Many family law agreements cannot be implemented because of the slump, writes Carol Coulter Legal Affairs Correspondent

FALLING property values, the dramatic slowdown in house sales and the difficulty of raising loans have caused many family law agreements to unravel.

All court cases are stressful for those involved. When the parties have been married and have had children together the process is even more fraught. Imagine, therefore, what it is like if they come to an agreement, or have the case decided by the courts, and then find that such agreement or court orders cannot be implemented because of the changed circumstances in the property market.

This is indeed what is now happening, according to family law practitioners. "You have the classical situation where there is a buyout of the family home by one spouse and an order is made by the court and they don't comply with it, because they genuinely can't borrow the money," said Eugene Davy, a solicitor specialising in family law.

"This happens quite a lot now. There are also a number of cases where husbands are obliged to pay significant amounts by specific times and they have not done so, either because they can't raise loans, or because their circumstances are reduced by their assets being reduced substantially in value. So there are a lot of court orders that can't be implemented. "That's contempt of court, and the sanction is imprisonment, but no judge is going to jail someone if they have a genuine problem."

Mr Davy pointed out that in family law it is possible under the legislation to revisit court orders where circumstances have changed.

But if, for example, there is a legal separation by agreement it is almost impossible to get into court, as these terms are not the subject of a court order. A change in the terms of the agreement is a breach of contract, and the legal route to deal with it is through seeking "specific performance" of the contract.

Then there are the cases where a High Court ruling is appealed to the Supreme Court by one or other party. The waiting list for a Supreme Court hearing is well over two years from the receipt of the appeal, so the time from the High Court decision to the appeal hearing could be close to three years.

The Supreme Court hears arguments on points of law based on the facts put to the High Court, it does not re-hear evidence. All the facts are those that were before the High Court when the case was first heard. There is no comparison between the value of property three years ago and its value now, but the Supreme Court cannot take new facts into account, so such appeals are now fraught with difficulty.

Muriel Walls, another leading family law solicitor, has had similar experiences. "There are a number of cases in the High Court lists which were settled last year or even earlier this year, where commitments were made, and now you have husbands saying, 'we can't do this'," she said.

So far there has not been a full fight and a judgment in such a case, but there could be soon, she said. "If courts start over-ruling their own orders it will lead to mayhem. They could perhaps give extensions of time. We are watching the High Court with great interest." For couples going through separations or divorces now, all the lawyers involved are having re-valuations of property, she said.

"No one is buying at the moment. We will have to be much more imaginative about how we settle cases and guide clients, defer sales, etc. There is a sense that more cases are being adjourned. People don't want them dealt with at this point in the cycle."

Eugene Davy agreed that there were implications in all this for how solicitors advised their clients. Until recently when a couple already with a legal or judicial separation sought a divorce, and where the wealthy spouse had done very well in the meantime, the dependent spouse might seek to have the terms revisited and maintenance increased.

Now, he said, the wealthy spouse was seeking to have the terms revisited in order to have their contribution cut on the grounds of a deterioration in their circumstances.

"Up until recently if you were advising the dependent spouse in a separation you would endeavour to keep the door open to have the terms improved in the context of a subsequent divorce.

"Now there would probably be a tendency to keep the door open for the wealthy spouse to have the terms reduced in such circumstances," he said.

As a barrister practising family law Catherine White BL is at the coalface of the Circuit Court. "I've seen in Naas Circuit Court where people can't move on because houses are not selling.

"The man might have agreed to pay the mortgage until the house was sold, be renting and waiting for money to be released from the sale of the house, expecting it to be a few months. Twelve months later there is still no end in sight, and he has to go back to court.

"People are being much more realistic now, but I'd have worried about the orders made 12 to 18 months ago," she said.

"Everyone will have done everything in good faith. If you agree on a percentage of the house you're OK, but if you have a fixed sum arrangement, say that the wife will get €300,000, you have to seek to re-enter the case.

"But fixed sums are in a minority now. We'll be seeing many more of these cases re-entered."

Muriel Walls has been dealing with family law for decades, and has seen bad times before.

"We saw something similar in the 1980s. In the end of the day people have to get on with their lives. The other properties that people might buy after separation have gone down in value as well."