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GAZETTE
APRIL 1985
be read according to its natural, literary and ordinary
meaning. Where the wording of a statute is clear the task
of interpretation does not arise. In such cases the plainly
expressed purpose of parliament must be given effect to,
even if it seems absurd or mischievous. The court has no
jurisdiction to determine a statute's reasonableness
per
se."
It is only where a literal interpretation of the wording
"leads to some result which cannot reasonably be
supposed to have been the intention of the legislature"
that it is proper to look for some other possible meaning
of the word or phrase."
12
When this arises it is permissible
to scrutinise the suspect language against the possible
consequences of a literal interpretation and against the
existing state of the law when the statute was passed.
13
Applying these precepts, to construe the phrase "the
rules of law" as comprehending statute law involves an
entire welter of anomalies. These, as has been suggested,
can be got round, but with considerable difficulty.
A fundamental principle of statutory interpretation is
that the parliamentary history of an Act cannot be relied
on as an aid to construction. This, however, has already
been ignored in several Irish cases, most noticeably by
O'Higgins C.J. in
Rowe
-v-
Lawe
and by Costello J. in
Wavin Pipes
-v-
Hepworth Iron
Co.
14
Even so, parlia-
mentary debates can only be resorted to as a last extreme.
It is submitted, though, that section 5 of the Family Law
Act 1981 could present such an extreme.
An examination of the parliamentary history of the
Family Law Act furnishes some illuminating
commentary. While the Bill was passing through the Dáil
in its second stage the Minister of State for the Depart-
ment of Justice, after reviewing the draft section 5(1),
went on to observe:
"The effect of this will be to apply to engaged
couples the common law rules evolved by the courts
in regard to contributions to the acquisition of
property by married couples."
15
Were this statement admissible as an aid to interpre-
tation, evidently section 5(1) could be construed as
applying only to constructive trusts. The brunt of
convention, however, dictates otherwise. Not allowing
the Minister's comment, the same result can only be
achieved by the circuitous elimination of the Succession
Act 1965 and the Family Home Protection Act 1976— an
elimination which, for the reasons mentioned, can never
be absolute.
Conclusion.
The provisions of the Family Law Act 1981 are
uncertain in their implications. While it probably requires
a test case to resolve some of the finer points practitioners
in the meantime should be mindful of the following:
1. A conveyance of property, whether for value or
otherwise, made within three years of a voluntary
disposition of it, may very well be void or voidable,
depending on whether section 3 of the Family Law
Act 1981 applies.
2. Purchasers' solicitors should take care to ensure
that the relevant statutory declaration of vendors
includes a clause confirming that the property being
sold is not subject to any claims under a resulting or
constructive trust.
3. Purchasers' solicitors should also ensure, until
judicial decision ordains to the contrary, that the
property being sold is not subject to any of the
provisions of the Succession Act 1965.
As a last word, it might be appropriate to suggest that
the Family Law Act 1981 provides a clear example of the
seriousness with which parliamentary drafting should be
regarded by our legislators, and be seen as so regarded! •
Footnotes
1. The passing of the equitable estate would depend largely on one's
interpretation of section 5.
2. [1969] 2 W.L.R. 966 at 997.
3. A somewhat penumbra-like statement of principle, culled from the
decisions in such cases as
C.
-v-
C.
[1976] I.R. 254,
E.
-v-
R.,
McMahon J. (unreported), 12th January 1979, K. -v- K., Finlay P.
(unreported), 20th November 1978, W. -v- W. [1981] ILRM. 202 and
G.
-v-
D.,
Keane J. (unreported), 28th April 1981.
4. Unreported, 29th March 1984.
5. [1979] I.R. 283.
6. Unreported, 22nd February 1980.
7. Dáil Debates 2nd April 1981 — Vol. 328 pages 1,039, 3,196.
8. Ibid.
9. This is the argument canvassed by Professor Ryan from University
College Cork in an opinion given to the Conveyancing Committee of
the Incorporated Law Society of Ireland and quoted in Rory
O'Donnell:
Conveyancing and The Family Home
(1983), Society of
Young Solicitors Lectures, Vol. 7, Lecture 146 page 65.
10. Cross:
Statutory Interpretation,
pages 29-30.
11.
Vide.
Lord Halsbury in
Cooke
-v-
Vogeier
[1901] AC. 107.
12. per Lord Reid in
Pinner-v- Everett [
1969] 3 All E.R. 257 at page 258.
13.
Maxwell on Interpretation of Statutes
— 11th edition. (1962), page 3.
14. [1978] I.R. 55 and Unreported, 8th May 1981, respectively. The latter
case is discussed in Casey:
Statutory Interpretation: A New Departure
[1981] DULJ. 110, in which Professor Casey posits some versute and
convincing reasons why the traditional grounds impunging
travaux
préparatoires
in the United Kingdom need not be applicable here.
15.
op. cit.
at fn. 7 ante, page 1,029.
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