C.Q. v N. Q
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 22 April 2016 |
| Neutral Citation | [2016] IEHC 486 |
| Court | High Court |
| Docket Number | [RECORD NO. 2013/50M] |
| Date | 22 April 2016 |
[2016] IEHC 486
THE HIGH COURT
Abbott J.
[RECORD NO. 2013/50M]
Family – Family Law (Divorce) Act, 1996 – Judicial Separation Settlement – Divorce – Guardianship of Infants Act 1964 – Reconciliation – Disproportion percentage – Voice of Child.
Facts: Following the judicial separation granted by the High Court, the parties now sought divorce by way of special summons issued by the applicant. The applicant contended that the respondent defaulted in the maintenance obligations. The respondent pleaded that the income from the respondent's business had deteriorated rapidly and therefore, the respondent had been unable to continue the significant maintenance. The applicant argued that the contracts for the judicial separation proceedings would be enforced, not from the contract itself, but from the order of the court ruling, and that in family law proceedings, the contracts would be reviewable by a court hearing an application for divorce by the same parties, subject to certain conditions.
Mr. Justice Henry Abbott held that the petition for a decree of divorce would be granted. The Court observed that there had been no reasonable prospect of reconciliation between the parties. The Court observed that the earning capacity of the parties had not been hampered by the martial responsibility. The Court granted stay on the accumulated arrears of maintenance until further order of the Court. The Court further observed that the consideration of complaints of the applicant of a change in proportionality on the one hand and the complaints of the respondent that the applicant on any of the view of the case would be getting a disproportion percentage had been balanced to cater to housing needs.
The applicant wife and the respondent husband were married to one another on the 16th day of September, 1989. They and all their children are domiciled and habitually resident in Ireland. There are five children of the relationship born between 1993 and 2003 all of whom are involved in full time education are more or less dependent. The husband is fifty-eight and the wife is some years younger. A degree of judicial separation was granted by the High Court (Mr. Justice O'Neill) on the 18th day of October, 2006, in respect of their marriage to one another. Further, the Court made orders ancillary to the degree of judicial separation in terms of a document of settlement which was signed by the parties on the 17th day of October, 2006. The parties now seek divorce by way of special summons issued by the wife on the 20th September, 2013.
The settlement provided for the payment of €3,000.00 monthly in maintenance, apportioned equally between the children. No maintenance was afforded to the wife as she was in receipt of a substantial income. The respondent also agreed to be responsible for educational expenses.
Of crucial importance is the provision of para. 5 of the order which provides as follows:-
‘An order pursuant to s. (10)(1)(a)(ii) directing the sale of the family home of the parties at [C.B.] on the terms set out below
(i) Messrs. [T.G.] shall be appointed as agents of the parties in the conduct of the sale. They shall advise the parties as to the manner of sale and the reasonableness of any offer or date. The parties agree that a reserve of €2,800,000.00 is to be set by the auctioneers. The family home shall not be placed for sale/option prior to the 1st February 2007, unless advised to the contrary by the auctioneers so appointed and shall be sold as practicable thereafter.
(ii) The parties' respective solicitors shall have joint carriage of sale Messrs. HS shall be lead solicitors in the sale
(iii) From the proceeds of sale the following distribution shall be made:
(a) €300,000.00 to [U.D.]
(b) Legal and auctioneer costs associated with sale.
The balance then remaining shall be distributed as to 66.66% to the applicant and 33.33% to the respondent.’
Orders were made pursuant to Guardianship of Infants Act 1964 in relation to the parties living in the same area, but in different houses when the house is sold, with the primary care or primary residence of the children being with the applicant in her home. Among the other usual type of provisions in the consent was para. 15 of the said order thereof, which is of particular relevance to these proceedings and relates to full and final settlement as follows:-
‘5. This agreement is accepted by the parties in full and final settlement of any and all issues arising upon the breakdown of their marriage to one another. They accept that by this agreement proper provision has been made for both the spouses and their children. The parties intend that an application for a decree of divorce will be made in due course. These terms shall bind the parties as the issue of proper provision. There should be no further ancillary orders made in these proceedings, save as maybe required to give continuing effect to this agreement or further regulate the issue of periodic maintenance.’
Very soon after the settlement, the husband purchased a house in the vicinity with the aid of a significant loan, taken out with his partner. Custody and access arrangements continued in accordance with the settlement and while the parties disagree on the extent of each of their involvement, it is fair to say that the husband retained a significant, beneficial and happy participation in the children's lives through the access arrangements, while their primary residence was undoubtedly with the wife. Where real difficulty arose was in relation to attempts to sell the family home in accordance with the settlement.
From the grounding affidavit of the wife of the 19th September, 2013, it is clear that although the reserved price in the settlement was €2,800,000.00, the parties likely believed the family home had a value of approximately €3,000,000.00 to €3.300,000.00, and the wife avers that there was an extensive marketing campaign over eight weeks, but no buyer emerged. In 2008 the respondent re-entered the judicial separation proceedings before this court for the purpose of having the court fix a revised market valuation. A bid of €2,400,000.00 was received in 2008, but the sale fell through. There was evidence to indicate that some query could possibly arise surrounding the boundary, but my conclusion is that there are no real title difficulties involved with the house and that the query in this regard would have been used as an excuse to withdraw from interest in the sale at a time when the property crash was beckoning.
In 2009 the court, with the consent of the parties, sanctioned sale of the house with the reduced asking price of €1,350,000.00 to €1,500,000.00, however still the house did not sell. It was averred that the matter lay fallow for a number of years until the proceedings were re-entered again in 2013 with the respondent seeking a reduction in the reserve to €1,100,000.00 for an immediate sale in the September market of 2013.
The wife sets out her case in relation to a significant aspect of making provision in these divorce proceedings in para. 16 of her grounding affidavit as follows:-
‘I say and believe that the house probably worth no more than €850,000.00 in the present market. The interest of the respondent's brother, [U.D.] in the family home was quantified at €300,000.00 in the October 2006 settlement. At the time this would have represented no more than 8% or 9% of the supposed market value of the property. Now €300,000.00 represents a third of the market value, or more. If Mr. [U.D.] were to be paid the sum of €300,000.00 out of the sale proceeds, this would altogether prevent this Honourable Court from making provisions for myself and our dependent children. I say and believe that it would be impossible to rehouse myself and the children from my share of the net proceeds of sale if the order of 2006 were to be implemented without review or adjustment. I say and believe that the fairness of the situation demands that the issue of the sale of the family home would be postponed until our youngest child, L, ceases her dependency.’
The wife further averred in her said affidavit that the respondent has honoured his maintenance obligations for the children throughout the period of separation until the date of the 19th September, 2013, but that in 2013 he refused to his son's fifth year school fees which were defrayed in full by the wife. The evidence at the hearing shows that the husband's income from his business deteriorated rapidly, and he remains in a valley, so to speak, whereby he was unable to continue the significant maintenance, although the wife points to the fact that he was able to make significant contributions to his pension in preference to paying maintenance for his children. Suffice to say that the husband at this stage is in a post depression income trough, and while he hopes that his business will improve so that he can resume paying maintenance, the improvement may be some time off. The wife on the other hand continued with her business and prospered, despite the depression, and was in a position to accumulate some savings.
The businesses of husband and wife although in the service industry generally, are both of a type which cannot be sold, they therefore do not have a capital value and hence do not contribute to the assets of the parties to be considered by the court in making provision for divorce in these proceedings.
Several main issues arise which are mixed issues of fact and law, which are required to be determined before a court proceeds in the ordinary way to consider the criteria directed...
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