O'M v O'M
| Jurisdiction | Ireland |
| Judgment Date | 05 May 2004 |
| Date | 05 May 2004 |
| Docket Number | RECORD NO. 1573/02 |
| Court | Circuit Court |
THE CIRCUIT FAMILY COURT
RECORD NO. 1573/02
Family law - Divorce - Ancillary orders - Proper provision - Prior separation agreement - Whether court should have regard to prior separation agreement - Whether separation agreement in full and final settlement of issues - Family Law (Divorce) Act 1996,section 20
Facts: the parties separated by agreement in 1986. The sole dependant child of the marriage suffered from cerebral palsy and was primarily cared for by his mother, the applicant. The separation agreement dealt only with property and provided that the respondent would reside in the former family home subject to paying the applicant a sum representing 72% of the value of the house so that the applicant could purchase a house suitable for the son’s needs. The former family home had risen substantially in value since then. The applicant then sought a decree of divorce and ancillary orders, primarily that the former family home and her present house be both sold and that she be awarded 50% of the joint proceeds. The respondent contended that the terms of the separation agreement could not be revisited in the present proceedings.
Held by McMahon J in ordering, inter alia, that the respondent pay to the applicant a lump sum of €400,000, that the absence of a maintenance provision, a custody clause, a clause dealing with pension rights or a full and final settlement clause indicated that the agreement was not a comprehensive and final separation agreement. Accordingly, section 20(3) of the Act of 1996 did not apply and the Court did not have to have regard to that agreement. Moreover, there was sufficient change in the circumstances of the parties since it had been signed for it to be disregarded in considering what orders should be made ancillary to the order for divorce. In assessing property values, the relevant value was the value at the date of the hearing.
Reporter: P.C.
Judgment of His Honour Judge Bryan McMahon,delivered on the 5th May,2004.
The parties were married on 6th September, 1980. There was one child, E., born to the parties on the 9th December, 1981. E had Cerebral Palsy from birth. As a result he was severely physically disabled and suffered from a mild to moderate mental disability. The parties separated by agreement in 1986. At that time the respondent husband left the family home by agreement. During the period 1986 to
1989 the parties had ad hoc living arrangements until, in that year, the applicant wife decided to leave the family home and take up residence in a new bungalow she identified as being suitable to her son’s special needs.
When the parties decided to separate finally in 1989 they both instructed solicitors to negotiate settlement terms. The applicant wife was most anxious to find alternative accommodation and she identified a suitable bungalow which she considered to be suitable accommodation for herself and E. It was agreed that the respondent husband would remain in the family home and that he would pay his wife £39,700 for her interest in the family home. With this sum, further supplemented by a mortgage she took out in the amount of £25,000, the applicant wife purchased a house and moved there with her son.
It is common case that from the date of his birth the applicant wife has been primarily responsible for caring for E. In this regard the applicant went to extraordinary lengths in researching and in identifying what services were available for E’s condition. For example, in 1986, and for the following two years, the applicant took E to the Peto Institute in Budapest, a specialised clinic for his condition, for periods of up to eight weeks at a time. In evidence she stated that she funded this treatment partly from an inheritance she got from her parents and by taking part-time work. It appears also that she undertook some fund-raising in her neighbourhood to meet these costs.
From 1990 to approximately 2000, the applicant secured a place for E in the C.P.I. Marino School and Clinic. This facility took E as a resident boarder from Monday to Friday each week. During that period the applicant and respondent agreed to take E on alternative weekends. During the holiday period which amounted to approximately 20 weeks in the summer the applicant was primarily responsible for E although the respondent also took his son for as much of the holiday period as his work schedule permitted.
During this period the husband also paid maintenance to his wife of different sums increasing over the years. During that period also the applicant wife purchased from her own resources a van which was adapted to E’s needs. At the commencement of these proceedings the respondent husband replaced this vehicle with a new van costing in the region of £20,000.
These proceedings were commenced by a Family Law Civil Bill issued on 26th September, 2002. The applicant wife sought a decree of divorce pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act, 1996 and certain other ancillary reliefs. In opening the case counsel for the applicant wife suggested to the court that the appropriate remedy in this case was an order that the two houses owned by the parties should be sold and an order made that half of the proceeds would be given to the applicant wife. Alternatively, it was suggested that on the sale of the family home an order for payment of Eur400,000 should be made to the applicant. The respondent in reply offered to pay maintenance in the sum of Eur1,500 per month (provided that the parties continue to be jointly assessed for tax purposes), to pay the V.H.I. contributions for the applicant and for E and in addition the respondent was willing to acknowledge that the applicant was entitled to 50 per cent of the respondent’s pension including any lump-sum due, as well as one hundred per cent of the contingent benefits on the policy.
The respondent is the sole registered owner of the original family home. In addition he has shares from his employer that are worth in the region of Eur53,000. He also has a pension from his employer. In addition he inherited a site in a scenic location in the West of Ireland, the value of which depends on whether he would ever get planning permission to build on the site. Finally, he has other shares and savings in the amount of Eur13 000 approximately. In contrast the applicant has a property which has an agreed net value, of somewhere in the region of Eur75,000. She also has shares in the amount of Eur35,000 approx.
Under the Constitution and according to the provisions of s. 5 of the Family Law (Divorce)Act, 1996, before it grants a decree of divorce the court must be satisfied that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period or periods amounting to at least four of the
previous five years, that there is no reasonable prospect of reconciliation between the spouses, and that such provision as the court considers proper, having regard to the circumstances, is made for the spouses and the dependent members of the family. From the evidence before me I am satisfied that the parties have lived apart from each other since 1989 and that there is no reasonable prospect of reconciliation. I also note that the solicitors acting for the parties have filed with the court the required certificates under ss. 6 and 7 of the Act of 1996. The question remains as to what proper provision should be made for the spouses and the dependent member in this case.
In deciding what ancillary orders are appropriate s. 20 of the Family Law (Divorce) Act, 1996 obliges a court when considering what is proper provision to have regard to all the circumstances of the case and in subs. 2, it stipulates in particular what matters the court should have regard to in reaching its decision. It is incumbent on me therefore to consider each of the statutory...
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