L (J) v L (J)
1999 WJSC-CC 4421
THE CIRCUIT FAMILY COURT
COUNTY OF THE CITY OF DUBLIN
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(f)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(a)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17
Words & Phrases:
JUDGE CATHERINE McGUINNESS THE 15TH DAY OF MARCH, 1996.
The proceedings before the Court are an application by the husband for a decree of judicial separation together with a number of ancillary orders pursuant to the Judicial Separation and Family Law Reform Act, 1989together with a Defence and Counterclaim filed by the wife.
The parties were married on 6 August, 1968 and there are three children of the marriage, namely, A born 15 May, 1969, who is a graphic artist, now resident in New York, J born the 6 February, 1973, who has commenced a small business and is also drawing social welfare payments and G born 26 August, 1981, who is a dependent child still in full time education. Both J and G reside in the family home with the wife.
Having resided in a number of premises after the marriage, the parties purchased a family home at … which was held in their joint names subject to a mortgage. In 1981 this premises was sold and the present family home was purchased at …, …, Ratoath, in the County of Dublin. This premises is also held in the joint names of the parties subject to a mortgage held by the Irish Nationwide Building Society. Documentary evidence from the Building Society states that this mortgage was originally for a sum of £28,000 with repayments of £416 per month. As far as I can ascertain from the evidence before me the repayments are now in or about £320 per month. From time to time arrears have accumulated on the mortgage and the sum outstanding as at 18 October, 1995 was £24,800.75. It appears that the mortgage repayments have been made by the husband throughout and the wife stated in evidence before me that she was unwilling to contribute to the mortgage unless the full title of the house was transferred to her as is sought by her in her counterclaim.
It appears that there had been bad relations between the parties for a number of years. Both parties made allegations of misbehaviour, verbal abuse and physical violence. On 10 March, 1993 the husband left the family home and has not resided there since that date. It is clear that he left with the agreement of the wife, if not at her request and I am not prepared to hold that he is in desertion. The husband now has a relationship with … . He claims that this has arisen since he left the family home and that he lives with his mother at … Ballyfermot. The wife claims that the relationship with … started before the husband left the family home, that he admitted this and that he is now living with … . The husband denies this.
For the purposes of the granting of a decree of judicial separation, I do not find it necessary to make a finding on this matter. It is clear that the parties have not had a normal marriage relationship for more than a year prior to the issue of the application and I will grant a decree of judicial separation pursuant to Section 2(1)(f) of the 1989 Act, together with a cross decree on the counterclaim pursuant to the same sub-section.
At this point I should note that both parties have suffered a degree of ill health. Dr.… T… , the wife's general practitioner, gave evidence that the wife had been diagnosed as suffering from multiple sclerosis in the mid-1970's. Fortunately this seems to be what the doctor described as a a "low grade" version of the illness, which has not caused any paralysis but can cause fatigue and headaches. On account of her illness, the wife has been in receipt of an invalidity pension from the Department of Social Welfare for a considerable number of years. In addition to the multiple sclerosis, the wife has suffered from irritable bowel syndrome, pernicious anaemia and hypertension and has had both a hysterectomy and a lesion in her breast. She has also suffered from mental stress due to the marital situation. Despite this very serious history of ill health, the wife struck me in the witness box as an energetic woman, a good manager and a hard worker. Throughout the marriage, despite her ill health, she has at most times had part-time employment, mainly in the sewing business at which she is clearly highly skilled.
For his part, the husband suffered from quite severe clinical depression requiring psychiatric treatment over a period some two to three years ago. In his evidence he said that he had now fully recovered from this illness. He has worked for a long period in the business of providing electronic security gates, locks and other similar equipment and at present has a business known as… .
The son J… , with his mother as a co-director and joint shareholder, has recently (in January, 1995) set up a business called … in a somewhat similar field. It is clear from J… own evidence that this is a very small business, really only getting off the ground and that he also draws unemployment assistance to provide himself with some income. However, the husband is very fearful that his son and his wife are engaged in an enterprise designed to compete with and damage his business. While I cannot of course forecast what may happen in the future, it does not seem to me that much damage is being done at present. However, the situation has caused considerable friction between father and son, heightened by the fact that the son served his apprenticeship in his father's business and subsequently left owing to the father's inability to pay him a reasonable wage. There have also been pointless but bitter disputes between father and son in regard to access to and use of the garage at the family home for the purpose of storing equipment.
The dependent child G… has been residing with his mother and had kept in contact with his father. He is now over 14 years of age and both his own wishes and his educational and other commitments will play a part in regulating the times at which he will have access to his father. I therefore propose to make an order granting custody of G… to his mother, with access to be agreed between the parties, bearing in mind G… wishes and needs. I would, however, stress both that the father remains a joint guardian of G… with all that that implies and that both parties should always keep in mind the importance of a good and continuing relationship with his father for a boy of G… age.
The main issues in contention between the parties are those of property and maintenance. Before going on to deal with these...
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