The High Court has upheld a Circuit Court refusal to vary a divorce property order, leaving in place a provision for the sale of Property A after a missed payment.
The appeal concerned orders made as part of the parties’ divorce in 2010. Under their settlement, the family home was to go to the respondent, while two properties in S were to go to the applicant. The applicant also agreed to pay €200,000 towards the mortgage on the family home in two instalments.
The applicant later sold Property B for less than its expected valuation, and his income as an architect fell substantially. He paid €95,000 towards the mortgage in January 2012. He said a further €5,000 had already been paid, but the €100,000 instalment due in June 2012 remained unpaid.
The settlement provided that, if either lump-sum payment was missed, an order for the sale of Property A would become enforceable, with the respondent entitled to the net proceeds up to the amount owing. The applicant sought to vary the payment order under section 22 of the Family Law (Divorce) Act 1996. The Circuit Court refused the application in October 2012, and he appealed that refusal.
Mr Justice Michael White said the sale order under section 19 had been activated by the default and could not be varied under section 22. He considered whether the applicant could obtain relief under the principles set out in an earlier High Court judgment, which allow a court in limited circumstances to address a fundamental change that makes enforcement inequitable, while preserving fairness and the balance of the original order.
The judge compared the original and later property figures. The original settlement allocated 63.5% of the net property assets to the respondent and 36.5% to the applicant. Using later values, the judge calculated that enforcing the settlement would give the respondent 73.4% and the applicant 26.6%.
The court acknowledged the applicant’s reduced income and financial difficulties. It also noted that the respondent had accepted the settlement in good faith, had complied with it, and had assumed risks relating to the family-home mortgage and its value. Property values had already been falling and were uncertain when the parties settled in June 2010.
The judge concluded that the applicant had not established the required grounds for relief, particularly given the settlement’s express default provision and the parties’ stated intention to achieve a full and final financial settlement. The court dismissed the appeal by affirming the Circuit Court’s October 2012 order.