The High Court has dismissed an application to vary a judicial separation settlement after the former family home sold without leaving money to distribute between the parties.
The applicant had asked the court to set aside the settlement and order a lump sum, arguing that it no longer made proper provision for her. The settlement, agreed in March 2017 and made an order of the court, required the home to be sold and set out how any net proceeds would be divided. The applicant was to receive 80% of net proceeds up to €2 million, with any net proceeds above that divided equally.
The home eventually sold for €1.75 million. After sale costs and discharge of the Bank of Ireland mortgage, no surplus remained. The bank told the court that its issues had been resolved and it was no longer pursuing proceedings against either party.
The applicant said she had expected some money from the sale and was concerned about the condition of the Dublin house where she lives with two sons, as well as her future income if the respondent’s maintenance payments stopped. No report on the work needed at the house or its likely cost was before the court. The judge also noted that the parties’ financial positions had not changed very significantly since the settlement.
The court considered whether the lack of sale proceeds amounted to a change in circumstances allowing an order to be varied under section 18 of the Family Law Act 1995. The judge found that the settlement had not guaranteed a particular sale price. The applicant had considered the €2 million reserve too high and had valued the property at €1.8 million; the eventual sale price was close to that valuation. The possibility of no surplus was an inherent risk of the settlement, the judge said, and the shortfall in hopes or expectations did not constitute a change in circumstances.
The judge accepted that the settlement had been freely reached with legal advice and made an order by consent. He also said the respondent did not have the means available to make the lump sum sought. The applicant’s application was dismissed.
The respondent had separately asked the court to require the applicant to sign documents transferring her beneficial interest in a Chicago property, as the settlement required. The judge said she had delayed dealing with the transfer and that the respondent had incurred additional local property taxes. However, the respondent had only recently established the precise legal requirements and requested the necessary action. The judge said he would discuss with counsel the appropriate form of order to secure compliance; the judgment did not state a final order on that motion.