C v C

• Jurisdiction: Ireland
• Judge: O'Higgins J.
• Judgment Date: 25 July 2005
• Neutral Citation: [2005] IEHC 276
• Court: High Court
• Date: 25 July 2005

[2005] IEHC 276

THE HIGH COURT

[No: 6M/2004]

C v C

BETWEEN

C.

APPLICANT

v.

C.

RESPONDENT

Judicial Separation and Family Law Reform Act 1989 s3

Judicial Separation and Family Law Reform Act 1989 s2(1)(a)

Judicial Separation and Family Law Reform Act 1989 s2(1)(b)

Judicial Separation and Family Law Reform Act 1989 s2(1)(f)

Family Law Act 1995 s47

T v T 2002 3 IR 334

Wachtel v Wachtel 1973 Fam 72

Bromley on Family Law 7th ed p.841

Abstract:

Family law - Judicial separation - Financial provision - Lump sum - Periodic payments - “Ample resources” cases - Proper provision - Statutory test and considerations - Property adjustment order - Conduct of parties - Whether so obvious and gross as to preclude court from disregarding it - Judicial Separation and Family Law Reform Act 1989, section 20(2)(i).

Facts: section 20 of the Judicial Separation and Family Law Reform Act 1989 provides, inter alia, that, in deciding what is proper provision for the parties consequent upon a decree of judicial separation, regard should be had to, inter alia, the contributions which each of the spouses made to the welfare of the family, the conduct of the parties if it would be unjust to disregard it and the standard of living enjoyed by the family. The applicant entered into a relationship with another woman and applied for a decree of judicial separation and the respondent counter-claimed for ancillary financial relief. She alleged that the conduct of the applicant, in, effectively, abandoning the family, should be taken into account by the court when making financial orders. The parties had significant assets and income.

Held by O’Higgins J in ordering that the applicant provide to the respondent the sum of Eur3.3 million for the purchase of a home in keeping with the standard of living to which she had been accustomed in her married life, Eur240,000 net per annum maintenance for herself and Eur20,000 for each of the dependant children and that the respondent transfer her shareholding in the company to the applicant that, in arriving at a decision in relation to proper provision, the court was required to take into account a number of specific factors as set out in the Act of 1989 which factors enjoyed no hierarchy vis-à-vis each other and that the importance of each factor could vary substantially from case to case. In the present case, the nature of the applicant’s business enabled him to be around the home more than in similar cases and was a factor to be taken into account in assessing the extent to which the presence of the respondent as the principal homemaker enabled the applicant to generate the income. In those circumstances, the applicant’s presence in the home was not a factor to which any great significance could be attached, the applicant’s ability to earn an income not being dependant in any significant way on the respondent assuming the role she did.

That section 20(2)(i) of the Act of 1989 obliged the court, when deciding what financial orders to make as would lead to proper provision for both parties, to take account of the conduct of the parties where it would be unjust not to do so, which was a different concept than that of reparation of damage done by such conduct. The court should not increase the financial provision which it would otherwise make to one of the parties save in cases where misconduct on the part of the other had been obvious and gross.

Reporter: P.C.

1 Judgment of O'Higgins J. dated the 25th day of July, 2005.

2 By way of special summons dated 27th January, 2004, the applicant instituted proceedings under s. 3 of the Judicial Separation and Family Law Reform Act, 1989 seeking judicial separation pursuant to s. 2(1)(b) and/or 2(1)(f) of the Act and seeking ancillary relief. On the 8th day of April, 2005, the respondent counterclaimed, seeking in turn a decree of judicial separation pursuant to s. 2(1)(a), 2(1)(b) and/or 2(1)(f) of the Act and also seeking custody of the children and for ancillary relief.

The facts

3 The applicant and respondent were married to one another on 31st October, 1987. They have four children û J. (born in October 1988), C. (born in May 1990), I. (born November 1991) and O. (born in January 1995).

4 When the parties married they had known each other for a period of about nine years. After the marriage they lived in T. Farm until the year 2003. The farm was adjacent to a manor house and estate which included the business. The manor house was vacant between 1975 and 1986 and occupied sporadically from that time until 2003 although more fully in the later years. From 2001 until the death of the applicant's father in 2003 the applicant's parents lived virtually on a full time basis in the manor house.

5 During the marriage the source of income of the parties was the income from the souvenir shop adjacent to the castle, paid through a company. They had a limited income from T. Farm. In addition there was a small rental income from the applicant's property in Dublin, and for a time, income from a house in Waterford owned by the respondent. The applicant also derived some income from Lloyds of London as an underwriter. This income ceased sometime around 1990/1991 following losses which the applicant states amounted to over Stg.£1,000,000. In addition, he said he owed a sum of £79,000 but settled his debt for a sum of half of that amount. The respondent suggested that in reaching this compromise the applicant relied on a document showing that he had given his remainder interest in the manor house and estate to his wife and family. She also was of the view that the document was used to help compromise a much larger sum than £79,000. However, this document has not been produced in court and the respondent is not maintaining in these proceedings that she has any legal interest in the manor house and estate. The applicant recalls some discussion about some document intended to demonstrate to Lloyds that the property was not in his sole name, but said that the matter did not proceed further. He does not believe that any such document was in fact shown to Lloyds. In addition, there was a small rental income from an apartment in Dublin.

6 In the early 1990's relations between the applicant and his father became strained and subsequently litigation ensued between them. The applicant was excluded from conducting farming on the estate at that time although he continued to work on T. Farm.

7 The strain of the litigation, the losses incurred at Lloyds, the shortage of money and the necessity to borrow money from the bank were all factors that the husband felt impacted on the happiness of the marriage at various times. The nature, extent and costs of various alterations to T. Farm were also a source of friction between the parties. The applicant drank to excess and this exacerbated the difficulties. On the advice of his wife he attended a psychiatrist for his drinking problem in 1997, but only on two occasions. At this time the applicant felt his marriage was under severe pressure although his evidence was that it was under some strain prior to this. The respondent's view of the marriage was quite different. She described the marriage as being a happy one up until the time of its break up in December 2003. Despite the applicant's drink problem, she said that the couple loved one another and were devoted to each other and the children. She denies that there was any friction caused by lack of finances. It is difficult to reconcile her evidence of a happy marriage with the fact that on a least two occasions the Gardaí were called to the house to deal with serious domestic disputes. There was evidence of physical assault after one of those incidents the details of which were given to the court by the respondent. While it is not unusual that there may have been quite different perceptions to the happiness of the marriage, I accept the evidence of the applicant in relation to the facts which he said contributed to putting the marriage under strain. I believe there was a shortage of money and that was a concern for both parties. The fact that in the early 1990's the respondent cashed in an insurance policy to assist in paying debts underline this fact. In 2003, there were discussions between the parties about making joint wills and about putting the property in joint names. The applicant said that the respondent wanted the property put in joint names and was unhappy when he refused to comply with her wishes. The respondent, however claims that the applicant agreed to put his property into their joint names and also agreed joint wills should be drawn up by the parties. She told the court that such discussions were with a view to protecting the assets against the possibility of the applicant unwisely investing the monies abroad, or again becoming a member of Lloyds, where he had incurred substantial loses in the past. This explanation is hard to reconcile with the respondent's own evidence that there was already in existence a marriage settlement by which the applicant's property had been made over to her and the children. If that were true, it would be unnecessary to put the properties into joint names to protect the interests of the children; in fact such actions would be against their interests. In the course of evidence the respondent also said that her motivation was "to be fair" to her husband and to give some property back to him. This assertion does not make any sense in the context of the respondent's expressed anxiety to protect the assets against undesirable investments by him. The evidence of the respondent in this topic is contradictory and unsatisfactory. However I am satisfied that she was not in any way trying to mislead the court, but it is clear that throughout the case, and particularly in her own evidence, she was...