The Supreme Court upheld most of a High Court order requiring Mr. A to make additional financial provision for Mrs. A after finding deliberate non-disclosure of assets in their divorce proceedings. It remitted one issue about a cash bond to the High Court and directed that €240,000 be deducted from the €2.5 million award pending that decision.
The appeal concerned a motion in the original family proceedings alleging that Mr. A had failed to disclose the full extent of his resources before the parties settled their case in 2001. The High Court, after hearing evidence, found deliberate non-disclosure involving four assets and ordered €2.5 million in further provision. It left the divorce decree in place.
The Supreme Court rejected arguments that the High Court lacked jurisdiction to hear the application by motion, rather than requiring fresh plenary proceedings. It said plenary proceedings are generally the proper way to challenge a final order for fraud, but in divorce cases the court has discretion to allow another procedure, given its constitutional duty to ensure proper provision. The Court considered the process fair in this case, noting it had proceeded in a way analogous to a plenary hearing.
It also upheld the finding that Mr. A had made no broader concession about ownership of assets than the one formally announced in court in October 2001. The Court rejected the argument that the settlement barred Mrs. A from raising deliberate non-disclosure. It said a settlement may be set aside where a deliberate failure to meet disclosure obligations amounts to material misrepresentation; the settlement here did not resolve the disclosure issues later raised.
The Supreme Court upheld the High Court’s findings concerning three assets: options relating to roof space and land for apartments, and an agreement to purchase land. It found sufficient evidence that those assets should have been disclosed, that the failures were deliberate, and that they were materially significant to proper provision. It also upheld the inference that further undisclosed assets might exist.
The fourth asset was cash bonds associated with a company. The Supreme Court agreed that the bonds had not been disclosed and that the failure was deliberate, but found the evidence insufficient to decide whether their release increased Mr. A’s resources or merely removed a contingent liability. It sent that question alone back to the High Court.
The Court said further provision could be made to reflect what would likely have been proper at the time of the original divorce order, without setting aside the decree. It affirmed the High Court order subject to the €240,000 deduction while the bond issue is decided. If that issue is resolved in Mrs. A’s favour, the deduction is to be reversed and a further €240,000 provided.