The High Court varied a 2011 divorce order after finding that the respondent could not meet his outstanding lump-sum obligations. The order released him from payments of €750,000 to the applicant and €2 million towards the mortgage on the Family Home, and from the requirement to clear the remaining mortgage balance by February 2018.
The judgment, delivered by Mr Justice Binchy on 12 March 2018, concerned competing applications to enforce or vary the terms of settlement. The applicant initially sought the respondent’s attachment and committal for non-compliance, as well as relief over alleged financial non-disclosure. During the hearing, she dropped the committal application and instead sought judgment for the unpaid sums and interest. The court said the existing order could be enforced through ordinary judgment procedures, without a further order restating the debt, provided it remained clear and had not been varied.
The applicant’s allegation that the respondent had failed to disclose a Bank A facility letter was not made out: the letter had been provided to her or her advisers before the settlement. The court also found that the respondent had given his accountant information about a loan due to him from a company, M., but the accountant had not passed it on to the applicant’s advisers. The judge found gaps in the information about M., but did not find that the respondent had lied or tried to mislead the court.
In support of his variation application, the respondent described a series of business setbacks after the 2011 settlement, including the cancellation of a project abroad, losses affecting his business and demands from lenders. The court noted that this account lacked supporting documents or other witnesses, but accepted the respondent’s evidence on the balance of probabilities. It found the events were not anticipated and amounted to a change in circumstances sufficient to invoke the court’s power to vary the order. The applicant’s challenge that the respondent had improperly favoured NAMA over her was also rejected.
The court assigned responsibility for the liabilities to NAMA secured over the Family Home to the applicant, directing that she discharge them within two years. The respondent’s maintenance of €12,916 a month for the applicant was to continue for 12 months after the varied order was perfected, then cease. Child maintenance of €5,000 a month was to continue, reducing by half when the older child turns 24 and ending when the younger child turns 24. The respondent’s obligations for the children’s medical and healthcare costs were also to end at 24. The judge additionally proposed requiring him to meet necessary university fees in Ireland.
The court rejected the respondent’s proposal to place the Family Home in trust for the children and the applicant, finding no such agreement in the settlement. It made no order concerning the Holiday Property, but gave the parties liberty to apply if they later disagreed over its management or sale. The judgment varied specified terms; it did not resolve the separate proceedings about NAMA’s claim over the Family Home.