Or a wife. I do not underestimate the Minister and I hope he will take that as a compliment. He has said that common sense will prevail but I am sure he has often settled a case out of court. I am sure he will agree that common sense prevails in the end when the common sense of one side has a considerable weight over the common sense of the other. It can occur in the balanced case, there are two circumstances, but in either case common sense prevails either because the weight is all on one side or because the consequences are so doubtful that it is just as well to compromise. I know the Minister is invoking the last psychological factor in support of this and I concede him what is in it. I want to make this a constructive debate but this is what I feel about that approach to the Bill.
The Minister, for the purposes of his brief and in order to be clear, specifically refers to the case of vindictive husbands and victim wives but it can be the case of an unfortunate husband and an impossible wife, something that is not unknown. It may be something on the side of either spouse, a stronger character exercising benevolent protection over the other weaker character who needs the support and the affection of the stronger character. One of the signs of weakness is seizing on any little strength one has and in this case I do not fear the strong, dominant spouse who would refuse to co-operate but rather the weak spouse who would have the inner compulsion that all weak people have to assert themselves when they feel they have the strength to do it. We must not leave out of the count the further practical human complication that the world abounds in mischievous counsellors, whether in the family itself, in the environmental family, brothers or sisters of spouses or neighbours. When one has the type of problem posed in the normal case I have mentioned, what is more natural than for one of the spouses to speak to a near relation? How often have the consequences of that been a disaster where testamentary dispositions are concerned, perhaps not so much where matrimonial relations are concerned?
These are facts that will not be in the report and if I seem to be a little hard on the study of reports, conditioning the approach to it by authorities and so on, I want it to be understood that I intend no reflection on anyone but I am concerned with the danger of a particular approach. The world abounds in mischievous counsels and if the provisions of the Bill are introduced a fertile field is created for these counsellors. Let me go back to the man on the north side of the city who owns his house and is living happily with his wife and family. He has a chance of promotion and being nearer his job and can get comparable accommodation. He can benefit his family financially and practically by moving to the south side. His wife for other reasons— some valid, not trivial; the friendship of neighbours and company for a wife or employment, if she is working, are not trivial factors—will not agree. The first reaction is that nothing is done when the conflict arises. The second consequence is the building of a barrier between the husband and wife. The husband cannot but feel that he has been thwarted in his efforts to do his best for his family and he will at least be discouraged. One can imagine the psychological effect on himself and the family. The wife will take no pleasure in his victory; she will sense the cost of it.
You are not only tending to build an estrangement but you may very well convert that normal marriage into a marriage where there is a vindictive spouse. I am dealing with psychology and raising the question of judgment about this Bill: it is a question of judgment. I do not minimise the Minister's problems nor do I want to discourage him; indeed, I want to join with him as far as possible in facing them but I also want to protect, if possible, the normal case, particularly when I see the danger that the operation of a right of this nature so conferred may tend to convert many cases of happy families into families in conflict. I think I have made the first point very clear. I am grateful to the Minister for accepting that if I have used what appeared to be technical terms, they were not. I appreciate the way this Bill has been presented.
I am not and never was an academic lawyer. I am not even a lawyer now. I am approaching this from the point of view of the ordinary Deputy with a little experience of the practicalities of the law. I did not claim my own authority but I would commend in this context many of the sentiments expressed in the whole debate on the Succession Act from beginning to end in, I think, 1964 by the former Taoiseach, the late Deputy John A. Costello, as he was then, one of the most eminent, if not the most eminent, lawyer practising in this State almost from its foundation. His comments on that occasion are worthy of note.
I am pleased, if I may say so, that when I was sitting on that side of the House and we were debating the Succession Bill, and he was sitting here, I was able to say and to urge on the House that what he had said should not be listened to lightly. I would like to repeat that remark of mine at that time, but I will not delay the House by tracing the very long debate that took place then. Neither, however, am I decrying nor in any way belittling the studious approach and the administrative approach to this. Both have to be taken together. The staff work and integration of logic that study gives is necessary but one has to be sure that, in doing that staff work and effecting that integration, one is taking into account the whole human area involved and nothing else is involved in this debate and on this Bill than the status of the family and the position of the family. So much for my first broad contention.
Let us look now at it from the point of view of where we are going with certain legislation. The tendency nowadays is very much towards the equality of men and women. For too long we have had the subjugation of women. We are very familiar now with the movement for the emancipation of women right from the days when separate property was first provided for to today when we are discussing equal pay. Whatever about the discussions and the rights, the fact is that the role of women in our society is becoming more potent in decision making. It is common now for women, married or otherwise, to be in employment. It is common now for women to have their separate property. In the latest Finance Bill we made further provision for the separation of the spouses in regard to taxation accounting. Altogether the trend is to set the man and woman on an equal basis and to regard marriage as a partnership as, indeed, it should be. As I have already pointed out, by the mere force of natural affection, natural impulses and remembering the way the Lord created men and women in the beginning, by and large the institution of marriage and the family works out. I have already adverted to the decision making problem where judgment is involved. Someone must make the decisions. Committees make decisions by a majority. In other cases decisions are made by delegating power to one person. How does one provide for the making of decisions where you have two votes and no chairman, a committee of two and no chairman? That is what you have in marriage.
How do you resolve the problem of judgment here? Up to this we have looked at it from the point of view of the man and his property. I have come to certain conclusions, already on the record, but let us look at this now from the point of view of the woman who has her separate property, and rightly so. How many cases are there of prudent wives with not so prudent husbands?
Normally wives exercise their maternal care not only on their children but also on the big boys to whom they are married. Humanity does not change. A husband may be a good fellow, earning the bread, but he may want a bit of assistance. How many husbands are strengthened by the support of their spouses. I have come across cases where the wife with an understanding maternal element in her approach to her husband has supported him, has—at the risk of creating a pun—husbanded his resources, has saved, has, perhaps, acquired the house in which they live. She may be the owner of the house and she may be the person whose judgment is involved. It may very well be that it is she who should have the disposal of the house. Here we are introducing the situation as it existed in reverse where the woman is concerned.
Let us take not only the facts now but also the trends in other legislation. In the Succession Act and elsewhere it was necessary to protect the wife by ensuring her separate property. This House deemed it necessary to protect her by that Act. If she has prudently acquired assets in the form, for instance, of a family home she may have done that to guard against a weak or indolent spouse. That spouse may be feckless and he may be truculent. Being a man, he will know he has got rights. Now there is a certain aggression in all of us that tends to make us exercise those rights and, as I said earlier, the weaker the character the more dangerous where rights are concerned and the less hope there is that there will be long-sighted forbearance.
What position is that woman in? The husband may have run into debt or something like that. There may be a situation where the change of environment might be the most beneficial step to make, and he can come in and say: "No. You do not." Again it is a block. Woman are extra-ordinarily tolerant and devoted, as we know, in the normality of cases, in spite of all the things one reads about the abnormalities. However, if he ties her to a place known to her to be not the best thing for her family, the fact that she is prevented from doing what she wants to do—because that is the result in this case of a committee of two without a chairman—to say the least of it, in that case there is going to be a very hurt woman, and, in all our practicalities here, we should not overlook the psychological factor. Indeed, it is the psychological factor that brings out the vindictiveness at which this Bill is aimed.
These are very real problems that have to be faced by this House in passing the Bill. I am not offering them as a reason why this Bill should not be passed, though if I were convinced that one had to choose between the lesser of two evils, I am afraid I would have to make that choice, whatever the answer might be. I certainly do not think that in order to solve the lesser evil we should bring in a greater evil. I have outlined the problems that will arise both for the man and for the woman. Any woman who has, for instance, saved up, bought the house and, in prudence, kept it in her own name would like to have the disposal of it. She would be as tied as the man. I know the Minister did not intend to mislead when he said: "I propose for convenience to refer in my remarks to `the wife' and `the husband' in cases where it is more likely that one or the other would be involved." The impression seems to have gone abroad that it is more likely to be the vindictive husband that is involved and that is probably true. It should be realised, nevertheless, that the consequences impinge on the wife as much as on the husband. Therefore, my case, taking it from both sides, with the attempt to give an example, boils down to this: the power conferred by this Bill will, in very many cases, result in inaction and that inaction may very well be to the detriment of both spouses and the family as a whole. That is the first point.
The second point is that, that situation having been developed, and particularly if there has been a difference of opinion between the two spouses as to what should have been done and that neither will give, the second disastrous possible consequence will be the changing of the relationship between the spouses, the initiation of the process that can very easily lead to the vindictiveness that this Bill is aimed at. If that situation should arise, there would be a direct contribution to marriage difficulties—I will not say the breaking up of a marriage—and psychological difficulties within the family, and these quite apart from other material consequences.
I know the Minister will say two things, and rightly so, and I can see two things. He will say: "They can go to court and get a third person to arbitrate." Again, I will take the ordinary husband and wife. Do they want to go to a third party? Heretofore the solution in all of these cases would have been practically automatic, because the power of decision lay between the two of them and after due process it was worked out. They did not want to go to another party; a solution was found. Even in cases where the move was made with the disapproval of the other spouse, it could very easily happen that, if the judgment of the spouse making the decision was right, later the second spouse would be only too glad to acknowledge it and that, instead of being a cause of disruption, it would be a cause of unity and of benefit to the family.
If two spouses are forced to go before anybody, you are on your way to matrimonial trouble. I have handled a few matrimonial cases in my time at the Bar, and anybody who has handled them knows that if the solicitor whose advice they seek in the beginning cannot throw them back on themselves with the plea to settle the matter between them, and they cannot get a solution that way, these cases offer very grim hope, indeed, of a solution that will bring happiness or even material benefit to the spouses concerned.
I would venture to say that in all the agitation for divorce and so on that one hears, in 90 per cent of these cases both spouses are left, when separated, with a lasting regret, no matter what the animosity, no matter what the causes behind the separation were. Here, by the very fact that we force people in the intimate relationship of a husband and wife to go to a third party, we are introducing the psychological element which is conductive to disruption. We should think twice before we do this kind of thing, and reflect that the vast majority of husbands, wives and families in the community—and I believe in all communities—have happy relationships. I am not saying that anyone is in paradise. Is what we are doing justified when one considers the impact on the larger area of normality? I concede that it is justified and desirable in the cases envisaged by the sponsors of this legislation. I agree with the Minister that the proper thing to do is to have resort to the normal processes of law. I am very suspicious of arbitrations and councils where there are tried mechanisms. What will the effect on normality be if all this goes to a court of law, even if the court is like an income tax hearing, completely in camera? On what basis will the court exercise its jurisdiction? What will the psychological impact be on the family thereafter? Take the case of the man with a wife on the north side who can move to the south side on promotion and who comes to the conclusion that he should part with the dwelling on the north side and acquire a dwelling on the south side. The wife is opposing this for certain reasons. When the case comes before a judge what can the judge say?
From the material point of view the judge might decide that the wife's objection is unreasonable, that the man has to work, that the physical hardship on him in commuting across the city would introduce an undue risk, and that there are better prospects for the family on the south side. From the woman's point of view she has friends and neighbours and she might feel that there are better educational facilities for the children, and there might be a shopping centre quite near. The woman might think all these things more important than the monetary prospects of the new position. In a case such as this the husband might very quickly dispose of the argument and put the case before a judge. Is that fair to the woman? Is it conducive to good marital relationships thereafter? Is it not hardship on the woman to be deprived of social and marketing amenities? In these circumstances not only might the woman cool off towards her husband but she might feel deprived of the opportunity of discharging her household duties properly. This may all seem very far fetched but it is very much reality. I would urge the Minister to take this point of view into consideration. My remarks are aimed at being helpful rather than in a destructive way.
This Bill is a very well thought out and efficiently presented measure. However, in section 1 "family home" has the meaning assigned to it in section 2. Section 2 says :
(1) In this Act "family home" means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has with just cause left the other spouse, ordinarily resided before so leaving.
(2) In subsection (1) "dwelling" means—(a) any building, or (b) any structure, vehicle or vessel (whether mobile or not), or part thereof, occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.
The generality of that definition is staggering to say the least.
First of all, there is the spouse whose protection is at issue who ordinarily resides or has, with just cause, left the other spouse. Before one can interpret this section at all so far as this case is concerned, one has to answer the question: is there or is there not just cause? One is opening up the whole area of matrimonial law with just two words. I am not casting any aspersions on the drafting of the Bill, which has been carefully done, but I do emphasise this to show the difficulties against which we, the draftsmen and originators of the Bill, are up against when it comes to the practicalities.
Section 2 (2) (b) says:
... any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.
At least in our Capital Acts and so on there was a definition of the amount of ground that went with the dwelling. Here the question arises as to whether a portion of the ground adjacent to the dwelling could be disposed of by the husband, if he owned it, particularly if there was a substantial plot around it. Substantial plots are visualised in other legislation which could be captured by the phrase "any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling". Let us look at those words "attached to and usually occupied with". Look at the generality of those words. Look also at the generality of the words "amenity or convenience". The restrictive nature on the rights there are so great as to cause, in time, very serious perturbations in the ownership and disposal of property and so on.
I could go on for quite some time on this. Perhaps I should leave details of this nature to Committee Stage. But I do want to point out that the generality of that has implications that can go very far indeed. There are very many more things I could properly say on Second Stage but I shall conclude with this summary: first, that in weighing the impact on the normal majority are the provisions of this Bill sound or justified? Secondly, are the blatant dangers to the institution of the family and of marriage in this so great that some further positive measures are needed for protection? I raise that as a very serious issue. I am afraid I would not be going too far if I say that this Bill could be regarded as an inducement to people to live without the institution of marriage. Already the Minister has found the trap where engagement is concerned. But, in this modern world where the institution of marriage as we know it has been changed and modified—there is an evolving situation. The Parliamentary Secretary to the Taoiseach will perhaps get my reference when I refer to Roman law—the various types of marriage that developed in Roman jurisprudence—and I do not presume to offer any comment in the face of his authority on such matters but I think he will concede that I may have a point in making that reference.
Are we not bringing about a position where formal marriage may be a thing to be avoided and where, if there is enough of informal marriage, we are back to a common law position? That seems a desperately exaggerated thing to do. But, as far as I can see, all the provisions of this Bill can be avoided in the case of two people living together and bringing up a family—a thing not unknown in modern times—because they are not spouses or else one has to bring in the definition of "spouse" to include them. If it is the first case, then there is a direct incentive to destroy the formal relationship of marriage. If the second thing is done, there is straight away a statutory recognition of the institution of what I will call common law marriage. One is caught either way. That is something that cannot be lightly thrown aside. I say it as forthrightly as I can, very conscious of the fact that when one says something badly and forthrightly like that, without qualification, one may be exaggerating.
In law, we must watch the potential of what we legislate. The probability of it is important also but the potential is there. I say that, under modern conditions, with the agitations current every day and the changing of customary approach to the relations of men and women, this Bill tends to do one of two things: if the unmarried spouses—that, is, the irregular liaison—are outside it, then this very fact encourages that. If the irregular liaison is within it, then this recognises the irregular liaison. I may seem old fashioned but, in either case, an institution in our structure—which all societies in some form or another have recognised and evolved as an necessity of nature, a part of nature—is, to some extent, endangered. It is a hard thing to say but it is better to recognise what we are doing.
The Minister's explanatory memorandum demonstrates it where, in the space of less than a page he summarises the provisions and purposes and then has to continue for pages with sections hedging in the legislation. The Bill, while not dealing at all with the difficulties I mentioned, contains no fewer than 15 sections, some of them substantial. That, in itself, is an indication of the difficulties of this problem, the dangers of the approaches to it, and justifies an earnest debate in this House in which I hope I have tried constructively to take part. As an earnest of that intention, I have no hesitation whatever in recognising the ability, competence and thought that went into the preparation of the measure. Recognising the personal competence, experience and expertise of the Minister who presented it, being at one with him in a desire to cope with this problem, I gladly acknowledge all of that. But I should like the broader aspects I have urged to be remembered. I urged them at some length because I feel it is inevitable that, when one focuses on problems such as these—whether in committee, commissions, in the administrative office, or merely from the point of view of the problem itself— one may be somewhat myopic in view and fail to recognise that the impact of the whole of what is attempted here may be so wide and the repercussions so great that a second look should be taken at it.
