Recent Family Law Cases
High Court Judge reaffirms the factors to be considered by the court
In a recent judicial separation hearing of AOM V FOM Judge Binchy went through the factors set out in section 20 of the Family Law Act 1995 in determining the financial provision orders to be made as part of his order.
In this case the husband had refused to engage in the proceedings and it was proved he had dissipated assets.
Judge Binchy made orders in relation to the husband’s property, division of cash assets as well as share options. Interestingly, he refused to make an order extinguishing the wife’s entitlement to inherit from the husband.
He also made an order for costs in circumstances where the husband had brought the application for judicial separation and then had disengaged from the process.
In making an order in relation to maintenance the Judge took into account the likelihood that the wife would return in the future.
Important case on significant of previously required assets
In a recent High Court Case of DE v FG (January 2019) Judge Binchy set out some interesting statements in relation to assets acquired by one of the parties prior to marriage. When the matter came before the court the children of the marriage were aged 20, 17 and 16 respectfully.
The respondent wife was an EU citizen and had previously had a very successful business with a business partner and was earning a salary in the region of €220,000 per annum in the mid-1990s. The husband (applicant in the proceedings) had worked as an English teacher, then worked in the business owned by the wife and her business partner both of whom had invested €170,000 each in the business. Evidence was given that the husband assisted in the development of the business by establishing contacts with tourist guides and tourists as English was his first language.
The wife then bought out by the business partner for a sum of €205,000 using joint marital funds. Subsequently the business went into decline and was eventually wound down.
The parties had purchased a house for €360,000 which was funded by cash assets from the wife of €126,000 and a mortgage.
The respondent later invested approximately €206,000 to reduce the mortgage down to €28,000.
The business premises was subsequently sold for €116,000 and the family home for €565,000
The parties moved to Ireland. Unhappy differences arose and the husband issued judicial separation proceedings.
The wife claimed that when they got married they were given two different options in relation to the “marriage contract” and where neither option was taken the default marriage contract became applicable i.e. the wife was to be given credit for assets which she owned prior to the marriage. The husband claimed that he was not aware of such a contract and he assumed that because they were getting married that all assets would be split automatically on a 50/50 basis.
In his decision Judge Binchy referred to the statement by Ms Justice Irvine in QR v ST i.e. all assets must be taken into account even those owned pre marriage or from an inheritance where jointly acquired assets were insufficient to make proper provision.
He said that in this particular case given the fact that the pre marital assets i.e. the business had subsequently been wound down, no longer existed the argument in relation to the premarital contract was not relevant. He did make the comment however that there was no evidence before the court of the nature of the marriage contract alleged by the wife i.e. he suggested that where reliance was being placed on the existence of a marriage contract that there needed to be evidence as to exactly what that contract was intended to provide.
He also made the point that it was incorrect for the applicant husband to make any assumption in relation to any assumption as to a 50/50 division of the assets.
He took into account the husband’s age in terms of getting a mortgage as the husband was going to be taking the main responsibility for the children given the fact that the wife was living out of the jurisdiction and had intended to come back to Ireland on an intermittent basis to see the children. He gave the husband 50% of a New Zealand bank account and approximately 40% of assets owned by the wife in Las Vegas. This case reaffirms the view that the courts must focus more on the future than the past in making proper provision for the parties.
Circumstances where court will review previously agreed terms
In a recent case of KC v TC the High Court were asked to revise a previously agreed division of sale proceeds of a property with the applicant claiming that the proceeds were insufficient to make proper provision. However, the court held that the difference between the actual sale proceeds and the anticipated sale proceeds were not significant to justify a review.
The court stated that it did have jurisdiction to review the previously agreed split pursuant to section 18 (2) of the 1995 Act but could only do so in circumstances where there was new evidence before the court or a change in circumstances.
The court had regard to the statement by Denham J in YJ v NG i.e. that the court’s obligation was to make proper provision and not a redistribution of wealth.
It also had regard to comments by Abbott J in the case by AK v JK i.e. if the terms made proper provision at the time and if the parties’ circumstances have not changed then it follows that these terms must still constitute proper provision.
The court refused the applicant’s request to revise the terms previously agreed.
Existence of judicial separation – not a bar to a party bringing nullity proceedings.
In a recent decision of Judge Leonie Reynolds in AR v DR the wife argued that her husband could not bring nullity proceedings in circumstances where the parties had been judicially separated. She also claimed that her husband was estopped by reason of the delay in bringing such an application.
In her decision Judge Reynolds said that estoppel did not apply in cases in nullity nor was the existence of judicial separation a bar to the husband’s entitlement to bring that application for nullity.
The applicant wife claimed that the marriage took place without her consent without the full free exercise of her independent will and that she lacked the capacity to enter into and sustain a caring and considerate marital relationship.
Judge Reynolds set out the circumstances in which a nullity could be granted. i.e. that the marriage was void. e.g. one of the parties was already married, one of the parties had not reached the age of maturity ,certain formalities had not been complied with ,the degree of relationship between the parties was prohibited under law or the absence of consent. It was the latter ground that was relied upon in this case.
Judge Reynolds also explained that it was possible for a party to argue that the marriage was voidable i.e. failure the parties to consummate their relationship or the inability for one of the parties to sustain a normal marital relationship .It was this latter point that was also claimed by the applicant.
Judge Reynolds, having reviewed the facts, was highly critical of allegations made by the applicant wife and criticised her in very robust terms and refused the application on the grounds that there was no evidence before the court to suggest that there was an absence of consent at the time of entering into the marriage or that there was any inability to sustain a normal marital relationship. `
In making her judgement she quoted from the Supreme Court in the case of LB V TMc i.e. the courts must demand a heavy burden of proof before granting an annulment.