Dáil Éireann debate -
Wednesday, 19 Feb 1986

Vol. 363 No. 14

Private Members' Business. - Domicile and Recognition of Foreign Divorces Bill, 1985: Second Stage.

Minister of State at the Department of Justice (Mrs. Fennell)

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

It gives me great satisfaction this evening to bring this legislation before the Dáil. I can say without fear of contradiction that no other single issue has been for so many years the cause of women's resentment, of women's outrage, and justifiably so. No other issue of women's rights has been the subject of so many submissions, so many appeals to successive Governments, or has been a talking point at women's conferences and seminars and at political lobbying. It has been regarded as the most explicit statement that Irish women are appendages and chattels of their husbands. This status is now being laid to rest. Women have had to wait too long to have this matter resolved. Tonight we are seeing the dismantling of this ugly concept of the dependent domicile of married women.

The basic purpose of the Bill is simple. It is to amend the law relating to domicile by abolishing what is called the domicile of dependency of married women. That is a reference to the discriminatory rule under which the domicile of a married woman is deemed to be the same as that of her husband. This Bill would enable her to have an independent domicile.

The Bill also proposes to make changes in the rules relating to the domicile of minor children and the recognition of foreign divorces. These are, in the main, consequential on the change in the law as to the domicile of a married woman. As I will explain later, once the domicile of dependency of married women is abolished, some change must be made in the rules of recognition of foreign divorces. That is why the question of recognition of foreign divorces is dealt with in the Bill.

Domicile is a legal concept that comes into play only in certain cases, all of these being cases which have a foreign element. For most people, the concept of domicile is an irrelevance, even if they are involved in some legal dispute. In the great majority of cases that come before the Irish courts, there is no foreign element and the court simply applies the ordinary internal Irish law. For example, the question whether a person is guilty of an offence, or is liable to pay damages for negligence, if he or she is involved in a road accident in Dublin depends solely on Irish law, irrespective of where he or she comes from or whether he or she is an Irish citizen or not. But if, for example, a man, an Irish citizen married to an Englishwoman, leaves his wife and goes to live in Ruritania, gets a divorce from his wife and marries a Ruritanian woman, the question of domicile could be important. For instance, if he dies leaving property in Ireland to his second wife, the Irish courts may have to decide whether his Ruritanian divorce and remarriage and his will should be recognised as valid in Irish law, to say nothing of the liability of his estate to taxation in Ireland. Part of the importance of domicile is that for some purposes, especially those of family law, the Irish court, when it has to decide these questions, has to apply the law of the country in which the person concerned was domiciled at the material time.

I should add that, although it is generally true in the common law countries, of which we are one, that questions of this kind are decided according to the law of the domicile of the person concerned, in many other countries the test used is that of nationality and not domicile. Moreover, yet another test, habitual residence, is being increasingly used as the connecting factor in specific areas of the law, especially in accordance with recent international agreements.

As a general proposition, a person is regarded by the law as domiciled in the country in which he has his permanent home. At birth a person acquires a domicile of origin, usually that of his father. That domicile of origin remains unless and until he acquires a domicile of choice in another country by going to reside in that country with the intention of residing there for the indefinite future. If he subsequently ceases to reside in that country without acquiring a domicile of choice in another country, his domicile of origin revives. These rules, however, do not apply in relation to married women. A married woman is deemed to have the domicile of her husband. For convenience, I have made those statements at this point without qualification, but it should be understood that there may well be a question mark, to put it no stronger, as to whether such a rule, or at all events some applications of it, can have survived the enactment of the Constitution. That issue has not been tested.

The concept of domicile has been criticised in a number of respects. The central importance of intention in establishing domicile has been said to make for difficulty and uncertainty. The revival of the domicile of origin can in certain circumstances produce strange results. However, the feature which has been most criticised in recent years is the rule that denies to a married woman the ability to determine by her own intentions and actions where her domicile should be. The present rule in relation to married women means that even if the couple are separated and even if the wife has never lived in her husband's country of domicile — which may be different from the country in which the couple have been married and have lived together before separating — and even if she has no intention of ever living in her husband's country of domicile, she will be fixed with a domicile in that country. In these circumstances she can find that important legal questions affecting her fall to be regulated by the laws of a country which is totally foreign to her.

It is unnecessary to labour the point that the rule is clearly discriminatory. It may have been appropriate in other times, in other social conditions, which I doubt. But few, I think, would argue that it is a rule that should remain part of our law.

As I have already said, the basic purpose of the Bill is to abolish the domicile of dependency of married women. That is achieved by section 1. Under that provision a married woman will have an independent domicile which will be ascertained by reference to the same factors as apply to other persons generally.

The enactment of this section will have significance in relation to a number of international conventions. There are a number of these conventions which prohibit discrimination between men and women in respect of various matters, including domicile. Among these agreements are the United Nations Convention on the Elimination of all forms of Discrimination against Women, the United Nations Covenant on Civil and Political Rights and the Seventh Protocol to the European Convention on Human Rights. Our existing law on domicile has been one obstacle in the way of ratification of these agreements. This Bill when enacted will remove that obstacle.

The other provisions in the Bill dealing with domicile are, broadly speaking, consequential on the main provision in section 1.

Section 2 provides that the Bill will not have retrospective effect. In other words, any question arising in future as to what domicile a woman had at any given time before the commencement of the Act will be decided according to the law in force at that given time. That is as it should be, since it is impossible to know what injustice might arise from any attempt to change people's domiciles retrospectively. On the other hand, if it is necessary to determine what domicile a woman has at any time after the commencement of the Act, the matter will, under section 3, be determined as if the legislation had always been in force. This means that if the domicile of a woman who is married at the time the Act comes into force falls to be determined in relation to any date in the future, the new rule contained in the Bill will be applied in considering her history and circumstances without reference to any concept of dependency of domicile. Put in another way, her domicile will be determined as if there never had been a domicile of dependency.

Section 4 is necessary because the present rule in relation to the domicile of minor children of a married couple is that the child takes the domicile of its father. The section provides new rules for the situation where the spouses are living apart. If the child has its home with its mother and has no home with its father, the child will take the domicile of its mother. If the child ceases to have its home with its mother, it will continue to have her domicile unless and until it has a home with its father. If the mother is dead, the domicile of the child will be the domicile she had at the time of her death if at that time the child had that domicile by reason of having or having had its home with its mother as I have just mentioned and if it has not since had a home with its father.

Where the spouses are living together, the child will continue to have the domicile of its father. Since normally both spouses who are living together will have the same domicile, this is not of great practical significance. Ideally, we would no doubt like to have a new rule that wholly abandoned the existing one but there are practical difficulties. It would be difficult to devise a rule which could operate satisfactorily in all the different circumstances that could be envisaged.

Circumstances could arise in which there would be no logical way of deciding whether the child should have the domicile of one parent rather than the other and the result would be that the child would have to be assigned the domicile of one parent on an arbitrary basis or else assigned a domicile separate from either of its parents on whom it is dependent and that would be undesirable. None of these solutions is wholly satisfactory and the Bill, therefore, proceeds on the basis of preserving the status quo in this very limited area, unless and until some better solution suggests itself.

Section 5 deals with the recognition of foreign divorces. In the main, the section is consequential on the change made in section 1. I would like to explain why it is necessary in this Bill to deal with foreign divorces.

Briefly, the reason is this. At present domicile is a central factor in the law relating to recognition of foreign divorces. The present law, as interpreted by the courts, is that a divorce obtained in a foreign country will be recognised if both spouses were domiciled in that country at the date of institution of the foreign proceedings. The existing rule does not, and has had no occasion to, take account of the possibility that husband and wife would have different domiciles. Because, under existing law, a married woman has the same domicile as her husband, the rule means that a divorce is recognised in Irish law if it was granted in the country where the husband was domiciled at the date of the institution of the proceedings. That, at all events, is the effect of the rule as commonly stated, but it is right to mention that in the course of a judgment given by him in the Supreme Court, Mr. Justice Walsh remarked that it is 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 or origin while her deserting husband may have established a domicile in another jurisdiction". However, at present and pending any such challenge the law has operated on the basis that the spouses have a common domicile in all circumstances, and clearly the Bill must proceed on that basis.

In the absence of specific legislative provision setting out new rules for recognition of foreign divorces, there would be no way, short of expensive and perhaps long drawn 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 separate domiciles, as they may have once the legislation is in force. On one view, a foreign divorce would be recognised here only where both spouses were domiciled in the foreign country. On another view, a lacuna would be left in the law because the present rule, being based on the concept of a common domicile for both parties, could not be regarded as having any application to a situation where that was no longer the case. It is to deal with that problem that the provision in subsection (1) of section 5 is proposed. Subsection (1) provides that in future a divorce will be recognised if it was granted in the country where either spouse was domiciled. By virtue of subsection (7) the relevant date will be that of the institution of the divorce proceedings.

I would like to stress that, once the domicile of dependency of married women is abolished, some change either increasing or decreasing the grounds of recognition is inevitable in the rules of recognition of foreign divorces. It is simply not possible to preserve the status quo.

At first glance it might appear that subsection (1) will greatly increase the incidence of recognition of foreign divorces. Inevitably there will be some increase, but the increase, I would suggest, will not in fact be great. First, domicile is not something that is casually changed. A person does not become domiciled in another country merely by moving there for a short period. To acquire a new domicile, he or she will need, on or after going to the other country, to have the intention to make that country his or her permanent home in the sense of intending to reside there for the indefinite future. A court here would have to be satisfied to that effect if the issue arose.

Divorces which are obtained on the strength merely of a brief period of residence in another country are not recognised under existing Irish law and will not be recognised under the Bill when enacted. The strength of domicile as a connecting factor means, in practical terms, that a person hitherto domiciled here must virtually have severed his or her connection with this country before a divorce will be recognised here, and where that happens it seems right that the divorce validly obtained under the laws of the foreign country should be recognised here.

Subsection (4) of section 5 states what may already be part of our existing law. There is a question whether the existing rule that a divorce is recognised here if it is granted in the country of domicile of the spouses is complemented by a further rule. This is a rule laid down in 1906 in the English case of Armitage v. A.G. to the effect that a divorce will also be recognised if, while not granted in the country of the common domicile, it would be recognised by the law of that country. The rationale of the rule is that if a change in the status of the spouses has been accepted in the country where they are domiciled it should be accepted in all other countries. The reason why a doubt may exist as to whether this rule is part of our law is simply because the specific point has never come before our courts for decision. Subsection (4) applies such a rule only to cases where neither spouse is domiciled in the State. The practical effect of this will be small.

Subsection (3) of section 5 is a special provision relating to neighbouring jurisdictions and takes account of a particular feature of British law. The jurisdictions mentioned in that subsection are different "countries" for the purpose of private international law, but under British law a divorce obtained in any of them is automatically recognised in all the other jurisdictions mentioned. It seems right to provide, as subsection (3) does, that such a divorce will also be recognised here so long as one of the spouses is domiciled in any one of these jurisdictions. If, for example, the spouses were domiciled in, say, England, and a divorce were obtained in Scotland, that divorce is of course recognised automatically in England and it would be artificial to refuse recognition here. A secondary but valid reason for recognising it here is that, as between Scotland and England, for example, it would be artificial to require our courts to decide whether the spouses were domiciled in the one rather than the other.

At this point I want to apologise for a slip in paragraph 13 of the explanatory memorandum. In the third last line "that subsection" should read "subsection (3)", the subsection listing the British territories.

There are a number of states which comprise within them different territories with different systems of law in relation to divorce and where the territories do not automatically recognise each other's divorces. In relation to such countries which in matters of divorce have different systems applying in the different units, each such unit will be treated as a separate country as a result of subsection (2). This reflects the ordinary rule of private international law which treats a territorial unit with its own system of law as a separate country. As a result of subsection (2) the different states of the USA will each be regarded as a separate country. A divorce obtained in one state of the United States will be recognised under subsection (1) if one of the spouses was domiciled in that state and it will be recognised under subsection (4) if, while not granted in that state, the divorce would be recognised in the state or states in which the spouses were domiciled. Divorces granted in one of the United States are not automatically recognised throughout the other states.

Canada and Australia are composite states which have the same law in relation to divorce applying throughout all the constituent territorial units. Because of that, the different territorial units will not be treated as separate countries under subsection (2). Accordingly, a divorce obtained in any part of Canada or Australia by a spouse domiciled in any other part will be recognised.

I should mention two other provisions of section 5. Subsection (5) provides that the new rules for recognition will apply to divorces granted after the commencement of the Act. It would be clearly undesirable to make the new rules retrospective because the result would be to change a person's matrimonial status retrospectively. Subsection (6) is a saving for the power of the Irish courts to refuse on grounds unrelated to domicile to recognise a foreign divorce. For example, the court may refuse recognition if a spouse is divorced without having been given notice of the proceedings.

In regard to the matters covered by the Bill, Deputies will be aware that the Law Reform Commission have published two relevant reports. In their report on Domicile and Habitual Residence as Connecting Factors in the conflict of Laws they recommended that habitual residence should replace domicile as a general connecting factor. In their report on Recognition of Foreign Divorces and Legal Separations they proposed wide-ranging changes in the rules relating to recognition of foreign divorces based mainly on the concept of habitual residence as a connecting factor.

As I have mentioned already, the basic purpose of the present Bill is to get rid of the discriminatory rule under which a married woman is deemed to have the same domicile as her husband. As I have explained also, the Bill deals with the rules of recognition of foreign divorces only because some change in those rules is inevitable once the domicile of dependency is abolished. In fact the changes made in this area are in the main minimum changes needed to enable that desirable change in the law of domicile to be effected.

The former Minister for Justice, Deputy Noonan, has already explained to the House on another occasion that, in the Government's view, the time is not ripe for any wide-ranging review of the rules of recognition of foreign divorces.

The question to what extent we should recognise foreign divorces is one which has an obvious link with internal policy in regard to divorce. The whole policy of the law in this matter is at present undergoing debate and we cannot say what the outcome of that debate will be, if only because a change is possible only if the people so decide. In that context it seems to the Government inappropriate to embark on changes in the rules of recognition beyond those changes that it is necessary to make in order to achieve the main purpose of this Bill. Any decision to change from domicile to habitual residence as the test for recognition of foreign divorces would mean that our rules of recognition would have to be recast to take account of habitual residence, and since that concept is different in very important respects from domicile, we would have to embark on a complete rethinking of our attitude to recognition. As I have indicated the Government do not consider that the present time is opportune for such an exercise.

I would, therefore, emphasise very strongly that the proposals in the Bill do not mean that the recommendations of the Law Reform Commission have either been forgotten or been rejected. Because of the other circumstances I have mentioned, the Government regard them as matters that should be left aside for the moment. The matters covered in their reports will be taken up later.

I commend this Bill to the House.

Dr. Woods

The Domicile Bill is coming before the House today because the Government have been put under pressure for reform in this area by the Fianna Fáil Party. Fianna Fáil, fully aware of the blatant discrimination which exists against women in the present law, published a Bill on 3 December last which proposed to abolish the concept of "domicile" and replace it with "habitual residence" thereby giving a woman an independent status. This Bill was very well received and was widely appreciated particularly by groups who promote the right of women to full independence, and equality of treatment under the law. The Government responded immediately, adopted the basic concepts in the Fianna Fáil Bill, and published them one week later on 10 December, in their own Domicile and Recognition of Foreign Divorces Bill. Although the Government's proposals are less comprehensive than the Bill which we earlier introduced, nevertheless we welcome this important step which will give a woman a legal domicile independent of her husband.

I would like to take the opportunity to thank our Fianna Fáil Women's Consultative Committee, who highlighted the urgent need for this legislation, and our voluntary legal back-up advisory team for their assistance in putting our original proposals before the House. Deputy Mary O'Rourke was very active in this area.

We brought forward a Bill which was very comprehensive. We followed, in so far as we could, the recommendations of the Law Reform Commission having debated and discussed them and put forward a comprehensive Bill. As the Minister said, the former Minister, Deputy Noonan, has explained to the House that the time is not right for any wide ranging review of the rules on recognition of foreign divorces. The Government took a short cut and did not undertake this wide ranging review which, all would agree, is necessary and desirable at this time.

"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 a 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; (5) taxation, and (6) all questions concerning the personal status of the individual.

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; second, 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; third, 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. This means that when a woman 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 that is 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 and takes up residence. 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.

The present law has been criticised on many grounds. It is because of its artificial nature that domicile often involves expensive and protracted litigation. It is also a complicated concept not readily understood by 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 recognised here only 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. This was the approach adopted in the Fianna Fáil Bill published earlier this year entitled Conflict of Laws Reform Bill, 1985.

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 its 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 was 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 indefinitely reside or habitually reside. 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 account of federal structures and would not be sufficiently particular to deal with the cases of nationals of political entities comprising several states with different legal systems, the United States of America being an obvious example. We also feel that the commission was correct in its decision to select "habitual residence" as the appropriate test. It is the concept adopted by most international conventions. It is worth nothing that "habitual residence" has already been adopted as a connecting factor in Irish legislation, in a limited way, in Part VIII of the Succession Act, 1965.

The main difference between the approach adopted in the Fianna Fáil Bill and that now proposed by the Minister is that the Minister has opted for rather limited reforms or, in effect, tinkering with an inherently flawed system. The Minister opted for this approach on two grounds — first, the former Minister— the Minister of State expanded on this— said that the adopting of the concept of habitual residence could have some taxation implications. Second, he claimed that, in the light of possible new constitutional arrangements governing our internal law on divorce, it is, in effect, premature to opt now for the comprehensive reform envisaged in the Fianna Fáil proposals. That approach was repeated again tonight by the Minister of State who said that the former Minister for Justice, Deputy Michael Noonan, had already explained to the House on the occasion when our Bill was dealt with in Private Members' time that in the Government's view the time was not ripe for any wide-ranging review of the rules of recognition of foreign divorces. She added:

The question is what extent we should recognise foreign divorces is one which has an obvious link with internal policy in regard to divorce. The whole policy of the law in this matter is at present undergoing debate and we cannot say what the outcome of that debate will be, if only because a change is possible only if the people so decide.

That is to suggest that the whole matter will be seriously tied up in the discussions the Taoiseach is about to have with the Churches in relation to a referendum on the question of divorce here. We contend that this matter could be dealt with independently and any rearranging necessary could be carried out by adopting the concept of habitual residence and making the arrangements suggested by the Law Reform Commission.

In relation to the Minister's first objection it is clear that whether he changes to "habitual residence" or "independent domicile", there will be consequential taxation effects. For example, under the current law if an American girl marries an Irishman and resides in Ireland she acquires his domicile. Consequently, all her income and gains abroad are due to be taxed in Ireland. By giving her an independent domicile she acquires the independent status in taxation terms of feme sole and will be taxed in Ireland. only on remittances received in Ireland. This may be quite advantageous from her point of view because, instead of being taxed in Ireland on her total income from abroad, she would be taxed here only on those remittances that are sent home to Ireland.

I am sure the Minister would appreciate the full tax implications of either of these proposals and would be in a position to make recommendations about the proper treatment of these matters. Could it have been that the Minister produced a rushed Bill in the hope of distracting the attention of the public from Fianna Fáil's initiative in this important area of law affecting the status of women? I speak here about the previous Minister having brought forward this Bill.

There are other indications that this Bill was rushed. The provision in section 4(1)(a) which purports to define the domicile of a minor by reference to his home renders very difficult the ascertainment of a minor's domicile where that minor lives part time with the father and part time with the mother.

The inclusion of the words, "and has no home with his father" exacerbates the difficulty in ascertaining the domicile of a minor in these circumstances. The most extraordinary feature of section 4 is that it would appear to make no provision for the situation where a minor lives with his father rather than with his mother and where the two are living apart. The Minister said tonight that the child would continue to derive domicile from the father in such circumstances. One would have thought that this would be an essential provision in a Bill which purports to give the mother an independent domicile.

There are other provisions in the Bill about which questions will have to be raised. Suffice it to say that the Bill was assembled hastily by the Minister's predecessor to meet his political need to save face in the light of Fianna Fáil's initiative. However, these defects in the Bill can be dealt with more effectively on Committee Stage.

I turn now to the other main implication of the reform proposed in this Bill. The most significant implication is that his reform will necessitate changes with regard to the basis on which foreign divorces are recognised under Irish law. As of now, the domicile of dependency of a married woman, a concept which this Bill seeks to abolish, ensures that both spouses are always domiciled in the same country and, as that dual domicile is the only basis on which foreign divorces have been recognised up to now, the fact that a wife is now to be capable of having a domicile independent from the domicile of her husband means that new criteria for the recognition under Irish law of foreign divorces are required.

The Minister of State agreed with this point. The Minister has set out new criteria governing the recognition of foreign divorces. He opted for a system in which a divorce will be recognised if granted in a country where either spouse is domiciled. I wonder whether he has considered all the implications of such a course. Is it not the case that a married woman living in Ireland who has has been deserted by her husband who then acquires a domicile of choice in England and who can obtain a divorce there which will be recognised here under the new rule will be left in the same situation as she would be in under the current legal rules? Again, we will pursue this matter further on Committee Stage. The Minister of State has indicated that this will be the case.

The Minister was very sensitive about this area. In section 5 we find that in relation to the recognition of foreign divorces he sets out these new rules. Subsection (1) of that section reads:

For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled. there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.

The Bill spells out clearly that divorce shall be recognised if granted in the country in which either spouse is domiciled. The provision in our Bill, that is, the Conflict of Laws Reform Bill, 1985, is set out at subsection (1) of section 11 which reads:

The validity of a foreign decree where one or both of the spouses was at the material time an Irish citizen and the spouses last habitually resided together in the State will only be recognised after the commencement of this Act if:——

(a) both spouses were at the material time habitually resident in the State in which the decree was granted or...

That is a very clear protection and safeguard particularly for the wife in these circumstances. The provision continues:

(b) one of the spouses was at the material time habitually resident in the country in which the decree was granted and:

(i) the other spouse submitted to jurisdiction of the court or tribunal which granted the decree and:

(ii) the decree was not obtained for the purpose of evading the laws in force at the material time in the state of the habitual residence of the spouse referred to in subparagraph (i) of this paragraph.

There is a very distinct change between the two. While the Government have run away from the concept of habitual residence they have left a very open situation in section 5 of this Bill. That is the one the Minister of State was sensitive about when speaking here. She said that at first glance it might appear that subsection (1) will greatly increase the incidence of recognition of foreign divorces, that inevitably there will be some increase but that that increase will not be great. That is a matter of conjecture, but it indicates an area in which the Government are concerned about their own Bill.

The Minister was then at pains to suggest that domicile is something that is not casually changed, that a person does not become domiciled in another country merely by reason of moving there for a short time.

The Minister went on to talk about the intentions involved. We know that it will not be difficult for someone to go across the water and have a divorce recognised there. In our Bill we are providing certain protections particularly in such situations as the desertion of wives with husbands going to Britain or elsewhere and obtaining divorces. The protections included in our Bill were for very good reasons. They would provide the requirement that in such cases the other spouse had to submit to the jurisdiction of the court. In other words, the other spouse would have to agree to the divorce.

This is a very important difference between these two Bills. We will want to take this matter up at greater length on Committee Stage but we will wait to see if the Minister puts down any amendments to try to overcome the weakness in this Bill. If not, we will put down amendments to tighten up the Bill. While we proposed that there should be a change in the domicile, that domicile should be independent, and we support the Government in pursuing that line, we are concerned that there should be some safeguards in this area. It seems that the Minister is concerned to some extent with the possible outcome in this area from this Bill.

The Minister opted for the system in which a divorce would be recognised if granted in a country where either spouse is domiciled. Has the Minister considered all the implications of such a course? Is it not the case that a married woman living in Ireland who has been deserted by her husband and who then acquires a domicile of choice in England can obtain a divorce there which will be recognised here under the new rule thus leaving the deserted wife in the same situation as she would be in under current laws? We will pursue that further on Committee Stage.

Under Fianna Fáil's proposed legislation, in such cases where the wife will have her own habitual residence still in Ireland, she can if she wishes submit to the jurisdiction of the British court and accept the divorce, or she may refuse to accept it and will then continue to be treated as a married woman under Irish law. We left the option with the woman or the spouse who remained here. We would like to see more time given to this question and to hear the Minister's views on it.

The Minister made much of the reasons for not adopting habitual residence as the criterion. We do not agree with that. What the Minister has had to say tonight, although it will be carefully considered, does not deflect us from our view that the concept of habitual residence is the preferable concept. The Minister of State listed taxation and consequential changes as being the reasons for not adopting this concept. We would not regard these as reasonable objections. If the Government were just trying to introduce a Bill soon after the Opposition had processed a Private Members Bill through the House, I can understand that the simplest thing is to select a specific feature for the Bill and leave out the features that are more complicated. But I do not understand the rationale behind the statement that taxation laws will be too complex and would act as a barrier to changing to the concept of habitual residence along the lines recommended by the Law Reform Commission, whom I must commend for their excellent work in this and in other areas.

It is a pity that the Government are so slow in dealing with reports of the Law Reform Commission. The Government could without much trouble bring a great number of Law Reform Commission reports before the House and produce reforming legislation based on those reports to give the impression that they are doing great work in law reform when a great deal of the homework has already been done by the Law Reform Commission even to the extent of preparing draft legislation to make it easy for the Government.

I do not accept the taxation laws as an argument, nor do I accept the excuse that it is not an appropriate time to deal with this matter. Any provisions that need to be made can be made and can be adapted if the situation changes. It is strange that the Minister has avoided the extra work necessary to introduce the concept of habitual residence and include it in the legislation.

I would urge the Minister to reconsider the wisdom of attempting to breathe new life into the moribund concept of domicile by pursuing these proposals. Would it not be preferable if the Minister looked to the more widely accepted concept of habitual residence to find a solution to the problems we propose to tackle here tonight? I have my doubts about the motive of the Government in introducing this legislation tonight when the Labour Party motion is before the House, especially when the Minister for Justice was dealing in the House with a Bill on Garda complaints procedure, a Bill which has not been into the House for nearly a month at this stage, although it is very important in relation to the Criminal Justice Act.

Whatever the circumstances, we welcome this Bill. We will consider Second Stage constructively and will put amendments on Committee Stage so that we will come out with the most appropriate Bill. If it is desirable and possible to change the concept of habitual residence, we will explore that concept on Committee Stage along with other matters which I have raised which are more appropriate to a Committee Stage debate. Other than the amendments which we will seek, we have pleasure in supporting the measure.

Mrs. Barnes

I welcome the support of Deputy Woods for this Bill. He made the point that we are not taking as wide-ranging a view as is possible. What we are discussing is relevant to another interminable debate, namely, legislation on divorce. We cannot deal with a matter such as habitual residence or the independence of domicile in other jurisdictions without accepting that it hinges on the kind of divorce legislation we may have here and the recognition we give to divorces obtained outside the country. We must be realistic and honest about that.

It goes without saying that I welcome the Bill. It will have implications but this applies to every Bill. It has seemed a remarkably long time before we got to the point of introducing legislation——

Mrs. O'Rourke

We had our Bill in 1985.

Mrs. Barnes

The point is that all sides of the House welcome this Bill and I hope they will ensure that it goes through. What really matters for women is that the legislation goes through and is implemented. I am very glad that the Opposition are active with regard to reform of the law. I pointed out before, and I repeat it here, that legislative reform is not the monopoly of one party. I encourage all parties to support not only this Bill but also other social measures, particularly the matter we are debating now and to which I have related this Bill. I refer to the clearing up of many complications in our laws dealing with marriage and domicile and also our recognition of foreign divorces. I urge all parties to reach a consensus and to put a positive referendum before the people to introduce our own divorce legislation.

We seem to have been working on these matters for a long time. Many women in various organisations have striven for a long time to have this barbaric relic of dependency removed from the Statute Book. What we are doing here is a step forward. The Minister has stated that it is unnecessary to labour the point that the rule is clearly discriminatory. The situation was downright crazy. A man could leave the country and even though his wife remained here she would be deemed to have moved to that other country. That has been a source of great danger to many women. It was difficult logically even to begin to explain such an anomaly. The Minister stated that it may have been appropriate in other times and in other social conditions but I reject it as having been appropriate at any time. It may have been traditional; that is part of the historic conditions under which women have laboured but it was never appropriate or acceptable.

Section 4 deals with the domicile of minor children of a marriage. At the moment a child takes the domicile of its father, the dependency of the child being emphasised here. I welcome the fact that there will be new rules where spouses are living apart. If a child has its home with the mother and not with the father, it is only right and proper that the child should take the domicile of the mother. Where spouses are living together and the child lives with both parents he or she will have the domicile of the father. I take the point the Minister has made that in such a case the status quo is upheld. However, if we are working positively towards the recognition of the independence of the mother and with the responsibility she takes for her child as a minor — very often being more responsible and showing more care than the father — I wonder if perhaps we should uphold the status quo? I suggest some affirmative action be used here, if the legal people could recognise such a structure. I suggest that where the spouses live together the child might take the domicile of the mother.

The law is in need of change in respect of the dependency of mothers and children on fathers. Much legal importance has attached to property and to the father being recognised as the keeper of that property, thus being invested with more power and authority. Because of the importance played by a woman in the upbringing of her child, consideration might be given to not upholding the status quo.

The Minister has pointed out why this legislation took so long to be drafted, namely, that it gives rise to many complications. This developed also with regard to the acceptance and full implementation of the proposals of the Law Reform Commission. The Minister quoted the point made by Deputy Noonan when he was Minister for Justice, namely, that the decision to change from domicile to habitual residence as the test for recognition of foreign divorces means that our rules of recognition would have to be recast to take account of habitual residence. She stated that since that concept is different in important respects from domicile we would have to embark on a complete rethinking of our attitude to recognition. We are trying to cope with the recognition of foreign divorces in different jurisdictions and the legislation needed in order not to discriminate in any way against a spouse.

We cannot give as full, as complete, as wide and as simple an acceptance to the whole area of habitual residence until we clear up the dreadful legislative minefield in our own country. We do not have legislation which recognises Irish divorce, in its real sense. We are, in effect, part of a contradiction in so far as constitutionally we say that we do not recognise the dissolubility of marriage, or divorce, yet on the other hand we have to endeavour to bring in legislation such as this which shows that in reality we have to recognise foreign divorces. Until we have an opportunity to recognise our own divorce legislation many of the complications will remain, in spite of the greatest goodwill on everybody's part. I would like to think that this debate would be considered in the context of the wider and deeper debate on the need for a referendum on divorce. It would be my hope that all sides of the House would welcome a decision to hold a referendum in the same way as they welcome this Bill.

Much of what I wanted to say is now redundant because at last we have got independent domicile for married women. Those of us here tonight spoke at length on this topic previously and unlike some speakers we are too modest and too kind to repeat ourselves. I would, however, mention certain areas which are related to the Bill before us and the area of protection and independence of married women. This is tied in with certain legislation which is still being drafted. The Minister rightly makes reference to the fact that this legislation will place us in a better position and enable us to ratify the UN Convention for the elimination of all discrimination against women. All of us welcomed the signing of this Convention at the end of 1985 and we will continue to support the Minister on all the other legislation related to that. We will have no reservations placed on the total ratification of the Convention.

There are some other matters which we hope to debate in this House as soon as possible. There is the whole question of the status of children and illegitimacy, the rights of succession accorded to them and their mothers. There is also the proposal to deal with the property of married people, property which is of immense importance to women. A married woman often gives up her economic independence, to her great detriment if she finds herself contesting either the property in the home or the home itself. The true position of the woman in the home will not be acknowledged until that proposal becomes law. I know it is not necessary to make this point to the Minister, or to Deputy O'Rourke who played such a part in having these issues raised within her own party.

Another outstanding matter is the bestowing of equality of citizenship. An Irishman who marries a non-Irish citizen can bestow that entitlement on her. However; an Irish woman who marries a non-Irish man cannot obtain citizenship for him. This is one of the outdated and discriminatory practices derived from the view that within marriage a woman can not confer the same sense of importance, citizenship or legal rights upon her husband as he can confer on her.

I welcome the fact that in the recent budget women were guaranteed equal treatment in terms of social security, beginning this year although it should have been implemented and acted upon months ago. The least we can expect when discriminatory practices are abolished is that the reforms should be implemented as soon as possible. We can never make up for the years passed.

Mrs. O'Rourke

While Deputy Barnes was speaking, a Leas-Cheann Comhairle, I was thinking that you are quite unique in this House tonight in being the only man here.

Mrs. Owen

Where are all the trendy men?

Mrs. O'Rourke

Of course the Leas-Cheann Comhairle is welcome to our debate. It is a very fine reflection on the women of the House that we are here and though we are in small numbers we are very representative of women concerned about this issue. I have never been in the House before when women comprised the membership on the benches and by their presence showed their real interest in the legislation before the House. I wish there were people here to comment on it and note it. Like Deputy Barnes and Dean Swift, I am modest in my proposals. I spoke before Christmas when our own Bill, the Conflict of Laws Reform Bill, 1985, was introduced to the House by the Leader of my party. I also decline to repeat myself at great length. During that debate the Minister who is here with us tonight and our spokesman on law reform and justice were both indisposed and could not speak. The views they expressed tonight were fresh and innovative and precisely their own. This brought a welcome freshness to the debate for those of us who had participated at an earlier date.

I note that a tranquil tenor has crept into the debate since the men left the House. I have to put on the record again that we introduced our Bill in December because we have a voluntary legal back-up group who are looking into the whole area of whatever legal discriminations exist against women. We also have a very active women's consultative group whose role is to co-ordinate with the law reform group and liaise constantly with them and with the front bench of the parliamentary party. So far this has been working very successfully. We sorted ourselves out last June and identified the law of dependent domicile as archaic and barbaric in its connotation and wider implications of an attitude of servitude regarding married women. Secondly, we felt that the exploration into it was done already by the Law Reform Commission who went into it at great depth and had produced proposals which they put forward as the basis for legislation. We were very pleased to think that many of those proposals were ones which could be adopted, and easily adapted, if necessary, for implementation.

That formed the basis of our proposals to our law reform group on the need for this legislation. We did not see any need to highlight the necessity for it because that was so obvious. When all our groups submitted the legislation to Deputy Haughey as Leader of our party he very readily agreed that it should take the form of legislation and be introduced in the House in Private Members' time. I regret that that Bill was not accepted by the former Minister for Justice and the Government parties and was put to a vote and dismissed by the Government parties. I was disappointed because many of the Government Deputies who spoke on that Bill in early December, in particular Deputy Barnes and Deputy David Molony, welcomed our initiative.

Deputy Woods indicated tonight that he envisages that while we as a party find there are flaws in this Bill we will be putting forward amendments to it. We hope that with good will some of our amendments, particularly those of great importance, will be accepted by the Government. We hope a composite Bill will emerge with the best elements of our Bill and this Bill in it which will lead to a Bill of great benefit.

I welcome the fact that the element of dependency, which was so barbarous and archaic, is to be removed. I believe all sides will agree with this. It is quite amazing that a simple measure — though when we go into it, is not as simple as it appears, because it has complex ramifications for its implementation which could have been tackled by any Government to abolish the blatant and open discriminatory approach to married women — should have been left for so long on the shelves and should not have been tackled. I take the point made by Deputy Barnes that perhaps an element of an affirmative type of action could be introduced into it.

When the Oireachtas all-party women's committee was first set up I remember that Senator Michael Higgins said that all legislative action either under scrutiny at the moment or for future approach should be studied to see if it could be tackled in an affirmative way with regard to women and that it should be approached in that fashion. That is perhaps something we could return to again.

I have one gripe in regard to our Bill and the Bill we are now discussing. I do not say it in any way of confrontation because I do not consider it is a Bill which should be approached in that fashion. I say quite genuinely that the Bill submitted by the Minister in one very clear respect will leave a married woman in a worse off position than if our Bill had been accepted. Our Bill gave the protection of option to the woman. A man or a woman could submit to the option of the foreign divorce or they could not. The Minister's Bill does not allow for that option. That is discriminatory in that it limits the choices and options available to a spouse. It will mostly be women who will be affected. I believe that will have far reaching implications for succession and property rights for a woman. If she chose not to submit to the foreign divorce her succession and property rights were assured under Irish law. That is a very important fact and will have to be taken on board by the Minister.

That is the major flow I find in the Bill but it is a very serious and dangerous one. I am afraid that by everybody sharing a common interest in removing what is an archaic terminology, that of dependent domicile, by this Bill we are putting an additional yoke on a woman from which she cannot escape because she will not have any choice, whether she wishes to or not. Perhaps we will draft an amendment which can be looked at. This Bill is not as simple — the Minister referred to it— as it appears to be when one goes into it. As Deputy Barnes said, it opens up to all of us a much wider contemplation and reflection of the whole issue of divorce and how it affects women.

The Minister said she is content, for the moment at least, to leave that issue because the State is not ready to deal with it. Would it not have been better to have gone into the implications of what she is now proposing as set out in her speech? Is it not a recognition of the implication of a much easier obtainable type of foreign divorce than heretofore, even though she said that she does not think the likelihood of this will be great, numerically speaking? I believe that once it becomes apparent what could be achieved through this legislation, and as more and more legal people, and consequently, their clients, tumble to it, that numerically the number of people who wish to avail of it will increase dramatically. That is something we should watch out for.

The main issue of contention between our Bill and the Minister's Bill is that the latter may seem to provide "liberalisation" for women's cause when really it will be prohibitive of their legal, community, property and succession rights because whether they like it or not they will be forced to submit to the divorce obtained in another land. They have not got the right of choice. It is a serious implication and I ask the Minister to look at it carefully. If that were to be amended then not much would be at issue here.

Deputy Barnes referred to other Bills which need to be considered and addressed very seriously. One concerns community property. We have looked at this peripherally and we intend to go into it more deeply. The Minister knows that it has huge implications and will have to be teased out at great length. The French model and the way the French have handled it appear to be very civilised. I do not know if we can copy them or how we will deal with it, but we need to get into that issue straight away.

It is necessary to update the Rape Act of 1981 and maternity legislation needs amendment. I have identified the need for amendment in employment and maternity legislation. Deputy Barnes and I are members of an all-party Oireachtas committee on women's rights and we met for two hours this afternoon and uncovered massive areas of discrimination against women which I am sure will be the subject of much discussion and debate in the weeks ahead.

Mr. Hyland

Please elaborate, Deputy.

Mrs. O'Rourke

Deputy Hyland is welcome back to the club.

An Leas-Cheann Comhairle

Which club are you referring to?

Mrs. O'Rourke

The Oireachtas. That area will be the subject of legislation which we can recommend to the Minister from our all-party committee. I welcome in both Bills the removal of the element of dependency which was old fashioned, strident and terribly hostile to women. I wish that the concept of habitual residence had been adopted in the Minister's Bill. I emphasise to her and, through her to her Government, that the main issue, the one I have highlighted, the removal of choice for a woman, cannot be seen as feminism at its best. I submit that that must be reviewed in the light of the very dangerous implications which it would have for the property and succession rights of women.

Mrs. Owen

Like other speakers I welcome this Bill, but I pose the question, is it any wonder that a number of these issues are referred to and pigeon-holed as women's issues? This is not a women's issue any more than are many other issues that are debated in this House, and that is why we have to be slightly facetious in welcoming you, Sir, into the Chair as a male——

Mrs. O'Rourke

And Deputy Hyland.

Mrs. Owen

——and Deputy Hyland who has very kindly joined us and the two male members of the press up there. It is interesting to note that most members of the press here are male. This is not a women's issue. It is an issue of discrimination against a section of our population who happen to be women. It is an issue that concerns you, a Leas-Cheann Comhairle, Deputy Hyland, all the people who fill the benches here, all the trendy people who fill the PDP benches who came in here last night and lectured us about not having the courage to deal with issues of social conscience matters. Where are they tonight? Out getting new members perhaps to win support for their non-policy party. Where are the trendy members of the left from the Labour Party and where are the male members of my party who are to come in to speak on this Bill and to support a measure that is long overdue in this House?

I am trying to show why women have been more angered as the years have gone by at having issues that deal with them pigeon-holed into a certain area. I welcome the arrival of Deputy Durkan. I think he was supposed to speak ahead of me but obviously he got tied up. He is very welcome indeed and I continue to welcome other male and female Members who come in here, and let us get away from counting heads.

An Leas-Cheann Comhairle

Do you want to call for a quorum?

Mrs. Owen

No, I do not want to call for a quorum. If they were interested they would be here. For far too long we have seen women suffering the indignity of being treated no differently from a suitcase that goes with a man to his new domicile. That is how we are being labelled. We have to take the domicile of a man because he goes to live in Timbuktu, Nevada or wherever. He takes us along with him as if we were his suitcase because we are domiciled where he goes. Up to this we had no say in the matter. It did not matter whether we wanted to be domiciled, in Nevada, San Francisco, other exotic places, or Liverpool or wherever he decided to set up his domicile. We would be treated no differently from the suitcase he carried with him. I welcome the Bill because no longer are women by their very sex being relegated to the same status as a suitcase the man brings with him when he is taking up his new domicile.

I welcome the Bill also because it is a continuation of a long line of innovative and renovating measures this Government have introduced into this House. Not all of them are yet passed but I think most of them will be passed in the next year or two, certainly before we go out of this term of office and we will continue with the reforming programme when we are returned here in 1987. Granted some of these things were done when Fianna Fáil were in power. I will list some of them. We had the removal of the concept of criminal conversation which was even more barbaric than the concept we are trying to remove in this legislation. Only recently we managed to get rid of further discrimination in our social welfare code and Deputy Barnes and Deputy O'Rourke have referred to this. As yet we have not seen that new legislation implemented because of union and strike threat problems. We have seen the publishing of the citizenship Bill which in a strange way gets rid of discrimination that in ways would be considered antimale rather than pro-female, but it meant that the woman was not given the right to bestow her citizenship on her spouse, whereas the male could bestow with great largesse his citizenship on his foreign wife if she came to live here. That Bill has been published and we hope to see it enacted soon.

In October 1985 the Minister for Labour, Deputy Quinn, introduced new regulations dealing with the Garda and the prison service to get rid of some of the discrimination that existed there against female members entering those services. More recently and at long last we have seen the golfing unions getting rid of a clause that underlined the male dominance in the golf clubs and was blatantly discriminatory against women. The clubs would take their money but would not allow them to participate in the running of the clubs because they were nice, little, feeble women who would not know about important things like that. Through pressure and the right actions the Golfing Union of Ireland have seen the light of day and have removed that embargo. That is not finished yet because the clubs and their constitutions will have to allow full membership to women. At least it is a recognition that we are unique in our own way. We have been blessed with intelligence. We can make mistakes as men can. We can do marvellous things as men can. The removal of a number of these concepts from our legislation will help to widen people's recognition that we are not so bad, we can be good, bad, brilliant and stupid. That is why I welcome section 1 and the whole idea of recognising our uniqueness in the same way as men's uniqueness has been recognised down through the years on our Statute Book.

As the Minister said, not many women will be affected. This Bill will not revolutionise much or be talked about in the highways and byways. It is the concept, the principle, that is incorrect, discriminatory, barbaric in all that it intends and means that has been wrong. Whether it affects ten people, 100 or only one person this year, it is wrong and I welcome the fact that we are now getting rid of it.

Following on the Law Reform Commission's Report, LRC 7 of 1983, the Fianna Fáil Party decided to follow the advice given in the report and go for the habitual residence. I can understand why they did so. The commission appears fairly divided, when one reads between the lines, as to the benefits of choosing habitual residence or domicile. In their report, on page 7, they spell out the concept of habitual residence and some drawbacks as follows:

It may be difficult to determine where a person has his habitual residence if he is constantly on the move and has no real or continuing connection with any of the countries through which he passes.

The report further says:

The degree of importance that is to be given to intention as a factor in determining whether a person's residence is "habitual" may be a matter of debate and uncertainty in particular cases. While the question of intention in the case of domicile may be give rise to difficulty, there is at least some reasonable degree of judicial consensus as to the strength of the intention that must be established: with habitual residence such consensus has yet to be attained.

In page 13 of the report it is stated:

The Commission has re-examined in detail the question whether it would be better to reform the law of domicile or replace it as a connecting factor by habitual residence. After much consideration, it has come to the view that on balance the better course is to replace domicile by habitual residence.

On reading through that report, one gets a distinct impression that it took a great deal of consideration and that the balance was only barely tipped on the side of habitual residence. I can see why. habitual residence is easy to claim; domicile is not. The danger with habitual residence is that a man could set up an habitual residence in a country very quickly with far less intention of staying there. He could be there purely and simply to get a divorce and move on perhaps to wherever his newly found partner might be, or whatever the case might be. If we are using the concept of habitual residence and extending it to cover both spouses there is a danger in what we are doing here, that it would become too easy for people to get divorces which would be recognised in this country. The idea of domicile is a strengthening point in the Bill. Schools of thought are divided and you will meet a lawyer one day who will come down on the side of domicile and another lawyer the next day who will come down on the side of habitual residence. On balance, however, the Minister has decided on the concept which I think will give more protection.

I want to deal briefly with section 4 with regard to minors. Is there some specific reason for the Bill not actually giving the age of the minor? Are we talking about 16 years as recommended in the report, or 18 or 21 years? I assume it would be either 16 or 18 years. Is flexibility excluded from the Bill lest there might be a very mature 16 years old or a not so mature 17 or 18 year old? I should like the Minister to deal with that aspect on Committee Stage. It could be teased out a little more. That section is a little nebulous.

I have a few other questions in regard to the domicile of minors. The Minister may have covered the point in her speech but I am not sure of the situation. It says in the Bill that if the parents are separated the domicile will be the domicile of the mother. What happens if custody has been granted to the father? Are these the complications which the Minister mentions? Perhaps we could get a little more information on Committee Stage. How will it be handled and will the courts have wide flexibility on this Bill to enable them to decide? If the father has custody it would be nonsense to insist that the child should have the domicile of the mother.

Deputy Woods and Deputy O'Rourke made great play — and rightly so — with the fact that this Bill seems to be weaker than theirs because of the fact that the spouse does not have to be told about the other partner taking divorce action. Deputy Woods referred to section 5 which says that with the independent domicile to be established, "there is hereby substituted a rule that a divorce should be recognised if granted in the country where either spouse is domiciled." The explanatory memorandum states:

Subsection (6) provides that the section shall not affect any ground on which the Irish courts may refuse to recognise a foreign divorce apart from the ground that the requirements as to the domicile of a party are not satisfied. In particular, the subsection will enable the courts to continue to withhold recognition if a spouse has not been given adequate notice of the divorce proceedings.

I must say in criticism of the Bill that the explanatory memorandum is clearer than the Bill.

Mrs. O'Rourke

The spouse would have to go to court.

Mrs. Owen

We need the explanatory language of the memorandum to be put into the Bill because subsection (6) only says:

Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.

I do not know why it has not continued on to say:

... And will enable the courts to continue to withhold recognition...

and so on.

Mrs. O'Rourke

The spouse would have to go to court to prove it. Heretofore she would not have to.

Mrs. Owen

I agree with Deputy O'Rourke. I would welcome some further strengthening of the Bill in this area. There is a danger that women will find themselves still at the receiving end of extreme problems if there is this total freedom of spouses to obtain a divorce without having to notify the relevant party in this country.

The Law Reform Commission's Report LRC 10, which is the report on recognition of foreign divorces and legal separation, is not strong enough. The chapter, Proposals for Reform, says that the legislation should include a provision giving the court a broad discretion as to whether to accept as proof the findings and inferences, whether of law or fact, of the foreign court where the respondent has not appeared in foreign proceedings.

We should look at that area a little further. Perhaps I am not getting the point because I am not a lawyer or a parliamentary draftsman. Perhaps the wording is as strong as it needs to be. Having started my speech by criticising the fact that we were being pigeonedholed by having only female contributors to this debate, I want to give an opportunity to Deputy Hyland and Deputy Durkan, if they have time before 10.30 p.m., to put a few words on the record on this issue which is a human rights issue, a matter of dignity for a section of our population. This is not because they are women but because they have been discriminated against because they are women.

This Bill is another link in an impressive list of legislation which this Government have either implemented or are about to implement. In the spirit of this debate I welcome the fact that at long last there is undoubtedly, with the presence of people like Deputy O'Rourke and Deputy Hyland, a recognition on the other side of the House that these are issues that must be tackled and which cannot be pushed to one side on the basis that perhaps they are not favourable with the electorate. These are issues of justice and right and I am very pleased that we are having this debate in the House in a spirit of unity.

Mr. Hyland

I am proud to share the floor of the House in this very important debate with those eloquent ladies who, true to form, have spoken with their usual conviction, sincerity and concern. Deputy Owen is right when she says that domicile and the problem of domicile is one not only for women, that it is a problem with which all of us here should be seriously concerned.

For that reason we welcome very much the publication of this Bill. We were disappointed that the Government decided for obvious political reasons to oppose the Fianna Fáil Private Members' Bill. However, we are grateful that our pioneering efforts in this area have resulted in this Bill coming before the House and in a relatively short period of time from the publication of our Bill.

Our efforts to bring about reform in this area must be recognised by all sides of the House. One of the disappointing aspects of this administration has been their failure, after almost four years in office, to bring about much needed law reform. I listened with attention to Deputy Bell who, like the other Deputies from the Government side, spoke with sincerity and conviction in relation to the Bill that was debated here earlier today. But Deputy Bell fell into the usual trap of trying to find a scapegoat and he found that scapegoat by referring to the failure of Fianna Fáil to legislate effectively in this social area. I am not making a political point to the good ladies on the far side of the House.

Mrs. Owen

The Deputy need not spare us.

Mr. Hyland

After almost four years in Government the time has long past when Members on the other side should have stopped blaming Fianna Fáil. Perhaps Deputy Durkan, a man for whom I have a great deal of regard and who I expect will be the next speaker, will outline for us the areas of social reform for which this Government have been responsible since coming into office. We have not yet seen much of the reform that was promised and which we were told was needed so urgently. If it were not for the efforts of the women's committee within the Fianna Fáil Parliamentary Party and the concern they expressed, concern which was shared by the male members of our party, and if it had not been also for the initiative they took in this very important area which had been reflected for a long number of years, we would not be debating this very important piece of legislation at this time.

Mrs. Barnes

That is not fair.

Mrs. Fennell

What about the Family Planning (Amendment) Act? The ladies committee forgot about that.

Mrs. O'Rourke

We have this one notched up.

Mrs. Fennell

The Deputy should not be selective.

Mr. Hyland

I have no desire to enter into any kind of hassle with the ladies opposite. All three of them have been very vocal in expressing their concern, both inside and outside the House, in relation to the need to bring about the kind of reform we are debating here this evening. I am sure that they in turn would be generous enough to acknowledge that the women Deputies on this side of the House, led by Deputy O'Rourke, have also expressed and shared the same level of concern. I am not being unfair when I state categorically that if it were not for the efforts and the initiative and the commitment of the Members on this side of the House this area of law reform would continue to be neglected. The Government must be in their final year in office yet there was no indication that they intended taking any initiative in this area until after our Bill was published. There would have been no opportunity for the three lady Deputies opposite, including the Minister of State, to debate that matter about which they have expressed such justifiable concern. It is for that reason that I regret that a Government who came into office with such a flurry of promises and who built up such high expectations among our people have failed so miserably to bring in reform in this area.

Apart from the subject matter we are discussing now, there is a wide area which is in urgent need of examination and reform. Generally law reform does not require any great capital input on the part of the Government. It does not put any financial strain on Government resources, a factor that is put forward so often as the excuse for Government inaction in so many other areas. On the other hand, Government action in this vital area, or inaction as is the case in this instance, is a cardinal symptom of their insensitivity to the changing social and economic scenes, especially in an area where there is discrimination and victimisation because of laws which have not been amended and updated to meet the changes in society.

In the context particularly of our membership of the EC it is a reflection on the Government and on the House generally that we have not been able to keep our national law abreast of reforms in other countries. There is no more obvious or urgent area than the area this Bill deals with. This is an area that affects the very foundation of society, the family and the individual members as they suffer and are discriminated against because of the inadequacies of existing legislation.

Debate adjourned.