Supreme Court

P O'D v A O'D 

18 December 1997 

KEANE J (Lynch and Barron JJ concurring): 

This is a consultative Case Stated by Circuit Court Judge McGuinness (as she then was) which raises a net but important point of law. 

The relevant facts are not in dispute and can be shortly summarised. The Applicant (hereafter 'the husband') and the Respondent (hereafter 'the wife') were married in 1961 and have two children, both of whom have reached their majority. The family home, which is in a Dublin suburb, is in the sole name of the wife. The husband is retired and in receipt of a pension and the wife is a telephonist. The wife continues to reside in the family home. 

Unhappy differences arose between the husband and the wife and it is agreed that these were due, in the main, to the fact that the husband was suffering from alcoholism. As a result of his illness, the husband lost his job and incurred a number of debts. In 1969, after he had spent some time in hospital and on the advice of a psychiatrist, the husband decided that the family home should be transferred into the sole name of the wife in trust in order to give him time to pay off his creditors. 

On 16 January 1979 the husband and the wife entered into a separation deed (hereafter 'the separation agreement'). It will be necessary to refer to some of the provisions of the separation agreement in more detail at a later stage: for the moment, it is sufficient to note that, without prejudice to the proprietary interest in the family home, the husband and the wife acknowledged that, up to 26 April 1969, when the family home was transferred into the wife's sole name, the husband paid the mortgage repayments but thereafter all the mortgage repayments were paid by the wife. 

In 1986, the Applicant issued proceedings under s 12 of the Married Women's Status Act 1957 claiming a beneficial interest in the family home. The application having come before the High Court by way of appeal, the wife was declared to be the sole beneficial owner of the family home. 

After that application had been determined, the wife, who is not being maintained in any way by the husband, encountered financial difficulties. She tried to raise a mortgage with a building society, using the family home as security, but the husband refused the consent which was required under the Family Home Protection Act 1976. The wife, accordingly, instituted proceedings under s4 of that Act for an order dispensing with his consent, which was granted by the Circuit Court on 22 February 1988. The wife claims that she has incurred substantial legal expenses over the years due to the litigation she has been involved in relating to the family home. She also claims that this litigation has been brought about by the attitude of the husband. 

In the present proceedings, which were instituted in the Circuit Court, the husband claimed inter alia: 
  
(1) An order pursuant to the provisions of s 2(1)(d), 2(1)(e) or 2(1)(f) of the Judicial Separation and Family Law Reform Act 1989 [hereafter 'the 1989 Act] for a decree of judicial separation; 
  
(2)(a) An order pursuant to the provisions of s 15 of [the 1989 Act] providing for such transfer of such portion of the family home as to this honourable court shall seem proper; 
  
(b) An order pursuant to s 14 of the [1989 Act] awarding the [husband] a lump sum as to this honourable court shall seem fit and meet; 
  
(c) In the alternative, an order, if necessary pursuant to the provisions of s 16(b) of the [1989 Act] for the sale of the family home subject to such conditions as to this honourable court shall seem proper; 
  
(d) An order pursuant to the provisions of s 17 of the [1989 Act] extinguishing the share of [the wife] in the estate of [the husband] as a legal right or on intestacy under the Succession Act 1965 or otherwise; 
  
(e) An order, if necessary, pursuant to the provisions of s 18 of the [1989 Act] providing for the sale of such property as to this honourable court may seem just and equitable to give effect to the orders pursuant to s 14 of the [1989 Act] . . . 

The wife, having entered an appearance to the proceedings, brought a preliminary motion seeking an order that the husband's application for judicial separation should be dismissed, on the grounds 
  
(a) that the husband is estopped from bringing the proceedings or, alternatively, that they are res judicata; 
  
(b) that the proceedings are vexatious and frivolous; 
  
(c) that the Circuit Court cannot grant a decree of judicial separation in circumstances in which the husband and the wife are already relieved of the duty to cohabit with each other and are no longer obliged to live together by reason of the separation agreement. 

The motion having come on for hearing before the learned Circuit Court judge, she delivered a written judgment on 24 October 1995. She concluded that the proceedings were not frivolous and vexatious. In relation to the other grounds, she pointed out that she had considered the same issue in an earlier case of N (C) v N (R) [1995]1 FLR 14, in which she had held that the existence of a separation agreement did not of itself bar a subsequent application for judicial separation under the 1989 Act. However, in view of the importance of the issues, she agreed, at the request of the solicitor for the wife, to state this Consultative Case for the opinion of this Court. 

The questions posed in the Case Stated are as follows: 
  
(1) Whether I was correct in holding that the [husband's] case for a property adjustment order was not res judicata since such orders under s 15 of [the 1989 Act] are based on other and wider considerations than an order pursuant to s 12 of the Married Women's Status Act 1957. 
  
(2) Whether I was correct in holding that I had jurisdiction to grant a decree of judicial separation where a deed of separation existed which relieved each of the duty to cohabit with the other and where the parties have lived apart since the conclusion of such agreement. 
  
(3) Whether I was correct in holding that there was no estoppel by reason of the said [separation agreement] to prevent this Court granting a decree of judicial separation pursuant to s 2 of [the 1989 Act). 
  
(4) Whether I was correct in holding that the [husband's] proceedings are not vexatious and frivolous. 

SUBMISSIONS OF THE PARTIES 

On behalf of the wife, Mr Alan Shatter, solicitor, submitted that, since the effect of clause 1 of the separation agreement was to relieve the parties of the matrimonial duty to cohabit, it followed that it was not open to the husband to issue proceedings seeking a decree of judicial separation and consequent ancillary relief. He cited dicta by Blayney and Denham JJ in F v F [1995] 2 IR 354 to the effect that the court could not entertain proceedings for a form of relief (ie a decree of judicial separation), not required by the moving party in order to enable him or her to obtain ancillary relief to which he or she would not otherwise be entitled. He also relied on dicta by McKenzie J in K v K [1988] IR 161 to the same effect, which, he said, had been approved by this Court in F v F 

Mr Shatter further submitted that the underlying policy of ss 5 and 6 of the 1989 Act was to encourage estranged spouses to resolve controversies between them without recourse to litigation. He said that, were the court to hold that a couple who had entered into a separation agreement and resolved all the outstanding financial disputes between them could have the agreement set aside in judicial separation proceedings, the public policy underlying the 1989 Act would be seriously undermined. He submitted that M(G) v N(R), which had been decided by Judge McGuinness prior to the decision of this Court in F v F, had been wrongly decided. 

Mr Shatter further submitted that the fact that s 20(3) of the Family Law (Divorce) Act 1996, which requires the court to have regard to the terms of any separation agreements still in force, had no counterpart in the 1989 Act was also significant. The reason no such provision was contained in the 1989 Act, he said, was that the legislature had assumed that, once a spouse was relieved of the duty to cohabit, the court had no jurisdiction to grant a decree of judicial separation. 

Mr Shatter further submitted that, as a matter of principle, in the case of a breakdown of a marriage, certainty and finality with regard to new family arrangements were desirable so far as practicable. He further submitted that, even if the court were of the view that the Circuit Court could grant a decree of judicial separation in a case such as the present, the High Court order determining that the entire beneficial interest vested in the wife should not be set aside in judicial separation proceedings by way of a property transfer order. 

On behalf of the husband, Mr Durcan SC submitted that there was jurisdiction for the court to grant a decree of judicial separation where the parties had already entered into a separation agreement and that the 1989 Act neither expressly nor by implication restrained parties to such agreements from applying for such a decree. 

Mr Durcan further submitted that the 1989 Act was a reforming measure in both legal and social terms and that this was a factor to be taken into account in interpreting its provisions, citing in support the observations of Walsh J on the Family Home Protection Act 1976 in Bank of Ireland v Purcell [1989] IR 327; [1990] ILRM 106. It should not, accordingly, be construed as precluding persons who had entered into separation agreements from obtaining the ancillary relief envisaged by the Act. 

Mr Durcan said that the decision in F v F, on which the wife relied, was distinguishable, since in that case the Applicant wife had already sought a divorce a mensa et thoro, that claim had been settled and the proceedings had been adjourned generally with liberty to apply. 

Mr Durcan further submitted that, while the situation would be different if the husband and the wife had agreed not to take any further proceedings, the agreement had to be treated as having been entered into in the light of the then state of the law. Where, as here, the legislature has altered the situation of the contracting parties, their rights and obligations under the contract should similarly be regarded as having been altered, since they had not provided otherwise. He relied in support of that submission on the decision of Doyle J in D v D High Court 1977 No 190 Sp, 21 July 1977, which had been upheld on appeal by this Court (Supreme Court, 1978 No 20, 8 May 1978), and a decision in somewhat analogous circumstances by Carroll J in M (L) v Devally [1997] 2 ILRM 369. 

As to the question of estoppel, Mr Durcan submitted that the law had been correctly stated by Judge McGuinness in N v N. He said that she had correctly distinguished the High Court decision in K v K which went no further than saying that a separation deed was a bar to an application for a divorce a mensa et thoro where the only purpose of the application was to divest the wife of her succession rights. He argued that, in contrast, there was a real purpose in the present case in seeking a decree of judicial separation, having regard to the ancillary relief which would be available not merely to the husband, but to the wife as well. 

Mr Durcan also drew attention to the provisions of s 15(1)(c) of the 1989 Act, allowing for the variation by the court of 'post-nuptial settlements'. He said it was clear that this phrase included separation agreements and this was entirely inconsistent with the contention that a party to such an agreement could not obtain a judicial separation decree and ancillary relief under the Act. 

Mr Durcan further submitted that the argument on behalf of the wife grounded on what was said to be the desirability of finality in family law was significantly weakened by the amendments which had been effected to the 1989 Act. Thus, under s 15(1)(a) of the 1989 Act an Applicant spouse could obtain a property adjustment order on one occasion only. However, s 9(1)(a) of the Family Law Act 1995, he said, removed this restriction and by implication allows for such orders on more than one occasion. 

As to the question whether the husband's claim for a property adjustment order was res judicata, Mr Durcan submitted that, having regard to the fact that the principles to be applied in determining whether property adjustment orders should be made were far wider than those which were applicable to cases brought under s 12 of the Married Women's Status Act 1957 (under which the previous litigation had taken place), there was no room for the invocation of res judicata. 

As to the question whether the proceedings should be struck out as being vexatious and frivolous, Mr Durcan submitted that the case law strongly supported the view that this was a jurisdiction which should be used sparingly and only in clear cases. He referred to the High Court decisions in Olympia Productions Ltd v Cameron Mackintosh [1992] ILRM 204, my unreported decision in Lac Minerals Ltd v Chevron Mineral Corporation of Ireland High Court 1993 No 3598P, 6 August 1993 and the decision of this Court in O'Neill v Ryan [1993] ILRM 557. 

THE APPLICABLE LAW 

When the husband and wife entered into the separation agreement in January of 1979, the jurisdiction of the High Court and the Circuit Court to grant decrees of judicial separation (or divorces a mensa et thoro as they were then called) derived from s 13 of the Matrimonial Causes Act 1870. The only grounds on which the relief could be granted were adultery and cruelty and the ancillary relief was limited to orders determining the husband's liability to pay alimony and providing for the custody of the children. The decree also automatically deprived the guilty spouse of his or her right to a share in the estate of the other spouse, either as a legal right or on intestacy, under the Succession Act 1965. 

The crucially important feature, however, of the divorce a mensa et thoro procedure in the context of this case is that it did not alter in any way the status of the parties. They remained husband and wife and the only effect of the order -- apart from the granting of any of the ancillary reliefs -- was to relieve the petitioning spouse from the duty of cohabiting with the other. Since in many cases -- probably the overwhelming majority -- the parties were already not merely estranged but living apart, the decree itself was frequently of little significance and such proceedings were in those cases normally brought precisely in order to obtain the ancillary relief or to divest the spouse described as the 'guilty' party of his or her succession rights. 

The 1989 Act significantly extended the grounds on which such a decree (now called 'a decree of judicial separation') could be granted. It also widened the range of ancillary reliefs available to Applicants. Those reliefs are principally dealt with in s 14 (periodical payments and lump sum orders), s 15 (property adjustment orders), s 17 (orders extinguishing succession rights) and s 16 (miscellaneous ancillary orders). In each case the section begins with the words: 

On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by either spouse . . . 

The particular section then goes on to provide for the making of the relevant order. 

The 1989 Act did not alter in any way the essential characteristic of decrees for judicial separation: as before, they did not alter in the slightest degree the status of the parties. They remained, as before, husband and wife, but s 8(1) provided that: 

Where the court grants a decree of judicial separation it shall no longer be obligatory for the spouses who were the parties to such proceedings to cohabit. 

It was settled law at the time that the husband and the wife entered into the separation agreement that such an agreement, provided it constituted in law a binding contract, was a bar to subsequent proceedings for a divorce a mensa et thoro, even though it contained no express covenant not to sue. The law was thus stated by Dodd J in the Court of Appeal of the Irish Free State in Courtney v Courtney [1923] 2 IR 31 at p 40: 

A matrimonial tribunal must bring to the consideration of such a case great circumspection, and must not lightly sanction the severance of the marriage tie; but when all this is said and the tribunal is satisfied that the transaction was a binding contract, parties to it who agree so to settle a matrimonial controversy must be taken to contract that they will not go behind the settlement, and cannot be listened to saying that they did not make an express stipulation not to sue. 

For a separation agreement to be a contract, there must, of course, be consideration. Subject to that proviso, however, it need not be in any particular form: see Clarke v Clarke (1885) 10 PD) 188. 

There had at one time been a conflict of authority as to whether the courts had any power to enforce separation agreements. The origin of the controversy is explained as follows by Lord Westbury LC in Hunt v Hunt (1861) 4 De GF & J 221: 

Before the Reformation, as we all know, marriage was regarded by the church, and therefore regarded by the law, as a sacrament. It was a contract of the highest possible religious obligation. All its duties and the obligations which it created were matters of ecclesiastical cognizance, and above all, it is to be recollected, if I am not mistaken, that the duty of cohabitation -- the primary duty arising from the contract -- was enforced by the spiritual tribunal by spiritual punishments, acting as they did pro salute animae. It was therefore quite correct to say anterior to the Reformation, in speaking of the policy of the law, that voluntary separations were forbidden by law, and that contracts made for giving effect to voluntary separations were therefore invalid, as being contrary to the policy -- that is, contrary to the prohibition -- of the law. 

But then came the Reformation and the statute of Henry VIII, which provided for that which unhappily never took place, the revision of the common law, enacted that the rules of the ecclesiastical law should prevail, as far as they were not contrary to the common law. The ecclesiastical law and the rules and doctrines of the courts Christian were therefore subordinated to the common law, and what the common law did not prohibit in the ordinary relations of life could no longer be dealt with as an offence by the ecclesiastical law. As expressed by one of our older writers, the ecclesiastical law was henceforth put sub graviore lege. Then, by the common law, voluntary separations, that is, the cessation by mutual agreement of the consortium vitae of matrimony, was not a thing forbidden, prohibited, or in any manner made the subject of punishment. 

It seems to me, therefore, impossible to say after the Reformation, as a general proposition, that voluntary separations were contrary to the policy of the law. It certainly was perfectly true that, in as much as the whole jurisdiction on the subject of marriage remain vested in the courts Christian, and the power of instituting suits for the restitution of conjugal rights was retained by those courts, and in as much as those courts would not permit a contract of voluntary separation to be pleaded in bar of the right to interfere, as they refused to countenance any separation that had not been pronounced by the authorities of a spiritual court, it was perfectly true to say that deeds of separation remained forbidden, that is, were treated as of no avail by the ecclesiastical law . . . but there being nothing to prohibit deeds of separation in the common law at a very early period (how early it is now impossible to ascertain) . . . deeds of separation with the covenants contained therein were recognised and treated as contracts capable of being enforced at common law. 

The attitude of the ecclesiastical courts is illustrated by the decision of the Arches Court of Canterbury in Sullivan v Sullivan (1824) 2 Add 299, which was referred to during the course of the argument. In the course of his judgment, Sir John Nicholls said: 

The deed of separation has also been urged in bar of the husband's prayer. Now these courts have so repeatedly said that such 'deeds of separation' are no bars, either, on the one hand, to suits for restitution or, on the other hand, as here suggested, to charges of adultery, that it would be quite superfluous to combat this argument, looking at the deed of separation between the parties qua deed of separation merely . . . 

Sir W Scott put the matter even more forcefully in Mortimer v Mortimer (1820) 2 Hagg Con 310: 

This Court [ie, the Ecclesiastical Court] considers a private separation as an illegal contract, implying a renunciation of stipulated duties, a dereliction from those mutual offices which the parties are not at liberty to desert -- an assumption of a false character in both parties contrary to the real status personae -- and to the obligations which both of them have contracted in the sight of God and man, to live together 'till death do them part' and on which the solemnities both of civil society and of religion have stamped a binding authority from which the parties cannot release themselves by any private act of their own, or for causes which the law itself has not pronounced to be sufficient and sufficiently proved. These courts, therefore, to which the law has appropriated the right of adjudicating upon the nature of the matrimonial contract, have uniformly rejected such covenants as insignificant in a plea of bar, and leave it to other courts to enforce them so far as they think proper upon a more favourable view, if they entertain it, of their consistency with the principles of the matrimonial contract. 

The controversy was, however, laid to rest in England by the decision of the House of Lords in Wilson v Wilson (1848) 1 HLC 538, when Lord Cottenham LC held that, in giving effect to the property arrangements in a deed of separation, the court was merely exercising its ordinary jurisdiction to grant decrees of specific performance in appropriate cases. It was further held in Hunt v Hunt that the covenant which was usually included in such deeds that the husband should permit his wife to live separate and apart and that he would not take proceedings for 'restitution of conjugal rights" would be enforced by injunction. 

That the law was the same in Ireland was made clear by Palles CB in MacMahon v MacMahon; Purser v Purser [1913] 1 IR 428 where he said at pp 442-443: 

This language of Lord Westbury is an authority that such contracts as those in Wilson v Wilson and Hunt v Hunt, ie contracts for immediate separation, are not against the policy of the law; and that the reason for that decision is that the rights of the spouses in respect to cohabitation have since the Reformation been no more than private rights which the spouses can validly renounce. 

As we have seen, it was made clear in Courtney v Courtney that the effect of a valid separation agreement was, not merely to bar actions for the restitution of conjugal rights, but also petitions for a divorce a mensa et thoro. 

As the authorities demonstrate, an agreement to separate which took the form of a binding contract was treated as a bar to a petition for a divorce a mensa et thoro not merely because the parties to such a contract would not be permitted to go behind it, but also because the parties by agreeing to live separate and apart had rendered superfluous the granting of a divorce a mensa et thoro. The only reason for instituting such proceedings would be to obtain ancillary relief or to deprive the other spouse of his or her rights (if any) under the Succession Act 1965. That was made clear by McKenzie J in K v K [1988] IR 161 where, applying the decision in Courtney v Courtney, he said unequivocally that: 

The fact that the parties entered into the deed of September of 1980, whereby they agreed to separate and live apart, separate and free from all marital control and authority, is a bar to the present proceedings [a petition for a divorce a mensa et thoro]. 

Different considerations arose where, as in D v D High Court 1977 No 190 Sp (Doyle J) 21 July 1977 and Supreme Court 1978 No 20, 8 May 1978 the husband and wife entered into a compromise of divorce a mensa et thoro proceedings prior to the enactment of the Family Law (Maintenance of Spouses and Children) Act 1976. It was held by the Supreme Court in that case that a wife could not be precluded from claiming maintenance under the 1976 Act by a term in a consent entered into before the passing of the Act under which she had accepted a lump sum in full satisfaction of her claims under the petition for a divorce a mensa et thoro. In that case, the wife was not seeking to institute proceedings for a divorce a mensa et thoro the very claim which she had compromised in the earlier proceedings: she was seeking a new form of statutory relief which was not available to her at the time she entered into the compromise of the divorce a mensa et thoro proceedings. That distinction was made clear by the judgment of Blayney J in this Court in F v F [1995] 2 IR 354 at p 363. 

In that case, which is of particular relevance to the present proceedings, the Applicant had instituted Circuit Court proceedings against the Respondent in 1986 seeking a divorce a mensa et thoro and a barring order under s2 of the Family Law (Protection of Spouses and Children) Act 1981. On 2 June 1987, by consent of the parties the proceedings were settled and stayed with liberty to apply to the court. It was agreed, inter alia, that the Respondent would remain away from the family residence and that neither party would molest or interfere with the other. In 1992, the Applicant purported to institute new proceedings against the Respondent seeking a judicial separation under the 1989 Act and ancillary relief in the form of a permanent exclusion order, a property adjustment order and an order extinguishing the succession rights of the Respondent to the Applicant's estate. On a consultative Case Stated, it was held by a majority of this Court, (O'Flaherty, Egan, Blayney and Denham JJ, Hamilton CJ dissenting) that the earlier proceedings for a divorce a mensa et thoro precluded the institution of separate proceedings for judicial separation under the Act of 1989. At p 363 of his judgment, Blayney J, having referred to D v D, went on: The position in the instant case is very different. The issue is not whether a term in the consent entered into by the Applicant is preventing her from issuing proceedings under the Judicial Separation and Family Law Reform Act 1989. What the court has to consider is the whole effect of the consent, not simply the effect of one term. And the whole effect of the consent entered into in the proceedings in 1987 was to satisfy and discharge the Applicant's claim to a divorce a mensa et thoro so that she was barred thereafter from bringing such a claim. And this continued to be the position after the Act of 1989 became law as it did not introduce a new cause of action but altered the title of the procedure to judicial separation. This fact also distinguishes the instant case from D v D as the court there was dealing with a completely new right which had been introduced by s 5 of the Family Law (Maintenance of Spouses and Children) Act 1976. 

That decision (F v F) also supplies an authoritative answer to the question as to whether the settled law established in Courtney v Courtney and applied by the High Court in K v K was applicable to proceedings instituted under the 1989 Act for a decree of judicial separation. It is clear from the judgments delivered by Blayney and Denham JJ and assented to by O'Flaherty and Egan JJ that it is so applicable. It is true that the grounds on which such a decree can be granted were widened by the 1989 Act and a more elaborate range of ancillary reliefs was provided, but the nature of the primary relief remained precisely the same. After the Act as before it, the husband and wife by entering into a binding agreement to live separate and apart from each other could render superfluous the granting of a divorce a mensa et thoro or a decree of judicial separation. Since the Oireachtas had made it clear that the new and more elaborate reliefs which were now available could only be obtained as ancillary relief in proceedings where a decree of judicial separation was being claimed, it followed that an Applicant could not, by instituting such proceedings in a case where he had already been granted a divorce a mensa et thoro, or had entered into a separation agreement, obtain the ancillary reliefs. 

Unlike the present case, a petition had actually been issued in F v F seeking a divorce a mensa et thoro but there is no reason to suppose that the decision would have been any different if, as here, proceedings had not actually been instituted, as is made clear by the following passage from the judgment of Blayney J at p 364: 

For the reasons I gave earlier I am satisfied that the Applicant is not entitled to continue her proceedings under the Judicial Separation and Family Law Reform Act 1989. There is an additional reason also. The Applicant does not need a judicial separation. She has been lawfully separated from her husband for the last seven years. The proceedings she has instituted are not for the purpose of obtaining a judicial separation but are an attempt on her part to get such an order so that she can ask the court to make various ancillary orders in her favour. So she is asking the court to give her relief she does not need with a view to being in a position to obtain other orders that she would like to have. It seems to me that this is not a form of proceeding to which the court could lend its support. 

That reasoning is fully applicable to the position of the husband in the present case. 

As will be clear from the earlier part of this judgment, the reasons for treating a separation agreement which takes the form of a binding contract as a bar to subsequent proceedings for a decree of judicial separation (it having formerly been a bar to the granting of a divorce a mensa et thoro) are twofold. First, where the agreement provides, as it invariably does, that the parties are to live separate and apart, the granting of such a decree would be superfluous. Secondly, where parties have entered into a binding contract to dispose of differences that have arisen between them as husband and wife, it would be unjust to allow one party unilaterally to repudiate that agreement, irrespective of whether it took the form of a compromise of proceedings actually instituted. 

It may seem harsh to deprive a person who has entered into a separation agreement on the basis of the law formerly applicable to proceedings under the Married Women's Status Act 1957 of the right to avail of the more flexible jurisdiction to grant property transfer orders introduced by the 1989 Act. However, it was for the Oireachtas to balance the possible injustice that might arise in some cases against the desirability of ensuring finality and certainty in settlements of family law disputes and discouraging parties from re-litigating matters with the consequent trauma for all involved, particularly the children of the marriage. By providing, as it did, that the new reliefs are only to be available where a decree of judicial separation is obtained, the Oireachtas has determined that the last mentioned considerations outweigh any possible injustice that may arise to parties who entered into settlements before the enactment of the 1989 Act. 

Mr Durcan also relied on the provisions of s 15(1)(c) of the 1989 Act. It provides that: 

On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by either spouse, make a property adjustment order, that is to say, any one or more of the following orders: 

. . . 
  
(c) an order varying for the benefit of the spouses and of any dependent child of the family or any or all of those persons any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses . . . 

A separation agreement is not a 'post-nuptial settlement'. It may as in Jump v Jump (1883) 8 PD 159 incorporate a settlement of property. In the English cases, including Jump v Jump, referred to by Judge McGuinness in her decision in N (C) v N (R), it was held that the court had power to vary a post-nuptial settlement so contained in a deed of separation, but that was in the context of divorces a vinculo matrimonii and decrees of nullity. Under s 15(1 )(c), a property transfer order may take the form of an order varying a post-nuptial settlement. But such a property transfer order may only be made where a decree of judicial separation is granted and it is clear, for the reasons already set out, that no such decree may be granted where the parties have already entered into a separation agreement. 

CONCLUSIONS 

Clause 1 of the separation agreement provided that: 

The husband and the wife shall each live separate and apart from and free from the marital control [if any] of the other and neither the husband or the wife shall in any manner, molest, disturb or otherwise interfere with the other in his or her manner of living or at any time hereafter require or compel either to cohabit with the other or to enforce any restitution of conjugal rights or shall use any force, violence or restraint on the person of the other or sue or cause to be sued any person or persons receiving, lodging, protecting, entertaining or living with the other nor disturb nor interfere with the other's relations, friends or acquaintances and each may at all times live as if he or she were unmarried without restraint or correction of the other or any other person or persons. 

The agreement goes on to provide that the wife is to have sole custody of the children and that the husband is to pay an agreed weekly sum by way of maintenance. There were also provisions as to the preservation of the parties' rights under the Succession Act 1965 and the Family Home Protection Act 1976 and, as already noted, a recital as to the payment of the mortgage repayments. 

The separation agreement was thus a comprehensive disposal of the issues that had arisen between the husband and the wife. On purely technical grounds, it could be treated as an enforceable agreement even in the absence of consideration, since it was under seal. But, applying the principles set out earlier in this judgment, it is in any event clear that there was consideration. I am, accordingly, satisfied that, in accordance with the principles laid down in Courtney v Courtney and K v K and reiterated by this Court in F v F, the wife is entitled to rely on this agreement as a bar to the present proceedings claiming a decree of judicial separation and ancillary relief. 

It would also appear that, in the circumstances, it is unnecessary to consider whether the application for a property transfer order is itself excluded by the doctrine of res judicata having regard to the earlier decision of the High Court on the application under the Married Women's Status Act 1957. Since it is clear that a property transfer order could only be obtained by way of ancillary relief under the 1989 Act, and since the court cannot entertain such an application, the question of res judicata does not, in my view, arise. 

Nor would I find it necessary to hold that these proceedings were instituted frivolously or vexatiously: the very fact that the learned Circuit Court judge in an earlier judgment (delivered prior to the decision of the Supreme Court in F v F) had come to a careful and considered conclusion that the husband's application for a decree of judicial separation was not barred is sufficient, of itself, to demonstrate that the proceedings, although excluded by the application of the principles set out in this judgment, were not instituted frivolously or vexatiously. I would answer the questions in the Case Stated as follows: 
  
(1) Whether I was correct in holding that the Applicant's case for a property adjustment order was not res judicata since such orders under s 15 of the Judicial Separation and Family Law Reform Act 1989 are based on other and wider considerations, than an order pursuant to s 12 of the Married Women's Status Act 1957 

Does not arise, having regard to the answers to questions (2) and (3). 
  
(2) Whether I was correct in holding that I had jurisdiction to grant a decree of judicial separation where a deed of separation existed which relieved each of the duty to cohabit with the other and where the parties have lived apart since the conclusion of such agreement. 

No 
  
(3) Whether I was correct in holding that there was no estoppel by reason of the said deed of separation to prevent the court granting a decree of judicial separation pursuant to s 2 of the Judicial Separation and Family Law Reform Act 1989. 

No 
  
(4) Whether I was correct in holding that the Applicant's proceedings are not vexatious and frivolous. 

Yes.