Important case on significance of previously required assets
In a recent High Court Case of DE v FG (January 2019) Judge Binchy set out some interesting statements in relation to assets acquired by one of the parties prior to marriage. When the matter came before the court the children of the marriage were aged 20, 17 and 16 respectfully.
The respondent wife was an EU citizen and had previously had a very successful business with a business partner and was earning a salary in the region of €220,000 per annum in the mid-1990s. The husband (applicant in the proceedings) had worked as an English teacher, then worked in the business owned by the wife and her business partner both of whom had invested €170,000 each in the business. Evidence was given that the husband assisted in the development of the business by establishing contacts with tourist guides and tourists as English was his first language.
The wife then bought out by the business partner for a sum of €205,000 using joint marital funds. Subsequently the business went into decline and was eventually wound down.
The parties had purchased a house for €360,000 which was funded by cash assets from the wife of €126,000 and a mortgage.
The respondent later invested approximately €206,000 to reduce the mortgage down to €28,000.
The business premises was subsequently sold for €116,000 and the family home for €565,000
The parties moved to Ireland. Unhappy differences arose and the husband issued judicial separation proceedings.
The wife claimed that when they got married they were given two different options in relation to the “marriage contract” and where neither option was taken the default marriage contract became applicable i.e. the wife was to be given credit for assets which she owned prior to the marriage. The husband claimed that he was not aware of such a contract and he assumed that because they were getting married that all assets would be split automatically on a 50/50 basis.
In his decision Judge Binchy referred to the statement by Ms Justice Irvine in QR v ST i.e. all assets must be taken into account even those owned pre marriage or from an inheritance where jointly acquired assets were insufficient to make proper provision.
He said that in this particular case given the fact that the pre marital assets i.e. the business had subsequently been wound down, no longer existed the argument in relation to the premarital contract was not relevant. He did make the comment however that there was no evidence before the court of the nature of the marriage contract alleged by the wife i.e. he suggested that where reliance was being placed on the existence of a marriage contract that there needed to be evidence as to exactly what that contract was intended to provide.
He also made the point that it was incorrect for the applicant husband to make any assumption in relation to any assumption as to a 50/50 division of the assets.
He took into account the husband’s age in terms of getting a mortgage as the husband was going to be taking the main responsibility for the children given the fact that the wife was living out of the jurisdiction and had intended to come back to Ireland on an intermittent basis to see the children. He gave the husband 50% of a New Zealand bank account and approximately 40% of assets owned by the wife in Las Vegas. This case reaffirms the view that the courts must focus more on the future than the past in making proper provision for the parties.
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