The Gazette 1977

GAZE1TE

DECEMBER1977

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

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

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