Vol. 362 No. 9
I move: "That the Bill be now read a Second Time."
Could the Minister for Justice give any indication as to what way the Government propose to deal with this Bill? In our view three hours would be sufficient for Second Stage but the rules for Private Members' Time provide for six hours. As this is largely a Committee Stage Bill we suggest that Private Members' Time today and tomorrow would be sufficient to deal with it.
Limerick East): I understand that the arrangement between the Whips is that the Bill will not finish tonight or tomorrow night as we have a number of speakers who wish to contribute.
That is not arranged between the Whips. We put forward the suggestion that three hours this week would be sufficient for Second Stage. Am I to take it that that is not acceptable to the Government and that they wish the Bill to take the full six hours on Second Stage?
(Limerick East): Yes, that is right.
One of the primary purposes of this Bill is to end a very blatant piece of discrimination against women which exists at present. It will also effect a general reform of the international aspects of Irish law.
The Bill, if enacted, will update our law in this area and make it better, more simple and easy to understand. The provisions of this Bill conform in general with proposals made by the Law Reform Commission and the action it proposes has been called for by many organisations and private citizens.
The general reform proposed is to abolish domicile as the basis for deciding which legal system will apply to an individual in cases where the individual may be subject to one or more different legal systems and to substitute in its place the test of habitual residence.
The discrimination against women which this Bill will eliminate arises from the concept of the dependent domicile of married women. As our law stands, a man is free to acquire a domicile of his own choice but the domicile of every married woman is automatically that of her husband. A married woman cannot change her domicile of her own volition and if her husband changes his domicile then he will automatically effect a change in her domicile as well. The married woman, in effect, has no say in the matter at all.
In our view the time has come for positive action and accordingly we have prepared this legislation, The Conflict of Laws Reform Bill, 1985, which we are now proposing should be enacted by the Oireachtas. After the Second Stage the Bill will be available for consideration by all interested parties and we will welcome comments on the proposals it contains.
"Domicile" is an artificial legal concept but it is of considerable importance in a number of areas of law. It constitutes a "connecting factor" or link between a person and legal system that will apply to him or her in a specific context. It determines the "personal law" of the individual and determines which legal system is to be applied in his or her case as regards:—
(1) Validity of marriage;
(2) Matrimonial causes, including jurisdiction in and recognition of foreign divorces, legal separations, nullity decrees;
(3) Legitimacy, legitimation and adoption;
(4) Succession to moveable property, and
(5) Taxation.
There are several types of domicile. First, there is the domicile of origin. Every person acquires at birth a domicile of origin. If a person is legitimate, he or she acquires the domicile of the father and otherwise that of the mother. Secondly, there is domicile of choice. Every male and unmarried female of full age is free to acquire a new domicile of choice in substitution for their existing domicile.
Thirdly, there is domicile of dependency. This form of domicile arises in a number of ways, the best known of which is the dependent domicile of the wife to which I already referred. This means that when a women marries, she automatically loses her existing domicile and acquires a domicile of dependency which is that of her husband. Even if both domiciles are the same and her domicile is, therefore, not changed by her marriage, she is henceforth treated as having a domicile by dependency on her husband rather than by reason of the basis, i.e., origin or choice, on which she previously had it.
A domicile of dependency also exists in the cases of unmarried minors. An unmarried minor cannot alter his or her domicile of origin of his or her own volition. However, if the parent from whom the minor acquired the domicile of origin changes his or her domicile then the minor's domicile also changes accordingly. Mentally disordered persons also have domiciles of dependency and are incapable of changing their domicile of their own volition.
In basic terms, the domicile of a person is the country where that person intends to reside permanently or at least indefinitely. It is a highly artificial concept as it is determined exclusively by reference to the intentions of the person regardless of how unrealistic those intentions might be. The factual aspects of the person's life are merely taken into account in order to establish the person's intentions. Thus, family history, where he or she resides, career or business activities, social interests and history are not treated as significant in themselves but are merely regarded as an indication of intentions.
Every person has at any given time one, and only one, domicile. In litigation where domicile is at issue, there is presumption in favour of the continuance of an existing domicile and the onus of proof lies on the party alleging a change. The standard of proof required to establish a change is higher if one is seeking to displace the domicile of origin than a domicile of choice. If a person abandons his or her domicile of choice without acquiring another domicile, then his domicile of origin is revised.
The present law has been criticised on many grounds. Because of its artificial nature, domicile often involves expensive and protracted litigation to determine. It is also a complicated concept not readily understood by lawyers, let alone the public.
The dependent domicile of the married woman was once described by an English Judge as "the last barbarous relic of a wife's servitude". Apart from the blatant denial of equality involved, the present situation can result in serious practical problems for married women. For example, a foreign divorce is only recognised here if it was obtained in the country of domicile of the husband. This means that if an Irish husband deserts his wife, goes to live in England, where he can readily obtain a divorce, establishes an English domicile and then divorces his wife, that divorce will be recognised here whether or not the wife was even consulted.
Such a wife would lose her right to maintenance and succession. If, however, that husband retained his Irish domicile and obtained a divorce in England based on his residence there, then the divorce would not be recognised here even if the wife had consented. In this latter case, the wife, under Irish law, would continue to retain the domicile of the husband, even if she never saw him again, and she would be regarded as incapable of acquiring a domicile of her own choice.
It should also be noted that, as a consequence of this basic discrimination, the domicile of the children of a married couple is always that of the father. This is the case where a wife and child are deserted by the husband before the child is even born. It remains the case even though a wife and children might never have visited, let alone resided in, the country of domicile of the husband.
Other aspects of the present law are also undesirable. For example, there is no logical basis for the rule that the domicile of origin is revived upon losing domicile of choice without acquiring another one. A person who had abandoned his or her domicile of choice without acquiring another domicile of choice might well intend never to return to the country of the domicile of origin and yet that domicile would revive in such circumstances.
Finally, most western countries have abandoned domicile as a connecting factor and this is reflected in various international conventions.
On 17 September 1981, the Law Reform Commission produced a working paper entitled "Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws". In that paper, the commission produced a detailed examination of the basis for selecting the appropriate legal system to apply to any case where more than one such system could be applicable. The commission suggested that domicile be replaced in Irish law by habitual residence. Having invited submissions from interested parties, the commission repeated this view in their final report on the subject which was transmitted to the Government on 14 December 1983.
In selecting "habitual residence" as the test to replace "domicile" the commission had considered but decided against using "nationality" as the new test. In doing so, we feel that the commission were correct. It is true that a person's nationality is usually easy to establish but there are several arguments against nationality as the appropriate test. Specifically, a person will always have a real connection with the place where he or she intends to reside indefinitely or reside habitually. A person might not have any real connection with the country of his nationality. Furthermore, a person can only have one domicile or, by definition, habitually reside in only one country but could have dual nationality.
In addition, the concept of nationality does not take into account federal structures and would not be sufficiently particular to deal with the cases of nationals of political entities comprising several States with different laws, the United States of America being an obvious example.
We also feel that the commission were correct in their decision to select habitual residence as the appropriate test. It is the concept adopted by most international conventions. To ascertain a person's habitual residence involves a much simpler inquiry than to establish domicile. The habitual residence of a person is a factual matter whereas his domicile is purely a legal concept.
The test of habitual residence is also desirable as it does not involve any concept similar to domicile of dependency. The replacement of domicile by habitual residence as the appropriate test or, as lawyers say, "connecting factor", would, therefore, end the discrimination against women to which I have already referred.
It is worth noting that habitual residence has already been adopted as a connecting factor in Irish legislation, in a limited way, in Part 8 of the Succession Act, 1965.
I will now turn to the main implications of the reform proposed in this Bill. The most significant implication is that this reform will necessitate changes as regards the basis on which foreign divorces are recognised under Irish law. As the domicile of dependency of the married woman, which this Bill will abolish, ensures that both spouses are always domiciled in the same country, and also that dual domicile is the only basis on which foreign divorces are now recognised, the fact that a wife is now to be capable of habitually residing in a country different from that in which her husband habitually resides means that new criteria for the recognition under Irish law of foreign divorces are required. Most western countries subscribed to The Hague Convention on the Recognition of Divorces and Legal Separations and it is desirable that in so far as it is compatible with our own domestic law we subscribe to the principles laid down in that international convention.
This whole area was also considered by the Law Reform Commission in their working paper entitled "Recognition of Foreign Divorces and Legal Separations" No. 11 of 1984. A similarly entitled final report — No. 10 of 1985 — was transmitted by the commission to the Government on 17 April 1985.
Here let me interject something I did not have the opportunity of saying today, namely, that the reports of the Law Reform Commission that we got in our post this morning may be the last of such reports if this Government do not mend their ways. I am sure the Chair will be interested to know that the remit of the members of the commission expired in October and since then nobody has been appointed to the commission. We have now an empty shell as a commission. We have a statutory entity called the Law Reform Commission but there is nobody on it. That is indicative of the attitude of this Government towards law reform. In effect, they are prepared to let the Law Reform Commission negative themselves in this way.
Basically, the commission proposed that as regards persons who do not have close connections with this country, the basis of recognition of foreign divorces ought to be that laid down in The Hague convention. Section 12 of this Bill gives effect to that proposal.
In cases involving Irish citizens however, the commission recommended a different rule. If both parties were habitually resident in the country which granted the divorce, then obviously it should be recognised and paragraph (a) of section 11(1) of this Bill so provides.
If, however, only one of the parties was so resident, then the divorce should be recognised only if the other party submitted to the jurisdiction of the foreign court. It can hardly be disputed that if one spouse is resident in Ireland and the other spouse is resident in some foreign country then two legal systems are involved with equal claims to pre-eminence. There is, however, a primary obligation on this House to ensure the welfare of everybody residing in Ireland and, therefore, nobody residing in Ireland should be obliged to submit to the jurisdiction of a foreign court unless they so wish. If, on the other hand, they wish to accept the jurisdiction of that foreign court then there is no good reason in such circumstances why they should not be allowed to do so.
It is also essential that this House should not enact legislation which could be perceived as encouraging the evasion of our domestic law. Accordingly, foreign divorces obtained for the purpose of evading Irish law should not be recognised and a proposal to this effect is also contained in section 11. The section, however, also contains a presumption, until the contrary is shown, that a foreign decree is not obtained for the purpose of evading domestic law. I emphasise this because it is important.
On the whole, this Bill is intended to give effect to the proposals of the Law Reform Commission contained in the two reports to which I have already referred. We have sought, however, to improve upon the recommendations of the commission and feel that this Bill represents such an improvement is a number of respects.
Firstly, the commission suggested that a person's habitual residence be determined having regard to the "centre of his personal, social and economic interests". We feel that the word "centre" is somewhat vague and the "centre" of such interests might be difficult to establish. It is even arguable that a person's personal, social and economic interests might be "centred" in more than one State.
In section 5 of this Bill we propose an alternative formula, namely that habitual residence be determined having regard to the "primary location" of a person's "personal, family, social and economic interests". Basically, we are substituting "primary location" for "centre" in that context. We feel that it is desirable that the family interests be taken into account as well as his personal, social and economic interests.
In their final report on recognition of foreign divorces and legal separations, the commission recommended that the new basis for recognition of such foreign decrees should apply only to divorces obtained after the coming into force of the new law. There are arguments on both sides of this question but having considered the issue we disagree with the commission. The argument against the commission's view in this respect was most succinctly expressed by the English and Scottish Law Commissions, when considering the same question, as follows: "It would be both capricious and anomalous for the law to say that it would recognise a decree if granted today but not if granted tomorrow." Of course, where the question of the validity of a decree has already been decided by the courts the matter should so stand. Section 14 of the Bill so provides.
The Bill is also intended to end other anomalies contained in the present law. With regard to adopted children, the commission found that "the general view is that the domicile of origin of the child is that of his or her natural father or mother." This represents a most unsatisfactory state of affairs as it undermines and runs contrary to the general policy of adoption which is to create a new parent-child relationship. Section 6 (3) of this Bill would place adoptive parents in precisely the same position as natural parents for the purpose of determining the habitual residence of children.
The Bill is also intended to clarify the position as regards the rights to maintenance, succession and financial assistance by the State of a married person resident in this country whose spouse has obtained a foreign divorce not recognised in this country. Section 16 protects the rights of such spouses resident in this country.
The measures proposed in this Bill are long overdue. It is unacceptable that such blatant discrimination against women should still exist under our law in 1985. It is regrettable that we have failed to keep our international law apace with modern developments and reforms. It is unfortunate that until now we have been unable to subscribe to many international conventions.
The primary obligation to legislate rests on the Government of the day, but I believe that it is also open to the Opposition to take initiatives in this area. In preparing and introducing this Bill we are taking such an initiative. It is hoped that the Government will see fit to assist us in ensuring the passage of this Bill, and I assure them that we will consider fully any proposals they might wish to make as regards any of the specific proposals contained in the Bill.
I believe that there is widespread support for this piece of legislation. I believe also that there is a pressing need for much more law reform. There is a great deal that can be and should be done. I sincerely hope that as regards law reform this House, to the greatest extent possible, can go forward in an objective, constructive and progressive way without regard to any party political considerations.
Fianna Fáil wish to see every vestige of discrimination against Irish women that still exists in the Irish legal system removed so that women will have full and complete equality with men before the law. We will direct our efforts consistently towards achieving that objective.
This piece of legislation deals only with one area of the law but it is a particularly blatant instance of discrimination and the Bill represents not a major step, but a significant step in the right direction.
Limerick East): While the Government agree with the main purpose of this Bill, which I take from comments made by the sponsors reported in the media to be the elimination of discrimination against women, the Government are opposing this Bill. The Government have proposals of their own which are being drafted at the moment and will be circulated tomorrow.
Could we have a copy of the Minister's speech?
(Limerick East): Copies are being brought along now.
It is a complicated matter. The Government have better resources than the Opposition, and we could follow the Minister more easily if we had copies.
(Limerick East): I could have followed the Deputy more easily if I had a copy of his speech. The main purpose of the proposal before the House, which is to get rid of the domicile of dependency of married women and treat men and women equally in regard to domicile, is perhaps easy to comprehend but the concepts and issues involved are complicated and I wish to deal with the matter in some detail.
The proposal revolves around domicile. This is a legal concept, some would say a rather artificial legal concept in some ways. In very broad terms a person's domicile is where his permanent home is but that description conceals as much as it reveals, and the complexities may be illustrated by the fact that it has been said that essentially domicile is a state of mind. Everybody acquires a domicile of origin at birth and that domicile remains with him until he changes it by going to another country with the intention of residing there permanently or indefinitely. Under the existing law a married woman takes the domicile of her husband and this produces some rather odd effects.
For example, a married woman may find herself domiciled in the country in which her husband was originally domiciled, in which she and her husband are not living, which she has not visited and which she may never visit. Despite that, situations may arise in which her legal affairs may fall to be regulated by the laws of that country. I may add that minor children and mentally disturbed persons are others to whom the law attributes a domicile of dependency. There are, of course, obvious reasons why children and mentally disturbed persons are made the subject of a dependent domicile, but very few people would argue nowadays that it is appropriate that a married woman should be treated similarly.
The purpose of domicile is to connect a person with a specific legal system. This generally means a specific country, but since there are composite States which embrace within them different territorial units in which different systems of law apply, the connection will be with such a territorial unit. One obvious example of such a composite State is the USA, in which each State represents a separate legal jurisdiction.
Connection with a specific legal system becomes important when people find themselves in situations in which they or their affairs have links with different countries and different legal systems. It may then become necessary to determine which country's courts and laws are the appropriate courts and laws to regulate their legal status. This can happen in many areas of the law, for example, taxation, succession, marriage, recognition of foreign court orders, etc.
In the common law systems, domicile is the test commonly used to connect a person with his appropriate legal system, but there are other possible tests. Nationality is used in many countries, particularly civil law countries, and habitual residence is coming into greater use in the laws of many jurisdictions as the connecting factor in relation to specific areas of the law. A concept of domicile is used in some civil law systems, but as used in those systems the concept is totally different from the common law concept and generally equates more with residence or habitual residence. I may say that the concept of habitual residence already appears in our law in the Succession Act, 1965 — validity of a will as regards form — and in the Air Navigation and Transport Act, 1973, in which it is used as a connecting factor in regard to criminal offences under that legislation.
The matters dealt with in the Bill are all matters which have been the subject of working papers and reports of the Law Reform Commission. In a working paper published in 1981 the Law Reform commission discussed and considered the relative merits of the various connecting factors that are used for the purposes of conflict of laws, that is, nationality, domicile and habitual residence. After an extensive analysis they came down provisionally in favour of the replacement of domicile by habitual residence as a general connecting factor over the whole area of law, whereas heretofore domicile is the connecting factor used. In a final report on the subject, while they were of opinion that neither domicile nor habitual residence afforded totally satisfactory solutions in every case, they reiterated their provisional conclusions. In addition, they drew up the general scheme of a Bill on the basis of their detailed recommendations and that general scheme was such as would enable this country to ratify the Hague Convention on the recognition of foreign divorces and legal separations.
Any reform of our law of domicile could not fail to take account of that aspect of our law which I have referred to and which has caused so much comment and given rise to so much criticism in recent times — her domicile is deemed to be that of her husband even if the couple are separated and even if the wife had never lived in the husband's country of domicile and had no intention of doing so. It is common cause with us all that that rule, however much it may be claimed to have been appropriate in the circumstances of the times when it was first formulated, is wholly out of tune with modern ideas. In the colourful phrase of Lord Denning, already quoted by Deputy Haughey, it is the last barbarous relic of a wife's servitude.
I may say that the question was not always seen in this fashion. In a report published as recently as the middle fifties by the English Private International Law Committee, the conclusion reached was that the disadvantages of abolishing the wife's domicile of dependency outweighted the advantages, and the committee did not recommend abolition. A subsequent committee took the other view and the position of married women was equated to men in regard to domicile in England in 1973.
For the majority of women, of course, the matter does not create practical problems and most women, I would imagine, like most men also, probably live their lives unaware of the fact that there is something called domicile attributed to them by the law which will come into play in certain legal circumstances to govern their legal status. Indeed, I understand that many people think that domicile means merely the ability to choose a place of residence and do not appreciate that, as I have explained, it is a technical and legal concept the purpose of which is not to determine where a person lives but to determine what laws will apply to a person's affairs.
However, as I have mentioned there are circumstances in which the question of domicile becomes of critical importance. It is probably the case that with the greater mobility between countries of persons nowadays situations in which domicile becomes of importance are increasingly more likely to arise.
One crucial area in which domicile plays a part relates to the question of recognition of foreign divorces. The present rule of Irish law is commonly stated to be that a divorce obtained in a foreign country will be recognised by the Irish courts if it was obtained in the country where both spouses were domiciled at the date of institution of the proceedings. Since the domicile of the wife is deemed to be that of the husband the rule as stated would mean in practice that an Irish court will recognise a foreign divorce if granted in the country where the husband was domiciled. But that is not the end of the matter. There is a doubt, and I would suggest a very subtantial doubt, as to the constitutionality of that rule. In the case of Gaffney v. Gaffney, Judge Walsh pointed out that it was "possible that some day (the rule) may be challenged on constitutional grounds in a case in which the wife had never physically left her domicile of origin while her deserting husband may have established a domicile in another jurisdiction".
I may mention that there is some doubt also as to whether the rule of recognition I have quoted is complemented by another rule which was part of the common law when the State was founded and could therefore be said to have been carried forward into our law as being a law not inconsistent with the Constitution. That is a rule that was laid down in the English 1906 case of Armitage v A.G. and was to the effect that a divorce would also be recognised if while not granted in the country of domicile, it would be recognised in that country. That rule was laid down at a time when a married women in England still had the domicile of her husband so that in effect the rule meant that a divorce would be recognised if it was entitled to recognition in the husband's domicile. The reason I say there is a doubt as to whether this rule is part of our law is simply that the specific point has not been raised and decided upon by an Irish court.
The Law Reform Commission were of course alive to the implications for the recognition of foreign divorces of their recommendations in regard to domicile and habitual residence. They mentioned in their report on domicile, two views of what the law would be in the new situation where the domicile of dependency of married women had disappeared as a result of substituting habitural residence for domicile.
On one view a foreign divorce would be recognised here only where both spouses were habitually resident in the foreign country. On another view a lacuna would be left in the law as to recognition of foreign divorces because the present rule is premised on the suggestion that the husband and wife will always have a common domicile so that it could not be regarded as still applying in a situation where this supposition could no longer be made.
The implications of this are that, once the domicile of dependency of a married women is abolished, something must be done also about the rules of recognition of foreign divorces. In the absence of specific legislative provisions there would be no way short of expensive and longdrawn out litigation of establishing how an existing rule linked to the concept of a single domicile for the two parties would be applied or adapted in circumstances where husband and wife had, as the case may be, separate domiciles or separate habitual residence.
The Law Reform Commission were, as I have indicated, conscious of the close relationship between their proposals and the recognition of foreign divorces and accordingly embarked on an examination of what rules or recognition should apply in the new situation which would obtain if their basic recommendation to substitute habitual residence for domicile were accepted. The fruits of that examination were a comprehensive working paper on the recognition of foreign divorces and legal separations, published in 1984, and a final report on the matter which reiterated the recommendations in their working paper and which was published earlier this year. That report contains a comprehensive set of rules to henceforth govern the recognition of foreign divorces and legal separations, which with some modifications were based on the provisions of the Hague Convention on the recognition of foreign divorces and legal separations and would have the incidental effect of enabling that convention to be ratified by Ireland.
The working papers and reports of the Law Reform Commission which I have mentioned are extremely detailed and comprehensive. I should like to take this opportunity to express the appreciation of the Government for the work which the commission have done in elucidating the various issues that are involved.
There is one aspect of the whole matter which was of special concern to the Law Reform Commission and which must be of concern to all who came to consider and deal with the question. That arises from the fact that the Constitution contains a prohibition against the enactment of any law providing for the dissolution of marriage. This basic rule of our internal law has obvious implications in regard to any proposals for the recogition of foreign divorce. Because of it, the commission considered that it would be very difficult to justify very liberal rules of recognition which would allow divorces obtained abroad by persons with close connections with Ireland to be recognised. To have such rules might well be held to be an attempt to circumvent the constitutional provision. Because of this the commission proposed that special rules should apply in the case of persons with close connections with Ireland. I venture to say that that appears to me to be the proper approach to adopt within our constitutional context at the moment if we are engaged in a fundamental restructuring and extension of the rules of recognition of foreign divorces, but that does not mean that there is not room for argument as to what test of close connection should be adopted.
The Bill before the House is, as acknowledged by the sponsor of the Bill, closely modelled on the Law Reform Commission reports on domicile and habitual residence as connecting factors in the conflict of laws and on the recognition of foreign divorces and legal separation.
Since we are opposing the Bill for reasons which I will explain, I do not intend to discuss it in any considerable detail but there are some general remarks I think I should make. While it is, as I have indicated, modelled on the Law Reform Commission reports there are some important differences and there are aspects which would have to be looked at very carefully.
The Bill would apply to decrees of nullity of marriage in the same way as it would apply of decrees of divorce. There are very great differences between the considerations that arise in regard to the recognition of decrees annulling a marriage as compared with decrees of divorce and the matter is complicated by the fact that in the area of nullity there are void marriages which were never marriages from the very beginning and voidable marriages which can be voided on the application of a party to the marriage but which, until that happens, are valid subsisting marriages.
It is of interest that the Law Reform Commission have recently published a report on jurisdiction in proceedings for nullity of marriage, recognition of foreign nullity decrees and the 1978 Hague Convention on the Celebration and Recognition of the Validity of Marriage. They regard that question of the recognition of foreign decrees of nullity of marriage as a difficult subject and they made detailed recommendations on what the rules of recognition should be. This shows clearly that the subject of the nullity is a subject that must be dealt with separately from divorce.
The Bill is silent as to its effects on taxation law. Domicile is a concept that has relevance in that area and any change from domicile to hibitul residence would have serious implications for taxation law which would have to be fully identified and considered carefully. It is not without significance that when changes in the law of domicile were mooted some years ago in Britain, they could not be proceeded with because of opposition from people, chiefly foreign businessmen in London who feared that their tax situation would be drastically changed. Various committees which looked at the problem had great difficulty in suggesting solutions.
Another matter to which I should like to refer is a matter which was of special concern to the Law Reform Commission. They took the view, and as I have indicated they seem to me to be correct in taking that view, that because of the constitutional prohibition on the enactment of any law to provide for the dissolution of marriage, special rules should apply in relation to divorces obtained by persons closely connected with Ireland. If very liberal rules were applied in these cases, they could be held to be a circumvention of the constitutional provision. The commission were concerned at the possibility of attempts to evade these rules.
The commission proposed that for recognition purposes a person should be regarded as habitually resident in the State who having been habitually residence here, has temporarily ceased to reside here and has acquired a temporarily residence abroad for the primary purpose of obtaining a foreign divorce. The purpose of that recommendation is to refuse recognition where the residence abroad is only a temporary residence acquired with evasive intent in order to obtain a foreign divorce for which recognition would be sought here. The proposal envisaged that in those particular cases, that is, cases of persons with close connections with Ireland, an Irish court's concept of habitual residence, as thus elaborated on for divorce recognition purposes would if necessary take precedence over the concept of habitual residence employed by the foreign court for the purpose of founding its own divorce jurisdiction.
The Bill addresses itself to the question of persons with close connections with Ireland in section 11 and to the problem of evasion. I cannot say that I find the approach in the Bill very satisfactory. It provides that a person seeking recognition would have to show that the decree was not obtained for the purpose of evading the laws in force in the state of habitual residence. I feel there would be very real problems in the practical application of that provision.
Linked to that is a later provision under which a foreign court's finding concerning the domicile or habitual residence of a party would be binding on an Irish court subject to the provision about evasion I have mentioned. This would run into the difficulties which I see as arising from the practical application of the evasion provision. There is a great fear here of a back-door introduction of divorce legislation by a combination of sections 15 and 11 of the Bill.
The whole question of persons with close connections with Ireland would have to be looked at very carefully. There are some objections which I see to the Law Reform Commission's recommendations also and the matter would have to be examined thoroughly.
There are a number of other provisions of the Bill that would require to be looked at closely. I think it is fair to say that the sponsors of the Bill, to judge from their statements as reported in the newspapers, see the principal purpose and justification of their Bill as the elimination of discrimination against women, specifically the elimination of the domicile of dependency of married women and the creation of a situation where a married woman will have the same powers as a man, married or single, or as a single woman to determine by her own acts and intentions her own domicile. As I have indicated already, that is a purpose with which the Government fully and totally agree.
There are a number of ways in which that purpose can be achieved. One approach is to confine attention simply to the change that is desired and any necessary consequential changes. This means that the rule whereby the domicile of dependency exists is simply abolished within the general concept of domicile, as it has always applied and which would be retained, and make changes in the rules of recognition limited to what is necessary to ensure that no lacuna is created in the law by abolition of the rule of dependency. Another approach, which is that which the Law Reform Commission proposed and the Bill follows, is to tackle the question in a much wider context and to make the changes in the course of a fundamental review of the nature and scope of domicile as a connecting factor and of a fundamental restructuring of the whole recognition of foreign divorces.
The Government, which have had the whole question of domicile, and in particular the domicile of dependency of married women, under consideration for some time, have decided that the first of these approaches is the course they wish to follow at this moment and will be circulating a Bill very shortly to give effect to their decision. This Bill will be published tomorrow.
The Government Bill will remove from our law the rule that a married woman takes the domicile of her husband. It will deal with some necessary consequential changes affecting children in cases where the spouses are living apart and with the position of a married woman who at the passing of the act is deemed to have the domicile of her husband. It will also clarify the position in relation to the recognition of foreign divorces in the new situation but it will not include a wide extension of the rules of recognition.
In effect, the Government measure will meet the demand for the removal of the discriminatory domicile of dependence rule and in doing that they will achieve what I have suggested is the principal purpose behind the Bill which is now before the House.
The reason why the Government have chosen this course is simply that we do not regard the present time as opportune or appropriate to undertake a wide ranging review of the rules of recognition of foreign divorces. As Deputies will be very much aware, the whole policy of the law in regard to divorce is undergoing debate at the moment and we as parliamentarians are in the course of settling the more fundamental question of what the attitude of our law should be in this important area in the light of increasing demands being made for change. No one can say at the moment, because fundamentally the decision is one for the people to make, what the outcome of that debate will be or what will be the nature of the change, if change there must be.
In that context it seems to the Government that it is inappropriate to consider making far-reaching changes in the rules of recognition of foreign divorces, which because of the constitutional provision must be regarded as a matter ultimately tied up with internal policy on divorce, and whether we should have more liberal rules of recognition is a matter with obvious implications for the basic attitude of the law towards divorce. It seems to us that until final decisions are come in regard to our internal law we should not concern ourselves with changes in the rules of recognition of foreign divorces beyond those changes which I have already pointed out must follow as a consequence of the abolition of the domicile of dependency.
Any more fundamental and extensive changes made now would have to be such as to reflect the present constitutional context within which they would operate and would almost certainly have to be looked at afresh if the constitutional context came to be changed. In these circumstances the Government think that the wisest course is to limit the changes to be made in the rules or recognition of foreign divorces to those changes which, as I have already explained, must unavoidably be made once the domicile of dependency is abolished.
I would like to stress that this does not mean that the Government have rejected the recommendations in the two reports of the Law Reform Commission which largely form the basis of the Bill before the House. For the reason I have given, the general question of replacing domicile by habitual residence as a general connecting factor in our rules of private international law, and of rewriting our rules of recognition of foreign divorces and legal separation on a wider and extensive basis and in a way which would permit ratification of The Hague Convention on the subject, is being left for another day and will be taken up when we have settled, one way or another, the policy on whether divorce should be made available here. The principal purpose of the Government Bill is to eliminate the domicile of dependency of married women and will not enable The Hague Convention to be ratified. We will look at that later.
As I have made clear already, we are opposing this Bill.
Throughout his speech the Minister said he would be bringing in the Government's Bill tomorrow and he told us the line it would take. Why spend six hours debating this Bill when we will be having the same debate on the Government's Bill tomorrow? I would like to hear the Minister's views on this because there appears to be a more natural way to go about ordering business than the contrived way the Government have set about taking this debate. I understand that the word has gone out from the Government parties that we moved on this Bill only in the last six weeks when we heard the Government were introducing their Bill. We do not want to say this is our Bill and that that is the Government's Bill, because that is very childish, but we brought forward our Bill because this very necessary legislation needed to be introduced. We wanted the areas of inequality in law as they affect women to be tackled first, and others would follow. I want to put on the record an extract from The Irish Times of Monday, 29 July 1985. This extract came from a speech I made. I am not quoting from my own speech to get notice but to explain that Fianna Fáil, and in particular the women's committee, have had this measure in mind for quite some time. The quotation reads:
In conjunction with these conferences, a study research group has been set to examine areas in which the committee has identified legal discrimination against women. These include the legal domicile of wives, still regarded as that of their husbands; the Married Property Act and the provision of preschool facilities for children.
I want to make it clear to the media and to the public that we took this initiative as far back as 1981. Fianna Fáil in office then were conscious of this legal discrimination and were already making important moves to offset it.
On Monday 7 October last The Irish Press reported on a national Fianna Fáil women's conference held in Cork on Saturday 5 October and said: under the headline “Haughey Critical of Law on Domicile:”
A reform of the law on domicile should receive urgent priority, the Leader of Fianna Fáil, Mr. Haughey, told the party's women's conference in Cork on Saturday night.
The current law of domicile "obviously and blatantly discriminates against women."
Both reports show that we were not Johnny come latelies in exploring this legislation. I understand the Government indicated to the press today that we decided on this Bill when we heard their statement of five weeks ago. That is not true. We were very conscious that 1985 ends the UN declared decade to end discrimination against women. This law of domicile for wives is one of the unresolved areas here. Some weeks ago Deputy Taylor put a question to the Minister of State, Deputy Fennell, asking her when this area of discrimination would be ended. As we were concluding our research and getting our Bill ready for publication naturally I was interested and asked a supplementary and in reply was told that it would be some time before a Government Bill would be brought in.
This law on domicile for wives was one of the reasons why Ireland could not sign the UN declared decade to end discrimination against women. If we are to sign this declaration soon it will be because of the initiative taken by this party which has galvanised the Government to produce a Bill. It should be a matter of agreement. The Government of the day should not say that we have snaffled their Bill because we have not. The Minister gave tacit recognition to this tonight in the House when he said that the Government Bill is different from ours.
In passing, I wish good health and recovery to the Minister of State and would ask the Minister for Justice to convey our good wishes to her, as we have heard that she has not been well.
In the agenda for practical action which the Minister of State published some 12 months ago, she identified this as being an area of urgent priority. I noticed that both Deputy Haughey and the Minister for Justice quoted Lord Denning in their speeches — a vivid and strong quotation, with which every woman would identify. In the words of Lord Denning, our law is the last barbarous relic of a wife's servitude. The very word "dependency" has connotations of servitude or of being property unable to express anything without the approval of the person deemed to be superior.
When we set out our committee's objectives last July I received interesting correspondence from the Women's Political Association, various other groupings and other individuals who identified with this issue not because it would immediately affect them but because they identified with the psychological impact of the fact that one could be a dependent of one's spouse because of the nature of our domicile law. Our law includes a concept of domicile which, as well as being complicated and based on an artificial legal concept often involving expensive and protracted litigation, discriminates against women in that when a woman marries she automatically loses her own domicile and acquires the domicile of dependency, that of her husband. Domicile determines which legal system is to be used in relation to taxation, succession to moveable property, legitimacy and adoption.
The provisions made in our Bill in relation to adoption are very important. The absurdity of linking adopted children to their natural parents is obvious, when the thrust of adoption is to include the child in the new family and domicile him with that family. I am glad we saw fit to put that provision in our Bill. We also include provisions relating to validity of marriage, matrimonial causes including jurisdiction in the recognition of foreign divorces, legal separations, nullity decrees and so on. Our Bill proposes to abolish the concept of domicile and replace it with habitual residence which will be determined by having regard to the primary location of one's personal family, social and economic interests.
Habitual residence is the concept adopted by most international conventions and is much more simple to ascertain then domicile. Most importantly, a married woman will have an habitual residence of her own which may or may not be the same as that of her husband. Among other things our Bill will change the basis on which foreign divorces are recognised. Under the present law if a husband deserts his wife and goes to reside in Britain and obtains an English divorce based on his new domicile, his wife has no choice but to accept the divorce even if she was never informed of the proceedings. There is something very degrading about that set of circumstances. Whilst the Minister's Bill purports to be simpler and to leave out any discussion of wider issues in relation to the recognition of foreign divorces——
(Limerick East): It does not.
——and whilst the main thrust of the Bill is to remove the implied psychological discrimination against women, under our proposed legislation in such a case, as the wife will have her habitual residence in Ireland, she can if she wishes submit to the jurisdiction of the British court and accept that decree of divorce or she may refuse to do so and will then continue to be treated as a married woman under Irish law. The most important thing is that the choice will be hers as to whether or not to agree. The Minister said that this Bill will be circulated in the House tomorrow. Perhaps before the next speaker begins the Minister would let us know what he proposes. If he is bringing his Bill in to the House tomorrow then what is to be the position vis-à-vis tomorrow evening's debate on our Bill and next week's debate on our Bill? I understand there will be two evenings devoted to it again. We will be very pleased if we can continue debating our Bill, but only on the clear understanding that our Bill will then be put to a vote and will assume priority over the Minister's Bill. Certainly, we would need to know that. Otherwise, we are placed in the ridiculous position that we will have approximately six hours debate on our Bill, and presumably, either simultaneously or at another time, there will be perhaps a further six hours debate on the Minister's Bill.
On Committee Stage our Bill lends itself to discussion of various amendments. Before we ever knew the Minister was proposing to introduce his Bill, Deputy Haughey, on the Order of Business today and later when this debate commenced, asked if our Bill could be treated in this fashion. We were not told exactly what was our position or what would happen. In the light of the fact that the Government parties have decided to bring forward their Bill, perhaps the Minister would give us a clear answer, because it is a matter of great importance.
I view the present legislative position on domicile as discriminatory against women. There are so many areas of discrimination against women. It is indeed sad if we, or any political party, cannot see fit to address these inequities. If we do so we then move on to attack other inequities in law as they pertain to women. There is much reporting of what is wrong with the status of women, of what is wrong in people's perceptions of their concern about women, about how people perceive women. When one views the law of domicile at present in this country there is implicit in it a clear recognition that women are dependent on their husbands. That element of dependency is one we seek to remove by way of the provisions of this Bill. I recommend the Bill and hope it will receive favourable welcome from all sides of the House.
I might first welcome the fact that we are given an opportunity to discuss this issue. I say that as someone who for many years is on record as seeking change in the law in this area. I welcome the fact that we have some form of Bill before the House, albeit one I see as being grossly defective, one that is philosophically hide-bound into a supposition that the prohibition on divorce currently contained in the Constitution will remain forever more.
Before dealing with the specifics of the Bill, like everyone in this House I recognise the need to get rid of the concept of the domicile of dependency of a married woman. It never ceased to astound me for many years before my involvement in political life that previous Governments, going back to the 1960s and 1970s, never had the foresight, interest or commitment to tackle this area. I welcome the newly discovered interest in this area on the part of the Fianna Fáil Party, who during their years in office never displayed the remotest commitment or desire to tackle this outdated legal concept. The concept of domicile and its anomalies have been well discussed by the Leader of the Opposition in his opening remarks, by the Minister for Justice, and Deputy O'Rourke also referred to some of them. There are other anomalies that arise of a legally technical nature and into which I do not think there is any need to go at present. My view would be that there is a need to reform this area. There is a need to abolish the concept of a wife's domicile of dependency. I recognise also that there is a need to tackle the anomalies in the law as they relate to a child's dependent domicile vis-à-vis the father. Apparently, when a marriage breaks down, a child, though residing with the mother, may under Irish law still retain a domicile dependent on a father with whom he may not be living and who may be living in a country that the child in its entire life has not visited.
Certainly, there is a need to reform this area. The Minister referred to the decision of the Supreme Court in the case of Gaffney and Gaffney, the 1975 Irish Reports, in which Mr. Justice Walsh indicated that, in his view, in an appropriate case the whole concept of a wife's domicile of dependency was open to constitutional objection. It is interesting to note that in the ten years since that case and those remarks of Mr. Justice Walsh — who made an outstanding contribution to the development of constitutional jurisprudence in this country — there have been further cases dealing with this area that have come before our courts and in which the courts still adhered to the view that a wife's domicile of dependency remained.
I am on record and have supported for many years the need for reform in this area. I believe there is a need for reform in this area. The Law Reform Commission in their report — circulated only yesterday — dealing both with domicile and recognition of foreign divorces and other related maters, have done us a service in reporting comprehensively on a very technical area of law.
As a general view I would also support the idea that we move from the concept of domicile as we have known it. I do not care whether we call it habitual residence or simply call it domicile and redefine the meaning of the term "domicile". I do not think that matters greatly. The Law Reform Commission talked about the need to adopt the concept of habitual residence. I believe that is adoptable. But if we adhere to using the term "domicile" and simply remove the anomalous nature of some of the rules relating to domicile, that would be equally satisfactory.
Where I take profound objection to this Bill, where the major problem with this Bill arises, is in the curious approach that is to be found in sections 11 and 12, an approach to Irish law that is not to be found in the jurisprudence of this country in any other legislation enacted by the Oireachtas since the foundation of the State. It has been the practice of the Dáil and Seanad, acting as the two Houses of the Legislature, to enact laws that apply to people living in this country irrespective of the nationality except in the very particular area in relation to our electoral laws where we were constitutionally hide-bound but where we made a change recently to extend the possibility of the vote to British nationals and others residing in Ireland. But, as a general proposition of our domestic law, we have always passed laws, be they laws relating to agriculture, industry, a wide variety of areas——
Land.
All our family law applies effectively to Irish citizens and non-Irish citizens residing in this country. Never in the area of Irish family law or in family life in a legislative context have we tried to distinguish between the position domestically within this jurisdiction of the Irish citizen, the British citizen, the German citizen or the French citizen.
But the Deputy said agriculture.
One would expect in the eighties, when we are now part of the EC and when there is a greater degree of movability in the workforce between member states of the EC, when we have an increasing number of foreign nationals within this jurisdiction, that we would not seek to enact legislation that effectively seeks to provide another example of an Irish solution to an Irish problem.
We have it in land tenure.
This legislation in so far as it applies to the area of divorce is seeking to provide a system of dual recognition of divorces and a liberal regime of recognition for any non-Irish citizen who has resided in this country no matter whether he has resided here for six months, six years or 60 years. If I am a British national who has resided in Ireland for 30 years and I am married to an Irish citizen, because my wife as an Irish citizen can at any stage take up British nationality I will be party to a marriage that is potentially dissolvable, that can be dissolved by the English courts and the dissolution of which will be validly recognised in this country. If as an Irish citizen I marry another Irish citizen I will not have the same freedom in the context of dissolving my marriage if is breaks down.
I am not favouring one approach or the other at this moment, but I do not understand why in our domestic legislation we should provide a set of nationalistically discriminatory laws which seek to provide a wide freedom — maybe it is right that we provide that freedom — to all non-Irish citizens who are married. It is a freedom that you could extend where an Irish citizen is married to an non-Irish citizen, a wide freedom to obtain foreign decrees of divorce which will be recognised domestically, and then you seek to provide a restrictive law which curtails extending a similar entitlement to people who are seeking a divorce in the context of Irish citizens.
It is a very curious approach to adopt and the rationale behind it is related — and was related in the Law Reform Commission report — to the existence within our Constitution of the prohibition on the enactment of legislation to provide for divorce, but that prohibition in our Constitution currently applies domestically to anybody living in Ireland be he an Irish citizen or not. That prohibition and the entire family provisions of Articles 41 and 42 of the Constitution have been interpreted by our courts as applying to both Irish nationals and non-nationals.
If we look at this law in detail in the context of the constitutional protection as currently we have it extended to the family, it is arguable that providing a differing set of legal tests to determine the validity of foreign divorces to people residing within this jurisdiction, depending on nationality, this application of the law could in itself be unconstitutional. That issue was not even considered by the Law Reform Commission when they produced this type of approach, considering Article 41.32º which provides for the prohibition on dissolution of marriage. This provides discriminatory sets of laws to provide a different type of law to apply to different types of families depending on the national mix of those families. We might have one set of laws applying to a couple who are British citizens who are married and may have lived in Ireland for 30 years, we might have a different set of laws applying to a couple, one British, one Irish, and a third applying to the couple both of whom are Irish citizens.
I find it a very curious and odd approach. It seems to be saying that we are willing to allow a freedom of a nature to non-Irish nationals living in Ireland that we will not extend to Irish nationals. It seems to suggest that we do not trust our own people not to run abroad to seek to obtain decrees of divorce. It is what I would describe as a nod and wink method of gesturing towards Europe to say: "We really recognise that marriages break down and we do not want to prevent French, German, Dutch and English couples whose marriages collapse and who are living in Ireland from getting some legal recognition of the collapse of their marriage. We do not want to prevent them having the entitlement to remarry and enter into a new relationship. We are merely confining our own Irish nationals; we will keep them down; we will continue to ensure that they have not the same freedom when their marriages break down. We will continue to refuse to recognise the reality of thousands of broken marriages within this State when both parties to those marriages are Irish citizens, but we will recognise where they are not both Irish citizens that their marriages have collapsed and will allow them freely to obtain foreign decrees of divorce".
The major objection I have to this Bill is the whole philosophical basis behind it. Some years ago I wrote an article called, "The mixed blessing of a wife's independent domicile" which appeared in one of our daily papers before I was a member of any political party or involved in political life. I am referring to it now because I would not like any Member of this House to think my attitude to this Bill is based on any party political motive. If this Bill were put together properly and dealt with this issue in the correct way and faced up to the issues properly, I would support it, but it does not. "The mixed blessing of a wife's independent domicile" made the point that if you abolish a domicile of dependency without fully facing up to the consequences of that in the area of divorce recognition, then in the context of couples domiciled in Ireland you could curtail even further the situation in which we recognise foreign decrees of divorce than is the case at present.
Having dealt with the area relating to the effect this could have in the context of non-Irish citizens, I want to look at exactly what section 11 of this Bill imports in the context of Irish citizens. On its face it seems to provide — and does provide — a different recognition regime for divorces obtained by Irish nationals outside Ireland. Much has been said about the current discriminatory practice that arises by virtue of a wife's domicile of dependency, and the illustration continually presented is that the wife who is a victim of the tyranny of the concept of domicile of dependence is always a wife who is left alone in Ireland, deserted by her husband, and that it is always the husband who wants to divorce the reluctant wife. That is the picture that is painted, and we have the Leader of the Opposition — who, unfortunately, has now vacated his seat and I will not fill it for him as I did a couple of weeks ago——
The Deputy would not be able to do so.
He would not be allowed.
It is welcome to see him back in the House dealing with an issue that relates remotely to divorce.
Let me explain, on a point of order. I went outside the door to discuss with the Minister for Justice a very important matter at his request.
What I said did not relate to Deputy Haughey's leaving the House. I was going to welcome him——
I beg the Deputy's pardon.
I was going to welcome him to the House participating in a debate which has some remote relation to the issue of divorce. It is welcome to see him here and to see a possibility of debating this issue which affects so many people.
I was putting law reform before this House long before Deputy Shatter dreamed of coming into it. He is an impertinent pup.
The point I was making was that the illustration that we continuously have is of the deserted wife left in Ireland with the husband gone to England or somewhere else and living there permanently.
On a point of order, the Deputy opposite should withdraw that remark.
I will not withdraw it. This particular Deputy has behaved in a most insolent manner on a number of occasions and I am not prepared to put up with any more of this disorderly treatment.
The Deputy's description does not become the House.
I am sorry about that but it may be that the Deputy does not become the House.
The Leader of the Opposition is used to cowed Deputies who rarely criticise anything he does either in his legislative capacity or in his capacity as Leader of the Opposition.
On a point of order, I object as one of the Deputies being referred to by Deputy Shatter. Any time I have a point of view that is different to that of the leader of my party — and this has happened many times — I do not have any hesitation in making that quite clear and nobody will make me sit down. I would appreciate if Deputy Shatter named those people he feels are cowed down by the leader of the party or else withdraw his remark.
On a point of order, we put forward this Bill in a totally non-partisan context. At the end of my remarks I appealed that it be dealt with in that way and I resent the very politically partisan and insulting manner in which Deputy Shatter is speaking to this legislation.
The point I was trying to make — I will make it for the third time because it is the nub of the Bill — is that the image that is most often presented in the context of a wife's domicile of dependency is that of a deserted wife whose husband obtains a divorce in England or elsewhere and leaves a wife in Ireland who does not wish to be divorced. I do not disagree that on occasions when that happens it should not happen and that a wife in that position needs protection. However, what is not fully appreciated is the reality of marital breakdown here. The fact that our laws prohibit divorce has meant that the rules relating to a wife's domicile of dependency have in many cases where marriages have broken down, extended to the wife who has that dependent domicile the facility to obtain a firm decree of divorce in a foreign jurisdiction by relying on the fact that her domicile is dependent on that of her husband. It has extended to her the possibility that many wives here wish to have, of getting a foreign decree of divorce which is recognised under our law.
The domicile of dependency, which in many ways is outdated and in need of reform, has in a curious way provided assistance in some instances — I am not going to exaggerate this because in other instances it has presented a problem — to a wife to seek a legal remedy when her marriage in reality has ceased to exist. It seems to me that the type of approach adopted in section 11 will have the effect of withholding recognition of many divorces that are currently recognised within our law. It will have the effect of withholding recognition of divorces that are currently recognised and where both parties wish those divorces to be recognised.
The most curious provision of the Bill is in section 11 — Deputy Haughey in his opening remarks referred to it and it may be what Deputy O'Rourke referred to as the Fianna Fáil stamp on the Bill — which effectively says that a foreign decree of divorce will not be recognised if obtained by a couple who are Irish citizens if it was obtained for the purpose of evading the laws in force at the material time in the State of the habitual residence of one of the spouses. The effect of that is that the current law whereby a deserted wife whose husband goes to live permanently in England and who can herself petition the English courts and obtain a decree of divorce that would be recognised here will be overthrown. The facility of obtaining a divorce that is currently available to that wife, one which is availed of by many wives who have found themselves in this position, will be removed from her.
It is curious that this provision about the evading of the laws in force in this jurisdiction only applies to Irish citizens. We have now a dual system of recognition. We are providing a discriminatory code of law that applies different standards and practices to individuals depending on whether or not they are Irish citizens. It is a system that I do not think can be supported or is supportable. It is one that will not resolve the problems created in the area of recognition of foreign divorces. The major problem in this area which anybody who comes into contact with it will recognise is that of limping marriages, a problem created when a spouse permanently living in another country obtains a divorce, remains living in the country that recognises that divorce while another spouse — for example, a wife — remains living in a country in which the divorce is not recognised.
The problem of limping marriages will not be resolved by this legislation. The wife whose husband obtains an English divorce and who remains living in England and marries under English law may find herself in a legal position whereby Irish law will say to her that she is still married to her husband while English law will say that the husband is no longer husband to that wife but is married to a new one. Irish law will hang in with the legal fiction that the woman living in Ireland is still married to a husband who has long since divorced her and is married to somebody else. It affords a wife in that position no advantage if Irish law continues to refuse to recognise the divorce. Where a husband is a national of another state Irish law will recognise the marriage because we have a dual system.
The protection a wife in that position needs relates to the area of finance and support. She needs to ensure that, if a divorce decree is granted to a husband who will never again live with her and may permanently remain living outside Ireland, she will be able to get decrees through the Irish courts if she is dependent for her support or the support of her children and to have the facility of enforcing them within the jurisdiction of the foreign courts. The artificial approach of maintaining the fiction that her marriage continues to exist when it does not will not be of any assistance to her.
Section 11 could not have another effect. The Leader of the Opposition said it will be presumed, if a foreign decree is obtained where an Irish national is habitually resident in a foreign jurisdiction while the other spouse remains in Ireland, that it was not obtained for the purpose of evading the laws within this jurisdication. Two problems are created by that. Either we are serious about trying to prevent people evading laws, in which case what I said earlier applies, or we are not serious. If we are not serious, why is this provision included? If we are not serious, is section 11 designed to provide a facility for those who are wealthy enough to live in another country for a year or two in order to obtain a divorce that will be recognised? What about those who cannot afford to go on foreign trips and take up employment abroad for a couple of years? Are they to be deprived of the right to have their marriages dissolved here? If we are not serious about this provision, is this the Irish solution to the Irish problem? The provision of a recognisable foreign divorce is for those who are wealthy enough to be able to afford to go abroad to obtain a decree and deprive those whose marriages have collapsed and do not have that sort of funding of the possibility of having their marriages dissolved. This provision builds into it an uncertainty as to the validity of marriages and foreign divorces that does not exist at present. It will exacerbate what is a difficult and confusing area of the law for many people, an area which has a very profound and important impact on the lives of many people.
This also gives rise to another problem. If a couple do not wish to challenge the validity of a divorce under this provision it will be open to any other third person to challenge it. It would create the possibility for the Revenue Comissioners to decide, if they objected to a particular foreign divorce being recognised, to rely on section 11 and, in the context of seeking to claim in the income tax area income tax payments, go to the courts to seek to upset the validity of a decree of divorce obtained outside Ireland where both spouses wished it to continue to exist.
