High Court of Ireland Decisions

Neutral Citation No: [1989] IEHC 26

THE HIGH COURT B V. B

Judgment of Mr. Justice Barron delivered the 15^th day of MARCH 1989.

I have already indicated my general findings of fact. In essence, I have taken the view that the Respondent has failed to carry out a sensible investment policy and that if he had done so he would by now have available considerable sums of money in investments giving rise to reasonable returns.

His present accountant Mr. G prepared a list of assets and liabilities to show what would be available if he had acted more prudently. I found as a fact that after expenses he would have obtained £120,000 sterling or £150,000 from the sale of his Northern properties other than A S. I accepted that A S would produce £200,000 sterling if marketed sensibly but that this would take two to three years. If this had been commenced 18 months ago as it should, then half would have been realised by now. It was suggested that the proceeds be invested in a life assurance unit trust investment from which seven and a half per cent per annum could be taken without lessening the capital. On this basis the Respondent would have available a Department of Health and Social Security pension of £13,735, an estimated income from his dental practice of £14,000 and a notional income from unit linked funds of £12,975. This makes a total of £40,710.

The income from unit linked funds of £12,975 is based upon the value of the invested funds after investment as being £173,000. This figure comes mostly from figures supplied by Mr. G He allowed the sum of £150,000 as the proceeds of sale of the land in Northern Ireland. I accepted this figure as applicable to all the lands save A S. He then allowed the sum of £43,000 as the proceeds of sale of the lands in C and the sum of £55,000 as the proceeds from the sale of the shop in D R. From these sums he deducted: £30,000 representing outstanding income tax; £10,000 representing shop creditors; £75,000 representing loans from the Bank of Ireland; £25,000 representing a loan from the Allied-Irish Banks; £12,000 representing legal fees and other miscellaneous items; and £3,000 representing outstanding educational costs. The balance left came to £93,000. I deducted £20,000 from this upon the basis that the shop was to be sold to E for £35,000. I took half the proceeds of sale of A S at £100,000 sterling or £120,000, but took £100,000 as the figure for the value of the investment on the basis that there would be some cost of investment in the unit linked funds and perhaps higher costs of disposal than had been allowed for.

Before determining what would be reasonable alimony, there are a number of matters to be resolved. First, the present application strictly speaking should not have been re-opened unless it could have been shown that the figure of £350,000 placed on the Respondent's real estate by Mr. Justice Barr was incorrect. The evidence as I have found shows it to be worth more than this. However res judicata does not strictly apply in family matters essentially because the circumstances of the parties are continually changing. The present case is no exception. There has been a sale of lands in the North. The circumstances of the Respondent's dental practice have altered.

I have also taken the view that the Court should seek to assess the Respondent's probable income if he did not persist in holding his lands. One would have assumed, considering the money it was costing him, that they were appreciating faster in value than the expenses. This is not so. Accordingly, the notional income is not the capital appreciation, since there is none, but what could be obtained if the proceeds were invested as suggested by Mr. G

In arriving at the moneys available for investment, it was assumed that the D R premises would be sold for £35,000 to E. This would have meant a gift of £20,000 to him. However, now that the time has come to do this, the Respondent says he will only sell in accordance with his valuer's advice. In other words, his alleged concern for his son's welfare is no more than so much hypocrisy. He regards the sale to E as a loss of face and the last thing he will accept is not to get his own way. If therefore he does not sell this property to E it the figure of £35,000 allowed for it by Mr. G, his potential income must be re-assessed. Much was said about the failure of the Applicant to obtain any income from her hotel investment. I have accepted that she cannot reasonably be expected to take proceedings to force her brother to pay dividends.

It is suggested that she should obtain employment. It may be that since she is receiving alimony she is not obliged to do so. Nevertheless I think her general attitude is wrong.

I appreciate that she makes a home for her children, but I do not think employment would prevent her from doing this. She points to her bad health. Again I do not think that this is as bad as she thinks. I understand her attitude and accept that she believes it is totally unreasonable for her to be expected to go out to work. I think for the moment, it is reasonable that she continues to make a home for her children. It is a pity that she cannot be allowed to help E. This she could do and it would be beneficial for her, for E and for her husband.

The Respondent lives in an expensive house in obviously comfortable circumstances. He can afford leisure activities and holidays to exotic places. These are things his wife is unable to afford.

Figures have been produced as to how much the Respondent can afford. Schedule 2 is calculated upon the basis that the alimony is paid after tax as at present. This shows the Respondent having a net disposable income of £13,213 as against the Applicant's £15,672. However, he has only half the expenses of the house to pay whereas the Applicant has to meet the entire of hers. In my view, there are insufficient grounds for reducing this alimony.

When the further £100,000 sterling to be obtained from A S is available, there should be further funds to enable the Applicant's standard of living to approach that of the Respondent.

In the circumstances the Respondent's application will be refused.