K v K

• Jurisdiction: Ireland
• Judge: MR JUSTICE MACKENZIE
• Judgment Date: 12 February 1988
• Neutral Citation: 1988 WJSC-HC 1391
• Court: High Court
• Docket Number: No 4m/1986,[1986 No. 4M]
• Date: 12 February 1988

1988 WJSC-HC 1391

THE HIGH COURT

No 4m/1986

K v. K

(MATRIMONIAL)

K.

.V.

K.

Citations:

SUCCESSION ACT 1965 S120(2)

COURTNEY V COURTNEY 1923 2 IR 31

LEWIS V LEWIS 1940 SR 42

ROSS V ROSS 1908 2 IR 339

CLARKE V CLARKE 1824 2 KB

H V H 1978 IR 138

C(O) V C(T) UNREP MCMAHON 09.12.81 1982/10/1986

Synopsis:

EVIDENCE

Estoppel

Husband and wife - Separation - Deed - Effect - Rights of succession not released - Husband's subsequent petition for divorce ~a mensa et thoro~ - Husband estopped from claiming relief - Section 120, sub-s.2, of the Act of 1965 states (inter alia) that a spouse against whom a deceased obtained a decree of divorce ~a mensa et thoro~ shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy - On 11/9/80 the petitioner and respondent, being husband and wife, executed a deed of separation recording their agreement to live separately thereafter - The deed provided for the sale of the family home, the application of the proceeds of that sale, and the custody of the children of the marriage of the parties - The deed did not contain any release of rights of succession under the Act of 1965 nor (apparently) did either party covenant therein not to sue the other - The petitioner, who wanted to deprive the respondent wife of her rights under the Act of 1965, filed a petition in 1986 seeking a decree of divorce ~a mensa et thoro~; the respondent opposed the petition - Held, in dismissing the petition, that, despite the absence of covenants against suing, the parties to the deed of 1980 executed that document on the basis that there would be no further litigation between them and that, accordingly, the petitioner was estopped from claiming the relief sought in the petition: ~Courtney v. Courtney~ [1923] 2 I.R. 31; 57 I.L.T.R. 42 applied and ~Lewis v. Lewis~ [1940] I.R. 42; 74 I.L.T.R. 170 considered - Succession Act, 1965, s.120 - (1986/4 M - MacKenzie J. - 12/2/88)

|K. v. K.|

HUSBAND & WIFE

Separation

Deed - Effect - Succession rights - Rights not released - Absence of covenants against suing - Husband's subsequent petition for decree of divorce ~a mensa et thoro~ - Intention to preclude wife's rights of succession - Husband estopped by separation deed from claiming decree of divorce - ~See~ Evidence, estoppel - (1986/4 M - MacKenzie J. - 12/2/88)

|K. v. K.|

1 JUDGEMENT OF MR JUSTICE MACKENZIEDELIVERED THE 12th DAY OF FEBRUARY 1988.

2 By a Deed of Separation made the 11th of September 1980 the parties having recited the unhappy differences that had arisen between them agreed to sell the family home and live separately and further -

"The husband and wife shall at all times hereafter live separately and apart from each other and free from his or her marital control (if any) and authority."

3 Provision was made for the sale of the family home and the division after certain deductions of the proceeds of sale and for the custody of the children.

4 Neither party in the deed renounced their rights under the Succession Act 1967.

5 From the evidence I concluded that the marriage at the time of the making of the separation deed had reached a disastrous stage. I am satisfied that at that time the wife was consorting with a Mr. C. and the husband in my opinion was a man to quote the wife ("who is never without his lady friends") and was a man active sexually with more than one partner.

6 He told me in evidence that since the year 1980 he had not had sexual intercourse with any person which I frankly disbelieved. Evidence was given by one of the children of the marriage of a situation which leads to no other conclusion than that he had formed an intimate relationship with a woman whom he described as a business associate. I am satisfied that adultery was committed with her.

7 Obviously the husband is indifferent to the fact that the wife now lives with somebody else, but what concerned him is that he needs to remedy what he omitted to do at the time of the deed of 1980. He wants to deprive the rights of his wife (if any in the circumstances)...