IN ONE of the first big cases where a party sought changes to a family law settlement due to the economic downturn, the High Court has accepted a husband could not transfer property as agreed and has altered the terms of the settlement.
In a judgment delivered in May, but only made available recently, Miss Justice Elizabeth Dunne drew attention to the fact that it was a decision of Anglo Irish Bank to withdraw a facility it had agreed with the husband that had led to his inability to transfer to the wife a property, mortgage-free, as he had agreed.
She ruled that the husband should instead transfer to the wife his stake in the family home. The initial agreement provided for the transfer of the family home to the husband, in exchange for which the wife was to receive the second property.
The couple were married in 1988 and had six children, now aged between 11 and 20. The older two live mainly with the husband, while the youngest four live with the wife.
In May 2007 judicial separation proceedings were started, which led to a settlement being ruled by the High Court in February 2008. The couple had a business and a number of properties at the time.
The properties included the family home, a second house, a holiday home, a commercial premises and at least two other properties, as well as the business, in which the wife’s parents also had an interest.
Under the terms of the settlement the husband would transfer the second house, mortgage-free, to the wife. She would transfer to him her interest in the family home and facilitate its sale. These transactions were to be completed by the beginning of October 2008.
She was also to relinquish her interest in the holiday home, the commercial premises, an apartment, other properties and the business, and to procure the transfer of her parents’ interest in the business. The husband was to pay her a lump sum of €20,000.
The wife complied with all the terms of the settlement, except for the transfer of the family home, as she was awaiting the transfer of the second house to her. The lump sum was not paid.
When the husband did not comply with the court orders, the wife took legal proceedings. In court the affidavits of means showed the husband to be in a position of “extreme financial difficulty”, according to Ms Justice Dunne.
The house due to be transferred to the wife was valued at €650,000 and had an outstanding loan of €1 million. The family home was valued at €1 million and had a loan of €250,000, Other properties were valued at €7.25 million, but had loans on them to Anglo Irish Bank of €10.8 million.
The husband also had other debts, including a contract to buy a house for himself worth €1.25 million, the sale to be completed within 18 months. It emerged that at the time of the settlement Anglo Irish Bank agreed to assist the husband in the agreed transfer of the second house by releasing its security over it. “It subsequently transpired that Anglo Irish Bank did not agree to the release of the security,” Ms Justice Dunne said.
“It is the decision of Anglo Irish Bank Plc not to provide the facility which had been available in February 2008 that has apparently caused the respondent the difficulty in complying with his obligations under the settlement,” she said. She found it difficult to understand why he did not inform the wife of this difficulty when he became aware of it in May.
The original settlement had attempted to disentangle the affairs of the couple, and she said she did not propose to grant the husband’s request that he retain an interest in the family home, to be realised when it was sold at a later date.
Mindful of the needs of the family as a whole, and the need to meet the accommodation needs of the wife and dependent children into the future, she ordered the transfer of the family home into her name.