Maintenance Case Law

Question 1

L v. Judge Ni Chonduin

Answer 1

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.

Question 2

McE v. OS

Answer 2

Lump sum for illegitimate child was not permissible. She appealed to the ECtHR and won for article 8 violation.

Question 3

H v H

Answer 3

Set out maintenance test:

1. minimum reasonable requirements of the debtor’s spouse and children
2. Income earned/capable of being earned by spouse
3. True net income of debtor
4. Reasonable living expenses of debtor

Question 4

McCann

Answer 4

Man found loophole in section 6 of the 1940 Act for civil debts. Didn’t pay maitneneance without penalty

Question 5

HD v Govenour of Wheatfield prison

Answer 5

Person can go to prison for failure to pay meaintenance but only as a last resort

Question 6

McGrath v District Court Clerk

Answer 6

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.

Question 7

R v R

Answer 7

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.

Question 8

P v P

Answer 8

You can get both periodical payments and a lump sum payment.

Question 9

F v M

Answer 9

Proper provision does not matter who contributed to the family more- but relies on what is NOW available and appropriate in the circumstnaces.

Question 10

M v S

Answer 10

Judge commented that we could use more guidane on what proper provision really means

Question 11

H v H

Answer 11

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.

Question 12

H v D

Answer 12

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.

Question 13

No v PQ

Answer 13

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.

Question 14

C v C

Answer 14

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.

Question 15

D v D

Answer 15

pension adjustment order was refused because the wife had been given a sum of 4 million euro which was sufficient provision

Question 16

GR v NR

Answer 16

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

Question 17

ACC Bank v Markham

Answer 17

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.

Question 18

D v D

Answer 18

The court did not want to extinguish the succession rights of wife because

1. The husband was likely to accumulate lots of wealth in the next 0-12 years and would have a stronger position in the future
2. 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.

Question 19

C v C

Answer 19

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.

Question 20

T v T

Answer 20

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.

Question 21

R v R

Answer 21

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

Question 22

R v T

Answer 22

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.

Question 23

C v C

Answer 23

Where there is significant reduction and change of circumstances then you can apply for strategic relief. to vary the orders

Question 24

Types of Variation Orders

Answer 24

1. Suspension
2. Variation
3. Discharge
4. Revival

Question 25

QR v ST

Answer 25

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.

Question 26

F v F

Answer 26

Possible to amend excutory order but any changes must strike a balance and the symetry with the original order is important.

Question 27

OC v OC

Answer 27

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.

Question 28

D v D

Answer 28

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.

Question 29

Nama Y v X

Answer 29

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.

Question 30

D v A

Answer 30

mortage of family home may bring bank into proceedings for ancilliary reliefs

Question 31

AY v BY

Answer 31

1. Where changes of circumstances render it inequitable not to vary order
2. 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
3. Court must have regard to the statute, specific factors listed in section 22(2)(a-I) of 1996 Act
4. When invoking section 22 must invoke new events not simply the continuation of a trend.

Question 32

N v O’D

Answer 32

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.

Question 33

E v F

Answer 33

lied and was ordered to make a full disclosure of means

Question 34

Q v Q

Answer 34

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

Question 35

D v D

Answer 35

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

Question 36

K v K

Answer 36

Where there is a variation order the order is not heard de novo

Question 37

BF v VF

Answer 37

There is almost always a reduction in the standard of living

Question 38

JNC v RTN

Answer 38

New relationships are to be considered in regarding the reduction of resources or the availableility of funds

Question 39

MK v JP

Answer 39

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

Question 40

JC v MC

Answer 40

Post divorce reassement is permissible