P.J. v J.J.

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1990 No. 847 Sp.]
• Court: High Court

P.J. v. J.J.

P.J.

Applicant

and

J.J.

Respondent

[1990 No. 847 Sp.]

High Court

Husband and wife - Maintenance - Variation - Separation agreement - Maintenance provision - Agreement made a rule of court - Absence of provision for maintenance adjustments in separation agreement - Application by husband to adjust maintenance payments downwards - Whether maintenance provisions of separation agreement reviewable by court - Family Law (Maintenance of Spouses and Children) Act, 1976 (No. 11), ss. 5, 6 and 8.

Section 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976, allows the court to make a maintenance order in favour of an applicant spouse where it appears to the court that the other spouse has failed to provide proper maintenance. Section 6 provides that a court may discharge or vary a maintenance order in certain circumstances. Marital agreements providing for maintenance payments can be made a rule of court pursuant to the provisions of s. 8 of the said Act if the court is satisfied that the agreement is a fair and reasonable one, and such agreements become enforceable by the court as maintenance orders for certain limited purposes, namely, payment through the District Court and attachment of earnings.

A separation agreement entered between the parties in 1980, and made a rule of court under the provisions of s. 8 of the said Act, included, inter alia, provision for periodic maintenance payments and did not provide for review of such payments in the event of a change of circumstances of either party.

The husband, a maintenance debtor, sought an order varying downwards the maintenance provisions of the separation agreement due to altered financial circumstances and other related factors, pursuant to the provisions of s. 6 of the said Act.

Held by Barr J., in refusing the relief sought, 1, that the specified circumstances in which a marital agreement duly approved by the court pursuant to the provisions of s. 8 of the said Act should be regarded as being a maintenance order, by its clear terms did not include the right to review a maintenance order provided for in s. 6 of the said Act.

• J.D. v. B.D. [1985] I.L.R.M. 688 followed. D. v. D.[1990] 2 I.R. 361 not followed.

2. That where a statute was clear in its terms the court had no power to extend the provisions of the statute to make good what appeared to be a significant omission.

Cases mentioned in this report:—

J.D. v. B.D. [1985] I.L.R.M. 688.

D. v. D. [1990] 2 I.R. 361.

Special Summons.

The facts have been summarised in the headnote and appear in the judgment of Barr J., post.

By special summons issued on the 21st December, 1990, the applicant husband sought a variation of the maintenance provision of an agreement entered into by the parties on the 14th May, 1980, and made a rule of court on the 4th November, 1982.

The special summons was heard by the High Court (Barr J.) on the 25th and 30th July, 1991, concurrently with a motion on behalf of the respondent in separate plenary proceedings in which the notice of motion had issued on the 10th May, 1991.

Cur. adv. vult.

Barr J.

The parties were married on the 5th June, 1952. There are four children of the marriage, all daughters, the youngest of whom is twenty five years of age. All are married and have long since lett home. The wife resides in a three-bedroomed house in Dublin, which was purchased by the husband, subject to mortgage, in the 1970's. The marriage finally broke down in...