Sunday 20 August 2017

Separated wife loses appeal after alleging €3.8m lump sum from ex-husband was too low

The High Court, Dublin
The High Court, Dublin

Tim Healy

A separated wife has lost an appeal alleging a €3.8m lump sum her ex-husband was ordered to pay her was too low.

The woman claimed the sum, alleged to represent up to 12pc of the man's assets, was not "proper provision" under the Family Law Act 1995 and Judicial Separation and Family Law Reform Act 1989.

She alleged the High Court failed to properly take into account "egregious" misconduct by him and sought some 20 per cent of his assets.

Proper weight was not given to factors including his infidelity, his fathering a child with another woman and his transfer of "significant" assets to that other woman, and to a third woman, she claimed.

A three-judge Court of Appeal dismissed the wife's appeal against the 2013 High Court judgment by Mr Justice Michael White.

The husband previously withdrew his own appeal over the High Court judgment.

The High Court ordered the man pay €3.8m to his wife and €20,000 monthly maintenance for herself and the children. She also got the entire interest in the property where she lived and two other properties.

The shares each would have in the other's estate were cancelled and a declaration was made the husband had no claim on certain properties owned by the wife.

Ms Justice Mary Irvine, on behalf of the appeal court, said the High Court had regard to all 12 relevant statutory factors when deciding proper provision, including the parties ages, standard of living, conduct, financial needs and their income, earning capacity and assets now and into the future.

A party's conduct must be so "obvious and gross" to warrant being taken into account and infidelity and "exceptionally harsh and hurtful comments" made about a spouse did not rank as such conduct.

The High Court had to consider the husband's conduct in all the circumstances, including he gave significant money and property to the mother of the child he fathered outside of wedlock.

There was no evidence his transfer of assets interfered with his ability to provide an "extremely generous" standard of living for his wife during their relationship.

Because of the "surplus" assets, the transfer had no material impact on the court's ability to make proper provision for the wife.

The wife had alleged the man had left out very significant assets valued about €28m from his affidavit of means.  He had asked her to sign an agreement she would not seek to have the assets referred to in an affidavit vouched, the judge noted.

While satisfied the husband knew more about his finances than he maintained in evidence, the High Court had said it could not be satisfied he set out to deliberately mislead the court or his wife, she said.

It could not be said the evidence was so grossly and obviously in favour of a finding of deliberate fraud and concealment the appeal court could interfere with those findings.

The High Court also found, at the time in 2013 it had to decide proper provision, there was full disclosure of the man's assets and decided his conduct was not such that the court, for the purposes of making proper provision, could not ignore it.

The wife had failed to show the €3.8m was not proper provision for her, the appeal court held.

It noted she also retained a substantial property, her husband had no claim over two other properties and she had monthly maintenance of €20,000 for herself and her children.

The judge dismissed claims the High Court failed to have adequate regard to her claims about the adverse efefct of marriage on her own potential income or her role as homemaker.

Earlier, the judge noted the couple were in a relationship for some 20 years and married several years after starting that relationship.

They had children together and both also have children by other relationships.

They disagreed over the extent to which theirs was a committed relationship and the motivation for their marriage.

The man made substantial financial payments to his wife over the years and she also got property assets.

Subject to allowing for "some exaggeration", the High Court accepted the wife's evidence of providing a strong family environment for her children and that, in the last year or so of their marriage, the man treated his wife in a dishonest and disrespectful manner and deliberately misled her about his personal life.

The High Court also found the wife should not have threatened the man with loss of their children or tried to force him to sign certain financial documents.

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