The Gazette 1976

GAZETTE

(1), either as to one half, if there are no children, or as to one third if there are children, of the estate of the other; this does not affect the moral duty of either spouse under S. 117 to make provision for the children according to their means. The discharge of separation agreements is governed by the law relating to discharge of contracts. (1) It may be effectively discharged jn accordance with its terms (Newsome, 2 Prob. & Div., 1871). (2) Separation agreements may be discharged by breach of contract. Pardy v. Pardy (1939) 3 All ER, held that the innocent party is not bound to inform the spouse in breach that he or she has accepted the repudiation. In most cases, where solicitors are called upon to prepare Separation Agreements, these agreements have been preceded by litigation, whether by way (1) of a Petition for a Divorce, a mensa et thoro, or (2) proceed- ings under the Guardianship of Infants Act, 1964, or (3) Proceedings in the District Court under the Main- tenance in case of Desertion Act, 1886. Emotions are necessarily running high when either the husband or wife meet their solicitor for the first time, and it is necessary for the solicitor to keep his cool, in fact a cooling-off period of a few days is most desirable. Even so there will be inevitable blood letting, in which each party makes accusations and counter-accusations against the other. In applying for alimony pendente lite, the wife will allege that the husband is a million- aire, while he will reply that he is penniless. In Guardianship cases, each party will file affidavits to show how unfit the other is to have custody of the children. The President of the High Court has given a direction that Guardianship cases are to be heard urgently. Public policy ensures that any agreement ous- ting the jurisdiction of the Courts after a separation deed has been concluded will be void. S. 120 of the Succession Act, 1965, foreshadows cases of constructive desertion, where the wife can claim after the husband's death if he has consistently kept her short of main- tenance. Damages can be awarded for arrears of main- tenance, or for failure to perform specified covenants. Specific performance is practically limited to the refusal of either party to execute the deed after agreeing to separate. An injunction is available for the breach of a negative covenant, such as a non-molestation clause. The various tax problems arising from the wording of the different maintenance agreements are considered in detail. Briefly it seems that the husband is liable for the full amount without deduction of income tax. As the events leading to a marriage are often steeped in emotion, so is also the breaking down of a marriage. It follows that a solicitor taking on a matrimonial case should be guided by compassion and charity, and should ensure that any action he takes does not result in an irretrievable breakdown of the marriage, but in arranging an amicable settlement of the differences as quickly as possible. Mr. Kevin Feeney, Barrister, delivered a lecture on "Changes in the Family Law (Maintenance of Spouses and Children) Bill 1975" on Saturday. He emphasised that since the enactment of S. 18 of the Courts Act, 1971, the number of maintenance applications in the District Court had doubled between 1971 and 1973, particularly in urban areas. At Common Law, a husband was obliged to main- tain his wife for her bare necessities. Under the Vag- rancy Act, 1824, so that the wife could not be a charge on local authorities, a husband could be prosecuted as a disorderly person for failing to maintain his wife and children. The Matrimonial Causes (Ireland) Act, 1870,

provided for an action for restitution of conjugal rights in the High Court which was rarely availed of. The basic law under which a wife can claim maintenance in the present District Court is the Married Women (Maintenance in case of Desertion) Act, 1886. The magistrates could then award to a wife who had been deserted a sum of up to £2.00 per week for the support of herself and her family. The Enforcement of Court Orders Act, 1940, extended the payment from £2.00 to £4.00 per week. S. 18 of the Courts Act, 1971, allows Justices to award up to £15.00 per week for the support of any child fully maintained by the wife until 17 years, and gave the High Court for the first time concurrent jurisdiction with the District Court to hear applications under the 1886 Act. Adopted and illegi- timate children henceforth come under the definition of "child". The proofs that the wife had to give to sustain a maintenance order under the 1886 Act were unchanged by subsequent legislation. In July 1973 the then Minister for Justice, Mr. O'Malley, requested the Committee on Court Practice and Procedure to examine and make recommendations on the law as to the deser- tion of wives, the attachment of wages, and the desira- bility of establishing special family tribunals. The Committee made various recommendations in February 1974. The following requirements had to be established under the 1886 Act in order to obtain maintenance : (1) Th at the applicant is married to the respondent. (2) Th at the applicant had been deserted by her husband. (3) Th at the husband is capable of maintaining his wife wholly or partially. Desertion is defined in Halsbury as "the intentional permanent abandonment of one spouse by the other without the other's consent and without reasonable cause". The English doctrine of constructive desertion has been applied. By this doctrine, if one spouse induces the other to leave the home as a result of his conduct, he is guilty of constructive desertion. If the parties live as two separate households under the same roof, the doctrine also applies. District Justices in Dublin have accepted this. It is a necessary precondition of desertion that there must be oral or written agreement in advance to separate. If there is wilful refusal and neglect to main- tain, which includes some element of misconduct and wrongful default by the husband, the wife may apply for maintenance. But no maintenance will ever be ordered if the wife had ever committed adultery, unless such adultery was condoned. By S. 22 of the Social Welfare Act, 1970, a wife was allowed under strict limitations to apply for a deserted wife's allowance if her husband failed to support her; more than 3,000 women have availed of this. Some applications for Home Assistance may also be made to the local Health Board. Let us now consider the Family Law (Maintenance of Spouses and Children) Bill, 1975, which was passed in the Dail on 25 February 1976 and will hopefully come into force about 1 May 1976. For convenience, the lecturer's remarks on the sections have been up- dated, where the sections were amended. In the inter- pretation of S. 3 the word "antecedent order" has been extended to include a maintenance order, and a varia- tion and interim order, as well as orders under the Illegitimate Children (Affiliation Orders) Act, 1930, Section 1 of the Guardianship of Infants Act, 1964, an order under the Maintenance Orders Act, 1947, and an order for alimony pendente lite. If children are receiving full-time educa-

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