High Court of Ireland Decisions

Judgment Title: K. -v- K.

Neutral Citation: [2010] IEHC 416


High Court Record Number: 2010 14 CAF

Date of Delivery: 07/20/2010

Court: High Court

1. The applicant and the respondent were lawfully married to each other on 15th day of March, 1976. There were three children of the marriage all of whom are now adults. The picture which emerged from these proceedings was an extremely sad one. The applicant was represented by a solicitor and counsel. The respondent, however, represented herself assisted by a “McKenzie friend” her son Jnr., who was appointed in the Circuit Court in 2008.

2. In 2003, Ms. J. K. initiated proceedings against P. K. For convenience Ms. K. will be referred to as “the wife” and Mr. K. as “the husband”.

3. On the 15th November, 2008, the Circuit Court made a number of orders in the wife’s proceedings. These orders were for:

(1) A degree of judicial separation pursuant to s. 3 of the Judicial Separation and Family Reform Act 1989, as amended by the Family Law Act 1995 on the grounds of s. 2 (i) of the 1989 Act;

(2) An order pursuant to s. 14 of the Act of 1995 extinguishing the Succession Act rights that either party might have had in the others estate whether by way of legal right or on intestacy under the Succession Act 1965; and excluding any right of the parties to apply to Court for provision out of the estate of the other on death pursuant to s. 15 of the 1995 Act, as amended.

(3) An order receiving the agreement made between the parties on 1st January, 2005 and making it a Rule of Court.

(4) A declaration that the applicant has no interest in the respondent’s pension as set out at para. 10 of the Agreement with liberty to apply for formal pension adjustment orders, if required.

5. Additionally, the consent provided that the husband was to transfer both his legal and beneficial interest in the tenancy of the family home; and to execute whatever forms were necessary to effect this surrender. This order was pursuant to s. 9 of the Act of 1995.

6. The consent order further provided that the husband should be excluded from the family home pursuant to s. 10 (1) (a) of the Act of 1995. The order also dispensed with the respondent’s consent to any future sale and/or disposition in any share of the family home. It was provided that there be a mutual renunciation of the parties’ rights under the Succession Act 1965. The wife waived any interest which she might have in the respondent’s personal pension account with the Bank of Ireland. She agreed to transfer into the respondent’s sole name, his protection or investment plan with the Bank of Ireland. She further waived any interest she might have had in the aforementioned protection or investment plan. The respondent husband was directed to pay the sum of €5,000 to the applicant. It was also agreed that the applicant and the respondent would retain responsibility for any debts and liabilities held in their sole names at the date of signature of the consent. It is not open to the Court to revise this consent order.

7. This appeal comes before the Court on foot of an order of his Honour Judge Nolan made on 24th day of March, 2010. This order was on foot of proceedings which had been then initiated by the husband, P. K., against J. K., (Circuit Court Record No. 02040/2007).

8. There, the Circuit Court granted a decree of divorce in respect of the marriage contracted between the parties. The court also made the following ancillary orders:

(i) An order pursuant to s. 18 (10) of the Family Law Divorce Act 1996 that neither party on the death of the other should be entitled to apply for an order under that section for provision out of the other party’s estate.

(ii) The court also ordered that the applicant husband pay to the respondent the sum of €25 per week in respect of maintenance, the first payment to take place on Friday, 2nd April, 2010 and weekly thereafter.

The real issue before the Court on this appeal is maintenance. There is no opposition to the order made for divorce.

10. It has been put to Mr. K. that his conduct towards his wife and young family was particularly reprehensible in light of the fact that he left the family home at a time of particular vulnerability and when the children were very young, one of them having been born only weeks before. I do not think this reflects well on Mr. K. The husband was lengthily cross-examined on this issue in this appeal. As I indicated, I did not consider that many of these past issues were immediately relevant to the question which this Court had to decide.

11. It was not in dispute that this Court should uphold the order of the Circuit Court insofar as concerned the grant of divorce. Accordingly, I will therefore uphold the order of the Circuit Court on this issue and grant an order dissolving the marriage between the parties in the terms provided for in the Circuit Court order.

12. The main issue necessary for this Court to determine was as to the means and assets of the parties and therefore the level of maintenance. Despite the apparent simplicity of this issue a very large number of affidavits were filed on behalf of the wife. These were eighteen in total. A lesser number, twelve, were filed on behalf of the husband. Almost every order made was appealed. I think the wife failed repeatedly to address herself to the real issue, that of maintenance. That issue, the only issue to be determined, is to be decided by reference to the means and assets of the parties.

13. The consideration of this case was made more difficult by a number of other extraneous factors. The first of these is as to the husband’s ill health. His occupation is as a taxi driver. He is not at present working. A medical report has been furnished indicating that he will be attending a neurosurgeon for a further report in a number of weeks. Thus, any order which is to be made with regard to maintenance of the wife should take effect only when the husband has returned to work.

14. A further factor complicating these proceedings was the fact that the wife declined to testify or give evidence. Instead her son, the “McKenzie friend”, testified, giving a narrative of a number of issues in response to questions which were put to him by his mother. Much of this evidence was hearsay. I make a similar comment in relation to much of the evidence of the parties’ daughter who was also called by the mother. The testimony which these two children gave with regard to the history of the marriage must have been derived in a significant degree from what their mother told them. While the husband was cross-examined rigorously by the wife; the wife declined herself to give evidence.

15. I indicated in the course of the proceeding that this situation gave rise to questions as to whether fair procedures could arise. I also specifically indicated to the wife that the weight of the testimony which was adduced on her side could be significantly affected by the fact that much of it was hearsay. This is of particular importance in light of the fact that the husband specifically testified that the wife, as well as receiving deserted wife’s benefit, was in receipt of other income from doing domestic work. The wife did not deny this under oath. Thus, in an issue of controversy in these areas the Court must proceed with considerable caution, particularly since the evidence which has been adduced comes from an indirect source on some issues.

16. The husband says that he is now living in a relationship with his new partner. He testified that he had no income other than from his job as a taxi driver. He had surgery a week and a half before this hearing. As the youngest child is now an adult and is no longer dependant it is clear that the wife is not entitled to further maintenance for her.

17. The actual evidence which I have before me indicates that while for the year ended 31st December, 2007, the husband’s turnover as a taxi driver was €39,100. The picture now is significantly worse. His turnover/income for the year ended 31st December, 2009, is €27,000. I have been provided with income tax computations prepared on behalf of the husband by A. D. Associates. These indicate that for the year ended 31st December, 2009, he had enjoyed a taxable income of €5,647. From this should be deducted a preliminary tax figure of €379 yielding an after tax income of €5,268.

18. The wife has sought to advance the case that the husband’s income is substantially greater on that front. It is suggested that he works longer hours or derives a more significant income from taxi driving. However, I have not been presented with any evidence which undermines these figures.

19. In the course of the case I offered the wife (because she is a lay litigant albeit assisted by a McKenzie friend) the facility of calling a witness from the Irish Taxi Federation or some other kindred body with a view to assisting the Court with regard to the husband’s income. However, this invitation was declined. The wife indicated at the end of the case that she was satisfied to proceed on the basis of the evidence which had been adduced. I do not consider that evidence which was adduced that the husband was working on any one particular night is sufficient to undermine the overall thrust of his testimony. No substantive challenge has been made to the accuracy of the accounts, nor was it suggested that the accounts did not reflect the totality of the husband’s income as a taxi driver in any real way.

20. Insofar as the husband’s assets are concerned his affidavit of means sworn on 20th November, 2009, disclosed the following:

(i) That his bank account has nil balance;

(ii) that he owns a Toyota Camry, 00 registration;

(iii) that at the time of swearing of the affidavit his net income was €16,400 net per annum;

(iv) that he owed G.E. money in the sum of €9,000 approximately and Mastercard €3,000 approximately;

(v) that his weekly expenses came to a total of €554;

(vi) that he held two Bank of Ireland policies. These were a Bank of Ireland Life Policy and a Bank of Ireland Pension Policy. (These were already dealt with in the course of the previous order of the Court.)

22. In simple terms, therefore, his outgoings are very significantly greater than his income.

23. I take into account that the husband is living with a partner and I can only conclude that some of the difference is made up by the pooling of their resources.

24. In the course of her affidavit of means the wife states that she owns a 1995 Nissan Pulsar car, purchased second-hand in 2002. She states she was in receipt of deserted wife’s benefit of €201.50, together with the maintenance payments previously of €100 per week from the applicant. Her stated outgoings are €296.50 per week. Thus the wife’s annual outgoings would appear to have been in the region of €15,392.

25. P. K., Jnr. is in full time education. He was, however, in a position to provide €1,000 in order to obtain a transcript of the first day of the hearing in the Circuit Court. The daughter, K. K., is living outside the home. She testified she does not make any financial contribution to her mother.

26. I am entirely conscious that what is stated in these affidavits may not reflect a full picture on either side. The husband works in a cash-intensive business. I must bear in mind that the husband testified directly that he saw the wife entering or emerging from a house in Templeogue where he stated she was carrying out domestic work. Her presence there was not otherwise explained at all. The wife did not enter into the witness box to deny this testimony or to give an explanation for her presence there. It was within her ability to do so. I consider I have no alternative but to take the direct evidence into account when it has not been fully or properly controverted by evidence from the wife.

27. Even taking into account the gross disproportion between outgoings and income there is one factor which is noteworthy about the husband’s situation. It is that he is continuing to pay the sum of €75 per week on foot of his Bank of Ireland life policy.

28. I must take into account that he is now residing in a relatively more comfortable house than the former family home. I accept that D. is an area where there have been significant social difficulties and that too is a factor which I must take into account.

29. The most controversial area was as to whether the husband had another source of income. Prior to taking up work as a taxi driver the husband operated as a milk distributor with G. D., working as a milk distributor operates on the basis of advance credit. The husband indicated that he fell into difficulty working in this way. G. laid down specific credit terms. His evidence was that he found himself in a situation where, ultimately, as of 2nd September, 2003, he owed G. the sum of €18,903.70.

30. In a letter of 12th May, 2003, the Credit Manager of G. C. F. stated that the husband’s “weekly terms” were €2,700. He had exceeded his account by €10,100. This letter also states that J. K., Jnr. took over the account at that point. In this context I offered the opportunity to the wife to have in Court any witness from G. D. However, this opportunity was declined. The letters in any case reflect the direct testimony of the husband which was tested in cross-examination. I accept this direct evidence of the husband as supported by the supporting correspondence. There is no alternative evidence on this point. I conclude J. K. Jnr. took over the milk distributorship in September 2003.

31. The true issue in the case is not whether J. K., Jnr. actually took over the G. distributorship, but whether the husband still owns it, or has a share in it. The wife’s belief would appear to be that the husband still retains an interest in it based on the fact that the he still carries out some collection work for his son, J. K., Junior.

32. The system is that the monies which the husband collects on his son’s behalf from factories are paid into his bank account and thereafter transferred to the son’s account. It was understandable that the wife would have had suspicions on this issue. For that reason I insisted that J. K., Jnr. be called to give evidence and to testify on the entire question.

33. I found J. K., Jnr. an entirely credible witness. He gave evidence frankly on every issue. He was forthright in his responses. He was not found to be inaccurate on any matter. He testified that when he took over the distributorship from his father he found the position very difficult at the outset. He appears to have lived off an extremely meagre income at the beginning and to have substantially paid off the debt which was incurred by the father.

34. He has built up the milk distributorship so that it now has a substantial turnover, perhaps in the region of €200,000. He made substantial incursions into the debt his father incurred. He now operates on his own account. I do not consider that there was any credible evidence indicating that the husband maintains an ongoing interest in the milk round.

35. I should add that the wife, and her son and daughter appear to have engaged in extremely unusual activities in relation to Mr. J. K., Jnr. They appear to have followed him when he was carrying out his work and blocked his van. They also appear to have attended outside his house early in the morning. I consider these actions to have been reprehensible and unfortunate.

36. I also heard evidence from Ms. K. K., the parties’ daughter but I do not think that her evidence is of assistance on the issues which are before me.

37. The evidence of Ms. G. O’R., a partner of Mr. R. K., as to the income which could be derived from taxi driving was I find, generally credible. However she gave up taxi driving some two years ago.

38. In fact there is little significant distinction between her evidence as to her own income as a taxi driver up to the time of her cessation, and the evidence adduced by the applicant husband who indicated that he was turning over some €39,000 in the year ended December 2007.

39. I should finally comment on a number of aspects of the evidence which made the task more difficult. It is clear that there is a most unfortunate rift in this family. This chasm is such that there is apparently little or no communication between the children who are allied to the wife; and the son, J. who is allied to the husband. It is not my function to moralise on these questions. However I can only state that the extent of the bitterness tended to be reflected to a degree in the reliability of the evidence. I do not think that the hearsay evidence which has been adduced in this case was of any real assistance.

40. I am unable to reach a conclusion as to whether the husband helped P. K., Jnr. in his education. There is a conflict of evidence on this issue between his own testimony, that of his brother J., and his father.

41. I am not persuaded that the husband has other “hidden assets”. No order should be made by this Court in relation to the earlier matters which have already been disposed of by consent in the Circuit Court. I am not persuaded that the husband has any share or interest in the milk distributorship. Thus the only question which arises properly is that of maintenance.

42. In the course of proceedings I have been referred by the wife to a substantial number of authorities. These include McA. v. McA. [2000] 1 IR 457; White v. White [2001] 1 AC 596; T. v. T. [2002] IESC 68; R.G. v. C.G. [2005] 2 I.R. 418. Clearly the authorities in relation to maintenance are relevant, and I apply the principles which are identified particularly that in T.v.T. Thus in particular I have regard to the issues which are identified as s. 16 (2) of the 1995 Act. These are:

(a) The income earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future. (This has been dealt with in the course of the judgment.)

(b) The financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future whether in the case of remarriage or otherwise. (This, too, has been dealt with in the course of the judgment.)

(c) The standard of living enjoyed by the families before the proceedings were instituted or before the spouses separated as the case may be. (It cannot be said that the standard of living that the parties enjoyed was in any way luxurious, or even comfortable. I have the strong impression that the wife and the children had a difficult time and have effectively lived at near subsistence level. The fact that the children have done so well must be seen as considerable achievement on the part of the wife as a mother.)

(d) The age of each of the spouses and the length of time during which they lived together. (The spouses are now in their late fifties or early sixties. They separated in the early 1980s. They were reunited in 1985. They ultimately separated in or about 1992.)

(e) Any physical or mental disability of either of the spouses. This does not arise.

(f) The contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family.

I do not think the Court can simply ignore the real contribution which the wife made to the upbringing of the family and to the maintenance of the home in times and in circumstances which must only have given rise to great difficulty, and now, great bitterness. I do not think the Court can ignore either the conduct of the husband. It was, ultimately, the wife who appears to have made the main contribution to the upbringing of the children. I do, however, take into account also, the manner in which this case was conducted. To a large extent the wife was her own worst enemy. Her case was not assisted by the misconceived conduct of the case. Cases are decided on evidence not questions in cross-examination. Evidence is weighed by reference to reliable witnesses who can give evidence on the relevant issues viz. income. As a matter of principle a McKenzie friend should be a person who should be detached, objective and of real assistance to a party. The era of matrimonial proceedings as a vendetta or a war of attrition are fortunately, long gone.

(g) The effect on the earning capacity of each of the spouses as the marital responsibilities assumed by them during the period when they lived together and in particular the degree to which the future earning capacity of a spouse was impaired by reason of that spouse having relinquished or forgone the opportunity of remunerative activity in order to look after the home or care for the family.

This is a matter to which I have adverted earlier. It must however be seen in the light of the evidence as to the income of the parties.

(h) Any income or benefits to which either of the spouses is entitled by or under statute. This has been dealt with in the course of the judgment. I am particularly having regard to the fact that the wife, on an ongoing basis can receive the deserted wife’s benefit.

(i) The conduct of each of the spouses if that conduct is such that in the opinion of the Court it would in all the circumstances of the case be unjust to disregard it.

This has already been dealt with earlier.

(j) The accommodation needs of either of the spouses.

This has been dealt with earlier.

(k) The value to each of the spouses of any benefit, for example, a benefit under a pension scheme which by reason of the decree of judicial separation concerned that spouse will forfeit the opportunity of acquiring.

That factor does not presently arise.

(l) The rights of any person other than the spouses but including a person to whom either spouse is remarried.

This does not arise on the evidence.

44. In my view the husband is now in a situation where he is living in a relatively comfortable house and in receipt of an income. I take into account that his income of a taxi driver will increase as his health improves. He is still paying money into his Bank of Ireland life policy to the extent of €75 per week. Unavoidably, even if indirectly, he must benefit from living with his partner who enjoys a secure job and income working in a taxi company. However, at the moment, he faces a significant disability.

45. It is questionable whether there can be any meaningful order until Mr. K. has returned to work, when it should be possible to establish his work times by clear cogent independent evidence. I will fix maintenance at €50 per week to commence when it is certified Mr. K. is fit to return to work. I will adjourn the matter to the last day of term by which time I will expect a full up-to-date medical report indicating when the husband is fit to recommence work.