The Gazette 1972

See under Negligence; Radburn v Kemp; C. of A.; 5/7/1971. (Page 49). See under Motor Insurance; Albert v Motor Insurance Bureau; of L.; 9/7/1971 (page 49). The hard shoulder of a motorway was held to be part of the ^ e rge and not part of the carriageway. The Divisional Court "eld that the appellant, Mr. H. Wallwork, biscuit technician, ot Cleveleys, near Blackpool, had been wrongly convicted by fl olton magistrates of unlawfully causing a motor car to remain on the carriageway contrary to Regulation 7 of the Motorways Regulations, 1959, and that he should have been prosecuted u nder Regulation 9 for allowing his car to stop or remain at r est on the verge. [Wallwork v Roland; Q.B.D.; 9/11/1971.] Under the transitional provisions of the Road Traffic (Disquali- cation) Act, 1970, justices have no power to remove a driving ."qualification unless it was imposed "in consequence of a con- a t i o n of an offence under Section 110 (b) of the Road Traffic Ret, 1960" (driving while disqualified), and was a disqualifica- tion for "an additional period" in consequence of the convic- ion. The purpose of the 1970 Act was to strike at the cumula- lve effect of one order being imposed after another on so-

called compulsive drivers who drove and went on driving when disqualified. [Regina v Bradfield Sonning Justices ex parte Holdsworth: Q.B.D.; 22/11/1971.] Justices considering mitigating circumstances in deciding whe- ther not to impose a driving disqualification for speeding under the totting up procedure in Section 5 (3) of the Road Traffic Act, 1962, were held by a majority to be wrong to allow the offending motorist to adduce evidence showing that two pre- vious speeding offences were trivial. But the Divisional Court gave leave to appeal to the House of Lords on a certificate that a point of law of general public importance was involved in the decision. The point is "whether evidence of the circumstances attending previous convictions which bring Section 5 (3) into operation is admissible after conviction of an instant offence within Section 5 (3) as circum- stances to which the court may have regard as mitigating the normal consequences of the instant conviction." [Woodage v Lambie; Q.B.D.; 21/7/1971.] Sale of Goods See under Contract; January Gazette, p. 7; Worcester Works Finance Ltd. v Cooder Engineering Co. Ltd.; C. of A.- 20/7/1971. full force and effect until they were repealed or amended by enactment of the Oireachtas. It follows that the Oireachtas had power to pass legislation dissolving a marriage and to give jurisdiction to the Courts to grant divorces a vinculo. As Kingsmill-Moore, O'Daly and Lavery JJ decided in Mayo-Perrott v Mayo-Perrott (1958, I.R.)—the recog- nition of orders of divorce made by the Courts of another country, where the husband and wife had their domicile, has no logical connection with the power of the Oireachtas to dissolve a marriage. Thus the restric- tions imposed on divorce by the Constitution do not involve a general principle that the Courts should not recognise orders for the dissolution of a marriage made by the Courts of another country, when the parties to the marriage were domiciled in that country at the time of the Court proceedings. The present Oireachtas has not legislated in the matter—and so for the time being the law in force under Article 73 of the Constitution of 1922, and under Article 50 of the present Constitution is that the Irish Courts do recognise a dissolution of marriage granted by the Courts of the country where the parties were domiciled. Even though desertion is not recognised as a ground for judicial separation under Irish law. as the husband and first wife were throughout domiciled in England, the grounds upon which a divorce a vinculo are to be granted should be determined by English law. Accordingly the second wife, Kathleen, is deemed to be the official spouse under the Succession Act, 1965, and is entitled to the share of her legal right without giving any notice of election to the first wife, Yvonne. [Re Haden Caffin, deceased, Bank of Ireland and Goodbody v Kathleen Caffin and Yvonne Caffin; Kenny J.; unreported; 22nd December 1971.] Claim for fraudulent conversion upheld. Plaintiff, an English barrister, came to live in Ireland, resided at Kilternan, and had plenty of capital which 51

UNREPORTED IRISH CASES English divorce valid if the husband and wife were both domiciled in England at the time.

Husband, bom in 1896, married his first wife Yvonne, »n St. Marylebone, London, in 1928. They were domi- in England, and had no children. In March 1956, .A', husband presented a petition for divorce a vinculo the English High Court, on the ground that his first w »e had deserted him in March 1953. There was no a Ppearance, and the decree of divorce was eventually m ade absolute in June 1956. In July 1956, the husband harried his second wife, Kathleen, a widow, in the re gistrar's office in Dublin. Subsequently the husband Inquired a domicil of choice in Ireland by residing with A»s second wife there until his death in April 1970. They Aad no children, but he left a gross estate valued at ^68,000 at the time of his death. The second wife, Kathleen, has elected to take the °ne-half share of the estate,which she alleges she is e ntitled to, as there were no children, under Section 111 the Succession Act, 1965; this is in lieu of any bene- , 1 given to her in the will and codicil of her late u sband. Whether she is entitled to the share depends Apon the construction the Court puts on Article 41, ec tion 3, Subsection 3, of the Constitution which reads as follows : "No person whose marriage has been dis- °lved under the civil law of any other State, but is a u b~isting valid marriage under the law for the time oeing in force within the jurisdiction of the government a nd parliament established by this Constitution shall be ? a pable of contracting a valid marriage within that J Un sdiction during the lifetime of the other party to the Carriage dissolved." An 1921, the Courts in Ireland and in England recog- ^ised the validity of a decree of divorce a vinculo made V the Courts of the country where the husband and were both domiciled. Article 73 of the Constitution tb provided that, subiect to the extent to which . e y were not incónsistent therewith, the laws in force n the Irish Free State at the date of coming into Peration of the Constitution, should continue to be of