The Gazette 1976

GAZETTE

JUNE/JULY 1976

land (see judgment of Lord Denning M.R. in

Watchel

v Watchel

[1973] I All E.R. 829 at p. 839), and there

are some indications that a similar rule of thumb is

already applied by some Justices in this country, but

there is yet no settled practice.

There will be even greater room for inconsistency in

cases where it is alleged that the plaintiff has been

guilty of misconduct or of contributing in some way to

breakdown of the marriage. (Cases of desertion and

adultery are referred to in the next section). Should a

fault principle operate to reduce the amount of main-

tenance received by the "guilty" spouse, or should

misconduct be ignored unless it is "obvious and gross"

(the principle accepted by Ld. Denning M.R. in

Watchel

supra at p. 835.)

Finally the practical problem of determining pre-

cisely what the earnings of a party are, has not been

resolved by the Act. Although s. 13 gives the Court

power to order an employer to give the Court a

signed statement of earnings, this can only be done at

the stage when attachment proceedings have been com-

menced against a maintenance debtor, not strangely

enough at the crucial stage when maintenance is first

being fixed.

Bars to relief

The Act keeps alive the concept of desertion and

constructive desertion together with the considerable

case law which has developed around them by pro-

viding in s. 6(2) that "the Court shall not make a main-

tenance order for the support of a spouse where the

spouse has deserted and continues to desert the other

spouse".

Adultery however ceases to be an obsolute bar and

becomes a discretionary bar to relief. Under the 1886

Act the position had been that a Justice was bound

to refuse maintenance to a wife who had committed

adultery, and might, though was not bound to, termin-

ate an order made in favour of a wife who subsequently

committed adultery. Under the new Act, provided that

the adultery is not condoned, connived at or by wilful

neglect or misconduct conduced to, it will not be an

automatic bar to relief. However the Act is worded in

such a way (s. 5(3)) as to permit a Justice to refuse

maintenance solely on the ground of an adulterous act

by the plaintiff spouse if he thinks it proper to do so.

In this matter especially, because an element of moral

judgment is involved, judicial approaches are likely to

be individualistic.

Discharge, variation and termination of orders

The provisions of the Act which fall under this head-

ing call for little comment save that there is a new

provision for the discharge of an order after a year

at the defendant's request where, having regard to his

record of payments and other considerations, and pro-

vided that the persons in whose favour the order was

made will not be prejudiced, the Court thinks it proper

to do so.

Section B. Maintenance Agreements

S. 8 of the Act enables either spouse for the first

time to have a maintenance agreement (as well as cer-

tain other forms of agreement) made a rule of Court,

with the result that the agreement may be treated as

a maintenance order for certain purposes, the most

important of these being enforcement. But it is im-

portant to note the restrictions. The agreement must

be written. It must be made after the commencement

of the Act. The Court must be satisfied that it is a fair

and reasonable agreement which in all the circum-

stances adequately protects the interests of both spouses

and any dependent children of the family. And the

agreement cannot, like other maintenance orders, be

varied by the Court.

S. 27, introduced at a late stage by the Minister for

Justice, makes void any agreement in so far as it

attempts to exclude or limit (inter alia) the bringing

of maintenance proceedings under the Act. This im-

portant section clarifies a doubtful point of law. Earlier

Irish cases had suggested that an agreement not to sue

for maintenance was fully enforceable. (See e.g.

Ross

[1908] I.R. 339 and

Courtney

vCourtney

[1923] I.R. 3, where there is even the suggestion that,

in the absence of an express covenant not to sue, it

may be possible to imply one into a maintenance agree-

ment if it can be established that this represented the

real character of the agreement.) After

Grealish

Murphy

[1946] I.R. 35 there was always the possibility

that in an extreme case a covenant not to sue might

be regarded as improvident, and the English Courts

eventually favoured the view that an agreement not to

sue would be void as being contrary to public policy.

(See

Hyman

[1929] A.C. 601.) In view of the

fact that, when maintenance agreements are concluded,

the parties are usually in unequal bargaining positions,

the new statutory provision is welcome.

The wording of s. 27 is careful not to make void

other elements that may be included in the maintenance

agreement. Thus, although a wife may not be held to

her promise not to sue, her husband will still be con-

tractually bound to pay the agreed maintenance.

It will be interesting to see what effect ss. 8 & 27

have on the popularity of maintenance agreements.

They certainly make such agreements less attractive

from the point of view of the liable spouse—normally

of course the husband. If a husband knows that his

wife may apply to have their agreement made a rule of

Court, that she may then enforce it by e.g. attachment

of his earnings, and that her promise not to sue for

further maintenance is valueless, his incentive to enter

into an agreement in the first place to avoid litigation

is reduced.

Section C. Affiliation Proceedings

The most substantial amendments made by the

Minister for Justice to his original Bill (introduced

mainly at the Report stage) relate to affiliation pro-

ceedings, and they result from his acceptance of the

principle that the maintenance rights of legitimate and

illegitimate children should be broadly equal.

The

same principle is to be found in the recently finalised

European

Convention on the Legal Status of Children

Born out of Wedlock

(October 1975). The definition

of dependent child is in the Act the same in affiliation

proceedings as in inter-spousal maintenance proceed-

ings; the maintenance limit of £15 per week per child

in the District Court is the same in both kinds of pro-

ceeding; and the methods laid down in the Act for

collecting and enforcing maintenance payments are

the same in both.

The normal limitation period for bringing proceed-

ings has been extended from 6 months to 3 years (2

years in the original Bill) after the birth of the child.

And in a case where the alleged father has not been

resident in the State or has ceased residing in the

State within the 3 year period, the limitation period

will now run, not from the time when he enters or re-

enters the State, but from the time when he takes up