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GAZE1TE
DECEMBER1977
unlikely is a subsequent successful application by either
spouse under Section 5.
Married Women* Status Act 1957
Proceedings under the Married Womens Status Act
1957 can be divided into two broad categories. The first
consists of those which arise from a situation where a wife
has made a direct cash contribution towards the purchase
of a house or of furniture or effects, either consisting of
the entire price, or, more probably, of a share or
proportion of the price. The second broad category is
where the wife has made a contribution to a joint
household budget out of which, to take the most frequent
practical example, mortgage repayments of the house are
provided. This form of joint contribution may either be a
genuinely pool budget, or, as has been dealt with in a
number of decided cases, may consist of the relief by the
wife's earnings or payments of the husband from what
would otherwise be his expenses, leaving him free directly
out of his earnings to pay all the mortgage repayments.
Obviously the first type of case is more easily prepared
and presented than the second. If the wife has made a
cash contribution, then all that may be necessary is to
establish the amount of that contribution, the amount of
the total cost of the house or chattels concerned and
possibly, for the assistance of the Court, the present day
values.
In the latter case, however, more difficult
considerations apply, and some attempt to assess the
whole cost of the house or property concerned, the whole
of the household income and the broad categories of
expenditure in it may become necessary.
The only practical advice which one can give with
regard to these types of proceedings, which of course vary
enormously, is that they are particularly susceptible of
pre-trial procedures. Once a Solicitor realises the issues
which must inevitably arise in a claim undér the Married
Womens Status Act, whether he is prosecuting or
defending it, it becomes clear that discovery of
documents, notices for particulars, notices to admit and
even interrogatories must be properly employed in order
to permit him, not only to present his case with certainty
and expedition, but also to assess, long before the expense
of a full hearing, the probable result of it.
Family Home Protection Act 1976
I do not intend to elaborate, as I originally indicated,
on merely the legal remedies arising under this or any
other Act. The issues arising are relatively clear from the
provisions of the Act and the particular circumstances
under which they may arise would seem to me to vary
enormously. There is, however, one matter which may be
of some assistance, because it is a practical matter arising
in a new statute. As you are aware under the provisions of
Section 4 sub-section 3 and 4 of this Act, the Court must
grant consent to the sale of a family home where the other
spouse whose consent is required has deserted, and may
grant consent where the other spouse is, by reason of
mental incapacity, unable to do so or cannot, after
reasonable enquiry, be traced. In any one or more of
these type of applications, I think practice will probably
indicate that proceedings have to be in effect
ex-parte,
there being no possibility of finding the defendant so as to
serve him. It seems to me as a matter of practice that
there is a risk, no matter how careful a Solicitor may be,
that he, and therefore, the Court, could be imposed on
in such an
ex-parte
application. A devious and fraudulent
spouse employing a Solicitor, who had not previously
dealt with his or her business, could easily, by the
swearing of a false affidavit, obtain an Order under these
sub-sections on his own word alone, notwithstanding the
ready availability of the other spouse and possibly good
grounds which could be adduced by her or him as to why
the Order should not be made. As a matter of practice
therefore I have circulated a note to the appropriate
authorities suggesting that in any such case where
ex-
parte
proceedings in effect are necessary, the affidavit of
the applicant spouse, dealing with the question of
desertion, the mental incapacity of the other spouse, or
the impossibility of tracing him or her as the case may be,
should, in its material facts, be corroborated by a
separate affidavit made by a responsible disinterested
person.
Nullity Proceedings
I have left to the last in this discussion the question of a
petition for a decree of
non estfactum
or for a declaration
that no marriage was entered into between the parties. As
you are aware, this is a subject on which the former
Attorney General issued a paper for discussion dealing
with the possibility of considerably extending and
reforming the existing law, and it would not be practical
within the context of this evening's discussion to elaborate
on that in any way. Certain clear cut facts concerning the
existing procedure for nullity can be very shortly
emphasised, possibly with some benefit. The first is that
there is no link between a nullity in the law of the Catholic
church and a nullity in the Civil Courts. Neither is there
any presumption, rebuttable or otherwise, that a
marriage, which has been declared null by the Catholic
church, and set aside by it, will be declared null by the
Civil Court. There is not any bar, even in the case of a
Catholic marriage between two Catholics, to the
successful institution of proceedings for nullity in the
Courts before or in the absence of, or even after an
unsuccessful application for nullity, according to the law
of the Church.
As a practical matter, in recent years, a number of
cases for petitions of nullity are undefended. When they
are, in most cases practiced considerations make it very
desirable indeed to corroborate, as far as it is at all
possible by evidence independent of the applicant spouse,
the facts which are relied on.
SAINT LUKE'S CANCER
RESEARCH FUND
Gifts or legacies to assist this Fund are most
gratefully received by the Secretary, Esther Byrne,
at "Oakland", Highfield Road, Rathgar, Dublin 6.
Telephone 976491.
This Fund does not employ canvassers or collectors
and is not associated with any other body in fund
raising.
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