The Gazette 1976

G A Z E T T E

N O V E M B E R 1976

to psychological or physiological causes. The inability of one spouse to consummate the particular marriage makes the marriage voidable at the option of the other. Sterility of either spouse is not of itself a ground for a Decree of Nullity. Procedure The procedure in obtaining a Decree of Nullity is clearly set out in Order Number 70 of the Rules of the Supreme Courts. The Rules also contain precedents of the forms required and these are set out in Appendix L of the Rules. The general outline is that the proceed- ings are commenced by way of Petition accompanied by an Affidavit of the Petitioner. The Petition is signed by the Petitioner and his Counsel. An ex parte appli- cation is made before the Master for leave to issue the Petition. When leave is granted, the Petition is served on the Respondent with the grounding Affidavit and the Pleadings then issue in accordance with the Rules. The Master settles the mode of Trial, and then the matter is set down in the Judge's List for hearing. Medical Inspection In proceedings for nullity on the grounds of non- consummation, incapacity or impotence, a Petitioner may apply to the Master (after the filing of the last Petition) to appoint Medical Inspectors. The Master ap- points two Medical Inspectors, and the place and time of the medical inspection. A Registrar will attend at the place fixed for the examination, as will the Sol- icitors for each party who will be called upon to iden- tify the parties to be examined. ALIMONY PENDENTE LITE Alimony pendente lite can be claimed by a wife be- ing a Petitioner in nullity proceedings under the pro- cedure laid down in Order 70 Rule 47 and subsequent Rules of the Superior Courts. It should be noted that the wife is entitled to be supported by her husband until a formal Decree of Nullity is made by a com- petent Court, because, until that happens, the marriage continues to exist at law, with all resulting obligations. COSTS All costs in matrimonial proceedings are taxed by the Taxing Master. After direction is given to the mode of trial, the Court may on the motion of the wife make an Order directing the husband to pay her costs of the case up to the date of the application, and fur- ther costs "de die in diem" up to the trial, and direct taxation of the costs and at the time of taxation to ascertain and clarify what is a sufficient sum of money to be paid into Court as security for costs. CASE LAW C (otherwise H) v C— LR (1921) p. 399—(Lord Bir- kenhead reviews all previous cases on Nullity). (Absence of real consent—Fear induced by threat). McK v McK 1936 I.R. p. 177 (Impotence and non- consummation). R.M. v M.M. 1942 ILTR p. 165 (Physical Impotency Petition dismissed)

E.M. v S.M. 1943 ILTR p. 128 (Impotence of Respon- dent—undefended). Mehta v Mehta (1965) AER I, p. 690 (fraud). Buckland v Buckland (1967) AER, II, 300. (Fear in- duced consent). Szechter v Szechter (1970) AER, III, 905. (Duress). Corbett v Corbett (1970) AER, p. 33 (Defect in formal requirement). Baxter x Baxter, 1948 AC 274 (Consummation). S v S (Impotence, Ecc^stical Decree of Nullity affir- med)—Gazette, June-July 1976, Green Page 19). BIBLIOGRAPHY 1. Tolstoy "Void and Voidable Marriages" 27 MLR (1964) 385. 2. Bromleys Family Law (5th Edition 1976) Butter- worths. 3. "The Formation and Annulment of Marriage" by J. Jackson. REPORT OF THE SOCIETY OF YOUNG SOLICITORS' AUTUMN SEMINAR, WATERFORD In the last issue of the Gazette you will recall that in our introductory paragraph a slight reference was made to the record attendance at the Societv of Young Solicitors' Spring Seminar in Killarney. However, in this article we are going to risk that most serious of all literary faults i.e. repetition, and face severe editor- ial rebuke by telling you that the Autumn Seminar of the Society of Young Solicitors held in the Ardee Hotel, Waterford in November, far exceeded all prev : ous record attendances. It was most unfortunate and re- grettable that some late registrations had to be rejected but this was quite simply due to the fact that there was not a bed left in Waterford that was unoccupied by a Solicitor. As usual the topics for the Seminar aroused much interest both before and after the lectures were de- livered. Many would agree that Frank Daly had the most unenviable task of all in having to deliver a lecture on one of the most controversial pieces of legislation at the moment; namely, the Family Home Protection Act 1976. But in the words of that immortal poet "Anon", "Corkmen are a divil for punishment" and Frank Daly further undertook to speak on the new Contract for Sale in an all-embracing lecture entitled "The effect on conveyancing practice of the new Law Society Con- tract for Sale and the Family Home Protection Act 1976" (Lecture 97). After the comments by John Buckley and Maurice Curran on the new Contract for Sale in the previous Seminar, it was interesting to have the views of a mem- ber of the profession who was not connected with the drafting of this document. On the Family Home Pro- tection Act there has to date been very little agree- ment, but it was the view of the Lecturer that what ever the conflicting opinions of eminent Counsel on the Act, it was certainly advisable to have the spouses' prior written consent to the sale of the family home for

196