O'L (A) v O'L (B)
| Jurisdiction | Ireland |
| Judge | CATHERINE McGUINNESS |
| Judgment Date | 23 November 1995 |
| Neutral Citation | 1999 WJSC-CC 6540 |
| Docket Number | Record No.73/94 |
| Court | Circuit Court |
| Date | 23 November 1995 |
BETWEEN:
and
BETWEEN:
1999 WJSC-CC 6540
THE CIRCUIT FAMILY COURT
DUBLIN CIRCUIT
COUNTY OF THE CITY OF DUBLIN
Words & Phrases:
CEF
Subject Headings:
*
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
JUDGEMENT of JUDGE CATHERINE McGUINNESS delivered the 23 day of November, 1995
The proceedings before the Court are an application and a cross-application for judicial separation and for various ancillary orders.
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.
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.
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.
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.
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.
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.
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 the employees. These shares are relatively valuable but are not realisable at present. In his evidence, the husband appeared to be very apprehensive with regard to his job prospects in the company. However, he appears to have been a model employee who worked both hard and successfully for his employers and I very much hope that his apprehensions are not justified.
The wife also has an income which at present consists of £260 per month pension from the Department of Agriculture, £332.36 per month Deserted Wives' Benefit from the Department of Social Welfare, the children's allowance of £20 per month, and a sum of in or about £100 per month which she makes by keeping students in the family home. The husband pays a sum of £200 per month maintenance for the child Ronan making a total of £912.36 into the wife's hands. The wife provides a list of weekly outgoings, which in the main are not unduly extravagant. They add up to a sum of £287 per week or approximately £1,244 per month.
The present situation is that the husband left the family home on 1 June 1992. The parties agree that the marital situation, at least from January, 1992, was totally untenable. I do not propose to make any finding that the husband deserted; it is clear that the parties agreed that he should leave because of the situation. He is at present living in rented accommodation at … , Monkstown, Co. Dublin, for which he pays a rent of £400 per month. Interim orders were made by consent on 9 May 1994 with regard to custody and access. The child is in the custody of the wife and the access arrangements appear to be working fairly well. While technically the husband has claimed for custody of his son, custody does not appear to be really in issue at present.
The evidence of the parties in regard to marital behaviour is totally contradictory. The wife accuses her husband of extreme mental cruelty and considerable physical cruelty. The husband denies this and counter-accuses his wife of being violent and hysterical. The wife's evidence in regard to physical attacks is to some extent borne out by a number of medical reports which were admitted in evidence by agreement between the parties.
A feature of this case is that both parties to a high degree emphasised and re-emphasised their own truthfulness under oath. The wife declared that she was swearing on the life of her child. The husband declared that he had never told a lie in all his life. I cannot help feeling that there is some degree of possibly unconscious self-deception on both sides in regard to this. Such emphasis and re-emphasis has a degree of unreality about it and while the parties may not be consciously lying, it is very clear that, as in most matrimonial cases, each party sees events from his or her own point of view. It seems to me that both parties have been very much affected by the tragic double trauma they endured through the death of the two infant children of the marriage and that their marriage relationship was not strong enough to withstand this. It is clear that there was a high level of marital strife including physical assaults. Mr. O'L … admittedly assaulted his wife's friend, Ms … and though understandably provoked, he did show a short fuse in this incident. It may be that he also had a short fuse with his wife. On the other hand, the wife's evidence with regard to her miscarriage prior to marriage had an air of unreality and I find it difficult to accept all that she said with regard to her husband's mental cruelty. This is especially brought home by the fact that subsequent to the trial of the action further evidence emerged which showed that other aspects of the wife's...
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