High Court of Ireland Decisions

1. The Applicant and the Respondent were married on 27th March, 1971 and there were four children of the marriage. The three eldest children are no longer dependent, but the youngest child, J.P., is a third level student and it is accepted that she is dependent within the meaning of the Family Law Act, 1995, and will remain dependent until she attains her 23rd birthday on 15th November, 2000.

2. The Respondent is an engineer who has been self-employed since 1984, and is now 60 years of age. He is undoubtedly very hard-working, and his work involves a considerable amount of travelling and long hours. He has built up a very successful practice, although it is doubtful if it could be considered to be of any monetary value as a saleable asset.

3. The business has always been run from the Respondent’s home, and during the first five years, the Applicant effectively acted as his secretary, answering the telephone and typing out his reports. Subsequent to that time she continued to do some work in connection with the business, but to a very limited extent. In addition, in recent years, the Applicant has from time to time provided food and lodgings for a student and has retained any profit made from this enterprise for herself.

4. In 1984, not long before setting up his own business, the Respondent suffered a heart attack and in 1990 and 1991 suffered from chest pains. In November 1991 he underwent a triple by-pass operation which seems to have been successful, but in August of 1998 he suffered further chest pains. I have heard evidence from his general practitioner whose view is that he is working much harder than he ought to at his age and having suffered from heart problems. She is of the view that the amount of work which he is carrying out and the stress involved is not advisable, and her opinion is that he should reduce his work load by about half, and should ultimately retire in two or three years time.

5. There have been very considerable difficulties in this case in relation to the disclosure of the Respondent’s assets and income. While the Applicant worked as his secretary for the first five years after he set up on his own, and would have sent out fee notes, she never kept his books, and he never discussed financial matters with her.

6. Although the parties lived together, and indeed still live in the same house, they have effectively lived separate lives for a number of years with little real communication between them. While some attempt at reconciliation was made in 1996, when the parties attended a counsellor, these proved a failure and there is no doubt that the marriage has irrevocably broken down.

7. The parties are joint tenants of the family home, which is a substantial and valuable house and has an agreed value of about £560,000. They are also joint tenants of a holiday home in Spain with an agreed value of £60,000 and the Respondent has a fifty per cent interest in a holiday home in Co. Wexford which he owns jointly with his sister, and it is agreed that his share is worth £17,500. The Respondent has produced unaudited accounts which show his net income before tax as follows:-

8. On 6th October, 1998 the Respondent swore an Affidavit of Means in which he swore his assets to be his interest in the various properties mentioned above, shares in publicly quoted companies valued at approximately £8,000, certain life assurance policies and a bank account in Allied Irish Banks and two accounts in the Educational Building Society. The Applicant subsequently discovered documents in the family home which made it quite clear that the Respondent has grossly understated his assets, and held a number of accounts, both in the English and Irish form of his name, including an account in Spain, and the Respondent has conceded in evidence that he initially concealed these accounts from the Applicant and from the Court. He further concedes that his income has been in excess of that stated in his accounts. He now acknowledges that he has personal assets of some £95,000, and that there is about £11,000 in his business account, although this may to some extent be offset by an upcoming Revenue liability. This information was only elicited from the Respondent as a result of considerable pressure by the Applicant, arising from information obtained by her independently from the Respondent. I am not at all impressed with the Respondent’s attitude towards these matters, and he still does not seem to realise the seriousness of having sworn what was a blatantly false Affidavit of Means and having quite deliberately misled both the Court and the Applicant. I still am not altogether satisfied that the Respondent has disclosed all his assets, and I do not know the true extent of the Respondent’s earnings over the last four or five years.

9. The Respondent has given evidence that he now intends to follow his doctor’s advice, cut his work by half for the next two or three years and then retire altogether. Mr. Brady S.C., on behalf of the Respondent has urged me to take these expressed intentions into account in assessing the maintenance payments to be made by the Respondent. I am far from convinced that the Respondent will in fact fulfil these intentions, at least in the time span which he suggests. I do, however, accept Mr. Brady’s point that a very high maintenance might effectively prevent the Respondent from cutting down on his work or retiring, and I certainly intend to take that matter into account.

10. There has to be a substantial lump sum payment to the Applicant. She must be able to purchase a house which is large enough to allow her to have the youngest child continue to live with her, and to be able to take in a lodger. I also have to take into account that within a few years the maintenance payments will undoubtedly be reduced, even though that may not come as quickly as the Respondent suggests. The Respondent’s admitted assets, excluding the business account, amount to £732,500 and I am going to order that he pay the Applicant a lump sum of £425,000. As this sum must primarily come out of the sale of the family home, and it is agreed that the family home should not be put up for sale until at least the beginning of February, I will direct that the lump sum is to be paid within fourteen days of the completion of the sale of the family home or by 14th April 2000, which ever is the earlier. I will also direct that the amount is based on the net proceeds of sale of the family home being £550,000, after payment of legal, auctioneering and advertising fees, and that the lump sum shall be varied upwards or downwards by fifty per cent of the sum by which the actual net proceeds are greater or less than £550,000. This sum takes into account the fact that both the family home and the Spanish property are in joint names and includes any share to which the Applicant may be beneficially entitled in such properties. I will make whatever Order is necessary to vest the Spanish property beneficially in the Respondent solely.

11. With regard to periodic maintenance payments, I will direct that the Respondent pay to the Applicant £300 per week for her own maintenance and a further sum of £50 per week for maintenance of the Applicant’s daughter until she attains 23 years of age. Obviously if the Respondent retires or seriously reduces his income, he may apply for a review of these periodic payments.

12. The Respondent has also made some comparatively small pension provisions which have not yet matured, and it is agreed that there should be a Pension Adjustment Order under Section 12 of the Family Law Act, 1995 entitling the Applicant to fifty per cent of such pension as may be payable. It has further been agreed that there should be no Order excluding Succession Act rights.

13. I will discuss the exact form of the Order and any ancillary relief required with Counsel for the parties.