N.F. v E.F.

• Jurisdiction: Ireland
• Judgment Date: 19 December 2008
• Date: 19 December 2008
• Docket Number: [2005 No. 15M]
• Court: High Court

[2008] IEHC 471,

High Court

[2005 No. 15M]

N.F. v. E.F. (Divorce)

In the matter of the Family Law Act 1995 and in the matter of the Family Law (Divorce) Act 1996: N.F.

Applicant

and

E.F.

Respondent

Cases mentioned in this report:-

N.F. v E.F. [2007] IEHC 317, (Unreported, High Court, Abbott J., 4th July, 2007).

A.K. v. J.K. (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814.

Mullins v. Howell (1879) 11 Ch. D. 763.

Purcell v. F.C. Trigell Ltd. [1971] 1 Q.B. 358.

Thwaite v. Thwaite [1982] Fam. 1; [1981] 3 W.L.R. 96; [1981] 2 All E.R. 789.

Family law - Divorce - Execution - Order for sale of property - Change of circumstances - Dramatic fall in value of property - Appointment of receiver for purpose of execution of order - Variation of order - Jurisdiction to vary executory order - Test for determining whether order might not be enforced - Whether appropriate to execute order - Whether appropriate to vary order - Trustees Act 1893 (56 & 57 Vict., c. 52) - Judicial Separation and Family Law Reform Act 1989 (No. 6), ss. 16 and 18 - Family Law Act 1995 (No. 26) - Family Law (Divorce) Act 1996 (No. 33), ss. 13, 14, 18, 19 and 20 - Constitution of Ireland 1937.

Application to appoint receiver and application to vary order

The facts have been summarised in the headnote and are more fully set out in the judgment of Abbott J., infra.

On the 25th July, 2007, an order was made in the case ofN.F. v E.F. [2007] IEHC 317, (Unreported, High Court, Abbott J., 4th July, 2007) granting a decree of divorce and directing, inter alia, the sale of a specified property. The property was not sold.

On the 25th July, 2008, the applicant sought ex parte the appointment of a receiver for the purpose of execution of the order. By notice of motion dated the 16th October, 2008, the respondent applied to have the order made on the 25th July, 2007, varied.

Both matters were heard together on the 10th November, 2008.

The applicant, who was married to the respondent, was granted a decree of divorce and ancillary relief in 2007 including an order directing the sale of property by a specified date with a reserve price under which it was not to be sold. There followed a dramatic fall in property values and the property was not sold by the specified date. The applicant initiated proceedings for the purpose of executing the order. The respondent applied for a variation of the order.

Held by the High Court (Abbott J.), in varying the terms of the order, 1, that it was well accepted in this jurisdiction that during the course of the execution of an order, a court had general jurisdiction by way of adjournment or adjournment coupled with a stay with or without a condition of payment of interest or such other conditions as to part payment or otherwise, as might be appropriate.

2. That in an extreme case, it might arise that performance of or compliance with the order was impossible and that the discretion of the court would dictate that notwithstanding non-compliance by the defendant with the order, he would be discharged from his obligation to comply therewith without the risk of being in contempt of court. However, while this course of action might be available to the court in respect of discrete parts of a divorce decree, it might never be available in the sense that the decree might be abandoned by all concerned by reason of the fact that the court was impelled by the Constitution to ensure that, come what may, even after the decree was made by the court, provision continued to be made in the changed and even difficult circumstances presented while the order was still executory.

3. That, if parts of the provision made in the divorce decree became impossible, the court was obliged to consider what alternative provision might be made to ensure proper provision under the Constitution and the Family Law (Divorce) Act 1996.

4. That if during the course of the execution of the order the circumstances of the case fundamentally changed through a dramatic and unforeseen drop in property values short of the impossibility of a sale of some crucial asset available for the provision in the order, then there might be circumstances where the court might not enforce that part of the order relating to the sale of such property unless alternative arrangements might be made for provision to ensure the balance and symmetry of the order previously made.

Thwaite v. Thwaite [1981] 3 W.L.R. 96 approved.

5. That the test to decide if the part of the order relating to the sale of property might not be enforced was whether a change, or changes, in circumstances were ("other things" being equal) of such a fundamental nature that it would be unfair and unjust to ignore such change or changes. "Other things" referred to the provisions relating to the assets, income and financial requirements of the parties and were the factors to be taken into consideration by the court in light of the changed circumstances before an order might be varied.

Thwaite v. Thwaite [1981] 3 W.L.R. 96 distinguished;A.K. v. J.K.(Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814 approved.

6. That as the court had no power to appeal itself or reverse itself, the court should, in the case of an executory order, be careful to ensure that, insofar as the circumstances of the case allowed, the original intent, balance and symmetry of the order were maintained, while at the same time adopting whatever changes and adjustments in provision as were necessary to ensure fairness and justice.

7. That the question as to whether there would be any change in the provision and the nature thereof depended not only on the necessary condition of a change of circumstances or of execution arising so as to make it fundamentally inequitable to seek to enforce that part of the order but also that, the sufficient condition of the appropriateness of altered provision was met. While the court had a large discretion in relation to the course it might adopt in relation to this matter, it was not at large as the Act of 1996 and the Constitution of Ireland 1937 applied to provision no matter how or when it is made.

• A.K. v. J.K. (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 I.R. 814 approved.

Cur. adv. vult.

Abbott J. 19th December, 2008

[1] Pursuant to judgment of this court delivered on the 4th July, 2007,N.F. v. E.F. [2007] IEHC 317, (Unreported, High Court, Abbott J., 4th July, 2007) an order was made by the court on the 25th July, 2007, the material points whereof are set out as follows:-

"1. pursuant to s. 13(1) (a) (i) of the Family Law (Divorce) Act 1996 the respondent shall pay to the applicant the sum of EUR3,146.13per calendar month in advance for her support and benefit. The first such payment shall be on the 1st July, 2008, and the court doth direct that these payments shall continue for the lifetime of the applicant. The court further directs that such periodical payments shall be increased by 15% per annum with the first such increase to be on the 1st July, 2009;

2. that payment of the said sum of EUR3,146.13 and the increased amount(s) shall be by standing order direct to the bank account of the applicant, the name and number of which are to be supplied by the applicant at least six weeks in advance of the commencement of the payments;

3. pursuant to s. 13(1)(b)(i) of the...