P. v P

JurisdictionIreland
CourtHigh Court
JudgeFinlay P.
Judgment Date01 January 1983
Neutral Citation1982 WJSC-HC 2538
Date01 January 1983
Docket NumberNo. 921sp/1981

1982 WJSC-HC 2538

THE HIGH COURT

No. 921sp/1981
P.C. v. P.D.
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964
IN THE MATTER OF H.P. AND T.P. INFANTS
AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES
AND CHILDREN) ACT, 1976
AND THE MATTER OF THE MARRIED WOMENS STATUS ACT, 1957
AND BY ORDER IN THE MATTER OF THE FAMILY HOME PROTECTION
ACT, 1976

BETWEEN:

C.P.
Plaintiff

and

D.P.
Defendant
1

Judgment delivered on the 27th day of May 1982 by Finlay P.

2

This is a claim brought by the Plaintiff who is the wife against the Defendant who is the husband by special summons. In the special summons as originally issued a claim was made under the Guardianship of Infants Act, 1964for the custody of the two children of the marriage; under the Family Law (Maintenance of Spouses and Children) Act, 1976for the payment of maintenance and under the Married Womens Status Act, 1957for a claim to a beneficial ownership in the family home which was in the sole name of the Defendant. By Notice of Motion dated the 16th of April 1982 liberty was sought to amend the Special Summons by adding thereto a claim under the Family Home Protection Act, 1976in effect for an order transferring the entire legal and beneficial interest in the family home to the Plaintiff. I allowed this amendment to be made so that the issue could be raised and decided.

3

The proceedings were brought on affidavit but the evidence on affidavit was subsequently elaborated by oral evidence on behalf of the Plaintiff and the Defendant and by an accountant employed by the Defendant.

4

With regard to the issue as to the custody of the children of the marriage, no contest arose before me. The parties married in 1970 and there are two children of the marriage, a daughter born in February 1971 and a son born in January 1974. Differences arose in the marriage and the parties agreed to separate and entered into an agreement in March 1980 under which it was agreed that the wife should have custody of the children subject to reasonable access by the husband; that the family home which was situated in County Wicklow should be sold by the husband as soon as a reasonable price could be obtained; that he should move out of it on the 1st of April 1980; that the wife should continue to reside there with the children, should eventually consent to the sale of the family home; that in the meantime she should be paid reasonable maintenance and that the husband should continue to discharge the outgoings that he had been discharging in respect of the family home. It was also provided that a further agreement would be entered into prior to the sale of the property concerning the division between the husband and the wife of the proceeds of the family home but that in the event of the agreement as to the application of those proceeds not being made that that agreement of March 1980 should terminate. Subsequent to that agreement, the husband did leave the family home and the wife continued with the two children to reside there for some time.

5

In January 1981, the parties entered into a further agreement. This recited that it was supplemental to the agreement already made and should be read with it. It was further recited that the wife had agreed to leave the family home pending its sale and reside in rented accommodation elsewhere and that the husband had agreed to reside in the family home pending its sale. It further provided that the husband should pay to the wife the sum of £139.00 per week, payment to commence on the 20th of October 1980 and to be reviewed on or about the 20th of April 1981. This agreement did not provide for any arrangement concerning the application of the proceeds of the sale of the family home. Upon the execution of that agreement, the wife left the family home with the two children and resided in rented accommodation successively in two different locations in the County of Wicklow. The husband returned to the family home and the position at the time the action came before me for hearing was that the wife was residing in rented accommodation in Wicklow with the children and the husband residing in the family home. The husband did not dispute the propriety of the children continuing in the custody of the wife and I make a formal order under the Guardianship of Infants Act, 1964that she shall have custody of the children until further order. The parties at the hearing asked me to postpone questions of access which had arisen between them in the hope or expectation that they might be agreed and if not that they could be dealt with at a further short hearing.

6

With regard to the claims made by the Plaintiff for maintenance under the Married Womens Status Act, 1957and under the Family Home Protection Act, 1976the position is as follows.

7

The Plaintiff offered no evidence which would entitle me to reach any conclusion that she was entitled to any beneficial interest in the family home. She has not since the marriage worked or earned outside the family home nor did she subscribe out of any separate monies or income any sum towards the erection of the family home which was built by the Defendant nor towards the acquisition of it or any property in it. The claim under that Act must therefore be dismissed.

8

It is necessary first to determine the claim of the wife to a transfer pursuant to the Family Home Protection Act of the family home since obviously depending upon that issue different considerations may apply to the appropriate amount of maintenance to be paid by the husband to the wife. The husband and wife have not agreed on any application of the proceeds of the sale of the family home nor has any sale of the family home been negotiated or provided for. There is not at present before me any application by the husband to dispense with the consent of the wife to the sale of the family home.

9

The claim of the wife to transfer of ownership of the family home pursuant to the Family Home Protection Act is based on the following facts and submissions.

10

It is alleged by the wife that the husband has deposited the title deeds of the family home with a bank to secure overdrafts obtained by him, both apparently a personal overdraft and the overdraft of his professional firm of Architects of which he was up to recently a partner and is now the sole proprietor. It is also alleged that he has other substantial unsecured debts including debts in relation to arrears of income tax, arrears of VAT tax arising out of the architectural practice and other miscellaneous debts and it was submitted on behalf of the wife that the husband is engaging in such conduct as may lead to the loss of the family home with the intention of depriving the wife and the dependent children of their residence in it that therefore the provisions of Section 5 (1) of the Family Home Protection Act, 1976become operative and that the order which I should make under the discretion vested in me by that sub-Section should be to direct the husband for the protection of the family home in the interest of the wife and of...

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