The Gazette 1981

GAZETTE

DECE

BER

1981

Recent

Irish

Cases

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

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

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

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