S (G) v M (P)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 16 March 2013 |
| Neutral Citation | [2013] IEHC 655 |
| Court | High Court |
| Date | 16 March 2013 |
[2013] IEHC 655
THE HIGH COURT
BETWEEN
Family – The Family Law Act 1995 – The Judicial Separation and Family Law Reform Act 1989 – Distribution of assets – Provision for discharge of debt
Facts: The proceedings concerned an appeal from an order of the Circuit Court challenging the order of judicial separation along with provision made for the parties. The parties had a dispute over financial arrangements made by the Circuit Court.
Mr. Justice Henry Abbott modified the order of the Circuit Court and made provisions for both the parties. The Court held that it had adopted an informal approach in fairness so as to allow the parties to settle outstanding debt. The Court granted an order for payment of a certain sum of money to the husband to cover all his needs and payment to his creditors. The Court keeping in lieu the high standard of living enjoyed by the wife as demanded by her career needs granted an order for a rental accommodation to the wife to the exclusion of the husband. The Court continued the order of the Circuit Court in relation to custody and access of children pending hearing the voice of the children and submission of the parties.
JUDGMENT of Mr. Justice Henry Abbott delivered on the 16th day of March, 2013
1. This is an appeal from an order of the Circuit Court (Judge Martin Nolan) dated 27 th February, 2002, whereby an order of judicial separation was made together with provision for the parties.
2. The parties were married on the 25 th May, 2009. The respondent/appellant (husband) had been married and separated before and had just recently been divorced. The applicant/respondent (wife) has not been married before but had a non-marital child, now aged twenty six. The husband and wife also had (with each other) three non-marital children: a daughter born on 19 th October, 1995, a son T. who was born on 25 th February, 2001, and a son H. who was born on 24 th February, 2003. The husband is aged 58 and the wife is 48.
3. The Circuit Court order may be summarised as follows:-
The heavily indebted family home was to be sold. The sum of €100,000.00, from proceeds of the sale after discharging the mortgage was set aside for interim maintenance of both parties payment of school fees ect, and thereafter the sum of €450,000.00 was set aside for the immediate purchase of a house for the wife and the three dependent children of the marriage for their sole residence until the youngest child of the marriage, namely H., reached nineteen years. When H. reached nineteen years, the wife was to pay to the husband a sum representing 25% of the value of the house at that date and in the event of the wife being unable to do so, the house to be sold with the wife obtaining 75% of the proceeds and 25% to the husband. The husband was to receive a lump sum of €100,000.00 from the proceeds of the sale of the family home, and the learned Circuit Court judge estimated that a sum of €46,000.00, being the balance, should be distributed equally between husband and wife.
4. This Court has decided that a sum of €300,000.00 be allowed be paid to the wife together with a pension adjustment order of 80/20 in favour of the wife. The balance of funds available to the family, are to be paid to the husband so that the husband may be better able to deal with his debts and re-establish his business, to the possible detriment of the wife's plans as supported by the Circuit Court to purchase a dwelling within the general vicinity of the former family home.
5. The reasons for such outline decision are set out in the discussion of the statutory consideration of, the Family Law (Divorce) Act 1996, s.20(2)(a), as follows:-
(a) The income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,
The income of the parties, on which they are solely reliant, is the income of, the wife, as a temporary administrator with a reasonable security earning a gross salary of €46,000, leaving a net monthly income after all deductions of approximately €2,630.41. In addition, the wife is in receipt of children's allowances in respect of the sum of €390.00 monthly.
The husband is at present unemployed. He was an auctioneer having set up his own very successful auctioneering business, which has been entirely dissolved. He hopes to re-establish commercial activities in the property business as some sort of deal maker exploiting the beginnings of activity by NAMA and banks, in encouraging some commercial development in Dublin and the outlying centres. He hopes that when he receives a qualification in international arbitration, this will provide an opportunity for earning income in his less energetic older years. While the wife's current employment involves a considerable amount of PR activity and she is obviously very talented, this Court discounts the possibility of her being headhunted into better employment for the foreseeable future, due primarily to the bad economic circumstances.
(b) The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouses or otherwise),
The applicant must provide for herself and three dependent children, currently without any financial assistance from the husband, and the probability is that in the short to medium term it will not be possible for the husband to provide any maintenance. Both parties received a sum of €18,000.00 at the conclusion of the Circuit Court case and both husband and wife have used that money to assist with paying rent. Both parties are heavily indebted, the husband more so and in the case of the husband there is a pressing necessity for the husband to reduce this debt and provide credible proposals for payment into the future or compromise of same. Since the filing of the appeal, the husband has shown that he has a capacity to negotiate and compromise debts - as in the case of two judgment mortgages claiming money for past legal services due to the husband's family law proceedings against the wife. As it turns out, these judgment mortgages were released consequent to an order of White J. on the basis that the parties could argue in respect of either the joint or several liability thereof with an order that the wife's solicitor, would hold on deposit the net proceeds of the sale from which the proceeds of such attempted judgment mortgages might or might not be paid out by this Court. The husband is likely to require a sum for basic rent and frugal requirements. His rent should be kept to a minimum and the situation is really one where he cannot factor into any rented accommodation the fact that he is regularly having access to his two sons, who have a good relationship with him. Having regard to the resources available, they may all just have to make do with bachelor/studio type accommodation and nothing more. The wife sees her main financial needs after expenditure of salary on the day to day running of the household and maintenance of her three children to be the purchase, free from encumbrances, of a house in the price range envisaged by the Circuit Court Decree (just over €400,000.00). This is not considered by the court to be a very practical proposition, as based on the Circuit Court order, the wife would have to forego all the luxuries, leisure activities and cosmetic treatments which were so much part of her life and her children's lives to date. She wishes to continue to live in the leafy suburbs, but to do so having expended €400,000.00 in capital in a house together with incurring the overheads of house ownership. The Court cannot see how she will continue to enjoy the little luxuries which go to make up the culture of the area in which she chooses to live with her children, and which are necessary for the purpose of keeping herself well presented and motivated, in relation to her employment (which depends as much on her own positive good image and talent as anything else). This Court, therefore, sees a rental existence for the wife and children as being less oppressive for the formative part of the children's lives, even though that may be seen as less secure, from a capital point of view. This may be a great disappointment to the wife, but it is intended that to compensate for this (to some extent at least), a significant pension adjustment order will be made in her favour, against the husband's pension which currently is valued at €70,000 odd euro, but which according to the most recent letter from the provider, will more generously grow to a guaranteed €165,000.00, when he retires at 65, provided the pension is not cashed before that date.
(c) The standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be.
The parties enjoyed an upper middle class lifestyle until some years after the dissolution of the husband's partnership business in 2005, and even after the collapse of the property market in 2008. The good standard of living available for the parties was exemplified by a gross salary of €900,000 per annum of the husband at a time when the wife was in employment as well, leaving the parties comfortably in a position to provide an upper middleclass lifestyle even if the husband was indebted through litigation and maintenance payments to his former wife. While the husband attempted to set up a business in a new...
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