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GAZETTE
JULY-AUGUST 1978
to say
(i) a provision whereby one spouse undertakes to
make periodical payments towards the maintenance
of the other spouse or of any dependent children of the
family or of both that other spouse and any dependent
children of the family.
(ii) a provision governing the rights and liabilities of the
spouses towards one another in respect of the making or
securing of payments (other than payments specified in
paragraph (1) or a disposition or use of any property).
Retrospection of the Maintenance Act of 1976
Mr. Justice Walsh considered that it was
"clear from the whole structure of the Act that its
purpose is to deal with the situation of the parties at
the time the proceedings were brought under the
Ac t . . . The basic question to be decided is whether
at any given time there is a failure by one spouse to
provide reasonable maintenance for the support of
the other spouse and any dependent children of the
family of the spouses".
Alimony
Mr. Justice Walsh expressed some interesting views
about the position of alimony orders since the
commencement of the Family Law (Maintenance of
Spouses and Children) Act 1976. It was his view that if
the Oireachtas in enacting the Act had intended that an
order for the payment of alimony in a divorce
a mensa et
thoro
decree or
pendente lite
should be a final
determination of the amount to be paid by one spouse to
the other, the Act would obviously have said so.
Res Judicata
It appears that until the decision in
D. v. D.,
the
application of the doctrine of
res judicata
in maintenance
cases had not been definitively ruled upon by the Irish
Courts. There appears to have been only one reported
case, the decision of a Circuit Court Judge, in which the
matter was considered.
In
Downey
v.
Downey
[1941] Ir. Jur. Rep. 72, a wife
sued for maintenance under the Married Women
(Maintenance in Case of Desertion) Act 1886. The first
summons was issued in July 1942 and was dismissed by
the District Justice. No appeal was taken on foot of this
summons but instead a second summons was sued out in
February 1943. This summons was identical in form and
contained precisely the same averments. Judge Davitt
was referred by counsel to English case law and ruled that
the matter was
res judicata.
He opined that if the issue of
a second or further summons were not barred a husband
might be subjected to repetitious attacks by a wife. It is
unfortunate that the High Court and the -Supreme Court
in
D. v D.
were not given an opportunity to endorse the
current understanding of the law since the decision in
Downey v. Downey.
It is conceded that neither the High Court nor the
Supreme Court in
D v. D.
considered the role of the
doctrine of
res judicata
in maintenance proceedings
generally. However, an inference that the doctrine has a
restricted operation in such proceedings might fairly be
drawn from the two judgments. Mr. Justice Walsh stated
it to be his view that "it is not possible to contract out of
the Act". The Act clearly permits further application for
a maintenance order after one had been made or for the
discharge or variation of a maintenance order (s. 6).
However, such applications will be possible only if new
circumstances exist or upon the production of evidence
not available to the party applying when the order was
made or last varied. The doctrine will not operate to
prevent application for maintenance under the Act by
persons who have, whether prior to or after the date on
which the Act came into force, entered into maintenance
agrements.
In this context a recent judgment, delivered the 10th
April 1977, of Mr. Justice Costello in the Case of
V.W.
v.
J. W.
is particularly interesting. This was a case in which
the plaintiff sought a declaration that a separation
agreement which she entered into with her husband in
1974 was void. Mr. Justice Costello first dealt with the
plaintiffs pleas of
non estfactum
and undue influence and
also with the contention that the defendant procured the
agreement while the plaintiff was drunk or under the
influence of drugs. After rejecting the Plaintiffs evidence,
the learned judge considered the claim that the agreement
was void by virtue of the provisions of s. 27 of the Family
Law (Maintenance of Spouses and Children) Act 1976.
As the defendant had not argued that the agreement
barred the plaintiff from any further maintenance under
the 1976 Act his Lordship held that there was clearly
nothing in the agreement which conflicted with the Act.
Mr. Justice Costello accordingly found for the
defendant. His judgment is primarily of relevance to the
present discussion for an
obiter dictum
which appears in
the final paragrpah. The learned judge commented that he
was relieved of the burden of considering "whether a
voluntary agreement between the parties can oust the
Court's jurisdiction conferred by the Act". This is no
longer an open question since the decision of the Supreme
Court in
D. v. D.
It is now possible to apply to the Court
for maintenance under the 1976 Act in cases where the
parties have entered into a maintence or other agreement
whether before or after the date on which the Act came
into force.
Statutory Interpretation — a new approach?
Mr. Justice Walsh in his judgment adverts to s. 116 of
the Succession Act 1965. Section 116 provides as
follows:
"(1) Where a testator, during his lifetime, has
made permanent provision for his spouse, whether
under contract or otherwise, all property which is
the subject of such provision (other then periodical
payments made for her maintenance during his
lifetime) shall be taken as being given in or towards
satisfaction of the share as a legal right of the
surviving spouse
(5) This section shall apply only to a provision
made before the commencement of this act".
In Mr. Justice Walsh's opinion it seemed clearly to
have been the intention of the legislature that, in the case
of a permanent provision made after the 1st July 1967
(the date of the commencement of the Act), the right
conferred in s. 113 of the 1965 Act on a spouse to
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