Y.G. v N.G.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Abbott |
| Judgment Date | 12 December 2008 |
| Neutral Citation | [2008] IEHC 473 |
| Court | High Court |
| Docket Number | [2004 No. 41 M] |
| Date | 12 December 2008 |
[2008] IEHC 473
THE HIGH COURT
Abbott J.
[2004 No. 41 M]
IN THE MATTER OF THE FAMILY (DIVORCE) ACT 1996, AND
IN THE MATTER OF THE FAMILY LAW ACT 1995,
Family ? Family Law (Divorce) Act 1996 ? The Family Law Act 1995 ? Divorce ? Distribution of asset ? Moral hazard ? Ample resource case
Facts: The applicant sought a decree of divorce and provisions for her maintenance and upkeep under s. 20 of the Family Law (Divorce) Act 1996. The respondent contended that the applicant was estopped from claiming further financial benefits in lieu of a prior deed of separation entered into by the parties which provided for a lump sum amount, house and maintenance to the applicant.
Mr. Justice Abbott made an order under s. 20 of the Family Law (Divorce) Act 1996 and distributed the asset between the parties. The Court held that the previous arrangement made by the parties for distribution of asset would not act as an estoppel between the parties if there had been material change in the circumstances since that time. The Court observed that the respondent was obligated to provide for the maintenance of the applicant under Family Law (Divorce) Act 1996 as the applicant had devoted her earlier years of marriage in taking care of the business, in the absence of which, the applicant could have been in a decent employment. The Court, taking note of that fact that the present case was an ample resource case, held that the applicant poorly utilized the resources that were earlier allocated to her and warned her to be cautious in the present time. The Court opined that it would be better for the judiciary if in future there would be an isolation of the main issue at an early stage and an encouragement to the parties to eliminate in the case management stage or deal with it separately in mediation.
The applicant and the respondent were married to each other on the 4th February, 1977. The applicant is aged 53 and the respondent is aged 55. They met when the applicant (who is from England) came to Ireland in 1975. The applicant qualified as a state enrolled nurse in the UK. While she did some nursing type work in Ireland, her English qualification was not recognised and for reasons connected with ill health she claims that she has not worked since 2003, and has been in receipt of disability allowance since that time. At the start of the marriage the parties took up residence in a house inherited by the respondent from his aunt and uncle. The applicant came to the marriage with £3,000 savings, and the parties both ran a garage and a farm in the early years of the marriage. Gradually the respondent became the prime mover in various property developments and in relation to one of the developments, actively engaged as a builder selling on houses in an estate developed and built on by a company referred to as C.P. Limited. There were no children born to the parties and unfortunately, the applicant suffered a miscarriage of twins six months into her pregnancy in 1978, and this caused her extreme distress. The parties separated in December, 1995, intimacy between them having ceased some years before. The formal findings for a divorce decree, subject to proper provision, can be made in this case from the outset.
The parties entered into a separation agreement on the 22nd August, 1996, (‘the settlement’) which was extensive and up to date in its provisions. In summary, the respondent agreed to pay the applicant a £100 per week for an initial 24 month period with a once off revision after that 24 month period, down to £50 per week, subject to CPI indexation and on the basis that the respondent paid for the applicant's VHI subscription, and that he provided a house for the applicant in the C.P. Limited estate, and an additional lump sum of £70,000. The settlement contained extensive waivers, releases and indemnities on a mutual basis, as would be expected where the financial affairs of husband and wife were intertwined to a considerable degree.
Of particular relevance to the issues in this case, the settlement provided for two ‘full and final settlement clauses’ as follows:-
‘16. 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.
17. 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.’
The respondent did not increase the maintenance from £50 per week until 2002, when he increased the amount from £50 to €70. On an interim maintenance application in October, 2004 the respondent agreed to pay the applicant €1,200 per month pending the hearing of the application, and this sum was increased to €2,500 per month by the court.
The applicant continues to live in the house provided for her under the separation agreement but, by now has spent the proceeds of the £70,000 lump sum given to her and was not able to invest the same in any wealth producing activity. The respondent, on the other hand, was successful in completing the sale of his houses in the C.P. Limited development, and in recent years purchased a site on borrowed finance which, after commencement of this action and some time before the hearing hereof was sold for a sum in the region of €19,000,000. The respondent has a comfortable lifestyle and is in a position to pursue equestrian activities up to a high level. There was an undertone in the case that he may actually have earned considerable wealth from the equestrian activity, but at best this may only be represented by the value of the equestrian stock in the agreed statement of assets in this case. The applicant, on the other hand, claims that she does not enjoy the same lifestyle and incurred debts up until her maintenance was increased in July, 2007 by the court.
The applicant claims a decree of divorce and that provision be made pursuant to s. 20 of the Family Law (Divorce) Act 1996 (hereinafter referred to as ‘the Act of 1996’). The defence of the respondent is that proper and permanent provision was made by him for the applicant in the deed of separation which was intended to be in full and final settlement for the purposes of divorce, and he claims that the applicant is estopped from seeking any further property or financial relief in relation to her divorce. Ultimately an open offer was made during the course of the hearing on behalf of the respondent, by which he agreed to pay periodic payments estimated to be in the region of €54,000 gross, and provide a lump sum in the region of €800,000 to purchase a house which would be secured by way of insurance policy in place on his life for a term of fifteen years in the sum of €500,000. While the respondent has prospered in the last few years, he denies that his lifestyle could be described as lavish. A considerable amount of time was devoted in the hearing to probing in evidence the background against which the separation agreement was negotiated and executed by the parties.
Although the proceedings herein were commenced in 2004, the level of disclosure and vouching by the respondent left a great deal to be desired such that, on the 23rd November, 2007, the court ordered that full documents, disclosure and accounts be provided under five headings, and that the respondent provide an up to date affidavit of means. Furthermore, the respondent was ordered to pay the applicant's costs for all applications including all directions and case management, reserve costs, the additional costs incurred and the accountant's costs in dealing with the application, commencing with the application to the High Court on the 28th February, 2007, up to and including the application of the 23rd November, 2007. This was the first time that such a composite order for costs was made against a party at an interlocutory stage of the proceedings, by reason of continued extensive and manifest lack of disclosure, and failure to furnish documents, identify property or furnish valuations. This order was made pursuant to the guidelines contained in the practice direction relating family law cases in the High Court. Matters of disclosure and connected vouching remained in an unsatisfactory state right up to the hearing, but were alleviated to a considerable extent by the accountants agreeing a reasonably detailed valuation report which itemised the respondent's net assets to be in the region of €21,000,000. Nevertheless the continued chaotic state of the case on the respondent's side has prompted me to make a further purposeful indicative costs order herein.
‘(a) the income, earning capacity, property and other financial resources which each of the spouses...
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