I said last week that I welcomed this Bill. It is an important measure, the culmination of the work of the Law Reform Commission and the Oireachtas Joint Committee on Marriage Breakdown. I am also glad to note that, as it has been brought forward as a Private Members' Bill, the Government are in agreement, in principle, with its objectives and await Committee Stage to see what improvements can be made as obviously there will be some after the contributions on Second Stage.
There have been some improvements in the procedure by which judicial separations have been handled as, since the Courts Act, 1981, they can now be dealt with by the Circuit Court whereas formerely they were the sole preserve of the High Court. Unnecessary expense has been avoided by dealing with these matters in the Circuit Court. However, the real problem with judicial separation up to now has been that the substantive law relating to this matter is the law which was applicable to the ecclesiastical courts prior to their abolition in 1871. There were only three grounds on which one could seek judicial separation, adultery, cruelty and unnatural practices. The Oireachtas committee and the Law Reform Commission discussed means by which we could update the substantive law relating to judicial separation and, obviously, increase the grounds on which one could apply to the courts for such judicial separation over and above the three very restrictive criteria laid down in 19th century practice.
It is most desirable — and in the majority of cases it would be true — that where unhappy differences arise between spouses they are dealt with on a mutually agreeable basis by way of separation agreement or a deed of separation, where people can resolve their problems and make their own arrangements without the need to apply to the court. It keeps the adversarial atmosphere out of the process. Regardless of whether a barrister is wearing a wig, when a spouse has to face into a court and their married life is put under scrutiny with decisions being made by a judge, it is less satisfactory than a person making arrangements through solicitors and coming to a mutually satisfactory arrangement. Matters dealt with in a court hearing could be dealt with privately and in a manner which keeps the acrimony out of proceedings as far as possible.
The Oireachtas committee regarded judicial separation as a matter of marital breakdown rather than one of trying to prove matrimonial offences by one party against the other. Obviously that is a welcome development but it is wrong to suggest that we are totally abolishing the faults principle in dealing with judicial separation in the Bill because three of the grounds in section 2 (1) involves a judge making some decision or finding of fact which will involve a degree of fault by one party or the other, whether it is desertion or adultery. All the grounds listed in the Bill are not clear to me. Section 2 (1) (a) says it would apply where the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent. That is fair enough as is paragraph (c) which says it would apply where the respondent has deserted the applicant for a continuous period of at least one year immediately preceding the presentation of the application. Paragraph (d) is also clear but paragraph (f), 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 is not very clear to me and it could have been included in section 2 (1) (a). The family and marital circumstances referred to in (f) would, presumably, involve the behaviour of the other spouse which is already covered in section 2 (1) (a).
It is also clear that we must try to delineate judicial separation procedures here from separation agreements in the sense that one would only apply for a judicial separation where there was no consent on the part of one or the other. I do not see the point in making provision for the application for a judicial separation where both parties agree, which seems to be contemplated in one of the sections. They could arrange a separation agreement and that would be the end of it.
Section 4 deals with the obligations of a solicitor to advise a person in relation to the counselling or mediation available before proceeding with an application for a judicial separation on behalf of his client. Part of the procedure would be that the solicitor would certify to the court that he has gone through these preliminary steps before making the application for a judicial separation on behalf of his client. I would have thought that the steps a solicitor is supposed to take under section 4 are those he would normally take anyway as a matter of ethical behaviour in that when a person approached a solicitor regarding separation proceedings, he would satisfy himself that there was no reasonable possibility of reconciliation or that an attempt had been made by the client to see if reconciliation was possible. Quite apart from that it seems that the discussions he would have with the client would be all that he would have to do. It is very much a case of advising a client, giving him a list of names of mediators and counsellors and then go ahead and start the proceedings.
There should be something in the Bill which, presumably, would form part of the certificate which he would subsequently show to the court when the proceedings had started that the solicitor had attempted to contact the other party and had satisfied himself that no mediation was possible. As the Bill is outlined at present he can simply have a chat with his client without reference to the other party. You could have a situation where a client was totally adamant that he would get a judicial separation while the other party might be open to some means of agreement by which they would separate mutually and by agreement. The solicitor will have to do more than simply discuss it with his client. In his certificate to the court he would have to show that he had attempted to locate the other person and had put it to him or her — whichever the case may be — that the spouse for whom he was acting was contemplating a judicial separation and if he was agreeable to entering into a separation agreement or if it was possible for them to get together to see if any reconciliation was possible. In that respect the certification procedure as envisaged in section 4 is defective.
I have no objection to section 5. There may be exceptional cases where, within a year of the marriage, the conduct of one or other of the spouses was such that an application would have to be made to the court to allow a judicial separation within the one year period. I have no objection to that. That is a provision which is necessary in the Bill. Part II of the Bill deals with ancillary orders which could be made in addition to simply granting the decree of separation. It is probably the more intricate part or more involved part of the Bill and would require some serious deliberations before coming down with hard and fast rules on it. I have a few points to make.
In section 7, the definitions section, I note that "household chattels" do not include the family car and there may be reasons for that. In the majority of cases the car would probably be the second biggest investment which the family would enter into, apart from the house. That does not seem to be included when one is dividing the various assets of the parties to the marriage.
Section 10 deals with the ancillary orders that could be made by the judge following the granting of a decree of separation. In regard to section 10 (1) (a) it has been mentioned in the previous contributions that there should be a specific provision in the Bill that priority of maintenance payments should be made clear in the Bill over and above any other legal obligations of the person paying the maintenance. Is there any possibility that the Bill could also state that the judge would have the power to make an attachment of earnings order in the first instance rather than wait for default by the spouse after the maintenance order has been made? When you come to that stage of a judicial separation where parties are not agreeing — and probably there is bad faith against whom the application is being brought — it would involve the applicant in unnecessary expense if, after making a maintenance order under this section and he subsequently defaults he would then have to come back to the courts and seek an attachment of earnings order. I do not see why one could not have an attachment of earnings order straight away. I am not sure if that is legally possible but I will throw it out for what it is worth.
The other problem relates to section 10 (1) (g) regarding the extinguishing or reducing of the spouse's statutory succession rights. I would not agree with any change in the present situation where desertion is an absolute bar on a spouse claiming succession rights if the person has been deserted. For that reason I do not agree with section 30 (c) where, after a transitional period, a person could come back into play again after having deserted a spouse in terms of being able to claim succession rights.
Marriage is referred to in our Constitution in a way which is of importance to people who are in the marriage state. I do not see how if one party decides to desert — and leave a wife and children behind — that when that unfortunate woman, or man if that is the case, dies that he or she can suddenly come back and claim the whole place. Desertion, as far as I am concerned, means he is out as he has taken a conscious decision to leave. I do not see any circumstances which would justify him in getting back. I hope that desertion will continue to be an absolute bar in relation to statutory succession rights.
Where two parties mutually decide to separate, a provision of that agreement is that each party waives their succession rights against the other. Where two people come to a mature decision to separate, why should someone who has walked away suddenly have the right at some time in the future to get back into the picture in terms of succession rights? It does not make sense to me.
There is also a problem if no lump sum is payable and if no settlement or property orders are made. The judge could decide that the person, as envisaged in the Bill, could keep his succession rights. Therefore, no lump sum payment would be made at the time when the application is being made for a judicial separation. The husband, or whoever is supposed to be paying the maintenance, could go off and spend his money and assets and when he dies the wife has the worst of both worlds; she neither got a lump sum nor a property transfer order at the time of the separation in order to maintain her succession rights. When her husband died subsequently he had all the money spent so she ends up with nothing. In other words, when one is trying to cater for the position of varying succession rights at the time of the separation one is depending on the good faith of people and the consistency of circumstances into the future that everything will remain the same if and when one has the right to claim succession rights.
We need some certainty in this area when we come to judicial separations. I think we should simply waive the succession rights of each party in the same way as in a separation agreement. That is the normal practice. Where one is rescinding one's succession rights at the time of the judicial separation it will provide an impetus for the judge to make sure if he makes the proper ancillary orders in terms of property transfer orders, lump sum payments, adequate maintenance that the person concerned — who is the application in this case — can at any time in the future come in and vary the maintenance order. Her right to seek a variation order on the maintenance cannot be taken from her.
People who seek a judicial separation, or even a separation agreement, want simply to come to an arrangement where they can go off and live their separate lives. We need certainty in relation to succession rights. We cannot have words like "varying", "depending" and so on. It should be clear and simple. If the succession rights of each party were precluded, then we would have better arrangements at the time when the separation is being made in terms of lump sum payments, property transfer orders, settlement orders and so on.
Section 15 raises the point about the power of the court to make retrospective maintenance orders. Section 8 provides that it would be open to the court to make interim orders to be there for maintenance, custody, access, protection of the family home or the protection of household chattels. Why should it be necessary to seek a retrospective maintenance order on deciding a judicial separation is applicable in a particular case? From the time an interim order is made there should not be a significant change in circumstances to the time of making the final ancillary order. I do not know what the idea behind this is. It should not be necessary to make a retrospective maintenance order at the time of making an ancillary order as is envisaged under section 15. It may be that this is an extra protection but I do not think it will be widely used if it is inserted. When one makes an application they may not be granted an interim order and having obtained an ancillary order the respondent may be required to pay from the time the application was made. That may be the logic behind it.