SF v MF

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott,White Michael J.
• Judgment Date: 13 December 2013
• Neutral Citation: [2013] IEHC 645,[2013] IEHC 633
• Docket Number: [No. 68 M/2010],Record No. 75M/2008
• Court: High Court
• Date: 13 December 2013

F (S) v F (M)

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

BETWEEN/

SF

APPLICANT

AND

MF

RESPONDENT

[2013] IEHC 633

Record No. 75M/2008

THE HIGH COURT

FAMILY LAW

Divorce

Application for divorce and ancillary relief - History of marriage - Separation agreement - Allegation that agreement completed under duress and without legal advice - Application for consumer price index linked maintenance due under separation agreement - Failure to take steps to enforce clause regarding increase in consumer price index - Failure to take steps to restore royalty payments - Acquiescence in non-payment of increase and in cessation of royalty payments - Continuing duty to pay periodic maintenance - Absence of entitlement to reduce maintenance payment - Family Law (Divorce) Act 1996 (No 33), s 18 - Orders made (2008/75M - White J - 17/5/2013) [2013] IEHC 633

F(S) v F(M)

The facts of this case stretch back many years and involve the separation of an estranged husband (Respondent) and wife (Applicant). Following a separation agreement on February, 1989 the parties agreed on maintenance to be paid by the respondent subject to any increases in accordance with the consumer price index annually. Additionally it was agreed that a certain percentage of the respondent”s royalties should be paid to the applicant periodically and that the family home be transferred to the applicant. The applicant eventually came before White Michael J. in the High Court, and applied for divorce and ancillary relief.

Residing over the matter White Michael J looked at the historical context of the separation and the submissions of each party. The respondent paid the applicant royalties averaging €20,000 a year up to the end of December, 2003, when he spoke to the applicant and informed her that he could no longer afford to pay the royalties and although he had paid maintenance it was absent an increase pursuant to the consumer price index. The applicant sought compliance with the original separation agreement by having the maintenance in the agreement indexed linked from 1989 up to date and also payment of half the royalties reinstated from the date those payments ceased in December 2003. Additionally the applicant alleged that the respondent is hiding income and has not disclosed his assets to the Court and is frustrated about his delay in complying with requests for discovery. White Michael J decided that the applicant had not taken any steps to enforce the clause in the separation agreement about the increase in the consumer price index and since the cessation of the royalty payments at the end of December 2003 she did not seek to restore the royalty payments until the commencement of these proceedings on the 7th August, 2008. White Michael J concluded that it would be inappropriate for this Court at this remove to enforce those conditions of the separation agreement of the 10th February 1989. The applicant acquiesced the non-payment of any increase pursuant to the consumer price index, and the cessation of the royalty payments. Additionally

There is no evidence to suggest that the respondent is withholding vital financial information or that he has substantial assets that are not disclosed. Analyzing the financial status of the respondent, including income and royalties, White Michael J decided that the maintenance should be reviewed by agreement between the parties

and that the respondent is responsible for any arrears of the basic maintenance. White Michael J issued a decree of divorce and directed the respondent to pay the sum of €23,800 by lump sum payment to the applicant and a periodic maintenance payment of €400 per week.

FAMILY LAW (DIVORCE) ACT 1996 S18(10)

White Michael J.

1 This is an application for divorce and ancillary relief by the applicant. Proceedings were issued on the 7^th August, 2008. The applicant filed her original grounding affidavit on the 10^th July, 2008. The respondent did not file his replying affidavit until the 9^th May, 2009. There were a number of different orders of the court directing the respondent to deal with queries. An order of discovery was made on the 16^th day of July, 2010. The respondent filed an affidavit of discovery on the 19^th November, 2010. The applicant filed an affidavit of discovery on the 26^th November, 2010.

2 The applicant's solicitors came off record by order of the Court on the 15^th April, 2011. There were no further pleadings until the mater came before the Court again on the 27^th April, 2012, when the Court directed both parties to file an up to date vouched affidavit of means by the 8^th June, 2012. The applicant filed an affidavit of means on the 7^th June, 2012, and the respondent filed an affidavit of means on the 28^th June, 2012. Vouching remained outstanding in respect of the respondent's affidavit of means.

3 The applicant issued a motion on the 22^nd August, 2012, personally returnable for the 12^th October, 2012, seeking maintenance pending suit and lump sum payments and restoration of voluntary maintenance payments that had been made of €500 but which had been varied from the 1^st February, 2011, to €300 a week. That motion was grounded on the affidavit of the applicant of the 23^rd August, 2012.

4 On the 8^th October, 2012, the "A" Law Centre came on record for the applicant and brought a motion to strike out the respondent's defence dated the 8^th October, 2012, and returnable for the 12^th October, 2012. Unfortunately the Law Centre withdrew from the case in December 2012.

5 Further affidavits of means were sworn by the applicant on the 4^th December, 2012, and the respondent on the 15^th January, 2013. The respondent did not fully vouch his affidavit of means until the 23^rd January, 2013. These documents were not updated by the respondent until the date of commencement of the substantive hearing.

6 The substantive hearing took place on the 30^th January, 2013, 31^st January, 2013, 19^th March, 2013, and 20^th March, 2013, when judgement was reserved.

7 The case has been unfortunately complicated by the fact that the applicant has remained unrepresented except for a short period of time since the 5^th April, 2011, and while the respondent did make some discovery, the substantial discovery was not finalised until days before the substantive hearing commenced. Accordingly the Court reserved its position as to whether it required any further documentation or not.

HISTORY OF THE MARRIAGE

8 The parties were married to each other in 1967. The applicant is aged 64 and the respondent is 65. The parties had four children JF who is now 44, DF now aged 40 and twins SF and LF aged 32. The applicant was a homemaker during her marriage and also looked after the mother of the respondent.

9 As well as regular employment the respondent was a part time musician playing with various different bands. In 1980 he began playing music with a third party and became successful. From that time on the respondent became a full time musician. Difficulties emerged in the marriage, mainly due to the infidelity of the respondent and they separated in September, 1988.

10 A separation agreement was concluded on the 10^th February, 1989, between the parties. The applicant alleges this agreement was completed under duress and without legal advice, and the respondent strenuously disputes this alleging that both parties had independent legal advice and there was detailed correspondence between solicitors before the agreement was signed.

11 The essential elements of the separation agreement were that the respondent would pay to the applicant the sum of £400 Irish Pounds per week maintenance net of income tax, the sum to be increased in accordance with the consumer price index on an annual basis and in addition pay half the royalties he received from all sources from any copyright owned by the respondent worldwide. It was stated in the separation agreement that, as there was no tax due on the royalties, the payments were to be made without any deduction of tax.

12 In addition the respondent agreed to transfer the family home to the respondent without consideration. The family home at that point in time was not subject to any mortgage.

13 The respondent retained agricultural lands

14 The respondent duly complied with his responsibilities under the separation agreement, the maintenance was never increased in accordance with the consumer price index and was converted to €500 per week which was paid at all times by the respondent up to the 1^st February, 2011.

15 In addition the respondent paid the applicant royalties averaging €20,000 a year up to the end of December, 2003, when he spoke to the applicant and informed her that he could no longer afford to pay the royalties. The respondent continued to pay weekly maintenance of €500 per week but varied that from the 1^st February, 2011, to €300 per week which is still being paid by the respondent to the applicant.

16 In addition there were some other financial transactions between the parties.

17 In 1990 the respondent transferred a portion of the agricultural lands containing 16 acres to the applicant. The reasons for that transfer are in dispute, the applicant alleging that initially this was a transfer on the understanding that she would transfer it back to him but that royalty payments of €18,000 built up and there was an agreement between the parties that the applicant would retain the 16 acres and waive the £18,000 of royalties due. The respondent disputes this and says that there was an outright transfer to her of the 16 acres.

18 In 2003 the applicant retransferred to the respondent 7 of those acres in consideration of the sum of €125,000. The applicant alleges this was to discharge debts that she had built up in a boutique business and the respondent said that it was a straightforward commercial transaction...