N (C) v N (R)

• Jurisdiction: Ireland
• Judge: JUDGE CATHERINE McGUINNESS
• Judgment Date: 09 August 1995
• Neutral Citation: 1999 WJSC-CC 6170
• Docket Number: Record No. 82/94
• Court: Circuit Court
• Date: 09 August 1995

1999 WJSC-CC 6170

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 S2(1)(e)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976

FINANCE ACT 1987

WYLIE IRISH LAND LAW 398 PARA 7.32

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S14

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

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

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(b)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S20(2)(d)

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

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17

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

SUCCESSION ACT 1965

Words & Phrases:

CF

Subject Headings:

*

JUDGEMENT BY

JUDGE CATHERINE McGUINNESS DELIVERED THE 9th DAY OF AUGUST, 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 seeks 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.

2 Because the parties had entered into a Separation Deed in 1981, and a further amending Separation Deed in 1986, a preliminary issue arose as to whether it was open to the wife to bring proceedings and to seek orders pursuant to the Judicial Separation and Family Law Reform Act, 1989(the 1989 Act). This matter was argued before me by Counsel and in my judgement given the 9th day of February, 1995, I held that it was open to the wife so to do. Accordingly, the proceedings came for hearing before me on 27th day of July, 1995. At the trial I heard the evidence of the wife's accountant, Mr. S B Various items of documentary evidence were also provided to the court.

3 The parties married on 6 January 1962 in Scotland. They lived at various addresses and ultimately , Deansgrange, Co. Dublin which remains in law the family home. This premises was purchased by the parties in their joint names as joint tenants in or about 1976 for the sum of £25,000 subject to a mortgage in favour of the First National Building Society, in or around £4,000 of which is still outstanding.

4 There were three children of the marriage, born in 1962, 1966 and 1970, all now adults. The husband was employed for many years by in which employment he rose to a senior position. The wife did not work outside the family home. Unhappy differences arose between the parties in 1979/80. The wife alleges that the husband was overly involved in his career and the attendant social life; the husband alleges that the wife had a drink problem and committed adultery with one I J. In early 1981 the wife took District Court proceedings for maintenance and the husband brought cross proceedings for a barring order. The evidence before me in regard to the course of the District Court proceedings was inconclusive but it appears that while there was a hearing, no order was made by the District Court and matters were settled between the parties by a Separation Deed dated 10 June 1981. This was 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. The wife was legally advised at the time.

5 In accordance with the agreement, the wife left the family home and obtained rented accommodation in a bed sitter. She obtained employment looking after children. After two years, she rented a flat in Cabinteely and the maintenance payment was increased to £190 per month (an increase of some 10%); she continued in child care work paying £100 per month by way of rent for her living accommodation.

6 Apparently on the suggestion of their daughter, the parties entered into a new arrangement in 1986 which was formalised by a new Separation Agreement dated 27 May 1986. This agreement provided 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 the court under the provisions of the Family Law (Maintenance of Spouses and Children) Act, 1976. The amount of maintenance under this agreement was £150 per month. The index linked increases do not appear to have taken place, but in or about 1990 the payments were increased to £200 per month at which level they have remained. The entire payments made by the husband under the agreement of 1986 at present amount to some £7,000 per annum. This amount is claimed as a tax free allowance by the husband under the appropriate sections of the Finance Act, 1987which means that in real terms his liability is approximately £3,600 per annum. However, the wife's tax liability is calculated at the level of the actual cash maintenance received by her - £2,400 per annum. This anomaly causes concern to the wife's accountant who believes that sooner or later one or other party will be called to account for this discrepancy by the Revenue. However, both the husband and the wife state in evidence that they have produced the Separation Agreement to the Revenue authorities. This court would to some extent share the concern of the accountant, but the court must look at matters as they stand at present.

7 In addition to the maintenance payments, the wife for some time after 1986 took in students and raised funds by this means. However, she states in evidence that this source of income is no longer really available as the authorities prefer to place students with young families where there are children. This as a general proposition I accept.

8 At present the wife has obtained employment as a school traffic warden (lollipop lady) at. For this work she receives £50 per week during school term and £22 per week during holidays - a total of in or about £2,200 gross per annum from the Dun Laoghaire Corporation. She also applied for and has received Deserted Wives Benefit in the sum of £64.50 per week. I am somewhat puzzled as to her qualification for this payment since my understanding of the law is that where parties have separated by agreement through a separation deed, there is no desertion. In the "Guide to Social Welfare Services" published by the Department of Social Welfare (June 1994 edition) it is stated that

"Deserted" means that your husband left you voluntarily without good reason or that you had to leave him due to his unreasonable behaviour. You and your husband will be inter - viewed by a social welfare inspector concerning this matter.""

9 This does not specifically refer to separation by agreement. However, again both the wife and the husband that each produced the Separation Agreement to the Social Welfare Inspector and that it appeared to create no difficulty. This court naturally does not wish to challenge in any way the findings of the Social Welfare authorities that Mrs. N qualifies as a deserted wife, but again I feel a note of caution should be sounded.

10 The wife finds it difficult to manage on her present income. She submits that the family home which is now too large for her should be transferred to her sole name and that she should then sell it and purchase smaller accommodation and invest the surplus so as to create additional income for herself.

11 when the husband left the family home in 1986 he was still employed by and he lived for some four years in rented accommodation. In 1989 he was made redundant by and at that time received various payments totalling some £108,000 together with a pension which now stands at £16,628 per annum gross. He subsequently obtained employment with and is now a 25% owner of a company which handles filling stations obtaining or leasing low grade petrol stations and improving them into high grade petrol stations which the company then runs. This company has a value of in or about...