I move amendment No. 1:—
In sub-section (1), paragraph (d), lines 17 to 19, to delete "either in tort or in contract or otherwise (including suing or being sued for specific performance),".
This is a drafting amendment.
Married Women's Status Bill, 1956—Committee Stage.
Section 1 agreed to.
SECTION 2.
I think this amendment will be more than a drafting amendment in one sense. It may be convenient to raise at this stage a point which I made on the Second Reading and about which I am not entirely satisfied although the Attorney-General replied and made certain points about it. It is that paragraph (d) of sub-section (1) of Section 2 must include undoubtedly a right to sue in ejectment. There is one existing case of the right of a married woman to sue in ejectment and that is her right to sue her husband in ejectment. As I understand the position at present, that right is being held to apply only in cases where it can be established that the conduct of the husband has destroyed his right to be in the marital home. A married woman cannot eject her husband from the marital home, even if she is the sole owner of it, unless she can establish to the court that he is guilty of conduct which, roughly speaking, would entitle her to a legal separation.
As I read this Bill originally, I had a feeling that the terms of paragraph (d) of sub-section (1) of Section 2 might alter that state of the law. I think that danger is somewhat heightened by the exclusion of the words in this amendment. That gives her a completely free right of suing. I think it is probably true to say that to give her the right to sue does not give her any greater or different right to eject. Subject to your permission, Sir, I might mention another section at the same time. I think the two sections must be read together. It is paragraph (c) of Section 4. That combined with paragraph (d) of sub-section (1) of Section 2 and sub-section (2) of Section 2 all seem to me to amount to a statutory provision which could be construed as saying that in an ejectment action between a wife and her husband, with regard to the marital home which was the property of the wife, it would be no defence for the husband to say that he was the husband, that he was there by virtue of the marriage and that she could not succeed in ejectment by virtue of the marriage.
This is the existing situation. If a wife tries to eject her husband from the marital home, even though she owns it, his defence is simple and straightforward: "I am there because I am the husband." That is a relationship which the wife cannot terminate at her will. The situation about anybody else in my property is that I can get them out of the property, assuming they are not tenants or anything else, merely by terminating their licence to be there. A man can eject a son from his own home. He can eject a daughter, a brother or a sister from his own home once he is the sole owner. He cannot eject his wife at all because he cannot proceed against her but a wife cannot eject a husband at present because his defence is: "I am married to her and nothing happened which would take away the rights of a married person to live in the marital home." As I read it, the combined effect of these three sections —two paragraphs of Section 2 as amended and paragraph (c) of Section 4—must be that a wife is capable of suing her husband in ejectment in like manner as if they were not married. I think a court asked to construe that will be forced to come to the conclusion that a man's wife can sue him in ejectment merely by establishing he was in the house and had not her express permission to be there. I may be wrong about that. I know it is not the intended effect of the section but I would like the Minister to consider it between this and the Report Stage.
Would the Deputy enlighten me a little bit further? Does the Deputy quite clearly appreciate the effect of the amendment? It does not weaken, and it was not intended to weaken, paragraph (d) of sub-section (1) of Section 2. It is proposed to put in the phrase "capable of suing and being sued". It does not weaken it. It is intended to be comprehensive. I do not know how the Deputy ties that with Section 4 to say that the husband's right of consortium is in any way affected. Does the Deputy think it is?
If I might make myself clearer, the right of consortium can be affected in the particular case where the marital home is the sole property of the wife if you give her an unlimited and unrestricted right to sue her husband as if she were not married to him. The existing situation is that she can sue her husband in ejectment, but she cannot succeed and cannot sue him successfully in ejectment unless she is able to establish that he has not got a right to live there, has not right of consortium. She has to prove that he is guilty of conduct which would entitle her to a separation.
That is the existing law as I understand it. I think this section, coupled with paragraph (c) of Section 4, could be and would be construed as giving her a right to sue her husband in ejectment, among other things, in precisely the same way as she could sue anybody else—sue him in the position as if she were not married to him. If that is right, it would be no defence to the husband in an ejectment by the wife out of the marital home for him to say. "You cannot eject me; I am married to her." She could point to the section of the Act which says: "You may sue your husband as if you were not married to him." She could say: "That is precisely what I am doing now. All I need to prove is that I own the marital home and I have not given him a licence to be there or I have declared it my intention that he no longer has express permission from me to be there. That is all I need to eject my husband from my house." That would be my fear arising out of it. It might be quite an inadvertent effect.
Certainly it is not intended.
I know it is not intended
The situation at the moment is that a man might be restrained from interfering with his wife's property but he could not be restrained from entering the house. As far as Section 4 is concerned that does give the husband and wife, each as against the other, the right to sue for certain personal torts. We do intend that but I am not breaking up the right as regards consortium.
Amendment agreed to.
Question proposed: "That Section 2, as amended, stand part of the Bill".
On the section I want to mention something which I already mentioned on the Second Stage and which has considerable relevance to this particular section, that is, the question which the Attorney-General has mentioned—the right which a badly treated wife has to sue her husband in certain torts. It really boils down to a fear that I had that the right to sue in slander and assault—these are the two really that I call offensive torts— might lead to a great increase in the number of squabbles between husband and wife being brought to the civil courts. Since I raised that point very extensively on the Second Reading, the Attorney-General at that time and the Minister as well mentioned certain aspects of the case. Particularly, I remember the Attorney-General mentioning that there was a point of view which was to the effect that on the present law there are only two outlets for assault between a husband and a wife. She can bring her husband into the criminal courts; she can bring in the assistance of the police and the State to prosecute and punish him for the assault or, if it become persistent and grievous, she can get a legal separation. These are the only two legal outlets by which a wife can get a remedy at present if her husband assaults her.
The same would apply to slander, really, in effect, because she can bring him in for abusive language or, probably, slander would, in certain circumstances, coupled with other conduct, be a ground for legal separation under our law at present.
This adds a third outlet or remedy. That is, she can bring him to court and can sue him for damages and can get an award for damages against him of £50, £100, £500 and can recover it against him as if they were complete strangers. I said on Second Reading that I was concerned that that would lead to actions which otherwise would not have taken place. I can see considerable difficulties in restricting the torts or in excluding assault and slander from it.
The Attorney-General put forward a point of view, which other people have held also, that, so far from making it more likely that marriages would break up or fall down because of action brought in the civil court, it is putting in a safety valve at a lower pressure, that if these grievances have to be let boil up to the stage when they amount to separation, that is undesirable, whereas if, the first time it happens, it seems sufficiently serious and a wife may come to court and get damages and punish her husband in his pocket without affecting him in his person, that that is a safety valve at a lower level and, so far from doing damage to the solidarity of marriage, is quite likely to improve the position. That point of view has been put.
I have not got sufficient experience to know which is the right point of view and I should like the Minister to assure the House that he has considered very carefully and, if necessary, will consider again, this question of slander and assault. I spoke generally about torts on the Second Reading but, having analysed the matter, I am quite satisfied that these are the only two objectional matters—slander and assault—and I should like the Minister to consider or to tell us that he has considered, and rejected on the information available to him, the idea of cutting out of the forms of action a wife can take against her husband these two of slander and assault.
The other thing which possibly the Minister would consider—whether this infringes any constitutional rights or not I would not be able to say at this stage—but consider, at any rate, in actions brought by husbands against wives for either the tort of assault or the tort of slander pursuant to this section—if the Minister thinks they should be allowed to bring them— making it obligatory that the court should hold them in camera at the request of either of the two parties.
There is provision later in the Bill for the hearing of certain actions with regard to property in private but there is not any similar section dealing with tort actions which would deal with personal injuries, such as assault. Possibly the Minister, if he is convinced that assault and slander must be left in the section, would consider the question of making it obligatory on the court, on the application of either party, to hold the action in private.
All I should like to say on this is that I would agree with the view that Deputy Finlay has in this matter. If it is easy for a wife to come into court, instead of its being a safety valve at a lower level than the ordinary separation business, my view and his view is—I do not know whether he has changed it or not— that once it goes into open court like that it is almost the end. It would be my view that, if a wife sues her husband in open court, it will wind up with a separation and it should not be made easier for her to do that. I am not a lawyer but, if that is being done in this Bill, it should be reconsidered.
As far as we are concerned we are not trying to hold up this measure. We are prepared to give this Bill as we were asked to do but it is a very dangerous thing to pass a Bill of this kind in a hurry and I think that that question ought to be re-examined because it certainly would be a very serious thing if, as a result of legislation passed here, it would be made easier for a family to be broken up. That is all I have to say about that. We are all very worried about this because we believe that a marriage contract is a very important one and ought not to be lightly broken. Anything that would make it easier to break the marriage tie ought not to be done.
Consequently, although there may be something in the second point of view expressed here, I agree with the one that Deputy Finlay gave expression to, that is, that by going into court on a minor matter it probably will wind up with eventual separation.
I also subscribe to the view expressed by Deputy Boland that, when it is made easier for a wife to sue her husband for minor matters, for abusive language or for matters for which she might seek to recover damages, the likelihood is that, once a married couple find themselves in court, it will lead to eventual separation. It could be a rather dangerous thing indeed if it were to encourage either party to seek court protection at a low level, as Deputy Finlay has said. In fact, it is only in practice that one could decide whether this is a wise section at all or not. If it had the effect that some of us think it might have, it could be a rather serious section indeed.
The other view, which Deputy Finlay has mentioned, is that it might prevent things reaching the high pressure mark where separation is sought. I am rather inclined to subscribe to the view that Deputy Boland has expressed, that to encourage the wife to seek a decision at the lower level will eventually result in strained relationship and perhaps separation which might not otherwise be sought. It is a rather important section if it may have that result.
The Deputy, like Deputy Boland, and apparently, like Deputy Finlay, begs the question by putting in these terms "encouraging a wife to sue her husband at a low level"—I mean the low level of court —and for a minor matter. Will the Bill result in that?
I do not know. I am not a lawyer. I say "if it does".
Why should the Deputy think that it will?
Deputy Finlay has his doubts about it and he is a very competent lawyer.
The position at the moment is that a wife has certain rights against her husband. A wife can bring her husband into the criminal court. That is done in serious assault cases. She has the right to protect her property against her husband. Now there has not been a tremendous amount of resort to the courts by married women in relation to the protection of property. Neither have there been many cases of women instituting criminal proceedings against husbands for assault. There has not been very much of that.
What is the position here? The House has agreed that that as far as ordinary personal injuries are concerned, injuries arising from the driving of a motor car for example, the position of the wife vis-a-vis the husband, or the other way round, is a total anomaly. There has been agreement that if a husband runs his wife down or in any other way causes her injuries through the instrumentality of a mechanically propelled vehicle, the law relating to personal injury actions should be rectified in that regard and the wife should be entitled to get damages either from her husband or from a third party.
Where logically can one stop when one is thinking in terms of harm done by negligence? Is it at the point of saying that when a motor car does it, it is all right; but where it is another type of negligence, or even if it is a hurt done deliberately, a hurt caused to a woman by her husband, then there should be no right of action. I do not see how there can be a distinction. If you go one step, then you must go the whole way.
Turning to the assault cases then, the point here seems to turn on such things as defamation and slander. Where is the encouragement in this? Why is it that husbands are not in the habit of resorting to the courts at the moment? From where does this apprehension come that there will be resort to the courts for, say, minor assaults?
Did not Deputy Finlay point out that a husband can now take action where he could not before in the case of being evicted?
But he had certain rights before and there was no great resort to the courts. Deputy Boland does not want us to go on at this stage and legislate so that a man can go around beating his wife——
Certainly not.
——and she will not have any resort against him. Let us take the ordinary home where quarrelling occurs and bad language is used from time to time. If the Deputy thinks that is not an unhappy home, I do not agree with him on that. Does anybody think that the home will be happier by not allowing either party to have resort to the courts?
If the whole world knows about it, it will be much worse.
Will there not be a certain restraint put on the person in respect of the slander or physical violence if there is, in the background, the knowledge that the wife can go into court and parade him before the public?
They would be more likely to compose their differences if they could not go into the courts at all.
Because the husband knows that a wife cannot take him into court, they will compose their differences! There is no realism in this debate. I want to read some quotations now culled from certain American publications in relation to these rights we are giving here now, rights in relation to which the same forebodings were expressed as are being expressed here now. American judges say that there is no greater disharmony in the homes than there was before, as far as their experience goes in the courts. One does not argue properly merely by saying this Bill encourages. This right will not be availed of in the case of abusive language, which is neither defamation nor slander, and there will be no resort by dissatisfied spouses, one against the other, simply because we lay it down in law that a wife can take action in future in respect of certain torts.
It is worth considering again. This is the point Deputy Finlay makes.
Certainly the matter can be considered again but, after what I have read and what has been put before me, I feel the case is strong for allowing this since we are legislating to put women on a better status, and it has always been regarded as a sign of advancing civilisation that women folk are equated more and more to the status given to their men.
Now, these are statements culled mainly from American journals. A judge in a 1927 case in Wisconsin said:—
"Courts may prophesy, but the practice often leads to embarrassment.... Every step taken to emancipate women from the rigorous restrictions of the common law has been met with dark forebodings on the part of the judiciary. But now that women have been put on a parity with men as to their personal and property rights, society survives, with none of the dark portends of the judicial prophets realised."
In Connecticut, which also allows actions for torts between spouses, a 1914 case contains this:—
"In the fact that the wife has a cause of action against her husband for wrongful injuries to her person or property committed by him, we see nothing which is injurious to the public good, or against good morals.... The danger that the domestic tranquillity may be disturbed ... and that the courts will be filled with actions ... we think is not serious."
Those were the prophecies away back in 1914 and the Deputy is now repeating them in 1956. I do not think these present prophecies are really serious at all.
There is an even older case. I will give a quotation from it:—
"It is not regarded as discourteous to say that the ill-treatment of the wife by the husband, which consists of the violence of an assault and battery, is more destructive of conjugal union and tranquillity than the declaration of a right in the wife to maintain an action against her husband for an assault and battery upon her would be. It is not at all unlikely that it would operate as a restraint upon militant husbands disposed to indulge in such evidence of conjugal union and tranquillity ... The relief from liability in the U.S. came about by judicial interpretation of what is declared to have been the intention of the legislature on the subject ... To allow the right in action of this character, in accordance with the language of the statute, would be to promote greater harmony."
Was that prediction fulfilled? What has been the result?
The forebodings that the courts would be filled with these actions were not justified. In other words, the prophecies were not sound.
Hollywood did not even take advantage.
To legislate to clear away the difficulties in connection with the motor car matter and leave everything else would be stopping very far short of what our present situation requires. If Deputies ponder over it for a moment, they will feel seriously in this matter that merely because we say a wife can sue her husband for torts of the personal violence type or defamation, it does not follow that our courts will be cluttered up with women who are supposed to be living in harmony with their husbands, revealing to the public that they have been subjected to violence for a long time and been defamed by their husbands over many years. That is far removed from reality. The fact that we lay it down that they can go to court will not be regarded by these people as an encouragement to go to court.
If what the Attorney-General says is correct, namely, that there are provisions already there in some other Act for suing or being sued as between husbands and wives, where is the necessity then for incorporating that in this Bill? That is the point that strikes me. I agree with what Deputy Boland has said. I expressed the same views on the Second Reading of the Bill. Despite what the Attorney-General has read out, which provides plenty of precedents and so on, I think that the very fact that this Bill contains these provisions will in some respect or another be a source of encouragement to some wife or husband to take the opportunity to utilise the particular provisions. I would strongly advise the Minister to give very serious consideration as to whether he will include it in this Bill at all. I do not think it is necessary. I do not think the Bill itself is necessary.
I hope the Deputy will not misunderstand what I said. A married woman has certain rights with regard to the protection of her property. When it comes to a matter of personal violence, the right is there for her to have her husband criminally prosecuted. What we are proposing to give here is that, instead of having to have her husband prosecuted, she would have the simple civil right. That is the change which is being made and we think that is a proper thing to do.
What can be derived from consideration of how the matter is worked out in the United States? There has been no breaking up of homes, no descent towards disharmony and no question of the courts being deluged with this type of action. If we take the Americans as a precedent, we find that there is just as much individuality as before. It is the proper thing, in this progressive age, to give the woman the civil right which she now has in regard to taking criminal proceedings.
It seems to me very bad to say that a married woman should be regarded as if she were unmarried. It is a pity that there is not some other way of putting it. I do not like the present way of putting it, which does not seem good to me. A married woman should be in the same position in respect of anything as if she were not married. I am not in a position to suggest any other wording, but I do not like the present wording. A married woman can never be in the same position as if she were unmarried.
The old term is to say that she is a feme sole. Is that any better?
It is not.
Question put and agreed to.
Section 3 agreed to.
SECTION 4.
I move amendment No. 2:—
In paragraph (c), lines 7 to 9, to delete "either in tort or in contract or otherwise (including suing and being sued for specific performance)".
This is the same as the last amendment.
I have already raised the technical point on this amendment and I would be glad if the Minister would look into it between now and the Report Stage.
I will look at it.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
I move amendment No. 3:—
To delete sub-section (2).
Amendment agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7.
Deputy Moylan objected to the whole section and we are agreeing with his objection, though possibly not for his reasons. We are going a certain part of the way with Deputy Moylan and taking the section out.
You are very kind to do that.
Section deleted.
SECTION 8.
I move amendment No. 4:—
Before Section 8 to insert a new section as follows:—
8. (1) Where a policy of life assurance or endowment is expressed to be for the benefit of, or by its express terms purports to confer a benefit upon, the wife, husband or child of the assured, the provision shall be enforceable by the beneficiary in his or her own name as if he or she were a party to it.
(2) The right conferred on a beneficiary by this section shall be subject to any defence that would have been valid between the parties to the policy.
(3) The moneys payable to the beneficiary under the policy shall not form part of the estate of the assured or be subject to his or her debts.
(4) If it is proved that the policy was effected and the premiums paid with intent to defraud the creditors of the assured, they shall be entitled to receive, on account of their debts, payment out of the moneys payable under the policy, so, however, that the total amount of such payments shall not exceed the amount of the premiums so paid.
(5) In this section, "child" includes stepchild, illegitimate child, adopted person (within the meaning of the Adoption Act, 1952 (No. 25 of 1952) ), and a person to whom the assured is in loco parentis.
(6) This section applies whether the policy was effected before or after the commencement of this Act.
Section 8, it is understood, will disappear when this section goes in. I might explain the new section as follows: On the Second Stage, I explained that Section 8 was one of the exceptions to the rule that a third party cannot enforce a contract made between two other parties. I mentioned then that we would propose this present amendment. There are in fact three points of difference between the proposed new section and the section as it stands. These are: (a) the policies covered include endowments as well as life policies—on the Second Stage I also mentioned education policies but these are in fact covered by the term "endowment". (b) The type of policy covered in the section as it stands in the Bill is one "expressed to be for the benefit of" a member of the family. The amendment extends that to cover, also, a policy which "by its expressed terms purports to confer a benefit upon" a member of the family. This is really a drafting change designed to make clear that the section will apply even though the form of the policy does not exactly conform to the requirements of the section as it stands in the Bill at present. The reason for this is that it is not usual for a man to consult a solicitor when completing a proposal for insurance and we do not want to see what would be a mere defect in form defeating his obvious intentions.
The third change in the amendment is that the trust mechanism which is enshrined in the corresponding provision of the 1882 Act, is being abolished. The trust mechanism is a cumbersome one and we see no sufficient reason for retaining it in its present form. A trust right will be created in the beneficiary, nevertheless, by the proposals in the amendment for the reason that the power of rescinding the contract of insurance is not provided for in the new section proposed. In the case of ordinary contracts, dealt with in the next amendment, there is a power of recision. What this amendment proposes to do therefore is to extend the provisions already in the law governing life policies to endowment policies.
Amendment agreed to.
Section 8 deleted.
NEW SECTION.
I move amendment No. 5:—
Before Section 9 to insert a new section as follows:—
(1) Where a contract (other than a contract to which section * applies) is expressed to be for the benefit of, or by its express terms purports to confer a benefit upon, a third person being the wife, husband or child of one of the contracting parties, it shall be enforceable by the third person in his or her own name as if he or she were a party to it.
(2) The right conferred on a third person by this section shall be subject to any defence that would have been valid between the parties to the contract.
(3) Unless the contract otherwise provides, it may be rescinded by agreement of the contracting parties at any time before the third person has adopted it either expressly or by conduct.
(4) This section applies whether the contract was made before or after the commencement of this Act.
(5) In this section, "child" includes stepchild, illegitimate child, adopted person (within the meaning of the Adoption Act, 1952 (No. 25 of 1952) ), and a person to whom the contracting party is in loco parentis.
This again is the insertion of a new section and is the application of the new Section 8 to a policy of life insurance or endowment insurance. The new section which will run before Section 9 relates to contracts for the benefit of the spouse and the children. It is a very definite extension, away entirely from insurance policies. I referred to this amendment on the Second Stage and said there would likely be a new section preceding Section 9. This is that section.
Amendment agreed to.
SECTION 9.
Question proposed: "That Section 9 stand part of the Bill."
There is one point I should like to raise on the section. I have been given to understand that the word "may" in sub-section (4) is merely permissive. I am pretty sure that in courts the word "may" has been interpreted as "shall". May the same thing not happen here? I would be totally opposed to any provision being passed here which would make it compulsory on a wife to give evidence against her husband. As I understand "may", it does not mean she will be compelled to give evidence against her husband, but I should like an assurance on that point. The ordinary layman will always interpret "may" as permissive, but the courts have interpreted it differently. Has that not been the case?
Undoubtedly. A definite ruling is that "may", coupled with a duty, may mean "shall". That should not occur in this case. The change being made is a change towards what the Deputies were contesting for. Under the 1884 Act, a husband or wife was a compellable witness. That is being repealed. What is being put in here is that a spouse may be called. That is only taken to mean a competent, and not a compellable witness. I would like to assure the Deputy that these words were chosen very carefully to bring about that change.
If the Attorney-General is satisfied that is the way the courts will interpret the phrase——
That is what they should do. We believe that is the phrase that will make them do that.
Is there no clearer way of doing it?
I am afraid there is not.
The intention is that it will not be mandatory?
That is so. This is not a novel phrase; it is not the first time this phrase has been used. The interpretation will be that the person is a competent witness, not a compellable witness.
If that is the interpretation, I am satisfied.
Question put and agreed to.
Sections 10 and 11 agreed to.
SECTION 12.
Amendment No. 6 in the name of Deputy Moylan has been ruled out of order as being not relevant to the subject matter of the Bill.
It is an amendment that I would welcome in another piece of legislation. I think a different person ought to be in this position, but this is hardly the proper piece of legislation through which to introduce this amendment.
I think it is a point that could be considered in future legislation.
Amendment No. 6 not moved.
Sections 12 to 17, inclusive, agreed to.
SECTION 18.
I move amendment No. 7:—
To add to the section a new sub-section as follows :—
(2) Nothing in this Act shall be construed as validating, as against creditors of the wife, any gift, by a wife to her husband, of any property which, after such gift, continues to be in the order or disposition or reputed ownership of the wife or any deposit or other investment of moneys of the wife made by or in the name of her husband in fraud of her creditors, and any such moneys so deposited or invested may be followed as if this Act had not been passed.
This really puts in a second sub-section to affect the position of gifts to a husband by a wife. The amendment was put down after consultation with the Official Assignee in Bankruptcy who thinks it is desirable to have this provision.
A very proper provision, too.
Amendment agreed to.
Section 18, as amended, agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
I move amendment No. 8:—
In sub-section (2), line 56, to delete "January" and substitute "June".
Amendment agreed to.
Section 21, as amended, agreed to.
Schedule and Title agreed to.
Bill reported with amendments.
When is it proposed to take the remaining stages?
I understood that there was agreement to put this legislation through. However, it may be necessary to look into one point Deputy Finlay has raised. The remaining stages could be taken to-morrow.
Report Stage ordered for Thursday, 13th December, 1956.