This section deals with the jurisdiction of the courts which we dealt with fairly comprehensively in the context of the Courts Bill. What appears to be the approach to the business of the lower courts is less than satisfactory. I do not grasp the reason why claims exceeding £15,000 should be dealt with in the higher courts and why the only criterion that applies in relation to jurisdiction is one of finance. I can envisage circumstances where jurisdiction could mean not merely monetary values but the nature of the case and gravity of the issues involved. The only jurisdictional cut-off point, not just in this Bill but generally speaking in the courts, relates to finance. I question that. The implication is that sums of money less than in this case £15,000 are per se of less gravity. That may or may not be the case. The whole point of the money being claimed in this case would have to be seen in the context of the solvency or wealth of the parties involved. I wonder if our simplistic and traditional attitude to jurisdiction which exclusively relates to monetary values is worthy of comment and if we should review it. We should consider a different type of jurisdiction, one which would say that certain types of cases by their nature need the kind of superior deliberation that the higher courts can give. There is a degree of dissatisfaction about a cut-off point as outlined in section 8(1).
Family Law Bill, 1981: Committee Stage (Resumed) and Final Stages.
The point made by Deputy Keating in relation to jurisdiction would be more appropriate for legislation dealing with proposed changes in jurisdiction. The general practice and the practice envisaged in the Courts Bill, 1980, now the Courts Act, 1981, is being continued where the Family Law Bill before us is concerned. The right to have claims of over £15,000 heard in the Circuit Court is possible by consent of both parties. Without that consent claims of £15,000 and more will be heard in the High Court. There is nothing extraordinary about sections 6 or 7, which we have already dealt with. It is a question of property that is involved and property has monetary value. Costs and expenses incurred also have a monetary value. What is proposed under section 8 is appropriate and correct in the context of what we are dealing with.
Can that jurisdiction be changed by ministerial order?
Not under this Bill.
I repeat my fundamental objection to inserting into legislation monetary values that cannot be changed except by the introduction of new legislation, because they build in injustices. They do not allow the Minister of the day or the courts to take appropriate cognisance of inflation of values in the context of the day on which the court case occurs. It is unreal and naive to suggest that the only way we can change these limits is by introducing new legislation. We have not exactly been lumbered by too much family law legislation in the last number of years and I do not anticipate that we will ever get as a priority a Bill dealing with the upward revision of monetary limits in the Family Law Bill, 1981.
As a basic formula for ensuring justice on a continuing basis we should build in where possible a mechanism whereby a responsible person, perhaps answerable to the House, would be able to do what is intended to be done in this Bill, that is, to ensure that the limits we speak about are realistic in the context of the price of the values of the day. This does not do that. It means that somebody who has a case under this Bill dealing with property valued at £14,000 is enabled to have it heard at a certain level of court. However in ten or 15 years' time that value remains the same and the £14,000 would be reduced to one-third of what it now is and the person would then be obliged to go to the High Court to have the case fully heard, depending on the attitude of both parties. That means that in two successive years the same standard will not apply in the courts or in the context of this Bill. I cannot understand why as a guiding principle we do not include in this Bill and in every Bill which has monetary values a mechanism for re-evaluation which would do nothing more than take account of inflation and the values of the day.
I reject the suggestion that we have not had a considerable amount of family law legislation in recent years and a considerable amount of commitment and involvement in the sensitive area of family law. I assure Deputy Keating that he can compare the record of a previous combination of parties who claimed to govern this country——
I did not bring politics into it this morning.
—— and he will note that we have exceeded their efforts and that much more is in preparation. I am satisfied that we will have considerable time in future years to bring that type of legislation into the House.
As Deputy L'Estrange would have said, you are whistling past the graveyard.
I do not know if it is in the best interests of the people whom the Deputy claims to have at heart, those deprived or underprivileged because of lack of legislation, or if it is for the protection of the Deputy's own high political profile that the Deputy has repeatedly repeated himself in this House. We discussed the whole question of monetary limitation during the passage through the House of the Courts Act, 1981, and the Deputy contributed — other people would accuse him of having waffled but I am not that disrespectful to any Deputy — on this area. I have explained that this is a very important area and that it should only be the Members of this House who should decide on monetary controls in any legislative package being provided for the benefit of the nation. If we were to proceed outside of the method adopted and established constitutionally over the years we would go into the area where elements outside of this House would be in a position to make decisions about matters of family law and the monetary limitations.
The Deputy also suggested that we should provide for 14 or 15 years' hence. I reject that. Why should we put a limit of 14 or 15 years on the period for which we should provide monetary limits? The present system is good and, having regard to the fact that this party will be around for a considerable time, the Deputy need have no doubt about the regular monitoring and reviewing of the situation as is desirable and necessary.
I regret the tone of political acrimony which the Minister sees fit to introduce to this debate. I certainly put on record prior to this my concern about the question of monetary limits in Bills and I intend to continue. Strange as it may seem to the Minister, what we said was correct three or six months ago continues to be correct and we will continue to assert principles which we see to be just regardless of how tedious it may appear to be to people who are clearly more concerned about other matters at this time than family law matters. The reality is that the amount of money involved here is one which the Minister presumably sees as just and correct. I contend if that is not open to change — not by some vague generalised interest outside the House but by the appropriate duly elected Minister of the Department — we get a degree of injustice. The Minister's memory is very short because unlike what he has said, which is to imply a Minister has not got the power to adjust monetary limits in relation to inflation — I will admit this is difficult these days because of the rate at which it is growing — in the Courts Bill the Minister introduced an amendment to facilitate him changing limits by ministerial order. Is that not correct?
That was a different situation.
Then it is correct.
If the Deputy wants to talk about the Courts Act now he is merely showing further disrespect for what is actually before him.
The kind of nonsense the Minister is talking simply does not hold water. Of course he changes his mind as often as his party change their economic and social policy. The fact is we are here dealing with a very sensitive area, with an area dealing with the property of engaged couples and presumably there will be very little joy in the distribution of assets in these circumstances. All we want to do, regardless of what provocation the Minister may offer, is to endeavour to ensure that assets are distributed justly and by that I mean consistent with standards year in and year out whether it be four years, 14 years or 40 years. All I ask for is not a degree of political invective in heated debate, which I certainly did not warrant because I did not start in that tone, but respectful consideration of any suggestion coming from any side of the House in the context of a Bill which, whether the Minister likes it or not, is not likely to be repeated irrespective of which side of the House he finds himself on. If the Minister does not wish to give that kind of consideration that is that. I have made my point. I will continue to make it on any opportune occasion in which a Bill does not in a commonsense way take into account the unfortunate upward progress of inflation. That is all I have asked the Minister to do.
I must reply because it would be very wrong to allow Deputy Keating to put on the record a misinterpretation of what I said. The section makes provision whereby amounts of over £15,000 may be dealt with in the Circuit Court provided both parties consent. I think that provides a very fair opportunity for the two people concerned. There is no limitation to the amount which may be claimed in the High Court. Now the Deputy refuses to acknowledge that these two realities prevail.
Is it not more likely that the two parties will be before the court for the simple reason that they do not agree? If the two parties agree is it not more likely the matter will be settled without their going to court at all?
It would be wrong for the Deputy to presume they will necessarily be bad friends for the rest of their lives. They do not have to behave like the Coalition.
I did not catch the Minister's main thrust. I am suggesting, and I want an answer if the Minister has no objection, that it is more than likely that the majority of cases which will go before the courts will be those in which the parties by definition cannot agree.
Agree about the property?
Correct.
The reality is they may agree but it might be more appropriate to take the case in the Circuit Court rather than the High Court or vice versa. This is an aspect which may have nothing to do with the actual differences that may obtain between them over the property. The Deputy is working on hypothetical presumptions and it is just crazy to go on talking about them.
Is not the salient point that the limit on the District Court is one which, regardless of agreement between the couples, is set down and they have no right to waive that except in circumstances where there is complete agreement between the parties? Of course, in those circumstances the matter would be most unlikely to come before the court at all. The Minister is being naive and we will find that out in two or three years when people with little experience of family law matters and with little insight into social conditions which give rise to these problems have drafted legislation which is far from the best.
What is the reason for the limitation of three years? Would it not be more acceptable surely that the normal limit in relation to statute barred aspects in relation to contract, namely, a limit of six years, would be more acceptable and more appropriate? I agree with the Minister there should be some cut-off point but three years seems to be very short. The section draws a limitation period on the right to take proceedings arising out of the termination for whatever reason of an agreement to marry. I can imagine circumstances where the effects of such disengagement, in the literal sense, would be such as might not be fully appreciated or apprehended particularly by someone in his or her teens or someone relatively immature. On reflection after a period of two-and-a-half years he or she might feel he or she had the right to take proceedings. But it could be three to four years. The case once initiated would not come to fruition for perhaps three or four years. If the interests of justice are to be served then the limit involved, if any limit is appropriate — and I agree there should be some limit — must be a reasonable limit. Is this not too dramatic and too out of line with the limitations set in other legislation?
This legislation is different from other types of legislation. It is dealing with a very sensitive relationship between two people. The Law Reform Commission recommended this period and the Government considered it appropriate to accept that recommendation because it appears to be in the best interests of those concerned. I am sure Deputy Keating can envisage a situation arising, if a period in excess of three years were provided for under this section, in which the two parties could be disadvantaged individually or collectively because they had not visualised difficulties arising in connection with their particular relationship.
Because of the nature of these disputes they should be dealt with as quickly as possible. That is the only reason why the three year period was considered. After very close and in depth examination, it was considered appropriate and proper to have a reasonable length of time, and three years was thought to be reasonable. I accept that there are six and seven year limitations in other areas of legislation but, because of the nature of this legislation and the sensitivity of the area which is being dealt with, I am convinced of the desirability of having such disputes arising over property and so on, dealt with as soon as possible.
The Minister has advanced four reasons why the three year period would appear to be the right limit. The first reason is that because this is a different Bill from other legislation it deserves a unique response. I suppose every Bill is unique. I do not accept that there is any validity in that argument. Secondly, he referred to the Law Reform Commission as being one of reasons why their recommendation of three years should be acceptable. That is severely at odds with section 1 of this Bill where the Government did not accept the recommendations of the Law Reform Commission and, more importantly, showed a distinct change of heart in not suggesting a replacement action to the abolition of criminal conversation as recommended by the Law Reform Commission and, incidentally, sought by this party nearly a year-and-a-half ago. I do not feel that the Minister can drag in the Law Reform Commission when it suits him, if that is to be the justification for the three year cut-off point.
Thirdly, the Minister talked about these matters being of particular sensitivity. I agree with that. However, if we are talking about sensitivity, both presumably in the emotional and psychological areas, people who are deciding not to go ahead with an agreement they had to marry, it seems reasonable that we should err on the side of caution in affording such people the opportunity of taking an action rather than jumping in with a cut-off point earlier than is general in legislation. Surely it is reasonable to expect that people would be given the maximum length of time within which to consider taking such actions. In most cases we are dealing with young people. In many cases we are dealing with very young people and, in some cases, we will be dealing with people who are not fully aware of their rights, or their obligations perhaps.
I do not think the case for three years has been proven. It should be proven if it is to be a significant departure from traditional norms in this area, as it is. I can see a situation where somebody of 17, 18 or 19 decides at 22 or 23, based on consequent or consequential evidence or personal difficulties arising from that initial decision and subsequent agreement not to go ahead with a marriage, that they are entitled now to take a certain type of action. Nobody relishes the prospect of such actions. We hope there will be as few as possible, but that is another day's work. If somebody has an entitlement, in justice, they should not be abruptly cut off from the opportunity of taking an action. If these were men or women of 40 or 50 years on average, one could say they were mature enough to make a decision fairly rapidly, but, generally, they will be young people. A limit of six years, which is the norm in legislation going through this House — not the rule in all cases but the norm — is what should apply. The Minister, apart from some vague generalisation about a collective desire that such cases should be settled at an early date, has not given one whit of evidence why young people should be dealt with over efficiently and over swiftly in this respect.
Deputy Keating has referred to the Law Reform Commission's recommendations not having been accepted in connection with section 1. He also referred to the imaginary conflict in the Government's attitude to section 1 and section 9. The Deputy totally ignored the existence of the Law Reform Commission when he came into this House with a Private Member's Bill. The Deputy ignored the Law Reform Commission and the findings of eminent people which we were prepared to wait for. To do otherwise would be to make that commission which was set up in the national interest irrelevant. The Deputy is prepared to abandon all agencies once again for political purposes and personal projection——
The Minister is in bad form this morning——
We waited for the final report to come out. The Government looked at the final report and found they could not accept it in so far as it recommended the retention of the action that we have abolished——
That is not correct.
——the action of criminal conversation in section 1. We decided to abolish that action. In this section we decided to accept the recommendations of the Law Reform Commission, not because they were made by the Law Reform Commission but because, as the Government, we have the right and the duty to make a decision taking into consideration the submissions of the Law Reform Commission and any other vested interests. With respect to the Deputy, we have given cursory examination to some of his proposals. They would have been much more valid and helpful if the Deputy's party had waited for the Law Reform Commission's final document and examined their own proposals in that light. It is not unusual, as the Deputy has suggested, for a three year limitation to exist. A three year period exists in tort for personal injury. The fact that the Deputy is not aware of these situations and that he is prepared to talk off the top of his head in a confused, distorted manner clearly reflects the inability he has, either personally or in his party, to pursue the type of legislation which is in the national interest and the common good. Yesterday the Deputy advocated common law marriage——
That is not true. Keep that for the crossroads.
If I am to be accused of political invective, it could be suggested that I was accusing the Deputy of promoting permissiveness in society. I do not believe Deputy Keating wants to do that. But it is the way people will see it when he makes such statements.
I am finding it extremely difficult to sit quietly and listen to the Minister distorting every word one says and telling untruths. I challenge the Minister to produce one whit of evidence that yesterday or any time in the Dáil I advocated common law marriages——
The Deputy should put the record right.
No, the Minister made the statement. Whether the Minister appreciates it or not, there are certain onerous responsibilities attached to his job, and the manner in which the Minister discharged them this morning fall far short of the ideal. It is not the Minister's right to engage in scurrility and lies.
The Deputy accused the Government yesterday of not making provision for what the Deputy described as common law marriages.
That is not true.
Would the Minister and the Deputy come back to the section we are discussing?
Whatever distortions this Minister wants to make for cheap political gain, the record will show that I was concerned yesterday with the rights of children of such a union to possibly share in the property. I was talking about the rights of illegitimate children and I did not say what the Minister now suggests. It is typical of the kind of smear and diversion that we are apparently going to hear because there is nothing else to tell people from that side of the House over the next couple of weeks. The Minister should keep that for County Roscommon.
Could we get back to the section, please?
The Minister was not just inaccurate but wrong in what he said in a number of respects. First, he indicated in passing that the Law Reform Commission said that the action of criminal conversation should be retained — those were the words the Minister used. They did not say that. They recommend a replacement action which would be open to both husband and wife and not the retention of the present unconstitutional arrangement. Secondly, I am fully aware of the three year limit in regard to personal injuries. The point is that a personal injury based usually on a physical injury to a person in an accident, for example, is clearly manifested within two or three years. We are talking about what the Minister calls the particularly sensitive area dealing almost exclusively, certainly very largely, with young people — not in terms of physical injury but in terms of psychological damage and in terms of the traumatic events relating to the breaking off of a wedding that was to be. There is no analogy between those two events. The basic point that the norm is six years has not been answered.
I make this appeal to the Minister. We have been dealing in this House over the past number of months with a number of issues in the family law area, some perhaps more weighty than others, certainly some very superficial. We have done so with reasonable respect for each other. Would the Minister withdraw from the line he is now taking in engaging in deliberate distortion and smear and get back to the issues? If he wants to play it the other way, however, he will get more than he bargained for.
Provocation coming from the other side.
Amendment No. 3 is in the name of the Minister. Amendment No. 4 is related. Amendments Nos. 3 and 4 to be debated together.
I move Amendment No. 3:
In page 4, subsection (1), line 1, to delete "For the avoidance of doubt, it is hereby declared that".
In a case which came to hearing since the Bill was circulated, the High Court decided that a consent of an under-age spouse is not sufficient consent for the purposes of section 3 of the Family Home Protection Act, 1976. In the absence of an appeal against the decision, this High Court judgment is now the law in the matter and accordingly it is inappropriate to frame the section on the lines of removing doubt or declaring the law.
Amendment No. 3 proposes therefore to delete the words "For the avoidance of doubt, it is hereby declared that". Amendment No. 4 is necessary because section 10 is not now declaring the law, but is changing the existing law as set out by the High Court decision to which I have already referred. The section as amended will provide that consents already given by under-age spouses for the purposes of the 1976 Act shall not be taken to have been invalid solely because they were given by under-age spouses. Also, the amended section provides that any such consent given in the future by an under-age spouse will not be an invalid consent solely because it is given by an under-age person.
This is probably the most fundamentally important section of this Bill and it raises some serious issues. First, with respect, the section is badly drafted. It has a very confusing double negative. It says that "It is hereby declared that no consent given by a spouse,... is or was invalid by reason only that..." I cannot understand why it was not put simply that "It is hereby declared that any consent given by a spouse... is or was invalid by reason only..."
Could the Deputy deal with the amendments first, please?
The amendments are basically drafting amendments.
I move amendment No. 4:
In page 4, subsection (1), line 8, to delete "is or was" and substitute "shall be, or shall be taken to have been,".
I have long argued that the legislation of this House is being framed as if it was to be a prerogative for discussion by erudite lawyers and not legislation for the people of this country. I have no doubt that the average person, regardless of the Bill, would be quite unable to make head or tail of it. It does not help in communicating the fact that law is about people, to unduly clutter it up with unnecessary verbiage. This section is badly drafted. The average teacher of English would probably——
Of good English.
—— improve on it. There are many such average teachers of English around. That deals with semantics. More important is the fact that we are asking people now to give up — that is the wrong expression — we are taking from them their right of action in the context of this Bill, because they gave consent while they were below the age of majority. Bear in mind that we are dealing with young people in the case of persons below the age of majority, who have given their consent to a marriage — persons of 17, 18 or 19. Their rights are being fundamentally altered by virtue of this section. I question the wisdom of that. If there is anything we in this country do in regard to young people, it is to tend to minimise the rights they already have. In some cases, if they happen to be the innocent victims — if that is the right expression — of people who chose not to go through the civil and Church marriage ceremony, they have no rights at all in certain respects. Leaving that aside for the moment, we are removing from these young people, who have given their agreement to marriage at an age when, by common consent, their physical, emotional and psychological maturity is still evoling and is certainly not at its height, that immaturity as a reason for invalidating their right to take an action in regard to the disposal of a family home. The likelihood is that there is one family home and the protection of what I might call an infant, to use that quaint legal expression, a minor, someone who has not reached the age of majority, is being jeopardised by virtue of the fact that we are now going to say, "Even if you gave your word when you were aged 17, and even if we generally recognise that you were immature and emotionally unfit to give it, that does not make it an excuse any more." That is wrong. Why should that be? Why should one not be able at least to plead the case? Section 10 should, therefore, be amended in a number of respects.
The second point is to what extent the Family Home Protection Act, 1976, where property or a family home within the meaning of that Act is involved, is to be infringed upon. There is concern among legal people with whom I have spoken about the possibility of a reason being advanced at some future date which would, on the basis of this Bill, invalidate their action. The point being, of course, that unless there is some cut-off point — six years or otherwise — introduced into this section, we will run the risk of people in the context of the Family Home Protection Act and this Bill, making a case later on that the person, though of young years, has now no longer an excuse to suggest that any consent then entered into was invalid on that account. This is slightly worrisome. We should obviously have some kind of order in this area. What is the reason why a person whom society considers to be immature at age 17 or 18, who wants to take an action under this section, finds that his or her interests would be best served by relying, as it were, or falling back on the fact that they were clearly unable to make the right decision at that time, if that is demonstrated? Bear in mind that they must prove this. What is the reason for victimising teenagers in this way? Is it not accepted generally that emotionally, psychologically and physically they are more immature than they would be at a later date and that, consequently, they need our increased protection rather than to be stripped of that protection which is what is being done here? On these grounds we oppose the section.
In respect of house purchase loans, the houses are conveyed to the lending institutions as security for the loans and the consent of the other spouse is required to that conveyance. Lending institutions have refused to accept as a valid consent for the purpose of section 3 (1) of the 1976 Act, the consent of a spouse who is under 21 years. Consequently, in the case of an adult applicant for a house purchase loan whose spouse is under 21, proceedings have had to be instituted under the Guardianship of Infants Act, 1964, to ask the court to give consent on behalf of the under-age spouse. It may have happened also that consents were given by guardians under that Act. The view taken by the lending institutions has been confirmed in a High Court decision in the case of Lloyd v. O'Sullivan — 6 March 1981. That decisions was given after this Bill had been circulated and was to the effect that the consent of a spouse under 21 was not a sufficient consent for the purpose of section 3 (1) of the 1976 Act. That would remain the law unless or until the decision was changed on appeal. The High Court decision that a minor spouse cannot validly give consent for the purpose of section 3 (1) of the 1976 Act makes it inappropriate for section 10 (1) of the Bill to take the form of a declaration "for the avoidance of doubt" that the spouse can validly do so. Consequently, section 10 (1) is being amended so as to secure the same result by providing that no consent given by a minor spouse before or after the passing of the Act shall be, or shall be taken to have been invalid by reason only of the spouse's minority. The section applies also to a consent given for the purpose of section 9 (2) of the 1976 Act. The High Court decision applies also to that provision. It must be presumed and accepted that a person under 21 who is married was mature at the time of the marriage and was capable at that time or afterwards of applying for a house loan, that is, that the application was being made in good faith with the applicant knowing what he or she wanted to do.
I do not think there is anything unreal or unusual about a person under 21 and married seeking to obtain a loan for the purpose of acquiring a home. Regarding any claim that might be made at any time after that to the effect that the person was incapable of taking certain decisions because of his or her tender years. I can only say that the fact that he or she sought to acquire a home could not give any credence to the view that the person did not know what he or she was doing at the time. The only reason for the section is to remove a difficulty that has existed and, in fairness, Deputy Keating must agree that it is important that we remove a difficulty which results in both spouses having to make applications to the High Court in these cases. It is important that the law in this area should, in the family interest, be changed as proposed in this section.
The section makes a major assault on the rights of young people because its effect could be to deprive such person of their full entitlement in justice. It could operate in such a way as to subject them to an interpretation of law which will be clearly unjust in their case. It is at odds with what is occurring in other quarters. For example, the churches today are viewing with increasing understanding and compassion requests for annulments from very young people. It is clear that a significant degree of emotional immaturity obtains where a couple can show that they were ill-fitted to enter into a bond which at the time appeared to be right. I know of instances in which teenage marriages lasted only days. We hope that only a small minority will be involved here and there is no reason to assume that a marriage between teenagers should by its very nature be liable to this type of difficulty but the statistics show that there is more breakup of teenage marriages than is the case of the more mature marriages. There are figures which show that between 40 and 50 per cent of teenage marriages break down in the first number of years. If that is correct, obviously, there are various reasons involved and one of these must relate to the fact that in many instances people of 16, 17 or 18 have no idea of what marriage involves.
What is suggested here is that that immaturity and a degree of emotional unpreparedness is no longer to be accepted as a reason for this action being taken. I cannot accept that. To accept it would leave us in the situation of acting not in the best interest of young boys and girls. If, as the Minister has now indicated, the reason for the provision is that lending agencies are unhappy about lending to parties in the case where one spouse is a minor, there are a number of ways of dealing with such situations. One of these would be to change the age of majority and another might be, at the very least, an amendment to the section to the effect that there could be cases where young people could make application to the courts by way of helping to prove that they had no idea of what they were going into.
In this Bill the Government are increasing the degree of irresponsibility which exists in relation to teenage marriages when what they should be doing is the reverse. It is clear to anyone who has any contact with society that the whole area of teenage marriage needs more attention. Instead, we are here removing from them whatever meagre protection they have. Regardless of what may be the difficulties for lending agencies in cases where one spouse is under 21, there are ways around such problems and these do not necessarily involve making major assaults on the rights of young people. What we are saying by way of this Bill is that adult society prompted, on the basis of what the Minister has said, by the lending agencies, do not care about whether we deprive young people of the right to plead emotional immaturity at the time of marriage. That is what is being suggested here and it is not right. We should be considering in constructive ways what more we can do to give teenagers protection in legislation such as this. They are exploited across the board in the commercial areas and otherwise.
The proposal in this section means we do not care about the young people but are concerned only to make it easier for the lending agencies to give money and if anything goes wrong to ensure they have a fall-back position. I cannot understand this attitude. We must remember the lending agencies are lending for a home, not for something that will be frittered away. We are talking about a house, a fixed asset that increases in value. Whatever may be the legal and technical difficulties of lending agencies in pursuing their right of action, there is no loss whatever involved for them. I challenge anyone to say where the lending agencies, having loaned money to a couple one of whom has not attained the age of majority, have lost money. It may make it more complex from the legal point of view but otherwise there is no difficulty for them. I want this House to realise what this section proposes to do. We are taking away from young people the protection they have and which society accepts, namely, of stating they were not prepared to take that step, that they did not know what was involved and of pleading they had not attained the age of majority.
The age of majority at present is a safeguard for some young people. I remember a young person whom I knew very well and who wished to purchase a car but was not given the finance because he was too young. It was right at the time that he did not get the finance necessary because it is unlikely that he would have been able to repay it. In this context we are talking of young people who will come through what is a very difficult period for anyone, that of marriage and house purchase.
This section is indicative of the passion of the Government for looking after the interests of big business and selling down the river the interests of teenagers and young people. I reject that. Young people tend to be more immature and more unprepared emotionally and that factor must be taken into account. I find it ironic that at a time when the churches are taking it into account in terms of their consideration of applications for annulments——
What churches is the Deputy talking about?
The churches.
The Deputy should be careful when he talks about annulments and the churches.
That is why I said "churches". It is clear that both in church and State circles increasing consideration is being given to the question of the vulnerability of young people in this area. It is ironic that at a time when more consideration is being given to this factor as a reason for bringing into question the validity of some contracts by teenagers, whether marriage or otherwise, that the State appears to be doing the opposite here. The State is removing that protection and is taking away from young people the right to say that however firm their intention they were not ready to enter into a contract.
This section should be changed. At the very least it should provide for allowing young people to seek in the courts the right to take an action. How can somebody who can show he or she was not ready in a number of respects to enter into a contract be deprived of that right? If this section is passed as it stands, we will do a disservice to young people. People of that age are not represented in this House. It was interesting to note from the Minister's initial reply that his concern was for the lending agencies. Their problems can be circumvented by sensible local authorities or by a more courageous decision to review the law regarding the age of majority which would allow people the same status at the age of 18 years that they have with regard to voting rights, to paying taxes or to take up arms on behalf of the country. However, that is another day's story.
If this section goes through as it stands it will invalidate the right of young people to plead on the basis of a factor that is commonly accepted. There is no argument about the degree of emotional immaturity of the young people. Apparently the only argument is that the Minister finds it more convenient to remove the right of young people in this area. We propose to tell them we do not care whether they were ready to enter into a contract, that we consider the rights of lending agencies and the obligations of business to be more important. Our attitude to them is that they entered the contract and they are stuck with it. That is what the Minister is saying and we do not support if.
The Deputy could not have made that speech if he were not a political acrobat.
Coming from an expert in that area I suppose I should accept that as a compliment.
I ask Members not to indulge in personalities.
The purpose of this section is to give young people a right they have not got at the moment.
Then one of us is wrong.
The Deputy is wrong and I am glad we agree on that. The position heretofore has been that, for example, if a husband or wife made an application to a building society or other financial institution to obtain a loan that application would be refused if the other spouse was under the age of 21 years because that spouse could not give a valid consent to the conveyance. In order to give a valid consent in accordance with what is required by existing law that couple would have to apply, at considerable cost, to the High Court so that a valid consent could be given. In this Bill we are not giving greater facilities to building societies. I mentioned building societies or financial institutions to illustrate one of the areas where this difficulty arises for young people.
We are not giving any additional facility or any right to the building societies or the financial institutions. We are dealing with a legal requirement which they are now lawfully entitled to demand before they will give a loan by giving, in section 10 of this Bill, a right which the spouse under 21 years has not got at the moment, that is, the right to be able to give a valid consent without having to go to the High Court, as they have to do at the moment, to get a home for themselves as soon as possible after marriage. If it can be provided before marriage it can be a great help in the marriage.
If Deputy Keating throws dirty water on the giving of a right in law to a married person under 21 years to be able to give a valid consent without having to go the the High Court to meet the requirements of financial institutions for the purpose of getting a loan, and says that right should not be given, his ambiguity is too much for me. I could not make even a remote assessment as to what type of mind would wish to deprive young people of that right. I know the Deputy and I do not think he intends to be evil or wrong where they are concerned. He fails to recognise that a 20 year old wife is mature enough to give a valid consent. If his argument were to be brought to its logical conclusion there would be chaos in the selling of houses. It just would not work.
If what happened?
Deputy Keating seems to hold the Law Reform Commission in some contempt, if I read him aright, in so far as he has never been interested in any of their final conclusions even to the extent of considering them or rejecting them as he thought fit. He has not waited for them. The Law Reform Commission are dealing with the age of majority.
It may be contended that the real problem is the legal incapacity of persons under 21 years to obtain a house purchase loan and that a provision should be inserted in the Bill which would enable engaged couples under 21 years to obtain a mortgage to enable them to purchase a home jointly or otherwise. Any such suggestion raises the whole question of the general contractual capacity of minors in relation to all contracts and not only contracts for the repayment of loans. It was never the intention to deal with the contractual capacity of minors in this Bill.
The purpose of section 10 is to deal with the separate, specific and important problem arising from the operation of the Family Law Protection Act, 1976. Legislation dealing with the general question of the contractual capacity of minors would have to deal with all other legal aspects of the status of minors as well as the age of majority itself. To attempt to deal with this whole question in this Bill would go far beyond its scope and would raise questions of policy which would require greater and further consideration. If you were to be misinterpreted by young people in connection with this Bill and other Bills it might appear that you were rejecting——
Would the Minister use the third person?
The Deputy might be rejecting or opposing in some way the very real possibility that the age of majority will be reduced by this Government shortly, having regard to all the other considerations and examinations that must be taken into account in connection with difficulties and complications which will naturally arise as a result of any changes which would provide for the age of majority at 18 years rather than 21 years.
The reports of the Law Reform Commission will be of enormous assistance in this connection. We will be anxious to have them and we will not engage in any immature or precipitate action as happened in Deputy Keating's case in relation to this Bill and others. I am satisfied that there is justification for having changes made in the law to give a right to give a valid consent to an under-age spouse without having to go through the High Court as is the case at the moment. I have no intention of making any change in the proposed section.
When one picks one's way through the Minister's contribution one finds there is no substance in it. The Minister has implied that we do not pay adequate attention to the Law Reform Commission. I doubt the wisdom of defending ourselves against every slur and every allegation the Minister throws at us, presumably as diversionary tactics because the last thing he wants to talk about is the essence of our argument. I have with me the report of the Law Reform Commission as I do regularly. I would be reluctant to say this normally, but the Minister may be interested to know that there are two Deputies in the House who have taken the trouble to go and see the Law Reform Commission and their eminent chairman. I am one of them.
I am one also.
That makes three. When I met them they told me I was the second.
I was the first.
We did so because we respect their work and we believe that too often the Government have used them as an excuse for prevarication. By and large they are abused in this House by the Government side, as we have just heard now with regard to the age of majority. There might be a change in the age of majority but, having taken three steps forward, they will take two steps back, after the usual consideration and reviews with the reports of the Law Reform Commission tacked on at the end to give them plenty of breathing space in case they stuck their necks out too far in the first place. The Law Reform Commission deserve our pity and our sympathy. They are not represented here and regularly they are used as a mudguard by a Government, who want to take every possible action except to introduce legislation.
Could we get back to the section?
I did not raise the Law Reform Commission. The Minister did. The Minister said he is trying to give young people a right. Black is not white. Subsection (1) says that it is hereby declared that no consent given by a 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. The clear implication is that, regardless of its complexity, that is a reason at present for declaring the consent to be invalid.
Regardless of the cumbersome nature of the procedure, at present a young person has the right to say: "The fact that I was a young person may mean that the consent I gave was invalid." That is the central fact. The Minister is now saying that no longer applies. Nothing else matters. It is not important whether it is the High Court or any other court. If the Minister was concerned about the legal complexities we would do it some other way. The way to deal with it is not to take away the right.
The Minister talked about giving a right to people. We do not give people rights. They have them and in this case apparently we are endeavouring to take them from young people. The High Court is not mentioned in this section nor is it in any way implicit that any aspect of the High Court's operations are relevant to it. All that is relevant is that for some reason the Minister has not given us, which he might purport to imply, evidence of concern about young people. If he was truly concerned about making sure that young people had homes he would do something about the actual cost of houses and building land, although I have no doubt that he would say that that is not his responsibility. This section does one thing and one thing only. It takes away from young people the right to say: "The fact that I have not reached the age of majority is a defence." That is what it does and no amount of gilding the lily will change that interpretation.
The Minister mentioned also other aspects of legislation arising from the change involved here as being too comprehensive an area to get into. I share that view, but I do want to ask one question which is very serious and important. It is in relation to consent given by a mother who wishes to have her child adopted. I would like the Minister to have his officials consider whether or not the change here has implications in relation to the rights of the parent, or the rights of the child, in regard to that kind of decision. The Minister may argue that the only thing at issue here is the consent under this Bill by a minor spouse to dispose of the family home. Eminent legal minds tell me that there may be implications for other areas of law. For example, people who are at present engaged in adopting, or in giving children for adoption, may run into serious consequences arising out of the fact that the fundamental change here is to downgrade or deprive young people of the right of action they now have based on their not having reached the age of majority.
That is the essential case and I do not think the Minister has answered it. The question of the mechanics of how that operates at present, the somewhat cumbersome difficulties young people experience in getting that consent, is a matter purely for mechanics. That could be dealt with very simply, if the Minister wishes and if he sees it as a problem. Indeed, the Minister for the Environment undertook in this House, in response to questions from other Deputies and myself, that there would be change in that area. It was ludicrous that, say, a boy or girl of 23, 24 or 25, and a girl of 20 years of age, or a boy of 20 years of age getting married found that they were getting unnecessary hassle from people simply because one or other had not reached the age of 21, a nonsensical situation. But the answer to that problem — and it is a problem — is not to say: "Well, in that case the easiest thing to do is no longer recognise the fact that you have not reached the age of majority as a reason for invalidating your cause of action." That is not the answer to it. There are many other answers to it and I can suggest them if the Minister so wishes.
The essential proposal in this section, no matter what way the Minister wishes to twist and turn, is spelled out in the first two lines and last two lines of the subsection which says:
...it is hereby declared that no consent given by a 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.
That is the nub of the issue and we oppose it because we believe it to be fundamentally inimical to the interests of young people. I have no doubt that if the Minister gives it adequate thought he will agree with that.
Is the section agreed?
No, it is not agreed. That was the subsection. Can I make a comment on subsection (2) if we have passed subsection (1)?
We are dealing with the whole section.
I would like to make a comment on subsection (2). I am disappointed that the Minister stonewalled on the first part of the section, but perhaps that was to be expected. With regard to subsection (2), does the Minister consider that some kind of time period would be important within which action should be taken? I mentioned initially the Family Home Protection Act, 1976, in that regard. The present position is that in a case where there are, or were, a number of conveyances since the coming into being of that 1976 Act, and if one of those earlier conveyances did not have the appropriate consent or, alternatively, had not some form of declaration to state that it was not a family home, then all the subsequent conveyances would be void.
That would appear to be the case. It might be wrong to say that this would have been due to the negligence of some previous solicitor on the title not having complied with the provisions of the Family Home Protection Act, 1976, and that he or she should not be held responsible for any error made on a previous conveyance of title simply because that 1976 Act perhaps was not well drafted. Regardless of the culpability of a solicitor the facts are that the question of consent with which we are now involved may have a detrimental effect on some subsequent conveyance of the house. The Family Home Protection Act, 1976, simply stated that, where a property was a family home within the meaning of the Family Home Protection Act, 1976, the consent of the spouse would be got. There is no provision in that Act putting the onus on the purchaser's solicitor to get a declaration and a State marriage certificate from the spouse so that she can prove that she is, or he is, the correct and the only spouse to give his or her consent to the sale. There must have been thousands of cases within 12 months of the coming into effect of the Family Home Protection Act, 1976, which simply had the consent of the spouse or the vendor endorsed on the deed and signed by the spouse without getting this additional requirement of the declaration exhibiting the State marriage certificate. In all of these cases, in future sales — and this is the point we are coming to — purchasers' solicitors will hold that the provisions of the Family Home Protection Act, 1976, have not been fully complied with as the consent of the spouse on the previous deed of conveyance was not sufficient within the declaration and the marriage certificate of the spouse.
Perhaps therefore a simple amendment of either the Family Home Protection Act, 1976, or of this Bill might be appropriate, whereby we would place on each spouse a limitation of perhaps three to six years to take any action or proceedings against the other spouse — personally I would say six years — or any claim for damages based on his or her case that the provisions of the Family Home Protection Act had not been complied with. This would mean that each purchaser's solicitor should not have to be concerned with any conveyance of property over six years old as to whether the provisions of the 1976 Act had been complied with.
The point essentially is that we are possibly interfering here with conveyances already undertaken and carried out and perhaps with their subsequent resale or reconveyancing. We might now enter into a situation in which we could question whether or not that was carried out properly arising out of the modification proposed to the right of action in this section, if that is not too complex. Perhaps the Minister would care to comment on that.
Subsection (2) of this section is just a simple declaration of the law in relation to consents given prior to the passing of this Act. Naturally the Deputy would find fault with it when he has disagreed with the contents of sub-section (1) and has failed to recognise the purpose for which the new right is being given.
The question of statutory limitations does not arise at all under this section because, as it is known, there is a statute of limitations which provides for limitations in various areas of law. Therefore, I am satisfied that subsection (2) is proper and correct in so far as it gives clear statutory validity to consents that were obtained either as a result of application to the court by the spouse or by a guardian on behalf of the spouse. What we are really doing is extending the provisions of the new right to situations in which consents were given before this Act came into existence.
I think we would have to agree to differ on that. But the essential point, as the Minister has said, is that this section is in part retrospective, it goes back over consents given before or after the passing of the 1976 Act. Therefore there may be grounds — and it has been represented to me that there are — for concern in regard to this retrospective area. Would it not therefore be worth considering the possibility of introducing some kind of termination date within which actions should have been initiated if they are to be initiated? Otherwise, you run the risk at some future date of having declared void all conveyances on a certain home. That is the risk when you get into the area of blandly making retrospective the contents of this section. However the Minister wishes to interpret it, it deprives young people of a defence they now have.
The purpose of the sub-section is to remove any possible doubt that might arise as to the sufficiency of these consents. For example, the Supreme Court on appeal could reverse the recent High Court decision and hold that the consent of a minor spouse was at all times sufficient for the purposes of the 1976 Act. If this were to happen doubts might arise in regard to a consent given by a court or a guardian on behalf of a spouse because the consent was not given as required by the 1976 Act by the spouse himself or herself. It is to ensure that no difficulties can arise that this declaration in law is being made.
I find it interesting that the Minister now invokes the possibility of reference to the Supreme Court as a defence or an answer to the question when previously he was saying that the right of action in the High Court was too cumbersome for young people. However, is not the Bill in part retrospective? Does it not refer to actions and consents given prior to the passing of this Bill?
It ensures, on a statutory basis, the validity of any consent given in the past where that consent could not be obtained in law because the new right given to young people in this Bill did not exist. Consequently, we are giving a retrospective validity in law to consents where they were obtained either by application of the spouse or by an application of the guardian to the High Court on behalf of the spouse.
The Minister, in admitting that there is some retrospection in this Bill, seems to assert that he is very satisfied that there will be no possibility of an action arising out of the deficiencies now existing possibly with regard to some conveyancing on account of this Bill?
I am satisfied so far as I can humanly anticipate.
Has the Minister consulted with representatives of the legal organisations?
All necessary consultations have taken place.
I did not ask that. That depends on the Minister's definition of "necessary".
It is a matter surely for the Government and the Minister to decide what we should do in these areas of consultation.
May I ask whether or not the Minister has consulted with the Incorporated Law Society and other representative legal organisations?
What has it to do with subsection (2)?
Section 10, as amended, agreed? We are having a lot of repetition on this.
You were fortunate enough not to be subjected to it.
I do not have to be in the House to hear what is going on. I have been listening to it for the past hour and we have a good deal of repetition.
I want to extract from the Minister, if possible, an indication of whether or not he consulted with the organisations I have referred to.
It has nothing to do with subsection (2) of the Bill.
I can take it then that the Minister did not. I want to enter on the record a caveat or warning that there may be problems arising from the point to which I have referred, the bland way in which a retrospective section is introduced in a Bill without full cognisance being taken of its implications or even what I would consider as the most rudimentary consultation with those whose job it is to know these things. That is symptomatic of the drafting and content of this Bill the fundamental effect of which is to do a major injury to the rights of young people. That is the sum total of it.
I am giving a right to them.
For the purposes of the record we do not agree with section 10 and we oppose it.