M.McA. (applicant) v X.McA. (respondent).

Family Law - Divorce - Definition of "living apart from one another" - Financial provisions - Judicial Separation and Family Law Reform Act 1989 - Family Law (Divorce) Act 1996.

The High Court (before Mr Justice McCracken); judgment delivered 21 January 2000.

In the case of parties who were living in the same household and one party was claiming an entitlement to a divorce it was for the court to decide whether such an entitlement arose. This would involve the court making a decision as whether the parties were in effect "living apart from one another" for the purpose of the Family Law (Divorce) Act 1996. The High Court so held in determining that the parties had in effect lived apart from one another for the requisite number of years and thus a decree of divorce would issue.

Frank Clarke SC and Mary O'Toole BL for the applicant; John McMenamin SC and Paul McCarthy BL for the respondent.

Mr Justice McCracken outlined the facts of the case. The applicant and respondent had married in 1968 and had two children, neither of whom were now dependants. In or around 1988 the respondent left home as his wife discovered that he had been conducting an extra-marital affair. In 1991 the respondent returned home. This, the respondent claimed, was done in order to develop a better relationship with his children. The applicant claimed that she did not in fact believe at that stage that the marriage was over and was glad to have him back. Mr Justice McCracken accepted that at the time the parties may have had different expectations in relation to the marriage. Mr Justice McCracken however did accept that although the couple conducted a civilised and polite relationship, sexual relations did not resume and the couple slept in separate bedrooms. At this time the respondent's business began to develop rapidly and the applicant continued to be involved in the running of the business. Mr Justice McCracken accepted evidence that in 1995 the applicant became involved in a relationship and in 1996 the respondent also became involved in a relationship. In 1997 the respondent left the family home.

Mr Justice McCracken said that it fell to be determined by the court whether the parties could be said to have been living apart despite the fact that they had been living in the same household. For assistance he was prepared to look at the jurisprudence from English authorities. This approach was slightly complicated due to the fact that the corresponding UK statutory provision (Divorce Reform Act 1969, section 5) stated that "a husband and wife shall be treated as living apart unless they are living in the same household". In the English decision of Mouncer v Mouncer [1972] 1 WLR 321, it was held that a couple who had lived together for the sake of their children could not be said to have been living apart. However arising from the decisions of Santos v Santos [1972] 2 ALL ER 246 and that of Bartram v Bartram [1949] 2 All ER 270, Mr Justice McCracken was of the opinion that something more than the mere physical location of the parties falls to be considered and that the intention of the parties must also be a relevant factor. Mr Justice McCracken was however unwilling to accept as a general proposition the argument that once parties start to live apart they continue to do so even if the parties resume living under the same roof as long as no true reconciliation is effected. Mr Justice McCracken was of the view that the provisions in the Family Law (Divorce) Act 1996 requiring that the parties must have lived apart for four years during the previous five years was enacted partly to allow for the possibility of reconciliation.

Mr Justice McCracken was however of the view that the matrimonial relationship cannot be dictated purely by reference to the location of the parties involved or by whether the spouses lived under the one roof. One must also consider the mental and intellectual attitude of the parties involved. Turning to the present case Mr Justice McCracken recognised that there was some conflict by the parties in relation to the extent of the marriage relationship between 1991 and 1997. That said, despite what the applicant may have felt, he was willing to accept that from the time the respondent had first left the family home in 1988 he considered the marriage to be at an end. This attitude had not changed on his return to the family home in 1991. Marriage involved mutuality and this had been lacking on the part of the respondent. In addition the applicant had herself formed a relationship in 1995 and this was also evidence of her mental attitude towards the marriage. Accordingly, taking into account the mental and intellectual attitudes of the parties, Mr Justice McCracken was satisfied that the conditions necessary for the granting of a divorce pursuant to section 5 of the Family Law (Divorce) Act 1996 had been met and the decree of divorce would issue.

Mr Justice McCracken also made a number of orders in relation to the financial aspects of the case of which there had been much agreement between the parties. The judge held that the applicant was entitled to the family home, an apartment in Spain and a property in Dublin. The applicant was also entitled to the full interest in a shop premises which she had been managing for many years. Mr Justice McCracken also put a value of £1.2 million on the 15 per cent shareholding the applicant held in the respondent's business and made an order to this effect. In addition Mr Justice McCracken also made orders relating to the payment of lump sums, periodical payments and also other ancillary orders arising out of the provisions of the Family Law (Divorce) Act 1996.

Solicitors: Gallagher Shatter & Company (Dublin) for the applicant; McCann Fitzgerald (Dublin) for the respondent.