The Gazette 1985

GAZETTE

APRIL 1985

3. Purchasers' solicitors should also ensure, until judicial decision ordains to the contrary, that the property being sold is not subject to any of the provisions of the Succession Act 1965. As a last word, it might be appropriate to suggest that the Family Law Act 1981 provides a clear example of the seriousness with which parliamentary drafting should be regarded by our legislators, and be seen as so regarded! • Footnotes 1. The passing of the equitable estate would depend largely on one's interpretation of section 5. 2. [1969] 2 W.L.R. 966 at 997. 3. A somewhat penumbra-like statement of principle, culled from the decisions in such cases as C. -v- C. [1976] I.R. 254, E. -v- R., McMahon J. (unreported), 12th January 1979, K. -v- K., Finlay P. (unreported), 20th November 1978, W. -v- W. [1981] ILRM. 202 and G. -v- D., Keane J. (unreported), 28th April 1981. 4. Unreported, 29th March 1984. 5. [1979] I.R. 283. 6. Unreported, 22nd February 1980. 7. Dáil Debates 2nd April 1981 — Vol. 328 pages 1,039, 3,196. 8. Ibid. 9. This is the argument canvassed by Professor Ryan from University College Cork in an opinion given to the Conveyancing Committee of the Incorporated Law Society of Ireland and quoted in Rory O'Donnell: Conveyancing and The Family Home (1983), Society of Young Solicitors Lectures, Vol. 7, Lecture 146 page 65. 10. Cross: Statutory Interpretation, pages 29-30. 11. Vide. Lord Halsbury in Cooke -v- Vogeier [1901] AC. 107. 12. per Lord Reid in Pinner-v- Everett [ 1969] 3 All E.R. 257 at page 258. 13. Maxwell on Interpretation of Statutes — 11th edition. (1962), page 3. 14. [1978] I.R. 55 and Unreported, 8th May 1981, respectively. The latter case is discussed in Casey: Statutory Interpretation: A New Departure [1981] DULJ. 110, in which Professor Casey posits some versute and convincing reasons why the traditional grounds impunging travaux préparatoires in the United Kingdom need not be applicable here. 15. op. cit. at fn. 7 ante, page 1,029. DO YOU WANT TO IMPROVE YOUR CLIENT SERVICES AND YOUR FEE INCOME? The provisions of the Companies Acts 1963 to 1983 provide a legislative framework within which all companies incorporated in the Republic of Ireland must operate. To assist you and your clients to fulfil your obligations we provide the following company secretarial services:- # Advising on the legislation and arrangements necessary for the holding of Directors and General Meetings. # Preparation of statutory returns prescribed under the Companies Acts. # Maintaining the Minute Book and the statutory Registers. # Advising on the implications of existing and new legislation. # Assistance with Stamp and Capital duty mitiga- tion schemes. # Acting as Secretary and Registrar. Regardless of the size of your portfolio, our expertise can provide you with an excellent oppor- tunity of developing your client services and your fee income; if you already provide a company secretarial service, contact us and discover how we can work together to make it more efficient and more profitable. For further information contact Joseph A. Hickey.

be read according to its natural, literary and ordinary meaning. Where the wording of a statute is clear the task of interpretation does not arise. In such cases the plainly expressed purpose of parliament must be given effect to, even if it seems absurd or mischievous. The court has no jurisdiction to determine a statute's reasonableness per se." It is only where a literal interpretation of the wording "leads to some result which cannot reasonably be supposed to have been the intention of the legislature" that it is proper to look for some other possible meaning of the word or phrase." 12 When this arises it is permissible to scrutinise the suspect language against the possible consequences of a literal interpretation and against the existing state of the law when the statute was passed. 13 Applying these precepts, to construe the phrase "the rules of law" as comprehending statute law involves an entire welter of anomalies. These, as has been suggested, can be got round, but with considerable difficulty. A fundamental principle of statutory interpretation is that the parliamentary history of an Act cannot be relied on as an aid to construction. This, however, has already been ignored in several Irish cases, most noticeably by O'Higgins C.J. in Rowe -v- Lawe and by Costello J. in Wavin Pipes -v- Hepworth Iron Co. 14 Even so, parlia- mentary debates can only be resorted to as a last extreme. It is submitted, though, that section 5 of the Family Law Act 1981 could present such an extreme. An examination of the parliamentary history of the Family Law Act furnishes some illuminating commentary. While the Bill was passing through the Dáil in its second stage the Minister of State for the Depart- ment of Justice, after reviewing the draft section 5(1), went on to observe: "The effect of this will be to apply to engaged couples the common law rules evolved by the courts in regard to contributions to the acquisition of property by married couples." 15 Were this statement admissible as an aid to interpre- tation, evidently section 5(1) could be construed as applying only to constructive trusts. The brunt of convention, however, dictates otherwise. Not allowing the Minister's comment, the same result can only be achieved by the circuitous elimination of the Succession Act 1965 and the Family Home Protection Act 1976— an elimination which, for the reasons mentioned, can never The provisions of the Family Law Act 1981 are uncertain in their implications. While it probably requires a test case to resolve some of the finer points practitioners in the meantime should be mindful of the following: 1. A conveyance of property, whether for value or otherwise, made within three years of a voluntary disposition of it, may very well be void or voidable, depending on whether section 3 of the Family Law Act 1981 applies. 2. Purchasers' solicitors should take care to ensure that the relevant statutory declaration of vendors includes a clause confirming that the property being sold is not subject to any claims under a resulting or constructive trust. be absolute. Conclusion.

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