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GAZE1TE
DECEMBER1977
District Court in a case which, on mature consideration,
would indicate the necessity eventually for a permanent
Order.
Separation Deed
Frequently enough a Family Law case coming to a
Solicitor may come in the guise of instructions or advice
towards the preparation of a Separation Deed where the
parties believe that without recourse to the Courts at all,
they can adjust the issues which arise on the break up of a
marriage, including of course the issues concerning any
children of the marriage. Possibly more frequently the
issue of a petition for separation or a summons under the
Family Law Maintenance Act 1976 may lead either
sooner or later to the same result.
As a contract or transaction between two parties, a
Separation Deed has, from a Solicitor's point of view, it
seems to me, three unique features which are worthy of
consideration.
1. Firstly, it would appear to me that in relation to all
the clauses of a Separation Deed which concern custody,
maintenance, access or education of children, an
obligation in the first instance is imposed on a Solicitor to
exercise a judgment in the interest of the welfare of the
children independent of the wishes of his client. In this
context therefore there arises this peculiar dual
relationship, which in no other form of litigation may
exist, between a Solicitor and a client. This duty arises
from the fact that, whilst he has his client and his duty to
his client, the Solicitor has in addition, apart from the
ordinary duties of propriety and correctness, a duty to
some other person which he must fulfil.
2. The second unique feature from a Solicitor's point
of view of a Deed of Separation would seem to me to be
that, whilst on the face of it it is intended in most cases as
a permanent solution of the issue between the parties,
either with or without its own inbuilt mechanism for
review or adjustment, in fact I would be confident as a
matter of law that any provision with regard to custody,
access, or maintenance of children or their education
contained in a Deed of Separation is necessarily and
inevitably subject to review by the Court under the
Guardianship of Infants Act 1964. Even the total
agreements of parents cannot, it would seem to me,
prevail against die statutory dominance of the welfare of
the child. Since the child's welfare is the concern of the
Court, a parent cannot, by a Deed, no matter how
solemnly expressed, debar himself or herself from
subsequently seeking the directions of the Court with
regard to the welfare of the child.
Apart from this general capacity to review, a factual
necessity for review is a very frequent ingredient of the
arrangements under a Deed of Separation. What a parent
agrees to at a particular time under such a Deed with
regard to the welfare of his or her children must be an
agreement made against a given background and set of
circumstances. In the interest of the children this can
never be properly an immutable agreement. It must be
flexible so as to meet requirements of changed
circumstances such as a parent making a new and
undesirable relationship; changes in the physical or
pyschiatric health of a parent; changes in the needs or
requirements of a child with increasing age; changes even
in the fortunes of the parties concerned.
A balance however here must be preserved, because
there is much sound reason in the desirability for certainty
which often leads to a Deed of Separation. It may be to
some extent defeating the whole purpose of such a Deed if
parents and children are constantly uncertain that its
provisions are to continue. Therefore this liability of the
provisions with regard to children contained in such a
Deed to review by the Court must be faced up to and
acknowledged, for it should not probably be over
emphasised nor should the Deed itself be expressed in too
qualified or conditional a fashion.
3. The third unique feature which I would point out
for your consideration in a Deed of Separation is that it
seems to me, that no matter how expressed, the
maintenance provisions can no longer be considered to be
final. It has been decided in England that provisions
similar to the maintenance provisions contained in the
Family Law Maintenance Act 1976 give to the Court a
jurisdiction even where the Deed of Separation has no
revision clause or appears expressly to prohibit a
provision to grant maintenance at variance with the
agreement of the parties.
Tulip
v.
Tulip [1951] 2 All
E.R. 91 and Dowell
v.
Dowell [1952] 2 All EX. 141.
There does not appear to be any Irish decision on the
same topic but in one case which I decided, without
reserving judgment, I was persuaded to follow the
reasoning of these English decisions. Unless corrected by
the Supreme Court I would intend to continue so to do.
The basis of these decisions is the terms of Section 5 of
the Act itself which appears to give to the Court in every
case where it is satisfied that a spouse, who has a duty to
do so, is not providing reasonable maintenance for the
other spouse and children, the power to make an Order
for maintenance. Quite obviously any recent agreement
between the parties embodied in a Deed of Separation,
and particularly an agreement which provides its own
method of adjustment according to needs or income, or
according to consumer price index or salary increases, is
very strong evidence indeed of what is or was at the time
of the deed appropriate and of what the parties felt with
due advice would be an appropriate and reasonable
amount of maintenance. The Court would not therefore
lightly interfere with the provisions of a Deed of
Separation, but, where for one reason or another, they
have become wholly inappropriate, either to the needs or
to the resources of the parties concerned so as genuinely
to leave the spouse failing quite clearly in his obligations
to maintain the other, the Court can and will interfere
under Section 5.
Since, however, one of the main purposes of a Deed of
Separation frequently is the achievement of certainty and
finality in financial matters, obviously an effort can be
made to avoid or minimise the possibility of a subsequent
Order under this Act. This can best be done by making
provision within the Deed itself for appropriate methods
of increase or variation. In so far as the provisions with
regard to maintenance reflect the needs of a spouse, they
can be tied by some fixed ratio to the consumer price
index. In so far as they must reflect the capacity to pay of
the other spouse, they can be tied to a salary or earnings
with adjustments in relation to variations in them.
In so far as the maintenance provision may be
concerned with children, a method of adjustment can be
provided both in relation to their increasing needs as they
grow older into their teens and for the decrease or cesser
of payment as they become of earning capacity.
Provisions can also be made with regard to any earning
or earning capacity of the wife and for variations in her
other sources of income. The more ample and flexible the
mechanism built into a Deed of Separation the more
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