I thank Deputies from all sides for their welcome for the principle of the Bill, and for their analysis of it and criticisms of part of it. All these things are necessary so that we can have a fully rounded debate and to ensure that when we come to Committee Stage a lot of the preliminary teasing-out processes will have been started.
This Bill is intended to end the abuse of vindictive sales by husbands over the heads of their wives and dependent children. The principle of the Bill was welcomed generally. Some Deputies felt that the method adopted by the Bill for ending this abuse was somehow inferior to procedure whereby joint ownership would become compulsory. I am in favour of voluntary joint ownership. There is a section in the Bill whereby the State waives its rights to take stamp duty on transfers into joint ownership between spouses, and also waives land registry fees in the case of the land registry dealing with such transfers. That is a clear indication of my attitude towards the concept of joint ownership. I think it is ideal, but only when it is voluntary. I am not in favour of compulsory joint ownership.
Deputy Callanan and Deputy Mrs. Desmond both advocated joint ownership as being a preferential mechanism for securing what the Bill wants to secure. In another jurisdiction where they had the means for investigating these law reform measures in some detail, it took many years to investigate this question of compulsory joint ownership and the question still is to some extent an open one and the problems that were found in that jurisdiction are equally present here. There could also be a constitutional difficulty in relation to compulsory joint ownership.
Deputy Andrews raised the constitutional issue in regard to what is proposed in the Bill by asking if it would represent an invasion of the right to private property given by the Constitution. I have no doubt that it does not. The right to private property is very much qualified by references to the common good. It is not an absolute right, it is a qualified right. I was supported in this view by the Parliamentary Secretary to the Taoiseach, Deputy John Kelly, whose expertise in that area is well known. If we must look further than Article 43, which deals with private property, we will find, in the Articles dealing with the family, even more arguments to support my contention that the Bill is constitutional. That is not to say that a constitutional question might not arise if compulsory joint ownership were proposed, because this would be a very serious interference with the right to private property. It would be an interference under the guise of the common good and benefit of the family. It would be a blanket interference, whereas, under the Bill, if there is an interference with a husband's right to alienate his property, that right can only be exercised where there is a family situation that merits this interference, and in each individual case the common good or the greater good of others can be specifically pointed to. Compulsory joint ownership would give rise to a number of technical difficulties. One of its consequences in the event of a dispute is that it involves the tedious, expensive and quite difficult necessity of a partition suit. This would involve the parties in a very difficult legal area. That is obviated in the present situation. No case has been made at this stage that would convince me that compulsory joint ownership is preferable to what is proposed in the Bill.
I understand that the number of dealings in the land registry in respect of new houses shows a very high proportion as being in joint ownership. This is a desirable and a good thing. At the moment we should only go so far as to encourage voluntary joint ownership. It has been suggested that joint ownership would solve the problem of the wife who is left with the responsibility for mortgage payments and would preserve her security of tenure. This is a misunderstanding of the position because even if she were a joint owner she would not be likely to be in a stronger position to remain in possession than she is under this Bill because the strength of her position depends on her ability to procure funds to meet the liability under the mortgage. It is not an answer to say that that problem would not arise if there were compulsory joint ownership. It could just as easily arise.
Deputy Andrews raised the question of whether the provisions of the Bill would in some way inhibit lenders of mortgage money. I do not think so, because one thing that a mortgagee does not want to do is to have to realise his security and to have what is commonly known as a sheriff's sale. He wants to get back his money with the appropriate interest and he would much rather get it back over a longer period by instalments than be forced into a situation of having to sell the security. The Bill enables a married woman whose husband has defaulted on mortgage payments or rent to stand in his place and to take over responsibility for the mortgage repayments or the rent. If she is not in a position to do that a system of compulsory joint ownership will not help her. At this stage it would not be proper to introduce into any legislation any measure which would prevent a mortgagee or a landlord from realising his property. If there were such a measure in our law there would be no incentive, but there would instead be a positive disincentive against lending money to married couples. That of course, would be socially disastrous. To suggest that joint ownership would resolve that sort of problem is fallacious, as even a superficial examination must reveal.
It was suggested also that the Bill was defective in that it did not deal with the position of parties where the family home might be the subject of a compulsory purchase order or proceedings by the Land Commission, that there was no protection for the wife in that case. To raise that objection shows a misunderstanding of the fundamental nature of the Bill. As I said at the outset, this Bill is to prevent a husband selling the family home. The positive action of selling comes from the husband whereas, in the case of compulsory purchase proceedings, or Land Commission proceedings, it is not the husband who is the initiator of proceedings; it is society via the local authority, the Government agency or the Land Commission. Certainly, as far as the Land Commission is concerned—if the family are in residence—I cannot ever see it happening. In the case of compulsory purchase orders it can arise if the property is needed for whatever scheme the local authority have in mind. It has arisen and will arise in the future. This Bill is not designed to inhibit local authorities in the discharge of their duties nor does it in any way leave parties more vulnerable to that sort of procedure than they are already. One may put it this way: the question of compulsory purchase orders is irrelevant to this measure. If the House felt that a compulsory purchase order should never be made against family homes, then, in that situation, it could be considered but that would be a very drastic thing indeed to suggest.
Deputy Andrews felt that sections 6, 7 and 8 of the Bill would circumvent the rights of a mortgagee and a lessor. I do not think that anything of the like will happen. The Deputy felt specifically that under section 8 (2) mortgagees would not be entitled to call in the entire mortgage debt and that their rights would be clogged. As I have pointed out, the essence of a mortgage arrangement is to provide for repayment. That section gives the wife a legal entitlement vis-à-vis the mortgagee to take over those payments. It does not in any other way inhibit or diminish the rights of the mortgagee. We were very careful not to do that because, if we did so, we would then make lending to married couples an extremely risky business, so risky that lending agencies would be forced to give it up. We are putting the wife into the legal position of being able to say to the lending agency: “I want to pay you the arrears; these are my proposals, and these are my proposals to continue paying the current sums due”. If those proposals are reasonable, they have to be accepted by the mortgagee. The wife is then on the same footing vis-à-vis the mortas the defaulting husband. The mortgagee then is not prejudiced by this. He is getting his loan back, albeit some of it in arrear, but he is getting it back. That is always preferable to a mortgagee than having to go and realise his security.
Deputy Andrews referred to the rights of a woman in the marital home, and appeared, I think, to suggest, in the context of section 12 of the Married Women's Status Act, that that provision was to the effect that marriage, as such, confers on the wife a right of property in the home. Whilst the section does not provide this, the entitlement of a wife to a beneficial interest in the home under that section has been extended by judicial decision. This is a matter in which there is some doubt as to the exact borders of this extension. It is something that may require legislation to tidy it up or possibly we may await further clarification judicially.
Many Deputies mentioned the necessity for legal aid and some Deputies stated that the rights given under the Bills are not really valuable in the absence of legal aid. I agree that the presence or availability of legal aid would be in ease of many persons, not just under this legislation but throughout our whole legal code. At the same time it is not a good argument to say that a good principle, as this Bill proposes, is somehow lessened because the mechanics for enforcing it are not as perfect as we would like them to be. We have to provide the legislative reform. That is the first thing. Then, hopefully, we will be able to provide these additional benefits subsequently. In any event, the burden or the onus for taking legal proceedings under this Bill will not rest on the wife. They will rest on the husband because all that the wife has to do in the case of a proposed, vindictive, sale is to refuse her consent. Her husband then accepts her refusal or, if he does not, he goes to court—he is the person who has to go to court— and asks the court to hold that the refusal is unreasonable. Therefore, the onus is on him; he is the moving party in the court.
Of course, the wife will have to appear to make her case in the court and she will have to have legal assistance to do that. It is not provided for in the Bill but I would anticipate that the costs would be awarded against the party who was the stronger financially and probably that, in practice, will turn out to be the husband. It will not be a question of costs following the event because what is the event? Possibly if a wife unreasonably and vindictively withheld her consent, she might find herself punished by costs. I would say: "fair enough" in that situation. But, if her opposition to the sale was reasonable and so appeared to the court, then the court in finding equity between the parties, would not punish her in costs. Therefore, I do not think the lack of legal aid will be an inhibiting factor in the operation of this Bill. The onus is being placed on husbands, not on wives, to move.
A number of Deputies raised the question of bona fide purchasers for value who have taken reasonable steps to investigate the title and made all reasonable inquiries. Does the Bill place an undue burden on purchasers? Just recall what is in the Bill. It provides that for a sale of a family home to be valid the conveyance must be endorsed with the wife's consent. Where the vendor is a single man, or appears to be a single man, the question then arises: what is the position of a purchaser in that case? There are two courses open. One could say that the concealment of a wife and her subsequent arrival on the scene could vitiate the sale, but I think that would be an intolerable position. No conveyance or transaction in regard to property would ever be final if that possibility were lurking in the background all the time. The procedure adopted in the Bill is to put an onus on the purchaser, who must be a bona fide purchaser for value. In other words, there must be no element of collusion on the part of the purchaser. He must be bona fide and have given full value. He must have made all reasonable inquiries. The phraseology in the Bill refers to the obligation to make reasonable inquiries as does the Conveyancing Act, 1882. Deputy O'Kennedy asked precisely what it meant. It has a clear meaning in the realm of conveyancing. It means that reasonable steps, in the circumstances of a particular title, have to be taken by a purchaser. That normally means that he puts the usual requisitions or questions to the vendor and may seek a statutory declaration to support the replies to the requisitions. He has to make reasonable inquiries to satisfy himself that there was no need for a consent. If one did not have that, a vendor would be placed in the impossible position of having to prove that he was not married. Therefore, I do not think this obligation will be a burden on the title. It is only another incident of title that will have to be investigated on the conveyance and it will not be a harsh or onerous burden.
The alternative was to allow a defeated wife to appear at any stage and defeat the contract or conveyance. At first sight, that might seem a desirable thing to do but it would have the effect of ensuring that no conveyance was ever final, or free from attack in the future. It is in that context that the protection for the bona fide purchaser has been introduced.
However, the debate did raise in my mind as something I shall have to consider between now and Committee Stage the position regarding subsequent purchasers. I will not go into that at this stage. It does raise technical, conveyancing problems that, in the event of, say, the original purchaser taking a conveyance from an apparently single man who turns out to be a married man and where it is subsequently shown that his investigation was not of the standard required by the Act but, in the meantime, he has sold to a second purchaser, what is the position then of the second purchaser vis-à-vis the wife who may appear at a later stage? It is something we shall have to consider before Committee Stage. It is a technical point of conveyancing.