M.McA v X.McA (Divorce)

JurisdictionIreland
JudgeMr. Justice McCracken
Judgment Date21 January 2000
Neutral Citation[2000] IEHC 6
Docket Number[1998 No. 89M],No. 89M/1998
CourtHigh Court
Date21 January 2000

[2000] IEHC 6

THE HIGH COURT

FAMILY LAW

No. 89M/1998
McA (M) v. McA (X)
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM
ACT 1989
AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

M. McA.
APPLICANT

AND

X. McA.
RESPONDENT

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3

FAMILY LAW (DIVORCE) ACT 1996 S5(1)

DIVORCE REFORM ACT 1969 (UK)

MOUNCER V MOUNCER 1972 1 WLR 321

SANTOS V SANTOS 1972 2 AER 246

BARTRAM V BARTRAM 1949 2 AER 270

CONSTITUTION ART 41.3.2

FAMILY LAW (DIVORCE) ACT 1996 S20

Synopsis

Family Law

Judicial separation; divorce; whether parties have "lived apart from one another" for the period required by the Family Law (Divorce) Act, 1996; whether parties could be said to be living apart from one another even though they live in the same house; whether intention or mental attitude of parties is a relevant matter; financial matters including periodical payments and a lump sum payment.

Held: Decree of Divorce granted; financial orders made.

McA v. McA - High Court: McCracken J. - 21/01/2000 — [2000] 1 IR 457 - [2000] 2 ILRM 48

In the case of parties who were living in the same household and one party was claiming an entitlement to a divorce it was for the court to decide whether such an entitlement arose. This would involve the court making a decision as whether the parties were in effect "living apart from one another" for the purpose of the Family Law (Divorce) Act, 1996. Mr Justice McCracken was however of the view that the matrimonial relationship cannot be dictated purely by reference to the location of the parties involved or by whether the spouses live under the one roof. One must also consider the mental and intellectual attitude of the parties involved. Taking these factors into account Mr Justice McCracken held that the parties had in effect lived apart from one another for the requisite number of years and thus a decree of divorce would issue.

1

JUDGMENT of Mr. Justice McCracken delivered the 21st day of January 2000 BACKGROUND

2

The Applicant and the Respondent were married on 7th October 1968 and there were two children of the marriage, neither of whom are now dependant on their parents, and both of whom in fact work in the family business. It is accepted by the parties that the relationship between them has irretrievably broken down and there is no possibility of a reconciliation. The Applicant is claiming a Decree of Judicial Separation pursuant to sections 2 and 3 of the Judicial Separation and Family Law Reform Act, 1989, together with a number of ancillary orders. The Respondent acknowledges the Applicant's entitlement to a Decree of Judicial Separation, but counter claims for a Decree of Divorce pursuant to the provisions of the Family Law (Divorce) Act, 1996and the provisions of the Constitution. The Applicant disputes the Respondent's entitlement to a Decree of Divorce and I propose to consider that issue before turning to the financial position of the parties.

ENTITLEMENT TO DIVORCE
3

Section 5(1) of the Family Law (Divorce) Act, 1996provides:-

"Subject to the provisions of this Act, where, on application to it in that behalf by either of the spouses concerned, the court is satisfied that:-"

(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years,

(b) there is no reasonable prospect of a reconciliation between the spouses, and

(c) such provision as the court considers proper having regard to the circumstances exist or will be made for the spouses and any dependant member of the family,

4

The court may, in exercise of the jurisdiction conferred by Article 41.3.2 of the Constitution, grant a Decree of Divorce in respect of the marriage concerned".

5

It is quite clear that there is no reasonable prospect of reconciliation in the present case, and the parties have agreed that it is a matter for the Court to make proper provision for them, and accordingly the only issue which I have to decide is whether the spouses have "lived apart from one another" for the relevant period or periods.

6

In 1988, the Applicant discovered that the Respondent was carrying on an affair with another lady and sometime about September 1988, having been confronted with his wife's knowledge of the affair, the Respondent left the family home and continued to conduct his affair with this lady. In 1989 the Applicant consulted a Solicitor and several letters were written on her behalf to the Respondent threatening Family Law proceedings, although no such proceedings ever were actually issued by the Applicant. The Respondent in fact provided for her and she continued to reside in the family home with the two children.

7

In 1991 the Respondent ended his relationship and returned to live in the family home. The Applicant has said in evidence that she was glad to have him come back, because she had never really accepted that the marriage had ended, but the Respondent maintains that his primary motive for returning was that he wanted to develop a better relationship with his son, who was then just eighteen. I accept that at this time, that is in 1991, the Applicant certainly hoped that some form of normality could be achieved in the marriage. I think the Respondent did not have any such expectations, even at that stage.

8

There is some conflict in the evidence as to the relationship between the parties over the next few years. The parties slept in separate bedrooms and never resumed sexual relations. They did on several occasions go away on holidays with the children, but again slept in separate bedrooms while on holiday. When they were in the house together they appear to have had what might be called a civilised relationship, in that they were polite to each other and if both were present at meal times would take their meals together. When he was at home, the Respondent would tend to go to bed, or at least to his room, early and watch television and he had a separate telephone line installed into his room.

9

During this period, as will be detailed later in this judgment, the Respondent's business was growing rapidly. The parties lived in a small town and the Respondent became probably the biggest employer in the town. Because of his business activities, he became involved in a number of local events, and the Applicant was also involved in a number of local social activities. They were important people in the town, and undoubtedly attended a number of local functions together. The Applicant also owned 15% of the shares of the holding company of the Respondent's business, which he had given to her when the business was first incorporated, and at a time before any problems arose in the marriage. In addition, she managed a shop in the town which was part of the Respondent's business, for which she was paid a wage. However, I am not sure how relevant the Applicant's relationship to the Respondent's business is in determining whether the parties were living apart, as the same situation had obtained between 1987 and 1991, when the parties were undoubtedly living apart, and has obtained since the Respondent finally left the family home in 1997. It may also be of some relevance that, following the return of the Respondent in 1991, he agreed to pay the Applicant a sum of £750.00 per month in cash, which sum was later increased to £1,000.00 per month, and her car and all motoring expenses were paid out of the Respondent's business.

10

In 1995, while the parties were still living in the same house, the Applicant entered into a relationship, including a sexual relationship, with another gentleman and in 1996 the Respondent entered into a relationship with a lady with whom he is now living. On the evidence it seems that at the time neither of them was fully aware of the extent of the other's relationships, but undoubtedly such relationships did exist.

THE LAW ON LIVING APART
11

Section 5 of the Family Law (Divorce) Act, 1996provides that for the relevant period "the spouses have lived apart from one another". The Act does not attempt to give any definition or explanation of the meaning of "have lived apart from one another", but some assistance can be obtained from English authorities.

12

The phrase "living apart" is used in the Divorce Reform Act, 1969 in the United Kingdom, and has been considered in several cases there. These decisions are somewhat complicated by the fact the Act also provides:-

"For the purposes of this Act a husband and wife shall be treated as living apart unless they are living in the same household".

13

This, of course, adds the further consideration of what is a household, although in Mouncer -v-Mouncer (1972) 1 W.L.R. 321, it was held that this statutory provision did not really alter the earlier common law situation. After holding that on the facts the parties were living together, Worthing J., said at page 323:-

"The fact that they did this from the wholly admirable motive of caring properly for their children cannot change the result of what they did."

14

The reasoning of this case would appear to apply what I might call a totally physical test as to whether the parties were living together or living apart, but a different attitude was taken by the Court of Appeal in England at much the same time in Santos -v-Santos (1972) 2 All E.R. 246. It should be said immediately the facts of this case were that the husband and wife were in fact not living in the same house, and the matter to be considered by the court was whether that fact was in itself sufficient to determine that the parties were living apart. The judgment of Sachs J., contains a very detailed consideration of the authorities, not only in the United Kingdom but also in other common law...

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