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

Debate resumed on amendment No. 15:
In page 7, to delete lines 8 to 21.
—(Minister for Justice.)

Last night I commenced speaking to this amendment and had expressed my surprise and consternation at the attempt to delete, by this amendment, one of the most positive supports for couples coping in the first year of their married life together with the stresses and strains that we all know are attached to the first months of marriage. I had said that there is a wise saying, "if you want to know me come and live with me." No other kind of relationship can prepare one adequately for the long term commitment of marriage.

The overriding factor for the electorate in the divorce referendum was the importance to be attached to the long term commitment of marriage and the fear that that might, in some way, be destabilised or come under pressure. If this amendment is deleted we will be going against the very factor that operated so strongly in the voting behaviour of people during the divorce referendum.

If we have any commitment to allowing people to develop and adapt within their marriage before rushing into the definite conclusion that a judicial separation would bring, it is essential that section 7 of the Bill remain. It is ludicrous to suggest otherwise. Like other speakers I fail to see how Fianna Fáil are helping couples in the best way possible. The deletion of this section most certainly would not help.

As to Deputy O'Donoghue's fears that a woman might find herself under a severe threat of violence or other abuse in marriage and not be able to do anything within a judicial separation situation, that is clearly looked after in section 7 (2) which proposes to allow for the issuing of an application for judicial separation on the ground that where the marital difficulties experienced by the applicant are of such a serious and exceptional nature it would be unreasonable and unjust to delay the issuing of such application. I put it to this House that nobody in a civilised society would suggest that the battering or abuse of a wife would not be seen as serious and exceptional. It would not be seen to be unreasonable and unjust to delay the issuing of such application in such circumstances. It is perfectly well covered under that section.

Couples, worldwide, have difficulties in the early months of marriage, but there are particular factors in our society that bring pressures to bear on young people coming together in marriage here. In an oral submission to the Joint Oireachtas Committee on Marriage Breakdown the psychologist, Jack Dominion, said that if he had his way he would add to the three Rs in our primary and secondary school education systems a fourth R, education in relationships. He talked about the need for us to prepare our young people for stable relationships within marriage, to teach them communication skills for understanding and acceptance of the gender differences to allow long term, stable and loving relationships to continue. Our educational system fails dismally to do that. We have single sex education. We segregate our boys and our girls and our young men and women into single sex schools on the whole so that they do not even have an opportunity to sit and share and study together, and that is almost unique to Ireland. We have not yet introduced living skills and education for marriage and long term relationships into any of our curricula yet. It is all the more astonishing therefore that, in the vulnerable position in which our educational system leaves young people, we would attempt to remove a section that would ensure that they could cope, in the first year of marriage, with the pressures of living together and sharing together and coming together in a very foreign situation.

I wonder would the Deputy consider giving me the two minutes that are left to reply to the debate on my amendment?

I will, of course. I would ask the Minister to take that seriously into consideration in replying.

I am very thankful to the Deputy for being so gracious as to give me the chance to reply to the debate.

My amendment, No. 15, is consequential on my amendments Nos. 1 and 3. I would not be pressing this amendment if section 3 (1) (f) had remained in the Bill. In our view the real and only reason behind the inclusion of section 7 in the Bill was section 3 (1) (f). Neither the Law Reform Commission nor the Joint Oireachtas Committee on Marriage Breakdown recommended a section along the lines of section 7.

It is important not to lose sight of the fact that the proposed one year bar would now, following the deletion of section 3 (1) (f) only be of relevance where the ground of application for a decree is either adultery or unreasonable behaviour which, essentially, is the old ground of cruelty whether mental or physical, and unnatural practices. We are not therefore talking about the situation envisaged by Deputy Colley or Deputy Barnes of people who, in their first year of marriage, may be finding it difficult to come to terms with their new situation. There is no question that they could come into court seeking a judicial separation now that section 3 (1) (f) is no longer in the Bill.

Subsection (2) of section 7 allows an application to be made within a year where serious marital difficulties have arisen but what more serious marital difficulty could one have than adultery or cruelty on the part of one of the spouses? In my view there is no necessity for this provision. Its enactment, if the experience in the UK is anything to go by, would only increase the bitterness and distress and the humiliation of what happened in the marriage. Contrary to what Deputy Shatter said, this type of provision does not apply in other jurisdictions in relation to proceedings for judicial separation. It does not apply at present under our law and I am not aware that the absence of such a provision has given rise to any difficulties. I believe we should not create a problem where none exists at present by enacting this section, particularly subsection (2).

Finally, I should like to say that the speakers opposite seem to forget that in sections 5, 6 and 8 of the Bill there are already adequate safeguards to prevent hasty applications for judicial separation.

As it is now 11 o'clock and in accordance with the order of the House this morning, I am obliged to put the question in respect of amendment No. 15.

Amendment put.
The Dáil divided; Tá, 77; Níl, 72.

  • 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.
  • Stafford, John.
  • Swift, Brian.
  • Treacy, Noel.
  • Tunney, Jim.
  • Wallace, Dan.
  • 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.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.
  • Wright, G. V.

Níl

  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • 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.
  • 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.
  • Harte, Paddy.
  • Hegarty, Paddy.
  • Higgins, Jim.
  • Howlin, Brendan.
  • Hussey, Gemma.
  • Keating, Michael.
  • Kelly, John.
  • Kemmy, Jim.
  • Kennedy, Geraldine.
  • Kenny, Enda.
  • Lowry, Michael.
  • McCartan, Pat.
  • 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.
  • 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 Browne; Níl, Deputies J. Higgins and Boylan.
Amendment declared carried.

We now proceed to deal with a group of amendments Nos. 16 to 21, inclusive, and 23 and 64.

I move amendment No. 16:

In page 9, to delete lines 27 to 29.

When these amendments were discussed in the earlier days, at the time we were in Special Committee, a certain amount of effort was made to push them aside rather speedily as if they were of no consequence. Deputy Shatter said that the amendments rearranged his provisions in different language, that his provisions were fully and properly drafted. He said I was creating an impression that I was doing something new. He said, and I quote from the Special Committee report, No. 10 of 22 September 1988, at column 360:

I do not know why we have to waste time going through amending provisions that are already adequately dealt with.

I would hope that all Members of the House would appreciate that there are good and valid reasons for most Bills, including Deputy Shatter's, requiring careful consideration and amendment before enactment. There are procedures in this House to enable that process be carried through. Without wishing in any way to denigrate Private Members' Bills, I have no hesitation in reintroducing these amendments now. They are mainly of a technical nature and the arguments advanced against them in the Special Committee, in my view, were less than convincing.

Amendments Nos. 17 to 21, inclusive, concern the deletion of the words "an interim" where they apply respectively to a barring or protection order, a custody or access order or orders for the protection of the family home or contents made after the application of a decree of judicial separation is issued but prior to the determination of the application by the court. The reasons for these amendments are fairly straight forward. The Bill presupposes that interim orders, so-called, are available under the law at present. However, none of the statutes concerned — namely, the Family Law (Protection of Spouses and Children) Act of 1981, the Guardianship of Infants Act of 1964 and the Family Home Protection Act of 1976 provides for the making of such orders. There can be no arguments about that.

Deputy Shatter stated on Committee Stage that the position in practice is that there is no doubt that interim orders are applied for and are made in all of these cases except where a barring order is concerned. He states further that the interim orders in question are applied for on notice of motion but that there are exceptional cases where, for example, a child has been kidnapped, when a notice of motion may not have been made because of the urgency involved and the court will accept that a motion can be made later.

As regards barring orders, he mentioned that there is a need to provide for interim orders to cover the case where it is obvious that if an order is not made immediately a spouse will be subject to more violence in the family home. My answer is that there is no need to make special provision in the Bill for interim orders in the kind of circumstances he mentions because the present law is adequate. Not only that, but the way in which interim orders are introduced in the Bill is confusing and in some cases misleading.

First, let me say that I am in full agreement with section 13, which provides that the court may make various orders as to custody and access without separate proceedings having been instituted. There is nothing new in that; the present law makes similar provision. The confusion resulting from the use of the word "interim" in section 12 (b) to (e) inclusive was evident in the course of the deliverations of the Special Committee. Some Deputies foresaw a danger that it could mean that each of the orders in question could be applied for and granted on anex parte basis, that is, without notice to the other side. After some discussion it became evident, on the basis of the examples given by Deputy Shatter I mentioned earlier, that he was endeavouring to cater for certain extreme cases. Those cases are covered already by the present law and the use of the word “interim” will do nothing new. Unfortunately, it could have a hearing on the normal kind of case, that is, in cases where ex parte applications might not be at all appropriate.

I shall illustrate the points I have made by dealing with each of the orders in question and referred to in section 12 (b) to (c) inclusive. The Family Law (Protection of Spouses and Children) Act, 1981, empowers the court, pending the making of a barring order, to make an order for the protection of a spouse or child whose safety or welfare so requires. A protection order is an injunction-type order. The court may make the order onex parte application. It may be made even though a summons has not been served on the spouse against whom the barring order is being sought. It takes effect when the spouse against whom it is directed is notified of its making but oral notification to that spouse, by or on behalf of the spouse in whose favour the order is made, is taken to be sufficient notice of the making of the order. The Act makes no reference to an interim protection order. Clearly, in the light of the provisions of the Act as it stands, there is no need whatever to refer in the Bill to an interim protection order. The 1981 Act makes special provision as regards the hearing of applications for a barring order. It authorises the making of rules of court providing for the expeditious hearing of barring order cases and allowing the service of documents otherwise than in accordance with existing procedures. Appropriate rules have been made for such expeditious hearings by the court and ex parte applications have been granted in some cases. Again, the provision in the Bill for interim barring orders, as such, is unnecessary.

The provision with regard to custody and access orders under the Guardianship of Infant Act, 1964, is that the orders are normally made by notice of motion. In extreme cases referred to by Deputy Shatter, where a parent fears that the other parent may seek to remove a child from the jurisdiction, that parent can, in proceedings under the 1964 Act, obtain an order prohibiting the other spouse from removing the child from the jurisdiction. The court may also require the spouse to hand over any passport issued in respect of the child. If a parent has already kidnapped a child anex parte application can be made to the court seeking an immediate order forbidding the removal of the child from the jurisdiction.

The Family Home Protection Act, 1976, specifically provides for circumstances in which matrimonial proceedings have been instituted and a spouse wishes to have an order of the court restricting the disposal of household chattels until the matrimonial proceedings have been determined. In that sense the Act caters for interim type orders. In addition, the Act gives wide discretionary powers to the court to protect the family home and in some casesex parte applications have been granted.

Amendment No. 16 provides for the deletion of paragraph (a) of section 12 concerning interim maintenance. However, amendment No. 23 concerning maintenance pending suit would substitute a more comprehensive provision. Paragraph (a) empowers the court to make interim maintenance orders under the Family Law (Maintenance of Spouses and Children) Act, 1976, pending the determination of an application for a decree of judicial separation. Section 7 of the 1976 Act already provides for interim maintenance orders. Therefore, there is no difficulty about the use of the word "interim" as such. The difficulty with the provision is that it would cater only for cases where there has been failure to maintain. That would not be the case in all separation proceedings. The Bill undoubtedly is faulty in this respect. However, the argument advanced by Deputy Shatter in its favour is a distortion of the facts. His argument simply is that proof of failure to maintain is not necessary to obtain an order for interim maintenance. What he failed to say is that before a spouse is granted an interim order by the court under the provisions of section 7 of the 1976 Act an application for a maintenance order must first be made under section 5 of the Act. Clearly that is made on the basis that there has been a failure to maintain. Thereafter the process is that the court prior to determining the matter may, on the application of a spouse, make an interim order as it thinks proper. Therefore, it is quite wrong to suggest that an application under section 7 of the 1976 Act would cover all cases in separation proceedings where maintenance is required as an interim measure.

There are two approaches one can take to this obvious defect in the Bill. One approach might be to retain paragraph (a) as it stands and insert an amendment providing, in addition, for maintenance pending suit which would not necessarily be dependent on a failure to maintain. That is the approach taken in England, but the experience has been that the provision based on failure to maintain is not availed of and dependent spouses apply instead for maintenance pending suit.

The other approach — and it is the one that I favour — is that paragraph (a) should be deleted on the basis that a provision for maintenance pending suit would in any event cover all eventualities. It would also have the merit in that separation proceedings might on that basis start off on a less acrimonious basis. No allegation of failure to maintain would have to be made and perhaps it would help in some way towards the conciliation process provided for in the Bill.

Amendment No. 23, regarding maintenance pending suit, is framed so as to give the court a wide and unfettered discretion to make such interim periodical payments to a spouse and any dependent children as it considers proper. The maintenance pending suit may be ordered to be paid retrospectively from the date of the institution of the separation proceedings and the court would at the outset of the proceedings for separation be able in all cases to give attention to the immediate financial position and the needs of the spouse and children of the family that would not necessarily be possible if paragraph (a) of section 12 is retained in the Bill.

Deputy Shatter disputes that the maintenance pending suit could be backdated to the date of the application to the court. He claims that the court would apply the order from the date of the court hearing. That is not what the amendment provides. It is clear that backdating is a feature of my amendment. That is the position in our neighbouring jurisdictions which have similar provisions.

I call on Deputy Shatter.

Before Deputy Shatter speaks would the Minister clarify something for me? This is very difficult to understand even for someone who has some knowledge of it. Is the nub of these amendments the fact that these applications would have to be on notice to the other party rather thanex parte?

We are satisfied because there is no provision for interim orders in the present Acts that if we put in the word "interim" it would do nothing but cause confusion.

It was my understanding that with this group of amendments we were also going to take amendment No. 64, but the Minister made no reference to it. Perhaps he might refer to that amendment. If he wishes to interrupt me I will sit down and let him deal with that amendment, because if he is going to deal with amendment No. 64 separately at a later stage I will not refer to it now. Initially what I want to say on these amendments is the same as what I said on Committee Stage. Despite what the Minister has said it seems that none of the amendments he is now proposing to section 12 is required or necessary but rather they appear to be part of the approach that he has adopted which is to try to find holes to pick in this Bill where there are no holes to pick and to produce spurious arguments for reconstructing portions of the Bill. I do not want to waste the time of the House in our having a row as to whether a particular approach should be phrased in a certain way. If I am satisfied that an amendment the Minister tables would have an identical effect as something contained in this Bill already I do not believe that we should delay the House in arguing over semantics.

I would like to deal with some of the comments the Minister made. As happened yesterday, they indicate a total lack of understanding of what happens within our court structures when marriages break down and they indicate a total lack of understanding of the problems which exist under the current legislation which the Judiciary have tried to overcome on a pragmatic basis without legislation being enacted by the Oireachtas. Section 12 is designed to do a very simple thing. It is designed to ensure, when a person brings a judicial separation action and requires urgent court assistance, that that urgent assistance can be obtained in dealing with a variety of family problems in the context of the judicial separation proceedings which are issued.

If a wife seeks an interim maintenance order for the support of herself and her children not only does she have to bring separation proceedings, she also has to bring a separate maintenance action. This Bill under section 13 which the Minister says does not achieve anything, cuts out the necessity for the duplication of litigation and for the wife having to bring a separate action. That provision is contained in paragraph (a) of section 12. What the Minister said is inaccurate, because in practical terms there is probably going to be no difference in operation between section 12, paragraph (a), and amendment No. 23, which the Minister wants to insert in the Bill. Both contain provisions designed to allow the court make interim maintenance orders where they are required. The Minister uses the term "maintenance pending suit" whereas I use the term "interim maintenance orders", but in practical terms I do not believe it greatly matters whether we accept amendment No. 23 or whether we accept what is contained in section 12, paragraph (a).

There is no need for an adversarial response.

The difficulty is that the Minister wants to remove from the Bill section 12. If he was suggesting that we take out paragraph (a) and replace it with amendment No. 23 I would simply say that that is fine, that we have no problem about that and let us agree to that; but the reasons which the Minister gives as to why the section he is proposing is a better one than the one contained in the original draft are nonsensical and legally inaccurate. He said that in order to get an interim maintenance order under the law as it stands at present one has to prove failure to maintain. That is not what is contained in the relevant section, section 7, of the 1976 Act which states very simply and I quote:

On an application to the Court for a maintenance order, the Court, before deciding whether to make or refuse to make the order, may, if it appears to the Court proper to do so having regard to the needs of the persons for whose support the maintenance order is sought and the other circumstances of the case, make an order (in this Act referred to as an interim order) for the payment to the applicant by the maintenance debtor, for a definite period specified in the order or until the application is ajudicated upon by the Court, of such periodical sum as, in the opinion of the Court, is proper.

In other words, what the court needs to do is to look at what the needs of the spouse and her dependent children are, to see if they are being met, and if they are not being met — and we will presume that it is the wife who is looking for maintenance — even though she is receiving some funds the court can make an interim maintenance order. One does not have to prove failure to maintain as is required under section 5 of the Act to make a full order as this is an interim remedy. I assume from what the Minister has said that the court under amendment No. 23 would have to do exactly the same thing. It is worth pointing out that the Minister does not state what maintenance pending suit is supposed to mean or what test the courts would have to apply in determining whether to order maintenance pending suit. One could argue that the interim maintenance order procedure which has been well tried and which has been used since 1976 gives the court clear guidance as to how they should calculate what interim maintenance is required whereas the Minister's amendment gives no such guidance. In this context guidance is not probably essential because at this stage the Judiciary would know how to approach that issue.

What is more of importance are the other amendments which the Minister wants to make to section 12. He wants to get rid of the word "interim" in paragraphs (b), (c), (d) and (e). I suspect that what he wants to achieve is the same as what I want to achieve. What I want to achieve is that where a wife is subjected to violence she can get immediate court protection where necessary by way of an interim barring order without having to wait for a full court contest as to whether a judicial separation decree should or should not be granted, taking the grounds the Minister has outlined, on the basis of allegations that her husband's behaviour is unreasonable. The difficulty — and the Minister referred to this briefly in a different way — is that our barring order legislation at present expressly allows the court to make interim protection orders — an order saying to a husband that he can continue to live with his wife in the home but he must not assault her — without expressly allowing the court to make interim barring orders, that is, allowing the courts to order out of the family home a spouse who has been violent in the interim pending a court hearing.

The problem with the Minister's approach to this Bill is that there might be a theoretical knowledge in the context of the advice he is being given but there is not the practical knowledge. The problem here is that some judges will grant interim barring orders but some judges will not because they take the view that currently the only interim order that can be made pending a court hearing to determine whether someone should be put out of the family home because of allegations of violence is an interim protection order. There are wives who are subjected to violence who are so terrified of their husbands that an interim protection order provides no security or peace of mind in the intervening period between the time when court proceedings are initiated and finally concluded.

The reference in section 12 (b) to interim barring orders was very specific so as to make it quite clear that the courts can make an interim barring order to provide immediate protection for a wife who is battered. Under section 12 (d), the court can make orders for the protection of the family home only under section 5 of the Family Home Protection Act normally in a full court hearing, though one can, by notice of motion, look for interim orders. Because courts in practice are making interim orders, this section was designed to make it clear that when this Bill becomes law the courts have express statutory jurisdiction to make these orders in so far as is necessary.

I am concerned as to why the Minister wants to delete the word "interim". By deleting the word "interim" from the barring order procedure I believe the Minister is not removing a confusion but creating a confusion and leaving it to the Judiciary to adopt a pragmatic approach to determine whether in particular circumstances they can make interim orders. In the context of judicial separation proceedings there is not currently a precedent for the courts, in separation proceedings, to make interim barring orders, interim orders to protect the family or interim custody orders because one has to bring separate custody proceedings. The Bill wanted to make it very clear that the court can make interim orders. With regard to the custody issue, the Minister, by deleting the word "interim", is suggesting that pending a full court hearing it might be open to the courts to make a full custody order under section 11 of the Guardianship of Infants Act, 1964, rather than an order of an interim nature. That could result in a duplication of litigation and ongoing lengthy court proceedings between a husband and wife whose marriage has collapsed. I do not think that is reasonable.

I have no objection to paragraph (a) of section 12 being replaced by section 23 because I think in practical terms it will not make any difference. However, I am concerned that taking the word "interim" out of paragraph (b) might, in fact, take away a protection for wives who are at risk of serious violence which the Bill expressly says the courts can provide. I should like to hear the Minister's comments on that. Ultimately it may be that a pragmatic judiciary, many of whom have a good deal more insight into how to deal with family law problems than the Minister has, will adapt these provisions to apply them in a sensible way. I asked the Minister if he was moving amendment No. 64 in the context of these amendments. Before I say anything on this amendment, perhaps the Minister might clarify the position because I do not want to unnecessarily delay the House in dealing with it now.

The Minister may interject if he so desires for clarification purposes.

With regard to amendment No. 64, if amendment No. 23 is accepted there will be no need for section 19 because, as I have already stated, amendment No. 23 provides for the backdating of maintenance orders to the date of the application.

If amendment No. 23 is accepted it will confer on the courts a discretion to make a maintenance order which can be backdated to the date of the application but it does not require the courts to so backdate a maintenance order. In the context of section 19, I want to make it clear to the Minister that if amendment No. 23 is accepted section 19 will not automatically fall. Section 19 will still remain part of the Bill. Section 19 is designed to allow the courts, when a family law judicial separation case has been determined and where a wife has lost out in the context of maintenance payments, to make an order by way of backdating. This is different to what the Minister is proposing and I want to explain the manner in which it would operate differently.

An interim maintenance order might be made by the courts on an emergency application to require a husband to pay to a wife, for the support of herself and three children, for example, £100 a week on the basis of limited information available to the court for an interim hearing. Four or six months later the full court hearing could take place and in the full court hearing it might become very clear to the court that a husband might have sought to conceal his true assets and income and that an appropriate maintenance order should be £160 or £170 a week. During the period which elapsed between the interim order and the full order the wife and the children may have suffered serious financial difficulties. They may have incurred bills and expenses which they cannot meet and they may have had to live at a standard of living far below that to which they would have been entitled if the court had had full information about the husband's earnings.

Section 19 allows the court to backdate, in a sense, the final maintenance order which was made and in so far as there would be a discrepancy between the interim payment ordered and the full payment ordered, the husband could be required to pay the difference to his wife. Section 19 is designed to ensure that there is not an incentive on the part of husbands who are failing in their obligations to their families to conceal the true nature of their earnings for as long as they can before there is a full court hearing and to string out the date before a case finally comes to hearing in the courts on the basis of knowing that the longer it takes for the court to be heard and the more delay they create, the more money they will save because they may be aware that a full maintenance order will be for a larger figure than the interim order.

Section 19 provides an essential protection to ensure that an order can have a retrospective impact, can provide protection for a dependent wife, can act as a disincentive to a recalcitrant husband if he is the main income earner concealing his earnings and can act as a disincentive to a recalcitrant husband who allows his family to live in poor circumstances by deliberately delaying the hearing of a judicial separation action because as each week passes he is gaining financially by paying a lesser sum by way of support payments. In that context I hope the Minister reconsiders his approach in seeking to have section 19 set aside. If the Minister is willing to allow section 19 to remain in the Bill it might be possible for us not to have a division in the context of the proposals he has made. I want the Minister to give us very clear assurances that not only will he allow section 19 to remain in the Bill but also to give us very clear assurances about the problems of a wife who is subject to assault and who needs an immediate interim barring order as opposed to the lesser protection that is provided by way of protection orders.

May I remind the House that because this debate is very limited and due to conclude at 12.15 p.m., there is a desire to utilise the time as equitably as possible in the interests of all the Deputies who wish to participate.

I want to make a point, and I do not say this with any disrespect to what any of the other Deputies might wish to say. I understood that we agreed the Order of Business on the basis that all parties would be facilitated in the debate.

I am sure Deputies will have regard to the limited time available and will seek to facilitate others. I am sure they will also have regard to the desirability of the Minister having some minutes in which to reply before the vote is taken.

I shall be quite brief. On Committee Stage I said I did not see the reasoning behind the ministerial amendments on these issues, that is, deleting the word "interim" and also provision for interim maintenance orders and substituting "maintenance pending suit". It is desirable to look at what we are trying to achieve here. It could be agreed that we are trying to minimise the difficulties facing parties who are applying for a separation, difficulties which they face before a full separation order has been made dealing with the various areas allowed for in the Bill. If the ministerial amendments are agreed to, we will be returning to the point where orders under the various Acts referred to in this Bill will be sought and they will be sought on the basis of the Acts as they stand at present. There is no reference in these to interim orders. Therefore we can assume that in order to obtain an order the spouses must go to something akin to a full hearing, despite the fact that proceedings need not be separately initiated. They can be initiated together with the application for an order for separation but the hearings, effectively, will be akin to a full hearing for each of these orders. Prior to such hearing, it would seem that if we are referring to custody orders, barring orders, or protection orders it requires that the routine will be followed before that hearing. That includes the giving of notice to the other side and so on. This defeats the whole purpose of these provisions in section 12, which is to shorten the delay involved when there is an urgent matter to be decided.

The whole thrust is to follow the precedent of interim injunctions whereby it is without prejudice to the final hearing and final decision that an interim order is made, simply on the basis that the greater good is served by making an order on such basis. That is very much applicable to the situation facing a couple who cannot decide, between themselves, on how to resolve, for instance, the question of the custody of the children or maintenance, before the final separation order is made.

The Minister should have regard to what is attempted to be achieved. I believe that he also is concerned that some spouses will face real difficulties. He refers to the possibility of a protection order already being there before a full barring order is made. That is a solution that many spouses have felt to be absolutely inadequate. A protection order does not in many cases protect the spouse and children when what is really required is a barring order. That is an example of the difficulties faced by spouses who cannot obtain interim orders as under this Bill. Would the Minister consider what he is trying to achieve? Is he in agreement with the idea that some spouses need extra protection pending the final order being made? If that is the case, how does he believe that it will be achieved under his amendments?

I do not believe that it will be achievable, simply because he maintains that we must keep to existing legislation and the existing legislation demands certain routine procedures to be followed before the granting of an order. It demands that a hearing be carried out, which means hearing both sides necessarily. I am not against both sides being heard but in an emergency sometimes that is not possible and certainly with an interim injunction it is understood that one side comes in on an urgent basis and says that an order is needed pending the final order.

I agree with Deputy Shatter's reference to section 19 and retrospection. It is quite important to be able to make up a shortfall in maintenance, particularly when the amount of money that is available has been deliberately clouded by one party or the other in the earlier part of the hearing. Whatever way the amendments stand, we should have regard to that issue of retrospection on the full maintenance order.

Unless I misunderstood the net issue of what is being debated here, it is a question of whether these orders can or should be made without notice to the other spouse pending final hearing of the application. If that is so, why can we not be more clear and specific about it? The Minister seeks to delete the word "interim". Interim when used in injunction terms refers to an application which is made by one party without any notice to the other, in a case of extreme emergency. If that is the parallel situation here — and it seems to be — the Minister deletes that word thereby, in effect, providing that notice must be given to the other spouse, albeit short notice perhaps, but notice must be given before the person would be barred from the house, before the protection, custody or access order would be given and so on. Why do we have to be bogged down and why can we not have our legislation in a more simplified form, literally spelt out?

What we ought to be providing is that in the ordinary way, when the application is issued for the judicial separation and certain matters cannot wait the final determination of that hearing, there should then be two categories of situations in which a spouse may make an application in the meantime. If it is not urgent he or she gives, say, two, three or four days' notice to the other spouse and the matter comes before the court for determination. One could visualise an emergency arising, an actual assault or threat thereof where one could not wait those few days, in which case an emergency order is obtained to bar the spouse, or protect, or give custody or whatever. Why do we not spell that out if that is what we are on about here, rather than have the legalistic complications following on the use of the word "interim" and all that that may or may not import? Would the Minister consider looking into this matter at a later stage of the Bill, in the other House or whatever, to see if the sensible thing, from a draftsmanship point of view, might not be simply to provide that it is open to either spouse to make an application, let us say, on three days' notice, while the main action is still pending, to provide for relief under one or other of these headings but that in an emergency an application can be made without any notice at all? That would apply only for a very short period so that the other spouse could then come in and perhaps answer the application and give his or her side of the case.

To leave it in the form in which the Minister's amendment would leave it at the end of the day, unless I am misreading it, would mean that it would not be possible to bring an emergency application under this Act, that some notice would be required, although the Bill does not even spell out what notice would be required, if one of these interim orders were to be sought pending suit. At the very least, I would have thought it should prescribe the number of days' notice required to be given to the other party. It would be much better if this was all amplified and spelled out more clearly.

With regard to retrospection, I had understood the Minister to say he thought that his amendment, No. 23, would be adequate to provide for retrospection, but perhaps I took him up wrongly. I have looked at this rather closely, but I do not see how that amendment would provide for a retrospective order to be made at the final determination of the application.

Amendment No. 23 is a good amendment and is well amplified so far as it goes. It provides that an interim maintenance order can be made covering the period from the date of the application to the date of the determination of the application by the court. However, power is not given in that amendment under which the court at the hearing of the action could review and increase the amount of the interim order. If one wanted to provide for that situation — and quite clearly it should be provided for — an additional section would be required to enable the court, if it was so minded, to increase the amount of the interim payments that had been made between the period the application was issued and the time it was eventually disposed of.

Section 14 deals with ancillary orders. Under subsection (1) (a) power is given to the court to make the actual payments of maintenance. Perhaps it could be argued that under that provision the court could take account of retrospection, for example, by ordering that for the first four to eight weeks of the payment the sum should be £200 a week to take account of the reduced figure that applied in the interim. The sum could then be reduced after eight weeks to balance out the payments. It is possible that the court has power to do that under section 14 (1) (a), but it would be safer to have a specific section giving the court that power. I do not envisage that this would arise in a great number of cases but in the cases that it would arise, a separate section making it quite clear that the court had that power would not do any great harm.

I would agree that the meaning of an interim application is not fully spelled out in the Bill. The Minister's explanation is that the imposition of this fairly sweeping amendment of a vast array of existing legislation may possibly lead us into a situation where we cannot predict the effects of this wide ranging amendment on the legislation. If one is to use the word "interim", in this context the legislation should spell out specifically that anex-parte application can be made. The words “interim application” are used in the Planning Act, 1976.

The Deputy should look at the Family Law Act, 1976, section 7 where the concept of an interim maintenance order is provided for as opposed to worrying about the planning Acts.

The courts have particular difficulty in determining what is meant by an interim application under the Planning Act, 1976 which gives rise to considerable variation in treatment. From my experience, there is a vast variation of treatment by judges of interim applications, whether they be in family law cases or in civil cases. The evil which Deputy Shatter might seek to remedy is not adequately remedied, nor possibly not dealt with at all by this sweeping amendment of existing legislation. It is better to have the certainty of existing law in practice, which this legislation will inherit if the Minister's amendment is accepted, rather than have the uncertainty which will result from the proposals in the Bill at present.

It is uncertain at the moment.

One finds in practice — I regret to say this — when representing a party in a family law case that very often these interim applications are used vexatiously, frivolously and scandalously. The lawyers who represent one side will come in and colour the judge's mind against the other party by a sweeping statement of the case, not only stating relevant facts on the interim application which would ensure the relief sought to be given——

The same can be said about interim injunctions.

——but also putting in all possible vexatious matters which will go to prejudice the judge's mind against a party to the case. I would be very suspicious of the motivation of those who would press for sweeping powers of interim order, because of this practice in the family courts. I can speak with some degree of expertise, albeit without the degree of intensity of practice of Deputy Shatter and some other Deputies in the House. I am aware of this practice, which I decry and I value the opportunity to advert to it here. It is a practice which should be discouraged as a matter of public policy. Very often it can distort the just and fair hearing of a case.

I will conclude by sounding a severe note of warning. The public do not know what goes on in family law cases. To a great extent we are speaking into a large dark vacuum—

It is getting darker the more the Deputy speaks.

——and we see the results. We see the inadequacies of the results and the value of the results but we do not know how the machinery works. I speak as one who has seen such things, which I decry, and the House should be warned against them.

Battered wives know.

I understood that the thrust of the Minister's remarks in promoting the amendment was to suggest there were grammatical problems and tidying up difficulties surrounding the section as it stands. Having listened to Deputy Abbot's contribution I get the view there is something wrong in principle with the idea contained in section 12. Fianna Fáil should get their act together. If they are to come in here and dance us around in this willy-nilly way, at least they should come in with one voice and with one direction. Amendment No. 23 does not settle the issue of whether the application for maintenance pending suit is on notice to the other party. Even if we concede that "interim" means“ex-parte” and is designed to be a swift remedy, let it be so to deal with the interim period before the full hearing. The courts readily recognise that that is done in circumstances where it is proper to do so and where it understands that matters can be put right ultimately at the full hearing. If sweeping facts are put out which colour the ex parte case, a court is capable of putting that right. If Deputy Abbott's argument were to be pursued, there would be no process of interim application in any area, be it in planning, contract or whatever else on the civil side. It is a well established process. I cannot understand Fianna Fáil's worry about the term “interim”, since it is a well-established concept. Their worry is only with regard to maintenance, which they feel should be dealt with differently. They have no difficulty about leaving other orders such as barring orders, custody orders and protection of the family home in section 12.

The section provides that after an application for a decree of judicial separation has been issued, the court can make orders. The fact that they are called interim orders does not make a damn bit of difference. One could argue that it is repetitive. Fianna Fáil are speaking with two voices. The Minister said he was in agreement in principle with orders being made before the full action. His worry is about what they should be called. Deputy Abbott said that this is giving over to frivolous and scandalous applications and he would seem to be against the whole ideaab initio. Fianna Fáil's approach is that special provision should be made for maintenance through orders pending suit. Why do we not have orders pending suit with regard to custody, orders pending suit with regard to the protection of the home and also barring orders pending suit?

Fianna Fáil have not thought out their position clearly. I suspect Deputy Shatter is correct in saying they are picking holes in the legislation. The Bill has been well drafted using and borrowing from existing terminologies which are well understood. It is drafted to deal with the practicalities of the operation of the law as it stands. The Minister talked about a barring order and suggested that the issue of a protection order is adequate. It is not an adequate defence. He made the point that custody and the protection of the family home are provided for under separate legislation, but we are trying to bring under one Act a scheme available to litigants who are seeking judicial separation which will avoid a multiplicity of proceedings. The Minister is suggesting that because these remedies exist under other Acts, the parties can issue separate proceedings. We are attempting to provide for a unified process where ancillary orders would cover a whole range of remedies in the interim until the final determinations are made.

If the Deputy accepts that the Minister is to reply, he must allow him to do so. There are only two minutes remaining, according to the order of the House.

I had understood we were to finish at 12.30 p.m. My apologies. Deputy Shatter has put forward a fair resolution to the divide. The suggestion has been made as to how we could meet on the matter and we should at least do that.

The inclusion of the word "interim" in paragraphs (b), (c), (d) and (e) is technically incorrect. Worse still, its inclusion could be misleading. The present law is fully adequate on the matter. Paragraph (a) as it stands will not protect a dependent spouse and children adequately. My provision in amendment No. 23 concerning maintenance pending suit is more comprehensive and is a standard provision in other jurisdictions. I had thought there would be no disagreement on this matter. If I understood Deputy Shatter correctly, he made a proposal that if I agree not to move amendment No. 64 he will accept my amendments Nos. 16 to 21, inclusive, and amendment No. 23. I could agree to that proposal which seems to be in order, without prejudicing my later amendments which seek to amend section 14.

Could we get a decision on that matter before I put the question?

Is the Minister saying he will not move to have section 19 deleted from the Bill?

That is right.

If that were to be agreed, would the Minister take into the account the suggestion made by Deputy McCartan? If we are to delete the reference to "interim", will the Minister in the context of any Seanad decision on this Bill table amendments in the context of custody and barring to provide for the making of barring orders or custody orders etc. pending suit? The remarks made by Deputy Abbott have caused a great deal of alarm on this side of the House. The offer I made was without knowledge of what Deputy Abbott would have to say.

Deputy Shatter knows I cannot give any affirmative reply to his latter suggestion, other than to say that I will have the matter considered before the Seanad debate.

I propose to put the question without any reference to amendment No. 64.

If my amendments are accepted, I will agree with the suggestion by Deputy Shatter that I will not move amendment No. 64.

Very well. We will accept that.

I am putting the question: "That amendments Nos. 16 to 21, inclusive, and amendment No. 23 be made".

Question put and agreed to.

And amendment No. 64 is to be withdrawn.

We will note that when we come to it. That which has been agreed between the Minister and Deputy Shatter could not be included in the question. When we reach amendment No. 64 it will not be called.

I made a note that it was to be dealt with by 12.15 p.m. according to the Order of Business.

We move on to amendment No. 22. Amendment No. 47 is consequential and these amendments may be taken together, by agreement.

I move 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.

A spouse has substantial rights under our law to succeed to the estate of a deceased spouse whether or not a will is made. The rights under the Succession Act, 1965, are the legal right to a one half share or one third share of the estate of the other spouse, depending on whether or not there are children, where a will is made and a two third's share or the full estate, depending again on whether or not there are children, where no will is made.

The present position following the granting of a decree of divorcea mensa et thoro is that the spouse against whom the decree is granted automatically loses rights of succession to the other spouse's estate. That spouse is necessarily one who has committed adultery or is guilty of cruelty or unnatural practices. However, the person against whom a decree is granted following the enactment of this Bill will not necessarily be a “guilty spouse” or “unworthy to succeed” as is the case under the present law.

The other important difference between the new and the old law will be that the court will, on the granting of a decree, have very wide powers to protect the financial position of the dependent spouse. The court will be able to order transfers of property, settlements of property, lump sum payments, and secured maintenance in addition to maintenance or alimony, as it is called at present. It is in that context that the question has to be dealt with as to what should be the position regarding the succession rights of both spouses after a decree is granted.

There is no argument about the fact that the present law on succession rights in separation proceedings has to be amended in some way. The problem is how best to tackle the matter. No solution can be perfect. The main considerations, therefore, are the financial needs of the dependent spouse and whether one or both spouses should or should not have succession rights following the judicial separation. In my view, the Bill's approach in this matter is faulty and in certain respects may cause undue and unnecessary hardship for dependent spouses.

Sections 14 (1) (g) and 16 of the Bill empower the court, after a decree of judicial separation has been granted, to extinguish or reduce the succession rights of a spouse if, at the same time, it makes a lump sum or property order in favour of that spouse. Section 14 (4) is also relevant because it specifies that the court can on one occasion only make property or property settlement orders in favour of a dependent spouse following the granting of a decree. There are a series of objections to those provisions.

First of all, the Bill offers a choice to the court to make property or lump sum orders or, in the alternative, to leave the succession rights unaffected. In other words, the court would have a discretion to refuse to make a property order or lump sum order even where there is property available for distribution on separation and instead to stake all on the basis that the wife, who will usually be the dependent spouse, would have a right to share in the husband's estate on his death. That kind of provision is wrong in principle and if operated in that way could leave a wife in a most uncertain position.

Not only would she have to hope that she outlives her husband but also that his estate is intact when he dies. In either case there is no guarantee whatever that she would eventually benefit. And even if she were to benefit on his death the chances are that it has come too late in life. She should be able to live out her life with more certainty and security when it matters most and my amendments aim to achieve that.

My second main objection is this. While the wife's succession rights may be extinguished or reduced, those of the husband would rarely be affected. He would almost always retain the right to share in his deceased wife's estate. Let me explain why under the Bill as it is now drafted that will happen. Section 14 (1) (g) of the Bill provides that a court on granting a decree of judicial separation may make an order extinguishing or reducing the succession rights of either spouse. However, section 16 puts a limit on that power. It provides that the court shall only make an order extinguishing or reducing succession rights of a spouse if at the same time it makes a lump sum or property order in favour of that spouse.

Finish reading the section. The Minister is misrepresenting something of crucial importance in this Bill.

The purpose of the debate is to have a discussion on this matter——

The debate has been proceeding in the required fashion so far. Everybody is entitled to make a contribution, and if there is any point on which anybody wants to take issue, a suitable opportunity will present itself. The Minister, without interruption, please.

Since the husband will not normally have a lump sum or property order made in his favour, it would normally be only the wife's succession rights that will be affected. This is the opposite to what happens now when a wife brings a successful application in separation proceedings.

In extreme cases only may a spouse under the Bill lose succession rights where no lump sum or property order has been made, and that is in the case, provided for in section 16, where the spouse is guilty of gross matrimonial misconduct. Incidentally, the words "gross matrimonial misconduct" are not defined in the Bill and allegations of such behaviour would have to be pleaded by counsel and decided on by the court in each case. As a result of this provision, therefore, and contrary to the statements made by Deputy Shatter that under his Bill spouses would not have to make allegations against one another, wives would inevitably be encouraged to blacken the husband's character as much as possible.

Yet another difficulty with the Bill is that if a husband, say, has little property at the time of the granting of a decree of separation and the court following consideration of the matter declines to make any property order in favour of the wife, the court is then precluded from making property orders at any time in the future even if at a subsequent date the husband comes into property. This is because section 14 (4) provides that the court shall only on one occasion consider and determine whether it should make a property settlement or transfer order. This provision would place an undue restriction on the court and on the operation of the financial provisions in the Bill and is entirely unwarranted.

To recognise their full effect it is important to look at my amendments in context. My amendment No. 22 proposes that while a decree of judicial separation is in force neither spouse would have succession rights to the other's estate. However, subsection (2) (g) in amendment No. 49 provides that the court must, when making maintenance and property orders, take account of loss of succession rights. This would effectively mean that when a separation decree is granted a dependent spouse would, if property is available, always gain maximum benefit at the time when she needs it most.

Deputy Shatter and others in opposing my amendments on Committee Stage laid great emphasis on the case where a husband, say, has no property or capital at the time of the granting of a decree but does acquire either or both of those at a later stage. The argument they advanced in favour of the Bill was that the dependent wife would, on the death of her husband in that case, gain a measure of security. What they have failed to acknowledge is that where circumstances have changed a spouse may seek a variation in maintenance from the court or indeed payment of a lump sum in lieu — she would not have to wait until the husband's death and it is absurd to imply otherwise. Moreover, the court could secure the payment of maintenance on any property or capital sum in favour of the wife and that maintenance would continue to be payable even after the death of the husband.

The other point, of course, is that my amendment No. 24 has no express restriction, as there is under the Bill, on the court making a property transfer order in favour of a wife at any time following a decree of separation — that is to say, an order be made in relation to property that is acquired on or after the separation proceedings.

On Committee Stage Deputy Shatter and others went so far as to suggest that as a result of my amendment a wife would be left destitute when her husband dies. That is nothing more than scaremongering of the worst kind. As I have already pointed out, a wife under my amendments would be able to go back to court at a future date to seek a variation upwards in a maintenance order or secured maintenance or if at a later stage the husband came into property to seek a property transfer order — something, as I have said, she might not be able to do under the Bill as it stands. There would, therefore, be no question that under my amendments a wife could be left destitute. Indeed, it is the fear that that would be more likely to happen under the Bill than has motivated me to bring in this and certain other amendments.

The emphasis which Deputy Shatter has placed on the need to make provision for a dependent wife in the event of the other spouse's death is difficult to reconcile with the plain fact that husbands can, and do so at present, settle or dissipate their assets in a way that ensures the other spouse will in effect be disinherited. This is one of the main reasons a properly drawn deed of separation provides for waiver of succession rights. What the dependent wife inevitably aims for are property and financial arrangements in lieu of rights of succession — rights that may be jeopardised or perhaps never materalise. At the same time, she will, of course, ensure that any maintenance payable can be reviewed from time to time to take account of any change in circumstances. Under this Bill, if it is amended as I propose, she will achieve that security.

The provisions in the Bill regarding succession rights would be an open invitation to litigate and so to incur unnecessary additional legal costs. They depart fundamentally from the long standing fixed rules policy regarding inheritance that is enshrined in our succession law and would give rights of succession for the first time to a spouse whose conduct has resulted in a decree being granted. Not only that, but the provisions of the Bill in regard to succession openly discriminate against wives in favour of husbands in that in most cases under the Bill the wife will lose her succession rights while the husband will retain his. The result will be that wives with decrees of judicial separation will not be able to will their property on death as they see fit. Furthermore, the provisions in the Bill are misleading. While they provide that the court can preserve succession rights, both testate and intestate, the fact of the matter is that any order of the court preserving intestate succession rights, which to the wife are the most advantageous, can be set at nought the following day by the husband drawing up a will.

In most cases we are talking about a possible one third share in the husband's estate as an alternative to ensuring that full and proper provision is made for the wife when she arguably needs it most. We require provisions in the Bill which are not objectionable and which are workable in practice.

My amendments follow the recommendations of the Law Reform Commission and of the previous Government in their statement of intention in 1986, which was published after the Oireachtas Joint Committee on Marriage Breakdown made their report. I urge Deputies to give careful consideration to the wide differences of approach in the Bill as against my amendments and to appreciate the reasons for my concern which has resulted in the amendments now being put forward.

If this issue was not so serious one would congratulate the Minister on the extraordinary piece of fiction he has just perpetrated on the House. This is an issue I take very seriously and it is the kernel of the Bill. Last night the House limited the help this Bill can provide in the area of marital breakdown. It will also have the impact of ensuring that much of the acrimony the legal system exacerbates in marriage breakdown will remain when this Bill is enacted. Nevertheless, the changes made to the Bill last night, although of a fundamental nature, still result in the law being improved if it remains within its current framework. What the Minister has now brought before the House I regard as such a fundamental attack on the intent and framework of the Bill as to raise serious issues as to whether, if the Minister is successful with his amendment, the Bill should continue its passage in the House. The Minister is now proposing a direct attack on dependent wives, battered wives and deserted wives if they dare to use our court system to seek protection when their marriages break down. The Minister's proposal is unprecedented in the context of any of our pre-existing law. This Bill was designed to bring our family law out of the 18th century and — possibly optimistically — into the 21st century.

The Minister's proposal in the area of inheritance rights is designed to bring us back to the 12th century. What he seeks to include in the Bill now could so fundamentally distort the operation of this legislation as to bring about a result that, rather than providing help and assistance to dependent spouses, dependent husbands or wives, battered spouses, battered husbands or wives or deserted husbands and wives, it could be seen as mean legislation designed to cause them the maximum difficulties in their future lives.

I want to explain why I say this. Because the issue is technical and difficult and because the Minister has made a number of misleading statements, it is necessary to clarify the current legal position and the impact of the Minister's proposal. The current legal position is that since 1870, when the High Court inherited a jurisdiction exercised by the ecclesiastical courts of the Church of Ireland for many centuries previously, the law in this country has been that you can get a decree of judicial separation, or divorcea mensa et thoro as it is known, if you can prove your spouse to be guilty of cruelty, adultery or unnatural practices.

Currently, if a battered wife goes to court and looks for a separation decree and the court finds that her husband is guilty of cruelty, the effect is that the husband who is guilty of cruelty automatically loses his inheritance rights to his wife's estate. That is expressly provided for under section 120 (2) of the Succession Act, 1965. However, the battered wife who gets the court separation decree retains her inheritance rights. The battered wife who needs the protection and help of the court to effect a separation is not deprived, even under our current anachronistic laws, of her entitlement to some share of her husband's estate in the event of his death. If he dies without making a will and if there are no children, she will get all her husband's estate. If he dies without making a will and there are children she gets two-thirds of her husband's estate. If he dies having made a will which leaves nothing to his wife and there are no children she will get half his estate and if he dies making a will leaving nothing to his wife and there are children, she will get the minimum of one third of his estate.

The Minister is now proposing that a wife who goes into our courts and gets a separation decree — on the Minister's grounds — on proof of adultery, desertion or unreasonable behaviour, which is the equivalent ground to the current ground of cruelty, will automatically lose her inheritance rights. We are not talking about the deserting spouse, the wife batterer or the husband batterer, we are not talking about the spouse who is engaging in an ongoing adulterous relationship, losing his or her inheritance rights, we are talking about the innocent spouse. It would mean that the battered wife and the wife who discovers that her husband has been having an affair for years of which she was unaware will be automatically disinherited.

The Minister should not confuse the issue by talking about the fact that under the Bill and under his amendments the courts, nevertheless, will be able to make a variety of different court orders in respect of maintenance or property transfer orders or lump sum payment orders. Under the Bill as originally drafted, the courts are given all those powers and the Minister is not conferring anything new on them in the context of those powers. This Bill, based on the recommendations of the Oireachtas Joint Committee on Marriage Breakdown, provides extensive powers to the courts to make property transfer orders, lump sum payment orders, secured maintenance payment orders and ordinary maintenance payment orders for the protection of dependent spouses who in most instances will be wives who depend on their husband's earnings to maintain a reasonable standard of living for themselves and their children. The Minister is not offering anything new, but under the existing Bill the battered wife, the deserted wife and the wife whose husband is committing adultry will not automatically lose their inheritance rights. Under the existing Bill the wife whose marriage has broken down in such circumstances may retain her inheritance rights. Under the existing Bill the courts can make a property transfer order, a secured maintenance payment order and an ordinary maintenance payment order, if necessary, and still provide that the wife will retain her inheritance rights. The only provison in the Bill as regards inheritance rights confers a discretion in circumstances in which a wife has been given proper, long term financial security which will fully, properly and adequately meet her needs. It confers a discretion, and only a discretion, on the courts to bring inheritance rights to an end. That is designed in such a way as to extend to a wife who wishes to seek it the maximum possible security for the future, during the lifetime of her husband, without having to worry as to whether he may or may not leave her something by will. That is only a discretion. Where the husband is wealthy the courts will be in a position to provide for property to be transferred to the wife, to provide for maintenance and to provide that the wife will retain her inheritance rights where it is proper that they are so provided.

Let there be no illusions about what the Minister is proposing. He is proposing that every wife who goes into court and gets a separation decree will be disinherited whether or not the court makes a lump sum payment order or a property transfer order. That is the net effect of what the Minister is saying. He is not saying to the courts that a wife can only be disinherited if a property transfer order or a maintenance lump sum order is made. He is saying that by virtue of granting a separation decree they will automatically disinherit the battered wife or the battered husband who seeks that decree regardless of whether they are in a position to provide any financial compensation for the benefit of that wife, or husband if he happens to be the dependant which is unusual, but it happens on occasions.

Let us look at the impact of this. The Minister has said that if the wife is disinherited and if there is no property that the court can give her at the time of the court proceedings, she can come along, maybe two years, ten years or 20 years later, and ask for a property transfer order to be made if the husband acquires property. That brings us back to what other Deputies very ably referred to, and what I think could be summed up as the schizophrenic approach of Fianna Fáil in the context of this Bill. On the one side there are people with one point of view and on the opposite side there are people with diametrically opposite views. The Minister is saying that if the wife is automatically disinherited, even though she gets no property and no lump sum, and if the husband acquires property at a later stage she can claim it. In the same breath the Minister told us that the wife's inheritance rights are not worth very much anyway because the husband can always enter into arrangements whereby there is nothing for the wife to inherit. Where the couple have gone to war in the courts and a separation decree has been granted, which is what the amendments which were introduced into this Bill last night will not only require but will make compulsory in a large number of cases of marriage breakdown, where the husband realises that as a result of that decree of separation his wife is being disinherited, can the Minister imagine that husband purchasing property in future years without taking the necessary legal steps to ensure that his wife could not at a later stage go into court and make a claim? Would that property, in the case of a husband committing adultery, not be purchased in the name of the woman whom he is living with?

If it was the wife who was the wealthy person and was acquiring property, would she not acquire the property, if she was committing adultery, in the name of the man she was living with? In that way there would be no possibility of the wife who had lost her inheritance rights going to court, making a claim and getting a property transfer order. Is the Minister not encouraging couples in those circumstances, following the granting of a separation decree, to ensure that no matter what business they run or what property they acquire they set up elaborate trust arrangements and buy properties in the names of other people or possibly have them hidden in companies that are incorporated in the Isle of Man, Jersey or the Cayman Islands so that there will be no possibility of suggesting ownership of property? Is the Minister not encouraging people, as was mentioned in the context of other aspects of this Bill — on occasion criticism arises from his colleagues — to spend elaborate amounts of money to get expert legal advice to conceal the true nature of their assets?

I have tabled an amendment, and the Minister has tabled a similar amendment, which contains a provision to ensure that pending the hearing of judicial separation proceedings people will not try to conceal or dispose of their assets before property transfer orders have been made. You cannot enact legislation that ensures that any property that an estranged spouse may purchase for the remainder of his or her life after a separation decree has been granted will be put into their name and will not be held in trusts or concealed or purchased in the names of other people.

Let us not mince words about this. Let us be very clear about what is now being proposed. The Minister is saying that the wife who, under existing law, could go into the courts and get a separation decree on the grounds of adultery and cruelty and retain her inheritance rights, will as a result of the amendment which he is now proposing, be disinherited with no guarantee of any financial protection whatsoever being made available to her. It is correct to say that under the Bill and under the Minister's amendments, in determining what financial orders should be made the courts will have to look at the overall financial circumstances and property ownerships of the couple. The Minister's amendment, in disinheriting the wife, gives no guarantee that she will be given future security. The Minister made a great play in talking about legal certainty. There will be only one legal certainty which is that every dependent wife who gets a separation decree will be told that she will be disinherited. If she goes to court she will be told by her lawyers that they cannot guarantee that she will get a property transfer order or a lump sum payment order but they can guarantee that she will be disinherited. They can also give her the guarantee that unless she has sufficient financial backing through her own work, through family help or from the State, if her husband dies before her she will be left destitute. That is an extraordinary amendment for anyone to propose to legislation that this House is considering towards the end of the 20th century.

The Minister in his address on this amendment referred to the Law Reform Commission and their recommendations. I reiterate that the recommendations made by the Law Reform Commission as regards reforming the law on judicial separation were examined in minute detail by the Joint Oireachtas Committee on Marriage Breakdown and in a number of respects were rejected because they were perceived by members of that committee either as being out of touch with the reality of the social problems of marriage breakdown or as not providing adequate and sufficient protection for dependent wives. It was not unusual for the Law Reform Commission, as it was previously constituted and as opposed to the current commission whose members have a more realistic view of some of the problems involved in the marriage breakdown area, to have their reports in areas of marriage and family law rejected. That commission proposed that we should retain within our law the action of criminal conversation rather than abolish it. It was the Minister's Government in 1981 who very sensibly rejected that recommendation of the Law Reform Commission.

The recommendation of the Law Reform Commission in the area of inheritance rights was considered by the joint Oireachtas committee. I will quote from page 51 of the report of the Joint Oireachtas Committee on Marriage Breakdown. That report stated what is the current law and then went on to deal with the issue of inheritance rights, having previously referred to the recommendations of the Law Reform Commission. I quote:

The Committee feels that the courts should be empowered to vary or discharge a spouse's rights of succession following the grant of a decree of Judicial Separation having regard to the circumstances of the parties, in the context of determining what orders, if any, should be made for the division or transfer of property between spouses.

In other words, the Oireachtas Joint Committee said that in determining whether inheritance rights should be varied the court should only do it looking at the overall financial circumstances. The Joint Committee did not say, and were very clear and careful not to say, that they endorsed the approach of the Law Reform Commission, because that approach is leaving battered wives, deserted wives and spouses whose marital partners are committing adultery with the Hobson's choice of going to court to seek the court's protection by getting a judicial separation and some of the orders which are available such as barring orders and maintenance orders, with the possibility of being disinherited and in their later life left destitute, or remaining living in the family home and ignoring the fact that they are being battered or their spouses deserted them or are committing adultery, to ensure that in their later life there is no possibility of their being left destitute. That is an extraordinary choice to present to any wife or any dependent husband who is locked into marital breakdown and marital conflict.

The provision contained in the Bill as currently drafted deals very carefully with inheritance rights. Firstly, it reflects the view of the Oireachtas Joint Committee on Marriage Breakdown that, generally speaking, a spouse should retain her inheritance rights when getting a separation decree unless other adequate financial protections are provided to guarantee the future security of that spouse. The Bill in the relevant sections lays down a whole series of criteria that the courts must have regard to. Section 17 in particular lists a whole variety of matters the courts must pay very careful regard to in determining what property orders could or should be made and in determining the issue of inheritance rights. It is very clear from the Bill that where no property orders or lump sum orders can be made a wife will retain her inheritance rights. It is equally clear that, where a husband's financial circumstances are such that it is reasonable for property orders to be made but still reasonable that a wife retain her inheritance rights, she will continue to do so.

It was anticipated that the objection would be made to this Bill that purely on the basis of making financial or property orders and providing for future security, and only on that basis, inheritance rights could be lost; it would be extremely inequitable because under the current law the person who is guilty of cruelty and battering his wife automatically loses his inheritance rights when a separation decree is granted. Therefore, an extra leg was put on to that provision which allows the courts to provide that where someone has been guilty of gross matrimonial misconduct that person can be disinherited without the courts having to make property orders or lump sum payment orders. It was envisaged clearly under the current legal system where someone is found guilty of cruelty and a decree of separation is granted because that person has been seriously assaulting his or her spouse or engaging in other appalling behaviour that comes within the definition of mental cruelty, that the person who is guilty of such behaviour loses his or her inheritance rights. The concept of matrimonial misconduct was used to extend to the courts the possibility of excluding from inheritance rights someone who is unworthy to succeed or to inherit.

Unfortunately, more often the wife is the victim rather than the husband. It is unfortunate that there ever has to be a victim, but more often in the familial area the wife, not the husband, is the victim, though on occasions the husband is the victim. Let us look at it from the perspective of the wife making the application. It is quite clear that the wife who gets a separation decree can, in circumstances where husbands are currently disinherited, bring about that result without having herself in effect disinherited and cut off from an inheritance entitlement. I find it quite extraordinary that we should come back to dealing with this invidious and dangerous amendment, having teased it out and discussed it on Committee Stage. Again, I want to express my thanks to other Deputies and other parties in this House for their support on these issues. Some of them more ably than I spelt out on Committee Stage why this proposal should not be accepted.

Deputy O'Donoghue said that no solution can be perfect in the context of providing a legal framework to deal with the problems of marriage breakdown. This is not merely an imperfect solution; it is an invidious and dangerous proposal which could in effect result in this legislation, rather than extending additional assistance, turning the legal clock back by a number of centuries. As on Committee Stage, I urge the Minister to rethink what is now proposed.

How many people have urged on him that this amendment will deprive battered and deserted wives of their inheritance rights? How many people have made representations to him to deprive wives locked into that appalling family situation of their inheritance rights? How many organisations concerned with marriage breakdown have been on to him making representations — we all receive representations about different aspects of legislation — saying that the battered wife or the deserted wife if she goes into court to get a separation decree should be disinherited? Have any religious group reflecting any majority or minority grouping made any representations to him suggesting that the battered wife and the deserted wife should automatically be disinherited? Have his own solicitors, who work in the law centres established to provide free legal assistance to people who have not the means to afford legal help when their marriages break down, been making representations to him in support of this provision, or have they been making representations opposed to this provision to his officials?

It is a most extraordinary measure. All the amendments we have had to deal with on this Bill, even in the context of what we dealt with last night, pale into insignificance under the extraordinary impact this provision could have on current law and on undermining the fundamental philosophy behind this Bill, which is designed to help people, not to penalise them, if they seek and require court assistance in dealing with their marriage problems. It is worth spending time on this because of the fundamental impact this provision and the amendments could have.

The Minister has talked about the need for certainty. We had the spurious suggestion that even the wife who is disinherited and left with no property and no financial capital could years later come to court and look for a property order. The Minister made that comment, but later he talked about the need for legal certainty. Surely a good law dealing with the problems of marital breakdown should provide mechanisms to enable husbands and wives to sort out their lives for the future without having to be engaged in an ongoing matrimonial war of legal attrition through our courts. The format the Minister is suggesting is ludicrous. Property which does not exist at the date of court proceedings certainly will not be purchased by wealthy husbands subsequent to the court proceedings in the hope that their wives will come to court and look for a greater share. Even if we take that possibility at face value and if we take also at face value the fact that under this Bill not just the wife can seek property transfer orders but that the husband can as well, the proposal the Minister is now making is a recipe for chaos in the lives of every husband and wife who use our court system to get a separation decree. If there is going to be a facility to make ongoing repetitive applications for transfer orders, the wife who purchases a property ten years after her husband has deserted her will be subject to the husband coming to court, if he wants to engage in a matrimonial war of attrition, and asking the courts to transfer some ownership rights in the wife's house to him. The husband who acquires property of any nature ten or 15 years later, who even involves himself in building up a successful business — and it might be in the interests of the wife that he does so because that might entitle her to additional maintenance — would know, as he built up the business, that it would be an ongoing target for the possibility of a court action, in circumstances where he and his wife separated not through any fault on either side but because they were simply incompatible. What deserted or separated spouse could build up any business in those circumstances? Would they ever get a loan from any bank to build up a business, because of that property, for ever more, being open to attack in the context of a family law action?

The scheme that the Minister is now proposing is a lawyer's goldmine, and I have heard this said on occasion on the other side of the House in circumstances which are not merely inappropriate but which are designed to be implicitly insulting to lawyers on this side of the House. It will mean that no couple who are parties to a marriage that has collapsed will ever be able to say that they have finally come to the end of legal controversy. No couple will be able to say that at last the litigation is at an end because the courts have made decisions about financial arrangements and property in the future and they can now both get on with their lives. Each spouse will for ever more be liable not simply to having maintenance reviewed, as it should be in changed financial circumstances, but to ongoing applications about property, if what the Minister is saying is taken seriously and if the Minister's intent is serious. Of course, the reality is that arrangements will be made to ensure that property is held in ownerships other than those identifiable as being vested in the spouse.

I would urge the Minister, in so far as he is prepared to listen, and listen with any degree of credibility to anything that is being said from this side of the House on this Bill, to seriously reconsider the formula he is now proposing. I would urge him to withdraw it and to do so in the context of us at least being seen in this House not to be engaging in some sort of political pointscoring exercise with the casualties of broken marriages being the pawns caught in the middle. In the context of an assumption that what we are all about here is trying to improve the legal framework that is available to provide help and assistance to couples whose marriages collapse. I would ask the Minister to withdraw this amendment. I would ask him to consider very seriously the great harm that this amendment will do and to very seriously consider, particularly in the context of women, the great danger this amendment poses.

What the Minister is saying in effect is that judicial separation action in future will become an action that can be availed of, in a sense, by the wealthy only, because the only wife who will be able to go to court with any degree of equanimity to get a decree will be the one who knows her husband is so wealthy that it is inevitable some type of property order will be made in her favour, even though she will not be able to predict exactly in advance as to the nature of the order. The majority of battered and deserted wives will look at this provision and regard it as erecting a legal barrier to them obtaining the assistance that the law should fully and properly provide for them in a humane and compassionate society.

I want to nail another fallacy on this. The Minister referred to this briefly, as did his colleagues. I refer to separation agreements. For people who are not familiar with separation agreements, a couple whose marriage has broken down and who can work out future financial and property arrangements between them without having to get involved in conflict and court contests may conclude a separation agreement. That agreement records the fact that they are going to live apart, and would normally set out in some detail future arrangements about custody and access to children and about property, who is to live in the home, who is to move out of it and how much maintenance a wife is to get, etc.

The point has been made, in the context of the Minister's approach, although he did not make it as explicitly today as we heard it on Committee Stage, that in practically all separation agreements husbands and wives waive inheritance rights. That is simply not true. The perception that that is the case could only be a perception derived from people who have very little experience of dealing with the large number of couples whose marriages have collapsed. On occasions it is true. In some separation agreements husbands and wives waive inheritance rights. A wife will normally only be advised to waive her inheritance rights if, within the context of the separation agreement, there is adequate provision made for her future financial security. She might waive her inheritance rights, for example, where the family home is being transferred from her husband's name into her sole name and there is also a guarantee that there is some life insurance policy in existence that, upon the husband's death, would ensure that she gets a large lump sum payment to provide for the future. In a large number of separation agreements where there is only a limited amount of property, a family home in joint names that has fairly limited value, say, £40,000 with a mortgage of £30,000, the separation agreement might contain a provision which requires the husband to pay the mortgage and maintenance payments. That husband's total capital wealth might be £10,000. In those circumstances it is quite normal and usual for a wife to retain her inheritance rights. In those circumstances, too, that wife who goes to court will lose her inheritance rights and there will be little capital value that the courts would be able to transfer to her. It is worth taking that example because that is what happens in the financial and property background of the typical couple whose marriage collapses. There is one home there; there is a large mortgage on it; it has a small capital value and there is little the wife can get in practical terms in return for a waiver of inheritance rights, so she retains her inheritance rights.

From my own experience in over 15 years I would say that in about 70 per cent of deeds of separation concluded there is no waiver of inheritance rights. In about 30 per cent there is. Inheritance rights are only waived where there is adequate provision. If there are lawyers the Minister knows of who are advising wives in such circumstances to waive inheritance rights, all I can say is God help the wives who are doing it in the context of the nature of the legal advice they are getting. It is important to pin that. It is a reality. The Minister should go and talk to the lawyers in the law centres who are dealing on a daily basis with couples who do not have the financial means to get legal advice when their marriages collapse. The Minister should ask them, before we have to have a vote on this, rather than his officials in the Department of Justice who have a theoretical but not a practical knowledge of what happens on the ground. The Minister has talked about certainty, and in correspondence that he got his Departmental Secretary to initiate through the columns of theThe Irish Times we have had paraded before us the spectacle of the deserting husband——

It was in response to correspondence.

Correspondence was started by Mr. John Kirwan three weeks ago, and if you had been following this debate you would be aware of that. We can supply a copy of the letter.

(Interruptions.)

Would Deputy Shatter speak through the Chair, please?

The Deputy has not been following the correspondence.

It was a public relations exercise by the Deputy who is talking about credibility.

The correspondence was started by Mr. Kirwan and the chairman of Ógra Fianna Fáil.

The Deputy is taking something out of context. He has requested the Minister not to be political but he is being most political himself. The Deputy should be honest about that.

Members on this side of the House are a good deal more honest about this issue than the level of approach we are getting from Deputies opposite.

Acting Chairman

The Deputy should address the Chair.

I have my facts and I will deal with the Deputy's contribution if and when I am given the opportunity.

Acting Chairman

I have asked for order.

Deputy Andrews should check the facts before interrupting.

Deputy Shatter has spoken for 14 minutes on this issue and has not given any other Members an opportunity to contribute. That is very unfair.

Acting Chairman

Deputy Andrews should permit Deputy Shatter to contribute without interruption.

In the context of that correspondence we had paraded before us the spectacle of the deserting husband whom we were told would under these provisions 20 years after disappearing into the twilight be able to make claim to an inheritance entitlement that currently he is barred from claiming——

Other Members are not being given an opportunity to contribute.

If the Deputy had more knowledge in this area he would be able to restrain himself.

I will have to leave the Chamber in protest.

Perhaps the Acting Chairman will restrain his colleague.

Acting Chairman

Deputy Shatter should proceed and not refer to the interruptions.

Deputy Shatter should be allowed to proceed without interruption.

I am entitled to the courtesy of being allowed to make my contribution without interruption.

Acting Chairman

Through the Chair, I agree.

We have the spectacle of the deserting husband who 20 years after he had disappeared emerges from the twilight to claim inheritance rights. We have the provisions in the Succession Act paraded before us on the basis that the current law provides a great deal of certainty in this area and ensures that a deserted wife can leave property by will without the deserting husband making a claim to it. I should like to nail that. If Deputy Andrews, and other Deputies across the floor, have any practical experience in this area of this happening I would be interested in hearing of it. There is a specific provision in the Succession Act, 1965 which says that where a spouse has been guilty of desertion which has continued for two years or more up to the death of a deceased spouse that spouse shall be precluded from inheriting. It has been suggested that this has resulted in many deserted wives being able to leave their property by will without fear of claim being made by deserting husbands but that is untrue. There have been hardly any cases before our courts since 1965 when this provision was enacted which have been successful and resulted in a spouse in desertion being excluded for inheritance entitlement. I challenge Deputies opposite to produce the many judgments they believe have been handed down on this issue.

There is a reason why this section in practice does not work. If a wife who believes she has been deserted dies and makes a will leaving property to, for example, her children, and if the spouse whom she believes was in desertion makes a Succession Act claim, who is to determine what happened in that marriage? If the spouse alleged to be in desertion goes to court and says that 20 years ago the marriage was a disaster and they agreed to live apart, separated by agreement — they did not go to see lawyers or conclude any legal arrangement — and there was no question of desertion, in most instances nobody could provide evidence to the contrary. The children might have been four or five years of age and 20 years later they could not give evidence as to the circumstances that gave rise to the collapse of the personal relationship between their mother and their father. If the husband who is truly in desertion learns that his wife is ill and moves back into the family home for some months before she dies, the continuous period of two years referred to in the 1965 Act no longer applies and a Succession Act claim can be made.

It is very interesting to contrast the many judgments, now in the region of 100 written decisions, delivered by our courts under section 117 of the Succession Act, 1965 where claims were made to shares in an estate by children who had not been provided for, with the lack of such written judgments and decisions by our courts in proceedings brought by the surviving relations of a deserted wife trying to prove that a surviving husband was in desertion and excluded from inheritance by virtue of the provisions in section 120 of the Succession Act. The reality is that the current protection provided for the estate of deserted wives under existing law is notional. It is like so much in Irish law, it is theoretically a protection but it is a protection that in reality has very little effect or provides very little real help.

The benefit of section 16 is that a wife who has been deserted can use the provision that allows a court to make orders to reduce succession rights. That can be used by a wife to bring a degree of certainty to her position that is not available to her under the current law. She can allege that her husband has been guilty of matrimonial misconduct by virtue of his desertion and as a result should be disinherited. It has been suggested that currently there is a protection that in some way is being taken away but the reality is that the Bill provides a real protection as opposed to the notional protection that exists under current law.

In order to ensure that even that notional protection remains in force, there is a provision in the Bill to retain it for a minimum period of five years. Any wife who is deserted will have time, if she wishes to exclude her husband from inheritance, to seek a separation decree by establishing that he is in desertion. As I have only one opportunity to make a contribution on this issue I felt it important to try to clarify all the problems that arise in the area of inheritance in response to the Minister. At the end of the day, cutting through all the technicalities and the different approaches to the making of financial and property orders, we are left with the Minister's naked proposal which I do not believe could have support from any person outside the House other than members of the Fianna Fáil Party.

And some of the Deputy's party.

The naked proposal says to a deserted wife, a battered wife or a spouse who finds herself in circumstances where her marital partner is committing adultery, that if she goes to court and gets a separation decree she is automatically disinherited. That should not be part of any modern legal marriage law framework as we come to the end of the 20th century and creep forward into the 21st century. I urge the Minister to withdraw the amendment.

As I said on Committee Stage, I do not agree with the Minister's amendment, No. 22. The Bill, as amended on Committee Stage, requires the court to make some allocation before reducing or extinguishing succession rights unless there is a case of gross matrimonial misconduct. Unfortunately, the Minister's amendment is without compromise and does not allow an opportunity for a court to exercise its own discretion. It requires that the separated spouse be precluded from sharing in the estate of the other spouse if a decree of judicial separation is in force.

I would have some sympathy for that amendment if alongside it some effort was made to allow the court some discretion. The Bill, as drafted, allows the court some discretion and reasonably so. There is no way at this vantage point we can decide that there will be no cases in which it would be justified that a spouse should retain succession rights. I believe there will be cases where succession rights should not be extinguished. The difficulty I see arising from the Minister's amendment — and this will be the position in the majority of cases of judicial separation orders — is that the sole property remaining will be the family home. If the Minister's amendment is included in the Bill we will have the situation where — because there is no legal right to succeed — the spouse, and particularly the wife, who retains custody of children will be forced to have a property order made concerning the family home. That in itself will have a knock-on effect of perhaps causing that family home to be sold. As Deputy Shatter has pointed out, in most cases the amount of capital that will arise from the sale will be negligible, certainly will not improve the position of either spouse and will be severely detrimental to the spouse who retains custody of the children because the family home is presumably an inherent part of maintaining a family together.

There is no reason we should have a finite and definite bar to succeed without taking into account other circumstances. On an earlier amendment the Minister spoke of certainty and the fact that he wished to include certainty in the provisions of this Bill. In the next breath, on the following amendment, he referred to the fact that he was allowing for spouses to return to court where there has been an accumulation of property on the part of the other spouse. In his amendment he is allowing for spouses to apply further to the court to vary the orders pertaining to property. I see that as a backward step. It will remove the element of certainty that drives most couples into separating. Many couples who are experiencing difficulties in their marriage and who are contemplating separation will tell you that the very reason they are separating is because they want to end the uncertainty. They want to get some kind of peace into their lives and to remove the tension. The one thing that will prevent them doing that is if they have to face the fact that for the rest of their lives they will possibly have to defend cases in court, taken by the other spouse, if their financial circumstances vary to that extent.

There are many cases of separated wives who have gone into business on their own or who have taken up some kind of occupation which has allowed them an independence. Are we now to face the situation where the husband who has separated — and whose marriage is now the subject of a judicial separation order under the Bill — may return to court every couple of years, every five years, or whatever, and demand a share in that property? That is wholly against the idea of what people want when they separate. They want to end the relationship and to have the property that is to be settled on decided at that time and they want to know what their succession rights are. They do not necessarily want to extinguish those succession rights for the other spouse even in the worst of circumstances. That is not necessarily something that each spouse wants. There may be a great deal of acrimony leading up to a separation but it may stop short of denying the other spouse succession rights because there are certain orders made relating to property, maintenance or custody. It is detrimental to the thrust of this Bill to insist, as the Minister is doing, that if there is a decree of judicial separation there should be no legal right to inherit.

There is no such effect on spouses who enter into a separation agreement, there is no requirement that that be the case. If there is to be certainty in our law I cannot understand why the Minister should decide that in the case of decrees of judicial separation there should be one law and in the case where couples agree to separate and enter into a deed of separation, that should not be the case. What is the Minister saying is the desirable situation? I agree with a point made by Deputy Shatter, that not every separation deed entered into has a clause in it that extinguishes succession rights; certainly many of them do, but there are many that do not. It is part of the standard separation deed but it is not always agreed to and, therefore, it is one of the variables. What is the situation that the Minister wishes to have? Is he saying that it is only right that those who separate should not share in the inheritance rights of their spouse in the future or is he saying that the situation regarding the separation deeds should prevail? The Minister and the Fianna Fáil Party have not thought this through and have come forward with an unfortunate amendment which, if it had some degree of judicial discretion, I would have been willing to consider because I can see the reasoning behind the amendment to a certain extent.

The Minister speaks about spouses being disinherited by the dissipation of assets over a number of years. That is and has been a problem over the years.

As I said on Committee Stage, I do not believe there is an ideal solution to that. It is not the answer to go to the other extreme, to disinherit completely, spouses who are separating, whether or not there is a property settlement, bearing in mind that the vast majority of couples who separate do not have effectively disposable property.

Many spouses who separate may be in local authority accommodation where there is no question of property, where there are no assets. What then is to be the position of the spouse who retains the tenancy? Is he or she not to retain any rights to succession in the future? That is a retrograde step and it is not in line with the movement in this legislation towards achieving some kind of evenhandedness as between the parties.

Finally, I would ask the Minister if he would consider some change in this amendment which would allow some judicial discretion because, as it stands, it is going to the other extreme. It is not addressing the main problem he complains about and will make for further difficulties in the future.

From listening to some of the contributions one would think that the bulk of cases of judicial separation that arise are those involving vast sums of money with millions being salted away in the Cayman Islands, in Bermuda and elsewhere. In actual fact the overwhelming bulk of cases concern little or no property and the problems are not those of tracing assets or coming back again. There are very different kinds of real problems where, for example, a court will order that a house be transferred into the wife's name and there may be difficulty in getting the consent of the county council to transfer a mortgage or there may be a difficulty in getting the consent of the Irish Permanent Building Society to transfer the mortgage.

If they do not get consent they lose their inheritance rights.

I am putting in context the overwhelming bulk of the difficulties that can arise. Those that involve very substantial sums of money always had ways of organising their affairs even before this Bill. They could always get their judicial separations. They never had a problem. If you had money up to now you could get a separation.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.