O'L (A) v O'L (B)

 
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1999 WJSC-CC 6540

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Record No.73/94
Record No.187/94
O'L (A) v. O'L (B)
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

BETWEEN:

A O'L
APPLICANT:
-and-
B O'L
RESPONDENT.

and

BETWEEN:

B O'L
APPLICANT:
-and-
A O'L
RESPONDENT.

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 2(1)(f)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

D (J) V D (P) UNREP LYNCH 9.8.94 1995/2/356

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17

SUCCESSION ACT 1965

Words & Phrases:

CEF

Subject Headings:

*

1

JUDGEMENT of JUDGE CATHERINE McGUINNESS delivered the 23 day of November, 1995

2

The proceedings before the Court are an application and a cross-application for judicial separation and for various ancillary orders.

3

The parties were married on 7 February 1987. The husband is a branch manager in the … Building Society. The wife was a civil servant in the Department of Agriculture prior to the marriage. She continued to work in that employment until the birth of the first child of the marriage and then accepted a redundancy package consisting of a lump sum and pension.

4

There is one living child of the marriage, … born on the 21 November 1987, now 8 years of age. The couple had two other children, both of whom tragically died in infancy - … born 26 November 1989 who died in a cot death and born in 1991 who lived only for a day or two due to a severe hernia of his diaphragm. Both parties were extremely affected by this double tragedy and the trauma may well have affected their rather vulnerable marital relationship.

5

At the time of the marriage, both parties owned houses. The husband owned a house at … Trees Road, Mount Merrion, Co. Dublin which subsequently became the matrimonial home. The wife owned a house at… . This house was sold and there is a dispute between the parties, both as to the amount realised by the sale and the use of the proceeds of sale. It appears on the evidence that a sum of in or about £1,000 was the net proceeds of sale. The wife in evidence states that this sum was invested in improvements to the family home. The husband says that it was invested in investment bonds through the Eagle Star Insurance Co.

6

The house at Trees Road was purchased by the husband in 1984 for a sum of £57,500 and was registered in his sole name. He obtained a mortgage from his employers for £40,000 and the remainder of the purchase price came from the proceeds of sale of a previous house which he owned in Cabinteely. At all times the mortgage repayments were made through the husband's salary. In 1988 the title of the family home was put into the joint names of the parties. An additional mortgage of £15,000 was obtained from the I.P.B.S. There is disagreement between the parties with regard to the expenditure of this money; the husband states that all of it went into the extension and re-decoration of the family home; the wife declares that some of it was used for other purposes by the husband. It appears that at present there is a sum of in or about £33,400 outstanding on the mortgage. The payments made by the husband amount to some £325 per month which includes both the actual mortgage repayment and the insurance of the house and contents.

7

I heard the evidence of two valuers who disagree considerably about the value of the house. Messrs. Gunne place the value at £105 while Messrs. McNally Handy place it at £140,000. While the valuation of £140,000 may be somewhat high, I was impressed by the evidence of Mr. Roger Handy of Messrs. McNally Handy and taking that, together with common knowledge as to the value of houses in the Mount Merrion area, I would think that a sum of considerably in excess of £105,000 should be obtainable.

8

The husband also owns an apartment at … , Monkstown, Co. Dublin which was purchased in the name of a company called … . This property was bought in 1984, basically for tax reasons, and there is a mortgage of £32,000 outstanding on it. This mortgage had recently to be increased in order to enable the husband to pay a settlement which arose out of a civil action for assault on a Ms… , a friend of the wife's. At present this apartment is rented out for a sum of £350 per month which apparently just about covers the outgoings on it. It was valued at in or about £50,000, a valuation which was agreed between the parties. However, it also appeared in evidence that an offer of £54,000 had been received for it, but that the husband was unable to close this sale due to the fact that the wife would not agree to his doing so. The husband gave evidence that he had been advised by his tax accountant that if the property was sold a tax liability of some £10,000 would arise. While he was cross-examined to some extent in this regard, there was no concrete evidence to show that this estimate was a wrong one and it is clear that under the circumstances of the purchase of the apartment a considerable tax liability will arise on its sale. The best estimate which I can make on the evidence of the likely net proceeds of sale of this apartment is in or about £10,000.

9

The husband has a gross salary of £36,000 which works out at a net payment per month of £1,300. At Christmas he receives a bonus of in or about £900 net and from time to time receives other bonuses through the company. When the … t Building Society became a p.l.c. the husband received some shares in the company, as did all...

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