Family law conference:Men are seeking, and getting, maintenance and lump sums in family law cases where their wives are better off than they are, a family law conference at the weekend was told.
Gerry Durcan SC told a questioner at the conference organised by legal publishers Thomson Round Hall in the law library distillery building, Dublin, that the courts made no distinction based on sex. "There are cases where the wife has assets and the husband is chasing them," he said. "Husbands are sometimes looking for the full array of reliefs, including maintenance and lump sum orders."
Mr Durcan delivered a paper on recent decisions of the High and Supreme Courts in family law, during which he described a case where the wife had greater assets than the husband. The majority of family law cases going to the High Court are "big money" cases, while the Circuit Court hears about 98 per cent of divorces and judicial separations.
In this case the couple were married in 1994 and had two children. Both parties had their own businesses. The wife began judicial separation proceedings in 2001, which were settled. The settlement included agreed arrangements for custody of, and access to, the children.
The husband paid €300,000 to the wife and in return she transferred the family home to him. He agreed to pay her €1,000 a month, to be increased in line with the Consumer Price Index.
He released any interest he had in her businesses and the settlement was to be "full and final" in the event of a divorce.
At the time of the settlement the wife's business was valued at between €820,000 and €2,235,000. However, after the settlement it emerged that it was worth much more than that, and that the value had been miscalculated - although it was not found there was bad faith involved.
By the time the divorce came up the husband's assets were valued at €2.8 million while the wife's were valued at almost €20 million. Referring to the settlement, the judge found that the weight to be given to it could be affected by any error made in coming to it, "very much like the lack of disclosure which I consider exists in this case".
Considering what might have been taken into account if the full information was available at the time of the settlement, the judge made a number of additional financial orders in favour of the husband, amounting to €2,118,000, and ordered him to pay only nominal maintenance for the children. The case is being appealed to the Supreme Court, according to Mr Durcan.
In another case involving a "full and final settlement" clause, this time in a divorce - and where the wife returned to court seeking a "second bite" when the husband's circumstances improved shortly after the divorce - Mr Justice Abbott found that the "full and final settlement" precluded a further lump sum. However, he found it did not preclude increased periodical payments to the wife.
At the time the husband's assets were worth €21.5 million, and the wife's €2.86. He had an annual income of €471,000 while hers was €57,000. The judge increased this to €114,036.
"This case . . . suggests that a full and final settlement clause may have considerably greater effect in the context of a divorce than it has in the context of a judicial separation," Mr Durcan said.
In another case Mr Justice Abbott "had regard to the practicalities of commercial life", where there was considerable indebtedness in a business. "Certain payments were deferred to allow the husband to bring some stability to his financial position and gave him a good degree of flexibility in regard to how this should be achieved."
In a case recently decided by Mr Justice Sheehan, the interests of third parties, in this case the employees of the two businesses owned by the husband, were taken into account.
Mr Durcan pointed out that the High Court did not consider there was any "necessary entitlement to equivalence of life-style" between the parties, especially when the separation had taken place a long time ago.