C.M. v C.J.

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO
• Judgment Date: 06 July 1982
• Neutral Citation: 1982 WJSC-HC 1804
• Docket Number: No. 5M./1978
• Court: High Court
• Date: 06 July 1982

C.M. v. C.J.

BETWEEN:

M.C.

Petitioner

and

J.C.

Respondent

1982 WJSC-HC 1804

No. 5M./1978

THE HIGH COURT

1 JUDGMENT OF MR. JUSTICE COSTELLO Delivered the 6th day of July 1982

2 The Respondent is the husband of the Petitioner and he says that he cannot now afford to pay the alimony which he agreed to pay his wife on the 4th October 1979. So he has brought a motion asking the Court for an order "varying and reducing the maintenance order made herein by consent on the 4th day of October 1979". His wife resists this application and I have been asked to make a preliminary ruling on a point of law which has been raised on her behalf. It is submitted that the Respondent settled his wife's matrimonial proceedings by agreeing, inter alia, to pay her alimony at an agreed rate and he cannot now be heard to claim that his contractual obligation should be varied. I have to decide on the validity of this submission.

3 The Respondent's case is based on Order 70 Rule 55 of the 1962 Rules of the Superior Courts. This provides as follows:-

"A wife may at any time after alimony has been allotted to her, whether alimony pending suit or permanent alimony, apply by motion for an increase of the alimony allotted by reason of the increased faculties of the husband or by the reduction of her own faculties, or a husband may apply by motion for a diminution of the alimony allotted by reason of reduced faculties or of the wife's increased faculties, and the course of proceedings in such cases shall be the same as required by this Order in respect of the original application for alimony and the allotment thereof so far as the same are applicable."

4 It will be noted that the right of a wife to apply for an increase in alimony and the right of a husband to apply for a diminution in alimony arises at any time "after alimony has been allotted" to the wife. It seems to me that the issue I have to consider will be determined by the construction of these words and their application to the facts of this case.

5 Before examining the Rule in greater detail I should explain exactly how the Respondent's present obligation to the Petitioner has arisen. The Petitioner instituted proceedings in the High Court for an Order for judicial separation and alimony. No hearing of the claim, however, took place as it was settled on agreed terms. An Order of the Court was made on the 4th October 1979. Having recited that the cause was listed for hearing on the 4th October and that it appeared to the Court "that a settlement had been reached herein in the terms set out in the Schedule hereto which have been agreed between the parties" the Order then went on to provide:-

"By consent the Judge by his final decree pronounced and decreed that the Petitioner be divorced and separated from bed board and mutual co-habitation with the Respondent by reason of the cruelty of the said Respondent".

6 Following the signature of the Registrar there appeared a Schedule to the Order which reads as follows:-

7 2 "1. The Respondent will pay to the Petitioner the sum of £10,000 within two months which sum includes the Petitioner's costs.

8 "2. The Respondent will pay to the Petitioner alimony at the rate of £100 per week from the 5th October 1979 with annual Increases in accordance with the Consumer Price Index, the first base period to date from the 21st day of August 1979 and increased payments to be made from the first Friday in October 1980.

9 3. Whereas the Petitioner is not residing in the matrimonial home this Order shall not constitute a waiver by her to the furniture in the said home which was purchased by her and for which she has receipts."

10 It will be observed that the only Order made by the Court was an Order for judicial separation. The Court made no Order that the Respondent would pay the sum of £10,000 or the agreed alimony - it merely recorded the parties agreement on these points, receiving the consent but not making it a rule of Court either under its general jurisdiction to do so or under the particular jurisdiction given by section 8 of the Family Law (Maintenance of Spouses and Children) Act 1976. So, if the Respondent failed to pay the lump sum of £10,000 or failed to pay any of the weekly sums provided in the agreement (as in fact has happened) the Petitioner's remedy, it seems to me, is to sue on the agreement and she cannot rely on the Order and claim its enforcement by, for example, committal proceedings.

11 When considering a husband's right to seek a reduction in a periodic payment he is making to his wife it Is relevant to bear in mind the circumstances which have given rise to his obligation to make them. An obligation could arise in one of six different ways:-

12 1. The wife could have applied under the Family Law (Maintenance of Spouses and Children) Act 1976for a Maintenance Order. If such an Order had teen made then the husband has a statutory right to apply to vary it (section 6). In this case, however, the wife has made no application under the 1976 Act and no "Maintenance Order" under it has been made. It is therefore not quite accurate to refer, as the Respondent has referred in his Notice of Motion of the 21st May 1982, to the Order of the 4th October 1979 as a "Maintenance Order".

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