K (L) v (K) (M)
| Jurisdiction | Ireland |
| Judgment Date | 13 March 2007 |
| Date | 13 March 2007 |
| Docket Number | RECORD NO. 87/05 |
| Court | Circuit Court |
THE CIRCUIT FAMILY COURT
RECORD NO. 87/05
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989
AND IN THE MATTER OF THE FAMILY LAW ACT, 1995
AND IN THE MATTER OF THE FAMILY LAW ACT (DIVORCE) ACT, 1996
Family law - Divorce - Orders - Interest in family home - Access - Interview of child - Pension - Economic sacrifice - Family law Act 1995 - Family Law (Divorce) Act 1996
Facts: The applicant sought a divorce in family law proceedings where the applicant had contributed largely to the purchase of the family home. The respondent resided abroad and had no property and had limited income arising from a field of narrow specialisation and a career of temporary contracts. The applicant had sacrificed a career as a solicitor to raise their child. The child had had little contact with the respondent and expressed no desire to re-establish contact with her father.
Held by Judge McMahon in granting a decree of Divorce, various orders, a declaration that the respondent was entitled to 7% of family home. The respondent’s interest in the family home was to be transferred to the applicant to support their daughter. Pension adjustment orders would be made.
Reporter: E.F.
JUDGMENT of His Honour Judge Bryan McMahon delivered on the 13th March, 2007.
The respondent husband came to Dublin from Russia in October, 1991, as a visiting scientist on a temporary contract for one year to a third level institution in Dublin. He took up lodgings with the applicant wife who was a teacher who lived alone on the south side of the city. Shortly after the respondent moved into the applicant's house as a lodger, he began to make romantic advances to the applicant. The applicant resisted these overtures and indicated that it was wholly inappropriate that she would entertain such advances as long as the respondent was a lodger. The respondent moved out in April 1992, and then embarked on a formal courtship of the applicant. The romance blossomed in the summer of 1992 and the applicant became
pregnant in August of that year. The parties agreed to get married and the respondent moved back into the house in November, 1992 and the parties were married in December of that year.
A baby was born in 1993 and the parties were very happy at that time. The baby was called L. The respondent became an Irish citizen in 1994.
In 1993, the applicant wife was 42 years of age and the respondent husband was 28. At the time of the hearing, their ages are 56 and 42 respectively.
In 1993, the respondent's temporary contract came to an end and because his field of interest was narrow and specialised, he could find no comparable opportunities suitable to his specialisation within the State. He did, however, secure a similar position in Spain and he took up residence there between the years of 1993 and 1996. During this period the applicant wife visited him a couple of times with the baby. While the respondent was abroad, the applicant continued to look for a suitable post for her husband in Ireland. In 1996, she saw an advertisement for an appropriate post and sent it to her husband who applied and was appointed to the position in Dublin at another third level institute. From 1996 the respondent had his temporary contract at this institution renewed from year to year until it finally ran out in August of 2000. During this period the respondent resumed living with his wife in the family home save for periods of three or four months in the summers of 1997 and 1998 when the respondent returned to work in Spain. He also took time during these summers to visit his parents who were still living in Russia and who to some extent were financially dependent on him. In the summer of 2000, again because no appropriate and suitable employment was available, he moved to Dresden first and then to Spain and finally again back to Dresden in Germany where he continues to live at the time of this hearing. From this narrative it can be seen that the respondent husband has not
lived in the family home since in or around June 2000 and in total since the parties married in 1992, the parties only lived together in the one home for approximately a total of four and a half years. The parties have been "disconnected" ( see O'Neill J., inMK v. JK (otherwise S.K.) [2003] 1 IR 326,at 353) since the summer of 2001.
The respondent husband has no property other than what he claims to be an interest in the family home. Because of his precarious employment situation (for many years as a temporary and junior employee) he has not been able to accumulate any assets or wealth due partly to being forced to rent properties while living abroad and partly, because of financial commitments towards his ageing parents in Russia. The applicant wife purchased her first apartment in 1985 which was financed from her own resources and by an inheritance. In character, the applicant wife is a shrewd formidable woman with commendable drive. She sold the apartment in 1991 and traded up and repeated the exercise again, after she met the respondent husband, when she purchased the present family home in or around 1997. The purchase of the present family home was financed wholly by proceeds realised from the previous sale of the property belonging solely to the applicant wife (subject to what is indicated hereafter). Although the applicant wife financed all of these properties from her own resources, when she was purchasing the present family home in 1997, she registered the title in the joint names of the parties and the respondent husband jointly signed the mortgage documentation in respect of same. The property was estimated to be worth approximately Eur800,000.00 at the date of hearing, but because of the present uncertainty with regard to the property market, it is difficult to be confident that the estimated value would be reached in present market conditions if the property was
put up for sale at this time. The mortgage on the property at present amounts to 85,000 euro. For reasons which will become apparent later I need not be more specific in relation to the valuation at this juncture.
The applicant wife has two other properties on which her name appears as legal or part legal owner. These properties are situated in the west of Ireland where the applicant wife was born and are properties which were willed to her by her late parents. One of these properties is a site which because of the difficulty in obtaining planning permission is valued now at a mere Eur10,000. The house in which her parents lived is now occupied by the applicant's elder brother who is a bachelor. He has lived in this property all his life having looked after his parents while they were alive. He is now a man in his sixties and resides there alone. The property comprises of a detached single story cottage dating from the 1930's or 1940's on a self contained site of approximately one third of a hectare. The valuation of this property is agreed as being somewhere in the region of Eur285,000.00.
The legal team for the respondent husband made some criticism that in the first affidavit of discovery the applicant wife did not disclose these two properties in Mayo. In response and in evidence the applicant wife indicated that she had never considered that these properties were hers morally, although she acknowledged her name appears on the title. In particular in relation to the bungalow she said her older brother had lived there all his life and had looked after her parents and she considers that it would be totally immoral of her to make any claim on the property at this stage.
Again for reasons that will become apparent I am prepared to accept these valuations without adjustment.
As already mentioned at the time of the hearing the applicant wife is 56 years of age and has worked all her life. She qualified as a teacher and...
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