andMr. Keating asked the Minister for Justice if, in view of a recent court statement relating to the legal status of women, he will introduce legislation to repeal all archaic laws which appear to place a woman in the same legal category as a chattel.
Ceisteanna—Questions. Oral Answers. - Legal Status of Women.
26.
Since I have no authoritative text of the remarks in question, still less of the precise context in which they were made, what I have to say is in no way to be taken as a comment on those remarks.
I do not accept that the law of this State, that is to say, the family law governing the status of a married woman vis-á-vis her husband and children, places her, or appears to place her, in the legal position of a chattel. There was, in the fairly distant past, some justification for such an allegation in relation to the law which obtained both in Britain and in this country and the usual complaint is that we have failed to keep pace with the British in changing it. This complaint is not based on fact.
The last remaining legal restrictions that applied to the property rights of married women were removed in this State by the Married Women's Status Act, 1967. Likewise, that Act enabled a wife or husband to take civil proceedings against the other for a civil wrong, thus affording full legal protection for the personal rights. As regards rights in relation to children, the legal position—contrary, I may say, to what is being publicly alleged so persistently —is that the father is not the sole guardian of his children. Father and mother have equal rights, being joint guardians. This legal position dervies first of all from the Constitution and has been spelt out in detail in the Guardianship of Infants Act, 1964.
It has been the constant policy of this Government and their predecessors to work towards improving the status of women despite, at times, remarkably vehement rearguard actions by those who feel that we must not be the first to initiate any change in the legal field. For instance it is only a few years since the Government were the targets of a sustained and scurrilous campaign because they insisted that, on the death of a husband, a wife should have, in relation to his property, legal rights deriving from her status as a wife and not, as the critics of the Government wanted, a law under which a wife as such would have no rights at all, and could benefit only if she could go into court and prove she needed the money.
If there are any remaining areas of inequality in the legal field, they can only be minimal ones and I have no doubt that they will be pointed out by the Commission on the Status of Women which was appointed by the Government in 1970.
I accept the good intentions of the Department of Justice in regard to the status of women and I accept the validity of the Minister's claim that a good deal of progress has been made. I was interested to see that the Minister had no authoritative version of what the judge said because I have, in fact, a transcript of what the judge said. It may not be an authoritative one; that may be the outlet the Minister is using; but I think it is a transcript of the words the judge used. The content of that is at variance with the content of the Minister's reply because the judge in this case who, I think, was acting out of a desire to point a defect in our law and with the objective of having our law amended, indicated that the relevant law—I understand I cannot quote, a Cheann Comhairle—had been abolished in England for over 125 years. The abolition was in 1857.
We cannot debate the matter. The Deputy has not put any question.
This is a first supplementary.
It is not a question. The Deputy is making a speech.
It is a question, a Cheann Comhairle. I will draw to a close as quickly as I am able. The justice in this case made it clear in charging the jury that they were to regard, as in English law, the wife as a chattel, as something that the husband owned and that they could compensate him just as they would compensate him for a thoroughbred mare or a cow. Those words, which are very shocking and very offensive to women, were used in addressing a jury by an Irish judge who, we must assume, knows the law and we must assume that the charge to the jury in this case was correct. In view of that, it seems to me that the Minister's reply is, shall we say, disappointing.
The Deputy is continuing to debate the question.
I want to ask the Minister if he will take the substance of what I said in this question and, if it turns out to be correct, if he will look into the matter and, if it is correct, if he will have legislation initiated to carry out our joint desire that the law in regard to women in Ireland should be as modern as possible.
As I said at the outset of my reply, I do not want to comment on what was said in the particular case and this is especially so in view of the fact that the period for an appeal in that case has not expired and for all I know there may well be an appeal. I do not want to prejudice the rights of either party. What is not in dispute is that the tort of criminal conversation is still part of our law but the Deputy may be misled into believing that a similar right has not very recently existed elsewhere. I draw his attention in particular to the provisions of section 41 of the Matrimonial Causes Act, 1965, in England, which sets out in statutory form the precise same right of action under statute as exists in our common law tort of criminal conversation. In fact, subsection (2) of that section refers specifically to the old tort of criminal conversation and says that the court is to decide the matter in the same way. That was in a 1965 Act in Britain. In an Act of 1970, that particular section was repealed as from 1st January, 1971. Therefore, it is only in the past 18 months that the substance of the tort about which we are talking at the moment has been repealed elsewhere. It is by no means clear that the existence of this tort is in any way detrimental to the status of women. Equally, it would appear—without wanting to make any comment on any recent case—that the jury in a particular case recently certainly, by their award, did not regard the tort or the right given as anachronistic.
Is it correct that an action under that tort lies at the suit of either spouse?
It lies, aparently, at the suit of a wife only in rather exceptional circumstances and not for adultery simpliciter on the part of the husband.