Y.G. v N.G.
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 19 October 2011 |
| Neutral Citation | [2011] IESC 40 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 382 of |
| Date | 19 October 2011 |
and
[2011] IESC 40
Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
Finnegan J.
THE SUPREME COURT
FAMILY LAW
Divorce
Maintenance - Separation agreement - "Full and final" settlement clause - Principles to be applied where prior separation agreement - Proper provision - Clean break - Change in circumstances - Debilitating illness - Inherited assets - Whether High Court order excessive - Moral hazard - Whether party failed to utilise or maximise resources - MD v ND (Divorce) [2011] IESC 18, (Unrep, SC, 7/6/2011) and DT v CT (Divorce: Ample resources) [2002] 3 IR 3342 considered - Family Law (Divorce) Act 1996 (No 33), s 20 - Husband's appeal allowed; remitted to HC (382/2009 - SC - 19/10/2011) [2011] IESC 40
G(Y) v G(N)
Facts The appellant appealed from the judgment and order of the High Court delivered on 12 December 2008 on the grounds that the level of lump sums, capital provision and maintenance ordered to be paid to the respondent were excessive and unreasonable. The appellant also submitted that proper provision had been made for the respondent and further that the learned High Court Judge gave insufficient weight to the separation agreement previously entered into by the parties. Furthermore, the appellant submitted that the method of securing payments was unfair and unreasonable. The parties were married in 1977 and they separated in 1995. On 22 August 1996 the parties entered into a separation agreement which contained a "full and final settlement" clause and which provided for maintenance payments and a house for the respondent to reside in. The High Court, on the application of the respondent granted a decree of divorce to the parties and made further provision for the respondent by ordering the appellant to purchase for the sum of ?600,000 an annuity for the respondent for her lifetime, to pay the sum of ?300,000 to invest in a pension fund, to part- pay the respondent's solicitors costs, to pay maintenance in the sum of ?54,000 per annum, to pay the lump sum of ?1,000,000 for the purpose of enabling the respondent to purchase housing accommodation, to pay the respondent's VHI premia and to maintain in place and continue payments of a policy of insurance, to pay the sum of ?600,000 to the respondent for her own use and benefit and an order securing any outstanding payments on the appellant's home and other fixed assets. The appellant requested that this case be remitted to the High Court for consideration under section 22 of the Family Law (Divorce) Act, 1996 and stated that there had been fundamental changes. The court was informed that the net assets of the appellant were agreed at ?21 million and there had been a change in circumstances.
Held by the Supreme Court; Denham C.J. (Murray, Hardiman, Fennelly, Finnegan JJ) in allowing certain aspects of the appeal and remitting the matter to the High Court: That this case concerned the weight to be give to a deed of separation. This court set out various general principles to be applied where there has been a prior separation agreement followed by a subsequent application by a party to court. Such an agreement ought to be given significant weight and a deed stated to be in full and final settlement was a significant factor for the court to consider along with all the circumstances of the case. However, a change in circumstances since the agreement was signed, such as illness or the alteration of the value of assets must be considered by the court when determining if proper provision has been made.
On the evidence before the court there had been a radical change in circumstances, and the case must be remitted to the High Court so that proper provision in a just manner may be ordered. While significant weight must be given to the separation agreement, the statutory duty of the court to make proper provision prevailed. Proper provision means provision that is reasonable in all the circumstances. Where there is a great improvement in one party's finances after a full and final settlement the concept of "proper provision" should not be dominated by that change.
The respondent's illness was a circumstance that enabled the court to increase her maintenance and there was no error in that respect. However, the overall quantum of maintenance and financial provision ordered was excessive and was an error. The amount of provision ordered into the future and the order providing for an additional house was also excessive and an error. The capital sum ordered to be paid was excessive and in error, and the appeal in respect of this sum and the sum to purchase additional accommodation was allowed.
Reporter: L.O'S.
FAMILY LAW (DIVORCE) ACT 1996 S20
FAMILY LAW (DIVORCE) ACT 1996 S5(1)
FAMILY LAW (DIVORCE) ACT 1996 S13
EEC REG 44/2001
FAMILY LAW (DIVORCE) ACT 1996 S16
FAMILY LAW (DIVORCE) ACT 1996 S13(1)(B)
FAMILY LAW (DIVORCE) ACT 1996 S13(3)
FAMILY LAW (DIVORCE) ACT 1996 S18(10)
FAMILY LAW (DIVORCE) ACT 1996 S20(2)
FAMILY LAW (DIVORCE) ACT 1996 S20
FAMILY LAW (DIVORCE) ACT 1996 S22
T(D) v T(C) 2002 3 IR 334
FAMILY LAW (DIVORCE) ACT 1996 S20(1)
D (M) v D (N) 2011 2 ILRM 385
Judgment delivered on the 19th day of October, 2011 by Denham C.J.
JUDGMENT DELIVERED BY DENHAM C.J. [NEM DISS]
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 12 th 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 4 th 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 22 nd 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.
14. On the 5 th 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...
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