The Gazette 1981

GAZETTE

DECEMBER 1981

Condoning of adultery held to mean a co habiting subsequent to the discovery of the adultery. No condonation in this case. Connived at held to mean conduct on the part of the other Spouse consisting of a knowledge of the adultery and failure to make any remonstrance concerning it or to take any steps to try and persuade his partner from continuing with it. No evidence that the Defendant connived at the adultery of the Plaintiff. Wilful neglect or misconduct conduced to the adultery — the President had considerable doubt whether the facts suggested that there was a wilful neglect of the Plaintiff by the Defendant conducing to the adultery but he was satisfied as a matter of probability that wilful misconduct on the part of the Defendant had so done. The Defendant had commenced an adulterous relationship with the person with whom he is presently living in what could be described as a flagrant and public fashion circulating amongst what had been mutual friends of the parties. An Order was made for £20 per week maintenance to the Plaintiff having regard (a) to the earning capacity of the Defendant, (b) to the wants of the Plaintiff including the anticipated necessity to rent accommodation, (c) to the earning capacity of the Plaintiff and (d) to the interest to which the Plaintiff is entitled in the Family Home. L. v. L. - High Court per Finlay P. 2 I December 1979 — unreported. PLANNING ACTS Local Government (Planning & Development) Act 1976 — Order sought to prohibit the continuance of unauthorised use of premises zoned as residential for office purposes — No guarantee of protection for successor in title. The Respondent and his wife purchased a two storey over basement terraced house on Rathgar Road Dublin in 1972. The area was zoned exclusively for residential purposes. Immediately after purchasing the premises the respondent commenced to practice in the basement of the premises as a

intimated that proceedings would be taken for rccovcry of possession. The Court rejected the submission that the Plaintiffs contribution from the date of her marriage to the purchase of the house should be taken into account as both parties incomc was spent on their lifestyle rather than invested in property or saved. Held per Finlay P.: The home consists of an equity of redemption after the discharge of the two mortgage sums. The parties are entitled in law to beneficial ownership of the equity of redemption in the premises in proportion to the contributions made from the time of the purchase to when the parties ceased to repay the mortgage themselves i.e. the date when the second mortgage was used to pay the first mortgage repayments. To do this one has to ascertain (a) the gross earnings of the Plaintiff and the Defendant and (b) what percentage of gross earnings were contributed to the joint family fund out of which the mortgage repayments were met? Having made adjustments between what was earned and what was contributed to the joint fund by the parties Finlay P. found that the Plaintiff contributed 35% and made a Declaration accordingly. Maintenance: Evidence was given of adulterous relationships by both parties. The Plaintiff is not maintained by the person with whom she has a relationship. She works as a secretary earning £55 per week while the Defendant on a short-term contract earns £600 per month and £300 allowances per month from which he receives no profit. The Defendant pleaded adultery by the Plaintiff. l/t'ld per Finlay P.: Section 5 Sub- Section 3 of the Family Law (Maintenance of Spouses and Children) Act 1976 applicable. If the Court is satisfied that the Spouse against whom maintenance is claimed has condoned or connived at or by wilful neglect or misconduct conduccd to the adultery then it has no discretion and must order maintenance provided the other conditions in the Act of 1976 with regards to maintenance are fulfilled. If the Court is not so satisfied it has a discretion which it may exercise having regard to all the circumstances including the financial circumstances of the applicant.

Guarantee. The Plaintiffs relied on a letter dated the 31 December 1976 from the Company to the Plaintiff which read in part "as you arc aware this Company has guaranteed the borrowings from the Corporation of Mr. Furscy Quinn. Please let us have details in confidence, of the guaranteed borrowings in relation to the amount outstanding including interest, the amount and timing of repayments made and interest paid to date" The Court held that the Plaintiff had not actcd on the representation contained in the letter, if representation it were, and thereby altered their position to their prejudice and further held that the mere fact that the Company had sent its Memorandum and Articles to the Plaintiff could not be said to constitute a representation by the Company. Northern Bank Finance Corporation Limited v. Bernard Fursey Quinn and Achates Investment Company - High Court (Kcane J.) —Unreported - November 1979. FAMILY LAW Application under Married Women's Status Act 1957 and Family Law (Maintenance of Spouses & Children) Act, 1976. The Plaintiff and the Defendant were married in 1971 and had no children. They lived firstly in rented aecoinmodation for two years then l hev purchased a house in the husband's (Defendant's) name by raising a mortgage and obtaining a hank loan guaranteed by the Plaintiffs father. The Plaintiff worked until 1976 and thereafter the Defendant discharged the mortgage repayments luii not the bank loan; in 1977 the Defendant had little income but in 1978 had lucrative employment, but in I 979 his incomc dropped again. A second mortgage was raised with the consent of the Plaintiff which was used to pay the first mortgage repayments from 1976 to 1978 but thereafter no mortgage repayments were made and at the time of the hearing the Building Society

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