Ross v Ross

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 24 February 1908
• Court: King's Bench Division (Ireland)
• Date: 24 February 1908

Ross

and

Ross (1).

K. B. Div. Matrimonial.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1908.

Separation deed — Divorce a mensâ et thoro — Covenant not to sue for greater allowance — Subsequent adultery — Dissolution of marriage and decree for judicial separation — Power of Court — Jurisdiction.

Held, that his subsequent adultery did not deprive him of the right to have the restraining provisions of the deed enforced.

By deed of separation dated December 16th, 1902, made between John Ross (the husband), and Mary Ross (the wife), after reciting (amongst other things) that the wife was to accept certain specified chattels and a sum of £100 in full discharge of all claims of any kind which she might then or thereafter have against her husband for maintenance or support, or otherwise, during her life, there was the following covenant:— “That the said Mary Ross shall not at any time thereafter molest or disturb the said John Ross, or incite any person on her behalf to do so, and shall not, by taking out any citation or process, or by instituting any action, or in any other manner, or by any other means whatsoever, compel the said John Ross to allow her any further alimony or maintenance, support, clothing, or lodging, other than the said sum of £100, and the said goods, chattels, or effects, nor in any way whatever to provide for her.”

The payment of the sum of £100 to the wife, and the receipt by her of the chattels, &c., was admitted.

After the date of the deed of separation the husband lived openly in adultery with the woman in reference to whom a decree of divorce a mensâ et thoro was subsequently pronounced against him. Subsequently the adulterous intercourse was continued. It was stated on affidavit made by the wife that she was without means of her own, and that she was being supported by an adopted daughter and her adopted daughter's husband.

The separation deed of 1902 did not contain any clause that it was to remain operative only so long as the husband did not commit adultery. On February 1st, 1907, the wife presented a petition for divorce a mensâ et thoro against the husband on the ground of his having committed adultery during the years 1903-1907, and on June 27th, 1907, a decree for divorce a mensâ et thoro was pronounced.

The wife applied for permanent alimony as from the 27th of June, 1907, the date of...