P. O'D v A. O'D

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C.
• Court: Supreme Court

Supreme Court

[S.C. No. 200 of 1996]

P. O'D. v. A. O'D. (Judicial Separation)

In the matter of s. 16 of the Courts of Justice Act, 1947, P. O'D.

Applicant

and

A. O'D.

Respondent

Cases mentioned in this report:-

Bank of Ireland v. Purcell [1989] I.R. 327; [1990] I.L.R.M. 106.

Clark v. Clark (1885) 10 P.D. 188.

Courtney v. Courtney [1923] 2 I.R. 31; (1923) 57 I.L.T.R. 42.

D. v. D. (Unreported, High Court, Doyle J., 21st July, 1977).

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

F. v. F. (Judicial Separation) [1995] 2 I.R. 354.

Hunt v. Hunt 4 De G.F. & J. 221.

Jump v. Jump (1883) 8 P.D. 159.

K. v. K. [1988] I.R. 161.

L.M. v. Devally [1997] 2 I.L.R.M. 369.

Lac Minerals Ltd. v. Chevron Mineral Corporation of Ireland (Unreported, High Court, Keane J., 6th August, 1993).

MacMahon v. MacMahon; Purser v. Purser [1913] 1 I.R. 428.

Mortimer v. Mortimer 2 Hagg Consist Rep. 310.

N. (C) v. N (R) [1995] 1 Fam. L.J. 14.

Olympia Productions Ltd. v. Mackintosh [1992] I.L.R.M. 204.

O'Neill v. Ryan [1993] I.L.R.M. 557.

Sullivan v. Sullivan 2 Addams 299.

Wilson v. Wilson (1848) 1 H.L.C. 538.

Family law - Judicial separation - Ancillary relief - Nature of decree - Separation agreement - Whether court barred by prior separation agreement from granting decree of judicial separation and ancillary relief - Whether jurisdiction to grant decree of judicial separation where parties already relieved of duty to cohabit - Whether separation agreement is post-nuptial settlement - Judicial Separation and Family Law Reform Act, 1989 (No. 6), ss. 2, 15.

Words and phrases - "Post-nuptial agreement" - Judicial Separation and Family Law Reform Act, 1989 (No. 6), s. 15.

Consultative case stated from the Circuit Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Keane J., infra.

By consultative case stated dated the 24th October, 1995, Circuit Court Judge McGuinness submitted the following questions for determination by the Supreme Court:-

• 1. Whether I was correct in holding that the applicant's case for a property adjustment order was not res judicata, since such orders under s. 15 of the Act of 1989 are based on other and wider considerations than an order pursuant to s. 12 of the Married Women's Status Act, 1957?

• 2. Whether I was correct in holding that I had jurisdiction to grant a decree of judicial separation where a deed of separation existed which relieved each of the duty to cohabit with the other and where the parties have lived apart since the conclusion of such agreement?

• 3. Whether I was correct in holding that there was no estoppel by reason of the said separation agreement to prevent this Court granting a decree of judicial separation pursuant to s. 2 of the Act of 1989?

• 4. Whether I was correct in holding that the applicant's proceedings are not vexatious and frivolous?

The consultative case stated was heard by the Supreme Court (Keane, Lynch and Barron JJ.) on the 10th November, 1997.

Section 15(1)(c) of the Judicial Separation and Family Law Reform Act, 1989, provides that on granting a decree of judicial separation, or at any time thereafter, the court may, on application by either spouse, make a property adjustment order varying any ante-nuptial or post-nuptial settlement.

The applicant and respondent were married in 1961. In 1979, the parties entered into a separation agreement which relieved them of the duty to cohabit. The agreement acknowledged that the applicant had paid the mortgage on the family home until 1969, whereafter the respondent had made all the repayments. At the date of hearing, the respondent lived in the family home, which was in her sole name. In 1986, the applicant issued proceedings under s. 12 of the Married Women's Status Act, 1957, claiming a beneficial interest in the family home. On appeal, the High Court ruled that the respondent was the sole beneficial owner of the property.

The applicant instituted the present proceedings in the Circuit Court, pursuant to the Judicial Separation and Family Law Reform Act, 1989, claiming inter alia:-

1. an order for a decree of judicial separation and

2. an order for the transfer of a portion of the family home.

The respondent sought an order for the dismissal of the application for judicial separation on the grounds that:-

• 1. the applicant was estopped from bringing the proceedings, or alternatively they were res judicata;

• 2. the proceedings were vexatious and frivolous:

• 3. the Circuit Court had no jurisdiction to grant a decree of judicial separation where the parties had already been relieved of the duty to cohabit with one another by the separation agreement.

The Circuit Court Judge concluded that the proceedings were not frivolous and vexatious but sought the opinion of the Supreme Court by way of consultative case stated.

Held by the Supreme Court (Keane, Lynch and Baron JJ.), in answering the case stated, 1, that there was no jurisdiction to grant a decree of judicial separation where a deed of separation existed which relieved the parties of the duty to cohabit and where they had lived apart since the conclusion of the agreement.

Courtney v. Courtney [1923] 2 I.R. 31,K. v. K.[1988] I.R. 161 andF. v. F. (Judicial Separation)[1995] 2 I.R. 354followed.

2. That, although the Act of 1989 widened the grounds upon which a decree could be granted, the nature of a decree of judicial separation and a decree of divorce a mensa et thoro, remained the same.

• F. v. F. (Judicial Separation) [1995] 2 I.R. 354followed.

3. That a spouse who had already been granted a decree of divorcea mensa et thoro or who had entered into a separation agreement, could not obtain the new ancillary reliefs which were now available where a decree of judicial separation was being granted.

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

4. That the court was estopped by reason of the deed of separation from granting a decree of judicial separation.

5. That a separation agreement was not a post-nuptial settlement within the meaning of s. 15(1)(c) of the Act of 1989, although it might incorporate a settlement of property which could be varied by a property transfer order.

6. That the applicant's proceedings were not vexatious and frivolous, in circumstances where they were upheld in a careful and considered judgment.

Cur. adv. vult.

Keane J. 18th December, 1997

This is a consultative case stated by Circuit Court Judge McGuinness which raises a net but important point of law.

The relevant facts are not in dispute and can be shortly summarised. The applicant husband and the respondent wife were married in 1961 and have two children, both of whom have reached their majority. The family home, which is in a Dublin suburb, is in the sole name of the respondent. The applicant is retired and in receipt of a pension and the respondent is a telephonist. The respondent continues to reside in the family home.

Unhappy differences arose between the parties and it is agreed that these were due, in the main, to the fact that the applicant was suffering from alcoholism. As a result of his illness, the applicant lost his job and incurred a number of debts. In 1969, after he had spent some time in hospital and on the advice of a psychiatrist, the applicant decided that the family home should be transferred into the sole name of the applicant in trust in order to give him time to pay off his creditors.

On the 16th January, 1979, the parties entered into a separation deed (hereafter "the separation agreement"). It will be necessary to refer to some of the provisions of the separation agreement in more detail at a later stage: for the moment, it is sufficient to note that, without prejudice to the proprietary interest in the family home, the parties acknowledged that, up to the 26th April, 1969, when the family home was transferred into the respondent's sole name, the applicant paid the mortgage repayments but thereafter all the mortgage repayments were paid by the respondent.

In 1986, the applicant issued proceedings under s.12 of the Married Women's Status Act, 1957, claiming a beneficial interest in the family home. The application having come before the High Court by way of appeal, the respondent was declared to be the sole beneficial owner of the family home.

After that application had been determined, the respondent, who is not being maintained in any way by the applicant, encountered financial difficulties. She tried to raise a mortgage with a building society, using the family home as security, but the applicant refused the consent which was required under the Family Home Protection Act, 1976. The respondent, accordingly, instituted proceedings under s.4 of that Act for an order dispensing with his consent, which was granted by t he Circuit Court on the 22nd February, 1988. The respondent claims that she has incurred substantial legal expenses over the years due to the litigation she has been involved in relating to the family home. She also claims that this litigation has been brought about by the attitude of the applicant.

In the present proceedings, which were instituted in the Circuit Court, the applicant claimed inter alia:-

"(1) An order pursuant to the provisions of s. 2 (1) (d), 2 (1) (e) or 2 (1) (f) of the Judicial Separation and Family Law Reform Act, 1989, for a decree of judicial separation:

• (2) (a) An order pursuant to the provisions of s. 15 of the Act of 1989, providing for such transfer of such portion of the family home as to this honourable court shall seem proper:

  • (b) An order pursuant to s. 14 of the Act of 1989, awarding the applicant a lump sum as to this honourable court shall seem fit and meet;

  • (c) In the alternative, an order, if necessary pursuant to the provisions of s.16(b) of the Act of 1989, for the sale of the family home subject to such conditions as to this honourable court shall seem...