Y (M) v Y (A)

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd.
• Judgment Date: 11 December 1995
• Neutral Citation: 1996 WJSC-HC 2614
• Docket Number: 169sp/1992
• Court: High Court
• Date: 11 December 1995

1996 WJSC-HC 2614

THE HIGH COURT

169sp/1992

Y (M) v. Y (A)

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY REFORM

ACT, 1989

AND IN THE MATTER OF THE MARRIED WOMEN STATUS ACT, 1957

SECTION 12

AND IN THE MATTER OF THE PARTITION ACTS,

AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES

AND CHILDREN) ACT, 1976

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AND IN THE MATTER OF G.Y. AN INFANT

BETWEEN

M. Y .

PLAINTIFF

AND

A.Y.

DEFENDANT

Citations:

BROMLEY FAMILY LAW 8ED 219

GUARDIANSHIP OF INFANTS ACT 1964 S11

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(f)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(b)

M (C) V M (T) 1991 ILRM 267

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN ) ACT 1976 S5

MARRIED WOMEN STATUS ACT 1957

DOMICILE & RECOGNITION OF FOREIGN DIVORCES ACT 1986

CONSTITUTION ART 40.3.1

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5(1)(a)

CONSTITUTION ART 40.1

CONSTITUTION ART 41

D (E) V D (F) UNREP COSTELLO 23.10.80 1982/11/1883

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(c)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S14

MURPHY STRUCTURAL ENGINEERS V MARITOWOC 1988 DULJ 174

NEWMARCH V NEWMARCH 1978 FAM 79

N (T) V N (PJ) UNREP MACKENZIE 29.7.87 1988/6/1568

M (C) V M (T) 1987 IR 152

M (C) V M (T) 1988 ILRM 456

WOOD V WOOD 1957 P 254

MACAULEY V MACAULEY 1991 1 WLR 179

ESTIN V ESTIN 334 US 541

MARRIED WOMENS STATUS ACT 1957 S12

PARTITION ACTS 1868 – 1876

CONSTITUTION ART 40

Synopsis:

HIGH COURT

Jurisdiction

Spouses - Separation - Decree - Validity - Divorce - High Court seised of wife's separation proceedings before petition for divorce presented by husband in foreign court - Separation decree and ancillary relief granted by High Court after divorce decree absolute - (1992/169 Sp - Budd J. - 11/12/95)

|Y. v. Y.|

HUSBAND AND WIFE

Separation

Decree - Validity - Spouses - Divorce - High Court - Jurisdiction - High Court seised of wife's separation proceedings before petition for divorce presented by husband in foreign court - Separation decree and ancillary relief granted by High Court after decree absolute of divorce - Guardianship of Infants Act, 1964, s. 11 - Judicial Separation and Family Law Act, 1989, ss. 2, 14 - (1992/169 Sp - Budd J. - 11/12/95)

|Y. v. Y.|

1 Judgment delivered on the 11th day of December 1995 by Mr. Justice Declan Budd..

2 On the 25th March, 1994 having heard evidence and the submissions of Counsel in this case, I gave a judgment and made the Orders as set out in the Order drawn up by the Registrar and dated 25th March, 1994 which Order was perfected on 27th April, 1994. By that Order the Court granted a decree of judicial separation. The Defendant had previously given an undertaking to the High Court in respect of divorce proceedings which he had instituted in England and in which he had apparently obtained a decree nisi, that he would take no further steps in the United Kingdom until his wife's proceedings had been dealt with in this jurisdiction. In the words of Counsel for the Defendant:-

"The undertaking, as I understood it always, was that no steps would be taken in the United Kingdom until your Lordship had given judgment and, in other words, finished with the case".

3 The hearing of the proceedings had commenced before this Court on 10th February, 1994 on foot of the proceedings brought by the wife. The hearing of proceedings on the basis of the status of the parties as being man and wife proceeded and the Court heard and ruled on preliminary issues and embarked on the hearing of evidence. On 15th February, 1994 this Court was informed that the Defendant had procured a decree absolute in London. This was manifestly obtained in breach of his undertaking to this Court, and with a view to changing his marital status and wresting a case actually at hearing in this Court from the seisin of this Court, and also with the ulterior purpose of defeating the claims being made against him on behalf of his wife and son in this Court. Despite his averments and protestations to the contrary, I have no doubt whatsoever but that his hope was to alter his marital status so as to evade his responsibilities towards his wife and his son and also to curtail the jurisdiction of this Court in the middle of the hearing of his wife's application and to try to reduce the efficacy of the Orders of this Court.

4 Having given judgment on 25th March, 1994, the Court ordered that the Defendant was to pay £1,300 per month to the Plaintiff for the support of herself and of their son payable on the first day of each month and that the Defendant was to pay to the Plaintiff a lump sum sufficient to cover the cost of purchasing a suitable house for the wife and the son to live in. The husband had repeatedly stressed in evidence that he wished to maintain communication with and access to his son and also that he would wish his son to be brought up in a suitable house. In short, there was a prospect that the husband might accept and carry out some of his responsibilities towards his wife and son. The matter was adjourned to Friday 29th April, 1994 to enable discussions to take place with regard to the provision of a house in County Donegal. Unfortunately, no maintenance has been paid since 25th March, 1994 nor has the husband made any attempt to discuss or to take steps to provide a suitable house for his wife and child; despite the fact that the payment down of a lump sum in respect of the purchase of a suitable house would enable her to become more financially independent of him by reason of the fact that she has been prepared in the past to take in lodgers and to derive an income from them and that in the part of Donegal where she wishes to reside, there is a demand for such student lodgings. Thus the payment of a capital sum in respect of the purchase of a home for his son might also have had the benefit of the future prospect that his wife would become more financially independent and would require less of a periodic sum to be paid to her in respect of maintenance. While it was clear that the Defendant was ignoring the Order of this Court both in respect of the payment of maintenance in respect of his wife and son and also in respect of the purchase of a house in Donegal, I acceded to requests for an adjournment of the matter. On 1st June, 1994 the Court was informed that no maintenance had been paid despite the Defendant's representations that he intended to pay maintenance; no payments have been made even at his own figure of £500 per month. Having been informed that the Plaintiff was being advised as to what steps might be taken in England, I adjourned the matter for mention to Friday, 20th June, 1994. I pointed out that as no final judgment had been given yet, the Defendant was still bound by his undertaking not to obtain the decree absolute. On 28th July, 1994, I was informed that no maintenance had been paid and that the Defendant had not visited his son. I should point out that no Order had been made for the attachment of the Defendant so as to leave the opportunity open to him to visit his son and also to take steps of a practical nature to meet his obligations with regard to the payment of maintenance and to make progress with regard to the purchase of a house for his wife and child. I acceded to a further request to adjourn the matter and on 22nd November, 1994, this Court was informed that in spite of the undertaking given to this Court, further steps had been taken with regard to the decree absolute. On 19th December, 1994, a Motion to attach and commit the Defendant for contempt of Court, was brought because he had taken steps to instruct his English Solicitor to take further steps in respect of the decree absolute, despite his further undertaking to this Court and also because of his failure to pay any sum in respect of maintenance since 25th March, 1994. Counsel for the Defendant said that there had been no attempt to breach the undertaking given to the Court but that the Defendant's Solicitor had merely been trying to clarify the position with regard to the validity of the decree absolute. Counsel for the Defendant sought further time so that his Solicitor might make further contact with the client and urge payment of the maintenance. The matter was adjourned to Friday, 27th January, 1995 with the Defendant's undertaking continuing not to take any steps with regard to the decree absolute and with both the Order in respect of maintenance and in respect of the purchase of the house extant. Last week I was asked to re-enter the matter which was done so that the Court might be appraised of the up to date situation and to review the present position. It would seem that the hope of the Court that the Defendant would take the opportunity to meet his obligations with regard to the payment of maintenance, discussions with regard to re-opening communication with his son and in respect of the purchase of a house has been ignored by the Defendant. I regret to say that this irresponsible behaviour, on the part of the husband and father, should not come as a surprise in view of the findings which I made with regard to his veracity and sense of duty in the Judgment which I delivered on 25th March, 1994.

5 The husband and wife in this case were married on 17th August, 1985 in Claudy, Northern Ireland. Their son, G., was born on 15th July, 1987. The husband was brought up in Wales and is aged 35 with an expertise in electronics and telecommunications especially in the manufacture, distribution and servicing of gaming machines. The husband deserted his wife and son in 1988 and went to Israel, among other places. In my judgment delivered on 25th March, 1994, I held that he had a considerable stake in the gaming machines business and he is both a trader in his sole name and also uses companies as a vehicle for his business. In the...