K. -v- K., [2008] IEHC 341 (2008)

Docket Number:2005 437 CA
Party Name:K., K.
Judge:Abbott J.

THE HIGH COURT2005 No. 437 C.A.





JUDGMENT of Mr. Justice Henry Abbott delivered on the 31st day of October, 2008

  1. This is an appeal from an order made in the Dublin Circuit Court before Her Honour Judge Ryan on the 13th December, 2005.

  2. The applicant/respondent was married to the respondent/appellant on the 3rd August, 1974. They have five children born between 1975 and 1990. A decree of judicial separation and ancillary relief was granted by the Circuit Court on the 7th June, 1996, by order of Her Honour Judge McGuinness (as she then was). This order shall hereinafter be referred to as "the order of Judge McGuinness".

  3. The manner by which the matters subject of this appeal came before the Circuit Court was by way of notice of motion dated the 10th November, 2004.

  4. The order of Judge McGuinness provided the following ancillary orders by way of provision on the granting of a decree of judicial separation of the parties.

    A. "An Order pursuant to section 15 of the Statute directing the Respondent herein to transfer to the Applicant herein his entire legal and beneficial interest in the family situated at [ ] in the County of [ ], for her sole use and benefit and in consideration thereof the Applicant herein shall pay to the Respondent the sum of £10,000 (ten thousand pounds).

    B. An Order pursuant to section 16(d) of the Statute and section 4 of the Family Home Protection Act 1976, dispensing with the consent of the Respondent herein to any future sale by the Applicant herein of the family home situated at [ ] in the County of [ ].

    C. An Order pursuant to section 16(a) of the Statute conferring on the Applicant herein for her lifetime, the right to occupy the family home situate at [ ]in the County of [ ], to the exclusion of the Respondent herein."

  5. The notice of motion of the respondent/appellant seeks the following relief in this appeal:-

    "1. If necessary an Order re-entering the within proceedings;

  6. An Order pursuant to section 10(1)(a)(ii) of the Act of 1995 for the sale of the family home at [ ] and a division of the net proceeds as to this Honourable Court shall seem fit.

  7. An Order pursuant to section 18 of the Act of 1995 varying the order granting the Applicant the exclusive right to reside in the said family home;

  8. Further and/or in the alternative an Order pursuant to section 8 and/or 18 of the Act of 1995 directing the Applicant to pay such lump sum to the Respondent as to this Honourable Court shall seem fit.

  9. Such further or other relief as to this Honourable Court may deem appropriate.

  10. The costs of this Application."

  11. This notice of motion was grounded on the affidavit of the respondent/appellant sworn on the 19th October, 2004. A replying affidavit of the applicant/respondent was sworn on the 3rd May, 2005, and, in addition, the applicant/respondent and the respondent/appellant filed affidavits of means dated the 25th October, 2005, and the 3rd November, 2005. The affidavit of means of the respondent/appellant shows that he has a weekly income of social welfare payments of 148.00 and his rental payments to hospital, payments towards meals and miscellaneous expenses of 64.00 exhaust his income and that, he has personal debts to family members of 40,000.00 and he claims to have a joint interest with the applicant/respondent in the family home. The applicant/respondent's means are set out in her affidavit of means as consisting of a weekly income of 77.00 for some part-time employment, lone parents allowance of 188.00 (the applicant/respondent has a young child now aged eight from another later relationship) and childrens allowance of 70.00, totalling 335.00. After catering for her mortgage of 8,500.00 involving weekly payments of 40.00, her outgoings exhaust her income. As regards assets, she claims the entire beneficial interest in the family home.

  12. In his affidavit the respondent/appellant explained that he did not initially wish to enforce payment of the sum of £10,000.00 (now 12,700.00) by sale of the house after the order of Judge McGuinness, as it would have rendered his children homeless. He says that he believes that since the applicant/respondent had another child in or about 1997, her partner has been living in the family home, and that he believes that he is employed. He said that he himself was unemployed for many years and at the time of the making of the order in 1996, he was residing in his mother's home but this arrangement fell down arising from difficulties with his brother. As a result, from in or about early 2003, he lived rough for a number of months, then lived in a shelter and subsequently in the hostel accommodation where he now resides. He deposed that at the date of the order of Judge McGuinness, the family home had a value of around £45,000.00, with an outstanding mortgage of about £14,230.00, leaving a net value of £30,770.00. He said that he believed that in accordance with the order of Judge McGuinness he was entitled to approximately one third of the equity in the family home, if it was sold in the future. He said that he was living in the family home discharging the mortgage from 1988 until 1995 when he was barred from the premises on an interim order. The applicant/respondent however, deposes that his contributions to the mortgage were not as a result of his own efforts, but from social welfare assistance in relation thereto, and that he did not work to generate the income thereby produced. However, Judge McGuinness seemed to be of the view that both parties generally used their good offices to secure payment, (albeit from the State) for their mortgage and that the respondent/appellant was to be given credit for that.

  13. In his affidavit the respondent/appellant explained that in or about September 2003, the applicant/respondent attempted to enforce the order of Judge McGuinness in respect of the family home, seeking to have the respondent/appellant transfer his interests therein to her for the payment of 12,700.00. He said that he opposed the application, and that it was refused by the Circuit Court on the 23rd February, 2004. He claims that it would be just and equitable, having regard to the circumstances of the parties, that the family home now be sold and that the respondent/appellant receive a fair share of the equity therein, and seeks in the alternative an order directing a date by which the family home is to be sold and the proportion of the net proceeds that each party should receive.

  14. The applicant/respondent in her replying affidavit states that, initially, she was not in a position to discharge the £10,000.00 that would be paid to the respondent/appellant in accordance with the order of Judge McGuinness. She was refused mortgage finance for this purpose, but she commenced...

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