S -v- S
Neutral citation: (2010) IEHC 474.
High Court
Judgment was delivered on December 7th, 2010, by Mr Justice Henry Abbott.
Judgment
Judicial separation was granted on the ground of the husband’s adultery, but no penalising consequences were attached to his adulterous relationship and orders for proper provision, custody and access were made.
Background
The couple were married in 1995 and have two dependent children. The first matter to be decided was the entitlement of the applicant wife to an order for judicial separation.
While there were difficulties in the marriage, the husband’s dissatisfaction was not communicated to the wife so as to indicate he was withdrawing his consent to the marriage. The husband had a relationship with another woman and at the time of the initiation of the proceedings had set up home with her.
Mr Justice Abbott said it was the settled policy of the courts to grant a decree of judicial separation on the grounds that there existed no normal marital relationship for one year prior to the commencement of the proceedings, rather than the ground of adultery where it occurred, but in this case the lack of consent of the husband to the continuation of the marriage only manifested itself in the affair, which began within a year of the proceedings.
Therefore the court must rely on adultery as a basis for the decree, subject to proper provision being made for the wife and children.
Mr Justice Abbott added: “I find that in this post-divorce age, it is not appropriate for a court to penalise either party for adultery and in this case it would be unjust on the husband to have any penalising consequences attached to his adulterous relationship.”
Decisions on provision
The husband was director of a company which traded in stock in trade/inventory. The family also owned apartments and an industrial site, all encumbered with loans.
The family home was valued at €850,000, with a mortgage of €400,000. Apart from the husband’s pension and insurance policy, the equity owned by each of the parties was in the region of €150,000.
The husband considered the five-bedroom family home should be sold to enable the wife to buy a smaller home, mortgage-free. However, the court was of the view that the wife needed to stay in the family home for her health and wellbeing and in the interest of the children. To her credit, the wife had taken in students to generate income, which amounted to €300 a week. The contribution of both parties to the family, which included the wife working until their daughter was two, should be regarded as equal.
Under the statutory requirement to consider the conduct of the parties, Mr Justice Abbott said that the conduct of the husband during the early stages of the proceedings involving his poor record of paying maintenance required robust management by the court.
This meant the court should have regard to the “form” of the husband in this regard and the consequent desire of the wife to have the house in her sole name.
The accommodation needs of the wife and children were catered for in the family home. The husband lived in a two-bedroom apartment with his new partner and the children stayed in one room when they stayed with him. He needed to consider an apartment or house with two separate bedrooms for the children within the next two years. It may be possible for the wife to buy out his share of the house, which would provide him with equity with which to obtain such accommodation.
He ordered the husband to pay €400 maintenance a month for each child and €50,000 a year for the wife, out of which she would pay the mortgage, VHI and house insurance. Half of his life insurance and pension would be payable to the wife and her succession rights were to be maintained for 12 years. She would retire from all directorships in the business.
The home would remain in joint names and be sold when the younger child ceased education or reached age 23, unless the wife bought out her husband’s interest in the meantime. They would continue to jointly own the commercial properties. If the wife returned to work, maintenance would continue for two years.
The full judgment is on courts.ie
Bronagh O’Hanlon SC and Ken Connolly, instructed by Martin Crilly Co , Carrickmacross, Co Monaghan, for the plaintiff; Dervla Browne SC and Des Quinn, instructed by Mason Hayes Curran, Dublin, for the respondent