The Gazette 1978

GAZETTE

JULY-AUGUST 1978

the Act". The Act clearly permits further application for a maintenance order after one had been made or for the discharge or variation of a maintenance order (s. 6). However, such applications will be possible only if new circumstances exist or upon the production of evidence not available to the party applying when the order was made or last varied. The doctrine will not operate to prevent application for maintenance under the Act by persons who have, whether prior to or after the date on which the Act came into force, entered into maintenance agrements. In this context a recent judgment, delivered the 10th April 1977, of Mr. Justice Costello in the Case of V.W. v. J. W. is particularly interesting. This was a case in which the plaintiff sought a declaration that a separation agreement which she entered into with her husband in 1974 was void. Mr. Justice Costello first dealt with the plaintiffs pleas of non estfactum and undue influence and also with the contention that the defendant procured the agreement while the plaintiff was drunk or under the influence of drugs. After rejecting the Plaintiffs evidence, the learned judge considered the claim that the agreement was void by virtue of the provisions of s. 27 of the Family Law (Maintenance of Spouses and Children) Act 1976. As the defendant had not argued that the agreement barred the plaintiff from any further maintenance under the 1976 Act his Lordship held that there was clearly nothing in the agreement which conflicted with the Act. Mr. Justice Costello accordingly found for the defendant. His judgment is primarily of relevance to the present discussion for an obiter dictum which appears in the final paragrpah. The learned judge commented that he was relieved of the burden of considering "whether a voluntary agreement between the parties can oust the Court's jurisdiction conferred by the Act". This is no longer an open question since the decision of the Supreme Court in D. v. D. It is now possible to apply to the Court for maintenance under the 1976 Act in cases where the parties have entered into a maintence or other agreement whether before or after the date on which the Act came into force. Statutory Interpretation — a new approach? Mr. Justice Walsh in his judgment adverts to s. 116 of the Succession Act 1965. Section 116 provides as follows: "(1) Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other then periodical payments made for her maintenance during his lifetime) shall be taken as being given in or towards satisfaction of the share as a legal right of the surviving spouse (5) This section shall apply only to a provision made before the commencement of this act". In Mr. Justice Walsh's opinion it seemed clearly to have been the intention of the legislature that, in the case of a permanent provision made after the 1st July 1967 (the date of the commencement of the Act), the right conferred in s. 113 of the 1965 Act on a spouse to 117

to say (i) a provision whereby one spouse undertakes to make periodical payments towards the maintenance of the other spouse or of any dependent children of the family or of both that other spouse and any dependent children of the family. (ii) a provision governing the rights and liabilities of the spouses towards one another in respect of the making or securing of payments (other than payments specified in paragraph (1) or a disposition or use of any property). Retrospection of the Maintenance Act of 1976 Mr. Justice Walsh considered that it was "clear from the whole structure of the Act that its purpose is to deal with the situation of the parties at the time the proceedings were brought under the Ac t . . . The basic question to be decided is whether at any given time there is a failure by one spouse to provide reasonable maintenance for the support of the other spouse and any dependent children of the family of the spouses". Alimony Mr. Justice Walsh expressed some interesting views about the position of alimony orders since the commencement of the Family Law (Maintenance of Spouses and Children) Act 1976. It was his view that if the Oireachtas in enacting the Act had intended that an order for the payment of alimony in a divorce a mensa et thoro decree or pendente lite should be a final determination of the amount to be paid by one spouse to the other, the Act would obviously have said so. Res Judicata It appears that until the decision in D. v. D., the application of the doctrine of res judicata in maintenance cases had not been definitively ruled upon by the Irish Courts. There appears to have been only one reported case, the decision of a Circuit Court Judge, in which the matter was considered. In Downey v. Downey [1941] Ir. Jur. Rep. 72, a wife sued for maintenance under the Married Women (Maintenance in Case of Desertion) Act 1886. The first summons was issued in July 1942 and was dismissed by the District Justice. No appeal was taken on foot of this summons but instead a second summons was sued out in February 1943. This summons was identical in form and contained precisely the same averments. Judge Davitt was referred by counsel to English case law and ruled that the matter was res judicata. He opined that if the issue of a second or further summons were not barred a husband might be subjected to repetitious attacks by a wife. It is unfortunate that the High Court and the -Supreme Court in D. v D. were not given an opportunity to endorse the current understanding of the law since the decision in Downey v. Downey. It is conceded that neither the High Court nor the Supreme Court in D v. D. considered the role of the doctrine of res judicata in maintenance proceedings generally. However, an inference that the doctrine has a restricted operation in such proceedings might fairly be drawn from the two judgments. Mr. Justice Walsh stated it to be his view that "it is not possible to contract out of