Halligan v Halligan

• Jurisdiction: Ireland
• Judgment Date: 18 February 1895
• Date: 18 February 1895
• Court: Court of Appeal (Ireland)

Halligan

and

Halligan.

Matrimonial.

Appeal.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Practice — Alimony — Increase of — Faculties of husband — Support of children by wife.

If the husband is relieved from the obligation of supporting his children by reason of the custody of the children being given to the wife, his faculties are thereby increased, and the Court can increase the permanent alimony already given to the wife.

The following authorities were referred to: Cooke v. Cooke (1); Otway v. Otway (2); Saunders v. Saunders (3); Whieldon v. Whieldon (4); Cox v. Cox (5); Kempe v. Kempe (6); Mytton v. Mytton (7); Neil v. Neil (8); Louis v. Louis (9); Haigh v. Haigh (10); Milford v. Milford (11); In re Suffield and Watts (12); In re St. Nazaire Company (13); Thomasset v. Thomasset (14); Pritchard on Divorce (2nd ed.), p. 14; Simpson on Infants, p. 171; also statute 49 & 50 Vict. c. 27.

Petition.

This was an application by way of petition for an increase of alimony by the petitioner in the suit on the ground of the increase of the husband's faculties, the custody of the children having been given to the wife by an order under the Guardianship of Infants' Act, 1886. The facts of the case and the arguments of counsel appear from the President's judgment.

O'Shaughnessy, Q.C., and D. Kehoe, in support of the application.

Gordon, Q.C., and Herbert Wilson, for the respondent.

The President:—

There are some elements of novelty in this case. The action was one for divorce a mensa et thoro by the wife, on the grounds of the cruelty and adultery of her husband. I may say of the case what Sir John Nicholl said, in one of the authorities which have been referred to:—“In this case the sentence already pronounced has decreed separation a mensa et thoro, at the wife's prayer, on account of the husband's cruelty and adultery; and certainly it is one of the grossest cases of misconduct that ever came under the notice of the Court”; and the cases show (1) that, in estimating permanent alimony, the conduct of the parties is one of the matters that may be taken into account. The Court having pronounced the usual decree, an application was made by the wife for permanent alimony in June last; and the Court fixed, upon the basis of an income of about £700, permanent alimony at the rate of £200 a year. It appeared that there were seven children. The moral obligation of supporting them rested upon the husband, and the Court took this into consideration. Some of them were living with the wife, perhaps by her voluntary act, and some were at school. This was a final order of the Court, and it was affirmed by the Court of Appeal.

Unquestionably, as was contended by counsel for the respondent, the law of the Court is (and there are some more recent cases on the subject than those which Mr. Gordon has cited) that a final order, once passed, cannot be re-heard. But there are exceptions (2) to the rule; and the General Orders of the Court, which have the same force as an Act of Parliament, expressly provide that “A wife may at any time after alimony has been allotted to her, whether alimony pending suit or permanent alimony, file her petition for an increase of the alimony allotted, by reason of the increased faculties of the husband” (3). Therefore the Court is not embarrassed by the consideration that the order was, in a sense, final. The question really is whether there are increased...