F (N) v F (E)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 471
• Judgment citation (vLex): [2008] 12 JIC 1920
• Court: High Court
• Date: 19 December 2008

[2008] IEHC 471

THE HIGH COURT

[No. 15 M/2005]

F (N) v F (E)

IN THE MATTER OF THE FAMILY LAW 1995 AND

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

BETWEEN

N. F.

APPLICANT

AND

E. F.

RESPONDENT

F (N) v F (E) UNREP ABBOTT 4.7.2007 2007 IEHC 317

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(A)(i)

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(B)(i)

FAMILY LAW (DIVORCE) ACT 1996 S13(1)(C)(i)

FAMILY LAW (DIVORCE) ACT 1996 S19(1)

FAMILY LAW (DIVORCE) ACT 1996 S18(10)

FAMILY LAW (DIVORCE) ACT 1996 S18

FAMILY LAW (DIVORCE) ACT 1996 S14(5)

FAMILY LAW (DIVORCE) ACT 1996 S19

TRUSTEE ACT 1893

K (A) v K (J) 2009 1 IR 814 2008/31/6726 2008 IEHC 341

THWAITE v THWAITE 1982 FAM 1 1981 3 WLR 96 1981 2 AER 789

FAMILY LAW (DIVORCE) ACT 1996 S20(2)

FAMILY LAW

Divorce

Execution - Order for sale of property - Change of circumstances including dramatic fall in value of property - Application to appoint receiver for purpose of execution of order - Application for variation of order - Jurisdiction to vary executory order - Test for determining whether order might not be enforced - Whether appropriate to execute order - Whether appropriate to vary order and, if so, on what terms - Thwaite v Thwaite [1981] 3 WLR 96 distinguished; AK v JK [2008] IEHC 341, [2009] 1 IR 814 approved - Trustees Act 1893 (56 & 57 Vic, c 52) - Judicial Separation and Family Law Reform Act 1989 (No 6), ss 16 and 18 - Family Law Act 1995 (No 26) - Family Law (Divorce) Act 1996 (No 33), ss 13, 14, 18, 19 and 20 - Order varied (2005/15M - Abbott J - 19/12/2008) [2008] IEHC 471

F(N) v F(E)

1 JUDGMENT of Mr. Justice Abbott delivered on the 19th day of December, 2008 (No.2)

2 1. Pursuant to judgment of this Court delivered on the 4 ^th July, 2007, ( F. v F. [2007] IEHC 317) an order was made by the court on the 25 ^th July, 2007, the material points whereof are set out as follows:-

3 2 "1. Pursuant to Section 13(1) (a) (i) of the Family Law (Divorce) Act, 1996 the Respondent shall pay to the Applicant the sum of €3,146.13 per calendar month in advance for her support and benefit. The first such payment shall be on the 1 ^st day of July 2008 and the Court doth direct that these payments shall continue for the lifetime of the Applicant. The Court further directs that such periodical payments shall be increased by 15 % per annum with the first such increase to be on the 1 ^st day of July 2009.

4 2. that payment of the said sum of €3,146.13 and the increased amount(s) shall be by standing Order direct to the bank account of the Applicant, the name and number of which are to be supplied by the Applicant at least six weeks in advance of the commencement of the payments.

5 3. Pursuant to Section 13(1)(b)(i) of the Family Law (Divorce) Act, 1996 the Respondent is directed to secure to the Applicant herein payment of the periodical payments and lump sum pursuant to Section 13 (1)(a)(i) for the lifetime of the Applicant as provided for in the terms of this Order over the Respondent's legal and beneficial interest in 11 P in the County of the City of Dublin and in the proceeds of sale of same

6 4. Pursuant to Section 13(1)(c)(i) of the Family Law (Divorce) Act, 1996 the Respondent herein is directed to pay to the Applicant Spouse the lump sum of €60,000.00 on or before the 4 ^th day of July 2008 said payment to be made through the Applicants Solicitor's herein.

7 5. Pursuant to Section 19(1) of the Family Law (Divorce) Act, 1996 the Court orders the sale of the entire legal and beneficial interest in the premises know as 11 P, in the County of the City of Dublin together with the following consequential or supplementary provisions in respect of the sale as set out hereunder:

8 i i. The respective Solicitors for the Parties in these proceedings to have joint carriage of sale.

9 ii ii. The parties have agreed an auctioneer for the sale of the property.

10 iii iii. The property to be sold at a reserve of €600,000.00 and the parties to accept the advice and recommendation of the auctioneer in respect of any reduction of same in respect of the manner of sale and in respect of the best possible price to be obtained.

11 iv iv. The sale of the said property to have closed on or before the 4 ^th day of July 2008.

12 v v. The Respondent is directed to satisfy any Judgement (and/or Judgement Mortgages) in relation to the said property at 11 P other than any Judgment and/or Judgement Mortgage or charge in favour of the Applicant herein

13 vi vi. After discharge of any Judgment Mortgage or Mortgages secured over the property together with any sale costs and legal costs of sale, the net proceeds of sale shall first be held in the Client account of the Solicitors for the Respondent, on their undertaking not to release the monies to the Respondent or any other person pending payment of any Capital Gains Tax due on the disposal of 11 P and upon payment of the said Capital Gains Tax the net proceeds of sale shall be thereafter immediately lodged in an interest bearing deposit account, the said account to be registered in the sole name of the Respondent herein.

14 vii vii. An Order lifting the In Camera Rule to permit the Respondent's Solicitors who shall notify the Manager of the Financial Institution prior to and/or on the opening of the said deposit account of the terms of this Order and shall furnish a copy of same to such financial institution.

15 6. The Court herein notes the undertaking of the Respondent (and the Respondent so undertakes) to inform the said financial institution that no payments are to be paid out of the said deposit account during the lifetime of the Applicant other than the periodical payments made in respect of the Applicant's nursing home care, as herein before provided for, and interest after DIRT with said interest falling due to the Respondent and which the Respondent is entitled to receive payment of.

16 For the avoidance of any doubt, the Manager of the financial institution in which the money is held on deposit is to be informed that no withdrawals from this account are to be permitted save the periodical payment by standing order to the Applicant's bank account, during the lifetime of the Applicant, and discharge of the €60,000.00 lump sum through the Applicant's Solicitors and such sums as represent interest, after DIRT, due to the Respondent.

17 The Applicant, personally, through her Solicitors or other nominated agent, is to receive copies of all statements and correspondence in respect of this bank account.

18 7. The Respondent is hereby restrained from drawing on, assigning, charging or otherwise dealing with the principal sum, being the net proceeds of sale of 11 P as set out hereinbefore in this Order, during the lifetime of the Applicant.

19 The Respondent is hereby permitted, only with liberty of the Court, to have recourse to the principal sum, being the net proceed of sale of 11 P, for the discharge of his own costs but only after exhausting other moneys on deposit or available to him.

20 8. In the event of the Applicant pre-deceasing the Respondent, the lump sum payment of €60,000.00 as provided for in paragraph four shall, if not already paid to the applicant during her lifetime, be paid to her estate. The periodical payment by way of standing order to the Applicant's bank account shall cease as at the date of the Applicant's death and any remaining balance in the hereinbefore referred to deposit account, if any, shall be payable to the Respondent.

21 In the event of the Respondent pre-deceasing the Applicant the principal sum of €600,000 being the net proceeds of sale of 11 P, or the balance of the said principal sum thereof as hereinfore set out in the Order, is to remain intact during the lifetime of the Applicant.

22 9. The Court directs that all periodical payments payable to the Applicant shall continue during her lifetime and that the lump-sum payment of €60,000 shall be discharged within the time limits as set out hereinbefore in the Order and in the event of the Respondent pre-deceasing the Applicant, such periodical payments and/or lump sum payment shall be paid to the Applicant by the Personal Representatives of the Respondent, after any costs reasonably incurred and/or taxes deducted by such Representatives, pertaining to the administration of the Estate of the Respondent. On the death of the Applicant any sums remaining to the credit of the deposit account from which the said periodical and/or lump sum payments were paid, shall pass to the Personal Representatives of the Respondent for the benefit of his estate.

23 10. In the event that the Respondent fails, refuses or neglects to provide the said undertaking as provided for herein, or in the event of any default whatsoever in relation to the payment of the said periodical and/or lump sum payments, the Court directs that the net proceeds of sale of the said premises then remaining be paid to the Applicant's Solicitors, who shall hold the monies on trust in an appropriate interest bearing account for the Respondent and administer the said periodical and/or lump sum payment to the Applicant. In this event, the said Applicant's Solicitors shall be paid fees of 2% per annum in respect of the Trustee fees, such payments to be deducted directly from the account on presentation to the Respondent through his Solicitors of an appropriate invoice.

24 11. Pursuant to the provisions of Section 18(10) of the Family Law (Divorce) Act, 1996...