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GAZETTE
N O V
E M B E R
1983
or children was endangered by the misconduct of the
respondent spouse. O'Higgins C.J. and McCarthy J.
allowed the appeal on the ground that the decision of
Costello J. was based on the fact that the marriage had
irreconcilably broken down rather than on the
misconduct of the husband and was therefore wrong in
law.
Griffin J., while approving the principle established by
the other two Judges, held that Costello J. had granted
the Order on the factual basis of the misconduct of the
husband and that his decision was justified and he
therefore refused the appeal.
O'Higgins C. J., while approving the view of Costello J.
that the word welfare should be given very wide ambit,
was of the opinion that the behaviour of the husband
towards the wife, in this instance, was not sufficient to
justify the granting of a barring order (per O'Higgins
C.J.):
"The evidence of the Plaintiff indicates that various
incidents occurred — rudeness by the husband in
front of the children, a lack of sensitivity in his
manner to her and efforts by him at dominance in
running the house — none of which, in themselves,
could be regarded as amounting to serious
misconduct, and all of which would probably have ^
been tolerated, overlooked and forgiven, if the
1
marriage were viable. There was, as the learned
Judge found, no case of violence to be made against
the Defendant".
In summary, the Supreme Court held that barring
orders can only be granted when the 'safety or welfare' of
the applicant spouse or children is endangered by the
misconduct of the respondent. A barring order cannot be
granted simply on the basis of the irretrievable
breakdown of the marriage. The circumstances in which a
barring order can be granted depends upon the facts of
the particular case. However, in addition to situations of
physical violence, the Courts are entitled to grant barring
orders where the mental, emotional or moral welfare of
the applicant spouse or children are endangered by the
misconduct of the respondent spouse.
In comparing the judgments in
Richards
-v-
Richards
and
O'B
-v-
O'B
it is interesting to note that while the
.welfare of the children was the principle issue of concern
in the English case this aspect was never mentioned in the
Irish case. The House of Lords concentrated on the justice
and reasonableness of granting an ouster order as against
the paramountcy of the welfare of the children in
determining their decision. The Supreme Court
concerned itself with the issue of the conduct of the guilty
spouse as against the situation of a complete breakdown
in the marriage. However, as a result of the decisions in
both Courts the legal position in the two jurisdictions is
very similar. The Courts in both jurisdictions have to take
into consideration the conduct of the spouses, and the
welfare of the children is not to be a paramount factor;
and overall, the order made must be just and reasonable.
The decision in
O'B
-v-
O'B
highlights particular
problems in Irish Family Law. Firstly, barring orders are
not to be granted on the grounds of the irretrievable
breakdown of marriage or the incompatability of the
spouses. O'Higgins C.J. stated:
"It seems to me that this secion indicates that the
barring order, which is contemplated by the Act, is
intended to deal with a situation which is
changeable and remedial by the act of the parties or
one of them but not with a situation of complete
marital breakdown which may be beyond the
competence of either to remedy".
If this is the case and it would appear to be as a
consequence of the Supreme Court decision — it is surely
wrong for statutory law to allow the remedial barring
order to be available to parties to a marriage which is
encountering difficulties, without at the same time
providing a back-up welfare service to enable the parties
to resolve the difficulties of a marriage which has not
irretrievably broken down. It is unfair on a married
couple to in effect separate them for the purposes of
enabling them to retrieve their marriage without at the
same time giving them positive assistance to accomplish
this end.
Secondly, barring orders are not available in cases of
irretrievable marital breakdown. The only legal remedy
open to parties to a marriage in such circumstances is
Divorce '
a Mensa et Thoro\
which is only available in very
restricted circumstances. This represents a serious lacuna
in the law and a grave hardship for parties to marriages
which have run into such difficulties, especially where
there are children involved, and who find that there is no
effective legal remedy available to assist them.
•
• Note:
Since 24th July, 1981. the relevant statutory provision isScciion
2 of the Family Law (Protection of Spouses and Children) Act 1981.
which superceded and extended the provisions of Sec lion 22 of the 1976
Act.
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