The Gazette 1977

GAZETTE

JULY

marital relationship, the number of custody cases coming before the Courts, in which one or both parties to a broken marriage is engaging in an adulterous relationship is likely to increase. The Judiciary in applying the welfare principle to such custody disputes is faced with a moral dilemma. It is a dilemma that will be aggravated if the Nullity Bill proposed in the previous Attorney General's White Paper on the law of nullity becomes law. The danger is that in seeking a means to resolve that dilemma, despite judicial statement to the contrary, an award of custody will become a prize for good, or at least moral matrimonial behaviour and the importance of the parties conduct as parents and their relationship as parents with their children will be forgotten. BIBLIOGRAPHY Family Law in the Republic of Ireland by A. J. Shatter, Chapter 13. M.O'B. v. PM.O'B, Jan, 1971, unreported High Court, 1965, No. 207 Sp. - Gazette, April 1971, p. 256. JJ.W. v. BM.W. 1971 (110 I.L.T.R. 45) High Court, Supreme Court. M.B.O'S v. P.O.O'S 1973 (110 I.L.T.R. 57) High Court, Supreme Court. - Gazette, 1974, p. 172. EX. v. MX. May 1974 unreported High Court, Record Number 1973/17Sp. July 1974 unreported Supreme Court, Record No. 1974/86. - Gazette, December 1974, p. 265. W. v. W. December 1974 unreported Supreme Court Record No. 1974/148. June, 1974 unreported High Court Record No. 1971/203Sp. (There was no written judgment delivered by the Supreme Court when confirming the later High Court Order).—Gazette, March 1975, p. 43. Cullen v. Cullen May, 1970 unreported Supreme Court 1969/59. B.V.B. (1975) I.R. 54 Supreme Court-Gazette, April 1971, p. 256. B. v. B. July, 1972 unreported High Court, Record No. 1968/146 Sp. H. v. H. Feb. 1976 unreported High Court, Record No. 1975/450 Sp. - Gazette, Jan./Feb., 1976, p. 6. K. (Minors) (Wardship) [1977] 1 All E.R. 647 (C.A.>. S (B.D.) v. S (DJ) [1977] 1 All E.R. 656 (C.A.) In some of the above cases there are written judgments, other than those I referred to. I have merely listed above those which I have dealt with in this paper. brought up in a different religion from the one in which he was born. Parke J., in approving of Re Tilson (1951) I.R. 1, and Re May 92 I.L.T.R. and Art. 42(1) of the Constitution, held that the mother had no right to change the religion of the child against the wishes of the father. Socially, the child might become "odd man out" if he adopted the tenets of another religion. Morally, the Courts will not generally grant custody to a parent who has abandoned the matrimonial home. Under Irish law, no lawful union can take place between the mother and Mr. G. during the father's lifetime. The father lives with his parents, and the

home because of the behaviour of her husband. Put simply, Parke, J. decided that the infants' welfare would be placed in greater danger if he went to reside with his mother and G. in an adulterous situation than if he remained in the custody of a father who was an unstable person, a drunkard and a wife beater. I personally believe the reasoning behind this decision is open to serious question. I find it even more curious in the light of Parke J.'s statement that he believed Mr. G. had "the qualities which would make him a good father". By way of comparison a recent English decision by the Court ofAppeal is ofparticularinterest. InReR/M/nors) an order was made granting an adulterous mother the care and control of her two children (a boy aged 5 | and a girl of 2|). The marriage between the parents had irretrievably broken down. The mother had an adulterous relationship with M and wished to leave the matrimonial home without the children. The Court of Appeal, per Stamp, L. J., affirming the decision of the Family Division of the High Court (Reeves J.), stated that "the dictates of nature that the mother is the natural guardian, protector and comforter of very young children and in particular of a very young girl had not been displaced" by the mother's conduct. The welfare of the children was the first and paramount consideration and the mother was described as "an excellent mother". Even if the children were placed in the father's care, Stamp L. J. stated they would not be protected from "moral and spiritual harm", as they could not fail to be aware of the circumstances in which their mother was residing. This latter approach is very similar to that adopted by Henchy J. and Griffin J. in M.B. O'S v. P.O.O'S. An important difference between the decision and the Irish decision discussed earlier is that the English court was prepared to grant custody to a parent about to leave her children and live in an adulterous relationship. Another recent English decision of interest in this context is that of S(DX) v. S(DJ.) (1977). In the case Ormrod L.J. emphasised the danger of condemning one parent for adulterous behaviour without taking into account the matrimonial misbehaviour of the other parent. The Court has stressed that the best interests of the child is the predominant consideration in custody matters. If the interests of the child require that he or she be awarded to one parent, the interests and wishes of the other parent must yield to the child's interests, whether or not that parent's matrimonial conduct has been unimpeachable. In a Society whose Courts possess no jurisdiction to dissolve the matrimonial bond, upon the breakdown of a Editor's Note The Editor wishes to dissociate himself from the conclusions reached by the author, namely, that the number of custody cases before the Courts, in which one or both parties to a broken marriage is engaging in an adulterous relationship is likely to increase. While the proposed Nullity Bill is not perfect, everyone has been given an opportunity to make submissions. In H. v. H. (1976) it is necessary to emphasise that Mr. G. was a divorced rich alien who belonged to a minority religion. It follows that, if custody of the child had been awarded to the mother, who was a hairdresser with her own establishment, the child would inevitably have been 108