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adultery. Acts of adultery must be substantial, per-
sistent and extending over a significant period, and
can be mental as well as physical, such as constantly
humiliating the innocent spouse in public. A wife who
obtains a decree of separation may then apply to a
Judge for permanent alimony and can apply to in-
crease the amount from time to time. In a separation
suit, the husband is often obliged to pay the costs of
both sides. It is therefore common that such a suit
is compromised by providing for a negotiated
Deed of
Separation.
But even in this case, in view of the con-
stant fall in the value of money, it would be unwise
to provide for definite payments of alimony, but rather
for periodical reviews, which, in the event of disagree-
ment, could be determined by an independent expert,
or alternately determine it according to the cost of
living index figure. The legal right share to which
each spouse is entitled to under the Succession Act
1965 should also be considered. The old
dum-casta
clause is now becoming less acceptable. Normally, if
the parties become reconciled and co-habit again the
separation deed will cease to have effect. An action
for restitution of conjugal rights is rare nowadays—
see
Daly v
Daly
—unreported
1969.
Gaurdianship of infants:
At Common Law, the father of a legitimate child had
the paramount right to its control and custody. The
Guardianship of Infants Act 1886, and the Custody of
Children Act 1891, established that, in guardianship
proceedings, the first and permanent consideration wa
the infant's welfare. Subject to this, the father had a
natural right to the custody of his legitimate child.
But, by the 1886 Act, the mother as well as the father
could apply for the child's custody. If the claims of
parents for custody are conflicting, the Courts should
have regard to the wishes of each party, and to the
conduct of the parents. Article 41 as to the rights of
the family in the Constitution is then quoted, as is also
Article 42 relating to education. Following the Supreme
Court decision in
Tilson v
Tilson
—(1951)
I.R., the
Guardianship of Infants Act 1964 was passed, which
re-enacted that the welfare of the infant is the first
and paramount consideration. Unfortunately matri-
monial disputes are often an intense, emotional and
subjective form of human conflict, and it is often
difficult for the Court to determine what is best for
the children; sometimes for instance, it may be better
for the more guilty party to obtain custody—but the
Court does its best to do justice to both parties. In
Butler v Butler
(1970) The Supreme Court held that
Orders under the 1964 Act were interlocutory in nature
and reviewable at any time; in fact Kenny J. subse-
quently in 1972, reviewed the Supreme Court order
as to custody made in that case. Guardianship pro-
ceedings consequently tend to encourage warning parents
to revise the litigation. The 1964 Act also provided
that the father and mother of an infant shall be
guardians of the infant jointly, and must be consulted
jointly on all important matters concerning upbringing,
welfare and education. Either parent may appoint a
testamentary guardian to stand in his or her shoes
after his death, who can act together with the sur-
viving parent if agreement is reached, otherwise an
application is made to the Court. Section 11 relates to
Court applications. Any parent or guardian may apply
to the Court for directions regarding the welfare of
the infant, which the Court may grant subject to pay-
ment of maintenance. In the light of Pope Paul's
recent decree there may henceforth be disagreement re-
garding the religious upbringing and education of
children. By Section 18, in the case of a judicial
separation, the Court may declare the parent by reason
of whose misconduct the decree was made, to be a
person unfit to have the custody of the children. If a
judicial separation is contemplated and there are sub-
sequent proceedings relating to the guardianship of
the children, it is usual to have the two proceedings
tried by the same Judge. But guardianship proceed-
ings are not concerned with matrimonial wrongdoing,
and the Court would award the custody of very young
children to a guilty mother. Terms relating to the
custody of children in separation agreements may sub-
sequently be changed by the Court.
Guardianship procedure:
The applications for guardianship proceedings must
be made by Special Summons supported by affidavit.
This affidavit is often of inordinate length setting out
chapter and verse for the unhappy history of the mar-
riage. The defendant then files a replying affidavit
of great length dealing with various allegations, and
often adding counter-allegations. The judge then
directs a plenary hearing. But it is important to refer
to all major incidents if the party does not wish to
be subsequently criticised by the judge. This would
be unnecessary if guardianship actions were commenced
by Plenary Summons, followed by statement of claim,
Defence and Reply.
There is also an unfortunate tendency on both sides
to call psychiatrists as to the effect of the broken
marriage upon the children. Normally the psychiatrist
only meets the parent who instructs him, and has no
knowledge of the other, and thus his opinion cannot
be complete, and can lead to conflicting psychiatric
evidence. It is unwise to submit children to psychiatric
examination unless they are mentally disturbed. Most
judges consider that, unless they are mature, it is un-
wise to interview the children, as it may cause the
children to take sides in disputes between their parents,
and that the parent having custody of the children
at the time of the trial will brainwash them. A sensitive
child may be subjected to a traumatic experience if
interviewed—and compelled to take sides in the dispute,
although he may love both parents, and this could be
harmful psychologically.
Criminal conversation:
This is an action in tort, by a husband against a
third party who has committed adultery with the wife
of the plaintiff. In the Southern case, although there
was substantial evidence that the plaintiff's marriage
had been unhappy long before the advent of the de-
fendant, and the morality of the plaintiff was seriously
attacked, the jury nevertheless assessed damages at
£12,000. In the other Donegal case, the plaintiff was
an innocent looking man, whose wife had been enticed
away from him by the blandishments of a powerful
and influential local figure. The plaintiff's case ran well,
and, at the end of it, the action was settled for £3,000
odd. There is an appeal pending in the first case in
the Suprertie Court.
Senator Professor Mary
Robin:on
lectured on Saturday
afternoon, 4th November, on two distinct subjects—
The Status of Children under the Adoption Acts of
1952 and of 1964—and—The Recognition and En-
forcement of Foreign Divorce Decrees. Professor
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