The High Court has ruled that the Constitution does not permit the courts to make a property adjustment order in favour of a non-marital child, where the non-marital father already has a wife working in the home looking after dependent children.
The order in question was for the sum of €500,000 for the child’s mother to buy a house for them both, and the order was made in November 2007 in the Circuit Court, along with an order for €1,200 a month in maintenance for the child.
This was appealed by the father to the High Court, where Mr Justice Sheehan upheld the appeal in recent days.
The rights of cohabiting couples and their dependent children will be dealt with in the forthcoming Civil Partnership Bill, which will provide for property adjustment orders and other financial reliefs for economically dependent partners when the relationship breaks up, subject to the interests of spouses and other children.
This case concerned a child born in 2000 to a plumber and property developer and a professional singer. The father had separated from his wife, with whom he had three children, and lived with the singer from 1999 to August 2002 and from August 2003 to June 2004. The man also has another non-marital child.
At the time of the hearing in July and October 2008 the sole source of income for the father was rental income from the property company he ran with his estranged wife, who was a notice party to the proceedings.
His assets were estimated at €1,869,000 including a pension worth €366,994, and his share of the rental income was €35,000 a year, though his assets were written down by 10 per cent in the light of the current economic circumstances.
He had made €175,742 from a previous transaction, much of which was spent over the past four years.
Mr Justice Sheehan said it was clear he would have to return to work.
The mother had steadily built up her singing career, from which she earned €19,000 in 2007, and was “heading for a significant increase” in 2008. She also had lone parents’ and children’s allowance, giving her a total income of at least €35,000. The judge found that since the Circuit Court hearing there had been a marked improvement in the mother’s financial position, and a marked decline in the value of the father’s assets. The mother had sought a property adjustment order in favour of herself and the child, arguing that the Guardianship of Infants Act of 1964 allowed for it. She also sought a carer’s allowance to be paid to her, as well as maintenance for the child.
She cited a previous case in support of her claim for a property adjustment order, but Mr Justice Sheehan pointed out that this referred to a couple who were married, and so it did not apply here.
He said that in interpreting the Guardianship of Infants Act the court must look at the constitutional position of the wife in this case, “who is a wife working in the home and is entitled to special protection by virtue of Article 41”.
Article 41.2 states that the State recognises the support given to it by the work of women in the home, and pledges to ensure that a mother shall not be obliged by economic necessity to work outside the home “to the neglect of her duties in the home”.
He also referred to a 1996 High Court ruling, Ennis -v- Butterly, which said that there had not been any attempt on the part of the legislature to confer rights akin to those of married persons, like the right to maintenance, on non-marital unions.
Taking all this into account, Mr Justice Sheehan said that the Circuit Court had no jurisdiction to make an order directing the payment of the €500,000 to provide a home for the mother and child.
He also said she was not entitled to a carer’s allowance for herself, but upheld the order for payment of €1,200 a month in maintenance for the child.