G. v G., [2011] IESC 40 (2011)

Docket Number:271 & 272/09
Judge:Denham C.J.
 
FREE EXCERPT

THE SUPREME COURT[Appeal No: 271 & 272 of 2009]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Finnegan J.

Between/

Y.G.Applicant/Respondent

and

N.G.Respondent/Appellant

Judgment delivered on the 19th day of October, 2011 by Denham C.J.

  1. This is an appeal by N.G., the respondent/appellant, husband of the respondent, referred to as "the appellant", from the judgment and order of the High Court (Abbott J.) delivered on the 12th December, 2008. Y.G., the applicant/respondent, wife of the appellant, is referred to as "the respondent" in this appeal.

  2. The appellant and the respondent were married to each other on the 4th February, 1977.

  3. At the start of the marriage, the parties took up residence in a house inherited by the appellant from his aunt and uncle. The respondent came to the marriage with £3,000 savings, and the parties both ran a garage and a farm in the early years of their marriage.

  4. The appellant began to pursue an interest in property development, and was involved in building and selling houses in an estate developed by a company, referred to as C.P. Limited.

  5. There were no children of the marriage. The respondent had a miscarriage of twins six months into the pregnancy in 1978, which caused her great distress.

  6. The parties separated in 1995.

  7. The parties entered into a separation agreement on the 22nd August, 1996. The appellant agreed to pay to the respondent £100 per week for an initial 24 month period, with a revision after that down to £50 per week, subject to the CPI indexation, and the appellant paid for the respondent's VHI subscription, provided a house for the respondent in the C.P. Limited estate, and an additional lump sum of £70,000.

  8. The settlement had a "full and final settlement" clause. It stated in paragraph sixteen:-

    "The husband and wife hereby agree that the within Agreement is in full and final settlement of all present and future property and financial claims which either of them may have against the other under the Married Women's Status Act 1957 or the 1976 Act or the Judicial Separation and Family Law Reform Act 1989 or the Family Law Act 1995 or otherwise or under any Act of the Oireachtas amending the said Act or Acts under the provisions of any other similar legislation of this or any jurisdiction.

    It is agreed between the parties that this Agreement is intended as being in full and final settlement of all matters arising between the parties and, in the event of either party being granted a Decree of Judicial Separation as provided for in Section 2 of The Judicial Separation Act 1989, the terms of this agreement shall be incorporated into the Order of the Court and, similarly, in the event of legislation permitting the granting of a Divorce being introduced and one or other party applying for such a Divorce, that again, in the event of such Divorce being granted, the terms of this Order shall be incorporated into the Order of the Court granting the Divorce."

  9. The maintenance for the respondent was not increased from £50 per week until 2002, when it was increased to €70. On an interim maintenance application in October, 2004 the appellant agreed to pay to the respondent €1,200 per month pending the hearing of the application, which sum was increased to €2,500 per month by the High Court.

  10. The respondent continued to live in the house provided for her under the separation agreement. However, she has spent the £70,000 lump sum and did not invest it in any wealth producing activity.

  11. The appellant lives a comfortable lifestyle. The respondent, on the other hand, claims that she does not enjoy the same lifestyle, and that she incurred debts until her maintenance was increased in 2007.

  12. The respondent brought a claim seeking a decree of divorce and that provision be made pursuant to s.20 of the Family Law (Divorce) Act 1996.

  13. The appellant argued that proper and permanent provision had been made by him for the respondent in the deed of separation which was intended to be in full and final settlement.

    The High Court

  14. On the 5th March, 2009, the High Court ordered that, being satisfied with regard to the requirements of s.5(1) of the Family Law (Divorce) Act, 1996, the court granted a decree of divorce to the parties. Further provision was made for the respondent and it was ordered as follows:-

    (i) An Order pursuant to Section 13 of the 1996 Act directing the [appellant] to purchase for the sum of €600,000.00 an annuity for the [respondent] for her lifetime, which said annuity shall increase annually in accordance with the Consumer Price Index. The said purchase shall be made with the sum of €600,000 to be deducted from the sum of €1,750,000.00 held by the [appellant's] solicitors in trust or on joint deposit of the solicitors for the parties herein.

    (ii) An Order pursuant to Section 13 of the 1996 Act directing the payment of €300,000.00 by the [appellant] to the [respondent's] solicitors to invest in a pension fund on the advice of Mr. Shane Brown. The said pension is to be available to the [respondent] when she reaches the age of 65 years. The said sum of €300,000.00 to be paid out of the sums on deposit totalling €1,750,000.00 (plus interest).

    (iii) An Order pursuant to the provisions of Section 13 of the 1996 Act directing the payment of €100,000.00 by the [appellant] to the [respondent's] Solicitors, Michael Houlihan & Partners, in part-payment of their costs, fees and outlays. The said amount to be paid out of the sum of €1,750,000.00 on deposit (plus interest).

    (iv) Subject to paragraphs 1, 5 and 6 of this Order an Order pursuant to the provisions of Section 13 of the 1996 Act directing the payment of maintenance by the [appellant] to the [respondent] in the sum of €54,000.00 per annum, which said sum shall be increased annually on the basis of the cost of living index, the base date to be the 1st January 2009 and the first increase to take effect on the 1st day of January 2010 and on the 1st of January each year thereafter.

    (v) An Order pursuant to Section 13 of the 1996 Act that, until such time as the maintenance payments provided for in Paragraph 4 above are fully payable by way of annuities purchased in the manner provided for in this order, the [appellant] shall pay to [respondent] such part of the sum of maintenance per month as is not provided for by such annuities as are purchased for the [respondent], under the foregoing provisions. The said payments shall cease upon the full extent of the said maintenance being annuitised in accordance with the Order of this Court.

    (vi) An Order pursuant to Section 13 of the 1996 Act directing that the balance of maintenance, if not yet annuitised, be annuitised by the [appellant] by expending such funds as are necessary to purchase additional annuity for the [respondent] to provide her with an income equal to the amount of maintenance payable to her as adjusted in accordance with the cost of living index on or before the 1st of December 2011.

    (vii) An Order under Section 13 of the 1996 directing the [appellant] to pay to the applicant a lump sum of €1,000,000.00 on or before the 1st of December 2011 for the purpose of enabling the [respondent] to purchase housing accommodation, which said housing accommodation shall be within two miles of the town in which the [respondent] now resides on a road route serviced by public transport, which said accommodation shall be insured against fire and theft, and shall be insured in respect of employers, occupiers and public liability. The said sum shall be capitalised maintenance for the purpose of maintaining the [respondent] in the proper accommodation of her choice, within the meaning and for the purpose of the Brussels I Regulations.

    (viii) An Order under Section 13 of the 1996 Act directing the [appellant] to pay the VHI premia on behalf of the...

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