A.K. v J.K. (Variation of ancillary orders)

JurisdictionIreland
JudgeMr. Justice Henry Abbott
Judgment Date31 October 2008
Neutral Citation[2008] IEHC 341
Date31 October 2008
CourtHigh Court
Docket Number[2005 No. 437 CA]

[2008] IEHC 341

THE HIGH COURT

[2005 No. 437 C.A.]
K (A) v K (J)
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW
REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT
1995

BETWEEN

A. K.
APPLICANT/RESPONDENT

AND

J. K.
RESPONDENT/APPELLANT

FAMILY LAW ACT 1995 S8

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

C (J) v C (M) UNREP ABBOTT 22.1.2007 (EX TEMPORE)

S (R) v S (R) UNREP MCGUINNESS 14.12.1995 2000/16/6161

JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 S22

FAMILY LAW ACT 1995 S18(5)

FAMILY LAW ACT 1995 S9(1)(b)

FAMILY LAW ACT 1995 S9(1)(c)

FAMILY LAW ACT 1995 S9(1)(d)

FAMILY LAW ACT 1995 S10(1)(a)(i)

FAMILY LAW ACT 1995 S18(1)(f)

HOPE-SMITH v HOPE-SMITH 1989 2 FLR 56

FAMILY LAW ACT 1995 S18(1)(e)

FAMILY LAW ACT 1995 S9(1)(a)

POTTER v POTTER 1990 2 FLR 27

FAMILY LAW ACT 1995 S18

T (D) v T (C) 2002 3 IR 334

FAMILY LAW ACT 1995 S16

FAMILY LAW ACT 1995 S16(5)

FAMILY LAW ACT 1995 S16(1)

FAMILY LAW ACT 1995 S16(2)

D v D UNREP ABBOTT 9.7.2007 (EX TEMPORE)

H v H UNREP ABBOTT 2.5.2008 (EX TEMPORE)

FAMILY LAW

Judicial separation

Proper provision - Change in circumstances - Subsequent increase in value of family home - Strategic application to vary ancillary orders - Whether further property adjustment and lump sum orders could be made following change in circumstances - Test for determining whether change in circumstances warranted making of strategic application - JD v DD [1997] 3 IR 64 and T v T [2002] 3 IR 334 applied - Family Law Act 1995 (No 26), ss 16 and 18 - Appeal dismissed (2005/437CA - Abbott J - 31/10/2008) [2008] IEHC 341

K(A) v K(J)

Facts: the parties had been granted an order of judicial separation by the Circuit Court in 1996. Ancillary orders made by the Circuit Court at that time included an order directing the respondent to transfer his legal and beneficial interest in the family home to the applicant in consideration of the applicant paying to the respondent £10,000 for his interest. An order was also made conferring on the applicant for her lifetime the right to occupy the family home to the exclusion of the respondent. The applicant had never paid the said sum to the respondent. The respondent sought from the High Court: an order re-entering the proceedings; an order pursuant to section 10(1)(a)(ii) of the Family Law Act 1995 for the sale of the family home and a division of the net proceeds as seems fit; an order pursuant to section 18 of the Act of 1995 varying the order granting the applicant the exclusive right to reside in the family home and/or; 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 was fit.

Held by Abbott J in dismissing the application of the respondent and ordering that the applicant pay to the respondent the sum of £10,000 plus courts act interest thereon that the effective barring of a right of sale of a family home where a life residence in the family home was granted indicated the weight the Oireachtas attached to an order granting residence. However, the making of a further lump sum order and property adjustment order on further application was not precluded by the Act of 1995 where the structure of the original ancillary order was such as to prevent a variation under section 18 of the Act of 1995 in respect of those two aspects.

That the "proper provision" to be made for the separating parties pursuant to section 16 of the Act of 1995 was to be informed by the test of justice as required by section 16(5). Having regard to and weighing the criteria set out in section 16(2) of the Act of 1995, it was in the interests of justice that the original order made in the Circuit Court in 1996 not be varied.

Reporter: P.C.

1

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

2

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

3

2. The applicant/respondent was married to the respondent/appellant on the 3 rdAugust, 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 7 thJune, 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".

4

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 10 th November, 2004.

5

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.

6

a 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 [ ]5 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).

7

b 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 [].

8

c 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."

9

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

10

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

11

2. 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.

12

3. 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;

13

4. 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.

14

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

15

6. The costs of this Application."

16

6. This notice of motion was grounded on the affidavit of the respondent/appellant sworn on the 19 th October, 2004. A replying affidavit of the applicant/respondent was sworn on the 3 rd May, 2005, and, in addition, the applicant/respondent and the respondent/appellant filed affidavits of means dated the 25 th October, 2005, and the 3 rd 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 € 18 8.00 (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.

17

7. 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 livied 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.

18

8. 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...

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