N (C) v N (R)

• Jurisdiction: Ireland
• Judge: CATHERINE MeGUINNESS
• Judgment Date: 09 February 1995
• Neutral Citation: 1999 WJSC-CC 6158
• Court: Circuit Court
• Date: 09 February 1995

1999 WJSC-CC 6158

THE CIRCUIT FAMILY COURT

Record No. 82/94

N (C) v. N (R)

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

In the matter of the Judicial Separation and Family Law Reform Act 1989 and in the matter of

the Family Law (Maintenance of Spouses and Children) Act 1976

Between

C N.

Applicant

and

R N.

Respondent

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S5(1)(b)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S27

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S5(1)(c)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S43

K V K 1988 IR 161

COURTNEY V COURTNEY 1923 2 IR 31

ROSS V ROSS 1908 2 IR 339

LEWIS V LEWIS 1940 IR 42

TOMKINS V TOMKINS 1948 P 170

JEFFREY V JEFFREY 1952 1 AER 790

YOUNG V YOUNG 1962 P 27

D (H) V D (P) UNREP SUPREME 8.5.78 1978/4/

D (J) V D (B) 1985 ILRM 688

D V D UNREP BARRON 19.12.89 1990/6/1608

WILLIAMS V WILLIAMS 1865 1 P & D 178

GANDY V GANDY 7 PD 168

MOORE V MOORE 12 PD 193

REID V REID 1926 PD 1

HYMAN V HYMAN 1929 AC 601

JOHNSON V JOHNSON 1950 P 23

BANK OF IRELAND V PURCELL 1990 ILRM 10

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(a)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(b)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(c)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)(d)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(2)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S22

BROMLEYS FAMILY LAW 8ED 739

DUNCAN & SCULLY MARRIAGE BREAKDOWN IN IRELAND PARA 13.012

PRINSEP V PRINSEP 1929 P 225

MATRIMONIAL CAUSES ACT 1950 S25 UK

WORSLEY V WORSLEY & WIGNALL 1869 LR 1 P & M 648

JUMP V JUMP 1883 8 PD 159

COOPER V COOPER 1932 P 75

MATRIMONIAL CAUSES ACT 1857 S45 UK

MATRIMONIAL CAUSES ACT 1859 S5 UK

JUDICATURE ACT 1925 S192 UK

MATRIMONIAL CAUSES ACT 1973 S24 UK

CLARK V CLARK 1885 10 PD 188

BERWICK V OSWALD 3 EL & BL 653

D V D UNREP DOYLE 21.7.1977

FAMILY HOME PROTECTION ACT 1976

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S5

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S5(1)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S14(1)(a)

Words & Phrases:

CEF

Subject Headings:

*

JUDGMENT BY JUDGE

CATHERINE MeGUINNESS delivered the 9th day of February 1995

1 In these proceedings the Applicant wife seeks a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989together with ancillary orders pursuant both to that Act and to the Family Law (Maintenance of Spouses and Children) Act 1976. She seek's inter alia orders in regard to the payment of periodic maintenance and for the payment of a lump sum by way of maintenance, together with a property adjustment order. The Respondent husband in his Answer pleads that the parties regulated their affairs by Separation Deeds in 1981 and 1986, that these agreements were in full and final settlement of all matters in controversy between them, and that the Applicant is thereby barred from seeking a decree of judicial separation. He also pleads estoppel, in that the Applicant wife has taken the benefit of the separation agreements and permitted him to arrange his affairs of the basis of those agreements. By his Counterclaim he seeks a sale of the family home and a division of the proceeds.

2 The questions as to whether parties who have previously entered into a separation agreement can be permitted subsequently to pursue proceedings seeking a decree of judicial separation and whether the court, if it grants such a decree, may vary the terms of the prior separation agreement, were argued before this court as a preliminary issue on 7th December 1994. The issue of estoppel was also argued. Counsel on both sides opened considerable authority to the court, and I reserved my judgment in order further to consider these authorities.

THE FACTS

3 The parties married on 6th January 1962 in Scotland. They lived at various addresses, and ultimately as 17 Kill Abbey, Deansgrange, Co. Dublin, which remains in law the family home. There were three children of the marriage, born in 1962, 1966 and 1970 - all now adults. The parties have lived apart since 1981. At present the wife lives in the family home at Kill Abbey and is in part-time employment as a school attendant. The husband lives at 110 Salthill, Monkstown, Co. Dublin and is a businessman involved in the petro- chemical industry. He also has a pension from his previous employment. The pleadings are silent as to the title and ownership of the family home.

4 On 10 June 1981 the parties entered into a Separation Agreement. This is in the normal form of such agreements, and provided inter alia that the wife would leave the family home within one week of the date of execution of the agreement, that within a period of seven years the family home would be sold, and that after the normal deductions the net proceeds of sale would be divided equally between the parties. The agreement envisaged that the husband would continue to reside in the family home and would have sole custody of the children.

5 This 1981 agreement provided for the payment by the husband to the wife of periodic maintenance in the terms of the agreement for her lifetime or until one of a number of circumstances should arise. These circumstances included the making of a maintenance order by the court, the judicial separation of the husband and wife, or the payment to the wife of her share of the proceeds of sale of the family home. This agreement therefore envisaged the possibility of future court proceedings whether by way of a maintenance application or (in accordance with the law then prevailing) a petition for divorce a mensa et thoro.

6 On 27th May 1986 the parties entered into a further Separation Agreement revoking the 1981 agreement and providing that the husband would vacate the family home and reside elsewhere and that the wife would return to reside in the family home with the youngest child. It was further agreed that the husband would discharge the mortgage repayments, insurance premiums, and all costs of maintenance of the family home. The agreement also provided for the payment of index-linked maintenance to the wife, with a variation clause permitting an application to court under the provisions of the Family Law (Maintenance of Spouses and children) Act 1976"or otherwise have the matter determined by Court".

7 This second agreement does not make any reference to a future decree of judicial separation, although it appears to envisage the possibility of either the husband or the wife in future "becoming party to a ceremony of marriage". If that contingency should arise on the part of the wife - or if she should cohabit - provision is made for the sale of the family home and an equal division of the net proceeds between the parties.

8 The reference to the possibility of a future maintenance application merely reflects the legal position under the Family Law (Maintenance of Spouses and Children) Act 1976.

9 Neither agreement expressly states that it is a full and final settlement of all matters at issue between the parties, nor does either agreement contain an express covenant not to bring further proceedings. The 1986 agreement contains a provision that it was to be made a rule of court, but it is common case that in fact this was never done.

10 It appears that the provisions of the 1986 agreement were in general put into effect, and the wife continues to reside in the family home and to be paid maintenance by the husband. It seems that during 1993 the parties entered into further negotiations but these negotiations led to no agreement and therefore cannot at this point concern this court. In February 1994 the wife issued the present proceedings.

SUBMISSIONS OF COUNSEL

11 I shall here briefly outline the submissions on the preliminary points made by Counsel for both parties.

12 On behalf of the Respondent Mr. Allen argued that public policy should favour finality in agreements between separating spouses as it does in other areas of the law. Public policy favoured the amicable settlement of family law matters, as was borne out by Sections 5 (1) (b) and (c) of the Judicial Separation and Family Law Reform Act 1989. The section provides as follows:

13 “5 (1) A solicitor, if any, acting for an applicant for a decree of judicial separation shall, prior to the making of an application for a decree of judicial separation -

14 a (a)....

15 (b) discuss with the applicant the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse....

16 (c) discuss with the applicant the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.”

17 Mr. Allen submitted that to permit an application for judicial separation subsequent to a separation deed would tend to discourage settlements because their finality could not be relied on. Section 43 of the Judicial Separation and Family Law Reform Act 1989would prevent a person who had brought their case for divorce a mensa et thoro to hearing prior to 1989 from having "a second bite at the cherry" and it would therefore be inequitable to permit those who had settled their proceedings to have this "second bite". He directed attention to the fact that orders under section 15 of the 1989 Act can be made by the court on one occasion only and that a lump sum maintenance order cannot in general be varied; thus he submitted that such arrangements in a separation deed once made should not later be varied by the court.

18 Mr. Allen relied on the case of K. v K. [1988] IR 161 in which it was held by the High Court (McKenzie J.) that a prior...