I move: "That the Bill be now read a Second Time."
Marital breakdown is an ever-increasing and growing problem within Irish society. Prior to the seventies the law relating to marital breakdown had remained virtually unchanged for over a century. In 1976 the Family Law (Maintenance of Spouses and Children) Act was enacted to extend powers to the courts to make maintenance orders to provide for the support of dependent spouses, who were usually wives, and children who were not being properly provided for. The same legislation also extended to our courts power for the first time to make barring orders to exclude a violent spouse from the family home. The Family Home Protection Act, 1976, for the first time provided protection for the wife in the family home by preventing the sale of the home without her consent.
Essentially, the legislation introduced during the seventies and some further amending legislation of the early eighties was by way of a fire brigade legislative response to confront particular problems resulting from marital breakdown which were highlighted by pressure groups and the news media. It was not until the formation of the Oireachtas Joint Committee on Marriage Breakdown in 1983 that Members of the Oireachtas for the first time since the foundation of the State conducted a detailed examination of our marital laws and in particular our laws relating to marital breakdown. The committee in their report published in April 1985 acknowledged the failure of the Oireachtas to tackle this area and emphasised the need for reform. They state:
The problems caused by marriage breakdown have not been adequately dealt with by the Oireachtas in the past. The present laws which purport to deal with marriage breakdown are not comprehensive nor are they reactive to the current changes in society and in personal attitudes to the family and to marriage.
In their report the Oireachtas Joint Committee proposed comprehensive and radical reform of our separation laws and the court system that administers them. Many of the recommendations made by the Oireachtas Joint Committee are implemented by the Judicial Separation and Family Law Reform Bill, which is now before the House. A couple whose marriage has totally collapsed and who wish to permanently legally separate may currently adopt one of two approaches. If they agree that their marriage has broken down they may enter into what is commonly known as a Deed of Separation, under the terms of which they agree the future arrangements to be implemented between them to regulate the family finances and family relationships. Where it is not agreed that the marriage has broken down or where it is not possible for a couple to agree on the basis upon which they should separate it is open either to a husband or a wife to bring procedures to seek what is known as a divorcea mensa et toro. This is, of course, not a divorce in the popular meaning of the term, but it is in fact a decree of judicial separation.
The present law relating to the obtaining of decrees of separation has remained unchanged for centuries. Prior to 1871 a decree of separation in Ireland could only be granted by the ecclesiastical courts of the Church of Ireland. By virtue of the Matrimonial Causes and Marriage Law (Ireland) (Amendment) Act, 1870, the High Court inherited this jurisdiction and has exercised it since that date. The Courts Act, 1981, conferred a concurrent jurisdiction on the Circuit Court as and from May 1982 to hear and determine separation proceedings.
The only grounds upon which a decree of separation can presently be granted is upon proof of adultery, cruelty or what is known as unnatural practices. At no time since the foundation of the State has legislation been introduced into this House to either expressly state the grounds upon which a decree of separation can be obtained or to expand, modify or reform the grounds upon which such a decree can be granted. As a result the current law provides no legal remedy for many spouses whose marriages have totally collapsed and who require legal intervention to resolve the consequences of such a collapse. High Court proceedings for a decree of separation can still, curiously, be heard by a judge and jury as well as by a judge sitting alone, although it is some ten years since there was last a jury trial in a separation proceedings. Such proceedings in the Circuit Court are determined by a judge alone. If the court grants a decree of separation it has ancillary powers to make an alimony order to require a husband, against whom a decree of separation has been made, to pay alimony for the support of his wife and may also under the provisions of section 18 (1) of the Guardianship of Infants Act, 1964, make a declaration that the spouse by reason of whose conduct the decree is made is unfit to have custody of any children of the marriage. A decree of separation, or divorcea mensa et toro, also automatically deprives the guilty spouse, be it the husband or the wife, of his or her legal right to a share in the estate of the other, either as a legal right or on intestacy under the Succession Act, 1965. There are no other statutory powers conferred on the courts to make ancillary orders following the making of decrees of separation.
The courts currently cannot in separation proceedings determine property disputes between spouses or disputes relating to the guardianship or custody of children. Neither can they make maintenance orders for the support of a dependent husband or dependent children or orders to protect the family home or to permit its sale, where sale is desirable, or barring orders to provide protection for a spouse at risk of violence or property transfer orders, to provide security for a spouse who requires such security. In recent years, on occasions, both the High Court and the Circuit Court have in practice in some instances granted exclusion orders prohibiting a spouse against whom a decree of separation has been granted from entering the family home but there is no statutory basis for the making of such orders in separation proceedings and the courts jurisdiction currently to make them is open to question.
So as to circumvent the limited jurisdiction conferred on the courts when determining separation proceedings the practice has grown up in recent years of estranged spouses through their lawyers simultaneously instituting a variety of other court actions at the same time as the bringing of separation proceedings so that all issues that have to be resolved between them that arise from a marital conflict can be dealt with in a single court hearing. As a result, following a marriage breaking down a husband and wife can find themselves embroiled in two or three different sets of court proceedings and as a consequence incur a great deal of unnecessary legal expense.
For over 20 years our separation laws have been the subject of considerable criticism. Many voluntary groups and organisations have over the years called for reform and in 1983 the Law Reform Commission published a report on the need for reform. The Oireachtas Joint Committee on Marriage Breakdown discovered there was almost universal agreement right across the religious, social and political spectrum that our separation laws should be reformed and that the current narrow grounds on which a decree of separation can be granted should be replaced by the "one overall ground" of proof of irretrievable marital breakdown. In so recommending the committee recognised that the current grounds which require proof of the committal of a matrimonial offence maximised conflict between estranged spouses, discouraged instead of encouraged voluntary reconciliation and, where reconciliation was not possible, effectively sabotaged the possibility of future co-operation between estranged couples where such co-operation was necessary. The report of the Oireachtas Joint Committee recognised that the essence of marriage is the making of a formal commitment between two people to create and maintain a lasting and stable relationship and that where such relationship collapsed the purpose of separation proceedings was to provide the means whereby the parties to a broken marriage could rearrange their lives for the future with a minimum of bitterness and recrimination.
In recommending that irretrievable breakdown of marriage should be the one overall ground upon which a decree of separation should be granted, the Oireachtas Joint Committee prescribed six basic facts, one of which must be proved by a spouse to obtain a separation decree. Section 2 of the Bill now before the House corresponds to this recommendation of the Oireachtas Joint Committee.
The committee also recommended that all barriers to reconciliation contained in current law should be removed, and this is reflected in the provisions contained in the Bill. They recommended further that, following the granting of a decree of separation, the courts should have comprehensive powers to make maintenance orders, guardianship, custody and access orders relating to children, lump sum payment orders, property transfer orders, orders relating to the family home and other family peoperty as well as orders to provide protection for a spouse at risk of violence at the hands of the other spouse. All these recommendations are implemented in the provisions of the Bill before the House tonight. I wish to outline some of the provisions contained in the Bill as published. We will, of course, deal with them in more detail on Committee Stage.
Part I of the Bill deals with the basis upon which a decree of separation can be granted and related matters. Section 1 provides that after the commencement of the Bill the sole ground upon which a decree of judicial separation shall be granted is that the marriage has broken down irretrievably.
Section 2 provides that, in order to establish that the marriage has irretrievably broken down the party to the marriage must prove one of six facts. These are (a) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent (b) that the respondent has committed adultery (c) the respondent has deserted the applicant for a continous period of at least one year immediately preceding the presentation of the application (d) the parties to the marriage have lived separate and apart from each other for a continuous period of at least one year immediately preceding presentation of the application and the respondent consents to a decree of judicial separation being granted (e) the parties to the marriage have lived separate and apart for a continuos period of three years immediately preceding the presentation of the application, or finally (f) the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to cohabit with the respondent. All these provisions correspond with the recommendations of the Oireachtas Joint Committee as contained in paragraph 126.96.36.199 of their report.
Section 2 (2) requires that on proof of such a fact a decree of separation must be made unless the court is satisfied on all the evidence presented that the marriage has not broken down irretrievably. Section 2 (3) includes constructive desertion within the definition of "desertion" as referred to in the six basic facts I outlined. Section 2 (4) makes provision to ensure that where it is alleged a party to a marriage consents to the granting of a decree of separation the consequences of so consenting are fully understood by him.
Section 3 contains a provision to ensure that if parties to a marriage attempt a reconciliation after marital difficulties have occurred which could give rise to one or other of them seeking a decree of separation, the attempt at that reconciliation does not prevent a spouse from seeking a decree if the reconciliation does not prove successful. Under the current law if a husband or wife attempts a reconciliation and if the reconciliation does not prove successful, the spouse who could have brought separation proceedings may find he or she is unable to do so due to their being held to have condoned the matrimonial offence previously committed by the other spouse. In effect, the current law acts as a barrier to conciliation in circumstances where reconciliation may prove possible. For example, at present if a wife learns her husband has committed adultery and upon his promising not to commit adultery again forgives him and the couple resume normal marital relations, if matters do not work-out the wife may find that because she attempted to resolve the marital difficulties she is excluded from seeking a decree of separation. The current law effectively militates against reconciliation. The provisions of section 3 and section 32 of the Bill are designed to remove obstacles to reconciliation inherent in the current law.
Section 4 contains provisions to ensure that court proceedings between couples are avoided where possible. It requires a solicitor consulted about a marital difficulty to advise the spouse as to the availability of marriage counselling where there is a possibility of the marital problems being resolved. Where there is no such possibility a spouse must be advised as to how to effect a separation without bringing court proceedings. In the latter context a solicitor is required to furnish information to a spouse as to the availability of mediation services and the possibility of resolving the consequences of marital breakdown by the conclusion of a separation deed or a written separation agreement. Section 4(2) contains provision to enable a court hearing a separation case to adjourn the proceedings upon the application of either spouse if there is a reasonable possibility of a reconciliation being effected.
Section 5 makes provision to ensure that proceedings seeking a decree of separation cannot be commenced by a party to a marriage until at least one year after the date of celebration of marriage unless difficulties have occurred of a serious and exceptional nature so as to render it unreasonable and unjust to delay the issuing of proceedings. Section 6 provides that, following the granting of a decree of separation, the parties to a marriage are no longer obliged to reside together.
Part II of the Bill contains provisions to enable the courts to make comprehensive ancillary orders following the granting of a decree of separation. It also contains provisions to enable the courts to make interim orders or emergency orders to provide protection for a spouse where it is necessary to do so prior to a court hearing taking place and the court fully and finally determining the separation application. Section 8 gives powers to the court in separation proceedings where necessary to make such interim orders in respect of maintenance, interim barring orders to provide protection for a spouse at risk of violence, interim custody orders or access orders relating to children and interim orders for protection of the family home and for the protection of household furniture and property.
Section 10 lists the various orders the court can make following the granting of a decree of separation. Under this section it is provided that the court may make maintenance orders for the benefit of a dependent spouse and children; the court can make lump sum payment orders, property transfer orders, orders extinguishing or varying inheritance rights, orders determining any disputes relating to the guardianship and custody of children that arise, orders determining property disputes under the Married Women's Status Act, 1957, orders under the Family Home Protection Act, 1976 and barring orders under the Family Law (Protection of Spouses and Children) Act, 1981. It also extends to the court power in separation proceedings to make orders under the Partition Acts, 1868 to 1876 relating to the sale of property.
Section 10 (1) (m) enables the court to make an order determining which spouse shall have the right to continue to reside in the family home and which spouse shall vacate the home, or in the alternative whether an order for the sale of the home be made subject to such conditions as the court determines. Section 11 states the criteria the court is to have regard to in making an order under section 10 (1) (m).
Section 10 confers a jurisdiction on the court to grant orders pursuant to the specific Acts named in the section without the necessity of additional and separate court proceedings having to be instituted which would result in both husband and wife incurring much additional unnecessary legal expense such as they have to incur at present. Section 10 (4) provides that the court's jurisdiction to make property transfer orders and orders extinguishing or limiting inheritance rights can be invoked only on one occasion after the granting of a decree of separation.
Section 11 describes what criteria the court is to have regard to in making an order relating to a family home under section 10 (1) (m). In exercising the latter jurisdiction the court is required to have regard to the welfare of the family as a whole and in particular must take into consideration the following matters: (a) where a decree of judicial separation is granted it is not possible for the parties to a marriage to continue to reside together (b) proper and secure accommodation should where practicable be provided for a dependent spouse and any dependent child of the family (c) the matters referred to in section 13 of the Bill which I shall come to shortly. These provisions are designed to ensure that the position of a dependent spouse and children is fully protected in the making of any order pursuant to this provision, and again reflect recommendations made by the Oireachtas Joint Committee on Marriage Breakdown.
Section 12 provides that an order made by the court extinguishing or reducing inheritance rights can be made only when an order or orders are also being made by the court to pay a lump sum or when a property transfer order is made as provided for in section 10, except in circumstances where a spouse has been guilty of gross matrimonial misconduct.
Section 13 states the detailed criteria the court is to have regard to in determining what orders it should make in respect of maintenance, lump sum payments, property and inheritance rights. The criteria referred to include the criteria currently taken into account in determining what maintenance orders should be made in proceedings brought under the Family Law (Maintenance of Spouses and Children) Act, 1976, and additional matters proposed by the report of the Oireachtas Joint Committee on Marriage Breakdown to require the court specifically to take into account the manner in which family property was acquired and the relevant contributions of both spouses during the course of the marriage.
It also incorporates the view expressed by the committee that a dependent spouse should not be prejudiced in the ownership of family property by the fact that he or she gave up employment in the course of the marriage to attend to family duties in the home. The court must take into account the contribution made by each of the spouses to the welfare of the family, including any contribution made by looking after the home or caring for the family. The court must also take into account the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the period when the parties co-habited together. In effect, these provisions will, for the first time in our law, afford a substantive recognition of the work done by the wife in the home and for the first time in legislation give statutory expression to the constitutional duty imposed on the State to recognise the worth of the work done by a wife in the home. Despite all the constitutional rhetoric on this issue we have not, up to now, conferred such recognition on such work or required the courts to take such work into account when determining a wife's interests in family property acquired during the course of a marriage.
Section 14 provides that in considering the liability of one spouse to maintain the other and the amount of maintenance that should be ordered, the court can take into account the conduct of the spouse seeking maintenance where it is of such a nature and degree that it would be repugnant to justice to require that maintenance be paid to such a spouse. At present, in maintenance proceedings brought under the Family Law (Maintenance of Spouses and Children) Act, 1976, desertion by one spouse of the other is an absolute bar to the obtaining of maintenance, while adultery is a discretionary bar. However, cruelty is not a bar to the obtaining of maintenance nor is the commission of unnatural practices or any other form of matrimonial misconduct. The report of the Oireachtas Joint Committee on Marriage Breakdown recommends that the law in this area be changed and this provision is designed to implement the proposals of that committee.
Section 15 provides for the backdating of maintenance orders to the date when judicial separation proceedings were instituted and effectively prevents a spouse who fails to maintain his family from benefiting by deliberately delaying the hearing of court proceedings so as to avoid incurring an obligation to make maintenance payments for the support of a dependent wife and children.
Section 16 provides for the discharge or variation of maintenance orders in the event of a change of circumstances of either spouse.
Section 17 applies to maintenance orders made subsequent to separation proceedings the same provisions as currently apply to maintenance orders made currently under the Family Law (Maintenance of Spouses and Children) Act, 1976. Support payments for children can under this provision continue until a child attains the age of 16 years or if such child is still participating in a full time course of education or instruction until the child attains the age of 21 year's, as is the case currently under the 1976 Act. If a child is suffering from mental or physical disability to such an extent that it is not reasonably possible for him to maintain himself fully, maintenance provided for the support of such a child can continue indefinitely, well beyond the child's 16th or 21st birthday.
Sections 18, 19 and 20 of the Bill extend provisions contained in existing maintenance law which apply to maintenance orders made under the Act of 1976 to maintenance orders that are to be made under this Bill and extends the remedy of attachment of earnings to such maintenance orders so that the employer of a maintenance defaulter can be required to make maintenance payments directly out of the defaulter's salary. In effect, this means that if a maintenance order is made under the terms of this Bill and if a husband, for example, who is required to make maintenance fails to do so, and he is in employment, it will be possible for a wife to have his earnings attached. The weekly or monthly maintenance payable to the wife can be deducted by the employer for transmission to her.
Part III of the Bill deals with court jurisdiction. As already stated, currently, separation proceedings can be commenced in either the High Court or the Circuit Court although the majority of such cases at present are brought in the Circuit Court. Very often the Circuit Court hears family law cases on the same day as it hears criminal prosecutions, pub licensing applications, running down actions and other civil actions. As a result distressed husbands and wives are very often left hanging around the courts while other legal proceedings are given precedence. The Bill expressly provides that the Circuit Court shall hear initially all judicial separation proceedings and that when it is dealing with such proceedings the Circuit Court is to be known as the Circuit Family Court. It also provides that judicial separation proceedings should be heard on separate days set aside for the hearing of such proceedings and should not be intermingled with other types of court actions. As an alternative, it is provided that the Circuit Court sitting as the Circuit Family Court shall hear judicial separation proceedings at a separate venue from the venue in which other court proceedings are usually heard. The Bill also provides that all existing powers vested in the Circuit Court to hear and determine family law cases shall be transferred to the Circuit Family Court and heard and dealt with by it. Matters relating to the Circuit Court's jurisdiction are dealt with in sections 21 and 22 of the Bill.
Section 23 provides for a degree of informality at the hearing of family law proceedings. The Oireachtas Joint Committee on Marriage Breakdown emphasised the need to reduce the adversarial element inherent in the resolution of family disputes and to provide a less formal type of adjudication process for their resolution. Where legal rights are in contest it is clear that it is essential to ensure that justice is properly administered. Accordingly, it is not possible to make such proceedings totally informal. To deal with this issue, however, the Bill provides that family law proceedings in the District, Circuit or High Courts shall be as informal as is practical and consistent with the administration of justice. These matters are dealt with under the provisions of sections 23 and 33 of the Bill.
The Bill also provides that neither judges hearing family law proceedings nor barristers nor solicitors appearing in them should wear wigs or gowns. This provision is similar to one enacted in the legislation of a number of other countries in recent years such as Australia and New Zealand. To ensure that the anonymity of couples whose marriages have broken down is preserved provision is also made for all proceedings brought under the Bill to be heardin camera.
Of relevance to the manner in which the court exercises its jurisdiction is a provision contained in section 28 in Part IV of the Bill. The Oireachtas Joint Committee emphasised the need to enable judges determining disputes in relation to children to obtain independent welfare reports and assessments to assist them in the decision-making process. This section amends the Guardianship of Infants Act, 1964, by adding provisions to it which confer power on all courts dealing with proceedings relating to children to seek independent medical, psychological, psychiatric or social work reports on the child, the subject of the proceedings. By virtue of this provision and the provisions contained in section 8 and 10 of the Bill and Circuit Family Court, following the granting of a decree of separation prior to the making of any access orders relating to the guardianship and custody of children, will, if the judge deems it necessary, be able to seek such independent reports.
Part IV of the Bill deals with a number of consequential amendments of existing family law legislation which are required to provide for a consistent legal approach to the area of matrimonial law on the Bill being enacted.
Before moving completely away from reference to the courts it is only right to state that while the Bill provides for a number of radical reforms and changes in the approach of the courts to the resolution of family conflicts, it does not in full implement a major recommendation of the Oireachtas Joint Committee on Marriage Breakdown. The reforms being introduced by the Bill all accord with individual recommendations made in the joint committee's report with regard to the reform of the courts. However, a major recommendation of the Oireachtas Joint Committee is that there should be established a unified family court structure to hear and determine all family law disputes between spouses that require judicial resolution. They recommend that the current overlapping and fragmentary court jurisdictions exercised by the District, Circuit and High Courts should be transferred to a single court staffed by judges with a particular expertise in family law matters and who would have the backup of necessary welfare services. Unfortunately, it is not possible in the context of a Private Member's Bill to provide for the establishment of such a new court system. Legislation providing for such a court can only be enacted by the Government because it would constitute a charge on the Exchequer. While the provisions contained in this Bill will substantially improve the current position I would urge the Minister and his officials to examine seriously the recommendations made by the Oireachtas joint committee to provide a unified system of family courts and I would hope that legislation to establish such courts would be brought forward by the Government in the not too distant future.
I have now completed my outline of the main provisions of the Bill. It is my hope that this measure will receive support on all sides of the House. I have been greatly encouraged by the reaction I have received to it from Deputies on all sides of the House, including the Government side, since its publication and I would like to put on record my appreciation of the constructive approach adopted to the Bill by the Taoiseach who prior to Christmas indicated in the House that the measure would not be opposed by the Government and that he and the Government were well disposed to the Bill passing through Second Stage and proceeding into Committee.
This Bill is designed effectively to take Irish family law out of the 19th century and into the 21st century. It seeks to minimise the hardship and distress that can occur when marriages break down and attempts to ameliorate rather than exacerbate marital conflict.
It seeks to place a duty on lawyers consulted about a marital problem to ensure that all avenues have been explored by a distressed spouse before court proceedings are commenced. It imposes for the first time in our law an obligation on solicitors to provide information about marriage guidance services that are available and, where marriage guidance is not a practicable possibility, it imposes an obligation on them to provide information about the availability of mediation services.
It is a measure which is designed to encourage spouses whose marriages have broken down to reach a civilised agreement about their future arrangements without the necessity of court proceedings where that is possible. It confers new comprehensive powers on the courts to make financial lump sum and property transfer orders to provide additional protection, in particular for dependent wives and children, by enabling the courts to give to them a far greater degree of security than they can obtain at present. By conferring a jurisdiction on the circuit family court to resolve all outstanding problems that arise upon a marriage breaking down in one court action, the Bill will reduce the cost of family law litigation and will simplify much of the documentation required to commence court proceedings. Reform of the court procedures, the separation of family law court proceedings from other types of court proceedings, the prohibition on the wearing of wigs and gowns and provision to enable judges to obtain independent welfare reports on children will make family law court proceedings a less distressing experience for those who look to the law to resolve their difficulties.
I look forward to a detailed and constructive debate on the various issues raised by the Bill. The intention of Fine Gael in bringing forward this Bill is to provide the best and most comprehensive measure that is possible in this area. In this context I look forward to hearing any comments and criticisms Deputies may have to make. As we move out of Second Stage and into Committee Stage I will welcome any constructive amendments Deputies may propose that can improve the Bill to ensure that upon its enactment it will comprehensively and effectively reform our laws.
This Bill, like the Adoption Bill that we brought before this House last year, is one of a number of social reforming measures Fine Gael intend to bring before the House during the lifetime of this Dáil. A party in Opposition have a duty not merely to criticise the Government when they deserve to be criticised but to bring forward constructive legislative measures that deal with major areas of reform that need to be tackled.
Thirty years have elapsed since a Private Members' Bill was last enacted. It is noteworthy that in the 30 year period of 1928-1958, 16 Private Member's Bills were enacted through the Oireachtas. Since 1958, not a single such Bill has become law. It is unfortunate that Governments of different political persuasions in recent years have automatically taken the view that a Private Member's Bill sponsored by an Opposition party should be opposed regardless of the content of such Bill or its merits.
For too long Governments in this country have looked with suspicion on Private Member's Bills brought forward by individual Deputies for no reason other than to protect what has come to be regarded as the ministerial prerogative to introduce legislation and Governments have automatically and mindlessly opposed such Bills even if their passage would facilitate the Government in implementing policies which they supported.
The present Government are to be commended for not adopting such a knee jerk reaction. It is to be hoped that in the context of this Dáil the Government in their response not only to this Bill but to future Private Member's Bills that are published will copperfasten a change of attitude and a more mature political approach to the legislative process. We fought in this country for centuries to be given the privilege of legislating for ourselves. For too long Deputies in this House have been criticised for not acting as legislators when in reality they have been prevented by successive Governments from doing so. For too long Opposition and backbench Deputies have accepted the role of the legislative eunuch imposed upon them by the Government of the day. My own party have on occasion been as much as a sinner in this as sinned against. It is to be hoped that this Bill will be the harbinger of what can be described as a new parliamentary glasnost.