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Dáil Éireann debate -
Wednesday, 30 Jun 1976

Vol. 291 No. 14

Family Home Protection Bill, 1976: Committee Stage (Resumed).

NEW SECTION.

I move amendment No. 2a:

In page 3, before section 4, to insert a new section as follows:

"4.—Where a spouse purports to convey any interest in the family home, such spouse or a solicitor acting in that behalf shall give notice in writing, by pre-paid registered post, of any such intended conveyance to the other spouse."

I strongly urge the Minister to note the intention of the amendment. We have found in Opposition that it is sometimes quite difficult for us to draft amendments of the purity required by legislation, but I believe that this amendment conveys the intention of the drafters of it and consequently does not lose its effect even though it may be impure in the drafting sense. We ask that where a spouse purports to convey any interest in the family home, such spouse or a solicitor acting in that behalf shall give notice in writing, by prepaid registered post, of any such intended conveyence to the other spouse. This section deals specifically with the consent of the spouse, and here we have an absolutely watertight provision offered by the Opposition to ensure that if there are any deals with the family home or the chattels therein, in those circumstances the spouse who purports to deal with it or a solicitor acting on behalf of the spouse shall give notice by registered post to the other spouse. We believe this is a very reasonable amendment, and if the Minister cannot accept it as drafted we ask him to consider the possibility of working it into section 4 as it stands. The Minister might like to comment on the proposed amendment in the first instance. Deputy Collins may also have something to say about it.

I appreciate the concern which inspired this amendment. In considering it I would recall to Deputies opposite what the Bill provides for.

It provides that a sale cannot take place without the consent of the other spouse. The amendment proposes to make the spouse who wishes to sell give to the other spouse notice in writing of the intention to sell. There is no point in having such a requirement when he cannot sell without the consent of the other spouse. If he wishes to obtain the consent of the other spouse in order to effect a sale, he has thereby to give notice to the other spouse. The amendment is asking for something which is entirely unnecessary having regard to the structures proposed in the Bill.

It might also only confuse the straightforward and clear policy of the Bill. The whole point of the protection afforded to a wife by the Bill is that it places the onus on her husband to obtain her consent as a pre-condition of the validity of the sale, or else to take proceedings under section 4 if she refuses to give her consent. Once there is a legal obligation to get the consent— and there cannot be a sale without the consent voluntarily given, or granted by the court—there is no point in notifying the wife of an intended sale. The sale cannot take place unless she gives her consent and thereby gets notice when she is asked for her consent.

I cannot foresee a situation in which her husband would contemplate contravening the provisions of the Bill because, if he were to do so, he would be faced with some daunting obstacles. First of all, the sale of the home without the wife's consent would be void. Secondly, he would have committed a serious criminal offence with a penalty of imprisonment up to five years and no maximum fine. Thirdly, his wife would have the right to seek damages against him. There are severe sanctions for any husband who might propose to move in contravention of his obligations here.

In any event, the object of this proposed amendment is to give notice to a wife. There is already an inherent obligation to do that because he cannot sell unless she has notice to give her consent. The inspiration for this amendment may have come from the Report of the Commission on the Status of Women. They proposed something of that nature in their Report. That proposal was in the context of a different scheme of protection, a scheme where to get protection the wife would have had to take court proceedings. Deputies will recall that, when introducing this Bill, I stated that I did not propose such a measure because it would put an onus on the wife to move positively, whereas the remedy put forward in the Bill puts the onus on the husband to seek the wife's consent rather than requiring her to take the initiative in, perhaps, a sensitive family situation.

If that scheme were being proposed there would be some point in the amendment but, having regard to the protection provided by the Bill, I suggest to Deputies on the other side of the House that, while I sympathise with the motive behind the amendment, it is completely unnecessary in the context of section 4.

We accept that the Minister has correctly interpreted section 4 and we welcome section 4. Nevertheless the amendment is far clearer than the section as drafted. We do not believe the amendment would upset the section. It would make it far clearer. As the Minister does not propose to accept the amendment, and as we have very limited time at our disposal having regard to the agreement between the Whips, it would be rather pointless to pursue it. We believe we are right. The Minister believes we are right also. He believes the point is adequately covered.

May I say I do not believe the Deputy is right?

The Minister does not think we are wrong either.

I sympathise with the motives behind the amendment.

It is not sympathy we want. It is action.

That is all I can offer.

Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.

Amendments Nos. 3 and 4 may be taken together.

I move amendment No. 3:

In page 4, subsection (2), line 23, after "the other spouse" to insert "or any other person".

The purpose of these amendments is to enable a court in making an order under section 5 subsection (2) to direct the order in appropriate cases not only against the husband but also against a third party. For example, where a third party has been in collusion with the husband so as to bring about the loss of the home, or has taken any action to render it uninhabitable, an order may be made against the third party under the subsection just as it may be made against him under subsection (1) of section 5.

Section 5 is a wide section and gives quite severe and wide powers of redress against the husband. The amendment is to make it even wider still and to ensure that a third party would be brought in. We will be relying to a large extent on the discretion of the courts, but the courts already have a wide discretion in the area of prohibiting something in the general area of injunctions, even though the strict jurisdiction in regard to injunctions does not apply to the District Courts. It is necessary to extend the scope of the section so as to take in third parties who might be in collusion with husbands. The very fact that it will be there will be a deterrent against wouldbe transgressors of the provisions of the Bill.

I accept the thinking behind the ministerial amendments. I have one or two questions on the section. The Minister will only too readily recognise and realise that, if a spouse believes the condition of the family home is being deliberately run down by the other spouse, she knows she has a remedy at her disposal, but at a cost. I know we could not propose an amendment which would impose a cost on the Exchequer. The point is, if a spouse has not got the wherewithal or the ready cash to go to court to get the other spouse to keep the house in a habitable condition, the thinking behind the section which is good and sound thinking will be wishful thinking unless the person has recourse to legal aid.

Acting Chairman

We should dispose of the amendments first and then the Deputy can speak on the section. Are the amendments accepted?

The court may order the other spouse or any other person to pay to the applicant spouse such amount as the court considers proper. Is that a correct reading of the section as amended?

Who has the Minister in mind as any other person?

A third party who was in collusion with one of the spouses.

One or other of the spouses?

With the guilty spouse, with the spouse against whom the action was being taken. It might be a person who was in collusion with the spouse to render the home uninhabitable, perhaps by interfering with the contents of the house, or with its use, or similar type of behaviour.

In that context it is an admirable amendment, but should it not be plural and read "or any other persons"? It could include one or more people. It is a small technical point.

The Interpretation Act would cover that.

"Person" would include "persons"?

Is there not also a possibility of a case arising in which a court would direct that a spouse or any other person or persons would have to pay and they might not be in a position to pay? What happens then?

There is nothing the law can do about that situation. If the person against whom an order is made directing him to pay damages is no mark, to use the legal colloquialism, there is nothing anybody can do about that situation.

Amendment agreed to.

I move amendment No. 4:

In page 4, subsection 2, line 25, after "order" to insert "directed to the other spouse or to any other person."

Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."

Has the Minister satisfied himself as to what the situation might be if more than one house was involved? How does one define the home as distinct from the ownership of a particular house?

In section 2 it says that "family home" means, primarily, a dwelling in which the married couple ordinarily reside. Should there by any doubt as to whether that applies to one or more houses it would be for the court to decide whether each or any of the houses is a home in which they ordinarily reside.

Did the Minister say a permanent dwelling?

So that a temporary dwelling could be considered a home?

Yes, because a dwelling is defined in subsection (2) of section 2 as "any building, or any structure, vehicle or vessel (whether mobile or not)." As regards the other point Deputy Collins raised, it is the old argument that the remedies provided here are to some extent unreal remedies in the absence of legal aid. I do not accept that. It has a certain validity in that certain people may be inhibited from going to law because of the fear of having to pay costs, but in the case of a wronged spouse—we are talking again in terms of wives—I cannot ever see a situation where a wife with a genuine action would fail to get legal advice and legal assistance to bring her case to court. The legal people will realise that, except in a very rare case where it might be shown that the action was totally unworthy, the costs would be awarded against the husband, who presumably would be able to bear them. In the odd case where that might not happen, and I am sure Deputy Andrews will bear me out when I say that I do not think any person would be deprived of a remedy. Again I think it would be wrong to criticise the section on those grounds if the section is inherently good in itself. If the principle is right, we should welcome it and look forward to the day when the other area in regard to legal aid can be attended to.

I would not want the Minister to think I am opposed to the section.

No. I accept that completely.

I am just pointing out imperfections—that might not be the proper word—or the weaknesses which would certainly be overcome if free legal aid were available.

Question put and agreed to.
NEW SECTION.

I move amendment No. a4a:

In page 4, before section 6, to insert a new section as follows:

"6.—(1) The Minister for Justice, with the consent of the Minister for Local Government, shall direct all local authorities and any other individuals, bodies or institutions, whether public or private, engaged in the sale or disposal, or otherwise, of family homes, to register such homes in the joint names, as joint tenants, of the spouses who take lawful occupation of those premises.

(2) No stamp duty, land registration fee, registry of deeds fee or court fee, shall be payable on any transaction the subject matter of subsection (1) above."

Basically what we would like to see here is that the tenancies of houses, for instance, local authority houses and, in particular, houses under the purchase scheme of local authorities, would be joint tenancies in the names of the married couple. If this were done in the initial stages in regard to local authority houses, it would prevent anything going wrong at a later stage. When this Bill becomes law, to communicate its contents to all the people of the country will be a tremendous job, and seeing that the local authorities are so much involved in housing as it is, perhaps they have an important part to play here, as of course have, as stated in the amendment, other bodies or institutions; I am thinking of building societies and so on. I think this amendment would be a valuable addition to the Bill.

First of all, I would like to clear the administrative consequences of the amendment. It would involve the Minister for Justice in decisions relating to matters falling within the scope of the Minister for Local Government and, conversely, would involve the Minister for Local Government in decisions relating to matters which would be outside his sphere of responsibility.

Secondly, the amendment would make it compulsory for the Minister for Justice to make a direction in regard to joint ownership. This would be unnecessarily complex. If we were going to do that it could be done in a simpler legal manner.

Thirdly, the amendment discriminates between homes that are subject to a mortgage and homes where there is no mortgage. That would be socially and legally rather drastic.

Perhaps the most serious objection to it is that it would, in effect, impose compulsory joint ownership irrespective of the wishes of the spouses. I indicated on Second Stage that at this juncture I could not propose a system of compulsory joint ownership. It is a very complex social and legal matter and is something that will require much debate and analysis. I would like to see a fair amount of public discussion on the merits of it and not just on the emotions of it.

The policy of the Bill is to encourage voluntary joint ownership. The Bill protects wives against vindictive sales by husbands, so in that provision it achieves one of the consequences of joint ownership. I believe there should be joint ownership between husband and wife, and this practice is growing. The majority of new dwellings being registered in the Land Registry are being registered in the joint names of the husband and wife, and this is a good thing. That trend will be accelerated by virtue of the provisions in the Bill exempting such transfers in the future from stamp duty, registration and other fees.

The prohibition against vindictive sales, which is the evil we set out to cure, is fully achieved in the Bill. There is also strong and practical encouragement towards voluntary joint ownership. What the amendment proposes is compulsory joint ownership. This is too extreme and goes beyond the scope of the Bill. Such a step should not be contemplated until the matter has been thoroughly debated here and in public and parties that have a view on the matter have made their views known. It is a matter which, in the context of Women's Year, has been advanced quite frequently but not advanced on the basis of detailed analytical argument. Instead it has been advanced, I think it is not unfair to say, with a certain amount of subjectivity. The entire question needs objective analysis.

I am not necessarily opposed to the idea but have not, as yet, heard convincing arguments for it. Interference with the legal rights of the parties and with the social relationships of the parties, which would be implicit in imposing compulsory joint ownership, would not be justified now. The evil that has resulted from not having joint ownership, namely, vindictive sales by one party without the consent or against the wishes of the other, is covered by the Bill.

The amendment proposes the abolition of stamp duty and fees where a home has been purchased in the joint names of the spouses. It would be a matter for the Exchequer to decide such things. I am proposing in the Bill that, where the home has already been bought by one spouse and he proposes to transfer it into the joint names, in the case of voluntary transfer, where there is no consideration passing, this should be exempt from stamp duty. There would not be any financial implications for the Exchequer in that provision because one must presume that those transfers would not have taken place at all so one encourages something to take place which would not have taken place and there is no loss to the Exchequer.

In the case of local authority tenancies to create a compulsory joint tenancy in the tenancy would give the wife no greater protection against her husband than she has at present because section 3 of the Bill provides that her husband will not be entitled to surrender his tenancy without her consent. I would not be agreeable, for those reasons, to accepting this amendment. It is a very far-reaching provision and it goes against the policy of the Bill which is (a) providing against vindictive sales and (b) at this stage to encourage voluntary joint ownership.

The Minister knows well that since the introduction of this Bill into the House our party have accepted the principles of the Bill, that vindictive sales be a thing of the past, that they be outlawed as and from now and that we would encourage joint ownership of property in an effort to help the couples involved. I appreciate the arguments of the Minister against the amendment. The strongest argument put forward by him is that we are introducing a degree of compulsion into something which we are trying to encourage along the way. We are delighted that the rights of the female spouse are protected right through the Bill even if in the case of a local authority house she is not included in the vesting order.

Perhaps the Minister will appreciate that this amendment is a sign of our over-zealousness to protect the spouse and to make sure she has the full protection of the law of this land at all times. Would the Minister consider that when local authorities make every year many hundreds of vesting orders of local authority housing they might explain to the tenant who is being vested with a title to a council house the value of having the house in both their names? The Minister might consider that and perhaps he might be in a position to do something about it at a later stage.

That is a good idea. I will certainly draw the attention of the Minister for Local Government to it. If he were to issue a circular to all local authorities directing them in the application form they send out to tenants to draw their attention to the desirability of having it in joint ownership it might help. I understand it is the practice at the moment in Dublin and some other local authorities to give joint tenancies.

I am not at all happy about the Minister's reply. Our spokesman on Justice has articulated the matter very well. I agree with all he has said with one or two slight reservations. I say that with the greatest respect. The Minister said he cannot accept this amendment on a number of grounds. He said that the administrative problems involved would be considerable. I would not accept that as a matter of fact. This amendment merely calls on the local authorities. Once the direction is made to the local authorities by the Minister for Justice, with the consent of the Minister for Local Government, that is an end to the affair. The direction is made and the process is put into being and effectively the Minister for Justice and the Minister for Local Government retire from the operation altogether. Consequently, it will be a local authority administrative problem. That is my view in relation to the suggestion that the matter would be administratively unmanageable.

The Minister also made the case that the amendment in some way discriminates against homes with mortgages and homes that do not have them. It is very difficult to follow the Minister's line of argument in that respect. He has wide legal experience and consequently there is no point in beating that point to death. He is quite right in what he said about the element of compulsion. I would be ruthless about having it compulsory. I have no doubt it is the proper thing to do, tomorrow and in a year's time and that it certainly will be acceptable in ten years' time. I believe it is proper that there should be compulsory registration, at the moment of marriage between two human beings, of the roof over their heads. That house should be registered compulsorily in their joint names.

We know when a couple get married they are full of joy, love and all the things proper to a couple getting married. Let us clear the decks in relation to the argument on divorce and all the rest of it. The vast majority of marriages in the country are solid marriages but there are human beings who, after a couple of years, cannot live together. It is those circumstances and those human beings we have to take into account. We are grossly hypocritical in the House by not recognising that situation in the country. It is about time we did and it is about time the Minister saw that this particular amendment stating that the property should be registered in the joint names of the spouses is the proper answer to a problem which may never arise.

The Minister has said that this only happens in a minority of cases, but we have to apply the law equally to all. The law must be as good for A as it is for Z and it must deal with all classes and all income groups in our society on an equal basis. It must also provide for a situation where a marriage breaks down. It is on those grounds that I strongly urge the Minister to take the view that the time to register the property in the joint names of the married couple is at the date of marriage, no sooner and no later. Even in the face of criticism of all the people who from one time or another have fashionable points of view I would express that view. If it is to come to me I will demand my view against it. It is an unshiftable view, and all the arguments that can be put up against it I would find difficult to accept. This is not to suggest that one is inflexible in relation to another's point of view, quite the contrary. But this is one aspect of this Bill which I have worked out to its logical conclusion, and I feel very strongly about it. It is about time we stopped shilly-shallying about the fact that there is a suggestion of compulsion in this. Of course, there is a suggestion of compulsion in it. There is no question or doubt about that. The Minister makes the point that this might not be the time to introduce it but that his mind is open in relation to it and he would like to have a public debate on the subject.

The time for public debate on this sort of thing is over. We have had a public debate for the last few years and this is the culmination of one aspect of family law reform. It is piecemeal legislation but, nevertheless, necessary. We know what we want. We are getting legislation relating to the vast area of family law which requires to be reformed. It is only one scintilla of that. We recognise it as such. Nevertheless, in relation to the point Deputy Collins has so well made and I am making, the time for talking has stopped and my view is that the amendment as it stands, even if as is suggested it does introduce a compulsory element should be accepted.

It would also do away with the very thing the Bill provides for, the case of a vindictive sale. If the property is registered in the joint names of the spouses at the date of marriage, then the question of a vindictive sale at any time in the future would never arise in any circumstances because the position is copper-fastened at the very beginning of a very happy period in two people's lives, at the time they get married. Then is the time to do it.

Deputy Andrews has no doubt about his position. He is completely in favour of compulsory joint ownership. He says that when they get married that is the time for them to be required to place the home in joint ownership. But suppose they do not buy the house at the time of their marriage? Suppose five years afterwards the husband has left his wife or is misbehaving and she buys a house out of her own means, her own fortune, to protect herself and her children, is it right then that automatically a deserting or misbehaving husband should have a half-share in the house? I mention that as one of the considerations.

The Minister knows that is not what I mean.

I mention that as a practical difficulty——

——to invoking compulsory joint ownership. That is a practical difficulty and not an unusual one. Deputy Andrews is talking about marriage and the happiness at that time, but unfortunately we know some marriages do not keep on the straight and narrow and that they go astray. There are many marriages where the couple do not buy the house at the time of marriage. They might not be able to buy the house until some years afterwards when the situation between them might be vastly changed. Is one spouse, the deserving spouse, then to be lumbered with joint ownership with another spouse who is not pulling his or her weight?

At the time of the purchase of the house.

That is the point. If the purchase of the house is five years after marriage and the marriage is not going well, should we inflict joint ownership on the couple in all cases?

It is hardly likely they would buy a house if the marriage was not going well. The Minister knows that damn well.

The point is that after five years or even ten years of marriage, if the marriage is not going well and the wife has her own fortune and decides to invest in bricks and mortar for herself and her children as a hedge against an errant or improvident husband, if we were to do what Deputy Andrews suggests that purchase would have to be in the joint names of herself and her improvident husband, whereas the whole point of her investing in bricks and mortar would be to protect herself and the children against him.

The Minister is quite wrong. We are talking about——

Could we hear the Minister out on it? If Deputy Andrews wishes to intervene he will be very welcome.

I am quite satisfied that the point I am making is valid. It arises inevitably from compulsory joint ownership. Perhaps it could be provided for in the legislation setting as Deputy Andrews will appreciate——

Of course it could.

"Of course it could." That is a very easy way to deal with what I have just pointed out is a highly complex social and legal problem.

People are always hiding behind complex social and legal problems.

Unfortunately the world is not as simple as Deputy Andrews would like it to be. Again, it might be very likely that some spouses might prefer not to have the property in common ownership. Are we going to take account of the wishes of such spouses?

Or is this another simple matter that is to be made an exception of in the legislation? These are two serious practical difficulties in respect of what Deputy Andrews proposes. We are losing sight all the time of what this Bill does. This Bill protects the wife from a vindictive sale, and this is possibly what is behind the thinking calling for compulsory joint ownership, to ensure that the family home will not be sold over the heads of the wife and children. This Bill completely secures that position. To go then into the area of compulsory joint ownership raises many difficulties. I have given two very practical examples. Deputy Andrews's answer is, "Oh, you will draft your way out of them". It might not be such a simple matter.

Of course it is a simple matter, but having made the argument and the Minister having answered it, fair enough. We have also a plank in the amendment to the stamp duty. That was imported from section 13 of the Act, and obviously the first part of the amendment is unacceptable to the Minister. He certainly has not changed my point of view in relation to his well-made argument, but I assume that on the basis of the unacceptability of the first part of the amendment the second part falls.

I explained with regard to the second part of it what is proposed is that in the case of certain purchases, where a house is being purchased in the joint names, it should be exempt from stamp duty. This is a matter that would have Exchequer implications. It would be for the Minister for Finance to decide to waive stamp duty on such purchases. It is not analogous to what is being proposed in section 13. Section 13 is to with cases where the house has already been purchased by one spouse, and the intention is to transfer it into the joint names of the spouses. Section 13 is to ease the transfer in such cases and to encourage this by removing the stamp duty and other registration fees. There would be virtually no loss to the Exchequer under section 13 because presumably the vast majority of those transfers would not take place otherwise. That is the distinction between the two proposals.

Amendment, by leave, withdrawn.
Section 6 agreed to.
SECTION 7.

I move amendment No. 4a:

In page 4, after line 56, to add a new subsection as follows:

"() In considering whether to adjourn the proceedings under this section and, if so, for what period and on what terms they should be adjourned, the court shall have regard in particular to whether the spouse of the mortgagor or lessee has been informed (by or on behalf of the mortgagee or lessor or otherwise) of the non-payment of the sums in question or of any of them."

There was a suggestion made in this area by the Women's Representative Committee who wrote to me about the Bill. They thought that there should be a legal obligation on the mortgagee to inform a wife that her husband has defaulted so that she might move as early as possible to exercise her rights under section 6 and that she would not be coming to exercise her rights when arrears would have reached such dimensions that it would be impossible for her to do anything about them.

I have considered that suggestion, but there would be substantial difficulties in the way of imposing a legal obligation on the mortgagee or a lessor. To make it effective you must provide a sanction and what sanction can be provided without in some way inhibiting lending institutions from advancing money for home purchase to the detriment of the general body of couples seeking to buy a home?

What I have done in the amendment is to give the court power, in considering its attitude on how long an adjournment will be given, to enable the wife to catch up on the arrears. If a landlord or a mortgagee had been slow and as a result there was a substantial accumulation of arrears, the court could grant a longer period of an adjournment. On the other hand, if they had given prompt notice, presumably the court would not be as lenient in regard to the payment of arrears. This, in effect, is an incentive to a mortgagee or a landlord to give early notice so that the wife can move immediately.

Where the wife has been awarded the home from a recalcitrant husband, because of the difficulty about mortgage repayments, would she be permitted to sell the house in order to be able to buy a smaller house in which to live with her children? Must she hold on to the house whether she is able to pay for it or not?

The situation envisaged by the Deputy is one where a wife takes over the mortgage payments and commences payment to the lending institution. This Bill would not give her any right to a particular share in the house but she could apply under the Married Women's Status Act for a declaration of her interest in the house and the court would decide what her interest would be having regard to what she had paid. It could make an order for payment in regard to the portion belonging to the wife which she could apply towards the purchase of another dwelling, but the court could not guarantee to her a sufficient amount with which to buy another house because the husband's interest would still subsist.

Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."

We received a communication from FLAC in relation to this Bill. We have paid tribute to the work being done by them and we look forward to a continuation of that good work They make a point in their submission in relation to section 7:

As regards section 7 we are not convinced of the efficacy of this section as it now stands. It does show some desire, however, to deal with a problem that arises regularly.

Example: A husband is not paying off the instalments on the mortgage on the family home, and thus the lending institution is seeking an order for sale. The wife attends the court on the day and states that her husband will not pay the instalments but that she would be able to do so but she is unwilling to do this as she will not obtain any concrete interest in the house but only a vague hope of having her interest determined under section 12 Married Women's Status Act, 1957.

We feel that there are many wives who are able and often willing to take over the mortgage repayments on the family home, but we feel that greater incentives and encouragement should be given rather than just an adjournment of proceedings. We think that the court should be given the power to determine the interest of the wife in the property when she has paid off the mortgage instalments, having regard to the payment of the mortgage debt and also any other contribution either financial or nonfinancial, direct or indirect, that the wife has made to the family home. This could be adequately done under section 8 where the court may make an order and declaration when the arrears and periodical payments have been completed. This would get rid of the necessity of taking new proceedings under section 12 Married Women's Status Act, 1957.

However, while there are certainly a number of wives capable of paying off mortgage repayments, a still greater number would not be in such a happy frame. As one observer has put it, "the legal freedom given by the Bill is not warranted by the economic situation". It is inconceivable that a deserted wife with, perhaps, a young family would have the financial resources to pay off the arrears and that even if this were the case, that she would be accepted as a viable mark by the building society in taking over the repayments. The Bill completely disregards the people in this unhappy situation and does nothing to help them.

If that is so, is not the Bill defective in this respect? Those people do this work on a voluntary basis, though with a Government subvention. The Minister is a democrat who may agree with us on many occasions but after a fair hearing he can do his best to overturn an argument.

The submission is guilty of one serious misstatement, and it is a pity. It states that the Bill "completely disregards the people in this unhappy situation and does nothing to help them". That is wrong. If the authors of the report had read the Bill, they would see that a building society must accept the wife's payment.

That is only one aspect of it.

Deputy Andrews criticised the Bill because FLAC stated that it completely disregards people in this unhappy situation. I am pointing out that they have based that on a misreading or a non-reading of the Bill. They do their work with the aid of a Government subvention which was first given in 1973. This had been consistently refused up to that time. It was increased since then to £11,000. The most valuable work they can do is to provide legal aid.

Does the Minister think £11,000 is adequate?

It is a lot better than nil.

It is a lot better for the Government than having to pay for free legal aid.

Deputies are forgetting when they talk of this as piecemeal legislation—I have heard this adjective used before—that it represents a staged programme of family law reform. The alternative would have been to wait for an omnibus measure until we were grey old men. I make that point in the context that the submission by FLAC under section 7 ignores or forgets that under the Maintenance Act a wife is also entitled to take proceedings against her husband for maintenance, and obtain from him sufficient money to meet his liabilities, including the liability of providing shelter for the family. Under section 5 of this Bill, if his conduct in failing to pay the mortgage arrears endangers the family home, he can be sued for damages. There is wide-ranging protection for the wife which has been overlooked by FLAC in reading the Bill and consequently their submission on section 7—and I regret to say this—is essentially invalid.

I welcome the Minister's amendment of this Bill. I do not want to repeat myself, but very few house-bound housewives, women who do not earn incomes, are in a position to take over mortgage repayments. I think the Minister was making the case that an adjournment would be allowed until the facts were sorted out, but there could be a great deal of difficulty for a wife in such a situation. While it may not be the function of the Minister for Justice or of this Bill, there should be a more co-ordinated service in future to assist women who are in this situation. As most of these women have no income and no resources to draw upon, State aid should be available to help them. The fact that a woman is getting social welfare should be taken into account when she is trying to pay off a mortgage on the family house.

Now we come to an allowance for taxation. Presumably the husband is claiming the mortgage repayments on his tax. I am not quite sure how the wife is fixed in such a case. No matter how long a wife pays off a mortgage, she will never be the legal owner. It could happen that a wife had reared her children and now that she is alone she might not be able, or want, to keep the family home. She might want to dispose of it and live in smaller accommodation, maybe a flat. She will always be prevented from doing that even though it might not be possible to trace her husband. These are problems for the future, perhaps, but it must be said that they exist now.

A Family Law Bill covers such an enormous area and draws on so many agencies of State that no one Bill of this nature could solve all the problems. In the very near future some effort should be made to give the wife legal entitlement to the house to which she has made such a contribution. There is a tendency to completely disregard the services a woman gives in the home because her contribution is not of a monetary nature.

While I am aware that much is being done, a great deal still remains to be done in the area of family law.

Deputy Desmond raised the point of the giving of notice. I explained earlier that it was not possible to provide a specific legal obligation because of the difficulties in providing the sanction to enforce this. What we have done is to give power to the court to take into consideration the time at which a building society, insurance company or landlord brought the commencement of arrears to the notice of the wife so that she could move at an early stage. They might find themselves prejudiced if they were slow in giving notice.

On the question of whether a wife will be able to take over the mortgage payments, that is quite separate from the Bill. All we can do here is provide that she may do so. We cannot give her the money to do it. That matter will have to be determined by her own situation or, possibly, with State aid, but this, as Deputy Desmond says, is completely outside the scope of this Bill.

The third question is the legal position of the wife in regard to the home. Under the Married Women's Status Act she can bring an application to have her share in the home determined, having regard to the number and amount of repayments made. That will differ in each individual case. Whether it is in her interest to take these proceedings or whether she wants to do so, is a matter for her. Her prime concern, and that of the Bill, is to ensure that there will be a roof over her head and the heads of her children.

There is the underlying condition there that she can only keep the roof over her head if she can afford to keep up the payments.

She is also entitled under the Maintenance Act to sue her husband for maintenance.

On the point I raised earlier, I would like to give the Minister a specific example. A husband deserted his middle-aged wife—they had no children. He went to England and was living with another woman. The wife could not finish the payments although she was awarded the residence of the house. It would be a good thing if there was a section which allowed the court in such circumstances to award her the house because if she sells it she is only allowed keep half the money. She cannot buy another accommodation with that amount of money but if she got all the money she could buy a smaller house. She is not working, perhaps she has never worked, and has no skill or trade. That type of person is very vulnerable. How can she be protected? Is there no way in which the court can use its discretion and say: "The husband has not even bothered to appear in court, the entire house is yours. Since you have no way of maintaining the mortgage payments you can sell the house and buy a smaller place with the money you get from that sale"?

If the husband has deserted and gone to England, he can be proceeded against in England through the courts here. All the wife has to do is go to our courts and take out maintenance proceedings which will be enforced in England against him.

If they can find him.

Of course, but we cannot provide for that. If he cannot be found and the house is subject to a mortgage, and the wife is not able to meet the mortgage repayments—I dealt with the problem on Second Stage—we have to ask if we are going to allow the insurance company or building society to realise the mortgage, or prohibit them from ever realising the mortgage as long as the wife chooses to stay in the house? If you are going to put a provision in the law that a lending institution could never realise its mortgage——

That is not what I am asking. Could the court not at its discretion award the house in its entirety so that she could sell it instead of having to give half to her missing husband, or lodge half with the court?

If there is a mortgage on the house it would be wrong for the law to interfere with the mortgagee's rights of sale when no repayments are being made. Where repayments are being made or are likely to be made, this Bill interferes and does not allow the mortgagee to sell the house. In other cases, the mortgagee has to be entitled to realise his security. If we in any way inhibited that right, the lending of money by building societies would become very precarious and there would be less of it. We have to keep that in mind. The situation could arise where the wife is half owner of the house already, or where she has paid sufficient of the mortgage for the court to declare that she is entitled to a half share in the house. In these circumstances, she can have the half share, but the court could not be given discretion to confiscate the other half share. That is in effect what the Deputy is asking.

That is what I am asking. In the case of the husband disappearing off the scene completely and the wife has no other income other than the deserted wife's allowance, how can she continue to repay the house? Naturally the building society will demand its payments. They are entitled to them, but she cannot pay. Supposing they repossess the house which may have cost £7,000 and give her £3,000 what can she do? She cannot buy shelter for that.

This Bill cannot solve the financial position of a woman in that difficulty, and that is what you are suggesting. That gets back to the finances of the individual person.

To return to the FLAC submission which the Minister so blandly dismissed and described as invalid. Nothing could be further from the truth. That submission is as true as the day when it was placed on the submission paper we received from them. The Minister only took the second half of this statement and dismissed the conclusion of the submission on the basis of the last half of the remarks by FLAC. The Minister did not deal with the main burden of their argument which concludes at the beginning of the sentence. It is inconceivable that a deserted wife with perhaps a young family would have the financial resources to pay off the arrears. There are two legs to the latter part of the submission. The Minister has taken the last leg and dismissed the whole submission out of hand. The Minister also proudly boasted about the fact that £11,000 was given to free legal aid this year.

I did not boast. I just stated a fact.

The Minister's submission also included a rather sinister suggestion that if they did not behave themselves and if they made submissions of this nature the subvention would be reviewed.

There is no question of that.

If you consider the £11,000 being made available to the free legal aid group and set that against moneys that the Government are saving arising out of the free legal aid dispute it is demoniac.

Order, order. Deputy Andrews, I have been on my feet for some time. The Deputy should not deviate from the subject of this section as amended in such a fashion. The Deputy knows that he is completely out of order.

There is nothing to be proud about. The Minister should be ashamed of himself talking about £11,000. The Minister should get down and reintroduce free legal aid as a matter of urgency. That is what the country wants.

Before we agree that the section as amended stand part of the Bill I must say in fairness to Deputy Andrews that the Minister must be held responsible for a certain amount of provocation with regard to the subvention to FLAC of £11,000.

Question put and agreed to.
(Interruptions.)

Let us have an orderly debate on this Bill. Please, Deputy Andrews, restrain yourself. Order.

SECTION 8.

I move amendment No. 5:

In page 5, subsection (1), lines 1 and 2, to delete "after an adjournment of the proceedings under section 7" and to substitute "after proceedings have been adjourned under section 7".

This amendment is designed to make it clear that section 8 refers to cases where proceedings have been adjourned under section 7. The expression being replaced might suggest that those proceedings must have been taken under section 7 whereas, in fact, the proceedings are proceedings that have been adjourned under section 7.

Amendment agreed to.
Section, as amended, agreed to.
Section 9 agreed to.
SECTION 10.

I move amendment No. 6:

In page 6, subsection (4), to delete lines 34 and 35 and to substitute:

"(4) Where the rateable value of the land to which the proceedings relate exceeds £100 or the value of the personal property to which the proceedings relate exceeds £5,000".

This is a drafting amendment to remove any possible ambiguity regarding the meaning of the word "land" in the context of the section. It is intended to refer to the land to which the proceedings relate. This is made clear by the amendment, and "land" is defined in the Interpretation Act, 1937, in such a way as to include leasehold or what we call chattels real.

Amendment agreed to.

I move amendment No. 7:

In page 6, to delete subsections (6) and (7) and to substitute the following subsections:

"(6) Proceedings under or referred to in this Act in which each spouse is a party (whether by joinder or otherwise) shall be conducted in a summary manner and shall be heard otherwise than in public.

(7) Proceedings in the High Court and in the Circuit Court under or referred to in this Act in which each spouse is a party (whether by joinder or otherwise) shall be heard in chambers.".

Amendments Nos. 7 and 8 may be taken together.

These amendments have three purposes. Firstly, they are designed specifically to ensure that in proceedings referred to in section 7 of the Bill, where a mortgagee or a landlord is seeking an order for possession or sale of a home, the court or either party to the proceedings will be able to join the wife as party to the proceedings. This could be necessary in order to establish whether she would be in a position to take over the mortgage or the rental payments and pay off the arrears. Secondly, the amendments are designed to ensure generally that third parties may be joined in proceedings under the Bill. For example, a third party who was acting in collusion with a husband might be joined. This can arise in proceedings under section 5. Thirdly, the amendments set out the general principle that proceedings under the Bill are to be heard in private. However, in relation to proceedings where a mortgagee or a landlord is seeking an order for possession or sale of the home, amendment No. 7 proposes that these proceedings are to be in private only where each of the spouses is a party to them. Otherwise the court would have to hold ordinary proceedings by a mortgagee or a landlord against a husband in private although the wife had no interest in those proceedings and such proceedings would not involve husband-wife relationships. They would be ordinary actions by the mortgagee against a borrower or landlord against a tenant, and there is no reason why the present law should not continue to apply to them. Once the wife becomes a party the proceedings will be held in private because they become matrimonial proceedings. The amendment is to ensure that, where there is only one spouse and the proceedings are normal repossession proceedings, they will be held in the normal way in public.

Amendment agreed to.
Section, as amended, agreed to.
SECTION 11.

I move amendment No. 8:

In page 6, before section 11, to insert the following section:

"In any proceedings under or referred to in this Act each of the spouses as well as any third person who has or may have an interest in the proceedings may be joined—

(a) by service upon him of a third-party notice by an existing party to the proceedings, or

(b) by direction of the court."

Amendment agreed to.
Question proposed: "That section 11, as amended, stand part of the Bill."

In relation of the joinder of parties, any person who may have an interest in the proceedings may be joined, by service upon him of a third party notice, by an existing party to the proceedings or by the direction of the court. The section itself deals with the registration of a notice of marriage and the registry deed is mentioned here. I presume a similar situation would arise in regard to the non-registry. In regard to an ordinary search in the ordinary course of events there would be no such thing as a marriage registered by somebody. Would the Minister be in a position to enlighten me in relation to the practical approach here? Is it incumbent on a person, a solicitor acting for someone, to check to see whether or not they are actually married? Does the Minister envisage in a situation like this, that when a person realises, or when a solicitor acting for someone realises, that there is a marriage from general knowledge does he advise that the wife and husband will join in a deed of conveyance, deed of transfer and so on? Do I make myself clear?

To avoid confusion, amendment No. 8 will, in effect, be a new section and has nothing to do with section 11. It is merely inserted before section 11. On the question of what searches are to be made by the conveyancer taking the title, I refer the Deputy to the Conveyancing Act, 1882, which says that a purchaser shall not be prejudicially affected by notice of any instrument—in other words a purchaser will not be prejudiced by the existence of a marriage —unless it is (a) within his own knowledge or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him, or, (b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel or of his solicitor or other agent, or would have come to the knowledge of the solicitor or other agent if such inquiries or inspections had been made as ought reasonably to have been made by the solicitor or other agent.

However, by virtue of the new section 3 (7) of the Bill, which has been introduced by amendment, if there is actual knowledge by reason of local knowledge independent of the transaction in question, this must be taken into account by the conveyancer taking the title. He must ensure that where the vendor is a married person the other spouse joins in the conveyance.

As to the type of inquiries to be made, I think normal conveyancing practice would decree that the requisitions should be so framed as to elicit this information. The purchaser would possibly call for a statutory declaration or take other steps to protect his title. If the normal conveyancing practices are observed the purchaser will acquire a good title and, provided the sale is for full value, he will not be prejudiced by the subsequent revelation of a marriage, even though the spouse did not join in the transfer.

That goes a long way to explain what I had in mind but, to clear my mind finally, do I take it that it would be regarded as common sense and a matter of necessity that where a person had notice of a marriage, both parties to the marriage should join in the conveyence or transfer?

Would the Deputy please repeat the question?

Say a person has notice through the Registry of Deeds or the Land Registry that there is an actual marriage, whether the couple are living together or otherwise and, say, the registered owner of the house —whether by Land Registry or Registry of Deeds—is the full owner, do I take it that to convey a good title the wife must join in the deed of conveyance?

Yes. Her written consent must be obtained under section 3 of the Bill.

She has to join in as from the passing of this Bill?

A very good idea.

If she did not do that, she would be out and the purpose of the Bill would not be met.

Question put and agreed to.
Sections 12 to 14, inclusive, agreed to.
SECTION 15.

Amendment No. 9 in the names of Deputy Collins and Deputy Andrews is deemed to be out of order.

Question proposed: "That section 15 stand part of the Bill."

We appreciate and recognise that our amendment is out of order. We felt that it would be ruled out of order because of our experience with a similar type of amendment to previous family legislation. Can the Minister himself enshrine this type of intent in legislation? I appreciate that we are bound by the rules of order and cannot import into legislation amendments which would place a charge on the Exchequer, but could the Minister, if he so wished, insert this type of amendment into legislation prepared by himself? Without making a political point out of it, I think the Minister will agree that the free legal aid situation in civil matters has reached a very sorry impasse. The situation is very serious and almost dangerous because of the fact that this dispute continues and people are being deprived of proper representation.

Has the Deputy been in the Law Library lately?

I have, indeed.

Then he should know that the dispute, hopefully, should be near a settlement. I am hoping that the proposals made will settle the dispute.

I am not privy to the Bar Council but I shall certainly make inquiries when I go there. The Minister is saying that there is finally some hope for a solution of the problem. I shall not discuss the matter further because I do not want to prejudice whatever hope the Minister has of bringing about a proper solution to a problem that so urgently needs to be solved.

Question put and agreed to.
Title agreed to.
Agreed to take remaining Stages today.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

I understand that there are new Standing Orders in relation to the Report Stage. Does that prevent me from speaking on a specific section of the Bill?

There is no Report Stage but the Deputy may speak on the Bill, on what is contained in the Bill at this stage.

One aspect of the Bill causes me concern. Unfortunately, I was not aware on the last occasion that the first two sections had been dealt with and that the Committee Stage was in progress. It is a matter that I think must concern the Minister and everybody in the country. It is the definition of "married couple". I had in mind an amendment to define "married couple". People might think that suggestion crazy but no longer are married couples——

Married.

Not necessarily married as such. I am not talking about that aspect of it, but there are people who have married in various religions, Catholic, Protestant, Jewish and so on. There are also people who have been divorced in another state, remarried in another state and have come to live here. One wonders whether the Bill provides for that provision and also whether it provides for the situation which exists to a growing extent in this country where actual marriages that have been solemnised in the Catholic religion are subsequently annulled by the church that consecrated these marriages. Consequently, those marriages are annulled in the eyes of the church but the State does not recognise the validity of the church annulment. A married couple are separated by the church that married them and, by definition of separation, their marriage no longer exists but so far as the State is concerned those people are living bigamously. That is a situation of gross hypocrisy. The Minister in Strasbourg, or Luxembourg, three or four weeks ago said he would be dealing with the whole question of contraception and divorce in some legislation or referendum in the not too distant future. Could we get some information in respect of the Minister's statement which was made abroad? My view is that such a statement should be made here.

The main point of my argument relates to the question of married couples and this concerns me. My definition of "married couple", in addition to the accepted norms, would be to include those persons who had been divorced and remarried according to the laws of another State or those persons who had been divorced according to the laws of another State and married in the State or those persons who have been remarried in the State. Does the Bill take cognisance of those people? If it does not, by the laws of logic—and laws are not all about logic—this Bill discriminates against the people I have mentioned. There is a lot of humbug and hypocrisy surrounding this question, and the sooner we deal with this situation and end the uncertainty from everybody's point of view the better. There would be a national sigh of relief if we had leadership in this regard. That is all we want.

I am pleased to see this Bill going through the House because I consider it a major piece of legislation. It will help to avoid a lot of hardship and will do away with a lot of worries for married women here. They worry that their family home will be sold. The Minister is to be congratulated on the Bill.

Has the Minister any comment to make in relation to the points I made?

The Deputy reported me as saying something I did not say. This habit he has of attributing statements without having the record right is not one to be commended. A married couple in the Bill means, obviously, a couple married legally in so far as the laws of the country are concerned. The laws of this country, of course, would recognise the rules of private international law regarding the recognition of divorce. Whatever that may be in regard to the marriage in question is what the law pertaining to that marriage would be and nothing else.

Leadership in reverse.

Dublin South-West and Donegal.

Question put and agreed to.
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