The amount a man must pay to his former spouse and their two children was reduced to €3,000 a month because of a reduction in his income
H -v- D
Neutral Citation (2011) IEHC 233
Judgment was delivered on June 7th, 2011, by Ms Justice Mary Irvine.
The levels of maintenance payable by a man to his former wife and their two children were reduced to the amount of €3,000 a month set in 2005 because of a reduction in his income. The payments had increased since 2005 in line with the consumer price index. The man was ordered to supply his wife with documentary evidence of his income on an annual basis.
The couple were married in 1998 and had twin daughters who were 10 years old when the application was made. The marriage broke down when the children were infants, and the couple obtained a divorce in December 2005.
Under its terms, the applicant husband paid €3,000 a month, €1,000 for each child and €1,000 for the respondent wife. In November 2010, it was altered so that three-quarters went for the children and one quarter for the wife. The sum was adjusted in line with the consumer price index.
The husband was seeking to have the level of maintenance reduced on the basis that his income had been reduced from €90,000 net a year, and by the imposition of Government levies.
The overall effect left him with a net income of €86,000 for 2009 and €73,000 for 2010, allowing for a tax-avoidance payment of €17,000. His take-home pay slip showed a monthly income of €5,221.45, which would amount to €62,650 this year, and he also expected to receive a bonus of between €5,000 and €10,000.
Ms Justice Irvine calculated the bonus would be €7,500 after tax, pointing out that the bonuses were €22,980 in 2009 and €18,494 in 2008, although there had been none in 2010.
She also said his net income was less than any of the last seven months in 2009. Therefore she would proceed on the basis that his income for the year would be €70,157, plus the bonus. She also pointed out he had €58,000 in the bank, which he could dip into until his bonus was paid.
“Even if it be the case that the court accepts that the applicant’s income may have reduced by 21 per cent since the original order was made, that does not entitle him to an automatic proportionate reduction in his maintenance payments unless he can demonstrate that the maintenance so reduced would be sufficient to meet the reasonable ongoing needs of the respondent and their two children,” Ms Justice Irvine said.
The respondent had no savings and had done all she could to reduce her outgoings. She had had difficulty in paying her mortgage and the applicant was of great assistance to her here. All the facts suggested she was struggling on her present maintenance.
She added it was significant that, as a result of an injunction by the applicant, she was obliged to live in Dublin so that the applicant could play an active role in parenting the children. This meant the wife had to rear her daughters as a single parent in a city where she had no family support whatsoever.
Her parents and siblings all live in Cork, where she would much prefer to live, and if she had been able to do so, she could have been able to work full-time with the support of her family and become financially independent of the applicant. She had difficulty in meeting work commitments when one or other child was sick and she had difficulty finding and paying for childcare during the school holidays.
Ms Justice Irvine said she therefore rejected the suggestion made on behalf of the applicant that the respondent could be working either part time or full time, especially while the children were in primary school. “It is all very well to say she should get help [when a child is sick], but where do you get it when your child has a temperature at 7am and you have to be at work by 9am if you have no partner or family to call upon?”
While the respondent was very well qualified, in the present economic climate it could not be assumed she could walk into a job tomorrow, as she had had practically no work experience for the past 10 years. There was also the problem of childcare.
She also rejected a suggestion from the wife that the applicant should take in a lodger or forego contributing to his pension.
Having considered all the evidence, she said she was satisfied there should be some amelioration in the maintenance payable under the December 2005 court order, notwithstanding that this would impose a degree of hardship on the wife.
She considered the appropriate maintenance was €3,000 a month – €750 for the wife and the balance divided between the children, subject to consumer price index adjustment from June 2012.
She said it was important that the wife could monitor with accuracy the husband’s income over the next few years so she could seek to renegotiate an increased maintenance payment if his salary increased above what formed the basis for the current order.
She therefore made an order that on January 14th each year he furnish his wife with copies of all wage slips for the previous year; a copy of his P60 for the previous year; details of any bonus payments due; details and proof of any payment made by him as a tax-avoidance measure in the previous year and a statement from his employer confirming the information provided.
The full judgment is on courts.ie
Paul McCarthy BL, instructed by Heather Lennon solicitors, Dublin 2, for the applicant; the respondent represented herself