Recent Developments in Family Law
A recent Judgment in the High Court has highlighted the willingness of the courts to vary existing Orders in family law cases where they cannot be implemented due to the fact that the circumstances of one of the parties has changed to such an extent that he or she could not comply with the original Order.
Judgment was given by Ms Justice Dunne In the case of O’C v O’C on 14th May 2009. The parties had been granted a Decree of Judicial Separation in the High Court pursuant to a written agreement between them. Orders were made directing the wife to transfer her share in the family home to her husband in return for another property which was to have been transferred to her by her husband free from mortgage. The husband made an application to vary the original Order on the basis that his financial circumstances had deteriorated to such an extent that he could no longer comply with the Order. The wife made a further application to now have the family home transferred to her due to the husband’s failure to comply with the Order.
Ms Justice Dunne held that whilst a property adjustment Order made under Section 9 of the Family Law Act 1995 could not be varied, it was open to the court to make a further property adjustment Order in relation to the same property on more than one occasion. Ms Justice Dunne held that while the general rule was that the courts would uphold agreements freely entered into at arms length by parties who had been properly advised, applications to vary or set aside the terms would be entertained in certain circumstances. The criteria to be applied to such applications were:
1. That new events had occurred since the making of the Order that invalidated the basis on which the Order had been made so that an appeal would be certain or very likely to proceed.
2. That the new events should have occurred within a relatively short time after the making of the Order.
3. That the application for leave to appeal out of time should have been made reasonably promptly.
4. That the grant of leave should not prejudice third parties who had acquired in good faith and for valuable consideration interests in property the subject of the Order.