Dáil Éireann debate -
Wednesday, 23 Nov 1988

Vol. 384 No. 6

Judicial Separation and Family Law Reform Bill, 1987: Report Stage (Resumed).

Debate resumed on amendment No. 22:

In page 10, before line 1, to insert the following:

.—If while a decree of judicial separation is in force either of the spouses dies the surviving spouse shall be precluded from taking any share in the estate of the other spouse as a legal right or on intestacy.

—(Minister for Justice.)

Mr. Taylor

Before the luncheon recess I was making the point that the overwhelming bulk of judicial separation cases that will arise would either involve no property at all or very limited property. The number of cases that would involve large amounts of assets and manipulations and companies to do down spouses and so on would be very few and far between. It is invidious in a sense to pick out one classic example of a typical case, and that has been done by both Deputy Shatter and the Minister. The range of possible cases that can arise in this regard is so various and vast that it is extremely difficult to encompass all the different possibilities that could arise. Everybody else has taken the liberty of quoting examples of one type of case, so I will indulge myself by quoting one type, too.

Consider the case of a family where the sole asset consists of a modest family home. The husband is in an average type job earning £150 or £200 a week or whatever. The house is in his name alone, as many such are, and there is an appreciable mortgage due on the house. If a family in that category come into a judicial separation position the question of a lump sum order would not and could not arise because the husband would not have the finanical resources to make a lump sum payment. The question of a property order dealing with the family home might arise, but there could be great difficulties about it because the county council or the building society who have the loan on the house would not in all probability give their consent to the transfer of that house into the wife's name even if the court directed that that was to be done. The judge is left with no alternative then but to give the decree for judicial separation without any property order and without any lump sum payment order. Therefore, he makes the order and provides for maintenance of whatever the appropriate amount would be. In this case, then, the wife would lose her succession rights. Admittedly, the Minister's amendments incorporate provisions under which she could bring an application at a later date for a lump sum order or for a property transfer order, but that would not help either because nothing much would change over a five, ten or 15 year period.

This brings me to the nub of the point I want to make about this, which is that the possible variations and permutations of cases that can arise on these applications is so vast that it is really impossible for practical purposes to encompass every type of case. Therein lies the difficulty in the Minister's proposal. I see the thinking behind his proposal. It would be desirable that there should be a final break once and for all and that all financial matters would be taken account of at the point at which the final judicial separation order is made. But the difficulty is that one cannot encompass all thd different kinds of cases in this. That is why it is essential that the ultimate discretion in each case is left in the hands of the court. One cannot provide for every case. The judge will consider each case as it comes before him. He will consider what property is there, what the sources of it were, what the incomes were, and then he will decide whether it is appropriate to do what the Minister says must be done — in other words, take away the succession rights and deal with the matter by a lump sum payment or by way of a property transfer order. He may decide not to do that.

The advantage of the Bill as drawn is that it leaves open both possibilities; it does not shut off any possibility that the court may consider appropriate when the time comes. It is not a question of the Minister saying that the succession rights are taken away in all cases and the Bill saying the succession rights stay in all cases. The Bill does not say that. The Bill makes adequate provision and quite clearly envisages that in very many cases the succession rights will be taken away. The Bill provides for that specifically. In many cases, by reason of the particular family circumstances, the court will make an order taking away the succession rights from that spouse and in many cases that would be the correct thing to do. Provision entitling the court to do that is clearly given in the Bill.

What the Minister is saying is different. He is removing that discretion from the court and providing that in every case in which a decree of judicial separation is made and is in force the legal and intestacy rights of the spouse are gone. That is the difficulty. It may well be right in some cases but it is not right in all cases. There could be other cases arising where that would be entirely the wrong thing to do, depending on the particular facts of a family and its property situation. The alternatives that can arise are so various and complex that it must surely be safer to leave the issue within the powers of the court and not to over tie the hands of the court and so limit the court that it may not wish to take advantage of the opportunity of either taking away the succession rights and compensating by means of a lump sum payment or property order or not doing so. Because the complexities that can arise it is essential that that be done.

Many references have been made as to whether the practices in separation agreements provides for the taking away of these rights or not. My own experience, which is not all that great in this area, is that in most separation agreements the parties mutually agree to renounce their rights under the Succession Act. In this context the report of the Joint Committee on Marriage Breakdown includes, in one of the appendices at the back what it calls typical separation agreement, and it is interesting to see that at clause 8 of this typical legal separation agreement the husband and wife mutually surrender and renounce their rights under the Succession Act. Apparently, the joint committee did take the view that so far as separation agreements were concerned it was typical that there would be a mutual renunciation of rights under the Succession Act.

I do not think the question of a separation agreement can be compared to the situation that arises when one comes before a court for a decree of judicial separation. In the first instance, in the case of the agreement the parties have negotiated over a more prolonged period, they have had time with their advisers to discuss and assess their situations, present and future, and to put that clause in if they can consider it safe and appropriate to do so. When the adversarial situation arises before a court on an application for a decree, different considerations apply. I feel that one should leave open all options to the court to assess the situation based on the particular positions of the family concerned, its assets and the source of those assets, and not tie the hands of the court. I accept to an appreciable extent the force of the Minister's argument. There may well be very many cases where the succession rights will be removed and compensating orders made and the Bill itself provides for that.

Mr. O'Donoghue

Perhaps it would be appropriate at this stage to restate what Deputy Shatter is proposing in these sections. He wants to empower the court to vary and discharge the statutory succession rights, and the court can only do so if at the same time it makes a property transfer or settlement or lump sum order in favour of the spouse. He went on to say that a court could, however be empowered to vary or discharge succession rights if the spouse was guilty of gross matrimonial misconduct. He said that the court should only be able to consider the question of a transfer on one occasion. That represents a radical change in our succession law. It completely changes the relevant provision relating to desertion in the Succession Act, 1965, and in decrease a mensa et thoro. The present position is that following the granting of a decree of divorce a mensa et thoro the spouse against whom the decree is granted automatically loses rights to succession of the other spouse's estate.

Mr. Shatter

But not the spouse who gets the decree.

Mr. O'Donoghue

No research has been done on whether or not all separation agreements contain a waiver of inheritance rights but it is the experience of virtually every legal practitioner I have met that the vast majority of deeds of separation include a waiver of inheritance rights. That may not be the case with Deputy Shatter but it happens to be the case with most legal practitioners. Deputy Taylor has said so and it is my experience, and the experience of most legal practitioners I know.

It should be pointed out that the report of the Oireachtas Joint Committee on Marriage Breakdown contained what was said to be a typical separation agreement and it included a waiver of inheritance rights. Should Deputy Shatter wish to see it, he can find it at Appendix D, paragrpah 8, of the report. The evidence appears to be irrefutable that in most cases the position is as I have outlined. Deputy Shatter may advise differently in his capacity as a solicitor, and I am sure he is a very good one, but he must accept that he does not have, and cannot expect to have, a monopoly of wisdom on the issue.

We are discussing whether or not a spouse should lose his or her inheritance rights on the making of a decree of judicial separation. I am not going to be so arrogant as to suggest that I have the perfect answer to that, but on balance the experience has been that parties to a separation agreement have waived their succession rights. That is not an easy area; it is a most complex and difficult one. In my view, there is no perfect answer and all the House can do is suggest what it considers to be the best answer.

It has long been acknowledged that certainty in the law is desirable whenever it can be achieved and legislators, from Montesquieu down, have acknowledged that certainty in the law is the most desirable option when faced with the choice of certainty or uncertainty. In his amendment the Minister proposes that the court on issuing a decree of judicial separation would at that stage decide on how property should be transferred and what lump sums should be paid to the other spouse. He went on to say that in the event, for example, of a wife learning that her husband had obtained additional property, or had additional property at the date of the application, she could go to court to vary the transfer or payment of a lump sum.

Deputy Shatter says that, if a husband was to come in to property at a later stage, a wife would not be able to get at that property because the husband may purchase it in the names of other people. That may be correct and, perhaps, a husband would purchase it in the names of other people; but the crucial point which Deputy Shatter has missed, or chosen to miss, is that the individual acquiring the property would have had to receive the moneys with which to purchase it from the separated spouse or the spouse who was trying to deprive the other of the assets. Accordingly, I take the view that in that event it would be open to the spouse that does not have the property to apply for a variation or a review.

Mr. McCartan

There is certainty in that.

An Leas-Cheann Comhairle

If Deputy McCartan is patient, he may get an opportunity mext.

Mr. McCartan

I am coming next.

Mr. Andrews

Is the Deputy sure? There is no certainty about that.

Mr. O'Donoghue

There is no question that Deputy Shatter, when he said this morning that if a husband comes into property at a later stage a wife would not be able to get at that property because the husband may purchase it in the names of other people, failed to acknowledge that if it was the husband's assets which purchased the assets he was referring to the wife would have a remedy, according to the Minister's amendment, in relation to variation. That is logical, fair, and has to be accepted.

Mrs. Barnes

If she knows about it.

Mr. O'Donoghue

If one were to accept Deputy Shatter's argument — a logical case has been put against it now — the same argument would apply to his provisions. If, for example, a wife is granted a one-third share of a husband's estate, will he not do the same thing and ensure that there will be no estate against which his wife may claim when he dies? The crucial issue is whether it is accepted that in the event of a wife's succession rights being retained, and the court saying that it would not transfer property or that it would not make a lump sum award in favour of the wife but that it would retain her succesion rights, the way is clearly open for a husband to dissipate the estate and leave nothing for his wife.

It is incumbent on the House in the case of a judicial separation to ensure that the woman is protected in the best possible way that the House can and that the children of the union are protected in the best possible way. The best possible way in which a court can protect a wife, and the children of a union, is by making a decision on the date of the separation as to how the property should or should not be disposed of, what should happen to the family home and what should happen to the moneys which the husband will have. In that way, we have certainty and everybody knows where they stand after the judicial separation decree has been granted.

Mrs. Barnes

The wife certainly knows.

Mr. O'Donoghue

In the event of the husband acquiring excess assets it will be open to the wife to go back to the court. Having gone back to the court, the court can decide to award or transfer further properties or moneys to the wife.

Mr. McCartan

By what provision can she go back?

Mr. O'Donoghue

Under the power to vary.

Mr. Taylor rose.

An Leas-Cheann Comhairle

Deputy Taylor will have an opportunity to ask all those questions later.

Mrs. Taylor-Quinn

This is the heresy a la O'Donoghue.

Mr. O'Donoghue

I am trying to make the best contribution I can in the circumstances.

(Interruptions.)

Mr. O'Donoghue

I am not trying to be facetious. I am not trying to be unfair. I am trying to be as helpful as I can in the circumstances. Deputy Shatter will see that this power is in the Minister's amendment. Let us not cod ourselves, it is there. I did not dream it up.

Mr. McCartan

The amendment is just taking out two provisions.

Mr. O'Donoghue

To proceed from there I would like to raise the following point. Deputy Taylor in a reasonable and mature contribution pointed out that the question of property etc. might not apply at all in very many cases and that more often what one would be dealing with would possibly be the family home. I accept that. I believe that is the position which is realistic: it is down to earth, it is practical and it makes common sense.

I would like to pose a question at this stage in relation to section 3 (1) (d) of the Bill, where it is provided that the parties to the marriage have lived separately and apart from each other for a continuous period of at least one year immediately preceding the presentation of the application and the respondent consents to a decree of judicial separation being granted. If two people want to separate and if there is a no fault provision in this Bill, then I contend it is right here in what the Minister has suggested and, indeed, in what Deputy Shatter has suggested, except that he wanted to add in the circumstances of irretrievable breakdown. Let us say that under this provision a wife and a husband decide to separate because there is a difficulty in the marriage which they do not want made public and which they want kept between themselves. This is an ordinary everyday occurrence which they do not want the people to know about. The separation itself will not worry them but what does worry them is the fact that their private lives may be discussed in public and they decide to separate under this section of the Bill. For the sake of argument let us say the husband then emigrates — there are children of the union — and about 20 years later the wife dies and the husband returns. Under Deputy Shatter's Bill the husband can return even though he may well have been the one privately at fault for the breakdown of the marriage and he can claim a share in his wife's estate to the detriment of the children of the union. The question I want to pose is this: is that in those circumstances morally fair? Is it fair that a person who was responsible for the breakdown of the union could return many years later and claim a share in his wife's estate to the detriment of the children of the union?

Mr. Taylor

Could she not apply——

Mr. O'Donoghue

I did not interfere with Deputy Taylor.

Mr. Shatter

She could get an order to end the inheritance.

An Leas-Cheann Comhairle

Excuse me, Deputy Taylor, for the second time. I am not going to tolerate immediate adjudication on any Deputy's contribution from either side of the House. If anybody thinks that he or she will be uncomfortable with those restrictions they know what to do. Deputy O'Donoghue without interruption.

(Interruptions.)

Mr. O'Donoghue

As I said before, Deputy Shatter has told the whole country he has a monopoly of wisdom on this matter.

Mr. Andrews

Deputy Shatter should allow Deputy O'Donoghue continue his excellent contribution.

Mr. O'Donoghue

I am not pretending I have. I am just doing my best in the circumstances and I would ask to be allowed to continue.

A Deputy

The Deputy is doing very well.

An Leas-Cheann Comhairle

Deputy Andrews, your turn will be coming presently.

Mr. O'Donoghue

In this kind of a situation it becomes clear that the position is unfair. It smacks of unfairness because a person who has caused the breakdown of the marriage is now entitled to come back many years later to the disadvantage of the children of the union. Deputy Shatter goes a little further in relation to gross misconduct and he says that the courts would take that into account in relation to succession rights. If we are going to speak in a court about gross misconduct we are now into the area of fault in a big way because one spouse will have to accuse the other spouse——

Mr. Shatter

We will need pain-killers——

Mr. O'Donoghue

——of gross misconduct under the proposals in relation to inheritance in Deputy Shatter's Bill. Deputy Shatter stated at an earlier stage that what he was introducing was no fault judicial separation. How can the Deputy speak about no fault judicial separation when at the very kernel of the issue, in relation to property there is a provision which asks whether or not there was gross misconduct.

Miss Colley

It allows for it.

Mr. O'Donoghue

I take the view that in that kind of situation we have never gone deeper into the issue of fault. There is no provision in any section of the Bill which introduces fault more into judicial separation law as proposed. In my view there is an introduction of fault even where the parties separate by consent. If the parties separate by consent after one year and if there is an argument about succession rights under the provisions as set out by Deputy Shatter, the court must not have regard just to the fact that the two people concerned separated by consent after one year of living apart; the court must now inquire as to whether there was gross misconduct on the part of the husband.

Mr. Shatter

We do not want——

Mr. O'Donoghue

Even in the areas where we have come closest and established that we can have no fault judicial separation, Deputy Shatter brings it in the back door by providing for gross misconduct in questions about inheritance or succession. He cannot deny that because that is the position. I do not believe that if people consent to part from one another, having lived separate and apart from one another for one year, they should have brought into their lives, by this provision the question of whether there was not just fault but gross misconduct. Neither should this provision in relation to gross misconduct be introduced when the parties have been separated, not for one but for three years. Section 3 (1) (e) provides that in an application for a decree of judicial separation to establish that a marriage has broken down irretrievably, which is now gone, an applicant must prove to the satisfaction of the court that the parties to the marriage have lived separate and apart for a continuous period of three years immediately preceding the presentation of the application. Therefore, parties who have lived separate and apart for three years, who certainly do not want the privacy of their marriage gone into in a courtroom under the provisions relating to succession in Deputy Shatter's Bill, will now have to have regard to whether one or other party was guilty of gross misconduct. I repeat, not fault but gross misconduct, perhaps greater than fault —"gross" being the word implying it to be greater. Where stands the no fault concept now? Where now stands the Utopia for which I too would have wished — a no fault system when the Deputy attacks that system himself by introducing fault into the one provision in the Bill where there had been none? I do not believe that argument stands up. I do not believe fault should be introduced in a case where people have lived apart for three years. Neither do I believe that fault should be introduced in circumstances in which parties have lived separate and apart for one year and agree to leave one another. The Deputy has introduced fault into the inheritance and succession legislation——

Mr. Shatter

It is very difficult to take this seriously.

Mr. O'Donoghue

It is here in the Bill.

Mr. Shatter

It is a difficult matter but it is difficult to take this seriously.

Mr. O'Donoghue

It now becomes apparent that Deputy Shatter, having attempted to introduce a no fault system of judicial separation, when it comes to dealing with the very sensitive issues of inheritance and succession, introduces the concept of gross misconduct.

Mr. Shatter

The Deputy might deal with the issue rather than talking so much nonsense.

Mr. O'Donoghue

That is what Deputy Shatter is asking a court to decide in circumstances in which two people have agreed to leave one another. I do not consider that the Deputy should come into this House or anywhere else and pretend that the legislation provides for a no fault system when he himself introduces the gravest of faults when the issue of succession or inheritance arises. To say the least, it is unfair to the spouses concerned.

I believe that the Minister's provisions, which, if you like, maintain the status quo in relation to inheritance and succession on issues of separation, provisions which obtain already in divorce a mensa et thoro, provisions which exist in the Succession Act, 1965, have withstood the test of time. I will not pretend for a moment that they constitute an ideal solution, but certainly they are preferable to the uncertainty, ambiguous and fault-ridden provisions of the inheritance legislation Deputy Shatter would have the House pass. I believe there would be dissipation of assets if a husband were allowed to hold on to his property if the wife's succession rights were maintained. That would be unfair to the wives of a broken marriage, indeed not just unfair to them but also to their children, who certainly were not at fault in the breakdown of the marriage.

While certainty in the law is a good thing, undoubtedly we should take into account the fact that, following a breakdown of marriage, there is great emotional trauma. By including a fault concept in the provisions of this Bill dealing with inheritance, as Deputy Shatter proposes, he is adding to the anguish, trauma——

Mr. Shatter

The Deputy wants to preserve the desertion provision in the Succession Act. Has he any idea what he is talking about?

Mr. O'Donoghue

He is adding to the anguish and trauma of an already sensitive and emotional situation.

Mr. McCartan

In recent days and months, when we debated this Bill in Special Committee, I have tried to find some thread of thought running consistently through the minds of the Fianna Fáil Party in opposing the Bill in Committee and, now, in attempting to dismantle it systematically on Report Stage. I think I have at last found it — the great golden thread steering the illogical minds of our friends on the Fianna Fáil side of the House is this unbelievable principle of certainty: in the cause of certainty so much has to be sacrificed. They are prepared to throw out the concept of irretrievable breakdown as constituting the sole ground, advocated unanimously by a Special Committee that sat and deliberated for two years, that received so many submissions and heard and conducted so many oral hearings — the cause of certainty dictates that it must be thrown aside because the Fianna Fáil Party contend we must keep the grounds clear, certain and restricted.

Earlier in the debate here today other good and worthwhile provisions were cast out of this comprehensive Bill. I have to say to Deputy O'Donoghue and the Fianna Fáil Party that, whatever de Montesquieu had to do with it, fairness, equity and protection of the vulnerable spouse in matrimonial law in Ireland is what should guide us in this legislation and to hell with certainty.

Hypotheses have been proposed on both sides here with regard to what might happen vis-à-vis our legislation. On the one hand we have the instance of the woman, absolutely in need of judicial separation, faced with the prospect of being disinherited entirely on the part of the promoters of the legislation. The hypothesis advanced from the other side is the prospect of the blackguard who forces the position requiring judicial separation, emigrates somewhere and appears out of the clouds 20 years later to pick up all under the succession laws and ride off with his or her pockets full.

If we are to base our argument on hypotheses let us advance it somewhat further. Let us ask each other, then: on balance where does the moral right lie that Deputy O'Donoghue so vehemently argues? I contend it lies where the numerical argument wins. I pose the question to those who propose this hypothetical argument: how many more women, battered, brutalised in a marital situation, will be forced out of the courts, away from legal remedy, because of what the Minister is doing here today by way of this amendment? I contend we will then have the blackguards riding out of the clouds, picking up whatever is to be picked up and heading off again. On the numerical side the Minister is doing far more damage by way of his proposal.

If the Minister wants to introduce the ridiculous instances about which he has talked, then I ask him to tell me in now many cases practitioners — and there are sufficient of them on the Government side to invoke their practical experience here — have come across the recalcitrant spouse returning years later out of the blue saying: "Give me what I am entitled to under the law and let me get on with my blackguarding way of life"? And do not let Deputies on the Government side look puzzlingly at me. The fact of the matter is that this is a rare occurrence and if it occurs, well and good because what we are legislating for in this legislation is far more important and essential, the protection of vulnerable spouses in a marriage. We should ensure that we encourage them in every way possible to avail of the remedies we are seeking to introduce in this legislation. The approach of the Government is condemnable because of their intractable position. They are seeking an absolute law. Another adage that de Montesquieu penned is that absolute laws do not fit justice fairly. We, as legislators, and as people who profess to have some concern have to sit down to try to devise a system which would in some way tackle the problems as we know them or profess to know them in Irish society today.

What is being proposed in these sections of the Bill is, like in all other areas of the Bill, comprehensive. It equally recognises that there will be cases best left to the courts to adjudicate on. To lay down absolute rules in this instance does not serve the cause of justice. It has been suggested here that what is proposed in the Bill amounts to a radical departure. I say it is not. I say it is couched in the principles of the 1963 Act and of the judicial precedents which have emanated since the implementation of the 1963 Act. What we are doing here is borrowing on existing law and developing it in the best way we can as legislators. To say that what we are trying to introduce amounts to a radical departure is misleading and it ill behoves a party so admirably represented by such a bevy of lawyers to say so.

This Bill is based on the principles of the 1963 Act. I listened to the Minister for Justice indicate here last week how revolutionary the 1963 Act was and how it has been recognised internationally. That legislation was introduced by the present Taoiseach who was then Minister for Justice. It is on those principles that we are seeking to advance the entitlement of spouses under the law when marriages break down. The Minister described that legislation as revolutionary for its time and maintained that it is respected across the world and that it has stood the test of time. If that is so, let us take the principles of that legislation, develop and use them in this regard and allow the courts the opportunity to adjudicate. To hell with the absolute rule in the cause of certainty. There is no place for it here.

Let me borrow for a moment another one of the threads of so-called continuity which we have been told runs through the Government's approach to this legislation — that the provisions being promoted are more suited to a law on divorce. If there ever was a provision best suited to a law on divorce it is the rule of absolute disentitlement to succession rights which the Minister is trying to introduce at this stage. There is a provision that is best suited elsewhere and which should have no place in the legislation we are considering here today. Where in heaven's name are the Government going with this legislation? I would like to dwell for a few moments on what has been said by them and on what they are doing in this regard. We have to nail the Government firmly on this legislation and their so-called commitment to the law reform we heard so much about last week.

It is quite clear that what the Government are attempting to do is to protect the backwoods attitude that they so ably played to during the referendum campaign on the introduction of divorce. One can imagine Deputy O'Donoghue on top of his ladder down in the depths of County Kerry outside the church on Sunday morning speaking to the smallholders whose wives are at home preparing the Sunday dinner and saying: "remember men that it is certainty in the law we want. We want you to hold on to the land, nothing will interfere with your grip on the land ——

Mr. O'Donoghue

The Deputy can imagine away because it never happened.

Mr. McCartan

—— and there will not be allowed any development whereby any woman in the constituency will be able to go on a train to Dublin to seek equity and justice or divorce or interfere with your position on the land". That is what they are trying to do here. That is the kind of backward, backwoods, top of the ladder, outside of the church on a Sunday morning remark that was made during the divorce campaign.

Mr. D. Ahern

Deputy O'Donoghue answered that argument.

Mr. McCartan

Now when we try to provide a lifeboat or a fire brigade type operation so as to give some assistance to people, Fianna Fáil come back into this House with that old threat of "once you are gone she could come back and take a bit of the land that you have put your blood, sweat and tears into". The Government should be utterly ashamed of themselves in regard to what they are doing here today.

Mrs. Barnes

I can recall vividly the fears which were spread throughout the land during the divorce referendum campaign. One Member of this House remarked in graphic language that slumbering monsters would get up and march all over the land.

Mr. Shatter

Frankenstein.

Mrs. Barnes

Even he was referred to. What were the fears which were instilled into women who desperately needed the introduction of legislation to enable them have their marriages dissolved? We are talking of those vulnerable and dependent women who found themselves in a legal limbo. What frightened them to go into the polling booths and voting no to divorce, even though they desperately needed its introduction? Do I need to remind the people opposite? God knows some of the Members opposite formed part of the propaganda campaign.

Mr. Taylor

Fine Gael were not 100 per cent for it either.

Mr. Shatter

If some of the Members of the Deputy's party were present for the Votes on this Bill we might be making some progress.

Mrs. Barnes

I do not think that remark was worthy of Deputy Taylor taking into account my record and my performance.

Mr. Taylor

I am not referring to the Deputy's record.

Mrs. Barnes

I do not wish to comment on the performance of any party.

Mrs. Taylor-Quinn

The performances of some of the members of the Deputy's party were not great either.

Mrs. Barnes

Exactly. There is nobody——

An Leas-Cheann Comhairle

Recalling what may have happened in the past may not contribute to the tranquility Deputy Barnes would wish and is entitled to. I ask all other Deputies to contain themselves, especially those who have not spoken yet. They will be given an opportunity to do so and I ask them to listen to Deputy Barnes who is in possession, without interruption.

Mrs. Barnes

I thank you, a Leas-Cheann Comhairle. I am not someone who looks back. In fact, I continually try to press forward. The message I have picked up from letters from women all over Ireland is that they have a fear of losing succession rights and of being disinherited. They fear that if they take legal action in order to get a legal solution to their problems in a very bad marriage, in which they are the victims, that they will with certainty be disinherited. They fear that if they take legal action in order to get a legal solution to their problems in a very bad marriage, in which they are the victims, that they will with certainty be disinherited. That is one threat which was used to frighten women during the divorce referendum campaign. I do not refer to that issue lightly, I refer to it passionately. One of the agonies is that we find ourselves here this afternoon, as we were on Committee Stage, being confronted with a proposal that would lead to the disinheritance of women. Regardless of what the outcome of the divorce referendum was, all sides of the House promised that legislation to protect the family and which women would feel comfortable with, would be introduced, legislation which would give them a status and a role and value them in a way which had never been done before. However, what all of us find in this legislation is the very nightmare which those women find most fearful. It is the greatest injustice we could write into an Act and I do not understand the reason behind it.

I cannot understand why we also continue to frighten women with the other monster which has been pacing the land recently — the threat of husbands who have grossly misconducted themselves in their marriage and who have deserted their wives, being allowed to come back after many years and make demands against a wife's will and take her inheritance. The present law deals with that situation. Therefore, I believe the first concern which all of us should have in regard to legislation is that it is the very best, is flexible, gives as many choices as possible, that we do not write into it a rigidity which creates difficulties afterwards, particularly in emotional and traumatic situation — and Deputy O'Donoghue was correct in what he said about that — and, above all, that it should fulfil the expectations of thousands of spouses who expect from this Chamber and the Seanad legislation which will protect them and which will not disinherit them.

It is extraordinary that, when we are talking about fault and dealing in as caring and as solid a way as possible with regard to marriage breakdown and the paramount importance of children's rights, the Minister and his colleagues should suggest that people should be on standby for the rest of their lives after a judicial separation to see if assets increase, thereby having to go into court once again. I can tell the House when one is talking about land and property in Ireland that people will not fight it on a no fault basis. I am reminded of what a certain farmer said sometime ago: That when it comes to land in Ireland a wife comes a poor second.

That is what this legislation has to be about. It has to be about giving protection to women who have none at present. Instead, this amendment would actually make the situation worse. I appeal to the Minister to consider the implications of this legislation for women in desperate family situations who have been looking forward for so long to legislation which will strengthen their position and guarantee them security in a judicial separation. I believe this amendment will add to their disappointment and disillusionment in a way in which I do not like to think about. I certainly would not like to be involved in the enactment of any Bill which would do that. We have promised to bring in legislation which will strengthen the position of these women but this amendment will do the opposite. I wish to allow other people who are as outraged as I am to speak, but I want to say that it will be a bad day if this amendment is accepted.

Mr. D. Ahern

I am very disappointed at the way this debate has degenerated. I am absolutely aghast at some of the remarks which have been made by speakers on the other side of the House. I do not want to go down that road again, but Deputy Shatter made a remark this morning about Deputy Andrews's knowledge of succession and marital problems and I believe he should have immediately withdrawn that remark. Deputy Madeline Taylor-Quinn, a former chairperson of the committee, was over the top when she interrupted a previous speaker.

Mrs. Taylor-Quinn

The Deputy is very sensitive. I did not know skins were so thin.

Mr. D. Ahern

I have to say that Deputy Shatter acted like a spoilt child since the minute this debate started this morning because he did not get his way yesterday.

Mr. Shatter

When one cannot provide a logical response one has to resort to abuse.

Mr. D. Ahern

We do not profess, like the Deputy does, to have a monopoly of knowledge in relation to legal family matters——

Miss Flaherty

The Deputy is admitting ignorance.

Mr. D. Ahern

——but we are trying to put forward our argument as we see it. Many people in this country have a problem in relation to succession rights and desertion and we are trying to put that argument forward. We are trying to get the best solution for all people, including the people Deputy Barnes spoke about so eloquently. This debate is degenerating and I would ask the Deputies on the other side of the House not to make the debate, as Deputy Andrews said yesterday, a case of the "goodies and baddies". We are all trying to get — and that is the whole idea of being here — the best solution for the people outside.

I am surprised at the attitude which has been adopted by the Fine Gael side in particular. I have read their statement of intent and we on this side of the House are trying to do exactly what is stated in the Fine Gael Statement of Government's Intention with Regard to Marriage, Separation and Divorce which was published two years ago. The statement says:

Under existing law when a decree of judicial separation is given against a spouse that spouse loses succession rights. At present also,——

This is for the information of Deputy Shatter who said that 70 per cent of separation agreements do not waive succession rights.

Mr. Shatter

That document was written by the same officials who are advising the Minister. That is the problem with this debate.

Mr. D. Ahern

This is a Fine Gael document.

Mr. Shatter

The Department of Justice are the problem with this debate.

Mr. D. Ahern

The statement continues:

——it is common practice when couples enter into a formal separation agreement that each renounces his or her succession rights to the estate of the other. Spouses will each lose succession rights to the other on divorce——

That is the proposal that Fine Gael tried to bring in at that time.

——but the Court will have the obligation to make such orders as may be appropriate in the circumstances to ensure that the dependent spouse is adequately protected, and the legislation will be so framed to enable the court to take account of loss of succession rights arising from a divorce. The Court will be empowered to order that compensation be given where it is appropriate to do so.

What are we on this side trying to do ? We are trying to do that.

Mr. Shatter

This legislation has nothing to do with divorce.

An Leas-Cheann Comhairle

Would Deputy Ahern kindly address the Chair? I must advise Deputy Shatter that if he persists in interrupting as he has been doing I will ask him to leave the House.

Mr. Shatter

If I am asked a question by the Deputy I think I am entitled——

An Leas-Cheann Comhairle

The Deputy is not entitled to answer it. Deputy Ahern should address the Chair and I will deal with Deputy Shatter.

Mr. D. Ahern

I apologise, but I have been sitting here all day and it is my first time to contribute to the debate. I have to say that I was getting physically sick from listening to some of the interruptions which came from the other side of the House.

Miss Flaherty

The Deputy will have to listen to more before he finishes.

An Leas-Cheann Comhairle

As they say in the courts arbiter elegantiarum. Would Deputy Ahern set the fashion now for the proper debate?

Mr. D. Ahern

Many speakers have referred to the Succession Act, 1965, which to me and many more practitioners and the general public is one of the most enlightened pieces of legislation to come before the Dáil for many years. I do not think that we will have better legislation.

Mr. Collins

Hear, hear.

Mr. D. Ahern

The Bill as framed is trying to turn that upside down and I do not agree with that. The Succession Act was a guarantee that people would have some certainty and finality in relation to their succession rights. Under the Succession Act as it now stands anyone who neglects his or her duty does lose succession rights, but the problem now is that under Deputy Shatter's Bill this would be because of gross matrimonial misconduct. This must be proved and, as Deputy O'Donoghue quite rightly pointed out, that brings a very divisive element into the whole issue of succession rights and of marital law. He quite rightly points out that to say that the legislation as proposed originally does away with fault is misleading.

Also, there is an aspect that worries me slightly in relation to the Family Home Protection Act of 1976. As a legal practitioner I regard this as very badly drafted and hurried legislation. However, the idea behind it was correct: to ensure that the family home could not be sold over the head of one of the spouses. At the moment the spouse can sit tight in the knowledge that the house will not be sold over her head — in most cases it would be the female spouse who would be concerned. However, under the Bill as framed it is possible that the house could be sold over her head. The Minister is trying to prevent that from happening, which is very important.

Miss Colley

The Minister is going to make that happen.

Mr. D. Ahern

Something which has not been addressed by the far side is that there is a distinct possibility that the Bill will encourage people to litigate. It would encourage deserted spouses to apply to court for a judicial separation so as to ensure that the deserting husband, shall we say, will not later on claim his legal share under the Bill as framed. If a deserted wife were to leave a will granting all the property to her children, the deserting spouse after her death could claim his legal share. That is the problem that is not addressed in the Bill. This would encourage certain spouses before they die to make sure that these legal rights are not claimed by the deserting husbands by applying for a judicial separation. That is not a valid reason for a judicial separation.

The whole area of succession rights is a very difficult one and it should be addressed properly. Ultimately, as previous speakers have said, there must be certainty. The certainty that was granted under the 1965 Act would be changed as a result of the passing of this section. For that reason I would be against it.

Mr. Flanagan

I want to make a few brief points on what we have been listening to this morning and afternoon. I feel that we have forgotten the main and principal purpose of this legislation. My reading of it is that it is to provide an avenue down which people suffering from extreme marital difficulty could proceed in order to endeavour to sort out their problems. I agree with the remarks of the previous speaker that what we are trying to do, and what our goal should be, is to provide the best solution for as many people as possible to avail of. We are not doing that under the amendment as proffered by Fianna Fáil in this instance. We are ignoring the fact that over 50 per cent of our population are women and that many of these are in marriages that they cannot get out of by virtue of the law as it stands. These people are waiting for us to present an answer and are going to be denied the remedy if this amendment is passed here today.

The changes as envisaged by amendment No. 22, with which we are dealing, are such as to get right to the heart of the Bill. We are cutting out the kernel of it. If the Bill is ultimately enacted with the amendment from the Government, what would be the net worth of the legislation for those who are looking to us for a solution in the light of our discussions on this matter going back to the early eighties? Is this the end remedy that we are going to provide for these people? Rather than providing remedies for those whose marriages may unfortunately have become difficult and unbearable, what we are doing with regard to the present amendment is that we are using the big stick on the women of Ireland who are in difficulty. There will be a disincentive for them to go near the courts because it will be incumbent upon their legal advisers, and, indeed upon their social advisers, to tell them that if they go to court they are taking the ultimate of risks, that if they are successful in their application the risk is that they will be absolutely disinherited. The certainty spoken of by the Government side will give rise to a most unsatisfactory state of affairs as far as the legal practitioner is concerned and also the person suffering from marital difficulty.

Society has ordained that the married woman is more often than not the dependant. Rightly or wrongly, we can all have our views on that matter; but that is the reality. We must protect the dependent spouse. If we agree to the Minister's amendment we are not doing anything to protect her; we are using an approach that will give rise to extreme difficulty. I do not want, in the few minutes available to me, to go back over arguments put forward in the course of referenda in the early and mid-eighties. However, I do recall property rights taking on a very fundamental importance in the course of that debate. I recall the arguments put forward by Fianna Fáil and that the Government of the day were castigated for advocating the scenario that the present Government are now advocating. Where is the logic in that? Where is the continuity?

On the one hand, we can be castigated for advocating disinheritance and this very amendment being brought forward by the Minister for Justice advocates the same. We have heard so much about divorce type legislation from Deputy O'Donoghue, Deputy Ahern and other Deputies. What the Minister is now advocating is as much part and parcel of divorce-type legislation as anything enacted in other jurisdictions. Therefore, in the Bill we are dealing with a fundamental contradiction on the part of the Government. Over the past few minutes there has been a great deal of talk on the concept of fault, with some advocating no fault and other fault principles. May I attract the Members' attention to the Government amendment dealing with the question of maintenance, amendment No. 18 (2) (k)? When people are talking about fault, let them read what the Government are putting forward. Amendment No. 18 deals with the provision relating to maintenance, property and other orders. Paragraph (k) states:

...the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would be inequitable to disregard it;

Are we talking about fault in this case? I fail to see how that provision can be discussed without going into detail on the issue of fault. It is not fair for one side of the House to engage in throwing comments about the concept of fault, blame or whatever when in fact it is contained in the provisions of a Government amendment.

There has been a great deal of discussion by Deputy Taylor and other speakers on deeds of separation. It has been said that between 30 to 80 per cent of deeds of separation contain clauses where the parties voluntarily renounce their rights under the Succession Act. I do not know whether this is true as I do not have statistics to that effect. However, the choice is available to either party when entering into such a deed to renounce such rights. Under the provisions of the Minister's amendment that element of choice is gone simply because any party who is to be granted a decree of separation is automatically disinherited. That is the difference between a judicial approach and the approach by way of a voluntary deed and it is something which the Minister might consider.

The kernel of the Bill is being interferred with by this amendment. It is unfortunate for the people who have looked to us to remedy the very many difficulties due to the unfortunate problem of marital breakdown. Everybody accepts there is a problem, but I do not think that the passage of this amendment will help those unfortunate people in any way. We are placing too great a weight on the shoulders of the applicant, to such an extent as to dissuade that person from issuing proceedings. We are dissuading that person from seeking legal advice.

We are saying, to the women in particular, that they should put up or shut up but not seek a judicial separation because of the chances of being disinherited. This is unfortunate. I do not think that this amendment was envisaged in any way by the members of the Fine Gael Party and Deputy Shatter in particular. This is interfering with the nub of the Bill and will have very grave consequences. I hope the Minister, in the few minutes remaining, would reconsider the entire amendment in view of its consequences on the legislation and, more importantly, for those seeking the remedy therein contained.

Mr. Abbott

At present I do not intend to get involved in the succession debate, which has been well canvassed. Regrettably, the debate has been very much concerned with abstract provisions and theoretical positions which are not greatly linked to the reality being put forward.

I will examine the competing provisions in the Bill and in the amendment in the context of situations one is confronted with in the normal course of these unhappy family disputes. Deputy Taylor investigated the position of the person with no great equity in their house, they have possibly a county council mortgage on their house and are heavily indebted and thus property is not an overriding consideration. Under the Minister's amendment the court would make a property adjustment order in respect of the family home and if the wife was staying in the family home with the children she would be given overall ownership under an adjustment order. That would be the reality in 90 per cent of situations. I am quite happy that that is the situation the general public would require.

Let us take another example in a more normal context, the farmer or small businessman in rural Ireland. The businessman with the public house may well have a private house and I would imagine that the court would look to secure residence for the spouse, most likely the wife, in the family home and would make a property adjustment order in respect of the house. But one finds that in many businesses there is a heavy element of debt encumbering the business, and in the case of a young married family, the business may be growing or depending on developing goodwill or on the flair of one or other of the spouses. If the court were to make a division of the property, under the provisions of the Bill, or order a sale of the property under what Deputy Shatter has referred to as the finality of the provisions of the Bill, then I think the court would be killing the goose that laid the golden egg for both parties to the dispute.

I have found from my experience — and Deputy McCartan has appealed to this side of the House to look to their experience — when dealing with situations like that, whether in court or in negotiations outside, that when all the difficulties, the passion and the emotion is over, that both sides will eventually realise that it is in their interests that the little business would be kept going and that hopefully then the debt goes down and the business is built up very often by a husband who has a particular flair that there will be more maintenance for the wife and family. That is the reality of many cases and this is particularly addressed by the Minister in the provision for the review of periodical payments. Anyone who would suggest that that is not a fair, reasonable and just way of approaching that problem is flying in the face of reality.

I concede there is a great thirst for finality in litigation. One of the most unfortunate aspects for legal practitioners and indeed the families engaged in the dispute is that there is of necessity a lack of finality. It is one of the most sensitive areas of private life and of human relations between people, which of necessity do not admit to a final, neat solution. This is the great dilemma of judges dealing with the case and of the lawyers advising the parties.

It is a trifle naive of Deputy Shatter, as an experienced family practitioner and parliamentarian, to look at this stage for legislative provisions which would provide finality and certainty and get rid of the regrettable and unfortunate repetative applications which we have been used to. If one accepts the general scheme of finality and certainty contained in the Bill's provisions, then the courts will have their own way of dealing with that finality and certainty by not making a final order, a final adjudication in relation to many of the facts, lest they close the door on the opportunities of litigants. What Deputy Shatter looks to the finality will be the engine of confusion within the courts system as the judges' minds work out their own practical solutions to the straight jacket of this Bill. They will adjourn from court to court and from season to season decisions which if made would impose too much finality where people involved in business in developing situation look to the future, economically and in terms of their own relationship, for the solution of many of the problems they have as a family. They may have differences in their marriage and emotional disagreements, but people do not lose their reason in relation to working out where their best economic and commercial interests lie.

A lawyer might represent a wife in pretrial negotiations and advise that the best way to sort out the case it to split up the property by putting the whole thing up for sale and dividing the proceeds in some suitable proportion, usually vastly in favour of his client. Negotiations can go on for days, weeks and months until eventually either the husband or wife decides that the solution to the problem is to change the equity in the property into cash. In a moment of weakness I have seen spouses concede and tell the other spouse to sell out their business, which may be a pub which is struggling but has great potential. It is decided to sell the business in a weak market, pay back the bank and split the £10,000 or £20,000 equity between the husband and wife. All this is done for the sake of finality. What does one find when this crisis is reached? Very often the person who has sought this simple solution has been bluffing all along, as have the lawyers representing that person, and the negotiations take a turn back to reality. There will quickly be a meeting of minds because the bluff will be called. The parties will suddenly realise that it is in both their interests to keep the business going and build up the trade. The fact that family law proceedings are in train does not stop a husband or wife from doing their work and they will build up the trade in their own interest and the interest of the spouse with whom they have a dispute. They know that the legal system as it is now constituted compels a spouse to pay maintenance and enforces it. There was a time when it was very difficult for a spouse entitled to maintenance to collect it. That no longer obtains. There is a reasonable security for maintenance and the Minister's amendment provides even more provisions for the securing of maintenance and property. Very often in the heel of the hunt in these negotiations there is agreement that the business will continue and the dispute will be put in a holding situation, with the husband and wife agreeing not to cohabit, while one of the spouses runs the business and generates the income from which the maintenance is to be paid.

There are other considerations. A husband and wife might have worked for ten or 12 years building up a business. They both see in that business the prospect of a future for their children in their own area rather than having to go to the city or town to get a job, not to mention the prospect of emigration to Britain, America or elsewhere. That is a major consideration in edging away from the finality of the breakup of property. It is not merely that a farmer would consider the farm first and the wife second, as Deputy Barnes so crudely put it. It is a case of both husband and wife coming to the conclusion that in the little asset they have nutured for years lies their security for the future and they will work to protect it in spite of their differences, for their own sake and that of their children.

Deputy Shatter alleges that the amendments as proposed by the Minister would be a lawyer's goldmine in so far as they would give rise to more repetitive applications to the court. I dispute that allegation. I do not wish to get into hot controversy with Deputy Shatter or to invite any comment on it. It is very much more in the lawyers' interest to have a property division followed by a sale out of court which would produce a lot of liquid cash on both sides, so that the lawyer can put in a bill which can be paid from the money obtained by the sale of the property. The experience of lawyers in regard to payment in respect of maintenance suits and repetitive applications has not been so happy. If I were to reflect the lawyers' preference, it would be for the property break up. Contrary to allegations about the Minister's amendment being a goldmine for lawyers, Deputy Shatter's amendment will of necessity be very remunerative for lawyers, perhaps more than the Minister's.

What we are talking about today is not what will remunerate lawyers more or less but legislation which is in the interest of spouses and their families and which will provide the requisite degree of loyalty. The Minister's provisions have enormous flexibility written into them. At the same time we are talking about legislation which will provide for that flexibility without recourse to the type of witch-hunting which, belatedly, Deputy Shatter's Bill, in section 16, introduces in relation to the contest as to whether a husband or wife was guilty of a gross matrimonial offence.

As someone who admires Deputy Shatter's fluency and volubility in relation to the production of this draft legislation, I am surprised that he did not define gross matrimonial misconduct in terms of the Bill. When I first saw this provision in section 16, my immediate reaction was to turn to the back of the Bill — or to the middle, as sometimes definitions are inconveniently placed — to see if this term was defined. One owes a great debt of gratitude to the Minister for pointing out that it is not defined and that it is a difficult definition, even having regard to any other code. This deficiency in the Bill brings us to the evil to which I have already adverted, of leaving the legislative function to the courts. The discretion which one would naturally leave to the courts does not extend as far as defining such a fundamental term and concept as "gross matrimonial misconduct" in the context of the Bill. The basic requirement of a Bill is that lawyers with a modicum of legal attainment and training would be able to take up a Bill and advise clients where they stood without having to wait for two or three years before the courts would finalise the judicial interpretation of a particular provision.

In relation to the emergence of a judicial interpretation of gross matrimonial misconduct, one would have to wait a considerably longer period because it relates to matters dealing with succession. When one deals with succession, one finds that the real disputes and the hotly argued cases will not arise for a considerable period because it ultimately depends on the dispute arising after the death of one or other of the spouses. In the natural course of things, one would find it would take many years after the passing of this legislation to have enough cases in the courts to have this phrase defined with any degree of exactitude. There are further instances dealing with better off people with which I have not dealt already. One could refer to them as the people who had paid off a very substantial degree of their mortgage, had two cars and led a happy and reasonably well off suburban existence. There are many circumstances in which worries might be raised by the comments of the Opposition in relation to how the Minister's proposals might work out in regard to families such as that.

Miss Flaherty

On a point of order, will the vote take place at 5.30 p.m.?

Acting Chairman (Mr. S. Walsh)

I will be putting the question then.

Miss Flaherty

With all due respects to Deputy Abbott, I am interested in hearing the Minister's reply and indeed some of us who wish to speak were not given the opportunity because of the length of Deputy Abbott's contribution.

Acting Chairman

The question will be put at 5.30 p.m.

Mr. Abbott

I will co-operate in this matter.

Mr. Shatter

Perhaps we could extend the debate by five or ten minutes?

Acting Chairman

We have to abide by the order of the House.

Mr. Abbott

If Deputy Flaherty wishes to speak——

Miss Flaherty

When will the Minister speak?

Mr. Collins

As soon as I can get in.

Mr. Abbott

In relation to the type of family to which I referred, I am quite satisfied that the courts would look at all the matters required under section 18. I am sure the courts would consider whatever limitations exist on succession as factors which would influence the courts in relation to making a property adjustment order and such other periodical orders as would be required.

Mr. Collins

Now that irretrievable breakdown has been deleted from the Bill, Deputy Shatter has shifted to saying that the provisions regarding succession rights are not the kernel of the Bill. Up to now the position was that irretrievable breakdown was supposed to be the kernel of the Bill——

Mrs. Taylor-Quinn

Both.

Mr. Collins

Deputy Shatter said this morning that my proposals on inheritance rights were a direct attack on dependent, battered and deserted wives. That type of attack creates a hype at which the Deputy seems to be expert. It is presumably calculated to cloud the fact that when his proposals are subjected to close scrutiny they do not offer the protection to spouses which he claims. He has not, in any instance, addressed himself to the difficulties and problems of his provisions as I see them. To say, for example, that allowing a spouse who has obtained a decree on the grounds of cruelty to maintain her succession rights, would afford her security for the future is simply not true. As Deputy Shatter acknowledged, a husband can dispose of his property in such a way as to render such rights useless. It is in recognition of that fact that I am proposing that the court be empowered to make appropriate orders during the lifetime of the husband.

Deputy Shatter argued that a husband may conceal or otherwise dispose of his assets with a view to defeating a claim for relief. I wish to draw attention to the fact that my amendment on Committee Stage — now section 25 of the Bill — was designed to deal with that situation. The Bill as it stood made no such provision. Even, if in spite of section 25, a husband succeeded in putting his property out of reach of his wife, it would also be out of her reach when it came to succession rights. Deputy Shatter charged that the effect of my amendment could be to leave a dependent spouse destitute. That is a gross distortion of the facts and Deputy Shatter knows it. I am aware that whatever we do in this area will not be a perfect solution but I am convinced that my overall proposals go further in protecting dependent spouses than the proposals in Deputy Shatter's Bill.

The Bill proposes that the court may vary or discharge succession rights but that is subject to a proviso, namely, that it can do so only where it at the same time makes a property transfer, settlement order or lump sum in favour of a spouse. I will leave aside for a moment the case where there has been gross matrimonial misconduct. Until now a court has had no power in divorce a mensa et thoro proceedings to grant lump sums, to order the transfer or settlement of property or indeed to secure maintenance payments on property or capital. The intention must be that it will use those powers. If the court grants a lump sum, makes a property transfer or settlement order, I have no doubt that in accordance with what must be the intention in the Bill, it will extinguish the succession rights of the spouse who will benefit from the order in question.

I would not see the court merely reducing succession rights because in most cases what we are talking about is the legal right to a one-third share. That is the case where a will is made and there are children of the marriage. It is quite ludicrous to talk of the court making an order in regard to intestate succession rights as the Bill proposes because it has no way of knowing that there will not be a will made. That is what I mean when I say the provision does not achieve what it sets out to achieve. In other words, it is illusory.

In the normal case the husband will not benefit from any financial provision order under the Bill so that his succession rights cannot be affected. The Deputy has referred to the saver in section 18 which allows the court to reduce or extinguish statutory succession rights where there has been gross matrimonial misconduct. This has not been defined and therefore we do not know what will be covered and what will not be covered. In particular we do not know whether desertion will be covered by that phrase. It would not be covered in our neighbouring jurisdiction without additional wording. The net result of this provision is that it would obviously discriminate against wives.

Another objection I have to these provisions in the Bill is that the court is being given the choice to leave succession rights alone, even where there is property available for distribution. I would hope that a court would never take that option, not least because of the grave uncertainty in which it would place a dependent wife.

Acting Chairman

We have gone over the time. As it is now 5.30 p.m. I am putting the question that amendments Nos. 22 and 47 are hereby made to the Bill.

Question put.

The Dáil divided; Tá, 77; Níl, 76.

Tá

• Abbott, Henry.
• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Matthew.
• Brennan, Séamus.
• Browne, John.
• Burke, Ray.
• Byrne, Hugh.
• Calleary, Seán.
• Collins, Gerard.
• Conaghan, Hugh.
• Connolly, Ger.
• Coughlan, Mary T.
• Cowen, Brian.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Doherty, Seán.
• Ellis, John.
• Fahey, Frank.
• Fahey, Jackie.
• Fitzgerald, Liam.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• Foley, Denis.
• Gallagher, Denis.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Hilliard, Colm Michael.
• Hyland, Liam.
• Jacob, Joe.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Leonard, Jimmy.
• Leyden, Terry.
• Lynch, Michael.
• Lyons, Denis.
• McCarthy, Seán.
• McCreevy, Charlie.
• MacSharry, Ray.
• Mooney, Mary.
• Morley, P. J.
• Moynihan, Donal.
• Nolan, M. J.
• Noonan, Michael J. (Limerick West).
• O'Dea, William Gerard.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• O'Leary, John.
• Power, Paddy.
• Reynolds, Albert.
• Roche, Dick.
• Smith, Michael.
• Stafford, John.
• Swift, Brian.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Walsh, Joe.
• Walsh, Seán.
• Wilson, John P.
• Woods, Michael.
• Wright, G. V.

Níl

• Barnes, Monica.
• Barrett, Seán.
• Barry, Peter.
• Begley, Michael.
• Bell, Michael.
• Birmingham, George.
• Blaney, Neil Terence.
• Boylan, Andrew.
• Bruton, John.
• Bruton, Richard.
• Burke, Liam.
• Carey, Donal.
• Clohessy, Peadar.
• Colley, Anne.
• Connaughton, Paul.
• Cooney, Patrick Mark.
• Cosgrave, Michael Joe.
• Creed, Donal.
• Harte, Paddy.
• Hegarty, Paddy.
• Higgins, Jim.
• Higgins, Michael D.
• Howlin, Brendan.
• Hussey, Gemma.
• Keating, Michael.
• Kelly, John.
• Kemmy, Jim.
• Kennedy, Geraldine.
• Kenny, Enda.
• Lowry, Michael.
• McCartan, Pat.
• McCoy, John S.
• McDowell, Michael.
• McGahon, Brendan.
• McGinley, Dinny.
• MacGiolla, Tomás.
• Mitchell, Gay.
• Mitchell, Jim.
• Crowley, Frank.
• Cullen, Martin.
• Deasy, Austin.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Desmond, Barry.
• Doyle, Avril.
• Dukes, Alan.
• Durkan, Bernard.
• Enright, Thomas.
• Farrelly, John V.
• FitzGerald, Garret.
• Fitzpatrick, Tom.
• Flaherty, Mary.
• Flanagan, Charles.
• Gibbons, Martin Patrick.
• Gregory, Tony.
• Harney, Mary.
• Molloy, Robert.
• Naughten, Liam.
• Nealon, Ted.
• Noonan, Michael. (Limerick East).
• O'Brien, Fergus.
• O'Keeffe, Jim.
• O'Malley, Desmond J.
• O'Malley, Pat.
• O'Sullivan, Toddy.
• Pattison, Séamus.
• Quinn, Ruairí.
• Shatter, Alan.
• Sheehan, P. J.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Wyse, Pearse.
• Yates, Ivan.

Tellers: Tá, Deputies V. Brady and D. Ahern; Níl, Deputies J. Higgins and Boylan.

Question declared carried.

An Ceann Comhairle

Amendment No. 24 in the name of the Minister. Amendments Nos. 28, 40, 42, 45, 48, 49, 52, 59 and 94 will be debated with it, by agreement.

Mr. Collins

I move amendment No. 24:

In page 10, to delete lines 1 to 48, and in page 11, to delete lines 1 to 23 and substitute the following:

14.—(1) On granting a decree of judicial separation or at any time thereafter the court may, on application to it by either spouse, make any one or more of the following orders—

(a) a periodical payments order, that is to say—

(i) an order that either spouse shall make to the other spouse such periodical payments of such amount and at such times as may be specified in the order; or

(ii) an order that either spouse shall make to such person as may be specified in the order for the benefit of a dependent child of the family such periodical payments of such amount and at such time as may be so specified;

(b) a secured periodical payments order, that is to say—

(i) an order that either spouse shall secure to the other spouse to the satisfaction of the court, such periodical payments as may be so specified; or

(ii) an order that a spouse shall secure to such person as may be so specified for the benefit of such dependent child of the family such periodical payments to the satisfaction of the court as may be so specified;

(c) an order that either spouse shall pay to the other spouse such lump sum or sums of such amount and at such time or times as may be so specified;

(d) an order that a spouse shall pay to such person as may be specified for the benefit of a dependent child of the family such lump sum or sums of such amount and at such time or times as may be so specified.

(2) Without prejudice to the generality of subsection (1) (c) or (d) of this section—

(a) an order under this section that a spouse shall pay a lump sum to the other spouse may be made for the purpose of enabling that other spouse to meet any liabilities or expenses reasonably incurred by him or her, before making an application for an order under this section in his or her favour, in maintaining himself or herself or any dependent child of the family;

(b) an order under this section for the payment of a lump sum for the benefit of a dependent child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and

(c) an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

15.—On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by either spouse, make a property adjustment order, that is to say, any one or more of the following orders—

(a) an order that a spouse shall transfer to the other spouse, to any dependent child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned spouse is entitled, either in possession or reversion;

(b) an order that a settlement of such property as may be so specified, being property to which a spouse is so entitled, be made to the satisfaction of the court for the benefit of the other spouse and of any dependent child of the family or any or all of those persons;

(c) an order varying for the benefit of the spouses and of any dependent child of the family or any or all of those persons any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses;

(d) an order extinguishing or reducing the interest of either of the spouses under any such settlement;

(e) an order conferring on one spouse either for life or for such other period (definite or contingent) as the court may specify the right to occupy the family home to the exclusion of the other spouse;

(f) an order under section 12 of the Married Women's Status Act, 1957, determining any dispute between the spouses as to the title to or possession of any property;

(g) an order under section 4, 5 or 9 of the Family Home Protection Act, 1976;

(h) an order under section 2 or 3 of the Family Law (Protection of Spouses and Children) Act, 1981;

(i) an order for the partition of property or under the Partition Acts 1868 and 1876;

(j) an order under section 11 of the Guardianship of Infants Act, 1964 concerning any dependent child of the family.

16.—(1) Where the court makes a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in that order, being property in which or in the proceeds of sale of which either or both spouses has or have a beneficial interest, either in possession or reversion.

(2) The power to make an order for sale in the case of a property adjustment order shall not be exercised so as to interfere with a right to occupy the family home conferred by that order.

(3) An order under subsection (1) of this section may contain such consequential or supplementary provisions as the court thinks fit and, without prejudice to the generality of the foregoing provision, may include—

(a) provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and

(b) provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.

(4) Where an order is made under subsection (1) of this section, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.

(5) Where an order under subsection (1) of this section contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a spouse, the order shall cease to have effect on the death of that spouse.

(6) Where a spouse has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not one of the spouses also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 18.

The powers of the court to make ancillary orders in divorce a mensa et thoro proceedings is limited. It has no general legislative power to order the transfer of property between spouses. It can award alimony to a wife but not a husband and it has no power to award a separate sum for the support of any children. An application for maintenance can be made by either spouse under the Family Law (Maintenance of Spouses and Children) Act, 1976 but the order that is made for the support of a spouse and any dependent children of the family is based on a failure to maintain and that circumstance may not of course exist in all separation proceedings.

Section 14 of the Bill has none of those limitations. The provisions, however, do not go far enough and amendment No. 24 which has three new sections covering respectively financial provision orders, i.e. periodical payments and lump sum orders, property adjustment orders and orders for sale or property are more comprehensive. The main changes under the amendment are that, first the court would be empowered to order the transfer of property for the benefit of dependent children, second, it could order the payment of a lump sum to a spouse and children by instalments and the securing of those payments, and third, it would have express powers to order the sale of property. I note that Deputy Shatter has introduced an amendment to correct this latter omission. I should like now to set out in detail the provisions in my amendments and to indicate where the changes arise.

The new section 14 proposed in amendment No. 24 which provides for periodical payments and lump sum orders in respect of a dependent spouse and children comprends the existing provision in paragraphs (a) to (d) of subsection (1) of section 14 of the Bill.

Subsection (2) (c) of the new section would insert the additional power of the court to order payment of lump sums by instalments and to require those payments to be secured. Subsections (2) (a) and (b) are also aimed at protecting better the position of a dependent spouse and children. While section 19 of the Bill empowers the court to order maintenance payments to be made from the time of granting of a decree of judicial separation subsection (2) (a) and (b) would allow the court to order a spouse to meet any liabilities or expenses already incurred by the other spouse in maintaining herself or any child of the family. In that way the spouse could be compensated if the other spouse failed to provide proper maintenance even before the separation proceedings were launched or if it turned out that the order for maintenance pending suit was not adequate.

My amendment does not of course include section 14 (1) (g) of the Bill which empowers the court to extinguish or reduce succession rights.

Section 14 of the Bill empowers the court to order the securing of lump sums. However, since the power to secure payments is only appropriate in the case of periodical payments there would not appear to be any necessity to provide for that matter. My amendment does of course provide for the securing of periodical payments as does the Bill and also the securing of a lump sum which is ordered to be paid by instalments. The Bill, as I have said, makes no provision for the payment of a lump sum by instalments.

My new section 15 has separate provisions in relation to orders that may be made in relation to the property of the spouses. The section comprehends paragraphs (e), (f) and (m) of section 14 (1) of the Bill regarding property transfer orders, property settlement orders and orders conferring on one spouse an interest for life or other period in the family home. The main change is that my amendment empowers the court to order the transfer of property to children if justice requires that to be done. There is no reason provision for that should not be included in the Bill.

My new section 15 removes a number of other deficiencies from the Bill and makes some necessary changes and additions. These are as follows:

Paragraph (e) of section 14 of the Bill provides for orders to be made under the Partition Acts 1868 to 1876. However, since there is no collective citation for those Acts, the reference should be to the Partition Acts 1868 and 1876. The main point of significance is that paragraph (e) would cater only for orders in separation proceedings for the sale of property that is held by the spouses jointly or in common whereas the corresponding provision in paragraph (i) of my new section 15 provides in addition for orders to be made for the partition of the property in those cases — which I would imagine will be very few — where actual physical partition would be the appropriate remedy.

Under subsection (4) of section 14 of the Bill the court shall on one occasion only consider and determine whether a property transfer or settlement order should be made. This would mean that if the husband, say, has little property at the time of the granting of a decree of judicial separation and the court, having considered the matter, decides not to make a property transfer order in favour of the wife, it would be precluded from making a property transfer order at any time in the future, even if at a subsequent date the husband comes into property. The new section 15 in my amendment has no restrictions as to the making of a property transfer order in favour of a wife at any time after the granting of a decree if the court considers that to make such an order is just and proper.

I wish now to deal with the new section 16 of my amendment No. 24 concerning orders for sale of property. The need for this power arises particularly in the common case where the only substantial capital asset is the former matrimonial home. The Bill confers no express power on the court to order a sale of the spouses' property except in the case of property held jointly or in common by the spouses although I notice that Deputy Shatter has tabled an amendment to remedy this defect in his Bill. The new section 16 is framed so that power to order a sale of property would be available whenever the court makes a lump sum, transfer of property or secured periodical payments order, that is to say, whenever it makes an order which involves capital assets. Deputy Shatter in his amendment omits the case where the court has made a property transfer order. I do not see any good reason for that omission. The power to order a sale would therefore be consequential or ancillary power and not an independent one. It would only be made where an order relating to the spouse's capital has already been made under Part II of the Bill. Apart from this the court would have a wide discretion whether or not to order a sale. However, subsection (2) of the amendment provides that the power to make an order for sale in the case of a property adjustment order shall not, however, be exercised so as to interfere with a right to occupy the family home conferred by that order.

The next important amendment — No. 49 — in this package of amendments I am proposing concerns the matters set out in sections 17 and 18 of the Bill, that is the matters to be taken into account by the court when making orders in relation to maintenance and property. Subsection (3) of my new section 18 would make desertion an absolute bar to both maintenance and property orders under Part II of the Bill. The Bill contains a general provision in section 14 that the court may have regard to the conduct of the party seeking maintenance but not any other type of financial provision, where it would be repugnant to justice to require the other party to pay maintenance. This in effect proposes that desertion would not prevent a spouse from claiming maintenance rights in separation proceedings. My amendment making desertion an absolute bar to maintenance in separation proceedings is in line with existing family law provisions.

Deputies will note also that section 33, which I am proposing in amendment No. 94 to delete, proposes that desertion should no longer be an absolute bar to obtaining maintenance under the Family Law (Maintenance of Spouses and Children) Act, 1976. It would be a fundamental change in the law if we were to allow a person who repudiates a marriage by deserting to claim benefit from the resulting breakdown of the marriage and I am opposed to such a change.

There is no provision in the Bill about a spouse's conduct being a matter for consideration by the court when making property or lump sum orders. This is an extraordinary omission. My amendment makes it clear that the rules of conduct which apply to maintenance awards, should apply also to orders in relation to property. I am, in subsection (2) (k) of new section 18, providing that conduct should be a matter to be considered by the court in deciding whether to make financial or property orders, where the conduct is such that in the opinion of the court it would be inequitable to disregard it.

Another important provision in new section 18 is subsection (2) (g) which provides that the court would, in making orders in relation to both maintenance and property, have to take account of the value to each of the spouses of any share in the estate of the other spouse which a surviving spouse will be precluded from taking as a legal right or on intestacy. I spoke about this important direction to the court when dealing with amendment No. 22 on succession rights.

Subsection (4) of the new section 18, unlike the Bill, specifies separately from those matters to be taken into account in relation to spouses, the matters to be considered in the making of orders by the court in relation to children. The Bill contains no separate guidelines for the court in making orders in relation to children.

Apart from the matters mentioned, the amendment is in line with the other provisions in section 17 of the Bill. In coming to its decision as to what orders to make, say, for a dependent wife, the court would be able to take into account that she has given up her job on marriage to take care of the home and rear children. If she is at a disadvantage career-wise through having done so, or where children still need full-time care, that will be relevant. The court is being required generally to ensure that adequate and proper provision, having regard to the circumstances, is made for any spouse and dependent children.

In conclusion I hope that Deputies will agree that the package of amendments I am proposing would retain the best features of the Bill while at the same time providing for important changes and additions which would make the Bill a better one for estranged spouses and dependent children.

Mr. Shatter

The series of amendments tabled by the Minister are primarily designed to reconstruct provisions already contained in the Bill and, in reality, add very little that is new. In the context of the Minister, simply for the sake of satisfying himself that he has produced some of the provisions contained in the Bill, I have no great objection as to whose phraseology is used provided the impact of what is proposed remains the same. Nevertheless, there are some aspects of the Minister's proposals that are quite different from provisions contained in the Bill. There are others the meaning of which is completely unclear. We heard during the discussion on the preceding amendment Members on the opposite side of the House extolling the virtues of certainty regardless of whether that certainty created a certainty whereby a wife who got a decree of separation would know that she was to be disinherited. They did not care greatly about that.

In the context of inheritance rights and other matters, Members opposite poured scorn on the idea that in determining whether one should or should not retain one's inheritance rights the courts should only debar someone from being entitled to inheritance rights if they were guilty of gross matrimonial misconduct or if other adequate financial provision was provided for their future security. We had Deputy O'Donoghue, in the way he does it, waxing lyrical on his legislative soap box about gross matrimonial misconduct. To say that he uttered that phrase four dozen times is giving a conservative estimate of the number of occasions he used it.

We have a Bill which does something substantially different from what the Bill originally did. It says to a wife that if she gets a decree of separation based on cruelty, adultery or desertion she will be disinherited. The Minister is saying that any wife who is disinherited will have adequate provision made for her under the terms of the measures that he is proposing. The Minister has proposed the same measures in his amendments that we proposed in the original Bill, the possibility to make lump sum orders, property transfer orders and so on. However, the kernel of this is the criteria that the Minister says the courts should have regard to in determining what type of maintenance order should be made, in determining whether or not a property order should be made, in determining whether or not a lump sum should be made.

What do we find when we examine the Minister's criteria? I presume that the Minister is referring to circumstances where property exists that can be divided up because in many instances, as Deputy Taylor correctly pointed out, there will not be a massive amount of property, there will either be a local authority house or a small semi-detached house worth £30,000 or £35,000 with a £20,000 mortgage. The reality is that the ownership of that house will be worth very little to a wife. Indeed, it will not be transferred into her name because what the wife will want is the husband to continue to make the mortgage repayments and the building society will require that the husband retain an ownership right in it. When there is property to transfer, what will the disinherited wife get? How will the courts calculate her entitlement?

In paragraph 18 (2) (g) of the Minister's amendment No. 48 there is a direction to the court. What is that direction? It says that in determining how to compensate a wife for loss of inheritance rights the court is to have regard to the value to each of the spouses of any share in the estate of the other spouse which a surviving spouse would be precluded from taking as a legal right or on intestacy. I would love the Minister to explain what that means. What are the courts to have regard to? Are they to have regard to the fact that in the context of the wife the husband might die intestate and she might not, therefore, get the entire of his estate or two-thirds of it? Is the court to predict that a husband will make a will and in the context of his making a will her entitlement to a legal right is one-third where there are children or one-half where there are none? What does the provision mean? What relevance does it have? Where a wife has lost her inheritance rights and the husband has also lost his inheritance rights, albeit he has beaten his wife up for many years and she has got a decree based on his unreasonable conduct, will the court have to do a calculation working out what the husband has lost by losing his inheritance rights vis-à-vis the value of notionally what the wife may have lost?

Are we talking about the entire estate, half an estate or one-third of an estate? What is the time factor in this? Is the court to look at what the potential value of the husband's estate could be if five minutes after he left the courtroom he was run over by a CIE bus? Have they to project and get actuaries into court to work out that it was reasonable to expect that this particular husband would live for a further ten, 15 or 20 years and within that time it was reasonable to expect, depending on the tax system and his commitment to the work ethic, that he may or may not accumulate assets of a particular value. This is a formula offered by the party of certainty, the party that believes that courts should have some direction from the Oireachtas as to what financial compensation, security or protection is now to be provided to those wives who are disinherited as a result of the Minister's amendment made to this Bill which produces the result that anyone who gets a separation decree, loses their inheritance rights.

What does this subsection mean? What guidance does it give? I do not know what guidance it gives. This subsection creates even greater uncertainty — if we want to use this now as the pinnacle of what we are trying to achieve — than any preceding provision could have created in this Bill. What protection does this provision give to a wife? I do not know. No doubt Deputy O'Donoghue will tell me the basis upon which the courts will be able to calculate what substitute protection the wife will be provided with. I would like if Deputy O'Donoghue would do that. I would like to know, when he is wearing his lawyer's hat, whether he will hand over heart, without fear of being sued for negligence by his clients, be giving certain advice as to what will be achieved by the application of this section advice that will give clear and absolute guidance to the courts as to what it should do. I do not believe that is there. Rather than providing protection for wives by taking away their inheritance rights — and indeed taking them away from dependent husbands, although they would be few in number in the context of the family problems that arrive in our courts — and by providing this vague sort of mish-mash guidance to the courts, there is no certainty, there is no protection, and there is the possibility of destitution. The Minister has defied that that would be the case in the event of the poor unfortunate wife who gets the separation degree being faced by the prospect of her husband dying within a short time of the decree being granted or dying, perhaps, 15 or 20 years later, when she is still dependent on maintenance payments from him for her weekly support, with such payments ceasing on his death.

I would be interested to hear Members of Fianna Fáil spelling out what particular specific, concise, concrete and certain guidance this provision is going to make in the context of helping the courts decide what transfer orders to make, what lump sum orders to make. What else does this provision do? Lo and behold, what do we find contained in this amendment? In section 18 (2) (k) the court in deciding how much maintenance to order, what lump sum payment to provide, what property transfer order to make, is directed to have regard to the conduct of each of the spcuses, if that conduct is such that in the opinion of the court it would be inequitable to disregard it. Deputy O'Donoghue regaled us with the problems of the couple who separate by agreement and in the context of succession rights where there was clear agreement between them the courts would be forced to look at the possibility of gross matrimonial misconduct.

Under this provision a wife or a husband who wants to engage in a matrimonial war of attrition will be able to force the courts to examine every aspect of the marital relationship to see if there can be uncovered, under some stone somewhere in the history of the marriage, some conduct of some description which might try and influence a court to reduce the maintenance payment that a wife should get or in some way to reduce the security she should get in the family home or to desist from making a property transfer order or not to provide the lump sum payment, be it by way of a capital once-off payment or instalments.

This provision brings the issue of conduct into every single application that comes before the courts in the marriage breakdown area regardless of how unimportant or how uninfluential the particular conduct was in the breakdown of the marriage. The concept of gross matrimonial misconduct was introduced to ensure that it is only in those circumstances where there has been extreme conduct of a nature that clearly makes it inequitable that someone gains a benefit that that issue would be brought into the matrimonial arena within the courts system.

This provision requires the court — it is not even an option — in deciding how much maintenance it should order to look at the conduct of each of the spouses. What will this mean to a wife? Let us assume we have a wife who has been abandoned by her husband and he is conducting an adulterous relationship and has been living in that situation for some five or ten years. Let us assume the wife has young children and that she gets one night off. She goes off to a dance and she is seen — God save us — dancing with a man for a couple of hours. The wife has to go to court to get maintenance. Will the husband bring that issue into the courtroom because the wife had a night off and was seen dancing with someone? Would that be an aspect of the wife's conduct that could give rise to some form of judicial condemnation that would delimit the financial protections the court can provide for her? I suspect it would. I suspect this provision is designed by Fianna Fáil to have exactly that effect. Instead of now introducing legislation to protect the position of women and to protect the position of dependent wives, as well as dependent husbands, we are in danger of producing legislation that will be used as a stick to beat every dependent wife into submission. That is the invidious and insidious impact of what is contained in this legislation. Let no Deputy suggest later that I am exaggerating. Deputy O'Donoghue regaled us for half an hour as to how the courts should not have to look at gross misconduct. We now see that the courts will, in every application have to examine conduct of every nature during the course of the marriage. The judges will be required to pick over the bones of the broken marriage to see if there is something relating to conduct that indicates that a note of judicial condemnation should be sounded, even where the separation is obtained by consent and agreement after a year. That was not something that would have happened or could happen under this Bill as originally drafted.

What else do we see about conduct? There is a phobia about certainty. There also seems to be a phobia about ensuring that any legislation that was passed over the last couple of decades is not amended. I wonder why there is this great affection and attachment to not amending legislation passed in the sixties or seventies? Is this something hidden deep in the bowels of the Department of Justice where people affectionately hold Statutes that were enacted through the Oireachtas as if they were tablets of stone handed over in the last two decades that should never be changed.

Mr. Taylor

They are a conservative party.

Mr. Shatter

They are a conservative party indeed. They are the most conservative party in this State and let nobody forget that. What do we have here in the area of conduct? We have this great curiosity — desertion. Apparently desertion is the reserved marital sin in the tablets of stone of the Fianna Fáil Party because, if it can be established that a spouse is in desertion, she will be cut off from maintenance, from the family home, from lump sum payments; she will be cut off from the possibility of property transfer orders and, of course, she will be disinherited as well. But if a spouse has just committed cruelty, if a spouse has just beaten the hell out of the other spouse, that is not as great a sin as desertion because the cut-off is not automatic; that is just conduct to be considered. If a spouse has committed adultery, no matter how many times, that is not as great a reserved marital sin as is apparently desertion.

The Department of Justice have had a phobia about desertion. It has a very peculiar historical background. It derives from the fact that in 1886, 100 years ago, the Westminister Parliament passed a piece of legislation to allow deserted wives to get maintenance orders and wives who were not deserted could not, and wives who did desert could not. That legislation remained unchanged until 1976 when we enacted the Family (Maintenance of Spouses and Children) Act. That Act made provision to allow wives who were not deserted to get maintenance orders, even wives who had committed adultery, or who were guilty of cruelty could get maintenance orders because there was a perception that perhaps someone in a difficult marriage might stray off the straight and narrow on one occasion and engage in a brief liaison, but that was not perceived as something that should leave them destitude. Therefore adultery was just one of the things the courts could consider under the 1976 Act. But desertion had been inherited from the 1886 Act and that was the reserved sin. If one were guilty of desertion, one was cut off from maintenance. That is the provision Fianna Fáil are now endeavouring to re-introduce into this Bill.

Of course we have had the certainty of desertion, as Deputy O'Donoghue or the Minister would tell us, in the context not just of the 1976 Act but in the context of the Succession Act 1965.

There is a problem with the certainty of desertion, in that very often it is difficult to know whether a husband or wife is in desertion. Desertion is not a simple concept. In most instances desertion is not the case of the happily married couple when, one morning, the husband rises from bed, looks out the window and reaches the conclusion that the time has come for him to go, or the wife does likewise and simply departs without any history whatsoever of any marital disharmony.

In practice in our courts, at present desertion is raised in one set of circumstances. Wives go to court to look for maintenance orders. They do so often in circumstances in which they have moved out of the family home. In many instances they will have moved out of the family home and are living in great poverty, perhaps in one of the women's aid hostels; perhaps they will have managed to get local authority housing, often at the worst end of the available housing within the local authority system. But they have moved out of the family home and have taken their children with them. Their husbands are not supporting them, they go to court and look for maintenance. The husband, as a defence — in order to avoid having to pay maintenance support payments to his wife — says: "she is in desertion of me and I should not have to support her". The wife will say to the court: "I am not in desertion, our situation in the home was so appalling that, for the sake of my own wellbeing and sanity, I had no choice but to move out".

There may have been violence; there may not have been violence; there may have been simply a history of drunkenness and verbal abuse. The court then has to ascertain whether that wife is regarded as being in desertion or whether she had a just reason for leaving the family home and, hence, is not in desertion.

This wonderfully certain concept to which the Fianna Fáil Party is so emotionally attached, in reality, is not certain at all. The reason it is not certain is that different judges take different views as to what is and what is not desertion. Some judges take the view that, if there is not violence in the family home, that if the family are just very unhappy there is a great deal of verbal upset, with possibly some harassment, that that is the bed one has to lie on because one has to take the wear and tear of married life, that the wife who is under great strain and stress in those circumstances, who moves out of the family home, is not justified in doing so and should be regarded as being in desertion. That wife is cut off from support payments under the existing law. Under this proposal she will be cut off not only from support payments and inheritance rights but from all the other so-called protections about which the Minister speaks. However, some judges have a more compassionate approach. Some judges regard behaviour on the part of a husband or a wife that forces the other spouse out of the family home, that falls short of violence but which is difficult, as justifying a wife's or husband's departure from the family home. Anybody who has had any experience of the way in which our courts deal with this issue will know that there are some who regard wives as being in desertion in circumstances identical to other judges finding that the wife was justified in moving out of the family home.

This provision, that makes desertion a bar, being re-introduced in this Bill, will mean that any wife who is forced out of the family home by her husband's behaviour, who moves out of the home before going to court — sometimes moving out on psychiatric advice for the sake of her sanity — will be putting herself at the risk of being left penniless and destitute. In some instances a wife will be able to convince the court that the husband is guilty of constructive desertion; I grant that; in some cases she will; in others, she will not. Often, whether or not she will be able to, will not be dependent on the factual background of the marriage but rather on the subjective assessments of individual members of the Judiciary who have to make that decision.

Why is this provision about desertion here if the Minister is so desirous that the courts examine the issue of misconduct in the context of making maintenance orders? At least, despite the peculiarity of the way it is dealt with in the Minister's amendment, it leaves the court with a discretion; at least the court can make a determination, even in the context of adultery or of assaults; it is left with a discretion to provide maintenance, financial security, or property orders.

Desertion is the one area in which there is a degree of certainty, in the sense that, if a husband proves his wife is in desertion, she is automatically cut off; the courts are left with no discretion. Therefore, wives will be engaging in a game of judicial roulette if they decide that, because the family circumstances are so difficult they must move out of the family home before heading into the courts. Wives will be told by their lawyers: you move out at your own peril; do not move out; institute proceedings; do not even move out to give yourself time and space to consider whether you should go to court. In these circumstances some wives, due to the pressures they are under in the family home, would like to be free simply to move out of the home for a period while they consider and assess the position; free to move out in the hope that their husbands who are misbehaving in ways that are making life difficult, if not appalling, would, to use a non-legal phrase: "cop themselves on" to the reality of the family problems and change their ways. A wife who moves out without the prior agreement of her husband places herself at risk of being held to be in desertion. In the context of the impact of this Bill, as amended by the Minister, not only will she be placed at risk of being disinherited but she will be placed at risk of being left with nothing, no home, security, no capital sums, no maintenance.

I take Deputy Taylor's point, that in many cases there will not be a question of providing capital sums or properties but the question of maintenance will be there. It is worth recording that the Oireachtas Joint Committee on Marriage Breakdown took the view that desertion should not be singled out in the way the Minister is singling it out in his provision. It is a mean, unnecessary, artificial approach. Certainly it is not an approach that gives rise to any degree of certainty.

What about the other criteria? What else is missing from this? The Minister has lauded the fact that he is making provisions here that fill gaps in the original Bill which, of course, is not the case. He has his peculiar provisions in the context of what the courts should look at in determining whether to order these payments. There are a couple of things notably absent from the criteria that the Minister laid down but which are in the original Bill.

Section 17(g) of the original Bill directs the courts — when deciding what type of property transfer or lump sum orders to make — to have regard to the contribution made by each party, or spouse, to the income-earning capacity, property and financial resources of the other. That provision is not listed among the Minister's criteria and I do not know why. It is a provision that was designed to ensure that in determining a wife's entitlements the court would not only look at the contribution made by the wife working in the home in caring for her family but also that it would have some regard for and pay attention to the contribution husbands and wives make to each other's success in the business world, in earning income and to the back up and help that they provided. Apparently this Minister believes that the courts need not have regard to this provision which reads "the contribution made by each party to the income, earning capacity, property and financial resources of the other." The Minister is concerned about future earning capacity. That is an interesting provision and I will refer to it when I come to deal with paragraph (h) later for a very particular reason but for a moment let us deal with those who are better paid.

What about the contribution the wife of a doctor makes in helping him, such as in the taking of phone calls? What about the contribution the wife of a solicitor makes or the contribution the wife of a farmer makes on a daily basis such as in helping with the milking on a farm that is owned by her husband? Farmers' wives in this country make a contribution that is rarely recognised and given little, if any, value. This provision will give the work farmers' wives do a value and a recognition beyond that of their work as home keepers. That is something which probably does not appeal to Deputy O'Donoghue in addressing his constituents as Deputy McCartan so graphically portrayed less than an hour ago. The contribution they make is important.

What about the contributions that wives make in the context of helping their husbands' earn money. What about the wife of a window cleaner or the wife of a milkman who gets up early in the morning on occasion to help her husband with his rounds? They do not necessarily have to be the glamorous contributions. Why should the contribution that a wife makes be disregarded and greater regard paid to the marital misconduct of the parties?

Let me now turn to deal with paragraph (h) of section 17 of this Bill which read as follows:

The effect on the earning capacity of each party to the marriage of the marital responsibilities assumed by each during the period when the parties cohabited together.

A school teacher who gives up work to care for her husband and children for 10 or 15 years loses her increments and seniority. If she goes back to work after her marriage has collapsed she will start at a far lower level than she would have been at if she had stayed at work. No regard is to be had to that fact. I could outline countless illustrations of the circumstances that provision was designed to tackle. It was designed to give a value to the work done by the spouse in the home and to put a value on the loss suffered in financial terms, as this is about finance at the end of the day, by the wife who works in the home.

The provisions contained in section 17 of this Bill, in particular those contained in paragraphs (f), (g) and (h) taken together with paragraph (i) provide for the first time in our law a means whereby a value could be attached to the work done and to the contribution made by wives and mothers to Irish family life, to businesses, to profits made and assets accrued by their husbands. The Minister has retained only one of those provisions. He only retains the provision which recognises the contribution made by the wife in looking after the home or caring for her family. By taking away the planks provided in paragraphs (g) and (h) and indeed paragraph (i) which refers to the financial benefits accruing to either party as a result of the marriage and of their cohabiting together the Minister is putting substantially at risk the possibility of the disinherited wife getting real property or financial security as he seeks to take out of the Bill recognition of the value of different types of contribution made. He has offered no explanation for this. He gave no reason that those provisions should no longer be included in this Bill. Even if the Minister felt duty bound to include a reference to conduct and even if he had to stick with his hang-up on desertion and provide vague and rambling and totally unregulated provisions about the value of the possible loss of inheritance rights, there was nothing to stop him also including paragraphs (g), (h) and (i) but the reason they were not included is that the Fianna Fáil Party look on the women of this country who make up over 50 per cent of the population with a degree of contempt that is quite unparalleled. They have no concept of the contribution which women, wives and mothers, have made to the life of this country. They have no concept of the value of the contribution which has been made within the family home or within family businesses and it is a question of, "God forbid that the role played by the farmer's wife on the farm should be given any recognition." That is an extraordinary approach. It is even more noteworthy that the Minister deliberately omitted to make reference to these fundamental changes to the criteria laid down in this Bill which the court ought to have regard to in determining what type of financial or property order should be made. What the Minister seeks to do is to take out of this Bill the secure structural foundation which was designed to provide protection, primarily for women, but also for the small number of husbands who work in the home and take on home duties while their wives are at work.

There is one other matter I would like the Minister to clarify. The Minister told us that at the time a separation decree is granted a wife may not seek a property transfer order. Perhaps a husband may not have any property but the wife could come back in five or ten years' time when he has acquired property. I would like the Minister to put on the record of this House, as he did not do so in replying to the question on succession, the number of applications he believes any spouse can make to get a property transfer order? Under his provision does he believe that every couple of years a dependent wife, for example, would be able to go to court to find out what property or businesses her husband owns? Is there going to be litigation every two or three years between husbands and wives?

Mr. Taylor

Not unless he provides the legal aid for her to do so.

Mr. Shatter

Are they going to litigate to the grave? Will a wife keep on litigating for fear of destitution and in the hope that somewhere she will find a bit of property that will guarantee her some security on her husband's death? Will she litigate her husband into the grave or will he litigate her into the grave? This is the party of certainty, the party of compassion and the party that told the people of Ireland in 1986 not to vote for divorce because wives would be disinherited and left destitute. How many of these applications can be made? I would refer Deputies to the sections which the Minister proposes to insert under amendment No. 49 and preceding amendments.

Let us look at those amendments, cut through the waffle and work out what is being talked about. The new section 15 which the Minister wants to insert, which appears under the heading of amendment No. 24, states: "On granting a decree of judicial separation, or at any time thereafter, the court may, on application to it by either spouse, make a property adjustment order...". This can be done on the granting of a decree of separation or at any time thereafter. That is a formula — and we have heard much about foreign divorce legislation here — that is in being in England in their divorce legislation. That is the phraseology used in the English Act and has been interpreted by the English courts as having the following effect. When a divorce decree is granted, a wife does not have to immediately ask for a property transfer order or lump sum order to be made but she can, at a later stage, look for financial orders to be made, although more usually it is done between the granting of what is known as a decree of divorce nisi and a decree absolute.

The view has been taken that once the court has heard one such application that that will end the matter. When the application is made a determination will be reached and if that determination is that there is no property there to make a capital payment or property transfer order, that that is it. It does not matter what the husband may acquire in five or ten years' time; that is it and one cannot — and this is a well known legal principle — keep on litigating the same issue. It is what is known as res judicata. That is a phrase the Deputies opposite will have some familiarity with but members of the press may not be familiar with it. It means that the issue has been dealt with by the courts and resolved and one cannot keep on opening it.

Where in this provision does it say that a whole series of such applications can be made? How many applications can be made? With due respect to Deputies O'Donoghue, Ahern and Abbott, I have no interest in what their interpretation of what this provision is because they are defending the Minister's approach; it is the Minister who is bringing this amendment before the House and I want on the record of this House the number of occasions the Minister believes applications can be made for property transfer orders, or lump sum payment orders? If a wife makes such an application immediately following the hearing of a separation action and she is given no property and no lump sum, I want the Minister to specifically tell us when she can next come to court and look for one. Can she keep on doing it? Perhaps when he is replying to that question the Minister might clarify for us whether certainty is created by the possibility of this ongoing litigation which he promises us can take place. That matter should be clarified.

There is a final point I want to deal with. The difficulty with what we now have is that it is an attempt not merely to restructure the Bill but in some ways to dismantle it and fundamentally change its philosophy. There is one matter I wish to refer to because it points to the utter lack of any policy or coherent approach from Members opposite.

A great debate took place in England in the early eighties. Wives whose husbands had to pay maintenance to them were described by husbands who objected to paying maintenance to their wives as "alimony drones". This concept developed on the basis of an assumption that when an English decree of divorce was granted a wife should not regard her husband as an ongoing meal ticket. In other words it does not matter how long a marriage has lasted, 15 years, 20 years or 25 years, a wife should be put out to work regardless of her husband's financial background, regardless of the promises made and regardless of the contribution she had made over the years to his welfare and benefit and to bringing up their children. Husbands in England who, following divorce decrees, were required to make ongoing maintenance payments objected and described their wives as "alimony drones" or "maintenance drones".

A campaign was started in England to change their maintenance legislation. It was done on the basis that many people who get English divorces remarry and that one should not have to support two families. In 1984, new legislation was introduced by the Westminster Parliament to attack the "alimony drone", the dependent wife. That maintenance legislation sought to put a direct obligation on wives, no matter how long their marriage lasted for, no matter what trauma they suffered due to being battered during their relationships with their husbands, no matter the emotional impact on them that resulted from possibly being deserted or by husbands setting up a second home with someone else, to go out to work.

Mrs. Barnes

And with unequal pay, too.

Mr. Shatter

That legislation amended the English maintenance divorce law. Deputy O'Donoghue and others have been waxing lyrical about irretrievable breakdown and divorce in a Bill to do with judicial separation.

What do we now have? We have this very curious proposal from the Minister which, in the new section 18 (2) (h), introduces the amended English principle of the "alimony drone". Currently under Irish law marriages are supposed to be permanent and, as Deputy O'Donoghue has correctly reminded us, even a separation decree cannot bring a marriage to an end. Wives are regarded within marriage as dependent and this Bill was designed to recognise that where there is dependency, adequate provision should be made for support. What does this section provide? Section 18 (2) (h) says that in determining what maintenance should be ordered, the court shall have to have regard to "the degree to which the future earning capacity of a spouse is impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family." That refers to future earning capacity and is not the way in which it was impaired previously. It is reasonable that that should be taken into account. However, the new section 18 (2) (i) refers to any income or benefits to which either spouse is entitled and there is a reference in the Bill which seeks to ensure that, in effect, there is an obligation imposed upon wives to go out to work.

We have now introduced into Irish law the concept of the "alimony drone" and I find that very curious. It is a slavish following on the part of Fianna Fáil of English divorce legislation. God help us, is that not extraordinary? The approach the Fianna Fáil Party have adopted to this Bill is not one, as has been presented by the Minister, designed to improve the Bill, to protect dependent spouses, who are mostly wives, or to ensure that injustice is not done. It is an approach which is designed to fundamentally change the philosophy of the Bill, to undermine the financial security of wives, to maximise in some instances a wife's feeling of dependence and to seek to discourage people who genuinely need the help of the courts to extricate themselves from a broken marriage from seeking that help. Because the Minister has succeeded in having the amendment as regards inheritance rights made to the Bill I suspect that it is a futile act to try to prevent these amendments being made but I do not believe it is futile to highlight the idiosyncratic and inconsistent nature of the measures the Minister is now seeking to put before us to replace existing sections which, taking the Bill as a coherent whole, would have more than adequately provided the necessary protections.

Miss Colley

On looking at the ministerial amendments, one could be forgiven for presuming that they are simply restating in other phraseology what is in the Bill and apparently taking on board the provisions already in the Bill. On closer examination, it is quite evident that there is a move in a direction different from that which the Bill has followed. This is unfortunate because the effect is to minimise for women in Ireland the value of the decisions of the court for the wives involved in a break-up of marriage. The Minister has introduced, in effect, very comprehensive new sections which deal with the periodic payments under lump sum orders and sale of property and the issues which the court must have regard to before deciding for these orders. Again, it is unfortunate that the Minister has taken into account only to a small degree the shift which was evident in the Bill towards recognising the role of the woman who has stayed in the home, has taken care of the children and the home, something which is quite definitely recognised in the Bill, particularly in section 17. The Minister's amendment No. 49 to a certain extent echoes that recognition, but does not go to the extent I would wish for.

When it comes to his proposed section 18 (3) I have no sympathy with the move he has made, which is to refuse orders under the lump sum or property sale heading, etc. where a spouse has deserted. We face again the situation we faced in dealing with the last amendment. The Minister offers us a black and white option. We can take it or leave it; there is no judicial discretion, no ultimate discretion left where cases and circumstances vary. The court has no discretion to decide on what is the most suitable outcome in these cases. I cannot understand why this subsection has been inserted in the Minister's amendment, or the reasoning behind it. As must be well known in the Department of Justice and to the Minister and the Fianna Fáil members who are taking an interest in this Bill, the practical realities are that in many instances a spouse has been forced to leave and, as has been referred to here, there are times when it can be deemed to be constructive desertion but there are times when it will not be so. It will be very difficult to prove.

Completely to cut off such a spouse, in a situation where an order for judicial separation is being made, from maintenance, from the making of lump sum payments, sale of property and division is simply unwarranted and unnecessary. The conduct of each of the spouses has already been taken into account under the proposed subsection of the Minister, 18 (2) (k), and that should cover the circumstances which, presumably, the Minister has in mind where a spouse has been guilty of misconduct. It would be inequitable for the court to grant certain orders in such a case. In paragraph (k) that is well taken care of. I see no necessity for going further and specifying in an immovable and immutable way that where a spouse has deserted other orders simply cannot be made.

I might add that I have put forward amendments which are related to some of the amendments under discussion here, particularly amendment No. 38. I tabled a similar amendment on Committee Stage and withdrew it in order to resubmit it on Report Stage slightly varied. I would like to address myself to that now. In section 14 (1) (m) of the Bill as drafted, I wish to insert after the word "proper" words that would allow the parties to the marrige to decide whether they wished to divide the property and live separately within it. The point was made on Committee Stage that there was a difficulty in the way that was phrased, in that it might allow the court to order that division. I took that on board and have now redrafted the amendment to insert "if the parties to the marriage so decide, an order for the division of the family home so as to allow both parties of the marriage to reside there separately on such conditions as the court deems proper could be made." That is a reasonable insertion to make. It would be used in a number of situations — a small number admittedly, but I know situations where it could be and has been used in the deeds of separation. At the time the Minister indicated that in principle he was willing to accept the amendment, as did Deputy Shatter, if it was to be slightly altered. I would put it to the House that it might accept the amendment as tabled there.

Amendment No. 52, which is also tabled in my name and which is being discussed at this stage, also refers to section 17. That is the reference to matters to be considered by the court in making orders for maintenance and so on. I am suggesting that the needs of people other than dependent children, who are referred to in the Bill, must be considered. I have previously referred to the situation where there may be other dependent persons, whether they be foster children or elderly relatives, and that the family needs would include the needs of these dependent people. Taking on board again remarks made on Committee Stage and the dangers that might be inherent in the amendment I have put forward there, that there could be produced constructively dependent people at any given time so as to reduce commitments on behalf of one or other spouse, my amendment as submitted now is more suitable and still covers a situation which I think will occur from time to time where there are other dependent people in the family besides children.

I am not going to delay the House in discussing the ins and outs of the different sections the Minister has proposed as opposed to those in the Bill. It comes down, in the end, to whether one wishes to cover the needs particularly of spouses, who have or have not remained in the home, in such a comprehensive manner that they are effectively taken care of. I believe that the Bill as it stands does that more effectively. The inclusion in the Minister's amendment of references to desertion being a bar to the making of certain orders is quite anathema and I see no reason whatsoever for this provision. We will be opposing the Minister's amendments at the vote.

Mr. Taylor

It was put forward by the Minister and Deputy O'Donoghue that certainty was something to be regarded as essential in this branch of the law. Certainly, that is a line of argument, but when one looks at the spectrum of provisions submitted to the House one sees that the vagaries and flexibility accorded here to the courts is quite remarkable. I do not know how one can reconcile these two propositions. The Minister wants to provide that the court should do whatever may be regarded as adequate and reasonable, having regard to all the circumstances of the case. What more of a vagary could you have than that? The Minister wants us to enact into law a provision in amendment No. 18 (2) (k) dealing with the conduct of spouses:

the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would be inequitable to disregard it.

Deputy O'Donoghue is a man who has a yen for legal history and quotes de Montesquieu and all the rest. The Deputy may recall the description of equity: that it varies in accordance with the length of the Chancellor's foot. Where is the certainty in that? One wonders what might be regarded by the court as inequitable? This broad array of powers given to the courts covers the entire spectrum and leaves it to their complete discretion.

We have had to listen to a lecture on the idea that certainty in the law was essential and that flexibility or discretion to the court was something not to be taken account of. It is all very strange and puzzling that in the sections flexibility is given to the courts right across the spectrum in every respect but one. The Minister has exercised his ingenuity to the full. Property orders, maintenance orders secured maintenance orders, lump sum orders, you name it: everything you could think of is empowered to the court to be given with one exception, succession rights. Succession rights are the only element excluded. How could it be that the court could be given power right across the board in making provision for the spouse and children with the exception of succession rights? Is this because the Minister takes the view that the spouse has no entitlement to succession rights? Is it the Minister's view that in basic law, morality and justice that the question of succession rights is completely out and not to be considered as part of the equation. Is that the reason this single item is excluded from the equation? That cannot be the answer because the Minister goes on to provide in the amendments — although he says it is a non-subject which must not be considered — that it must be taken into account by the court as one of the factors to be considered when the maintenance, lump sum and all the rest are being provided for by the court. This is provided for in amendment No. 18 (2);

the court shall in particular have regard to the following matters — (g) the value to each of the spouses of any share in the estate of the other spouse which a surviving spouse will be precluded from taking as a legal right or on intestacy;

On the one hand the Minister is saying that succession rights are inappropriate and have no place and cannot be considered in the situation but then he goes on and tells the court that the court must take into account, in particular, along with the other items, that the spouse will be foregoing succession rights. This is a glaring contradiction. If one takes the view that the spouse is not entitled to succession rights one does not come along and direct the court, in particular, to take account when fixing the lump sums of the maintenance or the property transfers that the spouse is going to forego a legal right or intestacy. When you say that you concede ab initio that the spouse does have a succession right, otherwise you would not be compensating the spouse for having foregone it. One can only come to the conclusion that this kind of woolly reasoning has no basis in reason or logic.

A number of strange factors are included in the amendments. I have to agree with the previous speaker's views on desertion. Of course, it may well be that in some circumstances desertion ought to be a bar to maintenance. Even the report of the Joint Committee on Marriage Breakdown recognises that fact. However it does not put the case as strongly as the Minister has put it. The Minister has taken it out from the other factors and has made a separate subsection of it which says that under no circumstances may the court grant maintenance or lump sums or whatever when desertion has taken place. I think that is putting the matter altogether too strongly. The provision ought to be in the Bill but it should be just one of the other factors to be taken into account and not categorised separately. It is worthwhile looking at what the joint committee said on the subject. Page 56, 7.4.18 of the report states:

Desertion or adultery should be a discretionary bar to maintenance for the applicant spouse, unless the conduct of the defendant is or was such as to make it inappropriate and unfair that he or she should be entitled to rely on the applicant's desertion or adultery.

There may well be cases where desertion took place, but the conduct of the respondent would be such that it would make it unfair and unjust for the respondent to seek to rely on that desertion. The Minister has gone out of his way to preclude such a situation. From what I know it is by no means uncommon and I do not think the rules of so-called constructive desertion adopted by the courts goes any way adequately towards meeting the needs of that kind of situation.

I would have thought in modern and forward-looking legislation that one should have left open the possibility and not leave it to the courts to have to stretch themselves and turn themselves inside out to try to find bases for giving maintenance in appropriate cases, even though desertion took place. The judges do their best in that regard. But when we are enacting new legislation we should not put that burden on judges. One should certainly make provision for desertion as a factor, but only a factor, but also take into account that the other spouse may have contributed to that in some way. I do not see why we have to go into the court's interpretation of constructive desertion and why in new legislation this type of case could not be spelled out. We leave too much in interpretation to the courts on important matters. This Bill will prove to be one of the classic examples.

There is one very strange section which I wonder if anybody has thought through. I refer to the Minister's new section 16 dealing with orders for sale of property. He seems to be casting his net incredibly wide in this respect and I wonder if he has gone over the top on this matter. He is providing that the court may order the sale of property even though the spouse concerned may have only a very minor interest in it. If a spouse has a one-tenth interest in a farm, which may have come by inheritance, and people not connected with this family own nine-tenths of the farm, the court is being given power to order the sale not of one-tenth but of the entire farm.

Mr. Abbott

It would happen anyway.

Mr. Taylor

That could not happen anyway because the partition Acts do not give a right of sale to a person who has only a one-tenth interest. What will the person who owns nine-tenths of the farm say when he suddenly finds that the farm has to be sold because of the family situation of his junior partner who owns only one-tenth of it? I wonder about the constitutionality of this provision, apart from other considerations. Subsection (6) provides a purported but very inadequate safeguard by giving that outside person the right to make representations to the court on the issue. This is inadequate and does not meet the needs of the situation. A man or women who runs a farm while owning nine-tenths of it may have no involvement in the family problem of the person who owns one-tenth, yet the person owning the major share of the farm could lose his or her livelihood, with great disruption to his or her family. If we were talking about an appreciable interest amounting to a quarter, a third or a half it might be another matter, but to bring in that power for some fractional interest is a very far-reaching provision.

Some further consideration ought to be given to it.

I agree that where a spouse has any interest of substance that factor must be taken into account in calculating maintenance and taking account of lump sum payments and property transfers. It might be appropriate to order that person to transfer the one-tenth share into a pool or to the other spouse. That would be acceptable because it would involve only the share of the spouse who was being made amenable in the judicial separation proceedings. That is not what the section appears to say. It seems to be half-baked and ill thought through.

It is a pity that the Bill is now altered in direction. It is becoming less like Deputy Shatter's Bill and more like the Minister's Bill. That is to be regretted. It has not helped what I had hoped we would be doing in this measure. I suppose it will get worse since the legislation is becoming regressive as we go on. The arguments being put forward are inconsistent and seem to be directed more to scoring points than having seriously at heart the benefit of spouses who find themselves in the unfortunate situation of a family dispute.

Mr. D. Ahern

The various amendments put down by the Minister do not go very far towards changing what is already in the Bill. They extend it. Most speakers would agree that we should have provision in the Bill of periodical payments, property adjustment orders and orders for sale of property. In relation to orders for the sale of property, I am wondering if there would be a problem from a constitutional point of view in that the court may be able to order the sale of the property over the head of the person who owns it. Perhaps the Bill as amended might have difficulties and might ultimately have to be referred to the Supreme Court for a decision.

Mr. McCartan

Or the Minister could withdraw the amendment.

Mr. D. Ahern

Regarding the division of property, spouses — mainly women — do not have a legal right to a house if their name is not on the deeds.

Mrs. Barnes

Neither do they have the right to land.

Mr. McCartan

Do not forget the pubs.

Mr. D. Ahern

That aspect was addressed in the 1976 Family Home Protection Act which, although badly drafted, protected to a certain extent the innocent spouse. I make no apology for referring to the "innocent" spouse because there is no doubt that a wife who finds that the husband has gone does not know how she is fixed in relation to the house. There may be a difficulty if this Bill is passed either with the Minister's amendments or as presented by Deputy Shatter. There does not appear to be much difference in the ideas behind the Bill and the amendments. There is a number of areas where there is a dispute and we all have our own ideas on that.

The Minister should be congratulated on the guidelines in subsection (4) of his proposed section 18 in relation to dependent children. These provisions are not contained in the original Bill. Everyone would agree that those should be in the Bill in order to protect the children who may be at a disadvantage as a result of a break-up between the spouses.

The other area which causes some concern to the Opposition is that the Minister in the proposed section 18 (3) which refers to the fact that the court shall not make an order under any of those sections for the support of a spouse who has deserted, is in effect saying that desertion is an absolute bar to these orders. Deputy Barnes and others were worried in this regard.

It was mentioned that spouses would have problems when the deserting spouse had left. The Minister is trying to ensure that the innocent spouse does not find herself in a situation where an order is made by a court subsequently transferring the property or making orders.

Mrs. Barnes

The problem is that she has to desert.

Mr. D. Ahern

The person who deserted could, under Deputy Shatter's proposed legislation, obtain an order of the court to get portion of the property or a lump sum. That is repugnant to me and should not be allowed. The innocent party to the transaction should be protected at all times and the Minister's proposal in subsection (3) is correct. As previous speakers said, giving rights of maintenance to people who have deserted is not contained in any legislation to date and it should not be allowed in this Bill.

Section 14 (4) states that the court shall only have power on one occasion to grant orders. I am amazed at this as it would cause difficulty in the future. Let us say that a court, on the granting of a judicial separation, decides that it will make no order in relation to the property rights, a lump sum payment or whatever, and that one of the spouses in a year's time comes into a lot of money — perhaps winning the national lottery — the other spouse, under this section, would not be entitled to come back to court to apply for an increase. That would cause a great problem and Deputy Flanagan should know that solicitors are hounded by people telling them that they want their maintenance orders varied because their spouse has got an increase in wages or has got a job. I give the example of the national lottery to illustrate what could happen. When circumstances change in that way, people should be allowed to come into court a second time. The Minister's provision is a better way of dealing with ancillary orders and section 18 sets out all the circumstances, including a reference to the children and guidelines for dealing with them, which is vitally important. No one could find fault with that.

Mr. McCartan

I will try to help Deputy Ahern in relation to the faults I find in the proposed amendments. I understand that the order of the House provided that the amendments would be taken together, that we would be asked to vote on amendment No. 24 and that the others follow as a consequence. The Workers' Party will be opposing the Minister's amendments so far as we practically and possibly can. Alternatively, there may well be the prospect that the Minister might listen to some of the points made and undertake to look at some of the proposals. As has been pointed out, they are towards the same ends, seeking to set down the regimen whereby the court can make orders with regard to maintenance, property and other rights. However, there are some very disturbing features and Deputy Taylor mentioned one with regard to the position of part beneficial owners. Was the Minister even listening to him as he spoke? To repeat the point, section 16 (6) is unsatisfactory and sloppy. It should be looked at again.

I am most concerned about the new section 18. The point has already been made by previous speakers about the use of the term "having regard to all circumstances of the case as contained in subsection (1)". The ambiguity and wideness of that drafting provision is undesirable for all the reasons that have been advanced and I do not want to remind the House of the principles we have identified in the smog-laden room in which we are now asked to debate, from the Fianna Fáil point of view, in terms of the principles on which they are proceeding in relation to certainty, clarity and letting people know exactly where they stand.

I am equally concerned about the formula used in subsections (a) and (b) which the Minister seeks to introduce when the court is asked to have regard to the circumstances of income and financial needs that a person or spouse has — or is likely to have — in the foreseeable future. Will the Minister help us in relation to how he believes a court could have regard to those requirements? Will a soothsayer be employed by the court to give some kind of a reasonable foresight as to where the parties will go financially in the future? Will an actuary be called in to build on the present facts and circumstances? How does the Minister envisage a court deciding what will be available to either spouse in the foreseeable future, whatever that means in those circumstances? It is an unworkable formula and the Minister should seriously consider withdrawing them.

The point has been made about the conduct aspect of subsection (k). In fairness to Deputy Shatter and to put matters right — because I have no doubt that after I sit down we will have some form of rant from Fianna Fáil in relation to the question of "no fault" and "irretrievable breakdown"— I should say that on Committee Stage of the special committee to look into this situation, Deputy Shatter laid the ground very clearly from the point of view of the proponents of this legislation in regard to what was hoped to be achieved with regard to the elements of fault. At Column 23 of No. 2 report he said that the overall ground of irretrievable breakdown is designed to take some of the conflict and the distress out of the matrimonial court proceedings. It was never maintained that what was being proposed by the proponents of the Bill was an absolute end to the fault concept and an end to the blame basis of the legislation. However, if it was implemented it would go on a huge distance in taking out that element of contention and rancour.

Fianna Fáil, in attempting to do down this legislation, to take it asunder piece by piece, have tried to point out here and there in the Bill elements that would still require a degree of litigation, rancour and debate. That point has been well accepted. One cannot legislate entirely for that situation. If one is to have true regard to anything that was said by Deputy Shatter in proposing the Bill, the case was never made by its proponents that you could so legislate. We are all trying to do something to minimise the element of rancour, dissension and unnecessary conflict. After we had offered so much in that direction and though the Minister has torn it asunder, he came back here with paragraph (k). Whether it is by consent that the order is made and the parties go to court for a judicial separation or whether it is by fault or otherwise that they get as far as the court, the one inevitable issue that will have to be addressed is that of maintenance but here the Minister has ensured that in every case the element of rancour must be introduced.

The Minister has made an unbelievable proposition regarding the conduct of the parties, ill-defined though it is but clear in its intent. The court will be asked to listen to submissions and evidence of what each of the parties has been up to or is likely to be up to in the foreseeable future if we are to use the Minister's earlier formulas in the section. The court will be asked to measure out a penny for this, tuppence for that, a pound up or a pound down depending on the conduct of either side. I would seriously urge the Minister to take that section out entirely. By doing so, his regimen of procedure otherwise contained will not be done any great harm. He has provided for every other possibility that the court would need to have regard to. This invidious and undesirable section should be removed from the legislation. That would make the rest of the pill that much easier to swallow.

My greatest concern about this whole section is the clear and unambiguous message that Fianna Fáil want to give to the battered wife, battered physically or psychologically — that is, that she can go to hell.

Mr. O'Donoghue

Come on.

Mr. McCartan

I will explain exactly what I am talking about and the Deputies will listen while I am on my feet. What Fianna Fáil are saying to women in that position is, first, if they go to court and seek to separate from their husbands they may forget about their succession rights and, secondly, that if in the face of psychological or physical battering at home they leave the house in fear, trepidation or on medical advice they run the serious risk of not being entitled to any maintenance at all. That is the message that is coming across from what Fianna Fáil are doing in regard to this legislation. It must be recognised that there is a very grave risk involved if a woman departs the family home in advance of seeking a barring order or making a judicial application which would warrant her to leave. There must be grave risk that she will have difficulty subsequently in proving to the court that what she did was justified. She may have been under psychological and physical threat from the bullying husband who is cute and clever enough to ensure that whatever physical injury is imposed does not show by way of detectable mark or otherwise. There are enough sadists and savages in Irish marriages to ensure that that can and will happen. Fianna Fáil are saying that if these women leave home it is at their own risk, that so far as Fianna Fáil are concerned, once they leave the home and cannot satisfy the court that they had good reason for doing so they will not get one penny by way of maintenance. That is a damnable feature of these amendments.

I have listened to Deputy Andrews asking people on this side not to be giggling and sniggering during the course of remarks. Having listened to the guffaws of the Minister I can only presume that he has no intention of having regard to our concern that the section will stand. So far as the women at risk in Irish family life are concerned, Fianna Fáil want to ensure that nothing will be done for them in the context of marriage breakdown legislation and more particularly in the context of this legislation which they are slowly and systematically taking asunder. It is clear that what they want to put in place is ineffectual legislation that will be so unattractive to beleagured women that they will not want to have anything to do with it. If they have the courage to take up the issues, go to court and look for consequential entitlements to maintenance, every piece of conduct and every event that has passed between themselves and their husbands will be thrown into the mill of the court in order to make some impact on the maintenance provisions.

The plot of Fianna Fáil becomes clearer and clearer. In the beginning we understood that they had constructive and meaningful intents with regard to this legislation but that was a long time ago. What they have done since then is to systematically attempt, and indeed succeed in the last number of days, to dismantle this legislation and to render it effectively unworkable and unusable by reason of the amendments we have just passed and are now being asked to agree to in this section.

Mrs. Barnes

The smog is now so thick in the Chamber that I can barely see who is participating or who is standing or sitting.

Mr. D. Ahern

We are still here.

Mrs. Barnes

I would like to think that the Deputies are not alone still here but are open to change and influence. As we advance through this Bill it becomes a travesty of everything that was fundamental to it in the first place and, as I have already said, to our expectations regarding it. It has also been, if I may borrow an adjective from Deputy McCartan, a damnable waste of time. Members of the special committee gave up a great number of hours and days to come in and seriously tackle and talk through the protections and the guarantees contained in the Bill and, thankfully, overrule the most dangerous parts of the amendments then presented to us.

While I would never take away from the democracy of this Chamber or of the procedures of the different Stages of legislation, it is quite remarkable, if not unique, that a Bill that has gone through such a thorough Committee Stage should actually be brought back with the exact same amendments which had been so thoroughly discussed and defeated. It is as if we sat down and engaged in a game of charades and in doing so led people outside this House to believe that legislation would arise from it that would fulfil all the promises made from 1986 onwards which were needed from 1976 and before that. I take Deputy Ahern's point when he said the Family Home Protection Act, 1976, was not as broad as we would have liked. It was not as protective as we discovered it needed to be, particularly when finance agencies were able to force judgment mortgages and remove the protection so hard won by spouses in the home.

When we talk about spouses in the home, particularly in the Irish context, we can take it that we are talking about women dependent economically and very often psychologically, but at least there was something to built on in the 1976 Act and it was built on slowly and painfully, the emphasis being on "slow". We managed to extend barring orders and attempted to give some weight to the lip service of the Constitution about the value of the work of women in the home, the base of good morality, without which society could not exist and which was so empty before we began to bring in family protection. However, this Bill's attempt to bring in a sense of civilised behaviour and less acrimony was welcome, and Deputy Shatter referred to that as its planks, particularly for women.

Section 17 of the Bill, particularly in subsections (f), (g), (h) and (i) for the very first time in the experience of women in this State acknowledged full and broadly their contribution, the sacrifices they had made, the cutbacks on their financial independence for the good of others, particularly their husbands and children who are the basic unit of a healthy society, and was accepted by women in the home. That is why the meddling around with it, the defusing of it, the regressive steps made in it are a matter of such pain to me and other women. What was hard fought for now is being kicked right back by amendments that deflect from everything that was positively on offer at long last.

Subsection (f) legally acknowledged for the first time "the contribution made by each of the parties to the welfare of the family, including any contribution made by looking after the home and caring for the family". We all have encountered numbers of angry women. A lasting impression of my experience with women in marriage breakdown is of the incredulity with which they realised painfully, where legal complications entered into marriage breakdown, that unless they had earned for themselves both the contents and the house, the property belonged legally to the breadwinner, the husband. No value was put on the contributions and sacrifice of the women without whose contribution and sacrifice, we are told, this society could not continue to survive in a healthy and wholesome way.

Paragraph (g) refers to "the contribution made by each party to the income, earning capacity, property and financial resources of the other", again a recognition of sharing, a partnership which was never part of the marriage relationship in legal terms up to now. Paragraph (h) refers to "the effect on the earning capacity of each of the parties to the marriage of the marital responsibilities assumed by each during the period when the parties cohabited together". That again is a recognition of the responsibilities and the value that could not be financially summed up previously.

Now we look at the amendments here before us. I cannot understand or cope with them. If it was a matter of disagreeing with the wording or phraseology or attempting to improve the legal draftsmanship of the Bill there would be some reason why we should look at them and even attempt to accept them. I come to one of the most basic worries and anxieties and a real fear that all of us on this side of the House are expressing. I see, even through the gloom, three practitioners of law on the other side who have had experience of dealing with family law and marriage breakdown. They must understand the difficulties and the disaster if a woman cannot be assured that if she leaves her home she is not going to be accused of desertion. What took years to build and have legally accepted was that in very difficult, almost life-threatening circumstances women and children could leave their home and have that action termed constructive desertion, but, alas, we never were able, in male courts with male perceptions of what female behaviour should be, to reassure women that mental cruelty, meanness, denial of maintenance within the home as the woman cohabited with her husband would be fully taken into consideration.

I have lists and letters and we have Irish novels by Irish women to prove that. Now all this that has been so slowly and painfully built up is going to be absolutely thrown over and women will again be forced into fearful — in its real sense — conditions of being forced to stay under a roof in the family home because of the threat of what will happen if it is seen or in any way legally prescribed that she has deserted. I put it particularly to the practitioners of family law across the Chamber that they should take into consideration what they are doing to women again. I am not into scaremongering. I know the reality for women and those practitioners should also. I implore the Minister and his officials to take into consideration the history of women in this country and how inadequate the whole area of desertion was and how devastatingly it is being put back by this attempted amendment.

With regard to some of the subsections that have been proposed to be replaced, I am struck once again by the total lack of reality. With regard to the opportunities for women, we have a tradition, with its advantages and disadvantages, of ensuring in every way possible that women are pressured to give up work, their own economic independence and their future prospect of earnings, which are totally impinged on when a woman makes that decision and goes into the home to be a good wife and mother. Unfortunately the traditional perception is that she is not rightly representing that role of motherhood, wifehood and housewife unless she gives all that up to become a full time house minder and child minder. If I can gather anything from the remnants of the travesty of what is before us here, it is to tell women who have not yet given up their work and who have not yet sacrified their independence that they had better hold onto it because they are going to need it.

However, let us look at the kind of work and the foreseeable earnings of women in the future in the light of decisions being made on the decree of judicial separation. Like other speakers, I would like to know what section (b) really means when it speaks of the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future. That teams in very much with subsection (j) to which Deputy Shatter has already made reference. This is in regard to any earning capacity or increase in earning capacity which it would be reasonable to expect a party to take steps to acquire. Reasonable in whose opinion? As yet we have not got full acceptance of the concept of equality, much less its implementation. Yet because it is there in law, if not in fact, it could be expected that women would have to take steps to acquire a job. It might even go as far as projecting her earnings and her remuneration on the basis that there is equal pay and equal opportunity. On the basis that the legislation is already here, that would be the logical thing for a judge to do; but the reality is that women's earnings, even those who stay in full time employment, are 60 per cent of men's. The concept of equal opportunity is seen to be so alien as not to be applicable. My fear is that all these subsections will be summarised and defined on the basis of similar earnings for men and women, and similar opportunity. Are we expecting women in their fifties seeking judicial separations and having these subsections applied to them to go out and be assessed in the same way as a 52 or 53 year old man who has been in long term employment? What concessions are going to be made to allow for the real situation of women? Women are still in a double bind. They would be expected to have remuneration of their own or to take steps to acquire it; yet every single structure and every tradition will work against that.

Now I would like to come to subsection (k) which deserves some comment. In assessing what shall or what shall not be conceded to each partner, the conduct of each of the spouses will be taken into account in the context of whether it is such that in the opinion of the court it would be inequitable to disregard it. I join with my colleagues on this side of the House in saying that that is so wide open that one could drive a coach and eight horses through it. There is another aspect, that is, that fault — because that is what we will be looking for and have to under this — will again be ascribed through very male perceptions. I do not have to remind Deputies Shatter, Flanagan, Colley and McCartan who have dealt in their political and legal capacities with marriage breakdowns of the way women are treated in it. I would appeal to the memories and the experience of the practitioners of law who deal with it as well in their areas, in their clinics and in their courts, to acknowledge that this is the third plank of this. The other two have been pulled out leaving women dangling. This is the only one where women felt they had some sense of recognition and value and it is now being ripped apart. In all sincerity I would ask Deputies O'Donoghue, Ahern and Abbott to remember the difficulties and the fears, psychological and otherwise that women are experiencing now, and not to add to them by pushing this amendment.

Mr. Flanagan

I would like to place before the House a scenario which I feel will indicate the disservice being done to Irish people, particularly Irish women, by virtue of tonight's amendment— a husband, say, deserted a wife ten years ago and moved to cohabit with somebody else; the wife, if she is lucky enough, remained in the family home. Under the law as it stands she has the expectation of inheriting her entitlement to her husband's estate under the Succession Act. Since passing the Minister's amendment here this evening that innocent party has automatically become disinherited without having any hand, act or part in the issue of legal proceedings, without legal proceedings having been served on her because automatically, under the earlier section, if a spouse can show to the satisfaction of the court that he has been living apart from his wife for a period of three years he is then entitled to a decree of judicial separation. This indicates a certain disservice that we as a House have engaged in here this evening.

On the amendments before us particular reference was made by the Minister and previous speakers to section 14 (4) on the question of the court making a determination on property rights once and once only. What are we saying now about this certainty? What are we saying now about the need to have a decision and a clean break and to have matters provided for finally? There is a fundamental contradiction underlying the basis of a number of these amendments which we have not been able in the course of the debate to adequately thrash out. The Minister should address the question raised by Deputy Shatter, that of res judicata. Will it be open to a court or a member of the judiciary to say to an applicant and a respondent that a court of law has dealt with this matter one year ago, or ten years ago? We could be tying the hands of the Judiciary in a very unfair way. As time goes on and the law takes effect we could be going through a minefield in terms of repercussions.

It is important that we underline the changes the Minister has made in his new section 18 in the hope that it will be not too late to change some of the more questionable points in it. Subsection (2) (a) deals with the income and earning capacity which each of the spouses is likely to have in the foreseeable future. Is that the type of provision we should be discussing in our courts? Will it not mean that we will be placing an undue burden on the Judiciary by telling them that they must satisfy themselves as to the future earnings of a party in proceedings for judicial separation? Will they have to resort to a clairvoyant or other means to get that information? I hope the Minister will tell us how it is proposed to deal with such practical difficulties. Subsection (2) (b) refers to the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future. It will be very difficult to decide on that and it is dangerous to put such a burden on a judge at a family law court hearing.

Subsection (2) (e) refers to the physical or mental disability of either spouse. I wonder why the Minister has chosen to juggle around the words of that subsection. Let us thrash out the difference between that subsection and what is proposed by Deputy Shatter. Deputy Shatter envisages that the age and physical and mental health of each of the parties to a marriage be taken into consideration but the Minister refers to any physical or mental disability of either spouse. Is there a subtle and hidden meaning behind the words used by the Minister that indicates to those reading the provision that they must look for a disability? Are we saying that they must look for a mental disability and make the point because it will give rise to a saving of a couple of bob per week on the maintenance payment? Are we saying that in order to ascertain such information sufficient mud must be thrown at the other party? There has been a subtle change in the wording and it should be reversed to its original form. If I am wrong and am too suspicious the Minister should tell me why he sought it necessary to change Deputy Shatter's provision. Does it amount to a change for change sake?

Subsection (2) (g) is somewhat vague. It refers to the value to each of the spouses of any share in the estate of the other spouse which a surviving spouse will be precluded from taking as a legal right or on intestacy. Are we talking about the share at the date of marriage, on the date proceedings are instituted, on the date of the hearing or on the date of the coming into effect of the order? What is meant by that subsection? It is important that it is clarified and does not give rise to confusion at a later date.

It is worth considering what the Minister proposed in subsection (2) (j) which states:

any earning capacity or increase in earning capacity which it would be reasonable to expect a party to take steps to acquire;

That requires the injured party to take steps to limit loss. We could be placing an unfair burden on an injured spouse. A person who seeks redress in the courts may be denied that redress if it is put to him, or her, most likely her having regard to statistics, that the onus is on that party to fend for himself or herself once the decree of judicial separation is granted. Are we going overboard in placing that onus on an injured party? In my view it will have the effect of frightening a party away from seeking his or her entitlement under law. A short time into the proceedings a judge may consider it necessary to adjudicate on that issue.

I did not intend commenting on subsection (2) (k) for no other reason than that it should be treated with contempt in the light of what has been said. We are now back to concerning ourselves about the conduct of each spouse. Whatever about the issue of fault or no fault or the quickie separation a decree of separation cannot be granted without mud being thrown, without parties being painted blacker than black in order to minimise the amount of maintenance or the share of one party's entitlement. We are doing a great disservice to parties by introducing this adversarial concept. No attempt is being made by the Minister in his amendment to minimise the adversarial nature of the proceedings. I view that as a deliberate attempt to discourage people from using this legislation. The format of the Bill has been changed so much since 11 o'clock this morning that I am left wondering if we should proceed with it further.

Mr. Collins

It is not correct to say that my amendments are merely a rerun of Deputy Shatter's provisions. To a certain extent they are but in many important respects they include necessary and important additions which I have already fully explained. In brief, the court will be empowered to order the transfer of property for the benefit of dependent children. Secondly, it could order the payment of a lump sum to a spouse and children by instalments and the security of those payments. Thirdly, it will have expressed powers to order the sale of property. Deputy Shatter has introduced an amendment to correct this latter omission and this amendment, for the most part, is based on the amendment I introduced on Committee Stage.

In regard to the making of property transfer orders, the objection I had to Deputy Shatter's proposal was that once a court considered the question of a property transfer order, whether or not it made an order, it could not consider the matter again. That was the specific prohibition on the court, not to consider the matter again. There is no need for such a prohibition and my proposals have no such prohibition. Deputy Shatter said that my amendment does not include the provision in section 17 (g) of his Bill. That is not correct. My amendments in the new section 18 (2) (f) covers the point clearly. It provides that a court may consider the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including any contribution by looking after the home or caring for the family. The general provision relating to contributions to the welfare of the family covers all the possible ways a spouse may contribute to the welfare of the family, including all the cases mentioned by Deputy Shatter and including the contribution made by a farmer's wife, say, to the running of the farm. My new section 18 (2) (h) also relates to the contribution the spouse has made by relinquishing her chance of remunerative activity.

Deputy Shatter referred to section 18 (2) (j) of the amendment. There will be cases where there will be two professional people and no children where it would only be right for the court to take into account any earning capacity which it would be reasonable to expect a party to take steps to acquire. Of course every case would have to be dealt with on its merits.

Deputy Shatter and Deputy Taylor raised the question of the loss of succession rights again. This matter has already been discussed in full and there is no point in going over the old ground again. A vote has been taken by the House and I am sure that that is recognised by all. The Deputies are aware that following the acceptance by this House of my amendment on succession rights, subsection (2) (g) of the new section 18 is a consequential provision. I do not intend to be drawn any further by Deputy Shatter's contribution concerning succession rights in general and the provisions in subsection (2) (g).

In regard to matters of conduct Deputy Shatter seems to have forgotton the fact that he had conduct rules in relation to maintenance. He also had conduct rules in relation to succession. What he did not have in his Bill were conduct rules relating to lump sum or property transfer orders. That particular omission has not been explained. Deputy Taylor expressed some worries about my new section 17 regarding orders for the sale of property. Deputy Shatter, incidentally, has a similar amendment. The first point to be made is that, these orders would be ancillary orders to orders for secured maintenance for lump sums or for property transfer orders. I recognise the point made by Deputy Taylor but I do not think we can fetter the powers of the court in this matter. There will be little risk of unnecessary or oppressive orders being made.

Deputy McCartan inquired about section 18 (2) (a). What we are talking about here are the needs of the spouse now and in the future. The most urgent need is often for a secure home and in that regard the court is to consider not only the present but all the foreseeable future as far as it reasonably can. Where there are young children, the need to care for them will directly affect the financial needs of the custodial parent — usually the mother — for some time in the future.

I would remind Deputy Barnes, that my new approach to this Bill has been consistent at all times during the debates on it. On Second Stage and again on Committee Stage, while welcoming the principle of the Bill, I expressed my reservations in relation to certain aspects of it and my amendments have reflected those concerns. This Bill has no provision about a spouse's conduct being a matter for consideration by the court when making property or lump sum orders and I think that is an extraordinary omission. I do not know of a similar omission in any other jurisdiction. My proposal that the court should take into account the conduct, where it would be inequitable to disregard it, is the minimum required. However, where there has been desertion, I propose that it should be an absolute bar to obtaining benefits under the financial provisions of the Bill.

We have to be clear about what desertion is. Not only must there by a physical separation but there must be an intention on the part of the spouse in desertion to bring the matrimonial union permanently to an end. In other words, one spouse must intend to destroy the marriage. In our law at present, desertion operates as a bar to maintenance and the Bill seeks to change this under the Family Home Protection Act and to statutory rights of succession under the Succession Act, 1965. I would like to remind the members of the House that those two measures were initiated by both Fianna Fáil and Coalition Governments. My proposal that a spouse who deserts should not be able to claim support or rights of succession from the deserted spouse, is in line with the policy behind the existing statutory provisions which is to the effect that a spouse who repudiates a marriage should not, in justice, be entitled to claim support from the other spouse. No good reason has been advanced for departing from that long-standing policy. Of course, desertion does not include the case where a spouse, because of the others behaviour, has a just cause for leaving the other spouse. In that case, it is the spouse who remains who may in fact be in desertion. That is in constructive desertion, as it is called.

Mr. Shatter

Before the Minister sits down, he might answer one question. How many times does the Minister say, under his provisions, a spouse can make an application for either lump sum payments or property transfer orders? The case was made that any such number of applications could be made. I think we are entitled to clarification on that.

Mr. Collins

In relation to the question of res judicare I would refer the Deputies to subsection (1) of my new section 18 which states:

In deciding whether to exercise its powers under section 14, 15 or 16... and, if so, in what manner, the court shall seek to ensure that such provision is made for any spouse and for any dependent child of the family as is adequate and reasonable having regard to all the circumstances of the case.

Because that duty is being imposed on the court, the court must be able to review the situation if the needs of a spouse demand it. The court could not do that as it stands. As an alternative to making a property transfer order or a second property order the court would be in a position under my amendments, and under the Bill, to make a lump sum order or a secured maintenance order.

Mr. Shatter

How many times can a spouse make an application——

An Leas-Cheann Comhairle

We cannot have another discussion.

Mr. Shatter

With respect, a Leas-Cheann Comhairle, it is essential to the Minister's amendment. He told us on a number of occasions that spouses can apply for property transfer orders. He has evaded that question.

An Leas-Cheann Comhairle

If the Minister is not disposed to answering, then the Chair cannot require him to do so. Is amendment No. 24 agreed?

Deputies

No.

Amendment put.

The Dáil divided: Tá, 77; Níl, 75.

Tá

• Abbott, Henry.
• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Matthew.
• Brennan, Séamus.
• Browne, John.
• Burke, Ray.
• Byrne, Hugh.
• Calleary, Seán.
• Collins, Gerard.
• Conaghan, Hugh.
• Connolly, Ger.
• Coughlan, Mary T.
• Cowen, Brian.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Doherty, Seán.
• Ellis, John.
• Fahey, Frank.
• Fahey, Jackie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Batt.
• O'Keeffe, Ned.
• O'Kennedy, Michael.
• O'Leary, John.
• Power, Paddy.
• Reynolds, Albert.
• Roche, Dick.
• Smith, Michael.
• Fitzgerald, Liam.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• Foley, Denis.
• Gallagher, Denis.
• Gallagher, Pat the Cope.
• Geoghegan-Quinn, Máire.
• Hilliard, Colm Michael.
• Hyland, Liam.
• Jacob, Joe.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Leonard, Jimmy.
• Leyden, Terry.
• Lynch, Michael.
• Lyons, Denis.
• McCarthy, Seán.
• McCreevy, Charlie.
• MacSharry, Ray.
• Mooney, Mary.
• Morley, P.J.
• Moynihan, Donal.
• Nolan, M.J.
• Noonan, Michael J. (Limerick West).
• O'Dea, William Gerard.
• Stafford, John.
• Swift, Brian.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Walsh, Joe.
• Walsh, Seán.
• Wilson, John P.
• Woods, Michael.
• Wright, G.V.

Níl

• Barnes, Monica.
• Barrett, Seán.
• Barry, Peter.
• Begley, Michael.
• Bell, Michael.
• Birmingham, George.
• Boylan, Andrew.
• Bruton, John.
• Bruton, Richard.
• Burke, Liam.
• Carey, Donal.
• Clohessy, Peadar.
• Colley, Anne.
• Connaughton, Paul.
• Cooney, Patrick Mark.
• Cosgrave, Michael Joe.
• Creed, Donal.
• Crowley, Frank.
• Cullen, Martin.
• Deasy, Austin.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Desmond, Barry.
• Doyle, Avril.
• Dukes, Alan.
• Durkan, Bernard.
• Enright, Thomas.
• Farrelly, John V.
• Fitzpatrick, Tom.
• Flaherty, Mary.
• Flanagan, Charles.
• Gibbons, Martin Patrick.
• Gregory, Tony.
• Harney, Mary.
• Harte, Paddy.
• Hegarty, Paddy.
• Higgins, Jim.
• Higgins, Michael D.
• Howlin, Brendan.
• Hussey, Gemma.
• Keating, Michael.
• Kelly, John.
• Kemmy, Jim.
• Kennedy, Geraldine.
• Kenny, Enda.
• Lowry, Michael.
• McCartan, Pat.
• McCoy, John S.
• McDowell, Michael.
• McGahon, Brendan.
• McGinley, Dinny.
• Mac Giolla, Tomás.
• Mitchell, Gay.
• Mitchell, Jim.
• Molloy, Robert.
• Naughten, Liam.
• Nealon, Ted.
• Noonan, Michael. (Limerick East).
• O'Brien, Fergus.
• O'Keeffe, Jim.
• O'Malley, Desmond J.
• O'Malley, Pat.
• O'Sullivan, Toddy.
• Pattison, Séamus.
• Quill, Máirín.
• Quinn, Ruairí.
• Shatter, Alan.
• Sheehan, P.J.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Wyse, Pearse.
• Yates, Ivan.

Tellers: Tá, Deputies V. Brady and D. Ahern; Níl, Deputies J. Higgins and Boylan.

Amendment declared carried.

Debate adjourned.