The Gazette 1981

GAZETTE

DECE M BER

1981

Recent Irish Cases

she was pregnant, the husband's behaviour deteriorated and con- tinued so, even after the child was born in November 1978. The wife left the matrimonial home for the first time after Christmas 1978 but returned in April 1979 after a recon- ciliation with the husband. After a temporary improvement, matters reverted to their previous unhappy state and eventually on 29 July 1979 the wife left with the child for the final time and went to live with her mother. Held (per Barrington J.): 1. On the issue of custody of the child, that the child was well cared for by the wife at the wife's parents' home and it was right and appropriate that she should remain there, subject to suitable access to the child by the husband; and that the husband should also pay an appropriate sum to the wife for the main- tenance of the child. 2. On the issue of maintenance of the wife, that although the husband maintained that as his wife had deserted him he should not be obliged to maintain her, this issue depended on whether or not she had just cause for leaving him; and that the Court was satisfied that she had just cause and that therefore the husband should pay her appro- priate maintenance. 3. On the issue of the claim relating to the family home, that such rights (if any) of the wife under the Family Home Protection Act, 1976, were unaffected by this action; that the wife had conceded that she had no claim to an interest in the home repre- sented by the cash raised by her husband which was three-fifths and that her claim was confined to the beneficial interest in an undivided two-fifths of the home, the purchase of which was financed by the County Council mortgage. The Court in reviewing the basis of the decision on this issue stated that the claim was brought under Section 12 of the Married Women's Status Act, 1957, which provided the mach- inery for determining any question arising between husband and wife as to title to or possession of any property. It did not confer on the Court any jurisdiction to divide

property between husband and wife in a way considered equitable by the Court, but it merely had jurisdiction to determine in whom the title to the property resided. The Court cited the case of C. v. C. [19761 I .R. 254 (per Kenny J.) where it was held (inter alia) that the most useful and correct approach was to apply a concept of trust to the legal relationship which arose when a wife made payments toward the purchase of a house or the repay- ment of a mortgage instalment when the house was in the sole name of the husband; and that when this was done he became a trustee for her of a share in the house and the size of the share depended on the contribution which she had made towards the purchase or repayment of the mortgage. The Court also cited R.v.R. (High Court, per McMahon J.; 12 January 1979, unreported) where, in devel- oping the principle in C. v. C. it was held that there should be no distinc- tion between money paid by the wife on providing food and other requi- sites for the home and money paid by the wife for necessaries for herself; and that both kinds of expense came within the principles set out in C. v. C. , namely that the wife's contri- bution which would give her a claim to a beneficial interest in the family home might take the form of paying expenses so that the husband had money which made it possible for him to pay the mortgage instal- ments; as in either case there was a saving to the husband and if it enabled him pro tanto to meet the mortgage repayments then the wife should be regarded as contributing to the repayments. In the instant case Barrington J. stated that the present case was not quite on all fours with C. v. C. and R. v. R. He was satisfied that the wife had made a substantial contribution to the setting-up of the family home but no direct contribution towards the repayment of the mortgage; and that the effect of the indirect contribution on reducing the capital sum out- standing must have been minimal. He was satisfied on the evidence produced that the wife had borne the main financial burden in running the house and that with her own money she had purchased a stated list of items for the house. He stated that certain items purchased by a mar- riage partner might remain personal to

FAMILY LAW Custody of infant— Maintenance of infant and wife — Determination of wife's claim to a beneficial interest in the matrimonial home — Married Women's Status Act, 1957, Section 12. The wife (Plaintiff) and the husband (Defendant) were married in June 1977. They purchased a house in Co. Wicklow for £11,250 with the aid of a County Council mortgage of £4,500, the balance being raised by the husband from his own resources or from his family. The house was put in the husband's name. The husband was employed by his father at a weekly wage of £35 later raised to £50. Later he became self- employed and earned approx £65 per week. The wife was employed in the Civil Service at a wage of £43 which was later reduced to £32 to meet income tax liabilities on the joint income. Unhappy differences arose between the parties and the wife eventually left the family home with the child in July 1979. The proceed- ings were issued by the wife seeking: (a) Custody of the infant female child; (b) Maintenance for herself and the child; (c) An Order pursuant to Section 12, Married Women's Status Act, 1957, determining her interest in the family home; (d) An Order under the same Section determining her interest in certain chattels. As there was a conflict of evidence before the Court, Barrington J. accepted the wife as the more reli- able witness. The evidence was that the husband's drinking habits inter- fered with the marriage. When the wife discovered in Spring 1978 that

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