'Parties embarked on marriage, not a property transaction'

 

B -v- F

High Court

Judgment was delivered by Ms Justice Dunne on Dec 4th, 2008

Judgment

In an appeal against a Circuit Court order that 80 per cent of the value of the family home be allocated to the wife in a judicial separation, and 20 per cent to the husband, the High Court ordered that the allocation be 60 per cent to the wife and 40 per cent to the husband.

Background

The couple married in a registry office in the UK in 1991, and moved to Ireland. The family home in west Dublin was bought in 1995 for €130,783, made up of the price obtained for a previous family home in Dublin and a bank loan. Both houses were in the name of the husband.

In 1996 the parties had a church wedding and a wedding celebration. The wife offered to contribute to the cost of buying the house in 1995, but her husband declined and the €17,000 offered was spent on the wedding and some improvements to the house.

From 1991 until 1996 the husband worked in Saudi Arabia while his wife remained in Dublin. For much of this time she lived with her family, renting out the first family home. When her husband returned and they lived in their second home, her financial contribution consisted of heating oil, household goods, food and holidays.

Difficulties arose in the marriage shortly after her husband’s return from the Middle East, and some of these arose out of a dispute between the husband and the wife’s brother.

Around that time also the husband was diagnosed with a brain tumour. He was unable to work and had to undergo treatment for a period of time.

During a significant part of this time he was with his own family, and lived with a family member in the UK.

In 2003 the wife moved out of the family home. Ms Justice Dunne said that, while the couple was apart for a considerable time during the first part of the marriage, and it soon fell into difficulties when the husband returned, she did not accept it was a short marriage.

Decision

The issue is the apportionment of the net proceeds of the sale of the family home, she said. This required having regard to the financial circumstances of each of the parties.

These were described as follows: The applicant/respondent wife had a car worth €13,000, €1,300 in a savings account and an annual income of €75,000 from her work in a private firm. There was also a debt in her name of €163,000 to the Bank of Scotland. She had a pension plan with a current value of just under €20,000.

The respondent/applicant husband had a salary of almost €60,000 from the semi-State company where he worked. He also had an interest in a number of properties, in partnership with others.

Evidence was given of the value of these properties, and the net equity in them when liabilities were accounted for.

The husband also had an interest in two limited liability companies. Ms Justice Dunne accepted that at the moment he did not derive significant income from either of them.

She then considered the wifes debt to the Bank of Scotland, which was linked to two properties being developed by her brother. While they were in her name, she said she derived no benefit from them, and they were in her name to help her brother, who was repaying the loan in her name. Ms Justice Dunne said that, having heard considerable evidence concerning these properties, she accepted the wife’s evidence that she derived no benefit from them. These transactions also concerned a former employee of the Bank of Scotland, who had transactions with Ms B’s brother.

In relation to the transactions between these three people, Ms Justice Dunne said: “I have to say that I have deep reservations and misgivings about the scenario presented to the court.” In particular she was concerned that a report by the former bank employee to his superiors included a letter from the solicitors then acting for the wife detailing her expectations from the outcome of her family law proceedings.

“The impression I am left with is that the applicant/respondent allowed herself to become involved in what appears to me to be a somewhat peculiar transaction between Mr W and Mr B,” she said.

Turning to the circumstances of the husband, she said it was clear that new houses had been built on some of the properties acquired with other people.

While he claimed that there was negative equity of €90,000 on one of these properties, “I have to say that I find the evidence given by the respondent/applicant in this regard difficult to accept.”

In relation to another property, the folio showed that it belonged to him and his business partner, though he claimed he had no interest in it.

“I find it very difficult to believe that he is not intended to and does not expect to benefit from the developments carried out on the properties which he jointly owns with others,” she said.

“So far as the financial evidence of both parties is concerned, I am left with a certain amount of misgiving as to the evidence of the actual circumstances of each of the parties.”

She said that on balance, it seems that the financial position of the husband was significantly stronger than that of the wife. His pension provision was significantly better than that of his wife. She appeared to be in a better position from the point of view of salary, but, taking into account pension provision and job security, his position seemed more secure.

Bearing that in mind, and having regard to the criteria set out in the Family Law Act 1995, she said the net proceeds of the sale of the house should be split 60 per cent in favour of the applicant/respondent wife, and 40 per cent in favour of the husband, notwithstanding the greater financial contribution he had made towards the acquisition of the property, and the somewhat unusual circumstances of the marriage.

“The parties embarked on a marriage together and not a property transaction,” she said.

  •  The full judgment is on www.courts.ie

Alistair Rutherdale BL, instructed by F H O’Reilly solrs, for the applicant/respondent wife; Raghnal O’Riordan SC, instructed by Gill Traynor and Co, for the respondent/applicant husband