O'H. v O'H

JurisdictionIreland
Judgment Date01 January 1991
Date01 January 1991
Docket Number[1989 No. 780 Sp. Ct. 6]
CourtHigh Court

High Court

[1989 No. 780 Sp. Ct. 6]
O'H. v. O'H.
O'H
Plaintiff
and
O'H
Defendant

Cases mentioned in this report:—

Fitzpatrick v. Minister for Industry & CommerceIR [1931] I.R. 457.

Hamilton v. HamiltonIRDLRM [1982] I.R. 466; [1982] I.L.R.M. 296.

The Irish Land Commission v. DolanIR [1930] I.R. 235.

Powys v. PowysELRWLRUNK [1971] P. 340; [1971] 3 W.L.R. 154; [1971] 3 All E.R. 116.

Re Raison; Ex parte RaisonUNKUNKUNKUNK (1891) 60 L.J.Q.B. 206; 63 L.T. 709; 39 W.N. 271; 7 T.L.R. 185.

Williams v. WilliamsELRWLRUNK [1971] P. 271; [1971] 3 W.L.R. 92; [1971] 2 All E.R. 764.

Husband and wife - Judicial separation - Financial relief - Evasion - Disposition - Intention to defeat application for financial relief - Voidance - Statute - Operative date - Retrospective effect - Construction - Whether disposition made prior to coming into force of statute "reviewable" - Judicial Separation and Family Law Reform Act, 1989 (No. 6), ss. 2 and 29.

Statute - Retrospective effect - Construction - Operative date - Judicial Separation and Family Law Reform Act, 1989 (No. 6).

Special Summons.

The plaintiff wife and the defendant husband were married on the 19th April, 1959. By special summons issued on the 5th December, 1989, the plaintiff sought a decree of judicial separation together with ancillary financial relief pursuant to the Judicial Separation and Family Law Reform Act, 1989. By order of the High Court made on the 27th April, 1990, the special indorsement of claim to her special summons was amended to include the reliefs of setting aside dispositions of property made by the defendant in favour of his sons, R. and S. By agreement between the parties it was decided to try the issue of the court's jurisdiction to set aside the disposition of the 22nd February, 1989, in favour of R., in a hearing upon a preliminary point of law. The transferees, R. and S., were joined as notice parties.

Section 29 of the Judicial Separation and Family Law Reform Act, 1989 provides:—

"(1) For the purposes of this section, "financial relief" means relief under any of the provisions of sections 13, 14, 15, 16(a), 16(b), 21 and 22 (exceptsubsection (6) of this Act, and any reference in this section to defeating a person's claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a dependent child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of that person under any of those provisions.

(2) Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person —

  • (a) if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining the other party from so doing or otherwise for protecting the claim;

  • (b) if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition;

  • (c) if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) of this section by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition;

  • and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial relief in question.

    • (3) Where the court makes an order under subsection (2) (b) or (c) of this section setting aside a disposition it shall give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).

    • (4) Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of subsection (2)(b) and (c) of this section unless it was made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party lo defeat the applicant's claim for financial relief.

    • (5) Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied —

      • (a) in a case falling within subsection (2) (a) or (b) of this section, that the disposition or other dealing would (apart from this section) have the consequence, or

      • (b) in a case falling within subsection (2) (c) of this section, that the disposition has had the consequence,

      • of defeating the applicant's claim for financial relief, it shall be presumed unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating the applicant's claim for the financial relief.

    • (6) In this...

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