F (N) v F (E)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 04 July 2007
• Neutral Citation: [2007] IEHC 317
• Docket Number: [No. 15 M/2005]
• Court: High Court
• Date: 04 July 2007

[2007] IEHC 317

THE HIGH COURT

[No. 15 M/2005]

F (N) v F (E)

IN THE MATTER OF THE FAMILY LAW ACT 1995

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

BETWEEN

N.F.

APPLICANT

AND

E.F.

RESPONDENT

FAMILY LAW REFORM ACT 1989 S15

FAMILY LAW REFORM ACT 1989 S17(1)

A (W) v A (M) 2005 1 IR 1

FAMILY LAW DIVORCE ACT 1996 S20

FAMILY LAW DIVORCE ACT 1996 S20(2)

FAMILY LAW DIVORCE ACT 1996 S20(1)

T (D) v T (C) 2002 3 IR 334

FAMILY LAW

Divorce

Full and final settlement clause - Maintenance into future - Separation agreement -Regard to prior settlement -- Medical and accommodation needs of applicant - Calculation of maintenance - Actuarial calculations - Life expectancies - Succession Act rights - Property adjustment order - Whether settlement final - Whether settlement fair distribution of physical assets of family - Whether applicant entitled to maintenance into future - A(W) v A(M) [2004] IEHC 387, [2005] 1 IR 1 and T(D) v T(C) [2003] 1 ILRM 321 considered - Judicial Separation and Family Law Reform Act 1989 (No 6), ss 15 and 17 - Family Law (Divorce) Act 1996 (No 33), s 20 - Divorce with financial relief granted (2005/15M - Abbott J - 4/7/2007) [2007] IEHC 317

F(N) v F(E)

Facts The applicant wife was married to the respondent husband in 1968. However, on 29 January 1991 a consent order was made by the Circuit Court granting a decree of judicial separation and providing for the maintenance of the applicant and one dependent child. A property adjustment order was also made in favour of the applicant effectively transferring the family home with four acres to her. The applicant accepted the said transfer in full and final discharge of the respondent's liability to provide accommodation for herself then and in the future. Furthermore and order and cross order extinguishing Succession Acts rights was made. The family home was subsequently sold by the applicant and at the time of these proceedings she was renting accommodation. Following the court order in 1991 the applicant experienced considerable difficulty in getting the respondent to pay her maintenance and ultimately an order was made discharging the order of maintenance by reason of the respondent's inability to pay same. At the time of the present proceedings the respondent appeared to have net assets in the region of ?1 million. The applicant now suffered from Parkinson's type disease and had at the time of the proceedings been in a nursing home for some months. The assets of the wife consisted of a sum on deposit in the bank in the region of ?100,000.

Held by Abbott J.: That the full and final settlement clause in this case related only to living accommodation. This case was dealt with on a need basis, from the point of view of the quantitative distribution of the assets of the husband. Having considered the facts of this case by reference to the matters set out in paragraphs (a) to (l) in subsection 2 of section 20 of the Family Law (Divorce) Act 1996, the respondent was ordered to sell premises referred to as PP and after discharge of capital gains tax and mortgage and sale costs, to lodge the proceeds on deposit in interest earning deposit in the bank on his undertaking to inform the bank that no payments are to be made out of the deposit save and except interest after DIRT to the respondent and otherwise only to the applicant or her representative in respect of her nursing home care calculated in accordance with this judgment. In addition the respondent should pay a lump sum of ?60,000 as a capital cushion to the applicant within one year of today's date. The periodical payment shall be increased by 15% per annum and are to be continued for the life of the wife or further order of the court. Both parties were order to pay their own costs.

Reporter: L.O'S.

Mr. Justice Abbott

1 The applicant wife was married to the respondent husband on 3^rd October, 1968. There were three children of the marriage none of whom are dependent. The parties lived on the family farm inherited by the husband and it appears that they ceased residing together in 1985.

2 On consent an order was made by the Circuit Court on 29^th day of January, 1991 pursuant to the Judicial Separation and Family Law Reform Act 1989 granting a decree of judicial separation and providing for the maintenance of the wife and one dependent child.

3 The following property adjustment order was made in favour of the wife pursuant to s. 15 of the 1989 Act

4 a "(a) that the family home free of all encumbrances and approximately four acres be transferred into the plaintiff's sole name as soon as practicable.

5 (b) That the plaintiff accepts the said transfer in full and final discharge of the defendant's liability to provide accommodation for herself (and the dependent children) now and in the future.

6 (c) That the plaintiff shall sell the said premises and shall be entitled to dispose of the said premises and to retain the net proceeds of sale."

7 Furthermore an order and cross order pursuant to s. 17(1) of the 1989 Act was made extinguishing Succession Acts rights. The result of the settlement was that the husband retained 70 acres of farmland which had been held with the house and it appears the husband managed to convert some outhouses in the farmyard for his living accommodation.

8 The farmland had been part of a greater farm area but the farming did not go well for the husband and it had been reduced by sale. After the settlement in 1991 farming did not seem to suit the husband anymore and he subsequently sold the farm and reinvested the proceeds to pursue business interests( it seems, sometimes, with no more success than in the farming). However in recent years the husband has built up a small but valuable property portfolio.

9 Since the date of settlement the wife has sold the family home, and with some or all of the proceeds of the family home subsequently and successively bought at least five new homes, on the sale of the last of which the wife retained the proceeds and commenced to rent a home. While the plaintiff explained that the change of home and frequent sales were caused by her wishing to establish contact with her own family and live beside them (either her extended family or on other occasions with her children), it is clear from the evidence that she did not act prudently from a financial point of view in relation to so many frequent changes. While a monetary gain was probably made in the case of all sales, as would be expected from a series of sales in a time of generally property rising values, it appears that the end result of the process of sales amounted to what in insurance parlance might be referred to as "churning" insofar as the equity or money now available to the wife is very significantly lower than the equity which would have been available in the family home originally transferred to her by the court order of 1991. As appears from this judgment, the husband may have net assets in the region of €1 million and I accept the submissions made that the price of the original family home and four acres, if retained by the wife, would now be a sum in the region of, and certainly not less than, a net €700,000.

10 After the court order of 1991, the wife experienced considerable difficulty in getting the husband to pay her maintenance. There followed a considerable amount of litigation arising from the wife seeking to enforce payment of maintenance and the husband's alleged inability to pay, resulting in five orders as follows:

11 1. Circuit Court order of 11^th November, 1991 - Devally J.

12 2. High Court order of 4^th February, 1993 - Costello J.

13 3. High Court order of 15^th August, 1994 - Flood J. granting a mareva injunction and

14 4. High Court order of 25^th November, 1994 - Costello J. dismissing the mareva injunction

15 5. Ultimate order of McGuinness J. discharging the order of maintenance by reason of the husband's inability to pay same.

16 The husband has not paid maintenance since that date and it is estimated by the parties that if maintenance had continued to be paid the sum would have amounted to €59,000.

17 I find that in strictly legal terms, having regard to the litigation history, this sum of €59,000.00 is not due as a debt, but I nevertheless bring it into consideration when considering all the matters required by the provisions of the 1996 Act.

18 The wife now suffers from a Parkinson's type disease leaving her quite immobile and partially dependent on a wheelchair. She is very liable to fall and needs assistance. Her speech is slurred and she is sometimes prone to fast speech. Prior to the hearing of the case (which commenced in January of 2007) the plaintiff had been in a nursing home for some months, and I am satisfied that she is likely to continue to require the services of a nursing home. By reason of the progression of her disease, leading to difficulty in swallowing, immobility, and progressive difficulty with speech, she will need even higher levels of care in the nursing home context. After a series of questions and correspondence by the parties to her medical advisor, it seems that her life expectation is reduced to between five and seven years. I have had the benefit of a number of careful and detailed medical reports from her specialist medical advisor dealing with her Parkinson's type disease, from which it appears that the life expectation figure is based on median expectations over a whole population.

19 The full and final settlement clause in this case relates only to living accommodation. However, it is significant that in the settlement under the 1989 Act Succession Act rights were mutually extinguished. The settlement was thus to be regarded as full and final in relation to the capital asset provision but not in relation to the obligation of the husband to pay maintenance to...