The Gazette 1971

The first reaction of the Irish practitioner might be that this work is of little interest to him. Such would be overstating the case as there are chapters in the text directly relevant to the present matrimonial jurisdiction of the Irish High Court, a jurisdiction that is being used increasingly. For example, the chapters on jurisdiction, nullity of marriage, judicial separation (divorce a mensa ct thoro) and jactitation of marriage substantially repre- sent the same jurisdiction that is vested in the Irish High Court by the Matrimonial Causes Act, 1870. The treatment of separation agreements is also relevant here. Further, the present English and Irish law on nullity of marriage is, for all extent and purposes, the same. This is a fact which tends to be obscured, per- haps as a result of the stigma we in this country attach to the English legislation on divorce. Griffith v Griffith [ 1944] I.R. 35, a leading Irish case on nullity of mar- raige, has been cited with approval in two recent English cases; Buckland v Buckland [1967] 2 All E.R. 300, and Szechter (otherwise Karsov) v Szechter [1970] 3 All E.R. 905. In Buckland v Buckland, Scarman J. went so far as to adopt the reasoning of Budd J. in Griffith v Griffith, when dealing with the effect of duress on the validity of marriage ([1967] 2 All E.R. 300 at p. 302 E-F). It should be stated, however, that a num- ber of anomalies which at present exist in the Irish and English law of nullity of marriage will cease in England if the Nullity of Marriages Bill, at present before Parlia- ment (Westminster), becomes law. There is no similar legislation proposed in Ireland. There are sections of this book which will have little application to Irish circumstances. Article 41 of the Constitution and its consequent effect on divorce and the recognition of foreign divorces are the two instances which immediately spring to mind. However, there are sections of the text, while not having a counterpart in the matrimonial jurisdiction of the Irish High Court, may have a part to play in removing certain anomalies that at present exist here. The present Irish jurisdiction in matrimonial causes and related matters is in need of a reappraisal and the recent work on the law commission in England might provide us with some assistance. I am thinking particularly of Chapter 8 of the text which deals with "Wilful Neglect to Maintain" (pp. 119-127). Too few judges and too little courtroom space are fac- tors contributing seriously to delays of up to six months —likely to become longer—in the hearing of Dublin Circuit Court civil actions, according to the Council of the Incorporated Law Society of Ireland. Cases held up include personal injury claims, land- lord and tenant applications and claims on contract (such as hire purchase cases). When a similar situation arose two years ago Judges were transferred from country circuits to help clear a backlog of cases then up to nine months in arrears. A recent survey showed 519 civil cases waiting to be dealt with in Dublin, about the same number as in last October, indicating that the position is stagnant and arrears are likely to mount, unless country Judges can again be assigned to Dublin—or, preferably, additional Judges appointed. Temporary assignment of Judges from the country is not a solution to the problem, it results in delays building up in the Courts at provincial centres. Criminal cases must, of course, take priority over

This might provide us with some guidelines in dealing with the position of the deserted wife. Under Section 6 of the Matrimonial Proceedings and Property Act, 1970, an order on the ground of wilful neglect to maintain may be made against one spouse on the application of the other spouse. (An application is not restricted to the case of a deserted wife.) Such an order can only be made during the subsistence of the marriage. There is no ceiling on the amount the court can order. The position of the deserted wife at present repre- sents one of the blind spots in our matrimonial juris- diction. Under Section 7 of the Enforcement of Court Orders Act, 1940, a deserted wife is entitled to a maxi- mum award of £4 a week, irrespective of the number of children who may be dependent for support on this sum. This amount is totally inadequate. A recent Private Member's Bill, the Enforcement of Court Orders Bill, 1971, failed to pass its first reading in the Seanad (see generally, Vol. 70, Seanad Debates, cc. 183-190). This Bill proposed to give the High Court jurisdiction to award a deserted wife up to two-thirds or one-half of the husband's income, depending on whether there were children of the marriage or not. The reason given by the leader of the Government party in the Seanad for opposing this Bill was that "the Government will be introducing a Bill which covers the points [the position of the deserted wife] raised" (ibid., c. 184). It will be interesting to see how far the Government's Bill will follow the precedent set by Section 6 of the Matrimonial Proceedings and Property Act, 1970. The text of "Tolstoy" is divided into three parts : (a) the law of divorce and matrimonial causes; (b) practice and procedure; and (c) costs and proceedings in the magistrates courts. Mr. Registrar Kenworthy contri- buted the section on practice and procedure. This part contains a very useful explanation of the application of the above provisions concerning wilful neglect to main- tain (pp. 321-325). The first part of this text contains most that will be of interest to the Irish practitioner. If the two jurisdictions approximate at all, it is here that one will find guidance. civil actions and the judicial time of the Dublin Circuit Court is split approximately 84 per cent on criminal work and 16 per cent on civil actions. The anticipated increase of the jurisdiction of the Circuit Court on the civil side, and the fact that there is no prospect of a decline in the number of criminal ca*es, will further worsen the arrears position. Courtroom accommodation is inadequate and there is an urgent need for at least two additional Court- rooms with ancillary facilities. The Council of the Incorporated Law Society is urging prompt action to ensure that delays are mini- mised. It has also recommended the introduction of fixed dates for the trial of actions, obviating the bringing to Court of litigants, witnesses, solicitors and counsel— at considerable expense—only to find their cases are not reached. "The additional expense which this imposes on the parties concerned must far exceed the addi- tional salaries which would be paid from the Exchequer if the number of Judges were increased", added a Society spokesman. 55

The text is well written and at £3.90 represents a very modest outlay for what is a standard work of reference. James O'Reilly More Circuit Judges needed in Dublin