asked the Minister for Social Welfare if he will explain the position in respect of social welfare entitlements in the case where an Irish citizen leaves home and subsequently divorces his wife without her knowledge or consent in a member state of the European Community and then marries another woman; and if the first wife qualifies for a widow's contributory pension on the husband's death based on the record of employment while he lived in the member state.
Ceisteanna—Questions. Oral Answers. - Wives' Social Welfare Entitlements.
53.
The legal advice available to my Department is that a divorce effected by a foreign court of a person domiciled within its jurisdiction is recognised as valid in this country. On the death of the man who obtains such a divorce the woman could not be regarded as a widow for social welfare entitlement purposes as she would not be his legal wife at the date of his death. Subsequent remarriage of a divorced man would be accepted on his death as valid for social welfare entitlement purposes for a second wife.
The first wife could not, therefore, qualify for a widow's contributory pension on the man's death.
When I put down the question I asked about the constitutional position but it is not in the question now. Can the Minister tell me what is the constitutional position? Is he now telling me that he is ignoring the constitutional position?
The Deputy asked the Minister for Social Welfare if he will explain the position in respect of social welfare entitlements in the case where an Irish citizen leaves home and subsequently divorces his wife without her knowledge or consent in a member state of the European Community and then marries another woman; and if the first wife qualifies for a widow's contributory pension on the husband's death based on the record of employment while he lived in the member state. The current practice follows the legal advice which has been given and the test cases which have been taken over the years. The position is as I stated.
Part of my question was deleted in which I asked the Minister to explain the constitutional position of such an arrangement. What is the constitutional position of such an arrangement?
I have only the question as it came to me. I presume that the clarification of the Constitution would be a matter for some other Minister.
The Minister would not be responsible for interpreting law, it would be the courts. Therefore, we cannot have a question on the interpretation of law.
Surely on collective responsibility the Minister's Department would be obliged to act constitutionally? What is the position when a person leaves home, as is the case here, and the deserted wife's allowance is being paid to the innocent party in the Republic when the husband is abroad and then when he dies they discover, according to the advice that the Minister has, that the person is not legally a widow at all? Should that person have been paid the deserted wife's allowance?
Yes, it is quite logical where the wife would have been deserted under our conditions here for social welfare purposes in the first instance and given the conditions and the time which would elapse. For instance, the following conditions would apply in deciding whether the woman has been deserted. If the husband had left her of his own volition, she must have been deserted for at least three months, her husband must have refused to maintain her, she must have made and must continue to make reasonable efforts to get him to maintain her, her husband must not have resumed living with her and she must not be cohabiting. Presuming these conditions apply—in the case mentioned by the Deputy presumably they would apply—then she would receive the deserted wife's allowance from the beginning and would, therefore, continue to receive such an allowance.
Would the Minister accept that we have now reached a situation——
A final supplementary from Deputy Harte.
This is a very important point.
Yes, but there are other important questions here.
This is a particularly important question.
Everybody thinks his own question is important.
We have reached a situation where if a husband leaves a wife in one of the Border counties, Donegal, Leitrim, Cavan, Monaghan or Louth, travels one mile across the Border, sets up home with another woman and eventually gets his divorce without the consent of the innocent party living in the Republic, when that person dies the innocent party this side of the Border is told, as I understand from the Minister's reply, that she never really was his wife at all for the last ten years or 12 years and that she is not his widow. Is it the position that, living on the island of Ireland, the Government are acknowledging the law of divorce?
I have given the Deputy the legal advice which is available through my Department and what its effect is, that such a divorce effected by a foreign court of a person domiciled within its jurisdiction is recognised as valid in this country.
Such a divorce what?
A divorce effected by a foreign court.
How would the Minister classify a court in Tyrone, Derry, Fermanagh or Armagh?
I have given the position and I think it is clear enough as it stands.
A final supplementary from Deputy Boland.
There is a big question at issue.
We cannot stay on this all evening. We have many questions to deal with.
With due respect to you, Sir, the questions would have been asked but for——
One final supplementary question, please.
I am asking the Minister to appreciate the personal difficulties in which families find themselves, particularly deserted wives when their husbands leave home and do not have to go to a foreign country but go just across the Border into another jurisdiction. Does the mother of a family living in the Republic of Ireland on the death of her husband, according to her definition of the marriage laws of this State, become the widow of her husband when he dies north of the Border?
I have given the Deputy the legal advice on which the Department operate in such circumstances.
Does the Minister stand over that?
Deputy Boland, a final supplementary.
Does the Minister stand over it?
The matter has been tested on numerous occasions and I accept that this legal advice——
An Leas Cheann Comhairle
We will not interpret court decisions here.
Would the Minister put it on the record that the Minister rejects it or that he does not reject it?
The legal advice that the Minister gave the House appears to be that the State here recognises a divorce effected in another country, but the Minister told the House that his Department would continue to pay the deserted wife's allowance to the wife of the person in this country during the lifetime of her husband or former husband, whichever way you want to describe him. If that is the case, is the Minister's Department not, in effect, recognising that that woman is still the wife of the person involved through the payment of the deserted wife's allowance to her after her husband has obtained that divorce? If that is the case, why can the Department decide on the death of the husband that she is no longer to be regarded as wife or widow?
If the Deputy reads the answer, and there is no point in me repeating it it will be perfectly clear. Whether Deputies agree with the legal interpretation is a matter for themselves.
We have spent ten minutes on one question. There are 300 other questions from Deputies here.
Is the Minister's Department paying the deserted wife's allowance to women whose husbands have obtained divorces abroad? That is a simple question.
If the wife is deserted here in the first instance she will be paid the deserted wife's allowance here under conditions which I read out in detail for the Deputy.
If that is the case the Minister's Department, legal advice or not, are accepting that the woman is still the wife, otherwise she would not be paid the deserted wife's allowance.
The Deputy is making a statement. I am calling question No. 60.
Someone will take him through an interesting session in the courts on that.
It is unfair to call this question to a conclusion without getting a real answer.
The Chair is not responsible for the answers.
The answer is very clear and the Deputy should take it and read it afterwards.
Questions Nos. 54 to 59, inclusive, are postponed.