O'D v O'D
| Jurisdiction | Ireland |
| Judge | Keane J. |
| Judgment Date | 18 December 1997 |
| Neutral Citation | [1997] IESC 10 |
| Docket Number | 200/96 |
| Court | Supreme Court |
| Date | 18 December 1997 |
[1997] IESC 10
THE SUPREME COURT
Keane J.,
Lynch J.,
Barron J.
BETWEEN:
and
Citations:
MARRIED WOMENS STATUS ACT 1957 S12
FAMILY HOME PROTECTION ACT 1976 S4
N (C) V N (R) 1995 1 FLR 14
F V F 1995 2 IR 354
K V K 1988 IR 161
FAMILY LAW (DIVORCE) ACT 1996 S20(3)
BANK OF IRELAND V PURCELL 1990 ILRM 106
D V D UNREP DOYLE 21.7.1977 1977/3/465
M (L) V DEVALLY 1997 2 ILRM 369
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(c)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(a)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S9(1)(a)
OLYMPIA PRODUCTIONS LTD V CAMERON MACINTOSH 1992 ILRM 204
LAC MINERALS LTD V CHEVRON MINERAL CORPORATION OF IRELAND & IVERNIA WEST PLC UNREP KEANE 6.8.1993 1993/12/3862
O'NEILL V RYAN 1993 ILRM 557
MATRIMONIAL CAUSES ACT 1870 S13
SUCCESSION ACT 1965
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S40
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16
COURTNEY V COURTNEY 1923 2 IR 31
CLARKE V CLARKE 10 PD 188
HUNT V HUNT 4 DE G F & J 221
SULLIVAN V SULLIVAN 2 ADDAMS 299
MORTIMER V MORTIMER 2 HAGG CONSIST REP 310
MACMAHON V MACMAHON; PURSER V PURSER 1913 1 IR 428
FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976
FAMILY LAW (PROTECTION OF SPOUSES & CHILDREN) ACT 1981 S2
JUMP V JUMP 8 PD 159
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2
Synopsis
Family
Property adjustment; judicial separation; deed of separation; whether property adjustment order res judicata; whether decree of judicial separation can be granted where a deed of separation exists; whether estopped from granting decree of judicial separation; whether claim frivolous and vexatious; s.12 Married Women's Status Act, 1957; Judicial Separation and Family Law Reform Act, 1989 Held: No jurisdiction to grant a decree of judicial separation where deed of separation exists (Supreme Court: Keane J., Lynch J., Barron J.18/12/1997)- [1998] 2 IR 225
O'D. v. O'D.
JUDGMENT delivered the 18th day of December 1997by Keane J. [Nem Diss]
This is a Consultative Case Stated by Circuit Court Judge McGuiness (as she then was) which raises a net but important point of law.
The relevant facts are not in dispute and can be shortly summarised. The applicant (hereafter "the husband") and the respondent (hereafter "the wife") were married in 1961 and have two children, both of whom have reached their majority. The family home, which is in a Dublin suburb, is in the sole name of the wife. The husband is retired and in receipt of a pension and the wife is a telephonist. The wife continues to reside in the family home.
Unhappy differences arose between the husband and the wife and it is agreed that these were due, in the main, to the fact that the husband was suffering from alcoholism. As a result of his illness, the husband lost his job and incurred a number of debts. In 1969, after he had spent some time in hospital and on the advice of a psychiatrist, the husband decided that the family home should be transferred into the sole name of the wife in trust in order to give him time to pay off hiscreditors.
On the 16th January 1979 the husband and the wife entered into a separation deed (hereafter "the separation agreement"). It will be necessary to refer to some of the provisions of the separation agreement in more detail at a later stage: for the moment, it is sufficient to note that, without prejudice to the proprietary interest in the family home, the husband and the wife acknowledged that, up to the 26th April 1969, when the family home was transferred into the wife's sole name, the husband paid the mortgage repayments but thereafter all the mortgage repayments were paid by the wife.
In 1986, the applicant issued proceedings under s.12 of the Married Women's Status Act 1957 claiming a beneficial interest in the family home. Theapplication having come before the High Court by way of appeal, the wife was declared to be the sole beneficial owner of the family home.
After that application had been determined, the wife, who is not being maintained in any way by the husband, encountered financial difficulties. She tried to raise a mortgage with a building society, using the family home as security, but the husband refused the consent which was required under the Family Home Protection Act 1976. The wife, accordingly, instituted proceedings under s.4 of that Act for an order dispensing with his consent, which was granted by the Circuit Court on the 22nd February 1988. The wife claims that she has incurred substantial legal expenses over the years due to the litigation she has been involved in relating to the family home. She also claims that this litigation has been brought about by the attitude of thehusband.
In the present proceedings, which were instituted in the Circuit Court, the husband claimed inter alia:
a "(1) An order pursuant to the provisions ofS.2(l)(d), 2(l)(e) or 2(l)(f) of the Judicial Separation and Family Law Reform Act 1989[hereafter "the 1989 Act"Jfor a decree of judicialseparation:
b (2)(a) An order pursuant to the provisions ofs.15 of (the 1989 Act) providing for such transfer of such portion of the family home as to this honourable court shall seem proper:
(b) An order pursuant to s.14 of the (1989 Act) awarding the (husband) a lump sum as to this honourable court shall seem fit andmeet;
(c) In the alternative, an order, if necessary pursuant to the provisions of s.16(b) of the (1989 Act) for the sale of the family home subject to such conditions as to this honourable court shall seemproper;
(d) An order pursuant to the provisions of s.17 of the (1989 Act) extinguishing the share of (the wife) in the estate of (the husband) as a legal right or on intestacy under the Succession Act 1965or otherwise;
(e) An order, if necessary, pursuant to the provisions of s.18 of the (1989 Act) providing for the sale of such property as tothishonourable court may seem just and equitable to give effect to the orders pursuant to s. 14 of the (1989 Act)....."
The wife, having entered an appearance to the proceedings, brought a preliminary motion seeking an order that the husband's application for judicial separation should be dismissed, on the grounds
(a) that the husband is estopped from bringing the proceedings or, alternatively, that they are res judicata;
(b) that the proceedings are vexatious and frivolous;
(c) that the Circuit Court cannot grant a decree of judicial separation in circumstances in which the husband and the wife are already relieved of the duty to cohabit with each other and are no longer obliged to live together by reason of the separationagreement.
The motion having come on for hearing before the learned Circuit Court judge, she delivered a written judgment on the 24th October 1995. She concluded that the proceedings were not frivolous and vexatious. In relation to the other grounds, she pointed out that she had considered the same issue in an earliercase of N(C)-v-N(R) (1995) 1FL14, in which she had held that the existence of a separation agreement did not of itself bar a subsequent application for judicial separation under the 1989 Act. However, in view of the importance of the issues, she agreed, at the request of the solicitor for the wife, to state this consultative case for the opinion of this court.
The questions posed in the Case Stated are as follows:
2 "(1) Whether I was correct in holding that the (husband's) case for a property adjustment order was not resjudicata since such orders under s.15 of (the 1989 Act) are based on other and wider considerations than an order pursuant to s. 12 of the Married Women's Status Act 1957.
(2) Whether I was correct in holding that I had jurisdiction to grant a decree of judicial separation where a deed of separation existed which relieved each of the duty to cohabit with the other and where the parties have lived apart since the conclusion of suchagreement.
(3) Whether I was correct in holding that there was no estoppel by reason of the said (separation agreement) to prevent this court granting a decree of judicial separation pursuant to S.2 of (the 1989Act).
(4) Whether I was correct in holding that the (husband's) proceedings are not vexatious and frivolous."
On behalf of the wife, Mr. Allen Shatter, solicitor, submitted that, since the effect of Clause 1 of the separation agreement was to relieve the parties of the matrimonial duty to cohabit, it followed that it was not open to the husband to issue proceedings seeking a decree of judicial separation and consequent ancillary relief. He cited dicta by Blayney J. and Denham J.in F.-v- F. 1995)2IR354 to the effect that the court could not entertain proceedings for a form of relief (i.e. a decree of judicial separation), not required by the moving party in order to enable him or her to obtain ancillary relief to which he or she would not otherwise be entitled. He also relied on dicta by McKenzie J. in K.-v-K. (1988) IR161to the same effect, which, he said, had been approved by this court inF.-v-F.
Mr. Shatter further submitted that the underlying policy of ss5 and 6 of the 1989 Act was to encourage estranged spouses to resolve controversies between them without recourse to litigation. He said that, were the court to hold that a couple who had entered into a separation agreement and resolved all the outstanding financial disputes between them could have the agreement set aside in judicial separation proceedings, the public policy underlying the 1989 Act would be seriously undermined. He submitted that ...
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