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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.C. v A.C. [2015] IEHC 492 (24 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H492.html
Cite as: [2015] IEHC 492
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Judgment
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Neutral Citation [2015] IEHC 492 THE HIGH COURT
FAMILY LAW [2014 No. 66 CAF] IN THE MATTER OF THE FAMILY LAW DIVORCE ACT 1996 BETWEEN M. C. APPLICANT AND
A. C. RESPONDENT JUDGMENT of Mr. Justice Henry Abbott delivered on the 24th day of July, 2015. 1. This application comes before the court by way of a notice of appeal, issued by the respondent, appealing the whole of the order of His Honour Judge Nolan dated the 4th July, 2014, the said judge having made ancillary orders in the following manner:-
2. An order that the respondent transfer to the applicant his entire legal and beneficial interest in the property situate at N. Co. Wicklow for her sole use and benefit. 3. An order that the applicant transfer to the respondent her entire legal and beneficial interest in the property situate at G. Co. Wicklow for his sole use and benefit. 4. An order that the respondent transfer to the applicant his entire legal and beneficial interest in the property situate at G. Bordeaux, France for her sole use and benefit. The applicant to be responsible for all mortgages and debts on this property. 5. An order that the parties retain the savings as set out in their affidavits of means 6. An order that the applicant pay to the respondent the sum of €50,000.00 within 6 months of today’s date. 7. An order that the applicant’s jewellery be returned to her forthwith. 8. An order that health insurance policies be taken out for both children and both parties to be equally responsible for the policies. 9. An order that the parties jointly pay the mortgage [at G. Co. Wicklow] until such time as the sum of €50,000.00 has been paid to the respondent and thereafter the respondent to discharge the mortgage. 10. An order directing that the County Registrar or any official nominated by them shall do all such acts and execute all such documents on behalf of either party herein to give effect to such transfers in the event that either party fails to sign the necessary documents to give effect to such transfers when requested to do so. Note that neither party is making a claim against each other’s pension.” 3. Both the applicant and respondent are professional persons, the respondent having retired in 2012, and enjoy relative financial stability in modest terms. Both the applicant and respondent hold joint interests in two properties located within the jurisdiction and one further property located in the jurisdiction of France. It should be herein noted that the respondent to these proceedings was unassisted by legal representation and, as such, property valuations were not agreed prior to hearing. The respondent’s affidavit of means, dated the 6th February, 2015, was of assistance to the court in ascertaining property valuations as was the oral evidence provided by Mr G. D. on behalf of the applicant. 4. The first property, wherein the applicant usually resides, situated at N. Co. Wicklow was valued by the applicant between €370,000.00 and €375,000.00. The respondent valued this property at €410,000.00. It must be noted that the parties could be said to be assisted by valuations obtained without thorough inspection of the property, as was particularly evidenced by Mr D. who indicated during the course of his oral testimony that he had not been inside the property for over one year and had merely updated a previous valuation from outward inspection. 5. The second property, wherein the respondent usually resides, situated at G. Co. Wicklow was valued by the respondent at €325,000.00. In oral evidence the Mr G. D., on behalf of the applicant, struggled to give a valuation of this premises and sought the court to rely upon comparable properties in the area ranging from €440,000.00 to €379,950. This second property is the subject of a mortgage charge of €50,416.00. 6. Finally, the third property, which is currently in the use of the applicant, situated at G. Bordeaux, France was valued by the respondent at €70,000.00 while the applicant indicated a valuation of between €50,000.00 and €55,000.00. This property is subject to a lease-back arrangement which yields to the applicant the sum of €280.00 per month. It is also the subject of a mortgage charge of €47,000.00. It is the view of this court that this property must be valued at €55,000.00 placing emphasis on the impact which a lease-back arrangement may have upon any sale in comparison to freehold possession. 7. While the submissions of the respondent and the oral evidence on behalf of the applicant trended to suggest that the applicant’s property is of a more substantial character this Court places emphasis on the oral evidence of Mr G. D. who indicated the general dilapidated state of the premises at N. Co. Wicklow and further indicated to this Court that certain funds would have to be expended by the parties so to prepare this property for sale. The court was also made aware of issues pertaining to the septic tank which would require significant financial expenditure in the property located at N. Co. Wicklow and this must be taken into consideration in the valuation of the premises. This view is coupled with reservation at the general conservative valuation by the respondent of the premises at G. Co. Wicklow, wherein the respondent ordinarily resides. It is the view of this Court that both properties are of comparable value, notwithstanding the contrasting valuations, but relying upon the overall context in which these properties may come forward for sale. As such the court values both properties at €375,000.00 for the purpose of this judgment. This is on the basis that it is a best estimate based on poor or no evidential offerings, or case management, leading to agreed prices or parameters offered by the parties. 8. The parties are in possession of further assets in the form of liquid assets retained in bank accounts and have been set out in the following terms in accordance with the judgment of the Supreme Court in D. v. D. [2015] IESC 16:-
9. Throughout the course of proceedings and indeed during the various court appearances which preceded the hearing of this appeal the purpose of these bank accounts consistently were at issue. It is the submission of the respondent that the funds provided by the State in the form of a disability allowance for the care of their aforementioned son be allowed to build up in a bank account so to provide the son with a form of lump sum at some undisclosed time in the future. The respondent is of the view that the parties should themselves be responsible for funding the care and support which is required for their son on the basis of his disability. The applicant submits that the funds should be expended in the ordinary manner for the care of their son and that the retention of funds so to form a lump sum is not necessary. It is the view of this Court that the State provides to persons with disabilities certain funds for their care and welfare. While those recipients are not instructed by the State in the manner by which they must expend the allowance it is clear that such funds must be used in the interest of the disabled individual. It is not inconsistent with the legislation that this disability allowance should be expended so to meet the day-to-day expenses of the individual. While it is laudable that the parties seek to supplement the care provided to their son by expending personal finance it is not altogether necessary that they do so when the State has provided, in certain terms, for the care of their son. Further, should the accumulation of funds jeopardise the security of a medical card, or indeed the disability allowance for the son, which is calculated upon a means basis, such hording of funds could be altogether detrimental to his interests. That being the case, this Court has taken the retained funds into consideration as part of the respondent’s assets given that he has undertaken to retain same whilst personally discharging their son’s costs. 10. The granddaughter of the parties was under the care of the H.S.E., now having reached her majority, and was placed with the applicant under a foster care arrangement. The applicant has been in receipt of foster care allowance from the State and has amassed a sum of €80,000.00 through saving same. It is her intention to provide this to her granddaughter in the form of a lump sum at some stage into the future. This similarly was the subject of contention during the course of proceedings. In comparable terms with the respondent, these funds must be considered as part of the finances of the applicant and have been so considered in the aforementioned table. 11. While the court emphasises the praiseworthy action of the parties in attempting to generate these funds for the future care of their dependants their concerns should be soothed by the adequacy of the pension provisions which they have subscribed to whereby those dependants can be provided for after the death of the relevant party. This was evidenced even in recent times by the modification, by the applicant, of her pension arrangements in view of such. Further, parties have the capacity to set up some type of trust scheme for the provision of these dependants as may be advised; however, the court notes that such trust schemes have generally found disfavour within family law procedures in the past. 12. The applicant is in receipt of a salary generating a monthly income of €4,062.00 and rental income from the French property of €280.00 totalling €4,342.00. The respondent is in receipt of a pension generating a monthly income of €2167.56 and income from the care of his elderly mother of €1,000.00 totalling €3,167.56, this latter income may not be certain in the future. 13. The parties further are the subject of debts and liabilities firstly a mortgage in respect of the property at G. Co. Wicklow with the sum of €52,000.00 outstanding and secondly a mortgage in respect of the property at G. Bordeaux, France with the sum of €42,000.00 outstanding. 14. The claimed monthly outgoings of the parties have been set out in the following terms in accordance with the judgment of the Supreme Court in D. v. D. [2015] IESC 16:-
15. At the outset of proceedings both parties brought to the attention of the court “open offers”. While neither offers were accepted by the parties they were of assistance to the court in outlining the principle issues of this appeal. The offer of the respondent is as follows:-
a. M. to return the value of E’s Disability Allowance that she appropriated between 06/01/2003 and 21/07/2009 (€68,000) and to lodge it in E.S.B. Joint Account XXXXXX67. Both A. and M. to transfer €20,000 each from their respective savings to this account. The money in this account to be converted to a trustee account and used for the benefit of both L. and E. after A’s death. After which this account will be administered jointly be K. and E., subject to them both agreeing to do so. b. A. and M. to be equally responsible for health insurance policies in respect of both L. and E. These health insurance policies to be maintained at their present level of cover (or better). c. A. to continue providing financial support to both L. and E. 2. Property a. A. to remain at G. Co Wicklow and have exclusive ownership. b. M. to remain at N. Co. Wicklow and have exclusive ownership. c. M. to repay her unpaid mortgage contributions at G. Co. Wicklow:
ii. 2014: Missed contributions totalling €4,055.69 iii. Total amount to be repaid €5,055.69 e. Judge Martin Nolan’s decision on the values of these properties to be accepted by both parties and half the difference (€42,500) to be transferred from M. to A.:
ii. G. Co Wicklow valuation: €325,000 iii. Difference: €85,000 iv. Total to be transferred €42,500
i. The value of the G. be set at the purchase price minus the outstanding mortgage and half the difference (€16,500) to be transferred from M. to A.: 1. purchase price: €80,000(?) 2. outstanding mortgage: €42,000 3. difference €38,000 4. amount to be transferred €19,000 or:- ii. A’s name to be added to the deeds as joint owner and the property sold once the lease-back scheme has come to an end. or:- iii. A’s name to be added to the deeds as joint owner and the property to be used as a holiday home on a time-share basis once the lease-back scheme has come to an end.
ii. A. to retain the jewellery which M. purchased during 2006/2007 using money taken from the respondent’s bank account. a. Glassware etc. to be divided on an alternating choice basis. b. The parties to renounce their rights under the Succession Act. c. No maintenance to be paid between parties. d. Each party to keep their own pensions. e. No order as to costs.”
2. Each party to keep their own pension and orders to be made to reflect this. 3. Each party to keep their own savings. 4. C. to remain with the applicant. 5. No maintenance to be paid between the parties. 6. The parties renounce their rights under the Succession Act. 7. The respondent returns all jewellery to the applicant. 8. No order as to costs.” 16. It is the view of this Court that the respondent should transfer to the applicant his entire legal and beneficial interest in the property situated at N. Co. Wicklow, wherein the applicant currently resides, for her sole use and benefit free from encumbrance. Further that the applicant should transfer to the respondent her entire legal and beneficial interest in the property situated at G. Co. Wicklow, wherein the respondent currently resides, for his sole use and benefit, the respondent being responsible for the full discharge of the mortgage and the redemption thereof to be effected within three months from the date of this judgment, there being liberty to apply to the court in respect of same. That the respondent transfer to the applicant his entire legal and beneficial interest in the property situated at G. Bordeaux, France, of which the applicant has had continued use, for her sole use and benefit, the applicant being solely responsible for all mortgages upon this property. 17. As stated above, it is clear that the parties to the proceedings appear to be capable of moderating their monthly outgoings in view of their income with the possibility of occasionally drawing upon their financial savings were one may overreach the other. The remainder then limits itself to a consideration of the fixed and liquid assets of the respective parties, in line with the proposed property adjustments, less the mortgages upon their respective properties in the following terms:-
18. Arising from this calculation it is the view of the court that each party should retain their savings as set out in the above schedule and should divide equally those funds in joint names. Further, paragraph 6 of the order of His Honour Judge Nolan of the Circuit Court is upheld and this court makes an order that the applicant pay to the respondent the sum of €50,000.00 so that he may offset the mortgage in the property situated at G. Co. Wicklow within six months of the delivery of this judgment, there being liberty to apply regarding same. It must be herein stated that, whilst the parties appear in a similar financial position, this Court must be considerate of the fact that the applicant will shortly realise her pension and those sums which pertain to it which may place her in a heightened financial position in the future. This Court makes this order so to prevent against any punctilious intrusion by the respondent into the future and to establish clear lines of demarcation, illustrated in the judgment of D. v. D. as providing to the parties “clear blue water” so to separate their affairs. It is in view of such that the court upholds paragraph 6 of the order of Judge Nolan in conjunction with the submissions of the parties during the course of proceedings. Further this court makes no pension adjustment order in view of the capability of both parties to provide for themselves from their respective pensions. 19. There is no order as to maintenance. 20. The court orders that the respondent return to the applicant all jewellery which was purchased for the use of the applicant during the course of the marriage to the applicant forthwith. It makes an order that the applicant pay to the respondent the sum of €15,000.00 to compensate him for his contribution towards the cost of these valuable assets. 21. Parties must obtain health insurance policies for both children who are said to be dependant upon the parties, namely L. and E. appropriate to the circumstances of those children. Both parties are to be equally responsible for these policies and such to continue until such time as L. and E. can be no longer be said to be dependant or, in the alternative, until the death of the other spouse upon which time those said to be dependant should be provided for from the estate of the deceased. 22. The respondent, at length during the course of these proceeding, brought to the attention of the court his displeasure and frustration at the conduct of the applicant in investing in a Bulgarian property portfolio to the sum of about €150,000.00, drawing upon jointly held funds, which ultimately failed without the recovery of any investment. The applicant, during the course of oral testimony, emphasised her remorse for having participated in such a regrettable incident and demonstrated her contrition by making a payment of €50,000.00 towards a mortgage to which the parties were jointly liable. It is the view of this Court that the applicant cannot be penalised for her well intended though poorly advised venture into the Bulgarian property market. It is clear that the applicant desired a positive outcome for the parties by virtue of this, now clearly failed, investment and therefore it would be inequitable for the court to penalise the applicant for this during the course of these family law proceedings. This regrettable incident should be put behind the parties, it having being fully ventilated and listened to by this Court. 23. In accordance with the decision of the Supreme Court in D. v. D. [2015] IESC 16 the following matters arising from sect. 20 of the Family Law (Divorce) Act 1996 are considered:-
No matters arise by virtue of sect. 20(3) of the Family Law (Divorce) Act 1996 save for the fact that parties constructed a form of separation agreement which was signed by the applicant prior to the departure of the respondent from the family home in 2005. This document can be said to pertain to the pre-litigation period of this marital breakdown and has no significant bearing on the determination of this Court. With regard to sect. 20(4) of the Family Law (Divorce) Act 1996, the court, by virtue of para. 20, has ordered that the parties jointly provide for the health insurance of L. and E.. Whilst considering paragraphs (a)-(g) of sect. 20(4) the court places particular emphasis upon para. (c) pertaining to “any physical or mental disability of the member”. The court is satisfied, in accordance with sect. 20(5), that it is in the interest of justice that provision should be made in terms of sect. 20(1). 24. Family law proceedings should be conducted with a certain efficiency which affords the parties time to adequately deal with the issues generated by virtue of their particular circumstances while at the same time enabling them to escape the lifestyle of litigation, at times, voluntarily adopted by others. It should be said that the respondent to these proceedings attempted to initiate certain motions which the court found to be frivolous and consequently made an order for costs against him limited to those procedures. While the court afforded the respondent every opportunity as a self represented person to advance his cause, it must protect its own procedures so to safeguard the right to fair trial of all and discourage delay tactics which would seek to stall the progress of any case. This award of costs against the respondent is measured at €1,000.00 exclusive of V.A.T.. As the court does not propose to make any order as to costs for the entirety of these proceedings, as it may have elected to do in its discretion against the respondent for his conduct during the course of proceedings in alternative legal fora, it notes the costs in the range of €20,000.00 which the applicant will personally bear. This Court draws this to the attention of the respondent so that he might draw to a conclusion not only these proceedings but his attachment to a marriage which has irretrievably broken down. 25. As such this court makes an order in exercise of the jurisdiction conferred upon it by virtue of Article 41.3.2. of the Constitution and grants a decree of divorce in respect of the marriage contracted between the parties to the above proceedings it being satisfied, in accordance with para. 2 above, that the provisions of sect. 5(1) of the Family Law (Divorce) Act 1996 have been complied with and makes ancillary orders in the above mentioned terms, there being liberty to apply, including liberty to apply for nil pension adjustment orders, if necessary. |