B -v- B
High Court
Judgment was delivered by Mr Justice O’Higgins on December 8th, 2005.
Judgment
An order given with a decree of divorce, where the applicant husband received €40,000 of the value of the family home, was appealed to the High Court, which awarded him an additional €30,000. The judgment was given on December 8th, 2005, and posted on the Courts Service website on June 16th, 2009.
Background
The couple were married in March 1968 and had four children, none of whom were dependent at the time of the divorce, which was granted on April 19th, 2005.
Both parties worked outside the home, the husband as a painter and decorator initially, and the wife as a typesetter. He later studied and qualified as a teacher, and she trained as a proof-reader and sub-editor.
They first separated in 1986, but they reunited in 1987. During that time the wife bought and renovated a cottage, which was later sold, and the proceeds spent on the family. When she resumed living with her husband in 1987 there were a number of debts, and the mortgage on the family home was in arrears. They sold the house and bought a less expensive property, which was also sold when they separated again in 1991, yielding €20,000, which was divided equally between them.
They then bought another house as an investment property for €51,000, but resumed living in it as a married couple. They each initially contributed €6,000 to the purchase, but the wife later contributed a further €14,000 towards the reduction of the mortgage from a redundancy payment, spending the remaining €16,000 of the payment on household expenses.
Between 1992 and 1997 the husband took a university degree and a H Dip in education, qualifying with honours, and became a teacher. The wife paid the mortgage at least until 1999, though the husband said he made some contributions from earnings as a painter and decorator. In 1999 she again left the family home, and instituted judicial separation proceedings, which were heard in July 2000.
They were settled and the terms handed in to court, which granted a judicial separation and made the consent a rule of court. The parties had to return twice to court to amend the terms, as the order made did not accurately reflect what was agreed. The husband later unsuccessfully challenged the judicial separation on these grounds.
The agreement between the parties, both of whom were legally advised, provided for transfer of the family home to the wife and provision of €40,000 to the husband, paid in two instalments, €30,000 immediately and €10,000 a year later.
It stated that it was “in full and final settlement” of the separation proceedings, and also that the agreement made “full and proper and adequate provision for each of them for now and into the future” and also that, in the event of either of them seeking a divorce, neither would seek any financial relief against the other.
At the time of the agreement there was equity of €140,000 in the family home. In addition, there was a debt of the husband of €25,000 to the Revenue, which the wife undertook to pay. There would also be costs of approximately €10,000 for the disposal of the house, leaving a sum for distribution of €106,000, or €53,000 each. These did not take into account the €14,000 paid by the wife for the reduction of the mortgage.
The husband argued that his share should have been half of €106,000, that is, €53,000. He said he felt coerced and that he would have done better if he had gone to court. The wife also felt she would have done better if she had gone to court.
Decision
“It must be remembered that the Family Law Divorce Act (1996) does not mandate equal division of the assets,” Mr Justice O’Higgins said. “What is required is proper provision for each of them, having regard to the statutory criteria and the circumstances of the case.”
He outlined the statutory criteria and their application to this case. He then turned to the issue of the judicial separation and the consent, pointing out that there had been considerable judicial consideration of the weight to be accorded such consents, especially when they purported to be “full and final settlements”.
He said Ms Justice Finlay Geoghegan had said that a spouse cannot validly agree not to apply to the court for maintenance or other forms of ancillary relief, and said that such an undertaking in this case was unenforceable. However, the wishes of the parties in this case were for a clean break. It was also clear that the agreement was entered into in the knowledge that the value of the home would increase.
It was appropriate, therefore, that the consent should be taken into account, and very considerable weight given to it. The agreement between the parties did make proper provision at the time it was made.
The only change in financial circumstances was that the husband now generated somewhat higher income than he did at the time of the agreement, and the house had risen substantially in value. It was now valued at €390,000, and had a mortgage of approximately €80,000.
The husband had argued that the wife could increase her mortgage by €125,000 by taking in lodgers. Mr Justice O’Higgins said he did not think this would be fair on the respondent, who would have to take out a 10-year mortgage which would not be paid until she was 73. She had paid by far the largest share of the mortgage on the family home.
Nonetheless, he considered that the dramatic increase in the value of the house was a factor too significant to be left out of the equation, and he said proper provision would be made by the transfer of €30,000 to the husband.
The full judgment is on www.courts.ie
The applicant represented himself; Catherine Forde BL, instructed by Sheridan Quinn solrs, for the respondent