M (E) v M (W)

 
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2000 WJSC-CC 4449

The Circuit Court

Record No. 335/93
M (E) v. M (W)
Dublin Circuit
County of the City of Dublin
In the matter of the Judicial Separation and Family Law Reform Act 1989

Between:

(E) M
Applicant

and

(W) M
Respondent

Citations:

JUDICIAL SEPERATION & FAMILY LAE REFORM ACT 1989 S2(1)(e)

MARRIED WOMENS STATUS ACT 1957 S12

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S16

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S15(a)

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S16(c)

W V W 1981 ILRM 202

N V N 1992 ILRM 127

BERNARD V JOSEPHS 1982 12 CH 391

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S15

WACHTEL V WACHTEL 1973 FAM 72

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S20(2)(i)

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S20

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S16(a)

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S17

1

Judgment of Judge McGuinness delivered the 25th day of October 1994:

McGuinness
2

The parties in these proceedings, which are brought pursuant to the Judicial Separation and Family Law Reform Act1989, were married on 20th June 1962. There were two children of the marriage, (D) born the 25th January 1965 and (R) born the 19th July 1969, both now of full age. The present family home at Tallaght was purchased in or about January 1974 with the assistance of a loan in the sum of £4500 from Dublin County Council (now South Dublin County Council). The remainder of the purchase price of £5500 was provided by the parties. Of this sum of £1000 I accept that £800 was provided by the husband and £200 by the wife. The title to the property was held in the sole name of the husband.

3

The marriage appears to have been a troubled one during which the parties separated temporarily on a number of occasions, in particular for a period subsequent to the birth of the first child D. in 1965. The wife says in evidence that this period of separation lasted for four years; the husband that it lasted for one and a half to two years. The wife alleges that the husband drank to excess, behaved violently from time to time, and put her through mental torture. The husband alleges that the wife was only interested in improving the house and furniture, and that her demands in this regard put him under unbearable stress.

4

The parties finally separated in 1981, the wife continuing to live with the children in the family home, while the husband went to live with his father (now deceased) in a Dublin Corporation flat at Dublin 2. He still resides there, and is now tenant of the premises.

5

The husband originally worked as a long-distance lorry driver. In or about 1973 he was injured in a road traffic accident and took volunatary redundancy from his employment. He used the bulk of his redundancy payment of about £850 to put towards the purchase of the family home. Since 1974 he has had only minor and temporary employment. His evidence is that he has suffered ill-health throughout the years, and a medical certificate of Dr. Victor Fennell was handed into court which stated that he suffers from "chronic anxiety depressive illness" and "irritable bowel syndrome". The level of his ill-health was strongly contested by his wife, and in the absence of more satisfactory medical evidence it is difficult to reach a definite conclusion, but I would accept that for some time past at least he has suffered a fairly disabling degree of illness. He is at present in receipt of social welfare payments of £62.60 per week, which is his sole income.

6

In or about 1978 the husband received a personal injury award in respect of his road traffic accident. There is some uncertainly about the amount of this award but it appears to have been in or about £8500. He invested some of this money in furniture and fittings for the family home, and in addition bought a car for the sum of about £2500. The amount which he spend on the home is in dispute, but I would accept that he spent a sum of in or about £1500 for this purpose. He also borrowed sums from the Phoenix Trust and the Mercantile Credit Company in order to build and improve an extension to the family home. The sum of £2466. 12 is still owing to the Mercantile Credit Company and it appears that this debt was registered as a judgment mortgage against the husband's beneficial share of the family home. I am informed by Counsel that it is clear from the Land Registry Folio that this judgment mortgage is no longer effective, but the debt has never in fact been paid.

7

From 1974 the wife was employed outside the home as a cleaner for the Eastern Health Board. She has now retired from this employment. In addition to her work with the Eastern Health Board she purchased an industrial sewing machine and earned monies through dress-making work. By her work she supported herself and the children and made all the mortgage repayments to Dublin County Council. It is clear that after 1974 the husband contributed little or nothing to the maintenance of the family and he has made no contribution of any kind since 1981. Over the years since 1981 the wife has expended very considerable sums from her earnings in improvements and maintenance of the house. She has been assisted in this substantial contributions from the son R.

8

In 1983 the wife took proceedings in the Circuit Court pursuant inter alia to Section 12 of the Married Women's Status Act1957. On appeal to the High Court the learned Mr. Justice Murphy on 2nd February 1984 by order declared that the husband and the wife were equally entitled to the equity of redemption of the family home and that their future entitlements were to be on the basis of their respective contributions to the redemption of the mortgage thereon.

9

In the present proceedings the wife seeks a decree of judicial separation and this is not disputed by the husband. The parties, having lived separate and apart since 1981, are clearly entitled to a decree pursuant to Section 2 (1) (e) of the 1989 Act, and accordingly I grant this decree.

10

It is accepted by both parties that the husband's restricted means do not...

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