The Gazette 1977

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 is our business

Osborne King & Megran |

Dublin 760251 Cork 21371 Galway 65261

177