The Gazette 1976

GAZETTE

(1), either as to one half, if there are no children, or as

to one third if there are children, of the estate of the

other; this does not affect the moral duty of either

spouse under S. 117 to make provision for the children

according to their means.

The discharge of separation agreements is governed

by the law relating to discharge of contracts.

(1) It may be effectively discharged jn accordance

with its terms (Newsome, 2 Prob. & Div., 1871).

(2) Separation agreements may be discharged by

breach of contract.

Pardy

(1939) 3 All ER,

held that the innocent party is not bound to inform

the spouse in breach that he or she has accepted the

repudiation.

In most cases, where solicitors are called upon to

prepare Separation Agreements, these agreements have

been preceded by litigation, whether by way (1) of a

Petition for a Divorce,

a mensa et thoro,

or (2) proceed-

ings under the Guardianship of Infants Act, 1964, or

(3) Proceedings in the District Court under the Main-

tenance in case of Desertion Act, 1886. Emotions are

necessarily running high when either the husband or

wife meet their solicitor for the first time, and it is

necessary for the solicitor to keep his cool, in fact a

cooling-off period of a few days is most desirable.

Even so there will be inevitable blood letting, in which

each party makes accusations and counter-accusations

against the other. In applying for alimony

pendente

lite,

the wife will allege that the husband is a million-

aire, while he will reply that he is penniless. In

Guardianship cases, each party will file affidavits to

show how unfit the other is to have custody of the

children. The President of the High Court has given

a direction that Guardianship cases are to be heard

urgently. Public policy ensures that any agreement ous-

ting the jurisdiction of the Courts after a separation

deed has been concluded will be void. S. 120 of the

Succession Act, 1965, foreshadows cases of constructive

desertion, where the wife can claim after the husband's

death if he has consistently kept her short of main-

tenance. Damages can be awarded for arrears of main-

tenance, or for failure to perform specified covenants.

Specific performance is practically limited to the refusal

of either party to execute the deed after agreeing to

separate. An injunction is available for the breach

of a negative covenant, such as a non-molestation

clause. The various tax problems arising from the

wording of the different maintenance agreements are

considered in detail. Briefly it seems that the husband

is liable for the full amount without deduction of

income tax. As the events leading to a marriage are

often steeped in emotion, so is also the breaking down

of a marriage. It follows that a solicitor taking on a

matrimonial case should be guided by compassion and

charity, and should ensure that any action he takes

does not result in an irretrievable breakdown of the

marriage, but in arranging an amicable settlement

of the differences as quickly as possible.

Mr. Kevin Feeney,

Barrister, delivered a lecture on

"Changes in the Family Law (Maintenance of Spouses

and Children) Bill 1975"

on Saturday. He emphasised

that since the enactment of S. 18 of the Courts Act,

1971, the number of maintenance applications in the

District Court had doubled between 1971 and 1973,

particularly in urban areas.

At Common Law, a husband was obliged to main-

tain his wife for her bare necessities. Under the Vag-

rancy Act, 1824, so that the wife could not be a charge

on local authorities, a husband could be prosecuted as

a disorderly person for failing to maintain his wife and

children. The Matrimonial Causes (Ireland) Act, 1870,

provided for an action for restitution of conjugal rights

in the High Court which was rarely availed of. The

basic law under which a wife can claim maintenance

in the present District Court is the Married Women

(Maintenance in case of Desertion) Act, 1886. The

magistrates could then award to a wife who had been

deserted a sum of up to £2.00 per week for the support

of herself and her family. The Enforcement of Court

Orders Act, 1940, extended the payment from £2.00

to £4.00 per week. S. 18 of the Courts Act, 1971,

allows Justices to award up to £15.00 per week for the

support of any child fully maintained by the wife until

17 years, and gave the High Court for the first time

concurrent jurisdiction with the District Court to hear

applications under the 1886 Act. Adopted and illegi-

timate children henceforth come under the definition of

"child". The proofs that the wife had to give to sustain

a maintenance order under the 1886 Act were

unchanged by subsequent legislation. In July 1973 the

then Minister for Justice, Mr. O'Malley, requested the

Committee on Court Practice and Procedure to examine

and make recommendations on the law as to the deser-

tion of wives, the attachment of wages, and the desira-

bility of establishing special family tribunals. The

Committee made various recommendations in February

1974.

The following requirements had to be established

under the 1886 Act in order to obtain maintenance :

(1) Th at the applicant is married to the respondent.

(2) Th at the applicant had been deserted by her

husband.

(3) Th at the husband is capable of maintaining his

wife wholly or partially.

Desertion is defined in Halsbury as "the intentional

permanent abandonment of one spouse by the other

without the other's consent and without reasonable

cause". The English doctrine of

constructive

desertion

has been applied. By this doctrine, if one spouse induces

the other to leave the home as a result of his conduct,

he is guilty of constructive desertion. If the parties

live as two separate households under the same roof,

the doctrine also applies. District Justices in Dublin

have accepted this.

It is a necessary precondition of desertion that there

must be oral or written agreement in advance to

separate. If there is wilful refusal and neglect to main-

tain, which includes some element of misconduct and

wrongful default by the husband, the wife may apply

for maintenance. But no maintenance will ever be

ordered if the wife had ever committed adultery, unless

such adultery was condoned.

By S. 22 of the Social Welfare Act, 1970, a wife was

allowed under strict limitations to apply for a deserted

wife's allowance if her husband failed to support her;

more than 3,000 women have availed of this. Some

applications for Home Assistance may also be made to

the local Health Board.

Let us now consider the Family Law (Maintenance

of Spouses and Children) Bill, 1975, which was passed

in the Dail on 25 February 1976 and will hopefully

come into force about 1 May 1976. For convenience,

the lecturer's remarks on the sections have been up-

dated, where the sections were amended. In the inter-

pretation of S. 3 the word

"antecedent order"

has been

extended to include a maintenance order, and a varia-

tion and interim order, as well as orders under the

Illegitimate Children (Affiliation Orders) Act, 1930,

Section 1 of the Guardianship of Infants Act,

1964, an order under the Maintenance Orders

Act, 1947, and an order for

alimony

pendente

lite.

If children are receiving full-time educa-