The Gazette 1976

GAZETTE

JUNE/JULY 1976

of the Act. The Court must be satisfied that it is a fair and reasonable agreement which in all the circum- stances adequately protects the interests of both spouses and any dependent children of the family. And the agreement cannot, like other maintenance orders, be varied by the Court. S. 27, introduced at a late stage by the Minister for Justice, makes void any agreement in so far as it attempts to exclude or limit (inter alia) the bringing of maintenance proceedings under the Act. This im- portant section clarifies a doubtful point of law. Earlier Irish cases had suggested that an agreement not to sue for maintenance was fully enforceable. (See e.g. Ross v Ross [1908] I.R. 339 and Courtney vCourtney [1923] I.R. 3, where there is even the suggestion that, in the absence of an express covenant not to sue, it may be possible to imply one into a maintenance agree- ment if it can be established that this represented the real character of the agreement.) After Grealish v Murphy [1946] I.R. 35 there was always the possibility that in an extreme case a covenant not to sue might be regarded as improvident, and the English Courts eventually favoured the view that an agreement not to sue would be void as being contrary to public policy. (See Hyman v Hyman [1929] A.C. 601.) In view of the fact that, when maintenance agreements are concluded, the parties are usually in unequal bargaining positions, the new statutory provision is welcome. The wording of s. 27 is careful not to make void other elements that may be included in the maintenance agreement. Thus, although a wife may not be held to her promise not to sue, her husband will still be con- tractually bound to pay the agreed maintenance. It will be interesting to see what effect ss. 8 & 27 have on the popularity of maintenance agreements. They certainly make such agreements less attractive from the point of view of the liable spouse—normally of course the husband. If a husband knows that his wife may apply to have their agreement made a rule of Court, that she may then enforce it by e.g. attachment of his earnings, and that her promise not to sue for further maintenance is valueless, his incentive to enter into an agreement in the first place to avoid litigation is reduced. Section C. Affiliation Proceedings The most substantial amendments made by the Minister for Justice to his original Bill (introduced mainly at the Report stage) relate to affiliation pro- ceedings, and they result from his acceptance of the principle that the maintenance rights of legitimate and illegitimate children should be broadly equal. The same principle is to be found in the recently finalised European Convention on the Legal Status of Children Born out of Wedlock (October 1975). The definition of dependent child is in the Act the same in affiliation proceedings as in inter-spousal maintenance proceed- ings; the maintenance limit of £15 per week per child in the District Court is the same in both kinds of pro- ceeding; and the methods laid down in the Act for collecting and enforcing maintenance payments are the same in both. The normal limitation period for bringing proceed- ings has been extended from 6 months to 3 years (2 years in the original Bill) after the birth of the child. And in a case where the alleged father has not been resident in the State or has ceased residing in the State within the 3 year period, the limitation period will now run, not from the time when he enters or re- enters the State, but from the time when he takes up

land (see judgment of Lord Denning M.R. in Watchel v Watchel [1973] I All E.R. 829 at p. 839), and there are some indications that a similar rule of thumb is already applied by some Justices in this country, but there is yet no settled practice. There will be even greater room for inconsistency in cases where it is alleged that the plaintiff has been guilty of misconduct or of contributing in some way to breakdown of the marriage. (Cases of desertion and adultery are referred to in the next section). Should a fault principle operate to reduce the amount of main- tenance received by the "guilty" spouse, or should misconduct be ignored unless it is "obvious and gross" (the principle accepted by Ld. Denning M.R. in Watchel v Watchel supra at p. 835.) Finally the practical problem of determining pre- cisely what the earnings of a party are, has not been resolved by the Act. Although s. 13 gives the Court power to order an employer to give the Court a signed statement of earnings, this can only be done at the stage when attachment proceedings have been com- menced against a maintenance debtor, not strangely enough at the crucial stage when maintenance is first being fixed. Bars to relief The Act keeps alive the concept of desertion and constructive desertion together with the considerable case law which has developed around them by pro- viding in s. 6(2) that "the Court shall not make a main- tenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse". Adultery however ceases to be an obsolute bar and becomes a discretionary bar to relief. Under the 1886 Act the position had been that a Justice was bound to refuse maintenance to a wife who had committed adultery, and might, though was not bound to, termin- ate an order made in favour of a wife who subsequently committed adultery. Under the new Act, provided that the adultery is not condoned, connived at or by wilful neglect or misconduct conduced to, it will not be an automatic bar to relief. However the Act is worded in such a way (s. 5(3)) as to permit a Justice to refuse maintenance solely on the ground of an adulterous act by the plaintiff spouse if he thinks it proper to do so. In this matter especially, because an element of moral judgment is involved, judicial approaches are likely to be individualistic. Discharge, variation and termination of orders The provisions of the Act which fall under this head- ing call for little comment save that there is a new provision for the discharge of an order after a year at the defendant's request where, having regard to his record of payments and other considerations, and pro- vided that the persons in whose favour the order was made will not be prejudiced, the Court thinks it proper to do so. Section B. Maintenance Agreements S. 8 of the Act enables either spouse for the first time to have a maintenance agreement (as well as cer- tain other forms of agreement) made a rule of Court, with the result that the agreement may be treated as a maintenance order for certain purposes, the most important of these being enforcement. But it is im- portant to note the restrictions. The agreement must be written. It must be made after the commencement

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