M v S

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 06 November 2020
• Neutral Citation: [2020] IEHC 562
• Date: 06 November 2020
• Docket Number: [2020 No. 10 M]
• Court: High Court

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996 (AS AMENDED)

BETWEEN

M

APPLICANT

- AND -

S

RESPONDENT

[2020] IEHC 562

Max Barrett

[2020 No. 10 M]

THE HIGH COURT

Family law – Divorce – Sale of property – Applicant seeking a decree of divorce – Whether the settlement arrangements contemplated the sale of all of the property or but two folios comprised within the property

Facts: The applicant applied to the High Court seeking: (1) a decree of divorce pursuant to s. 5(1) of the Family Law (Divorce) Act 1996; (2) an order for the immediate sale of the family home (the Address A property) pursuant to s. 15(1)(a)(ii) of the 1996 Act on condition that after the deduction of the Creditor 2 and costs of sale that the net proceeds of sale would be held by the applicant’s solicitors on the undertaking to discharge the sums agreed to be paid to Creditor 1 and Creditor 3 under the agreements with same; (3) an order that any remaining proceeds would be a matter for the court in its discretion to apply bearing in mind the applicant’s liabilities and needs; (4) an order for the sale of properties at Address F pursuant to s. 19 of the 1996 Act which, after the discharge of the costs of sale, would be distributed as the court sees fit bearing in mind that if the Address A property does not reach its expected sale price and there is a shortfall that the applicant’s solicitors are bound by undertaking to discharge any remaining part of the said debt first; (5) orders pursuant to s. 14(5) of the 1996 Act directing the relevant County Registrars to sign and execute all necessary documentation to complete and process the said sales of the Address A property and Address F property without further order; (6) a declaratory order pursuant to s. 15(1)(b) of the 1996 Act and s. 36 of the Family Law Act 1995, that the applicant is the sole legal and beneficial owner of the property and premises at Address B; (7) an order pursuant to s. 15(1)(a)(i) of the 1996 Act granting the applicant the sole right to reside in the Address A property pending the sale of the Address A property to the respondent’s exclusion; (8) orders pursuant to s. 17(2) of the 1996 Act granting the applicant pension adjustment orders entitling her to the entire (100%) of the spousal (widow’s portion) death-in-retirement benefits in the respondent’s pension in the event of him pre-deceasing her together with an order pursuant to s. 17(26) of the 1996 Act preventing a variation of this order; (9) orders pursuant to s. 15(1)(b) of the 1996 Act and s. 36 of the 1995 Act granting such declaratory orders as may appear appropriate and in particular in relation to the monies previously frozen by the court in the amount of [Stated Sum]; (10) orders pursuant to ss.13 and 19 of the 1996 Act granting the applicant such lump sums as may appear appropriate from the net proceeds of sale of Address F; (11) orders and cross orders pursuant to s. 18 of the 1996 Act blocking either party from applying to the estate of the other for financial relief pursuant to s. 18(1) of that Act; and (12) an order for some partial costs relating to the proceedings if the court in its discretion considers it appropriate so to do.

Held by Barrett J that: (1) he would grant this decree; (2) he would make this order; (3) he would make this order but in determining how any, if any, such proceeds were to be applied, he would have regard to the then needs of both applicant and respondent; (4) he would make this order but in determining how any, if any, such proceeds were to be applied, he would have regard to the then needs of both applicant and respondent and there was one point that would require qualification before the orders issued, viz. whether the settlement arrangements contemplated the sale of all of the Address F property or but two folios comprised within that property (the Address F Clarification Point); (5) as the respondent’s behaviour had been such that he could not be trusted not to act in such a manner as would frustrate the realty sales, he would make this order and order that the applicant’s solicitors have sole carriage of any property sales and that any need for consents be dispensed with; (6) he would make this declaratory order, heedful that the applicant’s business was and always had been her business and that the property and premises at Address B were inherited by the applicant; (7) he would make this order and allow the respondent 8 more weeks at Address A, that time to be used to obtain alternative accommodation; (8) he would make these orders; (9) he proposed leaving these funds frozen pending the sale of the properties so that they were available to meet any unanticipated shortfall/s in funds and proposed making declaratory orders that the applicant is the 50% owner of the interest in the Address E property and that she is also the 50% owner of the couple’s boat; (10) such orders were best made once it was known what sums were available; (11) he would make these orders/cross-orders; (12) given that these proceedings had been made more complex as a result of the respondent’s actions, notably the failure to make adequate financial disclosures, he would order that the respondent pay 50% of the applicant’s costs in these proceedings.

Barrett J scheduled a further hearing so as to enable the form of the final orders to be agreed and to resolve the Address F Clarification Point.

Orders granting a decree of divorce and other ancillary reliefs sought.

JUDGMENT of Mr Justice Max Barrett delivered on 6th November 2020.

I

Overview

1 This is an application for a decree of divorce and certain ancillary orders. Highlighted, underlined terms are defined on the last page of this judgment which, in order better to ensure the privacy of the parties, is being provided only to the parties.

II

Reliefs Sought

2 The within proceedings were commenced by special summons of 4 February 2020 but follow on judicial separation proceedings that have lingered in the courts for many years without much by way of meaningful progress. The following reliefs are now sought, presumably pursuant to point 3 of the reliefs sought in the summary summons (to the extent that the reliefs now sought are not expressly referenced in points 1 or 2 of the summary summons):

(1) a decree of divorce pursuant to s.5(1) of the Family Law (Divorce) Act 1996;

(2) an order for the immediate sale of the family home (the Address A property) pursuant to s.15(1)(a)(ii) of the Act of 1996 on condition that after the deduction of the Creditor 2 and costs of sale that the net proceeds of sale would be held by the applicant's solicitors on the undertaking to discharge the sums agreed to be paid to Creditor 1 and Creditor 3 under the agreements with same;

(3) an order that any remaining proceeds would be a matter for the court in its discretion to apply bearing in mind the applicant's liabilities and needs;

(4) an order for the sale of properties at Address F pursuant to s. 19 of the Act of 1996 which, after the discharge of the costs of sale, would be distributed as the court sees fit bearing in mind that if the Address A property does not reach its expected sale price and there is a shortfall that the applicant's solicitors are bound by undertaking to discharge any remaining part of the said debt first;

[Court Note: Within ten working days of this judgment there will be a further hearing purely to settle the final orders in these proceedings. Because the settlement arrangements with Creditor 1 and Creditor 3 were only agreed late on the last day of hearing, the court notes that the reliefs sought include orders for the sale of all the Address F property whereas the court understands from the settlement documents provided to it that - using the lettering from Book 11 of the Books of Pleadings (“Booklet of Folios”) - it is only Folios A and B that are to be sold as part of the said settlement arrangements. Additionally, mention was made at one point of the hearing that the applicant may be amenable to the respondent retaining certain of the inherited Address F property, assuming the entirety of same is not to be sold as part of the settlement arrangements. It is not clear from the descriptions of the folios in the Booklet of Folios what exact property is intended to be captured by any (if any) such arrangement. The foregoing are matters that can usefully be clarified at the further hearing. The foregoing is referred to hereafter as the ‘Address F Clarification Point’. All references to Address F in the within judgment should be construed as referring to ‘Address F, subject to the Address F Clarification Point being clarified’.]

(5) orders pursuant to s.14(5) of the Act of 1996 directing the relevant County Registrars to sign and execute all necessary documentation to complete and process the said sales of the Address A property and Address F property without further order;

(6) a declaratory order pursuant to s.15(1)(b) of the Act of 1996 and s.36 of the Family Law Act 1995, that the applicant is the sole legal and beneficial owner of the property and premises at Address B;

(7) an order pursuant to s.15(1)(a)(i) of the Act of 1996 granting the applicant the sole right to reside in the Address A property pending the sale of the Address A property to the respondent's exclusion;

(8) orders pursuant to s.17(2) of the Act of 1996 granting the applicant pension adjustment orders entitling her to the entire (100%) of the spousal (widow's portion) death-in-retirement benefits in the respondent's pension in the event of him pre-deceasing her together with an order pursuant to s.17(26) of the Act of 1996 preventing a variation of this order;

(9) orders pursuant to s.15(1)(b) of the Act of 1996 and s.36 of the Act of 1995 granting such declaratory orders as may appear appropriate and in particular in relation to the monies previously frozen by the court in the amount of [Stated Sum];

(10) orders...