R (J) v P (P)
| Jurisdiction | Ireland |
| Judge | CATHERINE McGUINNESS |
| Judgment Date | 21 June 1996 |
| Neutral Citation | 1998 WJSC-CC 13763 |
| Docket Number | Record No. 551/94 |
| Court | Circuit Court |
| Date | 21 June 1996 |
1998 WJSC-CC 13763
THE CIRCUIT FAMILY COURT
BETWEEN:
Citations:
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S29
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(e)
DOMESTIC VIOLENCE ACT 1996
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17
SUCCESSION ACT 1965
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S14
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S29(5)(a)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S29(4)
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S29(2)(b)
MATRIMONIAL CAUSES ACT 1973 (UK)
BROMLEY ON FAMILY LAW 8ED 801–804
KEMMIS V KEMMIS 1988 1 WLR 1307
HUNT V LUCK 1901 1 CH 45
SHERRY V SHERRY 1991 1 FLR 307
JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15
Words & Phrases:
CEF
Subject Headings:
NOTICE: constructive notice
The proceedings before the court are an application by the Applicant wife for a decree of judicial separation together with ancillary relief. Among the ancillary reliefs sought by the Applicant is an Order pursuant to Section 29 of the Judicial Separation and Family Law Reform Act,1989setting aside the disposition of the Respondent's interest in a permises situate at Dublin, 16 (which premises were for a time the family home of the Applicant and the Respondent) to his brother, A R, and thus Mr. A R has been joined as Notice Party to these proceedings.
In July, 1995 the Notice Party brought a motion seeking security for costs against the Applicant. After a number of adjournments this motion was heard on 18 December, 1995 and I reserved judgement. In a written judgement delivered on 15 February, 1996 I refused the order sought by the Notice Party for reasons which are fully set out in that judgement.
The full proceedings were heard before this court on 19 February, 1996, 23 February, 1996 and 12 March, 1996 and I reserved judgement.
The Applicant and the Respondent were married on 25 July, 1980 and there is one child of the marriage, R who is now aged 14. The parties lived at, Clondalkin until in or about 1989. They then moved to , Dublin, 16 which had been the family home of the Respondent's parents. At that stage, the Respondent's mother had recently died but his father, Mr. T R was living in the premises. I will deal later with the details of the Section 29 claim and of the matter of the family property, some of which have already been set out in my earlier judgement.
The Applicant alleges adultery and unreasonable behaviour on the part of the Respondent who denies these allegations, but admits that there were difficulties in the marriage from in or about 1990 onwards. Apparently an effort was made to overcome these difficulties in early 1991 but matters did not greatly improve. Relations deteriorated further in the summer of 1991 and in July, 1991 the Applicant left the family home bringing the child of the marriage with her. The parties have lived separate and apart since that date.
The Applicant admits that she has entered into a second relationship with one J B and has a child by this relationship, D , now aged 3. The Respondent alleges that this relationship began prior to the separation of the parties and was the cause of the breakdown of the marriage. The Applicant now resides in rented accommodation at ???Dublin, 16 with the child of the marriage and her subsequent child. She states that Mr. B does not live with her, that he supports D, but that he does not support her. It appears that the Respondent has also now entered into a new relationship since he gives evidence of residing with a cohabitee.
Without going in any way into the rights and wrongs of the relationship between the parties, it is clear that grounds exist for the making of a decree of judicial separation pursuant to Section 2(1) (e) of the Judicial Separation and Family Law Reform Act,1989in that the spouses have lived apart from another for a continuous period of at least three years immediately preceding the date of the application. The Respondent does not oppose the granting of a decree on these grounds.
The child R has resided with his mother since the parties separated. The Respondent concedes that it is in the best interests of the child that he remain in the custody of his mother. Following the breakdown of the marriage, the Respondent resided at various addresses, at times abroad, and appears neither to have sought nor exercised any significant access to his son. It appears that the parties are agreed that access by R to his father will be facilitated in accordance with the child's wishes. Given R”s age, this is probably the best course, but I hope that he will be positively encouraged by both parties to rebuild a relationship with his father.
The wife seeks an Order barring the husband from her present residence and the husband consents to the making of such an Order. Owing to statutory change, this Order will now be made pursuant to the Domestic Violence Act,1996. It appears that the parties are also agreed that an Order and cross-Order may be made pursuant to Section 17 of the 1989 Act extinguishing the parties” succession rights against each other pursuant to the Succession Act,1965.
The issues that remain in contention are those of maintenance and the Section 29 claim in regard to the family property.
During the marriage, the Respondent was in steady and relatively well paid employment as a salesman. His wife states his earnings at £27,000 per annum and also states that he worked in addition frequently as a disc jockey. The husband states that £27,000 represented his best year and that his normal earnings were nearer to £15,000-£18,000 per annum. He also says that he earned little as a disc jockey.
When the marriage broke up in summer, 1991, the wife made an application to the District Court for maintenance and an Order for £130 per week was made. The husband left his employment in August, 1992. He says that he was extremely upset over the breakdown of his marriage and was unable to continue as a salesman. The wife clearly believes that he gave up work to avoid paying maintenance. The husband was unemployed from time to time but also earned money at times in a rather desultory fashion by working in a pub, by disc jockeying and by helping to fix blinds. He also worked for some time in Greece in tourist related occupations. In November, 1992, the District Court reduced the maintenance order to £55 per week owing to the alteration in the husband's circumstances. The husband did not pay this sum regularly and the wife brought enforcement proceedings in September, 1993. The husband did not attend the District Court. He appears to have been sentenced to two months imprisonment and a warrant was issued for his arrest. This warrant was never executed and he did not serve the sentence. The husband in his evidence states that he was until recently unaware of the hearing, the sentence or the warrant and I accept his evidence on this point. At the interim hearing in regard to security for costs, it was stated on behalf of the wife that the husband had been sentenced to a period of imprisonment for failure to pay maintenance, but no mention was made of the fact that the husband was not present or represented in the District Court the time. (The husband was not represented at the interim hearing on costs as he was not involved in the issue of security for costs). Solicitor and Counsel for the wife were not involved in the District Court proceedings and were of course acting on the wife's instructions, but I would have to say that the full evidence before me at the hearing cast a rather different light on this episode from the information given at the hearing of the motion.
As a result of the husband's failure to keep up the maintenance payments ordered by the District Court, it is agreed between the parties that a sum of £6,870 is due and owing by way of arrears.
At the time of the earlier hearing on the 19th and 23 February, 1996 the husband stated in evidence that he was unemployed and in receipt of social welfare payments of £49 per week. This is reflected in his affidavit of means. However, he claimed that he was actively seeking employment. By the final day of hearing on 12 March, 1996 the husband had been re-employed by his former employers in an office rather than a sale job. His basic salary for this work is £15,000 per annum gross, and he stated that he does not receive commission as he did in his sales job. Evidence of his earnings was somewhat sparse as he was in the very early stages of employment, but on the pay slips handed into court, it appears that his net take home pay will be in or about £210 per week. His income tax position is not yet fully clarified.
He is living in rented accommodation which he shares with his cohabitee. His share of the rent as set out in his Affidavit of Means is £40 per week. His cohabitee works part-time. In oral evidence on 12 March, he gave a list of outgoings which, excluding rent, amounted to about £120 per week. This did not include items such as clothing, entertainment, holidays, medical expenses, etc. but did include £35 per week for cigarettes.
The wife receives a Lone Parents Allowance of £77.70 per week together with a rent allowance of £50 per week and Children's Allowance of approximately £12.46 per week making a total of £140.16 per week. She also receives some unquantified voluntary contributions from the father of her child D. Her outgoings are given in her Affidavit of Means as £846.50 per month or £195.35 per week. In her oral evidence she spoke of making payments to the local authority in connection with the former family home in Clondalkin...
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