P. C. R v G. R
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael White |
| Judgment Date | 15 March 2013 |
| Neutral Citation | [2013] IEHC 635 |
| Court | High Court |
| Date | 15 March 2013 |
[2013] IEHC 635
THE HIGH COURT
BETWEEN
AND
FAMILY LAW (DIVORCE) ACT 1996 S13(2)
FAMILY LAW (DIVORCE) ACT 1996 S22
FAMILY LAW (DIVORCE) ACT 1996 S10
FAMILY LAW (DIVORCE) ACT 1996 S19
F (N) v F (E) 2011 2 IR 100 2011/21/5347 2008 IEHC 471
T (D) v T (C) 2002 3 IR 334
FAMILY LAW
Divorce
Application to vary - Applicable test - Whether âÇÿclean break' in family litigation - Settlement agreement including terms to make payment by instalment - Term to sell property if default of payment of instalment term - Application to vary instalment order refused - Refusal appealed - Whether appropriate to vary instalment order - NF v EF (Divorce) [2008] IEHC 471, [2011] 2 IR 100; DT v CT (Divorce: Ample resources) [2002] 3 IR 334 and AK v JK (Variation of ancillary orders) [2008] IEHC 341, [2009] 1 IR 814 approved - Thwaite v Thwaite [1981] 3 WLR 96 considered - Judicial Separation and Family Law Reform Act 1989 (No 6), s 18 - Family Law (Divorce) Act 1996 (No 33), ss 10, 13(2), 19 and 22 - Constitution of Ireland 1937 - Appeal dismissed (2012/96CAF - White J - 15/3/2013) [2013] IEHC 635
R(PC) (Otherwise R(C)) v R(G)
Facts: Following the collapse of their marriage in 2006, the applicant issued a civil bill seeking a divorce and ancillary orders. Following negotiations, the court granted a decree of divorce and terms of settlement were agreed between the parties. The essence of the settlement was that the family home would be transferred to the respondent and the remaining two properties owned by the interested parties (Property A and Property B) would be transferred to the applicant. The applicant, further, agreed to pay the sum of €200,000 towards the mortgage on the family home, which had an outstanding balance of approximately €400,000. The applicant subsequently sold one of the properties, but did not realise the valuation anticipated. His income as an architect had also deteriorated substantially. An order was made pursuant to s. 13(2) of the Family Law (Divorce) Act 1996 (''the 1996 Act") directing the sum of €200,000 be paid to the respondent by the applicant by way of instalments, the first on the 22nd June, 2011, of €100,000 and the balance on the 22nd June, 2012. A sum of €95,000 was paid to the respondent on the 25th January, 2012, as €5,000 had already been paid to the respondent. The sum of €100,000 due on the 22nd June, 2012 was not paid and the applicant sought to vary the order for that payment. Under the terms of the divorce settlement, if the applicant was in default of the instalment order, there was to be an order for the sale of Property A. In compliance Property B was transferred and the applicant pursuant to s. 22 of the 1996 Act applied to vary the order of the Circuit Court of the 23rd June, 2010, which was refused in October, 2012 and that refusal was the subject of this appeal.
Held by Justice Michael White, that the applicant was in default and that the order for sale was activated legally. He determined that, pursuant to the provisions of s. 22 of the 1996 Act, it was not open to the court to vary an order made pursuant to s. 19 of the Act. After assessing, the applicant”s motion for relief and having taken into consideration the necessary valuations and net property assets, Justice Michael White reasoned that it was necessary for the court to balance the rights and actions of both the applicant and the respondent. He acknowledged that the applicant had entered into terms of settlement with the respondent in the course of the Circuit Court proceedings and that the respondent had accepted these terms in good faith and abided by the terms of settlement. To ensure as much certainty as possible the default clause was accepted by both parties freely and following legal advice. Thus, Justice Michael White reasoned that the applicant was aware of the consequences of what would happen if he failed to pay the required instalments. In exercising his discretion, Justice Michael White, further determined that whilst there is not always a clean break in divorce or separation proceedings, the legal principles of certainty and finality in litigation should not be disregarded in family law litigation. In the case at hand, a clean break had been made, as evident from the settlement agreement. Whilst, he was conscious of the financial difficulties of the applicant, it was accepted by the court that the terms of settlement were very carefully drafted to deal with default and if the court acceded to the application to vary, certainty of any sort in family law litigation would be impossible to achieve. Consequently, Justice Michael White reasoned that the applicant had freely acknowledged in the terms of settlement and that in default of the lump sum payment there would be an automatic default provision of a sale of Property A, pursuant to s. 19 of the 1996 Act. He refused the application to vary and affirmed the order of the Circuit Court of the 17th October, 2012.
1. This is an appeal from an order of the Circuit Court of the 17 th October, 2012, arising from an original order of the 23 rd June, 2010, when a decree of divorce was granted with ancillary orders.
2. The parties were married on the 12 th September, 1974. They have three children none of whom is legally dependant, but two of whom require some financial support. The parties' marriage irretrievably broke down in November, 2006 and they have been living apart since.
3. The parties purchased their family home in 1978 and subsequently in 2001 and 2004 purchased properties in S. Those properties are referred to in this judgment as Property A and Property B. The applicant is an architect and the respondent is a medical scientist.
4. The applicant issued a civil bill seeking a divorce and ancillary orders. On the second hearing day of the proceedings on the 23 rd day of June, 2010, after negotiations, terms of settlement were agreed between the parties subject to the Court's decision on proper provision. The Court granted a decree of divorce with the ancillary orders as set out in the terms of settlement. The essence of the settlement was that the family home would be transferred to the respondent and the two properties in S would be transferred to the applicant. The applicant further agreed to pay the sum of €200,000 towards the mortgage on the family home, which had an outstanding balance of approximately €400,000. A portion of the mortgage on the family home had been used to acquire one of the properties in S.
5. The applicant subsequently sold one of the properties in S, Property B, but did not realise the valuation anticipated. His income as an architect has also deteriorated substantially.
6. An order was made pursuant to s. 13(2) of the Family Law (Divorce) Act 1996 ("the 1996 Act") directing the sum of €200,000 be paid to the respondent by the applicant by way of instalments, the first on the 22 nd June, 2011, of €100,000 and the balance on the 22 nd June, 2012. The sum of €95,000 was paid to the respondent on the 25 th January, 2012, and applied to reduce the mortgage on the family home to the sum of €305,000.
7. The applicant states that the sum of €5,000 had already been paid to the respondent. The sum of €100,000 due on the 22 nd June, 2012, has not been paid. By notice of motion of the 24 th November, 2011, returnable for the 14 th December, 2011, the applicant sought to vary this order for payment of the second instalment pursuant tos. 22 of the 1996 Act.
8. Paragraph 12 of the terms of settlement states:-
"An Order pursuant to the provisions of section 10 of the Family Law (Divorce) Act 1996 providing for the sale of premises at [Property A]. Upon the discharge of legal and auctioneering costs...
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