Friday 9 December 2016

Feuding couples go to war over land and cash

Supreme Court warns couples that bitter €100k court battles over assets mean less to share out

Published 26/04/2015 | 02:30

Paul McCartney and Heather Mills
Paul McCartney and Heather Mills

WARRING couples are being left with massive legal bills of up to €100,000 as they fight tooth and nail over division of property, maintenance payments and custody of the children.

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Last week's High Court judgment in a judicial separation case which detailed the repeated adultery by a wealthy businessman husband and the acrimonious squabble over €7.4m in cash, property and other assets, has lifted the lid on the high price of marriage break up among Ireland's elite.

But that case was not unique. In a judgment in another case of judicial separation involving a major battle over the division of a multi-million euro farm, the Supreme Court warned couples whose marriages collapse, that prolonged and expensive fighting in the courts means they will both lose out because of the money spent on lawyers and court fees.

The Supreme Court judges stated: "It is necessary to reiterate two simple truths; numerous court applications and especially appeals in family law cases worsen already frayed relationships and will diminish the assets available for apportionment between the parties."

In the separate case in the High Court, published last week, Mr Justice David Keane ultimately ruled that the wife, a home-maker and mother-of-four, was entitled to €18,000 a month in maintenance payments, the family home - valued at €1.6m - and an overseas holiday home. She will also share equally in her husband's €1.8m pension pot. The husband, "a dynamic businessman," earns €1.4m a year. The husband, meanwhile, retains his new home, control of companies he built up, a valuable share portfolio and various investment properties valued at some €2.3m last year, but is still deep in negative equity of some €4m based on valuations made last year.

The judge discounted claims by her husband, who had a number of affairs including a relationship with an employee and another with his wife's best friend, which still continues, that he had grounds for seeking a judicial separation because his wife had acted unreasonably by slapping him twice in the face. One of the slapping incidents occurred when he lavished attention on another woman during a foreign holiday meant to reconcile the couple's differences.

She also slapped him in the face on another occasion. The judge said that while physical violence could not be condoned these "minor incidents" did not, given the husband's "repeated and admitted infidelities", amount to unreasonable behaviour.

He also rejected claims by the husband that his wife's "excessive spending" was grounds for judicial separation with the judge noting that both husband and wife had "spent freely" at a time when the husband's business was highly profitable.

Before detailing his orders relating to the division of assets, and approving the wife's application for judicial separation on the grounds of adultery and unreasonable behaviour, the judge was critical of both husband and wife.

"In summary, I am forced to the conclusion that the commencement of this litigation by the husband was unreasonably and improperly precipitate and that its subsequent duration and the costs associated with it have been significantly and unnecessarily increased by the position adopted by the wife."

Long and expensive litigation in the High Court is not usual, analysis of statistics released by Courts Service reveal. An amicable agreement on custody, maintenance and the division of assets completed with a rubber stamp in the lower Circuit Court can cost as little as €500, though generally when there is dispute, judicial separation, divorce and nullity proceedings can cost thousands of euro when all legal bills and other expenses, like valuations, are totted up.

Relatively few divorce, judicial separation and nullity cases end up in the High Court where each day in court costs thousands.

Figures seen by the Sunday Independent show that in 2013 just 25 judicial separation applications were received by the High Court and 1,292 in the less-expensive Circuit Court.

Just 11 divorce cases came before the High Court in the same year while 3,598 applications were received in the country's Circuit Courts. There were two applications seeking annulment in the High Court and 46 in the Circuit Court.

In fact since the fractious and divisive referendum campaign that led Ireland to vote 51pc to 49pc in favour of introducing divorce 20 years ago, (remember the "Hello Divorce … Bye, Bye Daddy" poster campaign?) the divorce rate in Ireland remains remarkably low. It's the lowest in Europe and third-lowest globally behind Mexico and Chile.

Getting a divorce in Ireland, especially where there is acrimony and disputed division of substantial assets, is cumbersome and expensive.

Judgments in cases which are considered particularly important on points of law are sometimes published (with names and other specifics which might lead to identification redacted) on the Courts Service website.

They show acrimony, bitterness and feuding between spouses fighting over the division of sometimes substantial assets.

 

CASE STUDY 1

The battle over land

When marriages end, land, and its division, can mean war in the courts. Farmland made up most of the assets, worth at one stage €7.8m, of a couple involved in a bitter matrimonial case which twice came before the High Court, was twice appealed to the Supreme Court and was also the subject of a number of interlocutory injunctions.

It led the Supreme Court to observe tartly in its judgment: "The consequence of marital breakdown can be difficult enough for parties without complex, protracted and consequently expensive litigation. Unfortunately, the matrimonial litigation with which this judgment is concerned ticks each of these boxes."

One of many issues in an incredibly complex judicial separation case was an original High Court judgment which calculated assets, mostly farmland, at €7.8m. The High Court required the husband to sell whatever land was necessary to provide his wife with a lump sum of €2.8m which would constitute "an equal division of [land] assets."

By the time the case was appealed the husband claimed that there had been such a catastrophic collapse in property prices that he would have to sell so much land that paying his wife a lump sum of €2.8m no longer constituted an equal division. The Supreme Court outlined some of the background to the case including a campaign designed to frustrate the sale of the land, from which the husband disassociated himself. That campaign involved placards and poster campaign, graffiti, defacing advertising billboards and the dumping of gravel in a driveway to discourage potential buyers from examining the land.

CASE STUDY 2

Hiding the assets

The Supreme Court was also damning in a judgment delivered late last year concerning a wealthy businessman who concealed €5.3m in assets from his ex-wife during divorce proceedings.

As a result the businessman is facing the prospect of perjury charges.

The Supreme Court ruled that the man had been consciously and deliberately dishonest and "knowingly committed perjury and deceit".

Supreme Court judge Mr Justice William McKechnie said in his many years dealing with family law matters he had "never known of, or come across, a case where a party has so blatantly acted and where nothing short of utter contempt has been shown to the court".

"These matters should not simply be let rest here," said Mr Justice McKechnie.

The man's concealment of €5.3m in assets from his wife - when divorcing her - was described by a judge as "consciously and deliberately dishonest".

Following the damning judgment the businessman was ordered to pay his former wife at least another €2.26m in addition to whatever provision was agreed under an earlier settlement of family law proceedings.

CASE STUDY 3

Battling into old age

Both had been married and divorced before. But a judgment by the Court of Appeal vented frustration at the difficulties experienced by the courts in trying to deal with what they described as "two very difficult people" as their second marriages disintegrated.

The judgment stated: "It is fair to say that since the institution of these proceedings the parties have expended huge amounts of time, effort and money in litigating practically every issue that one could think of in a matrimonial dispute."

Mr Justice Kelly (presiding) noted: "The parties are conducting a litigation war against each other. They are each, in their respective ways, extremely difficult people and I entirely agree with the High Court judge when he said that the court is 'challenged to the very limit to try and deal with them.'"

At issue, was an appeal by the husband challenging an earlier High Court ruling regarding his access to their two children. Both each had adult children from their previous marriages.

The judgment noted that one of the difficulties was that the wife was reluctant to tell the children that she and their father were separated, a state of affairs which the original judge in the case had described as having caused "huge problems for the children and has been very retrograde for their welfare."

In the original hearing, an expert witness said that in their view the elder child was being "really weighed down by the conflict between the parents."

The Court of Appeal judgment stated: "The elder child was demonstrating sleeplessness and was missing school. The younger child was also fearful. The [younger child] actually said to the expert witness 'I want the war to end. I want peace.' That was said spontaneously by the child. It is a poignant commentary on what the unfortunate children have been experiencing."

Sunday Independent

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