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GAZE1TE
DECEMBER1977
that fact. I would like to see a situation, if this Act is
being amended or reformed, whereby some sort of
register of these Orders would be kept by the Gárdai
Siochána on a regional basis and whereby the Court
could officially inform the Gárdai who themselves could
carry down the information to the local station concerned
of the making of an Order and of its terms.
Maintenance
Whether the form of litigation as between husband and
wife appropriately chosen is a petition for separation or a
summons under the Family Law Maintenance Act 1976,
there are certain general considerations with regard to the
question of maintenance which I would suggest to you.
The first is that it is absolutely essential to get into the
head of each of the spouses that it is inevitable that an
income, which up to the time of the break-up of a
marriage was adequate to maintain a single
establishment, will not be adequate to maintain two
separate establishments. Both parties therefore must
inevitably, upon the making of an Order for maintenance
and the living apart of the husband and wife, be prepared
to accept a significant cut back in their living standards.
Furthermore, notwithstanding the neutral provisions of
the Act, these cases occur in of course a preponderance of
instances as claims by a wife against a husband. My
experience has been that, except for very special types of
employment, the husband's capacity to earn is nearly
always impaired by the break-up of his marriage and by
his going to live separately from his wife.I think therefore
it is unrealistic to approach any case either upon the
basis that the wife is likely to be able to maintain the same
standard of living for herself and/or for herself and her
children than she had prior to the break-up, or that it is
wise to presume in every case, certainly with regard to
persons in self earning occupations, that the same income
will be enjoyed in gross by die husband after the break up
of the marriage as it was before. For this reason, and
probably also from the psychological point of view
towards trying to assist the wife, as it so often is to settle
into the concept of living separately from her husband,
there is much to be said for trying to persuade her to look
realistically towards the possibility of earning. As you are
of course aware, under the provisions of the Act and in
particular under Section 5 sub-section 4 of it the income
earning capacity after the break-up of her marriage, for
of both spouses is a material consideration for the Court.
It is therefore necessary for a Solicitor to examine the
earning capacity of a wife whose children are of sufficient
age or so few in number that she can resume some
earning capacity after the break up of her marriage, for
the purpose of being able to deal with this aspect of the
matter, if the case comes fully to hearing at Court. It
seems to me at least probable that, in a number of cases,
the urging of the wife back to some sort of earning
capacity giving to her a sense of independence, and
possibly to some extent something to prevent her from
continuously brooding on what undoubtedly has been a
tragedy in her life, may be of great assistance towards her
rehabilitation.
Order under Section
22
of the Family Law
Maintenance Act 1976
As you are aware the constituent factors which arise
under Section 22 for consideration by the Court are that
there are reasonable grounds for believing that the safety
or welfare of a spouse or of any dependent child requires
the other spouse to leave the place where he is residing,
or, if he is not residing there, to prohibit him from
entering that place until further order for afixed time. It is
not necessary always to establish safety as being involved
and the welfare, particularly of children, can, I would
think, and would, I imagine, by most Courts be held to
be, seriously affected by a total series of hostile rows even
though they might not lead to physical assaults.
Under the terms of the Act there is no provision which
makes mandatory the application for such an Order to be
on notice. The instances in which the Court would be
justified in granting an Exclusion Order
ex parte
are rare.
I have however come across one or two cases where I was
satisfied that it was an appropriate and necessary order
on a very short term basis of say two or three days or
over a weekend until the other party could be heard. It is
almost unnecessary I should think to emphasise that, if a
client comes in seeking an Exclusion Order against his
or her spouse on an
ex parte
basis and as a
matter of great urgency . . ., the Solicitor . . .
should ensure if at all humanly possible that the facts
which are being presented are true. It is not often possible
in the time available in such an urgent matter to get
corroboration, but where it is even in the form of
information and belief, such as a letter from a Guard or
from a Doctor, this would greatly assist the Court with
regard to any such application when it is made
ex-parte.
With regard to these Exclusion Orders under Section
22, one other relatively minor matter may be worth
noting. The power of the District Court to make such an
Order is limited to the making of a three months Order
and the making of one further Order for three months.
The power of the High Court is unlimited. It is
undesirable from the point of view of the multiplication of
proceedings, as well as from the point of view of having a
trial of the issue in two separate forums, to proceed in the
Valuation for compensation
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