The Gazette 1977

DECEMBER1977

GAZE1TE

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.

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 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 of a full hearing, the probable result of it. Family Home Protection Act 1976

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