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——