The Gazette 1978

JULY-AUGUST 1978

GAZETTE

(iii) the law of contract, more particularly the rule in Berwick v. Oswald, was applicable and the Consent must be considered as made with reference to the existing state of the law in 1973. The Appeal to the Supreme Court The approach of Mr. Justice Walsh in the Supreme Court is significantly different in emphasis to that of Mr. Justice Doyle in the High Court. His Lordship focused attention primarily on the provisions of the 1976 Act. In his view, the claim by'the applicant came within the provisions of s. 5 of the Family Law (Maintenance of Spouses and Children) Act 1976. She was not barred from obtaining relief as there was no question of either desertion or adultery, (ss. 5, 6). Mr. Justice Walsh rejected the contention of counsel for the respondent that as the consent entered into by the parties in the matrimonial proceedings was made part of the order of the court there had in effect been an adjudication and a final settlement of all matters which were contained in the consent. This contention could not be accepted "having regard to the provisions of the Family Law (Maintenance of Spouses and Children) Act 1976". The consent, it would appear, was binding subject to the provisions of the 1976 Act. Mr. Justice Walsh elaborated his reasons for rejecting the contention of counsel that there was a final settlement of the maintenance issue by referring to s. 8 of the Act and at a later stage to the "whole structure of the Act". Section 8 of the 1976 Aet Section 8 of the 1976 Act makes express provision for the position of an agreement in writing (including a separation agreement) entered into after the commencement of the Act. (It is clear that the consent in the present case would have been regarded as an agreement referred to in s. 8 had it been concluded after the commencement of the Act). Under the section the Court may if it is satisfied that the agreement is a fair and reasonable one adequately protecting the interests of both spouses and any dependent children of the family, make an order. The effect of such an order is that so far as the provisions in the agreement relating to maintenance are concerned they are deemed to constitute a maintenance are concerned they are deemed to constitute a maintenance order for the purpose of the Act, with consequent advantages of enforcement, such as attachment of earnings. It is clear from that section that separation agreements entered into after the coming into force of the Act do not amount to an election to forego the benefit of the provision of the Act but effectively constitute no more than a factor to be taken into account by the Court pursuant to s. 5. Mr. Justice Walsh remarked: "A fortiori the operation of the Act cannot be affected by a separation agreement or other document in the nature of the consent in this case entered into before the passing of the Act unless there is an express provision to the contrary in the Act". The agreements which are referred to in s. 8 must include either or both of the following provisions, that is

tribunals and in certain circumstances, the sentences of courtsmartial, (d) the rulings of domestic tribunals, (e) foreign judgments and (f) arbitration awards. ( See 16 Halbury's Laws of England, 4th ed., paras. 1565-1570). Estoppel of record arises, inter alia, where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction in the matter and die same issue comes directly in question in subsequent proceedings between the same parties. Mr. Justice Doyle does not indicate in his judgment which of these elements was wanting. He did not indicate whether the issue of face (i.e. the maintenance of the applicant and the two dependent children) had been judicially resolved but in a manner which was not sufficiently final or whether he believed there had not been a judicial ruling at all. Law of Contract Instead Mr. Justice Doyle disposed of the case under the law of contract. He found it unnecessary to consider whether any of the provisions of the Family Law (Maintenance of Spouses and Children) Act 1976 and the Family Home Protection Act 1976 were retrospective in effect so as to override agreements entered into prior to the date on which the Act came into operation. The learned judge briefly stated it to be his view that the Acts affected "the present status, rights and obligations of husband and wife. The extent of these rights and obligations is governed by the law of contract elaborated by Pollock, C.B. in Berwick v. Oswold, 31 EI & Bl. 653. I think every contract (which does not expressly provide to the contrary) must be considered as made with reference to the existing state of the law; . . . and I think that the intervention of the Legislature in altering the situation of contracting parties, in principle, is analogous to a convulsion of nature against which parties may provide but if they have not provided, it would generally be considered as excepted out of contract". It is undoubtedly true that the consent in the present case was in the nature of a contract and subject accordingly to the rule enunciated by Pollock, C.B. in the Mayor of Berwick v. Oswald. However the point should be made that the 1976 Maintenance Act modifies this rule. It is implied in the statement of the learned Chief Baron that where a contract expressly provides for the future state of the law it can stand on its own and will not be affected by later legislation. It is clear from a reading of the judgment of Mr. Justice Walsh that the Act of 1976 regulates such contracts: "In my view, it is not possible to contract out of the Act by an agreement made after the Act came into force or by an agreement entered into before the legislation was enacted". The judgment of Mr. Justice Doyle may be summarised as follows: (i) the applicant's claim was in effect, one to vary or amend a consent; (ii) the respondent's liability had not been judicially determined in a final manner and consequently has liability to make further payments of maintenance under the 1976 Act was not res judicata and the claim of the applicant on behalf of herself and the children was not properly the subject of an estoppel;

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