Rights of killer enforced by law

Irish law is an ass as it remains silent on whether unlawful killing prohibits a share of jointly held assets, says Dan Buckley

IF anyone ever doubted that property takes precedence over people in Ireland, consider the words of Ms Justice Mary Laffoy in the High Court last Tuesday.

Declaring that Eamonn Lillis was entitled to a half share of the assets he jointly owned with his late wife Celine Cawley, the judge made clear that the law obliged her to enforce the property rights of a savage killer.

“It was not possible to conclude that Lillis’s share in the joint assets was automatically severed on the death of Ms Cawley,” she said, ruling in favour of the man who beat his wife to death three years ago.

The decision means Lillis will get half of the estimated €1.5 million in assets held by the couple jointly. He will also retain co-ownership of the family home in Howth, Co Dublin, with his 19-year-old daughter Georgia, even though she has sworn in court that she would rather have “pins stuck in her eyes” than have any further contact with him.

In refusing the application by Celine Cawley’s children not to allow him profit from his wife’s slaying, Ms Justice Mary Laffoy explained that, in the absence of legislation, she “had no element of discretion” and no power to interfere or diminish the property rights enjoyed by Lillis even as he battered his wife to death with a brick in December 2008.

Recognising the pain of the family and the obvious injustice of this, the judge said the case demonstrated that legislation should be in place “that proscribes the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another”.

In other words, the law should recognise there are circumstances in which the exercise of a right leads to such a wrong that it should not be allowed or enforced.

That is the position in a number of countries. French law, for instance, recognises this concept and this is likely to be raised in separate legal proceedings to be held there regarding a property in France jointly owned by the couple.

The French have a phrase for it — “abus de droit” roughly translated as “abuse of right”. The French courts developed abus de droit to cope with certain perceived misuses of unqualified rights.

Under abus de droit, the rights that are prohibited to use in an abusive manner include:

* 1. A right that is principally intended to cause harm.

* 2. A right that is used without a legitimate interest in justifying judicial protection.

* 3. A right used in bad faith.

* 4. A right that is contrary to basic principles of natural justice.

A more limited provision appears in the German Civil Code where Article 226 directs that it is unlawful to exercise a right where the sole purpose of the exercise is to harm another.

Lillis’s sole purpose is not to harm his children but to pocket a sizeable chunk of the joint estate, yet it is hardly a stretch to insist that, in the pursuit of justice and fairness, he should not be allowed do so.

In legal systems in which rights are defined by a written constitution or by legislation, the exercise of those rights may amount to a wrong. That is what appears to have happened in this case. While the law prohibits Lillis from succeeding to his late wife’s own estate because of his actions, it is silent on whether unlawful killing prohibits him from succeeding to a share of jointly held assets. In that event, the law of property prevails, as Ms Justice Laffoy’s ruling demonstrates.

The assets in which Lillis will receive a 50% share are substantial. They include: The family home in Howth with an estimated value of €800,000; an apartment in Sutton worth around €200,00; several investments worth €500,000; and a property in France worth €150,000.

Ms Justice Laffoy’s remarks are sane and sensible, unlike Irish law which permits (and enforces as an unqualified right) a brutal killer to profit from his wrongdoing. He will be free to enjoy in the region of €800,000 in assets when he is freed from his seven-year sentence for manslaughter, which was imposed in February of last year. That could be as early as 2015 if he remains of good behaviour in the medium security Wheatfield Prison in Clondalkin, Co Dublin.

The phrase “the law is an ass” comes to mind. This was the declaration made by Mr Bumble in Charles Dickens’ novel Oliver Twist, when he was informed that “the law supposes that your wife acts under your direction”.

Mr Bumble replies: “If the law supposes that ... the law is an ass — an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience.”

Whether that experience will open the collective eye of our legislators is a matter in the first instance for Justice Minister Alan Shatter.

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