| | | You are here: Home >> News Section >> Supreme Court Judgment: S.N. AND P.O’D. (2009) IESC 61 | | | | News: Supreme Court Judgment S.N. AND P.O’D. (2009) IESC 61 | | | Supreme Court (Fennelly J)
28th July 2009 | | | Appeal of High Court Divorce Order granting husband sum of €1,648,000. An additional sum of €500,000 to husband for “information deficit loss” not appealed by wife:
– Proper provision
– Extent to which the Court was bound to have regard for a 2001 consent to Judicial Separation
– Full and final settlement clause
– Allegation that wife had not fully disclosed her financial circumstances in 2001.
Appeal successful for Applicant wife, lump sum reduced to €500,000. |
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| | | Facts
The wife, the appellant in these Proceedings, initiated judicial separation proceedings in August 2000, having left the family home in or about August 1999. The Proceedings were settled and the High Court granted a Decree of Judicial Separation on the terms of the Settlement, which was dated 16th November 2001. The following were the key points of the Settlement:
• The husband was to pay the sum of €300,000 to the wife for which the wife would transfer her interest in the family home to him including a commercial office in County Dublin.
• Both parties to retain in their sole names any further property that is in either of their names.
• The wife is 100% beneficially and legally entitled to her share holding in four companies, with the husband to release his interest both as a Shareholder and as a Director, such Order being made pursuant to Section 10(1)(b) of the Family Law Act 1995. | | | Under the same section the husband is a 100% beneficially and legally entitled to his company.
The husband is to pay the sum of €10,000.00 per annum in monthly instalments as maintenance towards the two children of the marriage with reference to the Consumer Price Index.
| | | | The above settlement also contained the normal provision for full and final settlement. After the required four year period the wife initiated Divorce Proceedings on 11th September 2003. The husband lodged a Defence and Counterclaim stating that he did not receive proper provision through the Consent Order and Settlement Terms. He did not seek for the Consent Order to be set aside but sought for ancillary relief by means of a Property Adjustment Order and/or lump sum payments. Mr Justice Abbott heard the matter in July 2006 after the matter was transferred to the High Court by consent. The basis of the husband’s claim was that the wife failed to fully disclose financial details in relation to her companies prior to the 2001 settlement and that she had subsequently sold her interest in the companies for a large sum. Mr Justice Abbott awarded the husband a further €500,000 for what he categorized as “information deficit loss” at the time of the Settlement although he stated that “the non disclosure was not due to any mala fides or conecealment on the part of the wife, rather it is due to the fact that this information was incomplete and not readily apparent to the wife”. A further €1,648,800 was awarded based on the sale of the wife’s interest in her four companies. The Trial Judge felt that due to the gaps of assets and income between the parties that the husband risked suffering from a lack of self esteem and was deserving of the extra assets explaining his rationale as follows: “I consider that the extent to which this approach should take away from the weight being given to the full and final settlement clause should be dictated by the need to ensure by way of ancillary relief provisions that the husband in this case when dealing with the children when in his care or while on holidays, is not shown up as an embarrassing gap in wealth when compared with the children’s mother. | | | | Such a gap in wealth in my view could easily result in the husband suffering such loss of self esteem, grieving or obsession with the litigations that he would easily lose the capacity to celebrate, enjoy, and be bubbly with his children as a father should be”. While the wife initially sought to appeal all aspects of this financial award she later withdrew her appeal in respect of the amount of €500,000 being awarded for “information deficit loss” and so this appeal is in respect of the €1,648,800 awarded, the amount awarded for information deficit loss together with an appeal in relation to the reduction of annual maintenance payments from €10,000 to €7,000. | | | Held by the Supreme Court (Mr Justice Fennelly) allowing the relief sought:
1. A trial judge should have regard to a settlement if it was, in all the circumstances, inadequate, which is in accordance with section 20(3) of the Act.
2. There is no basis in section 20 Family Law (ivorce) Act 1996 or in the notion of “proper provision” for the making of an award to compensate loss of self esteem.
3. The entire award of €2,148,000 (€1,648,000 and €500,000) should be interpreted as an award in relation to proper provision and it was ordered for it to be substituted in Mr Justice Abbott’s judgment for the sum of €500,000, thus setting aside the award of €1,648,000.
4. The order to reduce maintenance payments by the husband, in relation to the two children of the marriage, to €7,000 per annum was affirmed.
David Hegarty SC, with Adrienne Cawley BL, for the Appellant.
John Rogers SC, with Cormac Corrigan BL for the Respondent.
| | | | |  For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
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