Family Law Bill, 1981: Committee Stage.

Question proposed: "That section 1 stand part of the Bill."

I just want to note that section 1 of the Bill is the section dealing with the abolition of actions for criminal conversation. In itself it is almost identical with the Private Members' Bill which the Government unanimously defeated here over a year ago. I welcome the abolition of a concept which is outdated, though I do say in passing that perhaps it is symptomatic of this House and of the manner in which we transact our business that we are dealing with issues about which there is no major public concern at this time and which are essentially dealt with in a most reactive and belated fashion.

This is legislation which, in a civilised society, in a society which cares passionately for proper human values and for the dignity of men and women, would not even be a matter for Dáil debate but should have been done long ago. I suppose it is too much to expect that in what appears to be the autumn of a Dáil from which the soul appears to have fled long ago, we could be dealing with anything other than something which is very belated. It is welcome in itself but it would be nice if for once this House could be involved in initiating some action in the family law area, or indeed in any area, instead of reacting slavishly years and years after it has been evidentially shown that this kind of action is long overdue. It would have been possible for the Government to have accepted our Bill a year ago. It would have meant that the charade we went through then and apparently now in this respect would have been unnecessary.

A lot of play is regularly made by Government Ministers about the Law Reform Commission. I have said, and I repeat, that the Law Reform Commission is too often used as an excuse for prevarication. They are a body who are doing good work, short-staffed though they may be. I would like to know why it is, when so much store is regularly placed by Ministers in reply to Dáil Questions and in general debate on the deliberations of the Law Reform Commission, the implication being that the recommendations of the Law Reform Commission will be pursued inevitably and inexorably by the Government and that anything that suggests any slight deviation from that is tantamount to heresy, that on this occasion in regard to section 1 the recommendations of the Law Reform Commission for a replacement action are not being taken up by the Government. I am happy that they are not. But I would like to know the kind of wisdom, the kind of thought process that went into a contribution by the Minister in the debate on the Private Members' Bill where the implication was that the findings of the Law Reform Commission would probably be approved of by the Government. But these thought processes are now, 12 months later, fundamentally different and there is no replacement action and we appear to have grown up just a little. Why the apparent change of heart?

On the one hand, Deputy Keating welcomes the abolition of criminal conversation and, as he is aware, his Bill came at a time when the Law Reform Commission had not submitted their final recommendations. The Government considered these recommendations at the appropriate time and in consequence of that they decided that it was proper and correct to abolish the action rather than retain it. I do not think that I have to justify the Government's grounds for taking that decision, particularly to Deputy Keating. I am satisfied that all of the women's groups, and indeed other organisations which include men, agreed that it was desirable and necessary to abolish it and I am satisfied that the Government's action has been totally correct in this matter.

That is not at issue, nor is it what I asked. As the mover of the Bill which sought the abolition and which was voted against unanimously by the party opposite, I do not need to be told that the total abolition is what is appropriate or correct. But the reticence and the hesitancy and the inhibitions which the Minister's party showed on the occasion of that vote seem to have undergone some transformation. I am pleased for it. I just wondered if the Minister would like to tell us why. That said, it is welcome in itself even though it is probably about 100 years too late.

Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."

Again I want to make it clear that there is no essential division about any of the major segments of this Bill. This section is about introducing into law a condition relating to an agreement between two persons to marry, the engagement situation whereby the present ability of one party or other to sue the other for breach of contract would no longer be valid. I welcome that. I think that, particularly young people, emotionally immature people are not adequately aware of the importance of the step involved and if any pressure was to be brought upon young people subsequent to a change of heart or a change of mind by them which would force them to enter marriage when their better instincts and intelligence tell them that it is not the right thing for them though they had already contracted so to do, that pressure should be removed and that is what this section does. Let us take a hypothetical situation where perhaps there might be a written agreement between two parties — I admit the circumstances would be unusual — or there is perhaps a religious sect which sometimes undertakes marriage ceremonies in this manner, or a situation where people solemnly entered into a contract. To what extent does this section cut across the law of contract in this respect? It says that an agreement between two persons to marry one another, whether entered into before or after the passing of this Act, shall not under the law of the State have the effect of a contract. What kind of an agreement are we talking about here and what is the definition in this Bill of "engagement to marry"?

The section states that an agreement to marry shall not under the law of the State have the effect of a contract so there can be no question of us cutting across the contractual type of situation the Deputy has referred to.

Regardless of the solemnity of the agreement?

Yes. It does not affect contract, because the section states so.

Question put and agreed to.
SECTION 3.

Amendment Nos. 1 and 2 are cognate, so we will debate both of them together.

I move amendment No. 1:

In page 2, paragraph (b), line 33, to delete "on request" and substitute "at the request of the donor or his personal representative"

This is purely a drafting amendment to remove doubt as to whether the personal representative of the donor could under paragraph (b) of section 3 as presently drafted request the return of a gift as recommended by the Law Reform Commission. Amendment No.2 is identical and its purpose is to remove doubt as to whether the personal representative of the donor could under paragrah (a) of section 4 request the return of a gift in a situation where the donor had died after the termination of the agreement to marry.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

Amendment No. 2 has already been debated.

I move amendment No. 2:

In page 3, paragraph (a), line 2, to delete "on request" and substitute "at the request of the donor or his personal representative".

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."

This comes back to the question of the definition of "engagement" because we are dealing with the question of the property of the engaged couples.

The section says that:

Where an agreement to marry is terminated, the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall apply in relation to any property in which either or both of the parties to the agreement had a beneficial interest while the agreement was in force as they apply in relation to property in which either or both spouses has or have a beneficial interest.

In this fairly ostrich like assembly we must recognise the fact that today there is a growing trend that people live together in what are known as common law marriages, so that the definition of marriage as a church or civil witnessed contract is not as comprehending as it might once have been. What happens in circumstances like that, particularly with regard to the children of such a union? Do the interests of the children arise in this case of a common law marriage where people have been living together for perhaps ten or 12 years without being married and where one or other of the partners might for the purposes of this section say that they were engaged and therefore their rights in this matter are affected by this section?

On Second Stage, Deputy Mitchell referred to this type of situation. Common law marriage is not recognised in law and there is no provision for dealing with something that is not recognised by the law of the State.

The fact that there is no provision is a reason why we should concern ourselves. Many injustices in society arise because there is no provision in law to deal with them. Where two people have been living together and there are children, have the children any rights to property of the so-called engaged couple, the property of ade facto marriage. They are presumably deemed to be illegitimate and have no rights. Does this section appertain in any respects to such children?

Breach of promise provisions apply only to those persons who have been engaged to be married.

What does that mean?

Section 2 refers to the agreement to marry.

It does not refer to "engagement".

In a common law marriage situation there are normal procedures to deal with the property rights of individuals. This Bill deals with a situation which exists under our laws and which is recognised in law. Section 5 does not recognise two people living together outside of the marriage contract as we know it.

It continues to recognise the present disenfranchisement of illegitimate children in a situation where a couple are living together without being married.

Surely children do not arise on section 5. The Deputy is extending the scope of the section.

Far be it for me to be unruly but I suggest that, as there is no definition of "engagement" in the Bill, it is not unreasonable to expect that there are some engagements which are so long that there are children. I just wanted to establish that once again we are passing legislation which disenfranchises from property rights of their parents the children of that union.

Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."

Will the Minister elaborate on the aspect of this section where an application to the court in a case of substantial expenditure incurred by or on behalf of that party to a broken engagement allows the court to grant such damages or costs? Is there a degree of conflict between that and section 2, where the engagementper se was not contractually binding and is being written into law as being not binding? Now we appear to allow the possibility of a person suing another for damages or costs arising in the context of an agreement to marriage which has been terminated.

The Chair would point out that the side notes here are not in order. The note beside section 7 should be with section 6.

The Deputy is on the wrong section.

I am dealing with section 6. The Minister may be on the wrong section.

The Deputy spoke at length on the wrong Bill on the last occasion.

That is not true.

I hate to have to bring up this, but when the Deputy accuses me of something totally incorrect I must bring the fact before the House.

Deputy Keating is entitled to ask——

(Interruptions.)

Deputy Mitchell spoke for 40 minutes on the wrong Bill on the last occasion.

On a point of order——

(Interruptions.)

Deputy Keating is entitled to ask a question on section 6.

What section are we on?

We are on section 6.

Does the Minister hear that?

The side headings on section 6 are incorrectly transferred and the side headings to section 7 belong to section 6.

I am pleased that the Chair agrees that we are on section 6.

I have been attempting to put the Deputy right and to assist the Chair in that connection, but as always the Deputy wants to be his own man regardless of the consequences to himself.

I do not know where the Minister was before he came in here but it must have been in the wrong place because he is in terribly bad form now.

Deputy Keating on section 6.

I am talking about section 6. There is a transposition of side notes for which the Minister cannot surely blame me.

I was trying to put the Deputy right in that regard.

If the Minister wants to put me right, he should listen carefully. I will repeat section 6 for the Minister, because he obviously missed it. Where an agreement to marry is terminated and where it appears to the court, after an application being made to the court, that costs may be awarded to one party or other, does that not give a hint of contractual status about the engagement which conflicts with what we already discussed on section 2, where it outlined what we might call the non-contractual basis of the agreement?

Black is white.

Question put and agreed to.
Section 7 agreed to.
Progress reported; Committee to sit again.