K(M) v K(J) (otherwise K(S)) (No. 2) (Divorce: Ample resources)

JurisdictionIreland
CourtHigh Court
JudgeO'Neill J.
Judgment Date24 January 2003
Neutral Citation[2003] IEHC 633
Date24 January 2003
Docket Number[1999 No. 49M]

[2003] IEHC 633

THE HIGH COURT

49M/1999
K (M) v. K (J P)

BETWEEN

MK
APPLICANT

AND

JPK
RESPONDENT

Citations:

FAMILY LAW (DIVORCE) ACT 1996 S20(2)

CONSTITUTION ART 41.3.2

FAMILY LAW (DIVORCE) ACT 1996 S5

FAMILY LAW (DIVORCE) ACT 1996 S20

FAMILY LAW (DIVORCE) ACT 1996 S20(1)

FAMILY LAW (DIVORCE) ACT 1996 S20(3)

FAMILY LAW (DIVORCE) ACT 1996 S20(5)

FAMILY LAW ACT 1995 S16

JUDICIAL SEPARATION & FAMILY LAW ACT 1989 S20

MATRIMONIAL CAUSES ACT 1973 S25

WHITE V WHITE 2000 3 WLR 1571

COWAN V COWAN 2001 EWCA CIV 679

DHARAMSHI V DHARAMSHI 2001 FLR 736

D (J) V D (J) 1997 3 IR 64

TRIPAS V TRIPAS 1973 FAM 134

G (M) V G (M) ITLR 2.10.2000

DART V DART 1996 2 FLR 294

WATCHAL V WATCHAL 1973 1 AER 275

PRESTON V PRESTON 1981 2 FLR 331

MECCA V MECCA 2000 1 IR 457

FAMILY LAW (DIVORCE) ACT 1996 PART II

FAMILY LAW (DIVORCE) ACT 1996 S6

FAMILY LAW (DIVORCE) ACT 1996 S7

FAMILY LAW (DIVORCE) ACT 1996 S8

FAMILY LAW (DIVORCE) ACT 1996 S9

JUDICIAL SEPARATION & FAMILY LAW ACT 1989 S5

JUDICIAL SEPARATION & FAMILY LAW ACT 1989 S6

O'D (D) V O'D (A) 1998 1 ILRM 543

F V F 1995 2 IR 354

T V T 2003 1 ILRM 321

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(A)(I)

SUCCESSION ACT 1965

FAMILY LAW (DIVORCE) ACT 1996 S12

FAMILY LAW (DIVORCE) ACT 19961996 S 13

FAMILY LAW (DIVORCE) ACT 19961996 S 14

FAMILY LAW (DIVORCE) ACT 19961996 S 15

FAMILY LAW (DIVORCE) ACT 19961996 S 15(1)(A)

FAMILY LAW (DIVORCE) ACT 19961996 S 16

FAMILY LAW (DIVORCE) ACT 1996 S17

FAMILY LAW (DIVORCE) ACT 1996 S18

FAMILY LAW (DIVORCE) ACT 1996 S22

ENGLISH MATRIMONIAL CAUSES ACT 1973 S25

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(A)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(B)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(C)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(D)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(E)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(F)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(H)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(I)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(J)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(K)

FAMILY LAW (DIVORCE) ACT 1996 S20(2)(L)

Synopsis:

FAMILY LAW

Divorce

Ancillary financial orders - Family Law (Divorce) Act, 1996 - Bunreacht na hÉireann, Article 41.3.2 (1999/40M - O'Neill J - 24/1/03)

K (M) v K (JP) - [2003] 1 IR 326

Facts: The parties were granted a decree of divorce. The respondent appealed against the ancillary financial orders and eventually the matter was returned to the High Court so that the question of proper provision for the parties could be considered in light of the mandatory provisions of the Family Law (Divorce) Act, 1996.

Held by O'Neill J. in making provision for the applicant that in complying with section 20(3) of the Family Law (Divorce) Act, 1996, the court, being required to "have regard" to the terms of a separation agreement, must examine the agreement to ensure that, at the time of the application, the agreement, in light of the circumstances of the party, either at that time made a "proper provision" or that it contained obligations which would ensure that such provision would be made.

1

JUDGMENT of O'Neill J. delivered the 24th day of January 2003.

THE PROCEEDINGS
2

The proceedings in this case have taken a somewhat unusual course. The applicant commenced divorce proceedings by way of a Family Law Civil Bill in the Circuit Court on the 3 rd June 1998 in which she sought a decree of divorce together with a number of ancillary financial orders. On the 14 th July 1998 on an interim application she sought maintenance pending suit and the Circuit Court made an order directing the respondent to pay some additional maintenance. The applicant applied to the Circuit Court on the 15 th February 1999 to transfer the proceedings to the High Court. This application was refused. The applicant appealed to this Court on the 23 rdApril 1999 and this Court granted an order transferring the proceedings into the High Court. The matter came on for hearing in this Court on the 13th November 2000 and was at hearing for five days before Lavan J. Judgment was given on the 20 th November 2000 and on the following day the court made an order granting the decree of divorce together with ancillary financial orders.

3

The respondent appealed against the ancillary financial orders which were made. No appeal was taken by either party against the order granting the decree of divorce. The appeal came on for hearing in the Supreme Court on the 2 nd day October 2001 and that court by its judgment of the 6 th November 2001 set aside the ancillary financial orders and directed that the matter be returned to the High Court so that the question of proper provision for the parties would be considered in the light of the mandatory provisions of the Family Law (Divorce) Act 1996.

4

Thus the matter came on for hearing before me and was at hearing for some seven days.

BACKGROUND FACTS
5

The applicant and respondent met each other in September of 1963. At that time the applicant was 19 years of age and the respondent 21. The parties lived in a large city in the United Kingdom until they returned to Ireland and took up residence in a provincial town here. There were six children born of the marriage between 1964 and 1975. All of these are now independent.

6

The respondent developed and pursued a very successful career in business and the applicant although having trained and acquired secretarial skills did not work outside the home save for some short term part-time work.

7

Unhappy differences arose and reached a crescendo in 1979 culminating in the separation of the parties in October 1980 and they have been separate since that tune. Throughout 1981 negotiations took place which resulted in the execution of a deed of separation which came into force on the 1 st January 1982. Briefly this provided that the applicant was to have custody of the children and to live in the family home which was jointly owned. The respondent was to have access to his children including holiday access which was specified and the husband was to pay maintenance to the wife both for herself and the children, the maintenance was apportioned between the applicant and children and it was provided that that part of the maintenance apportioned to the children would cease upon each child reaching the age of 18. The maintenance was to be increased in accordance with the Consumer Price Index. The agreement further provided for the payment of VHI insurance for the applicant and the children by the respondent and for the payment of the mortgage repayments on the family home. The agreement also had the usual clauses providing for the mutual renunciation of Succession Act 1965rights, and other customary provisions.

8

Following the separation agreement the applicant continued to reside in the family home continuously until 1994 when she rented the family home and took up residence in a bed-sit in Dublin for the purposes of attending a third level college. This departure coincided with the youngest two children leaving home to attend university. Over the intervening years from 1982 the separation agreement was operated by both parties, the due maintenance was increased in accordance with the CPI and as each child reached 18 years of age maintenance in respect of them was stopped. In addition to the maintenance provided for in the separation agreement the respondent did make additional payments. Specifically a second mortgage was taken out to secure a loan of £7,000 for the purposes of carrying out repairs and renovations to the family home and the respondent met the repayments on this. As each of the children went to university he paid for some of their educational and maintenance expenses. He also met a variety of medical and dental expenses over the years for the children and also responded to a considerable variety of requests for funding by the children during their college years.

9

The respondent achieved outstanding success in his career. At the time of the marriage he worked at shop floor level in a factory in the United Kingdom. He vigorously made good the deficits in his education at that time and pursued management type courses. As a consequence of this and no doubt his obvious abilities he was several times promoted while in England and when he returned to Ireland in 1972 he had attained a remarkable transformation in his career and very significant advance up the management structure of the enterprise he then worked for. On his return to Ireland he took up a senior management position in what would have been a small firm involved in the construction industry. He progressed from there however to become a senior executive with an international company. This was in or about the late 1970's. Unfortunately this enterprise failed but even in the management of its winding up he appears to have excelled himself, with the result that upon its closure he moved immediately into a very senior executive position with another international firm. This necessitated a move to a different location in Ireland.

10

It is of some significance (to which I will return later) that at the time that the parties separated the respondent had in his career attained the level of very senior executive.

11

His move at that time turned out to be an extremely successful one and his career and indeed his income advanced rapidly throughout the 1980's and into the 1990's to the point that in 1993 he was invited to take up a position in the United States as a vice-president of a multinational company. Here again he thrived and in 1998 became president of the corporation in question. During all of this time his income rose correspondingly and with his income came the usual range of benefits that go with positions of this kind.

12

Thus by the time that these proceedings commenced in 1998 the fortunes of both the applicant and the respondent had come to differ radically.

13

Shortly after separation the respondent formed a...

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