M.G. v M.G.
The Circuit Family Court
Family law - Divorce - Financial arrangements - Change of circumstances - Ancillary orders - Variation in agreement sought - Whether court should interfere with terms of separation agreement - Family Law Act, 1995 (No 26) - Family Law (Divorce) Act, 1996 (No 33) section 20.
Judgement of His Honour Judge John F. Buckley delivered the 25th day of July 2000
The parties were married in 1975. There are three children of the marriage, who are 17, 15 and 10. The children attend schools which are close to the family home. The Applicant is an accountant who worked as an administrator during the later years of the marriage. The Respondent is a senior civil servant. The parties agreed to separate in 1995 and entered into a Separation Agreement on the 6th April 1995. Under the terms of that agreement the Applicant agreed to transfer his interest in the family home to the Respondent, being compensated for the value of his interest in the family home which was valued at £20,000, representing 20% of the net value of the property, the gross value of which was then £200,000. There were complicated arrangements as to how the £20,000 was to be paid: (1) on the sale of the house or (2) by offsetting it against education fees for the children or (3) by way of instalments of £3,000 to be paid in full on or before the 6th April 2005. It was also provided that in the event of the death of the Applicant before the 6th April 2005 the outstanding balance of the £20,000 was to be distributed equally between the children of the marriage. The Applicant also agreed to pay maintenance for the children.
In early 1996 the Applicant wished to get a divorce in the Dominican Republic in order to be able to marry his new partner and sought the Respondent’s consent to the divorce. In consideration of her giving that consent the Applicant offered to waive his entitlement to his share of the family home. A supplemental Deed of Separation was entered into on the 25th March 1996. Under this deed the Applicant waived his entitlement to be paid the sum of £20,000, which instead was to be held by the Respondent in trust for the three children. The Applicant subsequently married his new partner.
In February 1 998 the Applicant lost his job with a national organisation and has since found it difficult to obtain employment. He went to live outside Ireland with his new partner who worked for an international organisation and he has only recently succeeded in getting employment on short-term contracts. At the time of the hearing had one which was due to end in May 2000. Following the loss of his job the Applicant was only entitled to unemployment assistance and was unable to pay the full amount of maintenance under the Separation Agreement or the premiums on a policy in accordance with the terms of the Supplemental Agreement. On his obtaining employment he recommenced payment of maintenance and also paid some of the arrears of maintenance which had built up.;
Section 20(1) of the Family Law (Divorce) Act 1996 requires a Court to “ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned”. Sub-sections (2) and (4) set out a number of factors to which the Court is required to have regard. Sub-section (3) requires the Court to have regard to the provisions of any separation agreement. Sub-section (5) provides that the court shall not make an order under Sub-section (1) unless it is in the interests of justice.
There have only been a few written judgements of the courts dealing with the way in which a Court should apply Section 20 of the Divorce Act and in particular Section 20(3). Many of the cases which are instituted are settled and in the ones that do come before the courts for decision the facts vary enormously. Applications for decrees of divorce may come to the Court anything from 4 to 25 years after deeds of separation have been entered into and there will be a considerable difference in the situations of the parties. The provisions of Section 20 of the Divorce Act are very similar to those of Section 20 of the Family Law Act 1995 which prescribes the factors to which the Court is to have regard when considering ancillary relief when granting a Decree of Judicial Separation. It is reasonable to assume that these factors are in the minds of the parties legal advisers...
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