Maintenance Case Law Flashcards
L v. Judge Ni Chonduin
Man was paying maintenance for his two sons. One over 18 not in education with mild depression the other nearly 23 and had taken a gap year from his education while his father still paid out of an adjustment earning orders. Held that his maintenance was incorrectly calculated and he could sue ex wife for same.
McE v. OS
Lump sum for illegitimate child was not permissible. She appealed to the ECtHR and won for article 8 violation.
H v H
Set out maintenance test:
- minimum reasonable requirements of the debtor’s spouse and children
- Income earned/capable of being earned by spouse
- True net income of debtor
- Reasonable living expenses of debtor
McCann
Man found loophole in section 6 of the 1940 Act for civil debts. Didn’t pay maitneneance without penalty
HD v Govenour of Wheatfield prison
Person can go to prison for failure to pay meaintenance but only as a last resort
McGrath v District Court Clerk
Employer was deducting earning based on the attachment of earnings order but did not know ages of children. So after 18 he kept deducting. Court failed to give relevant details.
R v R
Husband was in contempt of court for refusal to pay his maintenance. He was given a prison sentence of 28 days but judge put a stay on the sentence which meant that he could either produce the money or go to jail.
P v P
You can get both periodical payments and a lump sum payment.
F v M
Proper provision does not matter who contributed to the family more- but relies on what is NOW available and appropriate in the circumstnaces.
M v S
Judge commented that we could use more guidane on what proper provision really means
H v H
Clean break is desirable but sometimes not possible. Wife wanted the business. Court said no, the husband has run and operated the business for many years and provided for family with it. But there must be a certain condition on shares so that she cannot be excluded from same- but means that there is not a clean break from the couple.
H v D
Where a spouse can request maintenance orders be carried. Court held that maintenance is not a mathematival exercise. Even where there is a reduction in income- if you can provide from that income then it may not be reduced.
No v PQ
Where there is a step down clause aka a reduction in maintenance over time; the court must be satisfied that the dependant party will be sufficiently indpendent AKA have secured employment/ housing. Ties into proper provision.
C v C
Transfer of Property Order- wife was not given the family home because the parties would be living way too close to eachother. So instead they ordered that she be given a huge sum of money to buy her own house.
D v D
pension adjustment order was refused because the wife had been given a sum of 4 million euro which was sufficient provision
GR v NR
Variation of Settlement Order- where the parties have a prenup, antinup or post nup agreement regarding assets.
trusts where spouse ceases to be beneficiary of trust upon divorce, it was varied that she would in fact get 800k and the properties if there was a divorce. So while she would not get the trust she was at least given
ACC Bank v Markham
There was a judgment mortgage proceeding against the husband while there were divorce proceedings. Court held that the divorce proceedings must be carried out first.
D v D
The court did not want to extinguish the succession rights of wife because
- The husband was likely to accumulate lots of wealth in the next 0-12 years and would have a stronger position in the future
- The wife wanted a divorce.
So judge said park the succession rights and deal with the divorce first to determine if that can be part of your reliefs.
C v C
Blocking a wife’s right to succession after death is not possible unless proper provision was made for her after her husband’s death or in her lifetime.
T v T
Considerations the court will make when making ancilliary reliefs: Conduct
Husband had several affairs and an extra-martial child. Held that this was NOT good enough to consider in bad conduct for the extra reliefs to the wife.
R v R
Husband said grossly demeaning things to wife in front of the children of a sexual nature. Court held this was considerable conduct to be considered
R v T
Husband was hiding assets from the wife and cheating. The court said she was only alloed a slightly higher percentage of that money. Court said that if the husband had been a gambler and diminished their income- then it would be a greater consideration.
C v C
Where there is significant reduction and change of circumstances then you can apply for strategic relief. to vary the orders
Types of Variation Orders
- Suspension
- Variation
- Discharge
- Revival
QR v ST
While G v G held that inherited assets were not to be treated the same as other assets- this case held that ALL property is to be considered when making proper provision regardless of how it was acquired. However, all assets do not have to be treated in the same manner and if an asset has no previous connection with spouse that may be taken into consideration.
F v F
Possible to amend excutory order but any changes must strike a balance and the symetry with the original order is important.
OC v OC
Husband was already financially stretched and had altered the arrangedment once before. He tried to again. But the court refused because this was a pattern of poor financial choices and the wife shouldn’t have to be negatively affected because of that.
D v D
Ordered to pay lump sum but the value of his land had sropped. Court ordered thatprinciple equal distribution takes into account changes in property value.
Nama Y v X
Was basically arguing over debt. Wife’s yearly spending was 600k and husband USED to make 6 million a year but his company went into debt and was now making 40k per year.
D v A
mortage of family home may bring bank into proceedings for ancilliary reliefs
AY v BY
- Where changes of circumstances render it inequitable not to vary order
- When applying section 22 that court should maintain original symmetry and balance of order- and try to adjust to the circumstances to ensure it is just
- Court must have regard to the statute, specific factors listed in section 22(2)(a-I) of 1996 Act
- When invoking section 22 must invoke new events not simply the continuation of a trend.
N v O’D
Wife did not disclose her full assets and money to husband. Court awarded Husband an additional 2 million. Not out of punishment but out of concern that there was not proper provision for him.
E v F
lied and was ordered to make a full disclosure of means
Q v Q
Wife compelled disclosure of shares of company by husband. Husband refused to give that info. Court compelled him to give infor under section 70A rule 6
D v D
Good practice where parties disagree about resources is to make a list of all assets which either side contends should be taking into account by court
K v K
Where there is a variation order the order is not heard de novo
BF v VF
There is almost always a reduction in the standard of living
JNC v RTN
New relationships are to be considered in regarding the reduction of resources or the availableility of funds
MK v JP
Where there are already existing separation agreements in a divorce proceeding- it is not necessary to take it all into account. Proper provision is paramount
JC v MC
Post divorce reassement is permissible
