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GAZETTE
JULY-AUGUST 1978
Maintenance Agreements
and the Family Law (Maintenance
of Spouses and Children) Act 1976
Gabriel J. McGann, Barrister-at-Law
"The Family Law (Maintenance of Spouses and
Children) Act 1976 and the Family Home Protection Act
1976 . . . together form a very comprehensive and far-
reaching code of law designed especially to protect
spouses and children both as to their cost of maintenance
and as to their shelter":
per
Walsh J. in
D. v. D.,
8 May
1978, unreported.
In the instant case some indication is given of the kind
of attitude that will be adopted by the Courts. It is
proposed to examine the judgments of Mr. Justice Doyle
in the High Court and the judgment of the Supreme
Court, which was delivered by Mr. Justice Walsh.
The Facts
The applicant, H.M.D., intermarried with the
respondent P.F.D. in 1952. Applicant and respondent
were wife and husband respectively. There were four
children born of the marriage two of whom had attained
their majority at the time of the proceedings in the High
Court, a third doing so before the proceedings were
disposed of by the Supreme Court.
Because of serious marital differences the applicant
filed a petition for divorce
a mensa et thoro
in December
1971. In November 1972 a motion was brought for the
payment of alimony
pendente lite.
On the 12th February
1973 the petition was settled on the basis of a written
consent signed by the parties and their respective
solicitors. This consent was handed into Court (Finlay J.).
By the consent of the parties the Court ordered that the
said consent should be received andfiled with and deemed
to be part of the order of the Court.
The terms of the consent are material. It was agreed
that the respondent should pay to the applicant "in full
satisfaction of all claims in the petition" the sum of
£10,000, £5,000 of which was payable immediately, the
balance to be paid within a year. The respondent further
agreed to pay interest on the outstanding sum of £5,000
or any part that might remain outstanding at the rate of
10%per annum. With regard to the children, the parties
agreed to act as joint guardians of the children and the
custody of the children was until further order granted to
the applicant the respondent being entitled to reasonable
access. The respondent undertook to pay for the
education of the third child at a named school until she
attained the age of 18 years and to pay for the education
of the fourth child at a named school until she attained the
age of 18 years. The respondent also agreed and
undertook to indemnify and help keep indemnified the
applicant against all charges in respect of the education of
the said two children.
The terms, of the consent set out above were in reality
those of a separation agreement. Indeed Walsh J.
characterised the consent as, in effect, a separation
agreement:
"The consent which was entered i n t o . .. was in
effect a separation agreement though not in the
ordinary form of a separation agreement and
certainly did not purport expressly to release each
of the parties from the duty of cohabiting with the
other. Neither did it contain any of the other
features which frequently occur in formal
separation agreements".
Estoppel
The judgments of Walsh J. and Doyle J. resolve
around the question whether or not by virtue of the Order
of Finlay J. the applicant was estopped from seeking, in
substance, to vary or amend the Consent. A 'preliminary
issue' arose in the High Court as to whether, in the
circumstances which had occurred in the proceedings
before Finlay J. for divorce
a mensa et thoro,
the
respondent's liability to make further payments also of
maintenance was
res judicata
and whether the wife was
accordingly estopped from seeking further maintenance.
(The preliminary issue in the judgment of Doyle J. was for
Mr. Justice Walsh 'the net point' which arose for decision).
Mr. Justice Doyle was content to dispose of the case in
favour of the applicant on the grounds that the Order was
necessarily interlocutory in character, and accordingly
the matter was
res judicata.
The learned judge relied on
the analogy of alimony.
"Moreover, the share or interest on the £10,000
lump sum or such part of it as relates to the wife's
maintenance and support may be said to be in
substitute for the more customary periodic
payments of alimony and therefore subject to
review by the Court".
Estoppel quasi of record
Mr. Justice Doyle then mentioned an additional
question, viz, whether "the additional solemnity conferred
upon [ the consent] by being incorporated in the Order of
Finlay J., operate [d] to effect an Estoppel
quasi
of
record". However, the learned judge did not comment on
it and consequently the question remains unanswered. It
is respectfully submitted that the doctrine of estoppel
quasi
of record should not be extended without a detailed
review of the law. The doctrine may apply to (a)
judgments of courts not of record, (b) final decrees of
ecclesiastical courts, (c) the adjudications of statutory
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