963 and th e wife was born on th e 29 th March. 1964.
2. There were three children of th e marriage. The eldest (a son) born on th e 12 th May, 1991, th e second eldest (a daughter) was born on th e 5 th July, 1993 and the youngest (a daughter) was born on th e 20 th March, 1998. All children are in education and are dependent.
3. The parties lived in th e city in this jurisdiction with their children for th e duration of th e marriage, until th e husband commenced to live apart in recent times, mainly with two of th e children. The husband has been a business man throughout his married life and was employed by and was variously a shareholder in what may be described as family businesses held with various siblings in varying proportions. The wife worked in medical care in a neighbouring jurisdiction prior to her marriage and from 1993, or thereabouts, permanently ceased to work outside th e home.
4. I am satisfied, on th e evidence in this case, that th e circumstances of th e marriage were such that it is appropriate that an order for judicial separation pursuant to th e Judicial Separation and Family Law Reform Act 1989 ("the Act of 1989"), ought to be granted, subject to th e following provisions being made for th e spouses.
5. I consider provision pursuant to s. 16 of th e Family Law 1995, ("the Act of 1995") as amended, and in particular, I consider th e criteria set out in subs. 2 of that section without...
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