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2009 Master 75 Ref:

Judgment: approved by the Court for handing down Delivered: 27/10/09

(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND

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FAMILY DIVISION

PROBATE AND MATRIMONIAL

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BETWEEN:

D

Petitioner;

and

D

Respondent.

(Post-Agreement Windfall)

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Master Bell

[1] Thirteen years ago the parties in this case separated and signed an

agreement regulating their financial affairs. Recently the husband has had a

£10.0 million “windfall” (as counsel for the wife referred to it) and she now

applies to the court for a share thereof. The issue for decision is whether she is

entitled to such a share. The wife seeks Ancillary Relief pursuant to a

summons dated 16 October 2007 issued in the County Court for the Division

of Fermanagh and Tyrone. The application was transferred, on consent, to the

High Court on 14 December 2007 under Rule 2.76(2) of the Family

Proceedings Rules (Northern Ireland) 1996.

[2] I have anonymised this judgment in order to avoid the identification of

the youngest child of the family. The parties are requested to consider the

terms of this judgment and to inform the Matrimonial Office in writing within

one week as to whether there is any reason why the judgment should not be

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published on the Court Service website or as to whether it requires any

further anonymisation prior to publication. If the Office is not so informed

within that timescale then it will be submitted to the Library for publication in

its present form.

[3] At the hearing neither party gave oral evidence. An affidavit had been

sworn by the wife on 11 September 2007 for the purpose of these proceedings

and an affidavit had been sworn by the husband on 29 February 2008.

However the application proceeded on the basis of oral and written

submissions by counsel. Mr Toner QC and Miss Alexander appeared on

behalf of the wife and Miss McGrenera QC and Miss Cunningham appeared

on behalf of the husband.

[4] The matter was listed at the instance of the husband to argue that,

given the existence of the 1994 agreement between the parties, the wife was

not entitled to any share of the windfall.

THE FACTS

[5] The parties were married on 1 May 1989 and separated in late 1994. On

28 November 1994 the parties entered into a separation agreement (“the

agreement”). On 5 December 1994 an order for child and spousal maintenance

was made in the Magistrates Court under Article 8 of the Domestic

Proceedings (Northern Ireland) Order 1980. On 16 June 2000 the wife

petitioned for divorce and a Decree Nisi was granted on 5 March 2001. No

decree absolute has yet issued. On 1 October 2007 a summons for ancillary

relief was issued.

[6] The agreement provided that the parties would have joint custody of

their three children (now aged 20, 19 and 15). It provided for a sum of

maintenance in the amount of £400 per month (£100 per month to the wife

and £100 per month to each of the children.) It provided that the matrimonial

home would be sold and the net proceeds would be divided between the

parties. It also provided that :

“Prior to the division of the net proceeds of sale as indicated

above the Respondent shall pay to the applicant the sum of

£5,000 (Five Thousand Pounds) and the payment of such sum

shall be in full and final settlement of the Applicant’s

entitlement to financial provision whether by way of lump

sums, periodical payments, secured provision orders and

property adjustment orders now or at any time in the future,

pursuant to the Married Women’s Property Act 1882, Partition

Acts, Matrimonial Causes (N.I.) Order 1978, The Matrimonial

and Family Proceedings (N.I.) Order 1989, The Inheritance

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(Provision for Family and Dependents (N.I.) Order 1979 or

any subsequent enactment thereof or in Equity or at Common

Law, or any other claim to entitlement whatsoever, whether