PART IV

Miscellaneous

37. —Save in so far as otherwise provided in this Act, the law relating to proceedings for divorce a mensa et thoro shall, so far as applicable, apply in relation to proceedings for judicial separation.

38. —(1) In this section “the Act of 1976” means the Family Law (Maintenance of Spouses and Children) Act, 1976 .

(2) Section 5 of the Act of 1976 is hereby amended—

(a) by the insertion in subsection (2) after “the other spouse” of the following:

“unless, having regard to all the circumstances (including the conduct of the other spouse), the Court is of opinion that it would be repugnant to justice not to make a maintenance order”,

(b) by the deletion of subsection (3), and

(c) by the insertion of the following paragraph after paragraph (b) of subsection (4):

“(c) the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances be repugnant to justice to disregard it.”.

(3) Section 6 of the Act of 1976 is hereby amended—

(a) by the insertion in paragraph (b) of subsection (1), after “any circumstances not existing when the order was made”, of the following:

“(including the conduct of each of the spouses, if that conduct is such that in the opinion of the Court it would in all the circumstances be repugnant to justice to disregard it)”,

(b) by the insertion in subsection (2), after “and continues to desert the maintenance debtor”, of the following:

“unless, having regard to all the circumstances (including the conduct of the other spouse), the Court is of opinion that it would be repugnant to justice to do so.”,

(c) by the deletion of subsection (4), and

(d) by the deletion of or adultery by” in subsection (5) and the substitution of “by, or conduct of,”.

39. —Where, after the making of an order under section 5 , 6 or 7 of the Family Law (Maintenance of Spouses and Children) Act, 1976 , application is made for a judicial separation between the parties to the proceedings in which that order was made, the court in which the application, or any application made under Part II of this Act, is pending may, if it thinks fit, direct that the order made shall cease to have effect on such date as may be specified in the direction.

40. — Section 11 of the Guardianship of Infants Act, 1964 , is hereby amended by the addition of the following subsections:

“(5) The court may, of its own motion or on an application under this section, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the infant.

(6) In deciding whether or not to request a report under subsection (5) of this section the court shall have regard to the wishes of the parties before the court where ascertainable but shall not be bound by the said wishes.

(7) A copy of any report prepared under subsection (5) shall be made available to the barrister or solicitor, if any, representing each party in the proceedings or, if any party is not so represented, to that party and may be received in evidence in the proceedings.

(8) Where any person prepares a report pursuant to a request under subsection (5) of this section, the fees and expenses of that person shall be paid by such party or parties to the proceedings as the court shall order.

(9) The court may, if it thinks fit, or either party to the proceedings may, call the person making the report as a witness.”.

41. —(1) Where the court grants a decree of judicial separation it may declare either spouse to be unfit to have custody of any dependent child of the family.

(2) Where a decree of judicial separation contains such a declaration, then, if the spouse to whom the declaration relates is a parent of any child of the family, that spouse shall not, on the death of the other spouse, be entitled as of right to the custody of that child.

(3) Section 18 (1) of the Guardianship of Infants Act, 1964 , is hereby repealed except in relation to an action instituted before the commencement of this Act.

42. —(1) Section 120 (2) of the Succession Act, 1965 is hereby amended by the deletion of the words from “against whom the deceased obtained a decree of divorce a mensa et thoro,” to “and a spouse”.

(2) Subsection (1) of this section shall not have effect in relation to a decree of divorce a mensa et thoro granted in proceedings instituted before the commencement of this Act.

43. —Any order made by either the Circuit Court or the High Court granting a decree of divorce a mensa et thoro in proceedings issued before the commencement of this Act shall not be affected by this Act save that any alimony order made subsequent to the granting of such decree shall be deemed for all purposes to be an order made under section 14 (1) (a) of this Act.

44. —(1) Collusion between the spouses in connection with an application for a judicial separation or, subject to subsection (2) of this section, any conduct (including condonation or recrimination) on the part of the applicant shall not be a bar to the grant of a decree of judicial separation.

(2) Where an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant the court may refuse the application.

45. —(1) Proceedings before the District Court under the Guardianship of Infants Act, 1964 , the Family Law (Maintenance of Spouses and Children) Act, 1976 , the Family Home Protection Act, 1976 , section 9 of the Family Law Act, 1981 , the Family Law (Protection of Spouses and Children) Act, 1981 and the Status of Children Act, 1987 shall be as informal as is practicable and consistent with the administration of justice.

(2) Neither district justices hearing and determining such proceedings as are referred to in subsection (1) of this section nor barristers nor solicitors appearing in such proceedings shall wear wigs or gowns.

46. —(1) This Act may be cited as the Judicial Separation and Family Law Reform Act, 1989.

(2) This Act shall come into operation on the day that is 6 months after the date of the passing of this Act.