A.F. v S.F.

JurisdictionIreland
JudgeMr. Justice Henry Abbott
Judgment Date04 May 2007
Neutral Citation[2007] IEHC 196
CourtHigh Court
Docket Number[2005 No. 73 M]
Date04 May 2007

[2007] IEHC 196

THE HIGH COURT

FAMILY LAW

[No. 73 M/2005]
F (A) v F (S)
IN THE MATTER OF THE FAMILY LAW ACT, 1981 AND
IN THE MATTER OF THE FAMILY LAW ACT, 1995 AND
IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT, 1996 AND

BETWEEN

A.F.
APPLICANT

AND

S.F.
RESPONDENT
1

JUDGMENT of Mr. Justice Henry Abbott delivered on 4th day of May, 2007 .

2

This is an application by the respondent for an order dismissing the within proceedings as showing no cause of action, being vexatious and an abuse of this Honourable Court and being a duplication of proceedings under the High Court Record 2004/534 P. The application has been brought by notice of motion returnable to the 13th day of October, 2006, in which other relief relating to the action is claimed and on 13th October, 2006, this court directed that the issue raised by the respondent, that the within proceedings are vexatious and show no cause of action, to be tried as a preliminary issue. This preliminary issue was heard on 24th April, 2007.

Background Facts
3

The parties herein commenced a relationship together in or about 1977. The applicant claims that the respondent proposed marriage to her in or about October 1977, and presented the applicant with an engagement ring in December, 1977, and that the applicant accepted the respondent's proposal of marriage. These three allegations are vigorously denied by the respondent. It is common case that the parties began to co-habit with each other in or about February, 1978, until October, 2004, when the relationship broke down between the applicant and the respondent. The respondent claims that there were breaks in the co-habitation. There are three children born of the relationship between the applicant and the respondent in 1978, 1980 and 1983. At all material times the parties were married to third parties and each of them have children by their marriages, the applicant having one child born in 1971 and the respondent having two children born in 1972 and 1973. The applicant alleges that the parties during the course of their relationship, purchased a number of properties in their joint names. They are also directors/shareholders in various limited liability companies allegedly set up by them. Again these allegations in relation to property and corporate arrangements are vigorously denied by the respondent.

4

The relationship between the parties herein broke down in or about October 2004. The applicant claims that she was anxious to regularise all outstanding matters pertaining to the breakdown of the relationship with the respondent. The applicant issued a special summons on 15th September, 2005, seeking the following relief

5

1. An order pursuant to s. 36 the Family Law Act, 1995, and s. 44 of the Family Law (Divorce) Act, 1996 determining the extent of the applicant's and the respondent's respective interest in the title to or possession of the said properties as set out in the schedule to be filed with the special summons.

6

2. An order pursuant to s. 5 of the Family Law Act, 1981

7

3. An order pursuant to s. 5(a) of the Family Law (Maintenance of Spouses and Children) Act, 1976, seeking a periodical payment order for the benefit of the dependent child of the relationship.

Statutory Background
8

In s. 2 of the Family Law Act, 1981, it is provided as follows:-

9

2 "(1). An agreement between two persons to marry one another whether entered into before or after the passing of this Act, shall not under the law of the State have effect as a contract and no action shall be brought in the State for the breach of such an agreement, whatever the law applicable to the agreement

10

3 (2). Subsection (1) shall not have effect in relation to any action that has been commenced before the passing of this Act."

11

Section 5 of the Family Law Act, 1981, deals with the property of engaged couples as follows:-

12

2 "(1) Where an agreement to marry is terminated, the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall apply in relation to any property in which either or both the parties to the agreement had a beneficial interest while the agreement was in force as they apply in relation to a property in which either or both spouses has or have a beneficial interest.

13

(2) Where an agreement to marry is terminated, s. 12 of the Married Women's Status Act, 1957 (which relates to the determination of questions between husbands and wives as to property) shall apply, as if the parties to the agreement were married, to any dispute between them or claim by one of them, in relation to property in which either or both had a beneficial interest while the agreement was in force as they apply in relation to property in which either or both spouses has or have a beneficial interest."

14

Section 44 of the Family Law (Divorce) Act, 1996 provides as follows:-

"Where an agreement to marry is terminated, s. 36 of the Act of 1995 shall apply, as if the parties to the agreement were married to each other, to any dispute between them or claim by one of them, in relation to property in which either or both of them had a beneficial interest while the agreement was in force".

15

The relevant part of s. 36 of the 1995 Act provides as follows

16

2 "(1) Either spouse may apply to the court in a summary manner to determine any question arising between them as to the title or possession of any property.

17

(2) An application to it under subs. (1), the court may-

18

(a) make such order with respect to the property in dispute (including an order that it be sold or partitioned) and as to the costs consequent upon the application, and

19

(b) Direct such inquiries, and give such other directions, in relation to the application.

20

as the court considers proper."

The Constitutional Background
21

The relevant provisions of the Constitution (which relate to the family) is Article 41.

22

2 "(1)° the State recognises the Family as the...

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