Man wins appeal against provisions for ex-wife

THE Supreme Court has upheld an appeal by a divorced businessman whom the High Court had ordered to make better provision for his ex-wife, including paying out €1 million to buy her a second house and an additional €600,000 for her own use.

Described by family law solicitor Lillian O’Sullivan as a “re-emphasis” of the meaning of “proper provision” in the Family Law (Divorce) Act 1996, the five-judge court unanimously found the overall level of provision ordered for the ex-wife by the High Court was “excessive”.

The court’s duty was to make proper provision, not enter into “a re-distribution of wealth”, it said.

The judgment took into account that the man had already provided a house for the woman, plus a lump sum of £70,000, under a 1996 separation agreement. It also noted a “radical change” in circumstances for both since then, including a “dramatic” fall in the value of the man’s assets — put at €21m in 2009 — and the woman being unable to work due to illness.

The case will go back to the High Court to make provision “in a just manner” and in accordance with the Supreme Court findings.

Giving the court’s judgment, the Chief Justice, Ms Justice Susan Denham, noted that the man and woman married in the late 1970s and lived in a house inherited by the man.

The couple reached a separation agreement in 1996 with an agreed “full and final settlement” clause under which the man provided a house for the woman, a £70,000 lump sum and her VHI costs. He was also required to pay £100 maintenance weekly for two years and then £50 weekly. The weekly payment was increased in 2002 to €70.

In 2004, the man agreed to pay interim maintenance of €1,200 monthly pending maintenance proceedings, which resulted in that sum rising to €2,500.

In 2009, the High Court granted a decree of divorce and ordered further provision. It ordered that the man provide her with €1m to buy another house and an additional €600,000.

David Hegarty SC, for the man, appealed that order on several grounds, including that the level of payments was excessive and unfair.

The Chief Justice said the 1996 Divorce Act was at “the core” of this appeal.

A separation agreement should be given significant weight, particularly when intended as a full and final settlement. The court had a duty to ensure proper provision in the circumstances of each case and consider whether those circumstances had changed since the separation agreement. The court’s duty was not to enter into a “re-distribution of wealth”.

Ms O’Sullivan said the Supreme Court ruling re-emphasised section five of the Family Law (Divorce) Act 1996 where the courts “must be satisfied not only that the spouses have lived apart but also that proper provision will be made for both spouses”.

She also said the ruling from the Supreme Court was “in sync” with what is happening in family law courts where many parties were finding their circumstances changes due to the ravages of the recession.