The Gazette 1994

GAZETTE

NOVEMBER 1994

Recent Irish Cases Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University The following case summaries have been reprinted f r om t he Irish Law Times and Solicitors Journal w i t h t he kind permission of t he publishers.

and a Bill referred by the President un- der Article 26. In re the Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129 ap- plied; State (Quinn) v. Ryan [1965] IR 70 and Attorney General v. Ryan's Car Hire Ltd [1965] IR 642 considered. (2) The encouragement by appropriate means of joint ownership in family homes was conducive to the stability of marriage and the general protection of the insti- tution of the family. L. v. L. [1992] 2 IR 77 considered. (3) The right of a married couple to make a joint decision as to the ownership of a matrimonial home was one of the rights of the family recog- nised in Article 41.1.1° as being inalien- able and imprescriptible, and antece- dent and superior to all positive law. The exercise of this right was an impor- tant part of the authority of the family which the State guaranteed to protect in Article 41.1.2°. (4) The Bill's application of automatic ownership as joint tenants to every instance of a dwelling occupied by a married couple on or after 25 June 1993 interfered with decisions which may have been jointly made in relation to the ownership of the matrimonial home. The application was universal and was not dependent on the decision being injurious or oppressive in respect of a spouse or members of the family, or a spouse having failed to discharge his or her family obligations. (5) The man- datory creation of joint equal interests also applied to every family home irre- spective of when it was first acquired by the married couple and irrespective of the time at which a freely reached deci- sion between the spouses may have been made as to the nature of the own- ership and in whom it should vest. (6) If a joint decision that ownership should vest in only one of the spouses had been made, after the coming into force of the Bill this could only continue if the non-owning spouse made a dec- laration in accordance with s. 7. The non-owning spouse, on grounds which could be reasonable or unreasonable, might refuse to make such a declaration and this could lead a couple who may have been content but not enthusiastic about the arrangements which they had made and by which a substantial part of their married life had been governed to become involved in the litigation con- templated in s. 6. (7) The Bill could re- sult in the automatic cancellation of a joint decision freely made by both spouses and its substitution with a wholly different decision unless the

spouses could agree to a new joint deci- sion confirming the earlier agreement or the owning spouse could obtain an order under s. 6. This did not constitute reasonably proportionate intervention by the State with the rights of the family and amounted to a failure by the State to protect the authority of the family which was guaranteed by Article 41. The fact that joint ownership of the mat- rimonial home can be conducive to the stability of marriage could not justify such potentially indiscriminate altera- tion of joint decisions validly made within the authority of the family. (8) The Supreme Court had no advisory role in respect of proposed legislation. It was not part of its function under Article 26 to impress any part of a re- ferred Bill with a stamp of constitution- ality and to do so would be to disregard the constitutional doctrine of the sepa- ration of powers. In re the Housing (Pri- vate Rented Dwellings) Bill 1981 [1983] IR 181 considered. Reported at [1994] 1 ILRM 241 Contract - Enforceability - Whether heir- locator contract enforceable - Maintenance of an action - Clwmperty - Whether law of champerty applies to heir-locator contract - Whether heir-locator contract relating to interest outside Ireland contrary to public policy Facts The plaintiffs were partners in a firmwhich carried on a business in Lon- don described as 'genealogists and in- ternational probate researchers'. In Oc- tober 1987 the plaintiffs were informed that the estate of an intestate named Evelyn Herbert, who had died on 17 January 1986 was then being adminis- tered in the courts of New Jersey. The plaintiffs then set about searching for any heirs to that estate. Four persons were traced who appeared to be the only next-of-kin of Evelyn Herbert, namely Mrs Patricia M. Byrne, Mrs Ve- ronica M. Doherty, Mr Denis Buckle and Mr Mervyn Buckle. The first three were the defendants in this action, sepa- rate proceedings having been taken against Mr Mervyn Buckle in Scotland, where he resided. The plaintiffs in- formed the defendants that they could Simon Fraser and Another v. Denis Buckle and Others: High Court (Costello J) 30 September 1993

In the Matter of the Matrimonial Home Bill 1993: Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) 24 January 1994 Constitution - Family - Vesting of equit- able interest in matrimonial home in both spouses as joint tenants --Automatic altera- tion of joint decisions which might have been made by married couples in relation to the ownership of matrimonial homes - Pos- sible need for fresh agreements or court action to reinstate the effect of joint deci- sions - Failure by the State to protect the authority of the family - Presumption of constitutionality in respect of Bill referred to Supreme Court pursuant to Article 26 - Stare decisis - Function of the court when considering Article 26 reference - Consti- tution of Ireland 1937, Articles 26, 41 Facts It was proposed by s. 4 of the Matrimonial Home Bill 1993 that, where a dwelling had at any time since 25 June 1993 been occupied by a mar- ried couple and either or both of the spouses had an interest in the dwelling, the equitable interest in that dwelling was to vest in both spouses as joint ten- ants. S. 5 provided that s. 4 did not apply to an interest in a matrimonial home which was vested in spouses as joint tenants or tenants in common in equal shares. S. 6 empowered the court, on an application by the spouse who was not the spouse in whose favour s. 4 oper- ated, to declare that the provisions of s. 4 should not apply to the matrimonial home as and from a specified date. By virtue of s. 7, a spouse who would oth- erwise benefit from the operation of s. 4 could, after obtaining independent le- gal advice, make a declaration in writ- ing to the effect that s. 4 should not apply to the matrimonial home. In the absence of an agreement to the con- trary, s. 14 provided that household chattels owned by either or both of the spouses would belong to both spouses as joint owners. The President of Ireland referred the 1993 Bill to the Supreme Court pursuant to Article 26 of the Con- stitution. Held by the Supreme Court in finding that the Bill was repugnant to Article 41 of the Constitution: (1) There were no compelling reasons which would per- mit the court to depart from previous decisions which established that in re- lation to the presumption of constitu- tionality a distinction should not be drawn between an Act of the Oireachtas