O'D (P) v O'D (A)

JurisdictionIreland
JudgeCatherine McGuinness
Judgment Date24 October 1995
Neutral Citation1999 WJSC-CC 6334
Docket NumberRecord No. 535/94
CourtCircuit Court
Date24 October 1995
O'D (P) v. O'D (A)
DUBLIN CIRCUIT
COUNTY OF THE CITY OF DUBLIN
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT,1989

BETWEEN:

P O'D
APPLICANT:
-and-
A O'D
RESPONDENT.

1999 WJSC-CC 6334

Record No. 535/94

THE CIRCUIT FAMILY COURT

Words & Phrases:

CEF

Subject Headings:

*

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

SUCCESSION ACT 1965

FAMILY HOME PROTECTION ACT 1976 S4

MARRIED WOMENS STATUS ACT 1957 S12

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

N (C) V N (R) 1995 1 FLJ 14

MOORE V MOORE 1887 12 PD 193

M (E) V M (W) 1994 3 FLJ 93

BERNARD V JOSEPHS 1982 1 CH 391

D (H) V D (P) UNREP SUPREME 8.5.78 1978/4/-

D V D UNREP DOYLE 21 7.77 1977/3/465

OLYMPIA PRODUCTIONS LTD V CAMERON MACKINTOSH 1992 ILRM 204

O'NEILL V RYAN 1993 ILRM 557

LAC MINERALS LTD V CHEVRON MINERAL CORPORATION OF IRELAND & IVERNIA WEST PLC UNREP KEANE 6.8.93 1993/12/3862

SUN V OSSEOUS LTD 1992 1 IR 425

K (D) V K (A) 1994 1 IR 166

O'MALLEY V IRISH NATIONWIDE BUILDING SOCIETY UNREP COSTELLO 21.1.94 1994/6/1669

COURTS OF JUSTICE ACT 1947 S16

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(a)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976

1

JUDGEMENT by Judge Catherine McGuinness delivered the 24th day of October, 1995.

Catherine McGuinness
2

In these proceedings the Applicant husband seeks a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act,1989together with ancillary Orders pursuant to that Act. The Orders sought by the husband largely concern the family home and include in particular a property transfer order pursuant to Section 1S of the Act. The proceedings were issued by the husband on 24th November, 1994. The wife entered an Appearance to the proceedings on 25 January, 1995. At the same time she brought a preliminary motion issued 27 January 1995 seeking that the husband's Application for Judicial Separation be dismissed. The Orders sought and the grounds on which they are sought are set out in the Notice of Motion a as follows:-

3

2 "1. An Order dismissing the proceedings brought herein on the grounds that the Applicant by reason of concluding a Deed of Separation with the Respondent is estopped from bringing these proceedings.

4

2. In the alternative, an Order dismissing the proceedings herein on the grounds that they are res judicata.

5

3. In the alternative, an Order dismissing these proceedings as vexatious and frivolous.

6

4. In the alternative, an Order dismissing these proceedings on the ground that the Circuit Court cannot grant a decree of judicial separation in circumstances in which the Applicant and the respondent are already relieved of the duty to cohabit with each other and are no longer obliged to live together by reason of the execution by the Applicant and Respondent of a Deed of Separation Prior to the issuing of these proceedings."

7

The motion is grounded on an Affidavit sworn on 25 January 1995 which in the main sets out the history of prior legal proceedings between the parties. The husband's replying Affidavit was sworn on 7 April 1995. Following a number of adjournments the Motion came on before me on 11 July 1995. There is no important area of dispute between the parties in regard to the history of legal proceedings between them and the evidence set out on Affidavit by the parties is quite sufficient to enable the court fully to consider and determine the issues. In addition to the opening of the Affidavits legal submissions were made by Mr. shatter, Solicitor for the wife and Mr. O'Riordan, Counsel for the husband.

8

The facts of the matter may be summarised as follows. The parties were married on 9 September 1961. They had two children born in 1962 and 1966, both of whom are now adults. The family home is situate at , Templeogue in the city of Dublin. The husband appears to have suffered from alcoholism from an early stage in the marriage which he says gave rise to loss of employment and indebtedness. In early 1969 he transferred the family home to the sole name of his wife. Unhappy differences arose between the parties and on 16 January 1979 the parties entered into a separation dead which is in the normal form and deals with such ancillary matters as custody of the children, maintenance, the family home, etc. The clause dealing with the family home reads as follows:-

"10. The husband and the wife hereby confirm that all rights contained in the Succession Act,1965and the Family Home Protection Act,1976continue to be enforceable by either party at all times and without prejudice to the proprietary interest in the family home the husband and wife hereby acknowledge that prior to 26 April, 1969 the husband paid the mortgage repayments on the present family home, Number , Templeogue, in the city of Dublin and that on 26th April, 1969 the said family home was transferred into the sole name of the wife by the husband and that all mortgage repayments due on the said family home since that date have been paid by the wife."

9

In 1986 the husband brought proceedings pursuant to Section 12 of the Married Women's Status Act,1957seeking a declaration of his beneficial interest in the family home. On 24 November 1986 the learned Judge O'Hanrahan of the Circuit Court made an Order declaring that the husband was entitled to one forty-fifth part of the beneficial interest in the family home. The husband appealed this Order to the High Court and the wife cross-appealed. The matter was heard by the learned Barron, J. on 7 July 1987. The court dismissed the husband's appeal and allowed the wife' appeal holding that the she had become the sole beneficial owner of the family home in 1969 and remained so.

10

Subsequent to these legal proceedings, the wife found herself in financial difficulties (she was not being maintained by the husband in any way) and sought to raise a mortgage from the Irish Life Building Society using the family home as security. The husband refused the necessary Family Home Protection Act consent and the wife was forced to institute proceedings under Section 4 of the Family Home Protection Act,1976for an Order dispensing with his constant. This Order was granted by the Circuit Court (His Honour Judge O'Malley) on 22 February 1988.

11

The husband is now retired and living on a pension. The wife is employed as a senior telephonist. MR. SHATTER accuses the husband of intentionally persecuting his wife with a view to leaving her, as she says in her Affidavit, "homeless and destitute". He suggests that this court should make what is commonly called an "Isaac Wunder Order" directing that Mr. O'D should not bring any further proceedings against his wife without leave of the court.

12

In regard to the judicial separation proceedings, Mr. Shatter correctly states that in order for the court to make any of the ancillary Orders sought by Mr. O'D in the application, the court must first pronounce a decrease of judicial separation. He submits that the primary relief sought therefore is a decrease ending the legal duty of the parties to cohabit. However, he points out that the duty of the parties to cohabit was in fact already ended by agreement in the separation deed of January, 1979 and that the parties have not in fact cohabited since that date. He submits that given these facts it is not open to the court to grant the relief of separation and that therefore no ancillary Orders may be made.

13

Mr. Shatter also referred to the public policy aspect of the matter, suggesting that it was open to the court to look at the financial damage that the proceedings would causes. Given that the husband had not made any contribution to family home since 1969, had not supported the family and had not discharged the costs ordered against him by the High Court in 1987, he was unlikely to have any prima facie case under Sections 15 and 20 of the 1989 Act and the court should take this into account.

14

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