The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

SOCIETY OF YOUNG SOLICITORS

3. SEPARATION AGREEMENTS A Separation Agreement is essentially an agreement between a husband and wife to live separately and apart. Like any other agreement it is governed by the general Law of Contract and can, therefore, be in written or oral form. Advisedly, however, if such matters as the maintenance of the wife, the welfare of the children and the division of the matrimonial property are to be provided for then the Agreement should be reduced to writing and incorporated in a Deed. The whole subject of Separation Agreements was very comprehensively dealt with in the lecture entitled "The Drafting of Separation Agreements" delivered by Michael V. O'Mahony to the Society in Galway in November 1975 (Lecture 93) and his paper merits careful consideration. For those who have the mis- fortune not to possess a copy of his paper the following is a brief summary. (For further details, see Gazette, March 1976, page 33). Drafting of Separation Agreements Any agreed terms, provided they are legal, can be included in a Separation Agreement but the most com- mon clauses in a Separation Agreement would cover the following: — 1. Introductory Recitals. These should include a recital that the husband and the wife have agreed to live apart as the agreement to live apart is a pre- requisite of all Separation Agreements. 2. Non-Molestation whereby each party agrees not to molest, annoy, disturb or interfere with the other. 3. The Maintenance of the Wife. This should have particular regard to: — (a) The extent of the husband's liability for main- tenance; (b) Whether the maintenance payments should cease or vary:— (i) in the wife's lifetime or widowhood. (ii) in the event of a change in the husband's income. (iii) in the event of inflation. (iv) in the event of an intervening Court Order for maintenance. (v) In the event of an intervening Judicial Sep- aration or the resumption of cohabitation. (vi) In the event of the wife's breach of the "dum casta" clause or the breach of any other clause of the Agreement. 4. The custody and maintenance of the children, the rights of the access and the extent of each spouse's responsibility. 5. The division of the matrimonial property having particular regard to the matrimonial home and its upkeep. 6. The mutual renunciation of rights under the Suc- cession Act 1965. 7. Arbitration in the event of dispute as to the terms or the implementation of the terms of the Agree- ment.

Termination of Separation Agreements The discharge of Separation Agreements is governed by the law relating to discharge of contracts generally and would normally take effect either by (a) agreement between the parties or (b) breach by one of the parties of one of the fundamental provisions of the agreement. Taxation Tax problems can arise on the maintenance pay- ments by the husband to the wife and careful consider- ation should be given to the liability for tax on such payments and to the precise wording of the mainten- ance clause in the agreement. Legality of Separation Agreements A Separation Agreement, like any other form of Contract, may be void or voidable. It may, for example, be void on the grounds of mistake or void- It is to be strongly recommended that the husband and the wife be separately advised in negotiating the terms of the Separation Agreement. Costs The costs of a Separation Agreement will naturally depend on its complexity but it is wise to include a clause as to liability for payment of costs in the Agreement. 4. DIVORCE A MENSA ET THORO Since the Matrimonial Causes and Marriage Law (Ireland) Act, 1870, the Civil Courts have jurisdiction in petitions for divorce a mensa et thoro. Again, it must be remembered that a Decree of Divorce a mensa et thoro is not a dissolution of marriage and therefore does not give the parties to the divorce the right to re-marry. A Decree of Divorce a mensa et thoro is often described as judicial separation, as it separates the parties to a marriage rather than dissolving the marriage. The grounds for obtaining a divorce a mensa et thoro are : a. Adultery. b. Cruelty. c. Desertion. d. Failure to comply with an Order for the restitution of conjugal rights. The jurisdiction of the Courts is the domicile of the husband. Under Irish Law, the domicile of the wife is automatically the domicile of her husband and she is incapable of having a separate domicile. Procedure: The procedure is contained in the Rules of the Superior Courts Order 70, and the procedure is by petition and is the same as the one used in petitions for nullity. Interim Relief: Often during the proceedings, an interim application for alimony pendente lite is brought. This usually takes the form of the Petitioner/ 2 1 3 able on the grounds of undue influence. Representation of Husband and Wife