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The marriage failed. In November 1984 the wife left the matrimonial home and since then has lived with another man two miles away. The husband and the two children of the marriage remained in the matrimonial home.
Nevertheless the Defendant is putting the residence of her husband and children in the family home at risk since she is making no effort to pay off the Judgment Mortgage. This may be owing to her poor financial circumstances, but does indicate a wish to retain the financial benefit of the loan at the expense of her family. Indeed, it is probable that the same financial circumstances will lead her to borrow again. If she does so, there could be no doubt of her intention to obtain a personal benefit at the expense of her family.
I regard these circumstances as coming within the terms of Section 5 (1). As a matter of construction of this subsection, I do not think that the claimant spouse must wait until there is a fait accompli. If he or she has to, then much of the remedy provided by the subsection would be lost.
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