High Court of Ireland Decisions

 


THE HIGH COURT

No. 2000/36M

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 AND

IN THE MATTER OF THE FAMILY LAW ACT, 1995

BETWEEN

CF

APPLICANT

AND

CF

RESPONDENT

JUDGMENT of O'Sullivan J. delivered the 11th of June 2002.

The Parties

1.      The applicant, born on the 25th November, 1949 was married to the respondent her husband, born on the 17th April, 1950. They first met socially sharing a joint interest in sailing in 1977 and married on the 23rd February, 1982. They have one child, MF, who will be eighteen next September 2002. The respondent qualified professionally in 1973. The applicant was qualified as an architect in 1974 and practised for five years until her mother was tragically killed in a car crash in 1979, and again between 1981 and 1984. She ceased again in 1984 on the birth of her daughter MF until about 1991 when she practised for two years and then subsequently from 1997 continuing to date.

Introduction

2.      The respondent had a busy practice from 1973 onwards. The parties lived in a flat when they married. The applicant's father lived in a substantial residence nearby which had been the property of his wife and continued so to do until he died in 1994. Living near him when she married in 1982 the applicant used to visit and look after him and her brother at her parental home. MF was born in 1984 and in July of 1986 the parties moved into the substantial residence with the applicant's father. This substantial residence was purchased by the payment of £100,000 by the respondent to the applicant's father, the arrangement being that the latter would continue to have a right of residence in portion of the home until his death. The property was divided, the respondent spending a further £111,000 on the front and somewhat larger portion of the home, the applicant's father spending some funds on his partitioned portion. The parties still reside in this home the applicant living substantially in the portion which had been occupied by her father. The parties have lived separate lives since the summer of 1997, albeit in the same large substantial residence.

3.      As indicated the applicant practised as an architect for some years following qualification and intermittently as already outlined, since. She has a post graduate qualification in conservation. She is employed at present on an hourly basis at £15.00 an hour as a conservation architect. Her earnings have not in fact totalled more than some £14,000 in any one year.

4.      The respondent had a busy practice and has acted in a handful of very significant matters. He has a niche speciality practice and a relatively small client base at any one time.

5.      Apart from his practice the respondent invested in the property market in the 1980's and also in share dealing. He came under some significant financial pressure particularly in connection with the collapse of the PMPA Insurance Company with which he was involved. He subsequently withdrew from the property market and went through a period of severe financial strain.

6.      The 1990's were better for him: he was involved in significant practice and also in three successful libel actions which produced some £80,000 in awards. He recovered and enjoyed significant earnings and during the second part of the 1980's and through most of the 1990's the parties enjoyed an extremely comfortable lifestyle characterised by their shared interest in competitive international yachting at the highest level and holidays abroad several times a year at the most comfortable locations. They both enjoyed and shared this expensive lifestyle.

7.      Towards of the end of the 1990's the respondent decided to lay something by for the future in lieu of pension: he invested very significantly in the share market which investment has recently turned very sour indeed with the result that this large investment of in excess of half a million pounds now stands as a loss maker. Seen broadly the course of the respondent's career can be seen as a period of good earning followed by severe financial strain followed by a significantly expensive lifestyle funded by good earnings at the bar followed at the most recent point by a serious adverse downturn. This latter has been accompanied by an effective temporary halt to his practice with the coming to an end of payments in a long running matter for which he received overall something in the region of £1 million in fees. He has looked after this matter to the virtual exclusion of all other significant income generating work and this source of funds has now effectively dried up. He is engaged, he says, "in quite a few matters", currently, but his practice is not to submit bills until each matter is finalised. This means that he has no "work in progress". Money is due to him and he does have the basis or at least the seeds of a revitalised practice following the end of the long matter. He is reasonably confident about the future but, of course, cannot be sure.

8.      MF is now doing her Leaving Certificate and both parents hope and expect that she will continue to study at third level. She has a difficult couple of years behind her and now appears set for a reasonably steady and progressive young adulthood ahead.

The Claims

9.      The applicant claims ownership of the family home (which was taken in her name at the time of the transfer from her father in 1986); the entire value thereof to satisfy her claims in respect of it and in respect of security for her future; and payment of a sum or sums by way of maintenance. She also claims that MF should reside with her and maintenance in respect of this.

10.      The respondent claims that in fact he is the beneficial owner in possession of the family home and seeks a transfer order giving him legal title thereto; he accepts that a payment must be made to the applicant of a sum up to one half of the value of the family home to satisfy her interest therein and, if thought appropriate, a further order of periodic payments for maintenance. He submits that a formal order of maintenance in respect of MF is not necessary as she has been and will be looked after for as long as she requires it.

Other Issues

11.      A number of specific issues have arisen in the course of this acrimonious case. The first of these arises out of an allegation by the applicant that the respondent had set up, secretly, a bank account in the island of Anguilla which has been kept secret not only from her but from the Revenue into which he has salted away money which has not been disclosed. A similar allegation was made in relation to a bank account in Switzerland.

12.      The respondent has given evidence that this has caused him embarrassment in both the social and economic senses: has damaged his credit and reputation amongst clients and bankers and requests a formal decision dismissing, if appropriate, this claim.

13.      In order to consider this allegation I must set out and deal with the evidence adduced in support of it.

14.      The applicant says that the respondent told her he was going to set up an account in Anguilla. She also says that she visited this tiny island on holiday with him and their daughter on two occasions. On these occasions the respondent went into a bank - she cannot remember which - whilst she remained outside with her daughter in the car. She also gave evidence that following a request in 1997 by the respondent that she sign a document authorising the use of the family home as security for a loan of £200,000 she took legal advice from Messrs. Gallagher Shatter & Company, a well known family law legal practice, who advised her not only not to sign but also to procure any documents from home including from her husband's study which would give a picture of his financial situation. In so doing - which she did with a sense of unease because it was distasteful to her - she said she found a document containing the account number of this bank account of her husband's in Anguilla and she took it down and gave it to her solicitor. In the course of giving this evidence it emerged that there was a piece of paper with her own handwriting on it at home which had not been discovered and I directed that she produce this on the next day in the case. It turned out that this piece of paper had no such thing as a bank account number on it. There was a reference to a company with an address in the Caribbean with a P.O. Box No. in respect of which the respondent said this was a company associated with a family trust belonging to the applicant's family of which he is protector. A second reference was to a management company in Switzerland and a third to a social contact in connection with sailing. Accordingly the applicant's evidence that she gave her solicitor the bank account no. of her husband's bank account in Anguilla cannot have been correct.

15.      It seemed to me that the applicant's suspicions that her husband was moving monies out of the country without declaring same to the Revenue or to her was initiated or strengthened when she was asked in 1997 to sign a consent that the family home be used for security for the loan already referred to. She saw, as she said in evidence, a picture of her husband leaving the country having salted away monies abroad and leaving her with the family home with a big mortgage on it. In response to cross-examination on this topic by Mr. Cross S.C., counsel for the respondent said, at one point, that she never alleged that her husband had any money in the account in Anguilla so therefore there was nothing wrong with that, was there? Moreover she accepted that it was all irrelevant, apparently in the context, as she saw it, that she was not claming any part of these moneys.

16.      This allegation was, understandably, the cause of considerable anger and distress on the part of her husband. It was born, I think, of suspicion in the manner I have indicated and maintained throughout the case right up to the very end notwithstanding the evidence and the manner in which it evolved at the trial. With regard to the reference to the company in the Caribbean, noted in the applicant's document which contains the Swiss company and the sailing reference, the applicant said she would not accept from the respondent his evidence that this related to her uncle's family trust but would accept this only from her uncle himself. The applicant, clearly, harbours deep suspicion and hostility towards the respondent.

17.      Apart from the deficiencies in the applicant's evidence on this topic referred to above I have also borne in mind certain other limitations when considering her evidence. She said that she had accompanied her husband and their daughter to Anguilla on two occasions. When it was put to her that this was not correct she insisted. It was only when her daughter's passport was produced to her indicating three trips that she accepted that she was incorrect. The case was opened, moreover, on the basis that her husband had paid £92,000 and not £100,000 to her father-in-law for the purchase of the residence. Later it was accepted that he had paid a further £8,000 both payments on the same day.

18.      These matters of relative detail would not of course, of themselves, amount to much if anything. However, I have the impression that the applicant was inclined to be too confident in her own recollection of events and too disinclined to accept her husband's version unless effectively compelled to do so.

On the other side of this topic the respondent has strenuously denied that he ever improperly removed money from the jurisdiction or hid it from the Revenue Commissioners or from the applicant. Furthermore the applicant's accountant Mr. Peelo whilst pointing to what he discerned as anomalies in the respondent's method of book-keeping, went out of his way to clarify that he was not suggesting that all receipts were not returned to the Revenue.

19.      When dealing with an allegation of fraud whilst the standard of proof remains the same as in all civil actions, namely the accusation must be established upon the balance of probabilities, the courts have emphasised that they will require clear and convincing evidence where such a serious allegation is made.

20.      I have come to the firm conclusion in relation to this allegation that the applicant has failed to establish it. When considering whether to accept her evidence to the effect that the respondent told her that he was going to open an account in Anguilla and his forthright denial I accept his evidence in preference to hers having regard to the many considerations which I have indicated above. This was at all times a very serious allegation and was maintained right up to the end of the trial notwithstanding the way in which the evidence unfolded. Common justice requires, in my opinion, that I make quite clear that there is no acceptable evidence to support it and having carefully considered all the evidence offered I unhesitatingly reject it.

Family Home

21.      The legal title in the family home vests in the applicant. It was conveyed by her father to her sometime after the parties moved into it in July of 1986. The respondent paid £100,000 for it to the applicant's father. Because of questions circulating in the applicant's family he had an independent valuation of the property on the open market at £120,000. I understand from the respondent that this valuation took into account his father-in-law's right of residence for his lifetime. When I asked him why he paid £100,000 rather than £120,000 he replied that the property was in poor condition and that he had in fact to spend £111,000 on it over subsequent years. He also referred to the fact that his father-in-law spent money on the rear portion. I am not entirely sure whether the independent valuation was on the basis of the property in good condition or in its existing condition. The respondent did clarify that the £20,000 shortfall was not in any way related to the applicant's interest in the property (which had originally been her mother's). The respondent has insisted that he paid full market value for the property in the context of his claim that the entire beneficial and legal interest should properly be vested in him and his further claim that the property was conveyed to his wife simply to avoid stamp duty. The applicant on the other hand maintains that it was conveyed to her because it was her father's wish that this be done. The property is today, no matter which view is taken, worth well in excess of €1 million, that is vastly more that it was in 1986. It is clear that it is the family home and in principle it seems to me that in the absence of an explicit agreement between the applicant and the respondent the family home should be shared equally between them, this being a marriage which was, to use a phrase, employed by McGuinness J. in J.D. -v- D.D. [1997] 3 I.R. 64, at p. 95

"... a lengthy partnership of complementary roles and it seems to me that it should result in a reasonably equal division of the accumulated assets."

22.      I will deal with the general principles of law at a later point in this judgment but suffice to say at this point that the respondent accepts that the applicant would be entitled to a share up to 50% of the value of the family home in the event that he is allowed to keep it. This seems to me to be generally in accordance with principle.

23.      It is clear that the respondent contributed the vast share of the money paid for the purchase and upgrading of the family home. On the other side of this coin he was engaged in full time work outside of the house whereas the applicant to a significant extent, partially suspended and downgraded her practice as an architect in order to look after their daughter and manage the family home. In my view in this case the applicant and the respondent are each entitled to a half share in the family home.

24.      How is this to be distributed?

25.      The applicant submits that the family home should be sold because this is the only way to identify its true value, given the wide disparity between the valuations offered to the court. She does not seek to reside in it as it is too big for her.

26.      The respondent says that he has his practice in the family home, he wishes to retain it for the benefit of himself and his daughter and he also says that the costs of selling the family home and buying another home for himself would be saved if he is entitled to retain the home. He accepts that he must pay a fair share of the value of the home to the applicant.

27.      The applicant is also seeking a further lump sum payment in respect of her future security. It is clear from his evidence that the respondent would intend approaching the bank to raise a loan to discharge any lump sum payments which would be ordered in this case. When I asked counsel for the respondent, what would happen if the bank failed to make such a loan available, counsel said that in that event the respondent would be obliged to sell the family home to raise the amount ordered to be paid to the applicant. He is seeking, effectively, a chance to retain the home on the basis of a fair distribution of assets between the applicant and himself, and if this chance proves unavailable, he accepts he will have to pay that fair distribution in any event if necessary by selling the home.

28.      In principle I can see nothing inappropriate about facilitating the respondent's wishes, subject to one element of concern. It is true as the applicant's counsel has submitted that there is a wide variation between the two valuations of the family home submitted to the court. It is also submitted, on the other side, that the market is uncertain and that this would not be a good time to sell such a property as the evidence suggests that not many of them are on the market because they do not sell well just at present from the point of view of the vendor.

29.      In my view the task of reconciling two valuations is something which the court must undertake and the fact that there is a wide variation should not deter it from undertaking it. The balance of fairness between the parties requires in my opinion that I make a property adjustment order whereby the legal and beneficial title in the family home will be vested in the respondent subject, of course, to the payment by him to the applicant of the lump sums which are identified later in this judgment.

30.      The next question is what is the value of the family home?

31.      Mr. Broadhead from Messrs. Lisney valued the property at €2.22 million (£1.75 million) in June 2001. He says that the value of the property is the same today. He acknowledges that the price would have softened since then (he attributes this to the crash in the Nasdaq Index in March 2000 rather than the attack on the World Trade Centre on the 11th September 2001). He said that prices would have dropped by as much as 20% since June 2001 but he also said that prices would have come up from that low point since then to their level of this time last year. If he was putting it on the market he would give £2 million as a guide or perhaps £2.2 million. He would advise a vendor to refuse an offer of £1.5 million. He said that his firm, Messrs. Lisney, were the main selling agents in the vicinity and produced a list of prices achieved since March 2000 and up to and including April 2002 which he says supported his valuation.

32.      Mr. Terry Sudway gave evidence of value on behalf of the respondent. Whilst there were some differences between these witnesses as to the size of the site and the condition of the property they were both agreed that it should be sold as a residential property on its own grounds rather than as a site for development (there was virtually no additional potential development value). The real difference between these experts was in terms of value itself. Mr. Sudway's view was that the value of the property in June 2001 was more like £1.5 million rather than Mr. Broadhead's £1.75 million. Furthermore he said that the property reduced by the end of 2001 by 20% because of the events of September 11th. He said further that the market continued to go down steadily in 2002 thereby reducing the value by a further 10%. That further 10% has now been recovered with the result that the value stands at 20% less than its true value in June 2001 which according to Mr. Sudway was £1.5 million.

33.      The issue between these experts therefore is whether the value of the property is the same as it was in June 2001 at £1.75 million (€2.22 million), or 20% less than it then was at £1.5 million (being €1.35 million).

34.      I am inclined to lend more weight to the opinion of Mr. Broadhead because his firm is actively engaged in the market in the area. I think his valuation may be at the top range of what would be obtained by a vendor on a good day but I also accept that he would advise a vendor not to sell if he got an offer of £1.5 million.

35.      In my opinion the open market value of the property is €1.9 million.

 The Parties' Incomes

36.      As already indicated in general terms the respondent's income derives from a relatively narrow base and in recent times has been generated by a single long-running matter to the exclusion of other significant work. This income stream has now dried up. He has given evidence that he is in "quite a few matters" but these are not generating income as his practice is to submit a bill only when a particular matter is over except in very long running matters where this cannot be done. His post expenses pre-tax income during the five years preceding this trial were (in thousands of punts) 57, 72, 105, 116, 131. In the eight months to the end of the calendar year 2001 his gross earnings were £204,000. On the basis that the average pre-tax (post expenses) income of the respondent during the five years to the 6th April, 2001 amounted to some £96,000 (€122,174) I think it would be reasonable to assess the respondent's pre-tax, post expenses income at £100,000 (€127,000) per annum. It is clear, however, that this level of earnings will not be achieved in the immediate future but is likely to be attained probably within three years from now. On the other hand the applicant seeks an immediate periodic maintenance order and for the purposes of assessing this it would be fair to apply a significant discount to this estimate of the respondent's future earning capacity. During the four 12 month periods ending on the 6th April, 2001 the applicant's earnings (in thousands of punts) have been 6.45; 8.7; 8.34; and 13.46. She has been employed part-time as a conservationist architect paid on an hourly basis. Initially this was £10 an hour but it was increased to £15 an hour in 1999. Typically she would have worked something in the region of 20 hours per week. The evidence on behalf of the respondent was that an architect with ten years or more experience should be able to command a salary income of £40,000 or more per annum. Furthermore it was stressed that the demand for conservationist architects has increased with the implementation of the recent Planning and Development Act, 2000. Evidence was given by one architect from a medium sized firm which would have three or four projects at the same time which would require a report from a conservationist architect that his firm paid about £20,000 in the last year for this work which was contracted out and cost he thought £75 an hour.

37.      Now that M has grown up the applicant will be free, if she wishes, to work a full week. I think the demand for her work exists. I accept that because of her family commitments her early career was interrupted and it is probably over optimistic, as her counsel insists it is, to regard her as having a full ten years experience. Moreover her age in her young 50's is to some extent a limiting factor. In my view she would be able to command an income of £30,000 per annum (€38,100) if she elected to work on a full-time basis.

38.      Both the applicant and the respondent have deposed to weekly outgoings in each case of something in excess of €700.

The Parties' Assets

39.      Whilst the respondent has considerable assets in the form of shares and securities he also has considerable liabilities. In broad terms these cancel each other out and in recent times his share portfolio has sustained further losses which the respondent considers will be recouped if he can hold on to these shares for long enough. There is a contingent liability for tax estimated at some €150,000, a home mortgage of some €37,000 and a current bank overdraft of something in the region of €15,000. His affidavit of means discloses some €20,000 of miscellaneous assets such as motor vehicle, horse box, bloodstock and so on.

40.      In a separate category three pension funds are mentioned comprising a moderate, a small and a tiny pension fund.

41.      The applicant's affidavit of means shows, as updated by her oral evidence at the trial, a current account with some €20,000 in it, an interest in a yacht, as updated in her evidence worth some £20,000, approximately a ¹/₅ share in a cottage in the West of Ireland, and jewellery worth £12,000 to £15,000. In addition to the foregoing both parties have indicated they have an interest in antique and other furniture in the family home. In respect of this the parties have indicated that they are likely to reach agreement and I have indicated that they have liberty to apply if they need it.

The Law

42.      In assessing a periodic sum for the maintenance of the applicant payable by the respondent I consider that I should first identify the respondent's likely available income; second the applicant's likely available income; thirdly the likely disbursements made by the respondent in favour of their child M and finally, in light of all the circumstances and having regard to the specific guidelines set out in s. 16 of the Act of 1995 a fair amount in respect of such periodic payments. I am guided in this approach primarily by the requirements of the statute. I set out the relevant portions of s. 16 of the Family Law Act, 1995 as follows:

"16. - (1) In deciding whether to make an order under [under the relevant sections of the Act of 1994] and in determining the provisions of such an order, the court shall endeavour to ensure that such provision is made for each spouse concerned and for any dependent member of the family concerned as is adequate and reasonable having regard to all the circumstances of the case.

(2) Without prejudice to the generality of subsection (1), in deciding whether to make such an order as aforesaid and in determining the provisions of such an order, the court shall, in particular, have regard to the following matters-

(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be,

(d) the age of each of the spouses and the length of time during which the spouses lived together,

(e) any physical or mental disability of either of the spouses,

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

(h) any income or benefits to which either of the spouses is entitled by or under statute,

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

(j) the accommodation needs of either of the spouses,

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned that spouse will forfeit the opportunity or possibility of acquiring,

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried."

43.      Subsection 4 goes on to set out a similar list of considerations to which the court shall have regard but referable to the circumstances of a dependent member of the family concerned when determining whether to make an order in favour of such member.

44.      Subsection 5 provides as follows

"The court shall not make an order under a provision referred to in subsection (1) unless it would be in the interest of justice to do so."

45.      I should also refer to the decision of the Supreme Court in M.K. -v- J.P. (otherwise S.K.) (Unreported, Supreme Court, 6th November, 2001) which, albeit a case dealing with divorce cites at p. 16 as relevant to that case the decision of McGuinness J. in J.D. -v- D.D. [1997] 3 I.R. 64 which was a judicial separation case. M.K. -v- J.P. (supra) was a "big money" case and largely concerned the approach of the court in dealing with the allocation of assets which were over and above the needs of the applicant. The present case is not a "big money" case and therefore M.K. -v- J.P. (supra) is not directly relevant. Notwithstanding this, it is clear that the statutory provisions set out in s.16 insofar as they insist that no order shall be made unless it is in the interests of justice to do so are consonant with the decision of the Supreme Court in M.K. -v- J.P. (supra) and to that extent I have borne in mind the approach of the court in the latter case and in the case of J.D. -v- D.D. (supra).

46.      Having regard to the discount exercise applicable to the respondent's likely future income to which I have already referred I think I should assess his post expenses pre-tax income for the present purpose at €80,000. The equivalent income of his wife is some €38,000. It seems to me that periodic payments amounting to €20,000 per annum (monthly €1,666) should be made by the respondent to the applicant. I will give counsel an opportunity, if they wish, to suggest how this sum should be dealt with in an order.

47.      Having regard to the disbursements which the respondent already makes in favour of his daughter and also having regard to the likelihood as I think it will be, that she will live for the bulk of her time with the applicant, I think it would be proper that further payments should be made in respect of her maintenance in the sum of €100 per week.

Pensions and Security

48.      As indicated the respondent has three small pensions. The value of the funds are €108,000, €38,000 and €5,000 respectively.

49.      With regard to the future security of the applicant at the conclusion of this case she will have the benefit of a lump sum payment of €950,000; potential earnings, as I consider it, of some €38,000 per annum, periodic payments of a further €20,000 per annum and sufficient over and above to pay for the maintenance of her daughter during the periods that her daughter is residing with her. She will, in addition, be the owner of the other assets to which I have already referred. The respondent, it is true, is the beneficiary of three pensions as I have indicated but he also must accept the family home subject to a mortgage in the region of £30,000. Given that the amounts invested in these pension funds by the respondent varies from year to year by reference to tax favouring provisions I am loath to interfere with his discretion in this regard. On the other hand I think that pension provision should be made for the applicant by the respondent such as to yield for her benefit a pension income of €40,000 at age 65. I will discuss with counsel how this can best be achieved. I consider that the payment of a lump sum indicated should be made in full satisfaction of the applicant's interest in the family home. I consider that the mutual claims of the parties to each other's estates under the Succession Act should be extinguished and I would hear counsel in regard to detailing this matter.

50.      I should make it clear that these orders are made in light of the evidence that the respondent has paid the school fees for M and will continue in the future to pay any fees due for third level courses; that he has paid a sum varying between €65 and €100 per week for her pocket money, phone card and clothes and that he pays a sum in the region of £4,500 per annum for her horse. He has requested that no formal order for maintenance be made in regard to these matters and I am prepared to accede to this request. There will be liberty to both parties to apply. The maintenance for the residential upkeep of M should continue only while she is engaged in third level education and resides for portions of the weeks during the academic terms with her mother. I understand, finally, from the evidence that the respondent pays the medical and dental bills for his daughter and this should continue. I consider that the respondent should ensure that his daughter's health requirements are covered by an appropriate scheme such as the VHI, for a period at least while she is engaged in full-time third level study.