K (P) v K (J)
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 20 July 2010 |
| Neutral Citation | [2010] IEHC 416 |
| Court | High Court |
| Date | 20 July 2010 |
[2010] IEHC 416
THE HIGH COURT
BETWEEN
AND
JUDICIAL SEPARATION AND FAMILY REFORM ACT 1989 S3
JUDICIAL SEPARATION AND FAMILY REFORM ACT 1989 S2(I)
FAMILY LAW ACT 1995 S14
FAMILY LAW ACT 1995 S15
FAMILY LAW ACT 1995 S9
FAMILY LAW ACT 1995 S10(1)(A)
FAMILY LAW (DIVORCE ACT) 1996 S18(10)
MCA v MCA 2000 1 IR 457
WHITE v WHITE 2001 1 AC 596
T v T 2002 3 IR 334
G(R) v G (C) 2005 2 IR 418
FAMILY LAW ACT 1995 S16(2)
FAMILY LAW
Divorce
Proper provision - Maintenance - Means and assets of parties - Statutory test and considerations - Relevant weight to be attached to each factor - Hearsay evidence - McA v McA (Divorce) [2000] 1 IR 457; White v White [2001] 1 AC 596; DT v CT (Divorce: Ample resources) [2002] 3 I.R. 334 and RG v CG [2005] 2 IR 418 considered - Family Law (Divorce) Act 1996 (No. 33), s 16(2) - Decree of divorce granted; order for maintenance at €50 per week to commence on certification of husband's return to work (2010/14CAF - MacMenamin J - 20/7/2010) [2010] IEHC 416
K(P) v K(J)
JUDGMENT of Mr. Justice John MacMenamin dated the 20th day of July, 2010.
1. The applicant and the respondent were lawfully married to each other on 15 th day of March, 1976. There were three children of the marriage all of whom are now adults. The picture which emerged from these proceedings was an extremely sad one. The applicant was represented by a solicitor and counsel. The respondent, however, represented herself assisted by a "McKenzie friend" her son Jnr., who was appointed in the Circuit Court in 2008.
2. In 2003, Ms. J. K. initiated proceedings against P.K. For convenience Ms. K. will be referred to as "the wife" and Mr. K. as "the husband".
3. On the 15 th November, 2008, the Circuit Court made a number of orders in the wife's proceedings. These orders were for:
(1) A degree of judicial separation pursuant to s. 3 of the Judicial Separation and Family Reform Act 1989, as amended by the Family Law Act 1995 on the grounds of s. 2 (i) of the 1989 Act;
(2) An order pursuant to s. 14 of the Act of 1995 extinguishing the Succession Act rights that either party might have had in the others estate whether by way of legal right or on intestacy under the Succession Act 1965; and excluding any right of the parties to apply to Court for provision out of the estate of the other on death pursuant to s. 15 of the 1995 Act, as amended.
(3) An order receiving the agreement made between the parties on 1 st January, 2005 and making it a Rule of Court.
(4) A declaration that the applicant has no interest in the respondent's pension as set out at para. 10 of the Agreement with liberty to apply for formal pension adjustment orders, if required.
4. It is now necessary to deal in more detail with the consent entered into by the parties. As well as the decree of judicial separation the consent provided that the respondent was to pay to the applicant the sum of €200 per week for her own maintenance and the support of the youngest child of the marriage. This was to be apportioned as to €100 for maintenance for the dependant child and €100 for the wife.
5. Additionally, the consent provided that the husband was to transfer both his legal and beneficial interest in the tenancy of the family home; and to execute whatever forms were necessary to effect this surrender. This order was pursuant to s. 9 of the Act of 1995.
6. The consent order further provided that the husband should be excluded from the family home pursuant to s. 10 (1) (a) of the Act of 1995. The order also dispensed with the respondent's consent to any future sale and/or disposition in any share of the family home. It was provided that there be a mutual renunciation of the parties' rights under the Succession Act 1965. The wife waived any interest which she might have in the respondent's personal pension account with the Bank of Ireland. She agreed to transfer into the respondent's sole name, his protection or investment plan with the Bank of Ireland. She further waived any interest she might have had in the aforementioned protection or investment plan. The respondent husband was directed to pay the sum of €5,000 to the applicant. It was also agreed that the applicant and the respondent would retain responsibility for any debts and liabilities held in their sole names at the date of signature of the consent. It is not open to the Court to revise this consent order.
7. This appeal comes before the Court on foot of an order of his Honour Judge Nolan made on 24 th day of March, 2010. This order was on foot of proceedings which had been then initiated by the husband, P. K., against J. K., (Circuit Court Record No. 02040/2007).
8. There, the Circuit Court granted a decree of divorce in respect of the marriage contracted between the parties. The court also made the following ancillary orders:
(i) An order pursuant to s. 18 (10) of the Family Law Divorce Act 1996 that neither party on the death of the other should be entitled to apply for an order under that section for provision out of the other party's estate.
(ii) The court also ordered that the applicant husband pay to the respondent the sum of €25 per week in respect of maintenance, the first payment to take place on Friday, 2 nd April, 2010 and weekly thereafter. The real issue before the Court on this appeal is maintenance. There is no opposition to the order made for divorce.
9. It is only fair to say that the litigation between the parties has been extremely bitter. The husband engaged in misconduct during the course of the marriage. He appears to have engaged in a long term relationship with another woman. It has been suggested that he persuaded this woman to marry him and it was only late in the day that it was discovered that he, the husband, was already married.
10. It has been put to Mr. K. that his conduct towards his wife and young family was particularly reprehensible in light of the fact that he left the family home at a time of particular vulnerability and when the children were very young, one of them having been born only weeks before. I do not think this reflects well on Mr. K. The husband was lengthily cross-examined on this issue in this appeal. As I indicated, I did not consider that many of these past issues were immediately relevant to the question which this Court had to decide.
11. It was not in dispute that this Court should uphold the order of the Circuit Court insofar as concerned the grant of divorce. Accordingly, I will therefore uphold the order of the Circuit Court on this issue and grant an order dissolving the marriage between the parties in the terms provided for in the Circuit Court order.
12. The main issue necessary for this Court to determine was as to the means and assets of the parties and therefore the level of maintenance. Despite the apparent simplicity of this issue a very large number of affidavits were filed on behalf of the wife. These were eighteen in total. A lesser number, twelve, were filed on behalf of the husband. Almost every order made was appealed. I think the wife failed repeatedly to address herself to the real issue, that of maintenance. That issue, the only issue to be determined, is to be decided by reference to the means and assets of the parties.
13. The consideration of this case was made more difficult by a number of other extraneous factors. The first of these is as to the husband's ill health. His occupation is as a taxi driver. He is not at present working. A medical report has been furnished indicating that he will be attending a neurosurgeon for a further report in a number of weeks. Thus, any order which is to be made with regard to maintenance of the wife should take effect only when the husband has returned to work.
14. A further factor complicating these proceedings was the fact that the wife declined to testify or give evidence. Instead her son, the "McKenzie friend", testified, giving a narrative of a number of issues in response to questions which were put to him by his mother. Much of this evidence was hearsay. I make a similar comment in relation to much of the evidence of the parties' daughter who was also called by the mother. The testimony which these two children gave with regard to the history of the marriage must have been derived in a significant degree from what their mother told them. While the husband was cross-examined rigorously by the wife; the wife declined herself to give evidence.
15. I indicated in the course of the proceeding that this situation gave rise to questions as to whether fair procedures could arise. I also specifically indicated to the wife that the weight of the testimony which was adduced on her side could be significantly affected by the fact that much of it was hearsay. This is of particular importance in light of the fact that the husband specifically testified that the wife, as well as receiving deserted wife's benefit, was in receipt of other income from doing domestic work. The wife did not deny this under oath. Thus, in an issue of controversy in these areas the Court must proceed with considerable caution, particularly since the evidence which has been adduced comes from an indirect source on some issues.
16. The husband says that he is now living in a relationship with his new partner. He testified that he had no income other than from his job as a taxi driver. He had surgery a week and a half before this hearing. As the youngest child is now an adult and is no longer dependant it is clear that the wife is not entitled to further maintenance for her.
17. The actual evidence which I have before me indicates...
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