The Gazette 1989

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GAZETTE SEPTEMBER 1989
Safety, Health & Welfare
at Work Act, 1989 301
President's Column 308
Service of Documents
by Fax 318
Capital Acquisitions Tax
and the Favourite
Nephew Relief 321
Compensation Fund held
liable to Bank on basis of
Fraudulent Undertaking 327
Professional Information 333
•
*
Executive Editor:
Mary Gaynor
Committee:
Geraldine Clarke, Chairman
Eamonn G. Hall, Vice-Chairman
John F. Buckley
Gary Byrne
Patrick McMahon
Charles R. M. Meredith
Daire Murphy
John Schutte
Advertising:
Seán Ó hOisín. Telephone: 305236
307860
Printing:
Turner's Printing Co. Ltd., Longford.
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The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Place, Dublin 7.
Tel.: 710711. Telex: 31219. Fax: 710704.
GAZETT INCORPORATE D
LAW SOCIETY
OF IRELAND
Vol. 83 No. 9 Septembe r 1389
Viewpoint
The Judicial Separation and Family
Law Reform Act 1989 comes into
operation on the 19th October
next. This is the first Private
Member's Bill to become law for
three decades and history will
show it to be a very significant
piece of legislation wi th implica-
tions for society in general as well
as the profession.
The practice of Family Law has
unfortunately not been a priority
within the profession, with those
that do practise in this area not
always regarded as "real lawyers".
The statistics however, show that
marital breakdown is on the in-
crease and the legal implications of
such breakdown on property, in-
come and capital, on wills and
probate are extensive. The pro-
fession must be able to meet the
needs of those who find them-
selves in this situation and must in
particular familiarise themselves
with the provisions of the new Act.
The Judicial Separation Act now
places a responsibility on any
solicitor acting for either the
applicant or the respondent to
discuss with them the possibility of
reconciliation, the process of
mediation and the advantages of
concluding matters by Deed of
Separation and certify to the court
that such discussion has taken
place. In the case of reconciliation
and mediation, a list of qualified
persons or agencies must also be
furnished. The question is - are
such persons and agencies freely
available? Marriage counselling
services are run mainly by volun-
tary groups wi th the help of some
government funding. The Pilot
Scheme on Family Mediation which
completed its three year pro-
gramme in July last only received
a committment to continuation of
its service during the election
campaign. There are only limited
s t a t u t o ry based se r v i ces for
families in crisis despite the
elevated position of the family in
the Constitution. Further resources
are required.
The grounds for application to
the court for a decree of judicial
separation have been broadened to
include not only adultery and
cruelty (or unreasonable behaviour)
but also desertion and separation
(with and without consent for one
or three years respectively) and
finally where the marriage has
broken down to such an extent that
a "normal marital relationship" has
not existed for one year prior to the
application. "Normal marital re-
lationship" is, of course not defined
in the Act and will make for in-
teresting judicial interpretation!
This ground is designed to cover a
marriage which has irretrievably
broken down and/or where a couple
are separated in all respects except
that they continue to reside in the
same house.
The power of the court to make
ancilliary financial, property, cus-
tody and other orders is now very
extensive and will cover areas of
property, succession and trusts.
The court can award periodical
payments (both secured and un-
secured) for maintenance. It can
make lump sum orders in addition
to periodical payments. It can also
make property adjustment orders
which include ordering transfers of
property, placing property in settle-
ment, varying the entitlement of
spouses under existing settlements
and extinguishing or reducing such
entitlements. The extinguishment
of succession rights is left to the
discretion of the court to decide at
the time of granting the decree or
at any time thereafter.
Contd. on page 3J5.
299