The Gazette 1994

GAZETTE

NOVEMBER 1994

Recent Irish Cases

Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University

The following case summaries have been reprinted f r om t he

Irish Law

Times and Solicitors Journal

w i t h t he kind permission of t he publishers.

In the Matter of the Matrimonial

Home Bill 1993: Supreme Court (Finlay

CJ, O'Flaherty, Egan, Blayney and

Denham JJ) 24 January 1994

Constitution - Family - Vesting of equit-

able interest in matrimonial home in both

spouses as joint tenants --Automatic altera-

tion of joint decisions which might have

been made by married couples in relation to

the ownership of matrimonial homes - Pos-

sible need for fresh agreements or court

action to reinstate the effect of joint deci-

sions - Failure by the State to protect the

authority of the family - Presumption of

constitutionality in respect of Bill referred

to Supreme Court pursuant to Article 26 -

Stare decisis -

Function of the court when

considering Article 26 reference - Consti-

tution of Ireland 1937, Articles 26, 41

Facts It was proposed by s. 4 of the

Matrimonial Home Bill 1993 that,

where a dwelling had at any time since

25 June 1993 been occupied by a mar-

ried couple and either or both of the

spouses had an interest in the dwelling,

the equitable interest in that dwelling

was to vest in both spouses as joint ten-

ants. S. 5 provided that s. 4 did not apply

to an interest in a matrimonial home

which was vested in spouses as joint

tenants or tenants in common in equal

shares. S. 6 empowered the court, on an

application by the spouse who was not

the spouse in whose favour s. 4 oper-

ated, to declare that the provisions of s.

4 should not apply to the matrimonial

home as and from a specified date. By

virtue of s. 7, a spouse who would oth-

erwise benefit from the operation of s. 4

could, after obtaining independent le-

gal advice, make a declaration in writ-

ing to the effect that s. 4 should not

apply to the matrimonial home. In the

absence of an agreement to the con-

trary, s. 14 provided that household

chattels owned by either or both of the

spouses would belong to both spouses

as joint owners. The President of Ireland

referred the 1993 Bill to the Supreme

Court pursuant to Article 26 of the Con-

stitution.

Held by the Supreme Court in finding

that the Bill was repugnant to Article 41

of the Constitution: (1) There were no

compelling reasons which would per-

mit the court to depart from previous

decisions which established that in re-

lation to the presumption of constitu-

tionality a distinction should not be

drawn between an Act of the Oireachtas

and a Bill referred by the President un-

der Article 26.

In re the Criminal Law

(Jurisdiction) Bill 1975

[1977] IR 129 ap-

plied;

State (Quinn) v. Ryan

[1965] IR 70

and

Attorney General v. Ryan's Car Hire

Ltd

[1965] IR 642 considered. (2) The

encouragement by appropriate means

of joint ownership in family homes was

conducive to the stability of marriage

and the general protection of the insti-

tution of the family.

L. v. L.

[1992] 2 IR

77 considered. (3) The right of a married

couple to make a joint decision as to the

ownership of a matrimonial home was

one of the rights of the family recog-

nised in Article 41.1.1° as being inalien-

able and imprescriptible, and antece-

dent and superior to all positive law.

The exercise of this right was an impor-

tant part of the authority of the family

which the State guaranteed to protect in

Article 41.1.2°. (4) The Bill's application

of automatic ownership as joint tenants

to every instance of a dwelling occupied

by a married couple on or after 25 June

1993 interfered with decisions which

may have been jointly made in relation

to the ownership of the matrimonial

home. The application was universal

and was not dependent on the decision

being injurious or oppressive in respect

of a spouse or members of the family, or

a spouse having failed to discharge his

or her family obligations. (5) The man-

datory creation of joint equal interests

also applied to every family home irre-

spective of when it was first acquired by

the married couple and irrespective of

the time at which a freely reached deci-

sion between the spouses may have

been made as to the nature of the own-

ership and in whom it should vest. (6)

If a joint decision that ownership

should vest in only one of the spouses

had been made, after the coming into

force of the Bill this could only continue

if the non-owning spouse made a dec-

laration in accordance with s. 7. The

non-owning spouse, on grounds which

could be reasonable or unreasonable,

might refuse to make such a declaration

and this could lead a couple who may

have been content but not enthusiastic

about the arrangements which they had

made and by which a substantial part of

their married life had been governed to

become involved in the litigation con-

templated in s. 6. (7) The Bill could re-

sult in the automatic cancellation of a

joint decision freely made by both

spouses and its substitution with a

wholly different decision unless the

spouses could agree to a new joint deci-

sion confirming the earlier agreement

or the owning spouse could obtain an

order under s. 6. This did not constitute

reasonably proportionate intervention

by the State with the rights of the family

and amounted to a failure by the State

to protect the authority of the family

which was guaranteed by Article 41.

The fact that joint ownership of the mat-

rimonial home can be conducive to the

stability of marriage could not justify

such potentially indiscriminate altera-

tion of joint decisions validly made

within the authority of the family. (8)

The Supreme Court had no advisory

role in respect of proposed legislation.

It was not part of its function under

Article 26 to impress any part of a re-

ferred Bill with a stamp of constitution-

ality and to do so would be to disregard

the constitutional doctrine of the sepa-

ration of powers.

In re the Housing (Pri-

vate Rented Dwellings) Bill 1981

[1983] IR

181 considered.

Reported at [1994] 1 ILRM 241

Simon Fraser and Another v. Denis

Buckle and Others: High Court

(Costello J) 30 September 1993

Contract - Enforceability - Whether heir-

locator contract enforceable - Maintenance

of an action - Clwmperty - Whether law of

champerty applies to heir-locator contract -

Whether heir-locator contract relating to

interest outside Ireland contrary to public

policy

Facts The plaintiffs were partners in a

firmwhich carried on a business in Lon-

don described as 'genealogists and in-

ternational probate researchers'. In Oc-

tober 1987 the plaintiffs were informed

that the estate of an intestate named

Evelyn Herbert, who had died on 17

January 1986 was then being adminis-

tered in the courts of New Jersey. The

plaintiffs then set about searching for

any heirs to that estate. Four persons

were traced who appeared to be the

only next-of-kin of Evelyn Herbert,

namely Mrs Patricia M. Byrne, Mrs Ve-

ronica M. Doherty, Mr Denis Buckle

and Mr Mervyn Buckle. The first three

were the defendants in this action, sepa-

rate proceedings having been taken

against Mr Mervyn Buckle in Scotland,

where he resided. The plaintiffs in-

formed the defendants that they could