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GAZETTE
JULY-AUGUST 1978
tribunals and in certain circumstances, the sentences of
courtsmartial, (d) the rulings of domestic tribunals, (e)
foreign judgments and (f) arbitration awards. (
See
16
Halbury's Laws of England, 4th ed., paras. 1565-1570).
Estoppel of record arises,
inter alia,
where an issue of
fact has been
judicially determined in
a final manner
between the parties by a tribunal having jurisdiction in the
matter and die same issue comes directly in question in
subsequent proceedings between the same parties. Mr.
Justice Doyle does not indicate in his judgment which of
these elements was wanting. He did not indicate whether
the issue of face (i.e. the maintenance of the applicant and
the two dependent children) had been judicially resolved
but in a manner which was not sufficiently final or whether
he believed there had not been a judicial ruling at all.
Law of Contract
Instead Mr. Justice Doyle disposed of the case under
the law of contract. He found it unnecessary to consider
whether any of the provisions of the Family Law
(Maintenance of Spouses and Children) Act 1976 and the
Family Home Protection Act 1976 were retrospective in
effect so as to override agreements entered into prior to
the date on which the Act came into operation.
The learned judge briefly stated it to be his view that
the Acts affected "the present status, rights and
obligations of husband and wife. The extent of these
rights and obligations is governed by the law of contract
elaborated by Pollock, C.B. in
Berwick
v.
Oswold,
31 EI
& Bl. 653. I think every contract (which does not
expressly provide to the contrary) must be considered as
made with reference to the existing state of the
law; . . . and I think that the intervention of the
Legislature in altering the situation of contracting parties,
in principle, is analogous to a convulsion of nature against
which parties may provide but if they have not provided,
it would generally be considered as excepted out of
contract".
It is undoubtedly true that the consent in the present
case was in the nature of a contract and subject
accordingly to the rule enunciated by Pollock, C.B. in the
Mayor of Berwick v. Oswald.
However the point should be made that the 1976
Maintenance Act modifies this rule. It is implied in the
statement of the learned Chief Baron that where a
contract expressly provides for the future state of the law
it can stand on its own and will not be affected by later
legislation. It is clear from a reading of the judgment of
Mr. Justice Walsh that the Act of 1976 regulates such
contracts:
"In my view, it is not possible to contract out of the
Act by an agreement made after the Act came into
force or by an agreement entered into before the
legislation was enacted".
The judgment of Mr. Justice Doyle may be
summarised as follows:
(i) the applicant's claim was in effect, one to vary or
amend a consent;
(ii) the respondent's liability had not been judicially
determined in a final manner and consequently has
liability to make further payments of maintenance under
the 1976 Act was not
res judicata
and the claim of the
applicant on behalf of herself and the children was not
properly the subject of an estoppel;
(iii) the law of contract, more particularly the rule in
Berwick v. Oswald,
was applicable and the Consent must
be considered as made with reference to the existing state
of the law in 1973.
The Appeal to the Supreme Court
The approach of Mr. Justice Walsh in the Supreme
Court is significantly different in emphasis to that of Mr.
Justice Doyle in the High Court. His Lordship focused
attention primarily on the provisions of the 1976 Act. In
his view, the claim by'the applicant came within the
provisions of s. 5 of the Family Law (Maintenance of
Spouses and Children) Act 1976. She was not barred
from obtaining relief as there was no question of either
desertion or adultery, (ss. 5, 6).
Mr. Justice Walsh rejected the contention of counsel
for the respondent that as the consent entered into by the
parties in the matrimonial proceedings was made part of
the order of the court there had in effect been an
adjudication and a final settlement of all matters which
were contained in the consent.
This contention could not be accepted "having regard
to the provisions of the Family Law (Maintenance of
Spouses and Children) Act 1976". The consent, it would
appear, was binding subject to the provisions of the 1976
Act.
Mr. Justice Walsh elaborated his reasons for rejecting
the contention of counsel that there was a final settlement
of the maintenance issue by referring to s. 8 of the Act
and at a later stage to the "whole structure of the Act".
Section 8 of the 1976 Aet
Section 8 of the 1976 Act makes express provision for
the position of an agreement in writing (including a
separation agreement) entered into
after
the
commencement of the Act. (It is clear that the consent in
the present case would have been regarded as an
agreement referred to in s. 8 had it been concluded after
the commencement of the Act). Under the section the
Court may if it is satisfied that the agreement is a fair and
reasonable one adequately protecting the interests of both
spouses and any dependent children of the family, make
an order. The effect of such an order is that so far as the
provisions in the agreement relating to maintenance are
concerned they are deemed to constitute a maintenance
are concerned they are deemed to constitute a
maintenance order for the purpose of the Act, with
consequent advantages of enforcement, such as
attachment of earnings. It is clear from that section that
separation agreements entered into after the coming into
force of the Act do not amount to an election to forego
the benefit of the provision of the Act but effectively
constitute no more than a factor to be taken into account
by the Court pursuant to s. 5. Mr. Justice Walsh
remarked:
"A fortiori the operation of the Act cannot be
affected by a separation agreement or other
document in the nature of the consent in this case
entered into before the passing of the Act unless
there is an express provision to the contrary in the
Act".
The agreements which are referred to in s. 8 must
include either or both of the following provisions, that is
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