Brendan Burgess
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I assume it would depend on the type of settlement reached. If it was deemed fair and reasonable by the courts at the time of agreement, I assume it would be classed as a contract and as such any failure would follow as a breech of contract?
As with most family law matters, either side can ask for the situation to be reviewed by the courts.
Judgment
In divorce proceedings many years after a judicial separation with a “full and final settlement” clause, Mr Justice Abbott ordered that the husband sell a property to cover the nursing home costs of his former wife.
Referring to the requirement that the court should have regard to any prior settlement when making provision under the 1996 Divorce Act, he said that on a strict view and following the decision of Mr Justice Adrian Hardiman in WA -v- MA, given the wife had “thrashed” the assets she had acquired in the judicial separation, the case should be dealt with on the basis only of maintenance provision into the future.
However, he was not taking such a strict view for two reasons. The fact the husband now had such a valuable property portfolio may be attributed, in part, to the cost to the wife of foregoing her rights to maintenance payments and, secondly, he felt the wife should have some capital over and above the maintenance payments to hold out to her children the possibility that they may succeed to some part of her estate.
He said he was greatly moved by her apprehension of being confined to a nursing home without respite. Ordinarily it was close relatives who provided such diversion, often in the expectation they may get some recompense in a will. He was therefore dealing with the case on a need basis.
He took account of the fact the wife’s life expectancy might be longer than estimated, as the estimate was based on averages for those with her condition in the population.
...
The husband’s assets, after allowing for capital gains tax, were in the region of €1.1 million. He had a rental income of €3,550 and expenditure of approximately €2,410. He also had some earnings as a property facilitator.
Mr Justice Abbott said the husband’s surplus of income over expenditure would not be enough to provide for the maintenance of the wife in a nursing home. He ordered him to sell one of the Irish properties, worth €600,000, to cater for all contingencies for the wife’s care into the future, and to lodge €400,000 on deposit. He could only draw down the interest after Dirt tax, the capital to be available to meet the needs of the wife.
...
In addition, he ordered him to pay a lump sum of €60,000 to wife as a “cushion” and ultimately as an inducement to her family to provide her with care and diversion outside the nursing home. He acknowledged that the husband, now in his 60s, also suffered from poor health, as he had arthritis and might require nursing home care in the future. If this was not met by his income, it may require realisation of his capital.
The full judgment is on www.courts.ie
Bizarre decision.This recent ruling might be of interest
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The judge made it clear :What do the (adult) kids have to do with it?
Ordinarily it was close relatives who provided such diversion, often in the expectation they may get some recompense in a will.
He said he was greatly moved by her apprehension of being confined to a nursing home without respite.
There's a 'yes and no' answer to that question.no such thing as a final settlement in an Irish divorce case and that a person can go back and ask for the agreement in general to be reviewed
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