H -v- HNeutral citation (2010) IEHC 425 High CourtJudgment was delivered on July 29th, 2010, by Mr Justice John MacMenamin.
Judgment
An order of the Circuit Court made in December 2009 in a family law case was varied on appeal by the husband, and the amount payable to the wife was reduced.
Background
The couple, a consultant haematologist and a translator, were married in 1992 and have two children, now aged 15 and 11. The mother represented herself in the appeal and, according to Mr Justice MacMenamin, was well capable of doing so. She had previously instructed a number of solicitors.
The husband worked as a consultant haematologist, and in 2003 they bought a substantial house in the area where he worked. They also bought a house in Dublin, which was let.
In 2004 the relationship broke down and the wife and children moved into rented accommodation. They moved to another county in 2005.
The husband also moved to another county where he had obtained a new position, and is now in a second relationship.
In December 2007, the Circuit Court made a decree of judicial separation, along with a number of orders, and in December 2009 it granted a decree of divorce along with ancillary orders.
The husband appealed against certain of these orders relating to access and property adjustment. He did not appeal the maintenance orders.
Mr Justice MacMenamin said difficulties appeared to have arisen because of a lack of precision in the implementation of the access arrangements. He gave detailed orders on access, including access for the husband on alternate weekends, for one week at Christmas and one at Easter and four weeks during the summer holidays, to be increased to five when the children were at secondary school.
In 2007, the Circuit Court had ordered the house bought in 2003 be placed on the market not later than March 2008.
The wife was to be paid €500,000. If the house was sold for less than €525,000 the amount was to be reduced pro rata.
Mr Justice MacMenamin said that “as a result of the respondent’s misguided and misconceived actions”, two important years were wasted in an endeavour to sell the family home.
An available purchaser who would have bought the house for €620,000 in 2007 ultimately declined to proceed because of repeated applications to the court made by the wife.
“I am satisfied that the respondent was unreasonable on this issue and, ultimately, the multiplicity of applications had the effect of delaying matters such that other factors arose and for other reasons the purchasers decided not to proceed,” he said.
Eventually the house was sold in January 2010, for the vastly reduced price of €355,000.
Decision
Mr Justice MacMenamin said the fault for the shortfall in the price of the house lay with the respondent wife and accordingly, the money to be paid to her should be reduced pro rata to €330,000.
The husband had already remortgaged the house in Dublin in order to pay her the first tranche of the money owed, €250,000. Unfortunately, she did not appear to have taken adequate steps to preserve that sum in her interests and those of the children, and she had spent sums of money on legal fees, including at least one bill of €30,000 on an application dismissed by Mr Justice Henry Abbott in March 2010.
During the hearing, the wife had made a number of allegations that the husband had other sources of income. These had been aired previously and counsel for the husband had said the matter had been in court up to 40 times.
The wife had contended she should be provided with a house to the value of €500,000 in the county where she now lived. “The consequence of the respondent’s own conduct has been to diminish the assets which are available to her and to the children,” Mr Justice MacMenamin said.
He directed the applicant husband pay to the wife €80,000, together with €100,000 he offered to pay to supplement the shortfall. In order to prevent the further dissipation of assets, €150,000 of the €155,000 already agreed to be paid to the respondent should be paid into court, along with the sums on offer, within three months.
When a suitable home had been identified by the wife, she could apply to the court for money out of that sum to purchase the house, and for no other purpose.
The full judgment is on courts.ie