The Gazette 1977

GAZETTE

JULY

adulterous liaison contributed to the collapse of the marriage. In the light of the decision given in the following case that is to be discussed this difference it seems is of some importance. In M3.0.'S v P.O.O.'S (1974) the moral welfare of the children was again considered. Here the husband P. left his wife B. and with her agreement kept their three young children in his custody. They lived for a year and a half with the husband's married sister and then for a half a year with his mother and finally came to Dublin to live in a large house with the husband and a woman with whom he was by that stage living with and who had assumed his name by deed poll. A year later the wife instituted proceedings to obtain custody of the children, intending to live with them in her parents house in Cobh. Kenny, J. in the High Court held the intellectual, physical and social welfare of the children would best be served by the father obtaining custody, but that having regard to his obligation to follow JJ. W. v. BM.W., he had no doubt whatever that he should award the custody of the three children to the wife. He stated "The moral welfare of the children would not be promoted by the fact that their father is with a lady to whom he is not married and by whom he has had one child. As the children grow up they will be taught the virtues of chastity and the importance of marriage and they will be living in a household where each of them will be aware that the lady with whom their father is living is not his wife" On appeal the Supreme Court, by a majority decision, held that the father should obtain custody. It was stated that there was no principle in JJ.W. v. BM.W. which Kenny, J. was obliged to follow. The majority referred to the dangers of again uprooting the children, and to the fact that all aspects of their welfare, including their religious welfare were being properly attended to. Griffin, J. stated that "in my view the moral dangers to the children do not outweigh the other advantages to them in living with their father." The majority emphasised the fact that the father's relationship with the second Mrs. O'S. had all the appearances of being a permanent union and that as such the children would have to come to terms with it. Henchy, J. stated "that beyond the mere fact that the father and the step-mother are living together in an unmarried state, there is nothing in the evidence to suggest that the children do not live in a healthy moral atmosphere" Both Henchy, J. and Griffin, J. stated that regardless of the parent in whose custody the O'S. children were placed, the fact that their father was living in adultery was a fact of life with which the children would have to come to terms with. Delivering a dissenting Judgment Walsh, J. stated that "The Constitution recognizes the Family as the natural primary and fundamental unit group of society: this is the keystone of the social structure which the Constitution undertakes to maintain. The household in which these children now reside with their father is not a family in that sense . . . these three children would in my view be far more of a family unit if they lived with their mother instead of residing with their father in the mixed menage in which they now find themselves." In EJC. v. M.K. (1974) a similar problem gave rise to a further Supreme Court decision. In an appeal from a decision of the High Court, by which the parties children,

and lived with his parents but as his parents were elderly the three children were too much for them, and, as a result, the two eldest were placed in a school run by nuns of the Poor Clare Order. They were visited at weekends by their father and spent their holidays with him and their grandparents. Adulterous wife not suitable to have custody of children The wife commenced divorce proceedings in England but the English Courts decided that the custody of the children was a matter to be decided by the Irish Courts. Kenny, J. in the High Court decided that the religious, moral and intellectual welfare of the children would be better promoted by leaving them with the father. They would get a good secular and religious education in Ireland. They had been in school in Dublin for two years and it was not in their interests to be moved from school to school. Also, he stated "They will not have the corrupting example of their mother living with a man, to whom she is not married;; However, he continued, these were not the only considerations. "In my view the ages of the children, their sex, the certainty that they would be happier if they were living at home, rather than in a school and the necessity that they should grow up together... makes it so desirable that they should be with their mother that these elements should be held to outweigh the arguments based upon the moral, religious and intellectual aspects." As a consequence he awarded custody of the children to the mother. Upon appeal, the Supreme Court reversed Kenny, J.'s decision and granted custody of all three to the father. His conclusions as to the religious moral and intellectual welfare of the children were accepted. Walsh J. stated that the fact that the father was compelled by circumstances to keep two of the children in a boarding school for the greater part of the year, and was therefore unable to let them all grow up together in one household, whereas the mother could do so, was not such a decisive factor as should give the mother custody. "As matters stand at the moment the children are leading a stable existence . . . the present position of their mother offers no such stability, and there is nothing to suggest that in the immediate future any such stability will be available" Fitzgerald, C. J. stated "The fact is that the home which she has to offer to her children is one in which she continues an adulterous situation with a man who has deserted his own wife and his own two children. A more unhealthier abode for the three children would be difficult to imagine" The fact that by this time Mr. L. had divorced his wife and that Mrs. W. had obtained a Decree nisi for divorce in the English Courts against her husband was held not to in any way change the situation. He stated that even if Mrs. W. entered into marriage with L. "her status in relation to her own children would not appear to me to be thereby in any way advanced". A factual difference worth pointing out at this stage between M. O'B v PM.O'B andJJ.W. v. BM.W. was that in the former case the parties adulterous relationship did not commence until five years after the husband and wife had separated, whilst in the latter it seems that the 106