Deputy Abbott is in possession and has 20 minutes left.
Private Members' Business. - Judicial Separation and Family Law Reform Bill, 1987: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
The provisions of the Bill regarding the divide-up of property of the family on a judicial separation are quite numerous, many of them innovative. Many are desirable and one that is particularly striking is the provision in section 13 (f) which allows a court to take into consideration when dividing up the shares of the family home, making provision for a lump sum payment or other financial provisions for a wife or husband in the separation, and the contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family.
This is a very valuable addition to the corpus of the legal criteria which are to be applied in the divide-up of property between a husband and wife in a separation. It looks after a basic instinct of the partners of marriage to seek appreciation and recognition for the toil in the home — and outside it — in relation to the ordinary day-to-day looking after the family. In constituency rounds one meets many people, women especially, who express their concern in their later years for the lack of appreciation from their family or the State through its laws of the toil they put into the home.
I recollect that some years ago there was a proposal in an election campaign that women would in some way be recognised by a credit in respect of their contribution to the home. This was widely appreciated and enthusiastically received by women. There are situations in which men would feel equally entitled to that type of recognition and this section gives the court the power to do that. That is to be welcomed, the paragraph should not be deleted. I enthusiastically support it and I would be very surprised if anyone in this House took a different view. However, I have one reservation regarding that paragraph which I expressed to Deputy Shatter already at a meeting of the Joint Committee on Women's Rights. My reservation is that it tends to create an imbalance between the persons who are in the course of working out a judicial separation in the courts and those whose marriages never come near the judicial separation stage, whose marriages are quite normal and begin and end in the happiness, fidelity and success which we expect of the normal, average marriage.
My misgiving relates to the fact that this very desirable paragraph may, where marriages are marginally approaching the judicial separation stage and might possibly be saved with a bit of effort, actually be the straw that breaks the camel's back in driving a spouse into court to seek a full-blown, judicial separation. It is an incentive to the partner in the marriage who is anxious to have that appreciation and recognition of his or her efforts in that area of looking after the welfare of the family. I am not saying that it could ever be an overriding factor in causing marital separation — that would be far too much to say — but I wish to point out that it creates an imbalance and somehow devalues the ordinary toil of the woman in the home whose marriage does not break up in the court of judicial separation.
I wonder what the implications of this radical section will be for law in other areas, for example, community property, and the attitude of the ordinary husband and wife to their rights within normal marriage when this very special right is being given to those whose marriages have broken down or are in the throes of breaking down.
In relation to the whole structure of the Bill, one might tend to react to its rather lofty and erudite style, which is very much in the tradition of family law legislation which it follows. It is consistent with the very major effort put into it by Deputy Shatter whose ability in this area as an academic, writer of text books and a practitioner is undoubted. However, I warn against getting perhaps too lofty about the situation and I would direct Deputy Shatter, the Minister and the Government to consider the situation as it might affect the people in local authority houses who cannot get ready access to the courts, even using generous legal aid and who, psychologically, do not feel up to going into court and do not like facing up to even the more informal arrangements which might result from the passing of this legislation.
Many people in every constituency in local authority housing are in that situation. They are mostly wives whose husbands have left them and they are stuck there with the tenancy in the name of the husband. Their only response, very often, to their marital plight is to go down to the housing officer in the local county council or authority and ask him to put their name on the tenancy of the house, their only asset, to give them the comfort and security of knowing that they have a roof over their head. There will be many who will say that the wife is secure in that instance, that there are provisions in the Family Home (Protection) Act and in common law to give her the security under the law which she requires, notwithstanding the fact that the husband has flown. As a lawyer, I concede that is the case but my experience is that wives will go to the housing officer or the local authority to make that request. They take great solace from the fact that the local authority will make some arrangement, legal or illegal, to change their name to the tenancy of the house which they occupy. One cannot know whether it gives a psychological or emotional boost which solves their problem, but I report it to this House as a fact which is mirrored in other constituencies apart from my own. Various local authorities treat it in varying ways. Some of these ways would be conceded by the officers of local authorities to be contrary to the strict legal rights of the husband but practical local authority officials, in the interest of the wife and children or whoever may continue to occupy the house and in the interest also of the local authority, will very often change the name as requested. In some cases they take the view that nothing should be done and that the wife's request to have the house transferred to her name should be ignored. In those cases the officials are far from happy that they are doing the just and appropriate thing. I cannot see anything in this Bill which deals with that simple forthright situation which does not comply with the framework and the scheme we have inherited in relation to the lofty judicial concept of marital separation.
I would ask Deputy Shatter and the Minister to consider bringing forward an amendment on Committee Stage to allow for this procedure to be formalised and to give the local authority, in that position, the power which would be expressed under statute to grant the wishes of the wife to the security of her home without putting her through the throes of an application to the Circuirt Court or the High Court or any interim application which may have to be made. These matters can often be too weighty for the person on the ground especially the woman who, possibly after six months or a year, is unsure as to whether her husband will come back.
I suggest that the power which would be given to the local authority to change the name on the tenancy at that stage would be a power to change the ownership, subject to certain equities remaining outstanding in the husband's name, pending the passage of a generous period. Perhaps a three year period as mentioned in the Bill would be sufficient in relation to certain requirements for irretrievable breakdown or, possibly a further period when the equities might well be discharged. Application could be made by a wife by putting in a simple straightforward affidavit of the desertion of the husband and filing it with the local authority housing officer or some such officer of the local authority. This very nominal change can be made with the minimum of difficulty and delay and with no expense.
Looking at the situation in practical terms I would echo the sentiments of Deputies who expressed concern about the difficulty of service of documents. When one gets into the practicalities of family law, especially in relation to poorer people, one finds that no matter what legal aid exists very often there are insurmountable expenses resulting from the fact that the husband or the wife — the party who is sought to be served with the proceedings — has vanished without trace. It is no easy job to trace anyone who has gone to England, the United States, Spain or any other country. This is a problem which plagues and besets every area of family law no matter what relief one is seeking, whether under the family home protection Act, barring orders or whatever. Because this legislation encompasses the type of relief being sought in all other areas of family law the difficulty of seeking remedies for the person who cannot trace his or her partner, to serve documents on them, should be looked after and more efficient procedures should be provided in the Bill which would not only cover the difficulties encountered in this legislation but would also cover the difficulties in finding a partner to serve proceedings on them in relation to the proceedings sought to be enforced. I would like that this House would consider the Bill in terms of ensuring that whatever rights are conferred on people by the Bill would be accessible not only by the provision of legal aid which exists in larger or smaller measure for people who cannot afford lawyers at present, regardless of how we might criticise the system, but legal aid will only go so far. If the structure is basically unworkable no legal aid will remedy the deficiencies.
A critical mould for this Bill would be to examine how it would affect the person of small resources, of limited emotional commitment, in going through the whole gamut of legal proceedings and who would be frightened by the most informal procedure, if these procedures, in technical terms, have to be set out and described in the terms of this Bill. I hope that through the work of the Government in preparing amendments for Committee Stage and, by way of the special Committee Stage, this Bill will have added to it many refinements and additions which will result, at the end of the day, in very fine legislation that will result in much happiness for people. I hope it will stem the tide of family break-up and result in firmer and happy marriages.
The Labour Party welcome this Bill and will be supporting it on Second Stage. The purpose of the Bill is to widen the grounds on which a spouse can obtain a judicial separation. The Bill is a fine and welcome reforming measure and will provide an opportunity for some of those whose marriages have tragically broken down to put some semblance of finality and order on their family situation. I said for "some", the limited category who will be able to take advantage of this reforming measure will be those who have plenty of money on hands to pay the teams of lawyers who would be needed to avail of the new remedies proposed in this Bill.
It is the same old story, the legal system provides procedures for people and in theory these remedies are open for all to avail of but there is one serious snag. It costs money to come into the halls of justice to avail of these new remedies — a great deal of money. As the old saying put it: "Justice is open to everyone, like the Ritz Hotel".
It is interesting and sad to note that the Minister in his entire speech gave not a single thought, or a single comment, to the fact that a substantial proportion of the Irish people just could not afford to avail of the new procedures being proposed in this Bill. He did not say the one thing — the most important thing I was waiting for him to say — namely, that he will ensure, with his Government colleagues, that whatever legal facilities are necessary will be provided to ensure that all people, whose marriages have irretrievably broken down, will be enabled to avail of the new remedies being made available for the first time in this Bill if they wish to do so. There has not been a single word about that aspect of the matter which is crucial.
There is no point in giving fine new remedies when a substantial proportion of the people cannot afford to avail of them. I note, too, that Deputy Shatter, in introducing the Bill, made no comment about the need to provide funds to enable all the children of the nation to be treated equally and to avail of the new remedies sought to be put on the Statute Book.
The report of the Oireachtas Joint Committee on Marriage Breakdown stated that access to justice must be available to all irrespective of their means. The same report went on to state on page 111 that the present structure of the Government law centres is grossly inadequate, and certainly does not ensure equality of treatment for all. The same report pointed out that in 1985 it cost anything from £1,000 to £2,500 to have a hearing of a separation case in the Circuit Court or in the High Court and that this level of legal costs was a major disincentive and in many cases effectively prevented people from obtaining the remedy they required. If anything, the costs of these proceedings have escalated since then.
What has the response of the Government been? We all know that the free civil legal aid scheme has now virtually collapsed and that all of the centres have massive backlogs. The most basic recourse which people need in situations often involving tremendous distress is being denied to them at present. How will the legal aid centres cope if and when it becomes possible for people to apply to them for help under this new Bill?
The allocation of free civil legal aid has been a pittance, substantially less than £2 million a year. In the Book of Estimates published last October that allocation was actually cut in real terms. Far from recognising the need to improve facilities and resources available, the Government have left a serious doubt over the very existence of the centres for the future. All of them are suffering from the same problems. In addition to their backlogs, they have extreme difficulty in retaining and recruiting staff. In a word, there is no point at all in introducing an efficient and fine new system such as is being proposed in this Bill if those in need cannot afford to avail themselves of it.
The Minister does not appear to be concerned about the people of little or no property. In his speech he saved his concern for people of such substantial property who would have to have their cases heard in the High Court rather than in the Circuit Court. With the record of cutbacks introduced and promised by this monetarist Government, aided and abetted by Fine Gael and the Progressive Democrats, it is quite clear that there is little prospect of justice being made available to all under this Bill. Accordingly, the Labour Party have no choice but to look at some possible method under which some of the benefits in the Bill could at least be opened up to a much larger section of the community who might need to avail of its benefits.
There is one way only to achieve this and that would be to give a jurisdiction in some judicial separation cases to the District Court. On Committee Stage of this Bill I propose to introduce amendments on behalf of the Labour Party that would give a commensurate jurisdiction to the District Court to make judicial separation and ancillary orders in certain circumstances. This is certainly not to be taken as an alternative to the need for a proper free legal aid scheme in civil cases. However, the District Court procedures are far simpler and far quicker than procedures in the Circuit Court or in the High Court. Most important of all they are considerably cheaper.
The spouse in poor financial circumstances or on social welfare might have some hope of obtaining a much needed judicial separation or other protective orders from the court if such a person could avail of the simple and cheap procedure using the services of a solicitor alone. Also, a spouse might have less fear of appearing as a litigant in person in the District Court than in one of the superior courts. The staff who work in the family law offices of the District Court are always particularly helpful to litigants appearing on their own and I would like to pay a particular tribute to the work they do. The need to have recourse to family law is not confined to the well-to-do. Indeed, quite the reverse is the position. Trying to get by on the dole or on low wages in itself puts a great strain on many families and must be at least a major contributory factor to marital breakdown in very many cases.
If a jurisdiction was given to the District Court it would open up the remedies in the Bill which are needed so much to a far wider extent than otherwise would apply. It might be said that district justices are not sufficiently qualified or sufficiently elevated in the judicial hierarchy to deal with such important matters as judicial separation cases. I would disagree with that suggestion. By and large district justices are practical, down to earth people and, if anything, are more in contact with the everyday lives and difficulties of working people than would be experienced in the more refined and rarefied atmospheres of the superior courts. I would have every confidence in the ability of the district justices to deal very effectively and fairly with certain categories of judicial separation cases. I have to point out that they are already dealing with analogous matters in the form of barring orders, custody and access applications and other allied family law matters. It would be a logical extension of their work if they were accorded a jurisdiction within certain limits to deal with cases of judicial separation.
Comment has been made on the fact that the existing judicial separation procedures which have always been there have been availed of so little. The existing system was indeed archaic but I believe that a major factor was that the cost of availing of those procedures was so high that they were out of reach of very many people who urgently needed the remedy of a judicial separation and the other connected court orders that go with it. I think that an analysis would show that most of the people who did avail of the procedure were well-to-do and, as we know all too well, the well-to-do never have any problem in using whatever legal remedies there may be either in this country or elsewhere.
Even before this Bill those with money could get judicial separations in this country under the old system or divorces in the UK or elsewhere if and when they wanted them. It was those with little or no resources who could not avail of the remedies, and the Bill in its present form if that is all we get would not change that very much. That is why I believe the opening up of the Bill to the community at large who need it can only be achieved in present circumstances if a jurisdiction is given to the District Court.
Much has been made of the so-called spirit of glasnost which is showing itself here in the fact that this Bill is being put forward and accepted by the Government as a consensus measure. Glasnost was the word used by Deputy Shatter. I think that Realpolitik might be a better word to use. The Government may well know that if they were to fight the Bill they might well be defeated on it. Nonetheless the Bill is to be welcomed. I have no doubt that there will be many amendments to it on Committee Stage but I am a bit concerned about the hint in the Minister's speech that there may be a prolonged delay before the Bill advances to that Stage. I hope the Government do not have an idea of putting the matter on the long finger because that would not be accepted by the House. I do not feel that the measure, valuable though it is, meets the real needs of the people affected.
When one analyses the Bill, which has been accepted in principle by the Government, one must come to the conclusion that it is identical to a full divorce procedure in every respect as regards personal rights, parties living together, property rights, separation, barring and so on, except one — the right to remarry. I must refer to the antics of other political parties represented in this House on the divorce referendum. It is regrettable that this glasnost, this consensus that is showing itself today, was not evident in that referendum. The Fine Gael Party, apart from a few notable exceptions such as Deputy Shatter, who has introduced the Bill, and Deputy Barnes, were not behind the divorce referendum. The role of the Fianna Fáil Party left a lot to be desired.
The Deputy seems to have forgotten that the Government of Fine Gael and Labour provided for a referendum on divorce.
Fine Gael and Fianna Fáil are prepared to reach a consensus in regard to this matter, are prepared to agree to mutual family positions being set out which are identical to divorce in all respects but deny the right to remarry. Why should we deny a person the right to remarry if that person is anxious to do so? I accept that there may be a religious precept against it and that is quite in order. It is a matter for the individual whose religion forbids him or her to remarry to decide if he or she will remarry but to impose that condition, as was done by the bulk of the Deputies in the House in the divorce referendum and come forward with this consensus——
On a point of order——
I am sure this is not a point of order.
On a point of order, the Deputy is entitled to engage in hyperbole but I must point out to him that no majority of Members imposed anything in regard to the referendum. The referendum was decided by the people. I regret the result but I resent Deputy Taylor suggesting that either myself, or my colleagues, determined the referendum on our own.
That was not a point of order. Deputy Shatter may avail of his right to reply to answer the question. The Deputy is in a privileged position in that he will be afforded an opportunity to reply to the debate and, consequently, it is disorderly of him to intervene in this fashion. He has a right to reply at the end of Second Stage. Deputy Taylor should be allowed to proceed without interruption.
I anticipated that Deputy Shatter would not raise a point of order. I do not know why Deputy Shatter is so sensitive on this point because, after all, he was on the right side on this issue. I do not think Deputy Shatter, or any other Member, is so naive as to take up the position that canvassing, posturing and influences, both overt and covert, that are taken up by political parties and other organisations, do not in any way influence how people vote in a referendum or an election. Otherwise, I do not think many of us would waste our time canvassing, explaining policies or trying to canvass people to vote for a particular party or an item of policy. I find it cynical to think that we have reached the position of consensus, much as I welcome it as far as it goes, on this issue. What is required is divorce and the proposal before us is not that far removed from it if it goes through in its present form.
Deputy Shatter suggested that if the Bill is adopted, as I hope it will, it will be taking the family law position from the 19th century to the 21st century. That is getting a little carried away. If this is all we have, I do not think it will bring us into the 21st century. We must make more progress before we can clap our backs and say that we are far advanced on this issue. I regard it as important that District Courts should have jurisdiction on judicial separation. I hope I get support for my proposals on that when I introduce them on Committee Stage. Details of the limits of the jurisdiction can be discussed on Committee Stage.
Ideally, as was pointed out in the report of the joint committee, the court which should deal with this issue should be a specially designed and staffed family court with judges, qualified assessors, social workers and child guidance officers and not the High Court or the Circuit Court. Such family courts should deal with all questions of judicial separation and family matters. Having regard to the fact that the establishment of such family tribunals would involve some expense, it would be too much to expect the Government in their full flow of monetarism to allocate money for such courts. Anything we have in retaining the adversarial system in family law matters will be far less than the optimum but we must continue to press for family courts.
There is a need to provide legal aid for the less well off sections of the community who may need to have recourse to a family law system. Their need is the greatest. Many families are in distress because of a lack of finance. The number of people living below the poverty line here is shattering. I hope the Minister will introduce amendments on Committee Stage to ensure that people will be able to seek a remedy to their problems. Those remedies should not be the preserve of the rich and well-to-do who exploit them and use them to the full, like most legal remedies. As an interim measure we should ensure that the District Court is given jurisdiction over these cases up to certain agreed limits.
For a moment I thought Deputy Taylor was about to say that there was a consensus for The Way Forward but he stopped himself in time. I welcome the Bill and I should like to congratulate Deputy Shatter on his initiative and concern for the unfortunate people who await this legislation. It is a Bill which is legally and socially desirable, if for no other reason than that it brings within its scope people who are deserted, mainly women who will be entitled to get judicial separations. That is a glaring omission in the present law. Furthermore, it is accepted that the present law is founded on the fault principle. One can only get a judicial separation in court if one can establish cruelty, adultery or unnatural causes. Obviously the present law is very restrictive in its present operation. I therefore welcome the Bill, particularly sections 1 and 2.
The Minister had reservations about section 1 which specifies that the sole ground will now be that the marriage has broken down irretrievably. I do not necessarily share those reservations but I wonder about section 2 (2) which states:
If the court is satisfied on the evidence of any such fact as is mentioned in subsection (1) of this section, then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably it shall grant a decree of judicial separation.
As I understand it, that would mean that even where one establishes one of the grounds the court might not make an order. Section 2 (1) (a) states:
that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent.
If one reads subsection (2) in conjunction with subsection (1) (a), it would appear to mean that the court could make a finding that the applicant could not be reasonably expected to cohabit with the respondent and would then find that the marriage had not broken down irretrievably and would refuse the applicant the judicial separation sought. To me that does not make a great deal of sense but I would respect Deputy Shatter's greater experience in the area and look forward to his comments.
I am glad that section 2 (3) acknowledges the constructive desertion principle which is already enshrined in the law. I mention that point specifically because I recall that Deputy Harney in part of her speech seemed to overlook the fact that there is in the present law, and will be under the new Bill if passed, an acknowledgment of the principle of constructive desertion.
Section 4 is in many ways one of the most important sections in the Bill. It deals with the duty on an advising solicitor to discuss the possibility of reconciliation, of engaging in mediation and the certification by the advising solicitor that he has advised the client accordingly. It is fair to say that most solicitors advising would normally tell their clients that they should at least consider the possibility of reconciliation and mediation. Most solicitors in my experience certainly do. I wonder if it is worth having this very important section in the Bill unless one imposes a consequent obligation on the client to respond to that advice and to engage in seeking the advice of a marriage guidance counsellor or some other suitably qualified person. If the solicitor is to have imposed upon him or her a duty to advise about the possibility of reconciliation and mediation, surely it is much more important that the client should act upon that advice?
That is not meant by me as a means of holding up the process of obtaining a judicial separation where the facts warrant it but I believe that many people rush off to a solicitor when their first job should be to explore the possibility that somehow the marriage could be saved. In almost all instances of marital breakdown there is a fair amount of bitterness on both sides and a great deal of bad advice very often given by family members or friends who are not qualified to give that advice. I would respectfully suggest to Deputy Shatter that he might consider incorporating some subsection which would oblige the client to take the advice of the solicitor. The solicitor when certifying to the court that he has advised the client about the possibility of reconciliation and mediation would include a statement to the effect that the client followed that advice and at least talked to a marriage guidance counsellor.
Section 6 (2) covers the situation where a judicial separation has been sought and obtained. The parties are subsequently reconciled and by consent go back to the court to have the decree rescinded. Subsection (3) goes on to state that the court may make ancillary orders which would have been covered in the first instance under Part II of the Act. I have a slight difficulty from a practical point of view. Is it not at least arguable that the power as provided in the Bill of making these ancillary orders might result in further strain upon the recently reconciled marriage if the court in making such an ancillary order were not obliged to do it by the consent of both parties? It could be making an ancillary order which would satisfy one of the parties to the marriage only, thereby reimposing a strain on what would at that stage be a fairly fragile marriage.
The ancillary orders made at the time of the judicial separation would cover maintenance, succession rights, property rights, custody, etc. If the order for rescission gave merely a discretionary power to make ancillary orders which might satisfy one party only to the marriage, it would be regrettable if the making of such ancillary orders by the court were to reimpose a strain on the marriage. That might be a defect in section 6 (3).
A more minor reservation is in relation to section 7 and that part of the section which defines household chattels. Anybody engaged in advising clients about legal separation and all that entails knows that from a practical point of view one of the things that causes a great deal of trouble is who owns what. Personally I think the definition of household chattels should be confined to the negative final two lines of the definition in the Bill, in other words that "household chattels" should be defined as
... does not include any chattels used by either spouse for business or professional purposes or money or security for money.
If it is found necessary that the definition should be couched in the positive form as it is presently drafted in the Bill, I think, given the value of most household goods now, that it should specifically include electrical and mechanical goods and the family car. In most cases nowadays they are the most valuable items in the household from a financial point of view. If you are going to have a definiton which specifically covers certain items, I think they should be specifically mentioned. However, I think the definition itself would be much better if it was simply couched, in the negative form.
Part of section 10 deals with rights of maintenance. Again, speaking as a practical lawyer who has done some work in this area I would like to see incorporated into the present law a specific statement that maintenance payments by one spouse to another for that spouse and children take precedence over any other legal obligations of the person making the payment. As I understand the law that is in fact the case. But in my experience many people feel that they are under a prior obligation to a bank or some such financial institution to pay that bank or financial institution first and then make provision for their spouse and children and themselves. It is amazing the number of banks and financial institutions who seem to have the same idea. I have often been in court on a maintenance application, to hear a spouse say, "I would love to give my wife and children more and indeed to have more for myself but I must pay the bank £20 or £30 per week". Possibly the bank concerned should not have loaned the money in the first place. I think it would be of benefit to the people for whom this Bill is intended and also to the said banks and financial institutions if the law stated specifically and categorically that the very first people the spouse has a right and a duty towards are the people themselves and after that any banks or financial institutions that may be involved.
Given the present state of the law and of thinking in this country, there should be a specific statement in the law on this subject which would point out that the responsibility for making maintenance payments rests with the person who is working. Again I appreciate that that is in fact the case but it would not do any harm to spell it out in clear and unambiguous language. There are very many men in this country who are unemployed but whose wives are working and I think it would be no harm to spell out to the community at large that the responsibility for the maintenance of a spouse and children is that of the spouse working and earning.
I welcome the provisions in the Bill, as drafted by Deputy Shatter, which would allow the court to cover most items that would need to be covered in a legal separation situation but with regard to section 10 (1) (g) which deals with the right of a court to make an order extinguishing or reducing the share in the other spouse's estate, I see no reason that the present law which says, if I can use the old term, "the offending spouse" is disinherited might not be retained. I appreciate that part of the intent of the Bill would be to do away with the fault principle and I welcome that. However, I feel that the whole object of a legal separation is to allow the parties to get on with their lives separately in a most civilised way. If the question of succession is left open for dispute and debate at a later stage I cannot see that that meets with the spirit of the Bill. I would prefer to see a situation where, for instance and the more likely case is where a man deserts his wife and, say, he goes to live in England and is there for 20 years, under this Bill the wife would be allowed to get a legal separation. I think that the husband should be automatically disinherited in such a situation. It would be very unusual indeed in the drafting of a deed of legal separation which was done by agreement between the parties if a waiver clause of succession rights were not included in that Bill. Why should it be any different where a party is forced to get a legal separation in court?
Section 15 deals with the power of the court to make retrospective maintenance orders. Again, I have no great crib with that section but it seems, in view of the fact that section 8 allows the court to make interim maintenance payments while the case is pending, that that should be enough and that the parties should not be allowed on the final determination of the case to go back over the previous six or 12 months or whatever and, as it were, seek an increase in maintenance or seek to have the interim payments varied in some way. If the court has power to make interim awards of payments, surely that is enough and on the final determination of the case I do not see that there should be any power vested in the court to vary the interim payments. Perhaps that is a small criticism but it seems a valid criticism.
Finally I would like once more to compliment Deputy Shatter on bringing forward the Bill. At this stage I anticipate, as most Deputies do, that this Bill will be passed substantially as it is drafted. However, I think there is a case to be made at this stage for the codification of all our laws relating to the family and children, maintenance of spouses, legal separations and so on. This is something the parties in this House could get together on because I feel there is a great deal of consensus. Despite what Deputy Taylor said, I feel that there is a fair amount of genuine consensus in this House on the main provisions of family law. I think it is unfair to expect people who are caught up in the tragedy of family breakdown to have to seek their remedies in various Bills and Acts. There is a case to be made for codification of the law and we should look at that very seriously.
I agree with the previous speaker's last suggestion, that we should have a unified code of family law because there is such a need particularly because of the patchwork way in which a great deal of our legislation has been introduced or its introduction delayed. I think all of us would heartily support that suggestion.
Deputy Taylor talked about Realpolitik and that is what we deal with in this House sometimes to a frustrating extent in so far as the Realpolitik is far too real and not sufficiently ideal. In as far as it can go this Bill, as drawn up by Deputy Shatter within the constraints of a Private Members' Bill, is to be welcomed. Regardless of what side was taken by legislators and activists outside this House during the divorce referendum campaign, all kinds of pledges were made particularly to spouses in the home regarding their right to the family home and protection therein and also the value of the work of the spouse in the home.
A matter of great distress and sadness to many of us was that a great number of wives during that period, some of them deserted or victims of violent marriages, found themselves conned — if I may use the word — with regard to the Constitution into the belief that in some way they had a constitutional protection in and right to the family home and its contents and that there was some legal acknowledgment of the work they do in the home. We who have been working and lobbying for this matter and dealing with women in bad marriage breakdown cases realise how unprotected these women were and how they were being misled. The Constitution, with its high sounding words with regard to the value of woman's work in the home and the value of the family unit to society, in legal terms offered nothing. Many of us in this House, particularly those dealing in courts day after day with marriage breakdown, know of a belief abroad that there is far more protective legislation for women, particularly as spouses in the home, than exists. At times of great trauma, anxiety and sometimes violence, a woman has to cope with the fact that we as legislators have failed dismally up to now to give her the protection that the Constitution promises but does not legally entitle her to.
We agree that this Bill is only part of what we would like to see as a codified practice. Deputy Taylor referred to procedures and court access under which these cases can be taken. Deputy Taylor does not have to tell any of us in this House about lack of access and of free legal aid. However, within the constraints of this Bill there is much to be welcomed of a radical nature in the best sense of the word "radical".
I will not go into all sections of the Bill now because we will have Committee Stage. A concept I commend which is fully recognised and acknowledged in this Bill is that of judicial separation being available in cases of irretrievable breakdown of marriage. The Oireachtas Joint Committee on Marriage Breakdown in their report presented the well developed argument that that would be the concept under which separations and marriage breakdown should be judged. The Minister last night in his Second Stage speech seemed to have some difficulty about accepting the irretrievable breakdown clause as the sole ground on which a decree of judicial separation should be granted, despite the fact that such a representation was made by the joint committee. He said that his first objection was a conceptual one, that judicial separation does not put an end to marriage and the parties remain free to come together again and have the decree discharged. All involved in marriage breakdown in this House and outside recognise that a spouse does not seek a decree of separation unless the marriage has irretrievably broken down and is no longer viable. Nobody seeks a judicial separation until one or other spouse or both spouses can no longer go on within that relationship.
Deputy Shatter in bringing in this Bill has shown the constraints and rigidity of the proof needed for a decree of divorce a mensa et thoro. It could be obtained only on proof of adultery, cruelty or unnatural practices. Since the Minister mentioned his objection I have thought of the difficulty we have in trying to make lists or to define legislation too specifically. We run into all kinds of problems. Our Constitution is very detailed and presents us with incredible difficulties and obstacles 50 years after it was adopted. We could make out a list of 200 aspects of issues which could earn legally a judicial separation but we could leave out a 201st issue under which a spouse or spouses were suffering which should entitle them to a legal separation. Within this Bill the whole area of irretrievability is treated very responsibly in that cruelty, adultery etc. are covered. Section 2 (1) (a) reads:
that the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent;
That would apply to violence or cruelty. Paragraph (b) reads:
that the respondent has committed adultery;
Paragraph (f) reads:
that 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.
Research in many countries shows cases where living separately is physically and psychologically much more secure and healthy not only for the two people concerned but also for the children who may also wish to live away from a tense situation.
We welcome the committee's recommendation that judicial separation should be based on irretrievable breakdown. We should not seek, as has been done so destructively, to assign fault to one or the other spouse. This can sometimes make spouses more hostile in a situation that is difficult already. It is a total contradiction of what we are attempting within the difficult legal position when judicial separation proceedings have to be commenced by one spouse or both spouses. The last thing we want is that through our legal proceedings people would end up in more conflict and in more adverse situations with far less conciliation and mediation. Unfortunately, in a number of cases it is not right to assign fault to one or other spouse and both spouses involved should welcome that shared responsibility.
I note that the Minister had doubts about the conceptual definition of irretrievable breakdown and referred to the fact that the approach of the Oireachtas Joint Committee differed from some of the findings and recommendations of the Law Reform Commission who had reported earlier. Mindful of the fact that all parties were involved in the Oireachtas Joint Committee on Marriage Breakdown and that they brought out an agreed report, I quote from page 232 of Family Law in the Republic of Ireland by Deputy Alan Shatter:
The approach of the Oireachtas Committee differs from that taken by the Law Reform Commission in its Report on Divorce A Mensa Et Thoro and Related Matters published in December 1983 to the extent that the Commission recommended an extension of the existing grounds upon which a separation decree might be granted but did not propose that irretrievable breakdown of marriage should be the one overall ground for the granting of a decree.
If they had extended their list, the commission might have come to the difficulty I have already alluded to — how does one set up a list and who defines it? The Oireachtas Joint Committee studied in detail and with great seriousness the recommendations of the Law Reform Commission but they believed that that was not the way to approach the issue and that irretrievable breakdown should be the definition used. If it is the concept used, it will be a very practical one.
I would like to refer to section 4 of the Bill. Some speakers have already referred to the fact that every effort should be made so that couples do not have to apply for judicial separation unless every other avenue of reconciliation and conciliation has been gone through. Under section 4 Deputy Shatter, as a result of his wide experience in this area, has attempted, in so far as it is humanly possible to do so while at the same time leaving independence to people, to ensure that the hearings and proceedings for judicial separation in a court would not proceed unless attempts at reconciliation had been effected. The previous speaker questioned whether it would be a matter of forcing one or other of the spouses to have marriage counselling. All of us hope and believe that any mature adult would not end a long term commitment and a very serious relationship without going through all those avenues. Deputy Shatter has, in section 4 (3) tried to cope with that by providing:
An application for judicial separation shall be accompanied by a certificate by the solicitor, if any, acting on behalf of the applicant that he has complied with the provisions of subsection (1) of this section and, where a solicitor does not so certify, the court may adjourn the proceedings for such period as it deems reasonable for the applicant's solicitor to discuss with the applicant the matters referred to in that subsection.
That would go a long way, if not the fullest possible way, towards ensuring that all forms of conciliation and reconciliation have been endeavoured before judicial separation proceedings reach the court.
Section 10 of the Bill is to be heartily welcomed because it provides for ancillary orders to be made in judicial separation proceedings. Many mothers who stayed at home had no economic independence because they had given up the opportunity of independence to become homemakers. Very often they got small maintenance payments and a judge, even with the best will in the world, was restrained from making lump sum payments to them. All of us, and even spouses who are involved in a marriage which has broken up, agree, that the first concern in a marriage break up must be the children. Everything that can be done to ensure the fullest maintenance for children and the parent in the home has got to be justified and this has been overdue for far too long.
I cannot begin to tell this House how long overdue I and every other woman in Ireland feel — and I am sure many fairminded men feel also — section 13 has been. Under section 13 the court will have the right to take into consideration the highly acknowledged work of the spouse in the home. Many spouses found themselves in legal difficulties when their marriages broke down and they had no entitlements. Section 13 is one of the first great steps we have taken towards ensuring an acknowledgment of the partnership of marriage and the value of the work done in the home. Having taken everything into consideration — the age, physical and mental health of each of the parties to the marriage, the duration of the marriage and so on — the judge can order maintenance and property allowances based on the standard of living of the family before the breakdown of marriage. This is very important in human terms. I have been approached by many bewildered and bereft women whom I have tried to help who, when they had given 25 or 30 years to marriage, to a husband and children, were forced by the lack of legal protection to seek employment which they probably would not get because unfortunately we cannot even employ our youngest, our best and physically and mentally most healthy people. It is an absolute injustice that a woman after a lifetime of contributing to the family and to society can be faced with that kind of insecurity.
Section 13 will give immense protection and will give great help not just to the spouses concerned but to the Judiciary dealing with family cases. The Judiciary must have been incredibly frustrated in being powerless to help such people because there was no law to protect them even with regard to the family home. Section 16 provides that the court may discharge or vary maintenance orders at any time on the application of either party to the marriage, if it thinks it proper to do so having regard to the circumstances of the case and the matter set out in section 13. This is one of the most welcome sections. I am sure most Deputies have dealt with women who have called on the meagre legislation we have at the moment for protection who perhaps have got some kind of maintenance. A person's circumstances may change because children grow older and expenses get higher and her husband's lifestyle and income may change as well. Section 16 would allow her legally to go back and make a case for an increase in maintenance. On the other hand a spouse may need to have the maintenance varied downwards because of a change in circumstances. This is a human and practical way of dealing with the varying fortunes and misfortunes of people's lives.
An area that could not be addressed in this Bill by Deputy Shatter relates to the setting up of family courts. The present court system to deal with family law cases is intimidating and many people find that it adds to their distress. We must all work towards a situation in which family courts will be set up as quickly as possible. In a submission from the Family Law Association to the Women's Rights Committee recently, it was put to us that the situation in rural Ireland in family law cases is unsatisfactory as cases are listed every three months and those not taken up on circuit are put back.
Deputy Taylor talked about the rights and privileges of well-to-do people who never had to worry about which courts they went to and he decried the fact that we insisted that the Circuit Court should deal with judicial proceedings. There may be well-to-do families but few of them have well-to-do economically independent wives. Whilst judicial separation proceedings went on at the very highest level if the husband wished it, this did not apply even in that privileged class to the economically independent wife. This is what this Bill goes a long way to redress.
I join with the other speakers in welcoming this Bill which arranges for the implementation of some of the recommendations of the Joint Oireachtas Committee on Marriage Breakdown. When I spoke in the debate on the divorce referendum, seeing that this proposal arose from an all-party committee, I thought that if the Government had proceeded on the basis of implementing agreed recommendations we might have been able to agree on taking a step to introduce a constitutional amendment on the right to remarry. At that time the Government broke the spirit of the Joint Committee on Marriage Breakdown. We should have implemented agreed recommendations and on the basis of that we would have been better able to gauge, without introducing acrimony, whether to move towards a constitutional amendment in relation to divorce. We might have had a better and more informed debate on divorce. However, that is parliamentary history at this stage.
I compliment Deputy Shatter on channelling his talents to introduce a Bill like this in Private Members' time. This Bill in principle has universal approval. The area of judicial separation has been locked in Victorian times. The limited grounds on which one could seek a judicial separation in our courts did not reflect the realities of modern day living. The limited terms on which one could seek a judicial separation did not encompass all the grounds upon which one could justifiably seek the right to live separately from one's spouse. This Bill introduces grounds which illustrate the reality of modern day living. I am glad that my party have allowed this Bill to be discussed dispassionately in a non-party political way in the House so that the many people locked in a very unsatisfactory marriage can now be in a position, as a result of the inevitable passage of this legislation, to seek redress in our civil courts on wider criteria than at present. As I said initially, this Bill incorporates many of the recommendations of what was an excellent committee, the Joint Oireachtas Committee on Marriage Breakdown. It proves the value of that committee that we now have, a year and a half later, the proposals in the form of a Bill to start to redress the day to day problems of persons who find themselves in an unsatisfactory and difficult situation. Irretrievable marital breakdown should form grounds, or a criterion, upon which persons can seek in our courts the right to live separately.
Debate adjourned.