I move that the Bill be now read a Second Time. The Bill proposes to consolidate and amend the law as to married women. It is, in fact, a codification of all the law concerning married women except the law relating to income-tax and intestacy, though in one small respect the law as to intestacy is being changed.
The origin of the Bill will be found in Section 2 of the Law of Torts (Miscellaneous Provisions) Bill, 1941, which was a Private Members' Bill introduced by the present Taoiseach and supported by the present Attorney-General. The other proposals in that Bill eventually found their way into the Tortfeasors Act, 1951. When the preliminary drafts of the Married Women's Status Bill, 1954, which was designed as an amending Bill, were being considered, it was found that the statutory provisions relating to married women were contained in as many as 26 separate enactments dating from 1834. We considered that it would be preferable to consolidate as well as to amend the law so that all legal provisions relating to the status of married women would be available in a modern Act of the Oireachtas. The present Bill is the result.
To put it shortly, I may say that the object of the Bill is to put married women in the same legal position as single women and men. In other words, it means to get rid once and for all of the disabilities under which married women at present suffer, not alone in regard to their property but also in regard to their ordinary rights in contract and tort.
In order that the House may appreciate exactly what is contained in the Bill, I propose to deal fairly briefly with the history of married women under the law. At common law, a married woman's existence was treated as being merged in that of her husband. Husband and wife were one person in the eyes of the law. A married woman could not own any property, and all her property became either absolutely or temporarily the property of her husband, and it did not matter whether the property was hers at the time of the marriage or was acquired thereafter. Personal property became the husband's absolutely and, even if the wife earned money by her own labours, the husband could take it as his own. A wife's lands, apart from leaseholds, became her husband's temporarily. He could enjoy the rents and profits during marriage and, after her death, if there were children capable of inheriting, he became entitled to an estate (called tenancy by the curtesy) for the remainder of his own life. Leaseholds also became the husband's and he might dispose of them at any time during marriage, though, if his wife survived him and he had not already disposed of them, they became hers absolutely on the husband's death. The theory of the law was that, in consideration of the husband's undertaking to support and maintain his wife, he became entitled to her property. A married woman could not make a contract at law, and if she committed a tort or private wrong during the marriage her husband could be made liable for it, and he could also be made liable for her antenuptial contracts, debts and torts. She could not make a will of the real estate so as to deprive her husband of his estate by the curtesy or her heir-at-law of his inheritance; and, if she made a will of personal estate, it could only be enforced with her husband's consent.
In order to give some relief to married women from the rigours of the common law, the Court of Chancery, through the institution of the trust, devised the doctrine of separate use. When the legal interest in land was transferred to trustees to be dealt with for the benefit of a married woman, the Court of Chancery compelled the trustees to carry out the trust. And it was in this way that was evolved what is still known as a married woman's separate property. In time, property held to the separate use of a married woman was protected even without the intervention of trustees, the law of equity, as administered in the Chancery Court, making the husband trustee. There was, however, still the danger that the husband might influence his wife to dispose of the property or the income therefrom for his benefit. Accordingly, towards the end of the 18th century, a provision was devised by the Chancery Court called the restraint on anticipation, and this still survives for married women fortunate enough to have marriage settlements. In the case of a married woman, and only in her case, it is possible by inserting the appropriate clause in the settlement or will to prevent her, during her marriage, from disposing of or charging by way of anticipation, the corpus of her separate property (that is, the fund or capital itself) or the income accruing from it or both. The effect of this clause is not only to protect the property of a married woman from her husband but also to protect it from her creditors, or rather to protect her from her creditors. The creditors cannot enforce a judgment against property subject to a restraint either by having the capital seized or by attaching the income before it comes into her hands.
By 1870, many married women were earning money and acquiring property and the view was widely held that what they acquired should not automatically pass to their husbands. The institution of separate property was peculiar to well-off people, so that the law continued to impose hardship on the majority of married women. In order to remedy the situation, the Married Women's Property Act of 1870 was passed, and this Act was later superseded by the Married Women's Property Act, 1882. The reforms which are now to be found in the Married Women's Property Acts, 1882 to 1907, unfortunately preserved the idea of separate property. Instead of doing the logical thing and providing that a woman on marriage should not change her status in regard to capacity to contract, to hold and dispose of property and to sue and be sued, the Legislature took over the existing equitable doctrine of separate property, and attached to it many of the qualities given it in Equity. The legislation was concerned with the property of a married woman and not with her status as a person. The existing law remained unaltered in important respects and the new law, being complicated, resulted in much difficult litigation.
Under the 1882 Act, as amended, it is provided that every married woman shall be capable of acquiring, holding and disposing, by will or otherwise, of any real or personal property in the same way as if she were a single woman: she is capable of entering into and making herself liable, in respect and to the extent of her separate property, on any contract: she is capable of suing and being sued in contract and in tort as if she were a single woman, and her husband need not be joined with her as plaintiff or defendant: and she may hold, as her separate property, all property belonging to her, including any money earned by her in any trade, profession or occupation. A married woman may be made a bankrupt where she trades with her separate estate separately from her husband, but otherwise she cannot be made bankrupt. A husband is liable for his wife's antenuptial debts, contracts and torts to the extent of all property obtained through his wife; and he may be sued jointly with her in respect of such debts, contracts and torts. Finally, the Act of 1882 preserves restraint upon anticipation. Despite the provisions of the Act, it has been held that a husband is still liable for his wife's torts, and it has also been held that a married woman cannot be committed to prison for the non-payment of a debt in respect of which judgment has been obtained against her.
I now come to the main proposals in the Bill. The idea of separate property is being abolished in Section 2, and a married woman will be in the same position as a single woman, in so far as acquiring and disposing of property and suing and being sued are concerned. She will, in addition, be subject to the bankruptcy laws in all respects, as if she were unmarried.
It is important to note that by reason of sub-section (2) of Section 2, she may sue her husband in tort and he may likewise sue her. At present, a married woman cannot sue her husband in tort except for the protection of her separate property, and a husband cannot sue his wife in tort at all even for the protection of his property. We have given this matter the most careful consideration, and we are of opinion that, in view of the difficult questions which often arise at present, it is far better to allow one spouse to sue the other in tort. A wife can have her husband prosecuted criminally at the moment for an assault, so that no real objection arises on the score that allowing her to sue him civilly would give rise to objectionable actions. She can also sue him for a tort committed before marriage. Where a wife and child are injured by the negligence of the husband and a third party, the wife may succeed against the third party, but the third party cannot recover contribution from the husband under the Tortfeasors Act, 1951, as the husband is not a tortfeasor in so far as his wife is concerned. If, however, the child succeeds against the third party, there is nothing to prevent that third party obtaining contribution from the husband, because a child can sue his father for negligence. Further, a man cannot protect his wife under an accident insurance policy under the Road Traffic Act, because he is not liable to her in tort. It has been suggested that the law may possibly be otherwise, but we are advised that this is more than doubtful in this country at all events.
Section 6 of the Bill proposes to abolish restraint on anticipation, no matter when arising. Restraint is in modern circumstances an outmoded device. It was originally designed to protect a married woman against her husband, and is the only instance known to the law where a person is prevented from dealing with his or her own property as he or she so desires. The device allows creditors to be defrauded in many instances, as restrained property cannot be attached for the payment of debts. A married woman for genuine causes, such as for the better education of her children or the payment of medical expenses, may have good reason for seeking to capitalise income subject to restraint. She may also want a little capital for her own or her husband's business. Admittedly, she can go to the High Court and have the restraint lifted, but the court, under Section 7 of the Conveyancing Act, 1911, has a discretion in the matter, and the tendency has been to interpret this discretion narrowly. Apart from this, going to the court costs money. In recent times, the real value of fixed incomes has declined very much and taxation is more severe than it used be, so that it is very often better to allow a woman to dispose of her restrained property and put the proceeds to whatever purposes she thinks best.
Section 11 will abolish a husband's liability for his wife's torts, contracts and debts, and the section will put in statutory form the rule of law that he is liable for contracts made by her for necessaries. We think that it is wrong in principle that a husband should be responsible for his wife's obligations and wrongs no matter when they arise, except in so far, of course, as she is by law deemed to act as his agent in purchasing such things as food and clothing.
Before I leave the specific provisions of the Bill, I should like to refer to Section 8. This section which re-enacts Section 11 of the Married Women's Property Act, 1882, allows a wife, husband or child to secure the benefits of a life insurance policy effected by the husband or wife. The provision in the 1882 Act allows for an exception to the general rule of law that a third party cannot sue on a contract made between two other parties, although that contract is expressed to be for the benefit of the third party. We are at present examining an amendment which will extend Section 8 of the Bill to cover endowment and education policies effected by a man or his wife for the benefit of the other or for the benefit of their children. The law at present does not cover such policies. The amendment, which we hope to bring in on Committee Stage, will not alone cover these policies but will also do away with the trust mechanism contained in the existing law and also in Section 8 of the Bill. On reconsideration, we see no reason why a life, endowment or education policy, taken out by one spouse and expressed to be for the benefit of the other or of a child, may not be enforced by the person named in the policy as a beneficiary. We also see no reason why the same rule should apply in the case of an ordinary contract, and we will have a second amendment to cover this case as well. Both amendments will make what we think are very desirable changes in the law.
I should like to refer to two matters not dealt with in the Bill. First of all there is the question of income-tax. Under the Income Tax Act, 1918, a husband is responsible for his wife's income-tax, though, of course, he gets the benefit of a marriage allowance. A husband or wife may, however, apply for separate assessment. The existing law does not cause any hardship and we do not propose to change it.
Secondly, I should like to point out that the Bill does not provide for the inheritance rights of a husband or wife, except in one small respect, to which I shall come in a moment. As Deputies will be aware, a husband's rights to the property of his wife, who dies intestate, are much better than those of a wife whose husband dies intestate, although the position of the wife, where there are no children, has been considerably improved by the Intestates' Estates Act, 1954. However, the proper place to correct the present differences between a widower's rights and a widow's rights is in an Administration of Estates Bill, and we have a comprehensive Bill under consideration to modernise the whole law as to intestacy. But before we introduce this Bill, we propose to have a preliminary short Bill, which will clear the way and, in addition, make some pressing technical changes as regards the devolution of property. The one respect in which we are changing the law of inheritance in the Bill may not be clear except by a careful examination of the Schedule of Repeals.
The Bill proposes to repeal the Irish Married Women's Property Act, 1865. Under that Act, where a woman is legally separated from her husband, any property she acquires while the separation continues devolves, if she dies intestate, as if her husband were then dead. In other words, he has no rights to it. There is no corresponding provision in the law in regard to the property (acquired after separation) of the legally separated husband who dies intestate. At the present day, when the property rights of a married woman are immensely better than they were a century ago, there appears to us to be no logical reason why the existing distinction should be maintained. Under the Bill, both husband and wife will have the same rights on intestacy whether or not there is a separation, and we think that this is as it should be. After all, a separated wife is now quite free to make a will and dispose of her property as she likes.
I recommend the Bill to the House. It will make a number of desirable amendments in the law, and it will give the complete law in a short modern enactment. We admit that some of the changes, such as that abolishing restraint on anticipation, will affect only a limited number of married women, but by and large the Bill provides for long-needed changes in our law. I have attempted to discuss these changes in a very general way. My colleague, the Attorney General, will, however, explain the legal aspects of them in more detail.
Deputies will notice that the Bill is accompanied by explanatory sidenotes. These notes show where the existing law is being consolidated and where the proposed reforms are being effected. We trust that this practice, which we intend to follow in all our law reform Bills, will be of assistance to those who desire to study these Bills in more detail.
In conclusion, I should like to thank those persons outside the Public Service, who have been of such assistance to us in framing the provisions of the Bill. We can only hope that we have done what we set out to do, namely, to give to our married partners what has always been their due. It may be argued that in some ways, such as under the bankruptcy laws, they will be worse off, but I am sure that, in accepting their new rights, they will gladly accept their new responsibilities as well.
