The Gazette 1976

GAZETTE

March 1976

SOCIETY OF YOUNG SOLICITORS

1 lie 21 st Seminar of the Society of Young Solicitors was

held in the Great Southern Hotel, Galway, on Satur-

day 15 th and Sunday 16th November 1975 and

attracted an attendance of 230 members.

Hie first paper was given on Saturday morning by

Mr. Bryan McMahon, LL.M., Lecturer in Law, Univer-

sity College, Cork, on The Right of Establishment in

the European Community. It is hoped to publish a

summary later.

1 he second lecture on Saturday was delivered by

Mr. Michael O'Mahony, LL.M., Solicitor, on The

Drafting of Separation Agreements. The lecturer

emphasised that a separation agreement was essentially

one between a husband and wife to live separate and

apart from one another. The House of Lords decided in

Wilson v. Wilson (1848) that an agreement for separ-

ation between spouses was not illegal and since then,

separation agreements are not uncommon. McMahon

v. McMa hon (1913) 1 I.R. 432, per Palles C.B., held

tha t an agreement entered into between a husband and

wife, while living separate and apart, providing for

their resumed cohabitation, and that, in the event of a

future separation, provision should be made for the

wife, was valid and enforceable. Galloway v. Galloway

(1914) 30 T.L.R., held that a separation agreement

entered into on the assumption that the parties were

validly married when in fact the marriage was (un-

known to each party) bigamous, was itself void for

mistake.

As regards the common terms in Separation Agree-

ments, apart from the respective names of husband and

wife, it is essential to state the date and place of the

marriage. The following term is then essential : —

nhappy differences have arisen between the husband

and the wife, and they have agreed to live apart from

each other. The husband has agreed to make provision

for the wife on the terms and conditions herein con-

tained. If there are children, their names and dates of

birth should be given. By the non-molestation clause,

the parties contract to live separate and apart from the

marital control of the other, and neither of them shall

molest, disturb or interfere with the other or his or her

relations, friends or acquaintances, or in his or her

profession or business. There is also a maintenance

clause for the payment of a stated amount to the wife.

1 he wording setting out the extent of the husband's

liability for maintenance is vital. If the covenant can

he construed as an independent undertaking, then

maintenance payments could be continued even after

the husband's death. The maintenance agreement is

one normally to last during the wife's life, and would

be enforceable against the husband's personal repre-

sentatives if he should predecease her. There are some-

times clauses affecting either a change in the husband's

income, or further payments due to inflation. Nor-

mally the maintenance agreement will cease in the event

of a judicial separation between husband and wife.

It is also possible to insert a

"Dum casta'

clause by

which maintenance payments will be terminated if the

wife openly and notoriously cohabits with another man

ns husband and wife.

As regards clauses relating to the custody and main-

tenance of children, S. 18 (2) of the Guardianship of

Infants Act, 1964, provides that either the father or

the mother may give up the custody and control of the

infant to the other. If the wife is given custody of the

eluldren, it is usual to provide that the husband should

have access to them, and that he should pay periodical

sums to the wife by way of maintenance for them.

In consideration of this, it is common for the wife to

undertake to be fully liable for educating and main-

taining them up to 18 years of age. If the covenant to

maintain the children is not carefully framed, the hus-

band may find himself liable on the covenant, not-

withstanding a subsequent resumption of co-habitation,

or that the children have attained their majority. The

husband should also ensure that in consideration of the

maintenance agreement, lie should receive an indem-

nity from the wife against debts incurred or to be

incurred by her on her own or the children's behalf.

The husband's right to access should also be defined

in accurate detail (precedent supplied in lecture).

As regards property, if the husband and wife own the

matrimonial home as joint tenants, and, as is most

usual, the wife and young children are remaining in the

home and the husband is leaving, it is usual for the

husband to bind himself to continue the mortgage

repayments, rates, ground rent, and insurance over

and above the maintenance payable. The wife should

ensure that, in the event of the husband being sole

owner, the mortgagee should notify the wife of repay-

ments made so that he cannot enforce ail order of

sale of the matrimonial home without her knowledge.

It is sometimes advantageous to sell a large rambling

house, and acquire a modern one, even if the property

is in the joint names of husband and wife. Disputes

often arise between the parties as to whether the furni-

ture and other moveables belong to the husband or

wife, but S. 20 of the Family Law Bill, 1975, intends to

provide that any property acquired out of a household

allowance, will, the absence of agreement to the con-

trary, belong to husband and wife jointly. It is a com-

mon practice, since the Succession Act, 1965, came into

force in 1967, for all separation agreements'to contain

a mutual renunciation of each spouse's right under S.

INCORPORATED LAW SOCIETY OF IRELAND

THE

SUMMER MEETING

OF THE SOCIETY

will be held in

Mount Brandon Hotel,

Tralee, Co. Kerry

7th - 9th May, 1976

Programme and Registration Forms

available from the Society