The Gazette 1983

GAZETTE

N O V E M B E R

1983

or children was endangered by the misconduct of the respondent spouse. O'Higgins C.J. and McCarthy J. allowed the appeal on the ground that the decision of Costello J. was based on the fact that the marriage had irreconcilably broken down rather than on the misconduct of the husband and was therefore wrong in law. Griffin J., while approving the principle established by the other two Judges, held that Costello J. had granted the Order on the factual basis of the misconduct of the husband and that his decision was justified and he therefore refused the appeal. O'Higgins C. J., while approving the view of Costello J. that the word welfare should be given very wide ambit, was of the opinion that the behaviour of the husband towards the wife, in this instance, was not sufficient to justify the granting of a barring order (per O'Higgins C.J.): "The evidence of the Plaintiff indicates that various incidents occurred — rudeness by the husband in front of the children, a lack of sensitivity in his manner to her and efforts by him at dominance in running the house — none of which, in themselves, could be regarded as amounting to serious misconduct, and all of which would probably have ^ been tolerated, overlooked and forgiven, if the 1 marriage were viable. There was, as the learned Judge found, no case of violence to be made against the Defendant". In summary, the Supreme Court held that barring orders can only be granted when the 'safety or welfare' of the applicant spouse or children is endangered by the misconduct of the respondent. A barring order cannot be granted simply on the basis of the irretrievable breakdown of the marriage. The circumstances in which a barring order can be granted depends upon the facts of the particular case. However, in addition to situations of physical violence, the Courts are entitled to grant barring orders where the mental, emotional or moral welfare of the applicant spouse or children are endangered by the misconduct of the respondent spouse. In comparing the judgments in Richards -v- Richards and O'B -v- O'B it is interesting to note that while the .welfare of the children was the principle issue of concern in the English case this aspect was never mentioned in the Irish case. The House of Lords concentrated on the justice and reasonableness of granting an ouster order as against the paramountcy of the welfare of the children in determining their decision. The Supreme Court

concerned itself with the issue of the conduct of the guilty spouse as against the situation of a complete breakdown in the marriage. However, as a result of the decisions in both Courts the legal position in the two jurisdictions is very similar. The Courts in both jurisdictions have to take into consideration the conduct of the spouses, and the welfare of the children is not to be a paramount factor; and overall, the order made must be just and reasonable. The decision in O'B -v- O'B highlights particular problems in Irish Family Law. Firstly, barring orders are not to be granted on the grounds of the irretrievable breakdown of marriage or the incompatability of the spouses. O'Higgins C.J. stated: "It seems to me that this secion indicates that the barring order, which is contemplated by the Act, is intended to deal with a situation which is changeable and remedial by the act of the parties or one of them but not with a situation of complete marital breakdown which may be beyond the competence of either to remedy". If this is the case and it would appear to be as a consequence of the Supreme Court decision — it is surely wrong for statutory law to allow the remedial barring order to be available to parties to a marriage which is encountering difficulties, without at the same time providing a back-up welfare service to enable the parties to resolve the difficulties of a marriage which has not irretrievably broken down. It is unfair on a married couple to in effect separate them for the purposes of enabling them to retrieve their marriage without at the same time giving them positive assistance to accomplish this end. Secondly, barring orders are not available in cases of irretrievable marital breakdown. The only legal remedy open to parties to a marriage in such circumstances is Divorce ' a Mensa et Thoro\ which is only available in very restricted circumstances. This represents a serious lacuna in the law and a grave hardship for parties to marriages which have run into such difficulties, especially where there are children involved, and who find that there is no effective legal remedy available to assist them. •

• Note: Since 24th July, 1981. the relevant statutory provision isScciion 2 of the Family Law (Protection of Spouses and Children) Act 1981. which superceded and extended the provisions of Sec lion 22 of the 1976 Act.

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