M.B. v R.B.

• Jurisdiction: Ireland
• Judgment Date: 05 May 1989
• Date: 05 May 1989
• Docket Number: [S.C. No. 304 of 1987]
• Court: Supreme Court

High Court

Supreme Court

[S.C. No. 304 of 1987]

M.B. v. R.B.

M.B.

Applicant

and

R.B., Respondent and R.B., Applicant, v. M.B., Respondent

Cases mentioned in this report:—

S. v. S. (Unreported, High Court, Ellis J., 26th June, 1980).

C.P. v. D.P. [1983] I.L.R.M. 380.

D. v. D. (Unreported, Supreme Court, 8th May, 1978).

D. v. C. [1984] I.L.R.M. 173.

M.C. v. J.C. [1982] I.L.R.M. 562.

Husband and wife - Alimony - Maintenance - Variation - Lump sum payment - Decree of divorce a mensa et thoro granted - Application by both parties to vary alimony and maintenance - Whether court has jurisdiction to award a capital sum or order its payment by way of alimony - Wife raised mortgage which was only partly justifiable - Whether alimony should be increased to cover part of cost of repaying mortgage - Rules of the Superior Courts, 1986 (S.I. No. 15) O. 70, rr. 47-57 - Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 (33 & 34 Vict., c. 110), ss. 7, 13 and 18 - Guardianship of Infants Act, 1964 (No. 7).

Notice of Motion.

A decree of divorce a mensa et thoro had been granted on the wife's petition by the High Court (D'Arcy J.) in 1978 and alimony and maintenance had also been ordered. The High Court (Barrington J.) had made an order on the 19th December, 1984, increasing the payments of alimony and maintenance and providing for annual increases in accordance with the cost of living index.

By notice of motion dated the 31st October, 1986, the wife sought an order of attachment and committal of the husband for failure to comply with the order made on the 19th December, 1984. She also sought an order adjudging the sum of £1,333 to be due and owing in respect of arrears of alimony and maintenance.

By a further notice of motion dated the 2nd March, 1987, the wife sought an order increasing the sums payable by the husband in respect of alimony and maintenance.

By notice of motion dated the 1st April, 1987, the husband sought a variation of the order made on the 19th December, 1984, in respect of alimony and maintenance.

By a further notice of motion dated the 18th June, 1987, the husband sought an order directing the wife to sign all necessary documentation for the transfer of certain lands in County Dublin.

The facts are summarised in the headnote and are set out in the judgments,infra.

The motions were heard by the High Court (Barr J.) on the 21st and 22nd July, 1987.

The husband appealed to the Supreme Court against so much of the judgment and order of Barr J. as ordered the payment of a capital sum of £6,000.

The appeal was heard by the Supreme Court (Walsh, Griffin and Hederman JJ.) on the 12th December, 1988.

A decree of divorce a mensa et thoro was granted by the High Court on the wife's petition and the wife was awarded alimony and maintenance in respect of the six children. Subsequently the High Court varied the alimony and maintenance in respect of the three children who were then dependant in accordance with the variation in the cost of living index. In addition to these amounts the husband paid the educational expenses of the children including third level education and some travel expenses in connection with trips abroad.

The wife brought inter alia an application to increase the amount of alimony and maintenance. The husband sought to vary maintenance and alimony downwards by reason of his alleged changed financial circumstances.

Both parties had made serious mistakes in the management of their resources. The wife had raised a mortgage of £30,000 which cost her £300 per month in repayments mainly for the purpose of modernizing and repairing her dwelling-house. This was done without consultation with the husband and further repair work was needed. However if the husband sold his capital assets, which were yielding no benefit by way of annual income, he could repay his debts and the remaining sum would yield a substantial net annual income.

Held by Barr J., 1, that, although the wife's financial predicament was largely of her own making, part of the mortgage she had raised seemed justifiable and her monthly alimony would be increased accordingly in order to cover half the cost of servicing her mortgage.

2. That the husband should pay to the wife a capital sum of £6,000 to clear her existing debts and assist in repairing her house even though she was being fairly treated financially by him.

On appeal by the husband against that part of the judgment and order of the High Court ordering him to pay the wife a capital sum of £6,000 it was

Held by the Supreme Court (Walsh, Griffin and Hederman JJ.) in allowing the appeal, 1, that the court did not have jurisdiction to award a capital sum or to order its payment by way of alimony because alimony is by its nature a periodic payment which can be increased, decreased or terminated.

2. That the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, provided that in relation to divorce a mensa et thoro the court could only do what had formerly been done in relation to matrimonial causes by the ecclesiastical courts which did not have the jurisdiction to award capital or lump sums. The Act of 1870, and the rules made thereunder, made no provision for the payment of capital sums and accordingly the court had no jurisdiction to make such awards.

Cur. adv. vult.

Barr J.

Since 1978 there has been protracted litigation between the parties which in the main has related to alimony and child maintenance payable by the husband to the wife. There are four motions presently before the court:—

• (1) The wife's motion to commit the husband to prison for alleged failure to comply with a court order made in the month of December, 1984, as to payment of alimony and maintenance.

• (2) The wife's motion

  • (a) to increase alimony of £1,156 per month payable by the husband in accordance with that order, and

  • (b) to increase child maintenance of £129 per month for each dependant child.

• (3) The husband's motion to vary the alimony and child maintenance payments by reason of his...