B.L. v M.L.

• Jurisdiction: Ireland
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [1987 No. 35M; S.C. No. 442 of 1988]
• Court: Supreme Court

High Court

Supreme Court

[1987 No. 35M; S.C. No. 442 of 1988]

L. v. L.

B.L.

Plaintiff

and

M.L.

Defendant

Cases mentioned in this report:—

In re Adoption (No. 2) Bill, 1987 [1989] I.R. 656; [1989] I.L.R.M. 266.

Appleton v. Appleton [1965] 1 W.L.R. 25; [1965] 1 All E.R. 44.

Bedson v. Bedson [1965] 2 Q.B. 666; [1965] 3 W.L.R. 891; [1965] 3 All E.R. 307.

Buckley (Sinn Féin) v. Attorney General [1950] I.R. 67.

C. v. C. [1976] I.R. 254; (1976) 111 I.L.T.R. 133.

K.C. and A.C. v. An Bord Uchtála [1985] I.L.R.M. 314.

Cobb v. Cobb [1955] 1 W.L.R. 731; [1955] 2 All E.R. 696.

Containercare Ltd. v. Wycherley [1982] I.R. 143.

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.

H.D. v. J.D. (Unreported, High Court, Finlay P., 31st July, 1981).

N.A.D. v. J.D. [1985] I.L.R.M. 153.

de Burca v. The Attorney General [1976] I.R. 38; (1976) 111 I.L.T.R. 137.

Dent v. Dent (1865) 13 L.T. 253.

Durant v. Durant (1827) 1 Hagg. Ecc. 733.

J.F v. B.F (Unreported, High Court, Lardner J., 21st December, 1988).

F. (otherwise C) v. C. [1991] I.L.R.M. 65.

Finney v. Ballymun Garda Station [1991] 1 I.R. 196; [1990] I.L.R.M. 767.

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

H. v. H. (Ex tempore, High Court, Barrington J., 20th June, 1989).

Hamilton v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

Heavy v. Heavy (1977) 111 I.L.T.R. 1.

Hine v. Hine [1962] 1 W.L.R. 1124; [1962] 3 All E.R. 345.

Hynes-O'Sullivan v. O'Driscoll [1988] I.R. 436.

R.K. v. M.K. (Unreported, High Court, Finlay P., 20th November, 1978).

K. v. W. [1990] I.L.R.M. 121.

La Rue v. La Rue (1983) 304 S.E. 2d 312; 41 A.L.R. 4th 445.

McC. v. McC. [1986] I.L.R.M. 1.

McGee v. Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

Murphy v. Attorney General [1982] I.R. 241.

Murphy v. Murphy [1962/3] Ir. Jur. Rep. 77.

Murray v. Diamond [1982] I.L.R.M. 113.

N. v. K. [1985] I.R. 733; [1986] I.L.R.M. 75.

E.N. v. R.N. [1990] 1 I.R. 383.

National Provincial Bank v. Ainsworth [1965] A.C. 1175; [1965] 3 W.L.R. 1; [1965] 2 All E.R. 472.

O'Reardon v. O'Reardon (Unreported, High Court, Finlay P., February, 1975) noted Shatter; Family Law, 3rd ed., p. 221, note 34.

C.P. v. D.P. [1983] I.L.R.M. 380.

The People (Director of Public Prosecutions) v. Walsh [1981] I.R. 412.

Pettit v. Pettit [1970] A.C. 777; [1969] 2 W.L.R. 966; [1969] 2 All E.R. 385.

E.R. v. J.R. [1981] I.L.R.M. 125.

Ryan v. Attorney General [1965] I.R. 294.

The State (Bouzagou) v. Fitzgibbon Street Garda Station [1985] I.R. 246; [1986] I.L.R.M. 98.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; (1966) 102 I.L.T.R. 142.

W. v. Somers [1983] I.R. 122; [1983] I.L.R.M. 343.

W. v. W. [1981] I.L.R.M. 202.

Husband and wife - Marriage - Matrimonial property - Whether wife has a beneficial interest in matrimonial property when she has not made a contribution in money or money's worth to the purchase price thereof - Married Women's Status Act, 1957 (No. 5), s. 12 - Constitution of Ireland, 1937, Article 41.

Constitution - Recognition of role of women in the home - Whether woman's work as a housewife is of monetary value - Whether regard should be had to wife's work in the home when assessing her contribution towards the purchase price of the family home - Married Women's Status Act, 1957 (No. 5), s. 12 - Constitution of Ireland, 1937, Article 41.

Equity - Trust - Constructive trust - Requirement that wife make a direct or indirect contribution towards purchase price of family home in order to obtain a beneficial interest therein - Whether work in the home can constitute such indirect contribution.

Constitution - Separation of powers - Role of judicial power - Whether granting wife right to proprietorial interest in family home on the basis of Article 41 a usurpation by judiciary of legislative power.

Husband and wife - Alimony - Divorce a mensa et thoro - Factors to be taken into account when assessing alimony.

Husband and wife - Adultery - Condonation - Whether subsequent adultery revives acts of adultery previously condoned by spouse.

Petition and Special Summons.

By petition dated the 13th July, 1987, the wife sought a decree of divorce a mensa et thoro and an order for the payment of alimony against the husband on the grounds, inter alia, of his repeated adultery and his physical and mental cruelty towards her. A citation was issued on the 3rd November, 1987, and served on the husband. By answer and counter-claim dated the 10th February, 1988, the husband denied the allegations of adultery and cruelty and counter-claimed for a decree of divorce a mensa et thoro and an order excluding the wife from the family home on the grounds of her adultery and desertion.

By special summons dated the 23rd September, 1987, the wife commenced a second action against the husband and sought, as plaintiff, an order setting out and declaring the respective beneficial interests of herself and the husband in the family home and farm and the fixtures and fittings thereof, under s. 12 of the Married Women's Status Act, 1957.

Section 12, sub-ss. 1, 2 and 4, of the Married Women's Status Act, 1957, provide as follows:—

"1. This section applies to the determination of any question arising between husband and wife as to the title or possession of any property.

2. Either party or any person concerned may apply in a summary way to the High Court or (at the option of the applicant irrespective of the value of the property in dispute) to the Circuit Court to determine the question and the Court may make such order, with respect of the property in dispute and as to the costs consequent on the application, as the Court thinks proper.

4. If either party so requests, the Court may hear the application in private."

Article 41, ss. 1 and 2, of the Constitution of Ireland, 1937, provide as follows:—

"1. 1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

• 2 The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

• 2. 1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

  • 2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home."

Both actions were heard together by the High Court (Barr J.) on the 14th April, the 28th, 29th, and 30th June and the 1st, 5th and 6th July, 1988.

The defendant appealed against the judgment and order of the High Court by notice of appeal dated the 23rd December, 1988. At the hearing of the appeal the defendant confined his appeal to the finding of the High Court that the plaintiff was entitled to a 50% beneficial interest in the family home by virtue of her role as wife and mother within the home pursuant to Article 41 of the Constitution.

The appeal was heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 15th and 16th October, 1991.

[Reporter's Note: This appeal was heard by the Supreme Court in conjunction with the appeal in E.N. v. R.N. [1992] 2 I.R. 116 as both cases dealt with similar issues arising from Article 41 of the Constitution. As the executors of the husband in E.N. v. R.N. were not disputing the wife's claim, the arguments of the wife in E.N. v. R.N., together with the arguments of the wife in L. v. L., were responded to by counsel on behalf of the husband in L. v. L.]

The plaintiff wife, a German national, married the defendant husband in 1968. There were two children of the marriage. The defendant bought the family home, a Georgian farm house and 126 acres in 1970, the purchase largely funded by a gift from the defendant's brother. The defendant carried on cattle farming on the farm. The plaintiff played a crucial role in the refurbishment and redecoration of the house and ornamental gardens. The defendant subsequently became involved in land speculation and in 1972 and 1973 bought further farm land and a second farm and farmhouse in the same region as the family home. He bought substantial farm property in England in 1977 and 1979 which were subsequently resold at a profit. These purchases were financed in part by the defendant's brother, a priest, who never claimed repayment of the loans. The profits from the land speculation were used to buy additional land adjoining the first farm, to rebuild part of the family home and to improve the farm by the erection of farm buildings. In addition, the defendant, for commission, helped German nationals interested in purchasing land in Ireland. The plaintiff assisted her husband in this activity and also provided occasional clerical services. Apart from this, she was not involved in the running of the farm or of her husband's business. The plaintiff was at all times during her marriage a full-time homemaker and mother.

The plaintiff sought a decree of divorce a mensa et thoro on the grounds of the defendant's physical and mental cruelty towards her and of his adulterous behaviour throughout the course of their marriage. She also sought a declaration under the Married Women's Status Act, 1957, s. 12, in respect of what beneficial interest, if any, she had in the family home and farm, the property of the said marriage.

Held by Barr J., in granting the plaintiff relief, 1, that where title to property is in one party's name and the other spouse has made a direct or indirect contribution in money or money's worth towards the purchase price, then that spouse is entitled to a proportionate beneficial interest in the said property by way of resulting trust.

C. v. C. [1976] I.R. 254 and McC. v. McC. [1986] I.L.R.M. 1 consi...