The Gazette 1976

N O V E M B E R

1976

G A Z E T T E

could not be evicted, save by order of the Court and this right should be a charge on the legal right of the first-mentioned spouse. But, to be valid as against a purchaser for value, this right has to be registered. It was held in Rutherford v Rutherford (1970) 3 All E.R. 422 that this right had to be declared by the Court to assist before it could be registered as a charge, but this decision was over-ruled by the Court of Appeal in Watts and Another v Waller and Another (1972) 3 All E.R. 257. Unless the Charge was registered under the Land Charges Act, 1925, it would not prevail against a subsequent purchaser or registered chargeant. Hence the problems created for convey- ancers by our Family Home Protection Act, 1976, cannot arise in England. In this country the Legislature in its anxiety to protect one section of the Community, has created serious problems for other and possibly larger Sections including house purchasers, banks and building societies and lawyers dealing with questions of title to land.

the written consent of the other spouse is not available, to make a statutory declaration on the lines of the suggested certificate. Presumably the purchaser would then be considered to have purchased "in good faith". It would seem only logical to amend Section 12 of the Act by adding what may be called "the marital equity" under this Act to the list of burdens which affect registered land under Section 72 of the Registration of Title Act, 1964, although not registered as burdens: presumably it is not intended that registration of a transfer by a husband to a purchaser should in all cases over-ride claims by his wife: or is the onus of ensuring that there is no possibility of such a claim to be put on the Land Registry officials? In England, an analogous Act was passed some years ago, namely the Matrimonial Homes Act, 1967 (amended by the Matrimonial Proceedings and Property Act, 1970). The Act of 1967 provided that where one spouse had the legal right to occupy the home and the other spouse had not such right, such other spouse

CORRESPONDENCE

the absence of comment — might lead the profession to assume that it represents the Society's viewpoint. Fortunately, the Bill is deferred until late January when, hopefully, the constitutionality of this provision may come under closer scrutiny. Yourr faithfully, F. X. Burke, Solicitor.

13 Northumberland Road, Dublin 6. 31st December, 1976.

Re: ANTI-DISCRIMINATION (UNFAIR DISMISSALS) BILL 1976

Sir, Mrs. Matthews is to be complimented on her com- prehensive paper on the above Bill and related topics in the November issue. I am, however, a little surprised that she should describe as "one of the more welcome provisions in the Bill" Section 6 (1) which puts on an employer the onus of proof that dismissal was not unfair. Even more surprising is the reason given that " . . . an employee may be said to possess or own his job What about the employer, whose capital and enter- prise have created the job opportunity ? (It is currently estimated that it costs £10,000 to create one job). Quite apart from that aspect, it is a cardinal principle of our legal system that the onus of proof rests on a claimant. To legislate otherwise surely requires more consideration than the present Bill is receiving in the Dail. Not a single reference was made in the debates, so far, to this radical and highly controversial pro- vision. It must not be overlooked that the Bill protects not merely the worker on the shop floor, but the entire hierarchy of "employees", including top executives of our largest organisations. To give to such "em- ployees" the protection proposed in this Bill could cause most difficult problems. Possibly it is this very fact that has resulted in the deafening silence from •those organisations which might have been expected to be most concerned at the provisions of this Bill. I write to express concern, less the prominence given to Mrs. Matthews' otherwise excellent paper — and

22, Kildare Street, Dublin 2. 21st December, 1976.

GUIDE LINES — FAMILY LAW

Dear Mr. Gavan Duffy, I read with interest the article which appeared in the October edition of the Gazette under the heading of Guide Lines Family Law. In an otherwise accurate summary of the position it is stated under the sub- heading of "Civil Marriages" that "where a marriage is to be contracted in the Registry Office the Registrar is required at the expense of the parties to the marriage to publish notices at least once in two consecutive weeks next after receiving the notice in a newspaper circulating in the district in which the marriage is in- tended." The above requirement only applies where neither party attends any place of worship. If one or both parties attends a place of worship the Registrar for- wards a copy of the Notice of Marriage to the clergy- man for the church and no notice is required in a daily paper. Yours faithfully, Raymond V. H. Downey, Registrar for the City & County of Dublin 211