It is unusual for a Bill to come before the House containing at the same time a section that is eminently sensible and another that appears to be extremely dangerous. That is the case in this instance. Consequently the Bill presents us with some considerable difficulty.
Essentially the Bill proposes to change two areas — to change some aspects of the law on domicile and to extend radically the circumstances in which a foreign divorce must be treated as effective under Irish law. As to the first change, I am delighted with the proposal to abolish the domicile of dependency of married women. The notion of a wife's domicile being determined by that of her husband, without any regard to her wishes, has no justification whatever. Far from encouraging family harmony, the dependent domicile of wives has had the effect of encouraging and supporting the legal dissolution of families. The application of the principle of the married woman's domicile of dependency has meant that Irish women, living in Ireland, can find themselves divorced against their wishes by their hubands acquiring a foreign domicile and divorcing them in their new country of domicile. This is a clear injustice to women, since they lose the protection afforded to wives under Irish law once the divorce is recognised here and treated as effective under our laws. They lose their rights under the Family Home Protection Act, 1976, and under the Family Law (Protection of Spouses and Children) Act, 1976. They lose also their entitlements under the Succession Act, 1965. The principle of the dependent domicile, therefore, has worked very harshly so far as women in this country are concerned. Consequently, I am very glad to see its abolition. What puzzles me is why a law that was so obviously unjust remained on our Statute Book for so long. It took the support of everyone here and people generally to have it removed.
I should like to draw attention to what I consider to be a flaw in the drafting of section 1 and which could possibly have unfortunate consequences for some married women. Subsection (1) of that section refers to the rule of law whereby on marriage the woman acquires the domicile of her husband. In the light of two judicial pronouncements at Supreme Court level it is clearly wrong for the legislation to give any explicit support to the proposition that the wife's domicile of dependency is consistent with the Constitution. This is more than a drafting point. Let us imagine the case of an Irish-woman living and domiciled in Ireland who was divorced in 1985 by her husband in England on the basis of an English domicile acquired by him there.
Under existing law if the domicile of dependency of married women is consistent with the Constitution, the divorce must be recognised here. With such recognition the wife still resident in Ireland loses her status as a married woman and all the legal protection afforded to her as a wife under Irish law. However, if the two judicial pronouncements on this question are followed, under present law the divorce would not strip the wife of these entitlements.
Section 2 provides that a previous domicile before the passage of the Bill is to be determined as if the Bill had not been passed. The inclusion of the word "the" before the words "rule of law" in subsection (1) of section 1 would make it easier for the divorcing husband to convince a court that in the considered opinion of the Oireachtas the principle of the wife's domicile of dependency was consistent with the Constitution. There is no reason for our making this concession. In the context of the social and legal argument surely it must be the other way. We should replace the word "the" with the word "any" in section 1 (1). This would distance the Oireachtas from support of the continuance of the wife's domicile of dependency as part of Irish law after the judgment in the constitutional case. This was the solution adopted in New Zealand legislation on domicile in 1976. Why should we make easier the task of a man who wishes to deprive his wife of her entitlements under Irish law? I am sure the Minister of State with responsibility for women's affairs, whose public concern for deserted wives is well known, would not like to see the interests of these women not like to see the interests to a large degree emanated from her Department.
To summarise, I welcome enthusiastically the changes with regard to domicile and dependency in the interests of married women. However, I am worried in case the lazy copying of British legislation of 1973 may result in the Oireachtas giving unnecessary support to the view that the principle of the wife's domicile of dependency is consistent with our Constitution. There may be a temptation for legal draftsmen in the Attorney General's office to clutch at the apron strings of the Mother of Parliament, but we must see that those for whom we have an obligation to legislate are not adversely affected.
All our legislation is subject to our Constitution. I firmly believe that the Constitution affords protection to married women — and let us hope that it does — against losing their status as wives merely because their husbands divorce them abroad in a country where the husband but not the wife has acquired a domicile. It is worth pointing out that in no case has the Supreme Court expressed support for the doctrine of the domicile of dependency of married women in a case where the issue of the constitutionality of that principle was raised.
My reservations on the proposed change in the domicile of minors, contained in section 4, might better be made on Committee Stage but they are sufficiently substantial to draw to the Minister's attention now.
I welcome the move to reduce the sex discrimination which exists under present law but I am most disappointed at the solution adopted in this Bill. The Bill copies the provisions contained in British legislation of 1973 at a time when there is a move to change radically British law. This solution can be criticised for several reasons. First, it retains the principle of sex discrimination in favour of the father for all families where the parents are living together. In 1986 the Minister could do a little better than this. Why should we adopt the jaded solution of a foreign parliament which is likely to change its view in the near future?
My second objection to section 4 is that it makes the law enormously complex for no good reason. In a case where a married couple split up, their young son spending week-days with his mother and weekends with his father, the question of the son's domicile becomes one of most incredible complexity. The court must first determine whether the boy has his home with his mother or with his father. In that simple situation the court could come to one of several conclusions. It could hold that the child did not have his home with his mother because of his ongoing relationship with his father. On the other hand it could hold that the child did indeed have his home with his father at the weekend but with his mother for the other five days. This is an area of confusion which would best be avoided.
I am not happy that it is a sensible law reform measure that a mother's domicile should determine that of her child. In a case where the mother has been separated from the father, leaves the children with her parents and acquires a foreign domicile, say in New Zealand, why should the child's domicile follow that of his or her mother to New Zealand when all that child's contacts and other relatives would be in Ireland? If that child wants to marry has it to be determined whether he or she is under New Zealand law? That the present law is equally nonsensical is a poor defence of the proposal to introduce this aspect of the domicile of the children.
The proposals in section 4 make the position in some respects worse than at present. Under existing law it appears that, where a mother on whose domicile her child depends changes her domicile, she may elect not to change her child's domicile where this would be in the child's interests. The section would in some cases remove the mother's option to leave the child's domicile unchanged where this would be desirable. There is no good reason for reintroducing sex discrimination in relation to the domicile of children. It is quite easy to get rid of it. The Law Reform Commission spelt out a solution involving absolutely no sex discrimination in their working paper on Domicile and Habitual Residence. This has been ignored by the drafters of this Bill who prefer to copy the British formula involving sex discrimination and inappropriate ascriptions of domicile to children against their best interests. I ask the Minister to look at that aspect especially, on Committee Stage.
Section 5 deals with giving effect in our law to divorces obtained abroad. Under present law a foreign divorce will be effective only in cases where it is obtained in the country of common domicile of both spouses. That makes some sense. If both spouses are domiciled in the country where the divorce is obtained, it is not unreasonable for our law to give effect to that decree since both spouses have a long term connection with that country. It is quite reasonable to reflect that. However, it would be entirely unjust and improper for our law to given legal effect to a divorce obtained in the country of domicile of one spouse, especially where the other spouse was domiciled here in Ireland. To do so would mean that an Irish wife domiciled and resident here would have forfeited all her entitlements under our legislation with regard to the protection of women. This legislation includes the Family Home Protection Act, the Maintanance of Spouses Act and, of course, the Succession Act.
The effect of the unjust principle of a wife's domicile of dependency is that such a divorce must be recognised under Irish law. It is not recognised because it would be fair and just to do so, but because it is an artificial attribution to the wife of the husband's domicile. A proper and fair reform of our law would be that, once the artificial attribution of the husband's domicile is removed by section 1 of this Bill, the principle of common domicile as a basis for recognition of foreign divorces should apply without interference. Instead, this Bill proposes to compound the present injustice resulting from the artificial imposition of the husband's domicile on the wife. Rather than accepting the good results of abolishing the wife's domicile of dependency, the Bill proposes to re-introduce the injustice and extend its scope. Having identified the principal evil, this Bill purports to reenact to the detriment of women the adverse effects of what already exists.
A false justification for this legislation would run on the following lines. At present, whether we like it or not, a foreign divorce is based on the domicile of one spouse. The husband would be recognised under Irish law. If we abolish the wife's domicile of dependency, we must either restrict or extend our rules on recognition of foreign divorces. On balance, it is better to extend these rules. That argument is a sham because it ignores the social reality. Extending the range of recognition of foreign divorces is generally more damaging to wives than to husbands. Moreover, it denies the obvious fact that the present recognition rules hurt wives and cause much injustice. Our Constitution seeks to protect the family and its members but whether it adequately does so is a theme for another day. If this proposed legislation renders effective in Irish law a divorce obtained in the country of the domicile of one spouse when the other spouse is domiciled in Ireland, this means that the rights of the spouse domiciled in Ireland would be given no protection whatsoever. I doubt if our Constitution requires or permits the Oireachtas to take away the status and entitlements of marriage from a deserted Irish wife domiciled in Ireland merely because her husband divorces her in the country where he is domiciled. If Article 41 has any meaning it must give priority to the entitlement of the deserted wife.
I do not believe that the Minister or the Minister of State with responsibility for women's affairs is in a position to give any confident assurances to the House that our Constitution gives priority to the wishes of a spouse domiciled abroad who obtained a divorce against his wife whom he had deserted in Ireland. I cannot see merit in introducing changes in the law which are doubtful constitutionally and which will also extend the hardship and injustice for deserted wives in this country.
The reason a wife's domicile of dependency is unjust and operates in a discriminatory way is because it allows a man to be released from his obligations as a husband under Irish law by obtaining a foreign divorce against his wife's wishes where she remains deserted in Ireland. When we abolish the wife's domicile of dependency in section 1 of the Bill, the consequential injustice is removed and the principle of divorce recognition based on the common domicile of the spouses is able to operate effectively. However, this Bill reintroduces all the injustice and hardship in section 5 and extends the hardship and injustice to new cases.
It is odd that the Minister of State should support actively a measure that will cause serious hardship to deserted wives. The Bill contains no provision for women whose husbands divorce them abroad. The Law Reform Commission proposed that there should be protection for these women. The Bill gives priority to the deserting spouse who seeks to divorce his wife and to be rid of his legal obligations to her. The international picture for divorced wives is bleak and we do not wish to put anything through this House which would worsen the position of women in Ireland.
I already recommended that a slight change should be made in section 1 and that considerable work should be done on section 4 to clarify the uncertainties contained in it. Section 5 (1) should be abolished and replaced by "divorce shall be recognised if granted in a country where both spouses are domiciled". I am well aware of the Minister's concern for the well-being of women. I am certain that she would not want to be a party to anything which would adversely affect them. I should like the Minister to consider for Committee Stage the points I made.
