Kevin O'Higgins Solicitors

Wife entitled to separation over adultery of ‘dynamic’ husband

Tuesday, 21 April, 2015
The Irish Times
Mary Carolan

High Court says woman cannot be expected to stay in marriage and divides €7.4m estate

A wife is entitled to a decree of judicial separation because she cannot be reasonably expected to remain with her “extremely dynamic” businessman husband after his admission of repeated and continuing adultery, a High Court judge said.

On the basis of a €7.4 million valuation of available assets of the couple, Mr Justice David Keane said the wife, a mother of four children and full-time homemaker, is entitled to the €1.6 million family home; a €1.7million holiday home; €18,000 monthly maintenance (€15,000 for herself and €3,000 for the children) and half of the man’s €1.8 million pension scheme.

The husband, who the judge noted had average annual earnings of €1.4 million for the last five years, can keep his new home, plus other assets including ownership or control of companies valued at some €7.4 million; various bank accounts; a share portfolio; and investment properties valued about €2.3 million in early 2014 but subject to loan finance of more than €7.7 million.

The judge dismissed claims by the man of unreasonable behaviour by his wife, including slapping him twice in the face because he spent significant time with another woman, a friend of the couple, during a holiday suggested by him to reconcile the couple’s differences.

His wife said she felt so humiliated by her husband’s behaviour she left the venue alone and slapped him later.

While the man alleged his wife was “hysterical” and her response was unwarranted, she was not cross-examined on her evidence and there was no evidence the husband suffered any physical injury, the judge noted.

The husband also complained about a second incident in which his wife, on the day after he told her their marriage was over in late 2012, slapped him during a dispute concerning a failed purchase of a house which had been intended as a new family home.

While physical assault can never be condoned, it was impossible to regard those “minor” incidents, seen in the context of the husband’s infidelities and their particular circumstances, as behaviour so unreasonable the couple could not be expected to live together, the judge said.

The man’s claim of excessive spending by the wife was also “impossible to sustain” as the husband’s business was highly profitable during the marriage and both parties “spent freely”, he said.

While the man’s property portfolio went into negative equity, he was able to service the debt with no evidence of restraint on either household or his personal spending.

While the husband had no case for judicial separation for unreasonable behaviour by his wife, she was “plainly entitled” to such a decree given his admission of repeated and continuing adultery and could not be reasonably expected to live with her husband given such behaviour.

Earlier, the judge noted the couple, in their 40s, were married for some 18 years before the husband told his wife in late 2012 the marriage was over and left to continue or resume a relationship he had embarked on with a friend of his wife’s.

He previously had a sexual relationship over several months with an employee and during the proceedings admitted he also engaged in other extra-marital sexual relationships during his marriage.

Given the background of the man’s adultery, it was surprising he, not the wife, initiated the judicial separation proceedings, the judge said.

It was “more surprising”, having initiated the case, the husband did not reference or acknowledge the adultery but instead sought a decree on grounds of the wife’s unreasonable behaviour or, alternatively, irretrievable marital breakdown.

The husband alleged the couple had no meaningful relationship for more than half of the marriage but later conceded they had sexual relations up to autumn 2012, the judge said.

The court accepted the wife’s evidence her husband never expressed misgivings about the relationship until he told her the marriage was over.

The court could not grant a decree of judicial separation on a no-fault ground because that required a normal marital relationship had not existed for at least one year prior to the initiation of the man’s proceedings in January 2013.

In assessing proper provision, the judge took into account the husband was an “extremely dynamic” businessman and moving force behind the development of his companies.

The wife’s contribution to the earning capacity and resources of the husband in looking after the home and caring for the family also could and should not be underestimated and he accepted the marital responsibilities she assumed had forced her to relinquish the opportunity of remunerative activity and diminished her future earning capacity.

 The proper provision findings were made in the context of the couple having agreed on joint custody of their children with the wife having day to day care and control of them.

The man is to be responsible for the children’s medical and dental expenses and health insurance and the woman will meet their educational expenses. The husband had said, a day after his solicitors wrote to his wife in January 2013 asking for her “reasonable settlement proposals”, his judicial separation proceedings were initiated to “get the ball rolling”.

The commencement of the case in those circumstances was “unreasonably and improperly precipitate” but the proceedings were “significantly and unnecessarily protracted” by the position adopted by the wife, the judge said.