The Gazette 1978

GAZETTE

JULY-AUGUST 1978

Maintenance Agreements and the Family Law (Maintenance of Spouses and Children) Act 1976

Gabriel J. McGann, Barrister-at-Law

those of a separation agreement. Indeed Walsh J. characterised the consent as, in effect, a separation agreement: "The consent which was entered i n t o . .. was in effect a separation agreement though not in the ordinary form of a separation agreement and certainly did not purport expressly to release each of the parties from the duty of cohabiting with the other. Neither did it contain any of the other features which frequently occur in formal separation agreements". Estoppel The judgments of Walsh J. and Doyle J. resolve around the question whether or not by virtue of the Order of Finlay J. the applicant was estopped from seeking, in substance, to vary or amend the Consent. A 'preliminary issue' arose in the High Court as to whether, in the circumstances which had occurred in the proceedings before Finlay J. for divorce a mensa et thoro, the respondent's liability to make further payments also of maintenance was res judicata and whether the wife was accordingly estopped from seeking further maintenance. (The preliminary issue in the judgment of Doyle J. was for Mr. Justice Walsh 'the net point' which arose for decision). Mr. Justice Doyle was content to dispose of the case in favour of the applicant on the grounds that the Order was necessarily interlocutory in character, and accordingly the matter was res judicata. The learned judge relied on the analogy of alimony. "Moreover, the share or interest on the £10,000 lump sum or such part of it as relates to the wife's maintenance and support may be said to be in substitute for the more customary periodic payments of alimony and therefore subject to review by the Court". Estoppel quasi of record Mr. Justice Doyle then mentioned an additional question, viz, whether "the additional solemnity conferred upon [ the consent] by being incorporated in the Order of Finlay J., operate [d] to effect an Estoppel quasi of record". However, the learned judge did not comment on it and consequently the question remains unanswered. It is respectfully submitted that the doctrine of estoppel quasi of record should not be extended without a detailed review of the law. The doctrine may apply to (a) judgments of courts not of record, (b) final decrees of ecclesiastical courts, (c) the adjudications of statutory 115

"The Family Law (Maintenance of Spouses and Children) Act 1976 and the Family Home Protection Act 1976 . . . together form a very comprehensive and far- reaching code of law designed especially to protect spouses and children both as to their cost of maintenance and as to their shelter": per Walsh J. in D. v. D., 8 May 1978, unreported. In the instant case some indication is given of the kind of attitude that will be adopted by the Courts. It is proposed to examine the judgments of Mr. Justice Doyle in the High Court and the judgment of the Supreme Court, which was delivered by Mr. Justice Walsh. The Facts The applicant, H.M.D., intermarried with the respondent P.F.D. in 1952. Applicant and respondent were wife and husband respectively. There were four children born of the marriage two of whom had attained their majority at the time of the proceedings in the High Court, a third doing so before the proceedings were disposed of by the Supreme Court. Because of serious marital differences the applicant filed a petition for divorce a mensa et thoro in December 1971. In November 1972 a motion was brought for the payment of alimony pendente lite. On the 12th February 1973 the petition was settled on the basis of a written consent signed by the parties and their respective solicitors. This consent was handed into Court (Finlay J.). By the consent of the parties the Court ordered that the said consent should be received andfiled with and deemed to be part of the order of the Court. The terms of the consent are material. It was agreed that the respondent should pay to the applicant "in full satisfaction of all claims in the petition" the sum of £10,000, £5,000 of which was payable immediately, the balance to be paid within a year. The respondent further agreed to pay interest on the outstanding sum of £5,000 or any part that might remain outstanding at the rate of 10%per annum. With regard to the children, the parties agreed to act as joint guardians of the children and the custody of the children was until further order granted to the applicant the respondent being entitled to reasonable access. The respondent undertook to pay for the education of the third child at a named school until she attained the age of 18 years and to pay for the education of the fourth child at a named school until she attained the age of 18 years. The respondent also agreed and undertook to indemnify and help keep indemnified the applicant against all charges in respect of the education of the said two children. The terms, of the consent set out above were in reality