The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

the written consent of the other spouse is not available,

to make a statutory declaration on the lines of the

suggested certificate. Presumably the purchaser would

then be considered to have purchased "in good faith".

It would seem only logical to amend Section 12 of the

Act by adding what may be called "the marital equity"

under this Act to the list of burdens which affect

registered land under Section 72 of the Registration

of Title Act, 1964, although not registered as burdens:

presumably it is not intended that registration of a

transfer by a husband to a purchaser should in all

cases over-ride claims by his wife: or is the onus of

ensuring that there is no possibility of such a claim

to be put on the Land Registry officials?

In England, an analogous Act was passed some years

ago, namely the Matrimonial Homes Act, 1967

(amended by the Matrimonial Proceedings and Property

Act, 1970). The Act of 1967 provided that where one

spouse had the legal right to occupy the home and the

other spouse had not such right, such other spouse

could not be evicted, save by order of the Court and

this right should be a charge on the legal right of

the first-mentioned spouse. But, to be valid as against a

purchaser for value, this right has to be registered. It

was held in

Rutherford

(1970) 3 All E.R.

422 that this right had to be declared by the Court to

assist before it could be registered as a charge, but

this decision was over-ruled by the Court of Appeal

Watts and Another

Waller and Another

(1972)

3 All E.R. 257. Unless the Charge was registered

under the Land Charges Act, 1925, it would not

prevail against a subsequent purchaser or registered

chargeant. Hence the problems created for convey-

ancers by our Family Home Protection Act, 1976,

cannot arise in England. In this country the Legislature

in its anxiety to protect one section of the Community,

has created serious problems for other and possibly

larger Sections including house purchasers, banks and

building societies and lawyers dealing with questions

of title to land.

CORRESPONDENCE

13 Northumberland Road,

Dublin 6.

31st December, 1976.

Re: ANTI-DISCRIMINATION (UNFAIR

DISMISSALS) BILL 1976

Sir,

Mrs. Matthews is to be complimented on her com-

prehensive paper on the above Bill and related topics

in the November issue.

I am, however, a little surprised that she should

describe as "one of the more welcome provisions in

the Bill" Section 6 (1) which puts on an employer the

onus of proof that dismissal was not unfair.

Even more surprising is the reason given that " . . .

an employee may be said to possess or own his job

What about the employer, whose capital and enter-

prise have created the job opportunity ? (It is currently

estimated that it costs £10,000 to create one job).

Quite apart from that aspect, it is a cardinal principle

of our legal system that the onus of proof rests on a

claimant. To legislate otherwise surely requires more

consideration than the present Bill is receiving in the

Dail. Not a single reference was made in the debates,

so far, to this radical and highly controversial pro-

vision.

It must not be overlooked that the Bill protects not

merely the worker on the shop floor, but the entire

hierarchy of "employees", including top executives

of our largest organisations. To give to such "em-

ployees" the protection proposed in this Bill could

cause most difficult problems. Possibly it is this very

fact that has resulted in the deafening silence from

•those organisations which might have been expected

to be most concerned at the provisions of this Bill.

I write to express concern, less the prominence given

to Mrs. Matthews' otherwise excellent paper — and

the absence of comment — might lead the profession

to assume that it represents the Society's viewpoint.

Fortunately, the Bill is deferred until late January

when, hopefully, the constitutionality of this provision

may come under closer scrutiny.

Yourr faithfully,

F. X. Burke,

Solicitor.

22, Kildare Street,

Dublin 2.

21st December, 1976.

GUIDE LINES — FAMILY LAW

Dear Mr. Gavan Duffy,

I read with interest the article which appeared in

the October edition of the Gazette under the heading of

Guide Lines Family Law. In an otherwise accurate

summary of the position it is stated under the sub-

heading of "Civil Marriages" that "where a marriage

is to be contracted in the Registry Office the Registrar

is required at the expense of the parties to the marriage

to publish notices at least once in two consecutive

weeks next after receiving the notice in a newspaper

circulating in the district in which the marriage is in-

tended."

The above requirement only applies where neither

party attends any place of worship. If one or both

parties attends a place of worship the Registrar for-

wards a copy of the Notice of Marriage to the clergy-

man for the church and no notice is required in a daily

paper.

Yours faithfully,

Raymond V. H. Downey,

Registrar for the City & County of Dublin

211