Family Law Bill, 1981: Second Stage.

Before the Minister moves that the Bill be read a Second Time there are a couple of printers' errors the Chair would like to draw to the attention of the House. In page 2, section 3 (a), line 32 should read "that both of them as joint owners and". At present it reads "(a) that both of them of joint owners". The side notes relating to sections 6 and 7 should read as they appear under the arrangement of sections on page 1.

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is threefold: firstly, to abolish the actions for criminal conversation and enticement and harbouring of a spouse, secondly, to abolish the action for breach of promise of marriage and to provide for the regulation of various questions in relation to property, including engagement rings, of persons whose agreements to marry have been terminated, and thirdly, to provide that a consent for the purposes of section 3 (1) or section 9 (2) of the Family Home Protection Act, 1976, shall not be invalid by reason only of the fact that it is given by a spouse who is under the age of majority.

As the Minister for Justice has stated on a number of occasions in this House, it has been for some time the Government's intention to introduce legislation to change the law in regard to the action for criminal conversation. The question that remained to be decided was whether that action and the action for enticement of a spouse should be simply abolished or whether other kinds of action should be created in their place as suggested by the Law Reform Commission in theirWorking Paper No. 5 - 1978 “The Law relating to Criminal Conversation and the Enticement and Harbouring of a Spouse” and recommended in their recent Report No. 1 1980 — Family Law. The Government, having considered the matter carefully, came to the conclusion that it would be preferable, on balance, to abolish the actions for criminal conversation and enticement without replacement. Section 1 of the Bill contains the provisions necessary to give effect to that decision. The Law Reform Commission recommended that the action for harbouring of a spouse should be abolished without replacement and section 1 also gives effect to that recommendation.

The fact that the Government have not accepted the commission's recommendations in regard to actions to replace criminal conversation and enticement of a spouse in no way minimises the very important contribution that the commission have made to the debate on this subject. Their Working Paper No. 5, containing as it does a full statement of the present law and detailed arguments on both sides of the question whether those actions should be replaced by other forms of action, represented a most valuable aid to consideration of the whole question.

I think I should take this opportunity to set the record straight in regard to the Government's decision. Various published comments about the Bill have stated that the Government had dropped their proposals for extending the law on criminal conversation and certain Opposition Members of the Oireachtas were quoted as saying that the present Bill represents a reversal of a previous Government approach. There were earlier newspaper reports that the Government had decided to introduce a Bill which would give a right of action for adultery. These reports were denied at the time and were totally without foundation. The Bill represents the first and only set of proposals on the subject adopted or put forward by the Government.

On 22 November 1979 and 27 March 1980 the Minister for Justice indicated in the Dáil that, while he was aware of the arguments surrounding the abolition of the action of criminal conversation—as opposed to its replacement by another form of action which would not discriminate between the sexes—he did not propose to make proposals to the Government on the basis of the working paper published by the Law Reform Commission in the matter but proposed to wait until he had their final recommendations.

An Opposition Private Member's Bill on the subject was discussed in the Dáil on 4 March 1980 and, again, the Minister made it clear that he was not weighing the arguments one way or the other but opposed the Bill on the basis that Government legislation would be introduced after the final recommendations of the commission had been considered. The final recommendations were subsequently received and examined. The Bill now published, in so far as it deals with the area in question, represents the Government's considered response to them.

The proposals in the Bill for the abolition of the action for breach of promise of marriage and for the regulation of various questions in relation to the property of persons whose agreements to marry have been terminated are contained in sections 2 to 9. They follow generally the suggestions of the Law Reform Commission contained in theirWorking Paper No. 4—1978: The Law Relating to Breach of Promise of Marriage, and recommended in their Report No. 1 to which I have already referred.

Section 2 provides that an agreement to marry entered into either before or after the passing of the Act will have no legal effect as a contract and that no action for breach of any such agreement may be brought irrespective of the law applicable to the agreement. Actions commenced before the Act is passed are not, however, affected.

In regard to section 2, the Bill departs in one respect from the commission's recommendation. The commission proposed that the action for breach of promise should be abolished only in relation to agreements entered into after the passing of the Act. Having regard to the fact that an action could be begun up to six years after the actual breach of an agreement, which itself might be quite some time after the Bill becomes law—for it could be a long engagement—it would have been possible under the commission's proposal for an action for breach of promise of marriage to be instituted long after the Act become law. The Government took the view that, once the basic decision to abolish the action was taken, it should apply to all agreements to marry including those made before the Bill becomes law.

Section 3 makes provision in relation to wedding presents to engaged couples from third parties. The section provides that it will be presumed, in the absence of evidence to the contrary, that the gift was made subject to the condition that it will be returned on request if the marriage for any reason does not take place. This would appear to be the present law on the subject. The section also provides that it will be presumed, again in the absence of evidence to the contrary, that the gift was made to both parties as joint owners. This presumption will apply not only in relation to terminated engagements but also where the marriage does take place. The Law Reform Commission in making this proposal had in mind the difficulties which could occur in deciding which party the donor intended to benefit. In regard to what could be a particularly valuable wedding gift it will settle the question of ownership for the purpose of any dispute that might arise later in regard to matrimonial property.

Section 4 is concerned with gifts of property, including the engagement ring, between engaged couples. The section caters for two possibilities, firstly the case where a marriage does not take place for a reason other than the death of the donor and, secondly, the case where the marriage does not take place because of the donor's death. In the first case it will be presumed that the gift was given on the condition that it would be returned, on request, if the marriage does not take place. In the second case it will be presumed that the gift was given unconditionally. In both cases the presumption will be subject to contrary evidence of the donor's intention. In framing their recommendation in this form the Law Reform Commission believed that the law should remove any consideration of responsibility for the termination of the engagement from the determination of whether these gifts are returnable.

Section 5 deals with the property of engaged couples and provides that where an agreement to marry is terminated the same rules of law as apply to the rights of spouses in relation to property in which either or both has or have a beneficial interest will apply in the case of engaged couples in relation to any property in which either or both of the parties had a beneficial interest while the agreement was in force. The effect of this will be to apply to engaged couples the common law rules evolved by the courts in regard to contributions to the acquisition of property by married couples. The section also provides, in subsection (2), for the application of section 12 of the Married Women's Status Act, 1957, relating to the determination of questions between husband and wife as to property, to disputes between parties to an agreement to marry in relation to property in which either or both had a beneficial interest while the agreement was in force. The advantage of section 12 is that it enables questions as to property to be brought in a summary manner before the Circuit Court or the High Court.

Section 6 and 7 provide for the making of orders by the court where one party to an agreement to marry that has been terminated has received a substantial benefit other than a wedding gift, because wedding gifts are dealt with in section 4, from a third person, or where a party to an agreement to marry, or another person on behalf of that party, has incurred expenditure of a substantial nature in the expectation that the marriage would take place. An example of the former would be where a close relative of one of the parties to an agreement to marry has, while the agreement was still in force, expended a substantial amount of money on the improvement of the prospective matrimonial home of the parties. In the case of the latter situation we are talking about money having been spent as a result of the agreement to marry without any benefit accruing. Expenditure involved in travelling from a foreign country either by a party to the agreement or a parent of one of the parties in the expectation that the marriage would take place is an example of the type of expenditure section 7 is intended to cover. In the case of an application under either section the court may make such order as appears to it to be just and equitable in the circumstances.

Section 8 provides for the jurisdiction of the courts in relation to applications under sections 6 and 7. The jurisdictional limits in the section are the same as those proposed for contract and tort for the District and Circuit Courts in the Courts Bill, 1980, at present before the House.

Section 9 provides for a limitation period of three years in respect of proceedings that may arise under sections 3 to 7 where an agreement to marry for whatever reason has been terminated. The period will begin to run from the termination of the agreement to marry.

I now turn to the third matter dealt with in the Bill. Section 10 provides that a consent given for the purpose of section 3 (1) or section 9 (2) of the Family Home Protection Act, 1976, whether it was given before or after the passing of this Act, will not be regarded as being invalid by reason only that it is or was given by a person who has not attained the age of majority. The context is as follows. Section 3 (1) of the 1976 Act provides that a conveyance of any interest in the family home without the consent of the other spouse will be void except in certain circumstances. One consequence, of course, is that lending institutions when dealing with applications for house purceeding chase loans from a spouse need the consent of the other spouse to the conveyance of the house as security for the loan. Where the other spouse is under the age of 21 years, the present age of majority, some lending institutions have refused to accept the consent of such a spouse as effective. This has led to proceedings being taken in the High Court with a view to obtaining the court's authority to give the required consent on behalf of the spouse. The effect of section 10 will be to obviate the necessity for such proceedings.

As it happens, in a case which came to hearing since the Bill was circulated, the High Court has decided that a consent of an under age spouse is not a sufficient consent for the purposes of section 3 of the 1976 Act. As I hope that this Bill will secure a very speedy approval from the Oireachtas, I assume that the question of an appeal need not be considered. In the absence of an appeal, it may be inappropriate now for section 10 to speak of removing doubt and I may propose a drafting amendment to exclude that reference.

Besides the immediate problem which has given rise to section 10 — the consent of a minor spouse in relation to the conveyance of a house — a similar problem could arise, if it has not already arisen, in relation to the consent of a minor spouse under section 9 (2) of the 1976 Act to the disposal in certain circumstances by the other spouse of the household chattels. Section 10 will cover that situation also.

Before I conclude I would like to advert to the fact that the Law Reform Commission'sReport No. 1 — 1980: Family Law contains recommendations in the very important area of matrimonial property. These and the remaining recommendations in the report other than those being dealt with in this Bill are being considered separately. I commend the Bill to the House.

Deputy Horgan will know that Deputy Keating was not aware the Bill would be taken so quickly.

On behalf of the Labour Party I welcome the Bill. However, it seems a pity that is was not brought in sooner. It is a comparatively short Bill, though its technical implications are of some significance, and it seems to us that there was no real reason why previous efforts by us were not accepted in regard to criminal conversation, enticement and harbouring. Unfortunately, there seems to have been a belief on the part of this Government and other Governments, without distinction of party, that the only legislation that will ever be passed by this House will come from the Government side. This is an unnecessarily rigid way to approach the whole question of legislation and tends only to reinforce people in the belief that basically the House is only a rubber stamp for Government decisions, and nothing else.

The first point I should like to make on the contents of the Bill is in relation to the abolition of actions for criminal conversation, enticement and harbouring. There is a certain sense in which it is almost an embarrassment for us to be legislating on this topic today. One would have thought that commonsense and good taste alone would have allowed this cause of action to have lapsed many years ago and that it would not have been necessary to bring in any legislation to remove it. By bringing it in at this stage we are doing two things. First of all, we are putting the situation to rights, and in an embarrassed fashion we are drawing attention to the state of our legislation, our common law in particular, and to the fact that this state of affairs has remained undisturbed up to the present time.

I suspect one of the main reasons which has finally prompted the Government to bring in this Bill, apart from the consistent pressure from the Opposition benches, has been the sad evidence of the fact that a number of Irish husbands in the distant and not too distant past have not felt constrained by requirements of commonsense or decency or good taste and have sought their rights at law under this cause of action. I do not propose to refer to any individual cases, for obvious reasons. But Deputies on all sides will be aware of the incalculable amount of damage to individuals, to people's feelings and to the institution of family life that has been caused not just by the bringing of these actions but by their widespread publicity.

As a person who has had some connection with the newspaper industry, may I say how disappointed I have been at the editorial approach taken by some newspapers in relation to these cases. They have made what was already a difficult and unpleasant situation a thousand times worse by focussing public attention on an unfortunate two or three or four people and, of course, any children, for the purpose of selling newspapers. I am the first to admit that newspaper people are in the business for the purpose of selling newspapers, but there are limits beyond which I felt good taste would not allow them to go, but in many cases involving this cause of action newspapers went beyond those limits. Therefore, one beneficial effect of passing this Bill will be to ensure at least that cheap appeals for circulation by newspapers will no longer be possible, at least in this area.

The second main consequence of changing the law in this regard, ultimately far more important that the one I have mentioned, is that it is a further erosion of the long-standing right of married men to treat their wives more as chattels than human beings. That right is still not entirely gone, however. The Minister of State will be aware that this is an argument I advanced during the debate on the Rape Bill, on the crime, which I believe it to be, of marital rape. I believe marital rape is another expression of the kind of attitude we are disposing of in this Bill, the attitude that a man's wife is essentially his personal property and that the law will not interfere unduly when he treats her in a certain way because of the relationship which the law presumes to exist between them.

There are many other areas in relation to this topic which have not been dealt with in the Bill. Though I was glad to hear the Minister say, in relation to the report of the Law Reform Commission on family law, that further action is promised, I should have liked to have seen some more evidence of a sense of urgency about this. One of the intriguing aspects of this is the degree to which debates and arguments and crimes and offences relating to marriage very rarely concern the personal relationship between the individuals and much more the contractual relationship between them — the law of marriage very rapidly turns into a subdivision of the law of property.

Anybody who has studied the institution of marriage over the centuries will see that it is linked with the laws of property and succession. This is a matter for legal scientists and historians, but it should also be a matter for politicians because there are ways at present in which the strong relationship between the law of marriage and the law of property has resulted, and will continue to result for quite some time, in substantial hardship to innocent persons, notably illegitimate children. Unfortunately, this is an area in which we see little willingness to move on the part of the Government.

The Bill lays down that engagements to marry are not enforceable in law. This is a more genuine anachronism than the action for criminal conversation, enticement and harbouring. I read the newspapers fairly assiduously and I cannot remember when I last read a report of an action for breach of promise to marry. It is hardly necessary even to include it, but by including it in the Bill we tidy up the situation. It is intriguing how fashions change over the years. The breach of promise to marry action was at one stage so common that it was celebrated by Gilbert and Sullivan in "Trial by Jury". At the turn of the century, especially in this country, fortunes were made in the legal profession on actions like this, on actions for criminal conversation and last, but not least, on actions connected with the electoral law. Eighty years later, there is hardly an action for criminal conversation, there is never an action for breach of promise to marry and actions connected with the electoral laws have disappeared. Their place has been taken by running-down cases.

There is provision in the Act in section 6 for application to the court in case of a substantial benefit to a party to a broken engagement. This is a commonsense provision in that at least there should be some court of appeal in cases in which actions have been taken, commitments made and gifts exchanged of a substantial kind on the basis of a genuine promise. One would have thought, in equity at any rate, there could have been some application to the court, notwithstanding the introduction of such a section but I welcome its introduction if only because it will at least clarify the situation.

I also note that under section 10 there is a paragraph relating to consent by a minor spouse to disposal of a family home. The Family Home Protection Act was a very forward looking legislation in its time. It has afforded many people, especially women, a measure of protection which heretofore they would not have dreamed of and which, I think, is still not available to women in many other countries. One of the problems is that it has become a kind of minefield for lawyers engaged in property transactions. They have taken to concocting all sorts of problems which may or may not exist and which they want to see solved at somebody else's expense before they will consent to the conveyance of various pieces of property. I know lawyers are mainly conscientious people concerned to protect their clients' interests, but I sometimes wonder whether they are not making mountains out of molehills in connection with the Family Home Protection Act and whether what was basically a good Act cannot still operate in a less tortuous way than at present.

This Bill is a small overdue step in the process of achieving some kind of equality between men and women in marriage. We do not really believe that this kind of equality can be achieved in the fullest sense untill all sorts of other economic and social distinctions have been dealt with and until men and women, in marriage and outside it, have the kind of economic freedom to match the social and legal freedom which they are slowly acquiring. In a sense legal freedom can be conferred on them by this House and by the courts, although it is an easier matter to confer equality on somebody in law than to ensure that they actually enjoy that equality in fact. In so far as our responsibility lies in this House, we are taking a good step in abolishing the action for criminal conversation, for enticement and for harbouring. It may mark a small but significant step towards the time when we become a more mature society and one which is able to regard all its citizens without distinction in matters of sex as equal human beings before the law. It is important that this should be done and it is important that it should be done visibly. We may wilt slightly under the embarrassment. We are, in one sense, in the position of a Japanese soldier who has been discovered on an island still fighting World War II in 1975 or 1976. This war is not over by any means. Real equality is still a long way away. We welcome this small step and look forward to much greater steps in the economic and social areas.

This Bill covers many important points. As Deputy Horgan said, it is a pity no Bill, except one sponsored by the Government, can pass in the House. As the Minister said, this Bill follows a Fine Gael Private Members' Bill to repeal the tort of criminal conversation. There is no reason why the Government could not have accepted the Fine Gael Bill some time ago. It is worth repeating what Deputy Horgan said: that no Bill, no matter how meritorious, can pass unless it is initiated by the Government. This adds weight to the argument that Parliament is irrelevant. No measure of the Opposition, no matter how effective or constructive, will be accepted because all wisdom must be seen to flow from Government benches.

There are aspects of the Bill which are long overdue. There are also aspects which need clarification. For instance, it is a fact of contemporary Irish life that more and more couples do not marry but live together. Many factors encourage that, but it is a situation which is not covered by this Bill. I should like the Minister, in his reply, to clarify the case of couples living together as common law husband and wife, with or without children. How does this Bill affect them? It may also be an argument against the Bill. There is a school of thought which argues that this Bill will tend to increase the incidence of unmarried couples living together. It will tend to legalise adultery. I do not agree with that point of view, but some people hold it.

I agreed with Deputy Horgan when he commented on the media coverage of criminal conversation actions. The press deserve to be severely criticised for trading in human misery. It is not so long since we had the most recent case, in the last year or so, where intimate details of the relationship of the people involved were paraded, day after day, across public newspapers and much more important things were ignored. It is a very necessary part of our democracy to have a free and unbridled press, but surely there should be some taste and some standard applied. However, that is not important compared to the fact that a law exists which tolerates and allows such litigation. We cannot but be happy that, at long last, the tort of criminal conversation and the tort of enticing and harbouring a spouse are to be eliminated.

More needs to be said about this Bill than that. The Government's reason for opposing the Opposition Bill was that they wanted to wait for the full report of the Law Reform Commission. Having done that, they then proceeded in this Bill to ignore some of the recommendations. For instance, the commission recommended retaining some sort of tort applying equally between the sexes. The Minister was absolutely right in rejecting that recommendation and he deserves to be congratulated for that. We criticised the Government for being mean and mealy-mouthed about accepting constructive Opposition legislation, which they have consistently refused to do throughout this Dáil — every single Bill has been voted down by the Government — but we also praise when praise is due and the Minister deserves to be praised for rejecting some of the recommendations of the Law Reform Commission, as did the original Fine Gael Bill.

Having listened to the Minister's speech, I am a little worried that this Bill might give rise to more occasions for litigation which might be avoided. This is in relation to the whole question of gifts between engaged couples or gifts to them by third parties and so on. There are aspects of what the Minister has said which are not absolutely clear to me and which I am not totally happy with. But, in the main, the provisions of the Bill are not just late but long overdue.

Apart from dealing as section I does, with abolishing actions for criminal conversation and inducement and harbouring of spouses, the Bill proposes to eliminate the possibility of actions for breach of promise following broken engagements. Again the Minister exceeds the recommendations of the Law Reform Commission by making the legislation retrospective except in cases where the action has already been commenced. I am normally opposed to retrospective legislation but in the circumstances there is a certain merit in what the Minister has done here. It is only right that broken engagements should not be causes for actions in court. As is clear from other parts of the Bill, provisions are made in relation to gifts having been exchanged between engaged couples. It is not beyond the realm of imagination — indeed, it has happened many times in the past — that a person might deliberately become engaged to another person solely to solicit expensive gifts or property. I imagine the provisions of the Bill will reduce the incidence of such engagements.

But the provisions are not clear or comprehensive enough. Sections 3, 4 and 5 deal with gifts to engaged couples by other persons, gifts between engaged couples and property of engaged couples. Section 6 provides for an application to the court in a case where there is substantial benefit to a party of a broken engagement. Section 7 deals with applications to the court in the case of substantial expenditure incurred by or on behalf of a party to a broken engagement. But there is the question of the couple who are not married, who for one reason or another cannot marry but who have entered into a relationship which lasted for some time and eventually broke down. What is the position in relation to the property which accumulated between them during the term of that relationship? This is something that needs to be looked at. If we do not make provision for it we are saying that engaged couples have a recognised status in law which these other couples, who are frequently married in all but name, do not have. I agree that provision should be made for engaged couples but we must take a step further along the road in the case of couples who have lived together. I do not mean a type of relationship lasting for a very short time, but cases lasting many years. Surely some arrangement should be made when a relationship of this duration breaks down after some time and after the accumulation of a certain amount of property and so forth? In view of the constitutional ban on divorce. I do not know if it is possible to make provision in law on this aspect, but I suspect that it is possible.

I think that the Deputy is going to broaden the debate on this Bill very considerably if he gets into the area of divorce.

I am not getting into the area of divorce. However, this Bill deals with the relationship between couples and with common property between them. It deals with engaged and married couples but does not deal with a significant group of Irish people who are not married but yet are more than engaged. Personally, I would not wish to encourage the proliferation of that status——

We know what the Deputy means, anyway.

——among our society but we must admit that for one reason or another, there is that category of people, comprising a significant number. I would like to hear the Minister's views on this matter. Perhaps those who are shadowing this legislation would table amendments to cover this point.

I want to speak briefly on section 10 — a very minor part of the Bill, but of great importance to many young people. This is the section which covers the situation which often arises when young people seek to purchase homes in advance of or after marriage. This becomes impossible when one is not of the age of majority. It is impossible for them to buy their home jointly. Section 10 is as follows:

(1) For the avoidance of doubt, it is hereby declared that no consent given by a spouse, whether before or after the passing of this Act, for the purposes of section 3 (1) of the Family Home Protection Act, 1976 (which provides that a conveyance by one spouse of an interest in the family home without the written consent of the other spouse shall be void) or of section 9 (2) of that Act (which restricts the right of a spouse to dispose of household chattels without the consent of the other spouse) is or was invalid by reason only that it is or was given by a spouse who has not or had not attained the age of majority.

(2) Subsection (1) shall apply to a consent given for the aforesaid purposes before the passing of this Act by a guardian or a court on behalf of a spouse who had not attained the age of majority as if the consent had been given by the spouse.

The Minister has indicated that this section may have to be amended because of the recent court judgment, which I think is under appeal. However, the need for such appeal may be obviated by the passing of this Bill. Unless I am mistaken, section 10 allows only for a situation where a minor spouse could agree to the disposal of a family home and so forth but does not specifically say that a minor spouse could be, for instance, a party to a contract to purchase or sell a house. Certainly, it is not clear that such a person can be party to the contract to purchase a house, which is one of the problems I come up against frequently in my constituency. It is important that clear provision be made that couples who have made the effort to get the money together to purchase a house are not inhibited in this way. I have known cases where the younger spouses have to wait until they are 21, which could mean a year, a year-and-a-half, or even longer. I know of one case where a girl of 19 had to wait until she was 21, but the price of houses increased greatly in the intervening period.

The alternative is for the house to be purchased solely in the name of the older partner. This runs counter to the whole tone and underlying principle of much of the legislation dealing with family matters which has been enacted in the past decade. This legislation tends to encourage — and rightly and emphatically so — a joint and equal partnership in marriage. I hope that section 10, or the Bill as a whole, will cover the point of allowing that, where one of the partners is over the age of majority, the other partner would be permitted to enter into a contract to purchase the family home.

In conclusion, I very much welcome the Bill. I congratulate the Minister for ignoring certain of the recommendations of the Law Reform Commission. I want again to rap the Minister on the knuckles for being ungenerous last year in not accepting the Fine Gael Bill on criminal conversation and, for that reason, leaving the situation unclarified for too long. I hope the Bill has a speedy passage through the House.

I join with my colleage Deputy Mitchell in welcoming many of the provisions in this Bill. I hope to be able to show that there is still room for improvement. The concept of a Family Law (Protection of Spouses and Children) Bill is very comprehensive and has very grandiose implications. It is not churlish of me to suggest that the title of the Bill is a little lavish when you look at what is actually contained in it.

Debate adjourned.