Dáil Éireann debate -
Wednesday, 7 Jul 1993

Vol. 433 No. 6

Matrimonial Home Bill, 1993: Second Stage.

Minister for Equality and Law Reform (Mr. Taylor)

I move: "That the Bill be now read a Second Time".

The object of this Bill can be simply stated. It is to give spouses equal rights in the ownership of the matrimonial home.

The Bill is one of the measures included in the major programme of family law reform to which the Government is committed and which will culminate in the referendum on divorce to be held next year. However, the fact that it is one of the milestones on the way to the attainment of that objective does not mean it is not fully justified on its own merits. It is high time for such a measure to be on the Statute Book and for the equal status of women in marriage to be explicitly recognised by the law.

While the objective of the Bill can be simply stated, the achievement of that objective has proved far from simple. Indeed several Governments have concerned themselves with it over the years in the course of which various proposals were put forward and abandoned, for one good reason or another. Consideration of the proposals involved consultation from time to time with conveyancing counsel, the conveyancing committee of the Law Society, the Land Registry and the Attorney General to ensure that joint ownership could be satisfactorily secured without damaging the marketability of house property. An additional factor was the need to await the outcome of litigation before the High Court and Supreme Court to determine whether a wife's contribution through her work in the home entitled her to a share in its ownership.

I mention this background to the Bill to make the point that the creation of joint ownership in family homes has been the concern of successive Governments over a long period and that, therefore, I have no doubt that the principle of the present Bill will enjoy support from all sides of the House. I wish to pay tribute to the very considerable work done on this measure in the past by quite a number of Ministers for Justice, many officials of the Department of Justice and of the Office of the Attorney General.

As the law stands, where the matrimonial home is in the legal ownership of one spouse, the other spouse may acquire an equitable share in its ownership through direct monetary contributions made towards its purchase. Where the contributions have been indirect — such as contributions to the general expenditure of the family — the contributing spouse will generally acquire a share in the ownership of the home in the absence of agreement to the contrary. No share in the ownership is earned by non-pecuniary contributions, such as looking after the house and family. This position was confirmed by the Supreme Court in the case of L v. L (1992) Irish Law Reports Monthly page 115.

Since the Judicial Separation and Family Law Reform Act, 1989, came into force — it did not apply in the L v. L case — the courts have wide powers to make orders in respect of property on the granting of a decree of judicial separation. They can take into account the contributions of a spouse in looking after the home and family by granting the spouse an interest in the ownership of the home. The earlier Family Home Protection Act, 1976, ensured that one spouse cannot sell a family home without the written consent of the other but it gives ownership rights only in very exceptional circumstances.

The key provision of the Bill is section 4, which confers a joint interest in a matrimonial home on both spouses. Before I come to that section it is useful to refer to what constitutes a matrimonial home for the purposes of the Bill. I say that because it is necessary to distinguish it from a "family home" under the Family Home Protection Act, 1976, and because the definition is of significance where the home is part of a larger entity operated for commercial purposes, such as a farm or business premises.

To constitute a matrimonial home, the dwelling concerned must be one in which a married couple is ordinarily resident when the Act comes into force — that is, six months after the Bill is enacted — or at any time afterwards. Couples who are living apart at present will not be affected by the Bill. Property adjustments between couples following judicial separation will remain governed by the Judicial Separation and Family Law Reform Act, 1989, and will not be affected by the Bill. Moreover, when a matrimonial home has come into existence it remains a matrimonial home, even after the couple have gone to live elsewhere, and the equal entitlement of the spouses to its ownership is preserved until it has been sold or otherwise disposed of. In this respect it differs from the "family home" of the 1976 Act, which normally exists only during the continued residence of both spouses.

The definition of matrimonial home is of particular significance where the home is part of a commercial entity, say where it is a farmhouse or a flat over a shop. For these situations the scope of the definition has been widened to include any rights attached to the home and exercisable over other land and premises, such as a right of access to water, a right of way, a right to use a common stairway and so on. Any further rights of this kind that may be necessary when joint ownership is created are provided for in section 4 (5). Mobile homes are excluded from the definition of matrimonial home. This is because the technical provisions relating to ownership interests in land are not appropriate to structures not permanently attached to land such as mobile homes, vehicles, houseboats and so on. Separate provision for equal ownership of these homes is made in section 11.

Section 4 is the key provision of the Bill. It confers on both spouses a joint tenancy in the matrimonial home, whether they are living in it when the Act enters into force or whether the home comes into existence subsequently. This statutory joint tenancy will apply to all interests in matrimonial homes, except interests held by people in their capacity as trustees and by those who are mere licensees, as well as interests under temporary convenience lettings and lettings made for the duration of a person's employment. The reason for these exclusions are clear. The section applies whether the interests are legal or equitable, or freehold or leasehold. In particular, interests under a tenancy agreement, such as a lease for a fixed term or a weekly or monthly tenancy, are included. A matrimonial home in a dwelling held from a local authority under a weekly tenancy is as much a matrimonial home as one held in fee simple and is as much entitled to be treated as such in this legislation. I mentioned that one of the earlier proposals in this context was to convey the legal interest in a matrimonial home to both spouses. This proposal was not proceeded with on the basis of advice received as to the difficulties which could arise for a potential bona fide purchaser for value without notice and the difficulties it could cause for conveyancers. The interest to be vested in both spouses by the Bill is, therefore, an equitable interest, that is, the real, beneficial interest in the matrimonial home concerned.

If a spouse is the legal owner of the matrimonial home and named as such in the title deeds, the effect of section 4 will be to vest an equitable joint tenancy of the home in both spouses and leave only a bare legal estate vested in what I may call the owner spouse. That nominal interest will continue until such time as he or she takes steps to have both spouses registered as full co-owners under section 8 or until his or her executor or administrator conveys it to the surviving spouse under section 9 (5) or 10 (6). Of course, in very many cases — for example, where homes are subject to a mortgage — the legal owner of the home is the mortgagee, not the spouse, whose interest is an equitable interest until the mortgage is paid.

The example I have given is typical of the urban residential situation where the matrimonial home comprises a house and garden. There is immediate access to the public road and no question of, or need for, rights over other land or premises. It is a different story where the couple live on a farm or in a flat over a shop. In the case of a farm, the Bill will apply only to the farmhouse and to any garden and other land that is subsidiary or ancilliary to it, together with any existing rights that are attached to the farmhouse and exercisable over other land. When the statutory joint tenancy is created by this section it may be necessary to give additional rights over the farm if those further rights are needed for the beneficial use, occupation and enjoyment of the home. The situation I have in mind is where a farm is owned by one of the spouses before the Act comes into operation, either as sole owner or jointly or in common with another person. That spouse, as owner, has of course rights of access to the whole of the farm, but those rights are vested in the spouse personally and are not attached to the farmhouse itself.

It is necessary, then, to ensure that when the joint tenancy vests in both spouses under the section, the spouse who benefits from the operation of section 4 will not only continue to enjoy whatever rights and easements over other land may already be attached to the farmhouse, but also any other such rights over the farm as the spouse who was the owner had and which are essential for the beneficial use and enjoyment of the matrimonial home. This probably would not matter a great deal while the farm itself remains in the ownership, or shared ownership, of one of the spouses; but it could be of the greatest significance if the ownership of the farm were to change hands.

On the other hand, it is also necessary to preserve any existing rights that may be exercisable over the farmhouse portion in favour of other land. For example, the water supply for the farm may be located on land close to the farmhouse and which is part of the matrimonial home. Section 4 (6) makes provision for preserving these existing rights and conferring any additional rights needed for the use and enjoyment of the other land. What I have said about farms applies also to any premises which are used partly for business and partly for residential purposes. In these cases the matrimonial home will be the residential portion of the premises, together with any garden or other land usually occupied with it. Any existing rights of access to, say, a common stairway or entrance are being preserved under the section and any additional such rights over the premises as may be necessary for the use and enjoyment of the dwelling are being provided.

If any question should arise as to what land is or was comprised in a matrimonial home, or any question about the existence or extent of any rights or easements over other land, it will be determined by the court under section 18. I do not consider that the need for a court determination will arise frequently. It is most likely to arise either where the farm or business portion is being sold or where the spouse who originally owned the farm or business has died and the surviving spouse is succeeding only to the matrimonial home portion of the farm or business premises. The case where the farm proper, and not the farmhouse, is being sold seems to me to be more likely to occur where separation proceedings are in progress and property adjustment orders have been made by the court concerned. That case is already fully catered for under the Judicial Separation and Family Law Reform Act.

Where the question of segregating the matrimonial home from the farm arises on the death of a spouse, recourse to the court will be necessary only where agreement cannot be reached on delimiting the area of the home and the rights attached to it or exercisable over it. There should be no difficulty in pinpointing any existing rights. So far as any additional rights are concerned, the formula employed in section 4 (5) for establishing those rights gives clear enough guidance to the parties concerned. It defines the additional rights as those that "are necessary for the reasonable, beneficial use, occupation and enjoyment of the home" provided that, where the farm was owned by the deceased spouse and another person, those rights do not materially prejudice the use, development or amenity of the farm.

I should now like to mention the exclusions from the application of the joint ownership conferred by section 4. These are contained in sections 5, 6 and 7. I think the House will agree that spouses should be free to decide between themselves what the nature of the ownership of the matrimonial home should be. For example, the home may already be owned by them as joint tenants or as tenants in common in equal shares. There would be no point in applying a statutory joint tenancy to an existing joint tenancy and very little point in imposing it on a tenancy in common in equal shares. It is true that in the case of a tenancy in common the surviving spouse does not obtain full ownership on the death of the other spouse automatically whereas in the case of a joint tenancy the surviving spouse does. But it is nevertheless equal ownership and section 5 excludes both it and any existing joint tenancy from the scope of the Bill.

Section 7 is a further recognition of the principle that spouses should be free to regulate the ownership of the family home as they see fit. It enables them to contract out of the statutory joint tenancy at any time. For instance, spouses may contract our during the six months between the passing of the Act and its coming into operation, so that section 4 never applies to the home; or they may do so after the statutory joint tenancy ownership has come into being. Couples intending to marry may also contract out. The section also allows spouses to annul the contracting out agreement, in which case section 4 will apply and the home will vest or revest, as the case may be, in both spouses. The section requires that any contracting out agreement must be in writing. In addition, I shall specify in regulations the form of such an agreement and require that it must be in that form or in a form to the like effect.

The two categories of exclusions I have mentioned concern spouses who have agreed on the ownership of their matrimonial home. Section 6 is aimed at a sitution where joint ownership has been established by virtue of section 4 but where a court is satisfied that it would be unjust for the spouse who has benefited from the statutory joint tenancy to continue to do so. The section can only be invoked in the particular circumstances of the spouses concerned, with special reference to any unreasonable conduct of the spouse benefiting from the joint tenancy or to any unreasonable failure on that spouse's part to contribute to expenditure on the home or to any unjust enrichment of that spouse resulting from acquisition of the joint tenancy. An application to exclude the joint tenancy may be made by a spouse during the lifetime of both spouses or, where one of the spouses has died, by his or her legal personal representative or by or on behalf of one of the children.

I believe that it is necessary to have a provision of this kind to avoid any cases where, by reason of the conduct or relative financial situation of the spouse who benefits from the acquisition of the statutory joint tenancy, it would be manifestly unjust to the other spouse or, as the case may be, to the children of a deceased spouse, to allow the statutory joint tenancy to stand. An application to exclude section 4 cannot be granted lightly. The court is specifically precluded from granting it unless it has had regard to the circumstances of both spouses, but an overriding consideration is that the court must be satisfied that it would be unjust not to grant it. I do not believe that there will be many applications under this section but it is necessary to provide for those hopefully rare situations where it would be unjust to the other spouse and the rest of the family to allow the statutory joint tenancy to prevail.

Section 8 is the last of the sections relating to the vesting of the equal ownership in the matrimonial home. That vesting takes place by virtue of section 4 and no further action is necessary on the part of either spouse. The existence of the joint tenancy in a particular case can be evidenced by the fact that the couple concerned are living in the home and that they did not agree to contract out of the Act, but obviously there is everything to be said for formalising the joint ownership. Section 8 provides a procedure for enabling this to be done. If the home is registered in the Land Registry, both spouses can apply to be registered as owners. If it is not registered there, the spouse whose name is on the title deeds can make a declaration that the interest has vested in both spouses and have a certified copy registered in the Registry of Deeds. When registration has taken place in the Land Registry or the declaration has been made, any legal interest of that spouse — this would be a nominal interest — will also vest in both spouses jointly. Hopefully, most spouses will take steps to have the joint tenancy formally registered and I urge them to do so. By virtue of section 14 of the Family Home Protection Act no stamp duty, land registration fee or Registry of Deeds fee is payable on registration. If a spouse, on request, fails or refuses to proceed with registration of the joint tenancy, the other spouse can get a court order requiring him or her to comply with that request.

Before leaving the provisions dealing with the vesting of the joint ownership of what I may call conventional matrimonial homes, I should mention section 11, which provides for a similar vesting in relation to homes not permanently attached to the ground, such as mobile homes, caravans, houseboats, and so on. These home require somewhat different treatment as the legal principles relevant to interests in land are not applicable to them.

I now turn to a matter that has received most detailed consideration during the preparation of the Bill. I refer to the need to achieve a balance between, on the one hand, safeguarding the interest of a spouse who has acquired joint ownership in the matrimonial home under this Bill and, on the other, keeping any additional conveyancing requirements and expenses to a minimum and safeguarding bona fide purchasers for full value who are without notice of the existence of a matrimonial home. That necessary balance is sought to be achieved — and I believe has been achieved — by sections 9, 10 and 12. Section 9 spells out the circumstances in which a purchaser can get a good title to the joint tenancy interest in a matrimonial home in which both spouses are residing, that is, a title freed of the interest of the spouse in whose favour section 4 has operated. The purchaser can do so where the interest is conveyed by both spouses. Clearly in that case the interest of the benefiting spouse is fully protected. A good title will also be passed where the purchase is from only one of the spouses but in that situation the purchase has to be bona fide for full value and the purchaser has to be without notice of the fact that the home is a matrimonial home. In other words, that fact must not have emerged even after such inquiries and inspections as might reasonably have been made. There is one other situation where a purchaser will get a good title. That is where the original purchaser's title is defective — say because the purchase was not from both spouses or, perhaps, because full value was not given when buying from one of the spouses — but where a subsequent purchase is for full value and the subsequent purchaser, or his or her agent, does not have actual knowledge that the home is a matrimonial home.

The effect of these provisions is to oblige purchasers to be vigilant to ensure that the interests of the spouse in whose favour section 4 has operated are protected. Where one of the spouses has sold the home, the other spouse's rights against the purchase money are protected, even where the purchaser, or a subsequent purchaser, may have a good title. The relevant provisions are contained in subsection (4) of section 9 and in section 19. If the purchaser does not get a good title, the property in his or her hands will be subject to 50 per cent of the beneficial ownership attributable to the share of the spouse who has benefited under the Act. Of course purchasers will need to obtain the consent of the spouse who is not recorded as owner in the title deeds because the home is also a family home for the purposes of the Family Home Protection Act, 1976. Otherwise the transaction is void. Under the 1976 Act that spouse may also register in the Land Registry or Registry of Deeds a notice that he or she is married to the registered owner of the matrimonial home so that purchasers will have official notice of the existence of the marriage. In fact, the effect of the various provisions is that purchasers will have every incentive to insist on both spouses joining in the conveyance of the matrimonial home. That is as it should be.

Section 10 makes special provision for the disposal of a matrimonial home in which the couple have ceased to reside and where the joint ownership has not been formally registered in the Land Registry or the Registry of Deeds. The couple may be anxious to complete the sale quickly to finance the purchase of the new home or it may be that some years have passed since the couple have lived in the home and the fact that it was a matrimonial home may not be apparent to intending purchasers. To facilitate conveyancing, the section constitutes the "legal" owner as a trustee for sale of the home. By virtue of this provision, which is expressed in very technical language, the purchaser will have a title freed of the interest of the other spouse. The trustee spouse is of course accountable to the other spouse for that spouse's share of the proceeds of sale of the home.

The remaining provisions relating to the conveyancing aspects of the Bill are contained in section 12. That section confers a degree of certainty on the title of a purchaser of a matrimonial home from one of the spouses when six years have elapsed from the date of the conveyance, provided that the spouse in whose favour section 4 is not then in occupation. Even after the time limit has expired, that spouse retains his or her right of recourse against the purchase money. A somewhat analogous limitation period for the purposes of the Family Home Protection Act is provided in section 24.

A great deal of effort has gone into achieving a reasonable balance between safeguarding the interests of the spouses who benefit under the Bill and protecting the marketability of property. I believe that we have been successful but I have invited the conveyancing committee of the Law Society for its views on this aspect and I will give careful consideration to those views between now and Committee Stage.

These are the main provisions of the Bill. I do not think it necessary to comment on the remainder except to say that under section 15 joint ownership will extend to household chattels as well as to matrimonial homes and also to draw attention to the jurisdiction given by section 22 to the District Court in proceedings under this Bill. It is essential that the costs of any court actions under this Bill should not deprive spouses benefiting from access to the courts to protect their rights. The District Court is already dealing with difficult questions of family law, including child custody. As far as questions of title to property are concerned, district judges, who for the most part are solicitors, have spent their lives as practitioners dealing with such matters and should be fully competent to adjudicate on them.

This Bill is based on the view that marriage is a partnership which each spouse has an equal role and interest in promoting, enhancing and safeguarding. It gives statutory recognition to the contribution that each partner to a marriage can and does make towards the maintenance of the family unit. It is in accordance with the recommendations of the Commission on the Status of Women. While I know that the Bill is acceptable in principle, I am conscious it is breaking new ground and that, therefore, it will need detailed consideration on Committee Stage. I assure Deputies that I will be open to any suggestions they may make for its improvement either during the present debate or by way of amendment later.

I commend the Bill to the House.

Miss Flaherty

On behalf of Fine Gael I warmly welcome the Bill. We support it and we will be tabling amendments, as the Minister expected. We welcome and support this Bill because, at least, it will give the long promised, long awaited equal rights of ownership in the matrimonial home and effects to both spouses. It also allows for the opting out from these entitlements, following legal advice. It is a welcome measure for women in particular who make up the great majority of dependent spouses but will also be welcomed by the small but increasing number of house husbands. It builds on the limited protection previously afforded to dependent spouses by the Family Home Protection Act.

The Bill claims not to affect the existing power of the court to divide matrimonial property when granting a decree of judicial separation. This is an important issue and one on which I ask the Minister to reassure us when replying to Second Stage. The Minister must clarify whether it would have been desirable to put a clear statement in the Bill indicating that the powers now available to the courts, under that legislation, in the context of decisions on property at the time of the break up will not be radically altered by this provision.

The legislation is long overdue. One of the earliest written recommendations I can find is in the First Commission on the Status of Women in 1970. In 1983 the then Government announced its decision in principle to implement reforms along these lines. Regrettably, 20 years later the Second Commission on the Status of Women had to declare that the legislation was still on a waiting list and, therefore, I compliment the Minister for finally bringing it before the House. It is interesting to note that the Second Commission sees this as a first step in providing a suitable regime of marital property in order to eliminate inequality in the traditional marriage.

The proposals in this Bill are a major step towards altering the present system of separate properties which is the basis of most of our marital property law. The report on the Second Commission on the Status of Women referred to Paul O'Connor's Key Issues in Family Law. He stated that, “such change would be in no way inimical to marriage founded on the true equality of the spouses”. He points to a rather sad irony which occurs in the writings of many commentators on this issue and states that, “As it is, there is already compulsory sharing at death” but it is unfortunate that until now women had to wait for death before receiving a clear statement of their rights. I am sure we all agree that death should not be the only terminating issue that triggers the sharing of property and, thankfully, this legislation will improve that position.

Mr. Taylor

Even death did not mean equal sharing.

Miss Flaherty

At least it provided a right of some sort.

Laws on property and succession rights involve a blend of individual family and social values. Those are complex issues with which, the Minister correctly stated, we should deal in detail. I am glad the Minister indicated his willingness not to rush this Bill through the House because it deals with an important matter. I take it this Bill will be dealt with in Committee next week. There is talk of the Dáil meeting later this month to finalise Bills that have gone through Committee, but perhaps we could wait until the autumn to take Report Stage of this Bill so that all matters are teased out properly.

From time to time wide differences in policy have been recorded in society and the changes proposed today are part of that ever-changing social reality. Until the last century a woman's property, and indeed all marital property, was deemed to belong to her husband. Over the decades this gradually developed to allow for a regime of separate property, which was at the time a move towards a recognition of women's rights. It is now time for a new phase in that development which will allow women an automatic share in some matrimonial property. Some of us might regret that the Bill does not go further, but at least it is a step in the right direction,. The Second Commission on the Status of Women sought a full regime of community property in marriage and I am sure that matter will remain on the agenda.

In doing what we are doing today we, as legislators, are acting to remove some of the low self-esteem often felt by the wife and mother at home and the lack of appreciation for all she does. The report of the Second Commission on the Status of Women states that the wife working in the home is entitled to a share in the family home and the family income instead of being maintained as a dependant and as somebody whose esteem depends on the goodwill of the other spouse.

Fine Gael seeks assurances from the Minister that this Bill is fully constitutional, an issue which has been raised outside this House. While the fears raised may be groundless it is important that the Minister refers to that matter, because people are asking if the Minister considered adequately whether a constitutional amendment may be necessary arising from conflict in regard to the rights to private property afforded by our Constitution. Equally, very strong rights are conferred on families in our Constitution; and I presume that for once those rights, which have rarely given much sustenance to women, may on this occasion act to support families and balance rights in that regard. It is important that the Minister should refer to those concerns and, if they are valid, he should deal with the matter.

We need assurances that this Bill will not affect proceedings under the Judicial Separation and Family Law Reform Bill to allow for flexibility for the courts to make orders regarding property, given the serious failure in securing maintenance payments which is a constant feature of existing family law of which in his other capacity the Minister will be well aware. The fact that payment of maintenance is non-existent in most cases was the subject of a Combat Poverty Agency report. Therefore, the complex issues which arise on the breakdown of a marriage would probably not be met by a simple division of family assets. Similar views were expressed by the Second Commission on the Status of Women and the Joint Committee on Marriage Breakdown.

The 1985 report of the Oireachtas Joint Committee on Marriage Breakdown devoted considerable time to that issue. It stated that "a woman working in the home does not become entitled to any interest in the family home simply by reason of the work which she carried out therein as a wife looking after the home and the family". It further stated that "while the 1976 Act has introduced some element of protection, that protection is by no means complete." The report concluded "that the present system of dealing with matrimonial property is extremely unsatisfactory and effectively discriminates against women since in most marriages the wife is obliged to give up work outside the home". The Bill deals with one of the problems highlighted not just by the report of that committee but by all who studied this area, that the issue of contribution to property only becomes an issue in times of conflict. When both spouses are happy and all is going well they do not keep a record of who buys what. The Married Women's Status Act — the mechanism available to most women at present to prove their entitlements to any claims on property — provides that women must prove a financial contribution. That puts unrealistic pressures on people, leads to a most confused law and increasing bad feeling between spouses as they argue about who owns what. The clarity provided in this legislation in that regard is welcome. The report of the Joint Committee on Marriage Breakdown stated:

The present system of dealing with matrimonial property is extremely unsatisfactory. It decides spouses' interests in property on the basis of chance decisions made by them over the years, such as whether a House is put in the sole name of one partner or in joint names.

Those were crucial decisions which were not made with that in mind. The report continued:

At the time the parties may have placed no significance on these decisions and sometimes many years later the courts imply a conscious element of intention which simply did not exist at the time.

Friends of mine told me recently that, for the purposes of avoiding certain liabilities under the residential property tax, they decided to revert to single ownership status and have one home as a holiday home. In the absence of this legislation that could have serious consequences for them in the future. The joint committee report states also that in many cases the court is obliged to attempt to review many years of married life and try to imply what was or was not in the parties' minds many years before the court hearing. That involves the court comparing spouses' incomes over 20 years and reading their minds on occasions, which frequently leads to conflict and unsatisfactory outcomes.

It is important to realise that the joint committee noted that a number of High Court decisions decided that the Family Home Protection Act had no relevance in certain circumstances, but this Bill clarifies the rights of women. However, I would like the Minister to consider this in more detail. Does the Bill deal adequately with the rights of mortgage holders or financial institutions? Does it state how those rights will operate in practice and protect a dependent spouse from actions which would cause such concern?

The type of problems which existed for women were referred to in Deputy Shatter's latest edition of Family Law in the Republic of Ireland which underlines the problems arising from the means of assessing many of those issues. That publication stated that the law of ownership applied in the same manner to a married couple as to single people and that there was no special acceptance in law of the married position. Ownership is the main determinant by reference to the spouse who contributed the finance used to acquire property.

This emphasis on the origin of the financial contribution has meant that although a wife is legally as free as her husband to acquire property, the great majority of wives have no real economic independence by virtue of the fact that the majority still give up work for a period, some permanently, to run the home, to have children and to rear them. This Bill goes some way towards acknowledging the role of women in the home and giving them some automatic rights arising out of that.

When I first read section 21 I thought it pushed out the boundaries a little further. Section 21 treats a spouse who has made a substantial financial contribution to the improvement of real or personal property belonging to either or both as having acquired a share, or an enlarged share as the case may be, in that property to whatever extent may be agreed between them or may be determined by the court. Having discussed this with some experienced lawyers I have to ask does this mean a repeal of section 12 of the Married Women's Status Act, 1957, while not replacing it entirely? Section 12 of the Married Women's Status Act, 1957, does not simply refer to the improvement of real and personal property but also to any contribution to the acquisition of such property. If section 21 of this Bill replaces the other and is a narrower definition then rather than being an improvement it is a regression. I presume that was not the intention and that the Minister will look to amending that because it would be entirely unacceptable if one of the sections of a Bill that purports to strengthen the position of women were to be regressive.

There is extensive case law under the Married Women's Status Act which has acknowledged the great contribution made by women by virtue of their work in the home and in businesses. It is important to frame this very carefully. The Minister might have used this first opportunity to acknowledge the economic value of the work done in caring for children and minding the home to the spouse who goes out to work. All of the women in the Dáil know just how much it costs financially and every other way to replace ourselves at home, particularly if we have young children. This section might have been used to push the boat out a little further and give due recognition to the value of women's work in the home. The Bill must ensure the reforms which will give legal recognition of their contribution to the many women who have combined home with farm or other family business. This Bill addresses many of the issues that concern us and has our support. It forms one or two more steps on the road to valuing the position of women and men in the home.

Having made my general remarks there are a few points I want to make on individual sections. Although this Bill is important in its own right, the Minister has validly presented it as part of a package on the road to divorce legislation. However, the perception of many women has been that this perhaps is not the most crucial factor in the process towards divorce legislation because many women believed they were much more protected by the Family Home Protection Act than they actually were. It was not until they found themselves in court that they discovered how little protection it afforded them.

Another issue the Minister must resolve relates to how he intends to maintain and develop the debate in relation to issues that may not require legislation. I refer to the issue of pensions and other such issues that will require clarification. Does the Minister intend to publish a discussion document, have a report drawn up that would come before one of the committees, or issue a press release? How exactly does he intend to move on from this legislative stage and indicate his plans for other areas? When the last referendum was held this element was not as big an issue because people felt they had greater protection than they actually had and many felt that divorce would threaten that protection which they did not have but which this Bill will finally give them.

The Minister referred to the importance of ensuring the marketability of property. This touches on conveyancing as well as matrimonial property. I note that there is a substantial easing of the requirement on purchasers to ensure that the terms of the Family Home Protection Act are complied with. This is a section that needs to be watched carefully to ensure that we do not in any way weaken the protections that are there for dependent spouses. Section 9 provides for conveyancing by one of the spouses to be bona fide where the purchaser is without notice of the fact that the home is a matrimonial home after reasonable inquiries. Those changes should not be made without very careful consideration to ensure that we do not undermine the existing Family Home Protection Act.

Let me come to the thorny question of legal aid. All of this valuable legislation will be seriously undermined by the gross under-provision of legal aid. Each additional piece of legislation puts an additional burden on the legal aid service. I will not dwell on that because we pursued it at Question Time. However, if this Bill is to be of the best possible value to women they must be supported in pursuing their rights under it and have reasonably speedy access to legal aid. Reforms are awaited in that area and I know the Minister is giving it attention. It needs urgent attention and adequate resources.

I welcome the fact that the Minister has covered all kinds of property, including house boats, tenancies and a variety of interests. Sadly, mobile homes are a very common form of accommodation at the moment. The definition of goods and chattels is also welcome. It is very clear and seems to cover all areas.

I referred to the Commission on the Status of Women. They would go a great deal further than this Bill. It is worth putting on record just how much further they would go. The commission's report emphasised the importance of the role of women in the home and the need to value it and improve recognition of it. Our Constitution claims to do so but the economic and social reality is very different. The reality is that there is a lack of esteem, of economic recognition, of social recognition. Women do a good job today. Sometimes people try to pit the women who are at work, the women who are engaged in a profession, against the women in the home. Unfairly, the report of this commission was used in that way.

It is important that the first legislation arising out of implementing the recommendations of the second commission relate to women in the home and strengthens their position. This legislation is for all of us because those of us who have had to replace ourselves in the home have, perhaps, a greater awareness of the pure economic values, not to mention the great difficulty in achieving the other values in any other way than by being there oneself. It is important to make that point and celebrate that fact. The commission recommended the immediate introduction of a regime of community property in marriage and that there should be a regime of joint ownership of the family home. It also recommended joint entitlement to all income; a legal right share of one-half of the estate where the other spouse dies testate; no change where the other spouses dies intestate; a legal prohibition against alienation or charging of any lands etc; a legal right to information about income and assets; control and management of property to be based on title; no responsibility for pre-marital debts of the other spouse; a right to opt out, which is now provided for and no change to the existing law on division of property on marital breakdown. That is an indication of the future agenda and the Minister is being put on notice that the second tranche of the commission's recommendations shall be added.

The commission's study on women in the home considered the changing roles of women and men, the supports for women as a carer; a strategy to ensure independent status for women in the home to acknowledge their status as homemaker and address their perceived low status. The commission made a clear recommendation that all income from whatever source should be jointly owned by spouses and that the legal right share on testacy established under the Succession Act, 1965, should be increased from one-third to one-half. It is important to note that while this is a step forward many would like us to go a great deal further on the road.

I would like to make a number of other points but they are detailed ones relating to definitions. Section 6 raises the possibility of children making an application and it is questionable whether it is wise to allow children become directly involved in the matrimonial affairs of their parents. This development should be analysed further.

I welcome the Bill in principle and I look forward to having time to speak on it on Committee Stage. I hope the Minister will respond to some of the issues I raised and that he will assure Members that the Bill will not return to this House for Report and Final Stages before the end of the month. I hope it will be debated at length in Committee — to allow other bodies, who will be charged with implementing its provisions, to study it and to allow the Bill to be comprehensively studied by those who will benefit from it.

Ms O'Donnell

I wish to share my time with Deputy Harney.

Acting Chairman (Mr. Browne,

Carlow-Kilkenny): Is that agreed? Agreed.

Ms O'Donnell

On behalf of the Progressive Democrats I warmly welcome this Bill. As a woman, a feminist and a lawyer — though not a practitioner — I welcome this legislation which gives each spouse equal rights of ownership in the matrimonial home. It is an integral part, the softening up process and the preparation for the forthcoming referendum to remove the constitutional ban on divorce.

There are various issues by which one can measure the progress of womens' rights in Ireland. Any assessment of that progression throws up one major characteristic — that of slowness. History will show a pathetically genteel pace of change for Irish women in the long march to equality. As the Minister realises nothing happens by chance in this field and he has a whole swathe of legislation which needs to be introduced in the area of equality for women. This is evident in another field, that of public policy surrounding women's reproductive freedom. This was one of the original obstacles to female equality, it is possibly the final frontier in regard to equality and there is much unfinished business in that field.

The capacity of a woman, particularly a married woman, to own property is a fundamental chapter in the whole story of women. In the 19th century the common law position was that a married woman was regarded as subservient to her husband and he had proprietary rights over her. A married woman did not have any independent contractual capacity. The effects of this were numerous and comprehensive in so far as her property was concerned. The position included a wife's personal property which was owned by her husband apart from frippery and jewellery.

The first legislative change in this area was the introduction of the Married Woman's Property Act, 1882. The invidious doctrine of restraint upon anticipation remained and it imposed a restriction on the right of a married woman to deal or dispose of her property as she saw fit. This was not abolished until the enactment of the Married Women's Status Act, 1957. Under this Act a married woman was considered in law a full and legal person in her own right for the first time. The case law thereafter centred on the slow development of the concept of a trust implied by the law. The husband was held to be a trustee for the wife of a share in the house roughly corresponding with the proportion of the purchase money represented by the wife's total contibution to the purchase price or the mortgage repayments. The case law gradually evolved to infer a trust to include indirect contributions.

Recent controversial cases on the matter showed a reluctance and unwillingness on the part of the Judiciary to develop this concept further on the basis of a constitutional argument based on Article 41. The Judiciary firmly put it up to the Oireachtas to legislate clearly on the matter of giving the wife an interest in the family home during her husband's life. Mr. Justice Lardiner, in the case of J.F. v. B.F., identified this issue as one of political and social policy. Conflicting judicial decisions on the matter have created confusion and for that reason the Dáil is today exercising its proper function as the sole and exclusive body charged with making laws for the State in this area.

The Family Home Protection Act, 1976, protects the members of a family of a vindictive spouse from having their home sold by him or her over their heads. It was hastily enacted in July 1976 and because of this there might have been some slippage in the drafting. From a practitioner's point of view, having regard to how the law has evolved since, that Act left much to be desired. The case law has progressively complicated matters with problems centering around the burden of proving the consent of both spouses to the sale of the family home.

I welcome the tidying up which this Bill affords to the practical conveyancing difficulties. The Minister has accepted that a balance must be found between the overall rights we are seeking to espouse here as to equality and the marketability of that property. We may need a longer period to enter consultations with the Law Society to tease out these matters before this law is cast in stone.

I suspect when the 1976 Act was enacted many traditional conveyancers were thrown into a tailspin by the horror of the extra workload which the Act presented to them in their daily conveyancing work. However, that is reality and law is about adapting to changed public policies and, in this case, integrating property and conveyancing law with the changing structures of family life and social policy.

Section 7 allows a married couple or a couple contemplating marriage to opt out or exclude the application of section 4 to their matrimonial home or intended matrimonial home. This would seem reasonable but it may harbour some potential dangers.

I note the Minister may require such agreements to be in a specified form and this is a very important point. Any such waiver should be accompanied by a requirement for independent legal advice to both partners in relation to such an agreement, so as to guard against a potential for undue influence of one partner or the other. This raises the desirability generally that people contemplating marriage should visit their solicitor as well as their local parish priest.

I note also in section 10 that the Act makes provision for the situation where one or other of the spouses is or becomes a bankrupt, and this is to be welcomed in so far as it goes. I wish to raise a point with the Minister today in relation to a problem which arises when banks or lending institutions convert a judgment for a debt into a judgment mortgage on the family home. The banks can then move to sell the property and the wife, though entitled to a joint share, will still be placed in the perilous position of having her home sold from under her and her children by the banks, causing major distruption to her children and herself.

This terrible situation arises as a result of a husband using the family home as a business asset and offering it by way of collateral on a loan. If the public policy principle we are discussing today, and which we are enshrining into law, is to be strong and unambiguous, it is now time for banks and lending institutions generally to fundamentally review their lending practices to take account of the principle inherent in this law. Banks should not be so eager to accept the family home as collateral on a loan for the business interests of one partner by way of personal guarantee. This is especially so if, as is often the case, the wife may not be consulted or be aware of the real risks to her legal share in the family home, which would arise in a situation where a husband offers the family house as collateral for a loan in relation to his business interests.

A recent decision of Mrs. Justice Denham, as she then was before she was elevated to the Supreme Court, indicated a judicial discomfort with the injustice in this type of situation. In that case she ordered a long stay on the order for sale in the bank's favour so as to help alleviate the terrible disruption to the lives of the children in particular. It seems to me that the day should be fast approaching when it will be inappropriate on public policy grounds, and certainly politically incorect, for banks to accept the family home as collateral for the risky business ventures of one spouse.

The principle enshrined in this Act is a core principle of equality in marriage and it is to be warmly welcomed. The principle we are discussing today should further promote the concept of the community of assets within marriage and the community of property, as has already been outlined by Deputy Flaherty.

Economic dependence is a major contributor to inequality within marriage and has been identified generally as an obstacle to women achieving a sense of self-esteem and personal worth. As spokesperson for Health in the Progressive Democrats, I have had cause to examine some research in relation to depression among women, particularly married women. There is a high incidence of depression among married women. A strong tendency for depression, with all its related impact on women's health and on the proper functioning of families, is undeniably linked with economic dependency and a feeling of powerlessness among many married women.

The principle being cast into law today is of vital importance not only to women but to Irish society. As long ago as 1972 the first report of the Commission on the Status of Women stated:

The present law fails to take into account that marriage is a form of partnership in which the parties play interdependent roles and to which the different contributions of each are of equal importance to the family welfare.

Twenty one years later this House is implementing the spirit of that recommendation. If there was to be a patron saint of women, her name would be Patience.

Miss Harney

I wish to thank Deputy O'Donnell for sharing her time with me. As she said, the Progressive Democrats warmly support this legislation and will not oppose it on Second Stage. However, this legislation is extremely difficult and complicated to follow, even with the guidance of some legal friends who equally found it difficult legislation on which to advise. Therefore, I want to suggest to the Minister, as has been suggested already by Deputy Flaherty, that we should take time in processing this legislation through the Oireachtas. It is particularly important, given that this Bill is due to go to a committee of this House next week, that there would be a reasonable gap between next week's committee meeting and a subsequent meeting of that committee. Even practitioners in this field are finding it difficult to understand fully the implications of this legislation and to come forward with suggested amendments. As Deputy O'Donnell said, the 1976 Family Home Protection Act was a rushed Bill introduced in July 1976 coming up to the summer recess. I have read some of the debates on this Bill and there was a number of very good and enlightened contributions. I was impressed by some of the contributions because it was prior to my coming to this House. As Deputy O'Donnell said, there have been enormous difficulties since then with the operation of the Family Home Protection Act. That Act is restrictive and the courts have adopted a very rigid approach to its interpretation and to case law in that area.

I wish to say at the outset that it is regrettable that there are a number of different definitions between the two Acts. I realise the Minister made some effort to explain the reason for that, but we now have the family home, the matrimonial home and the former matrimonial home. That not only leads to confusion, but this legislation will lead also to an increased volume of litigation and will become a minefield for lawyers who will be required to go through an enormous number of procedures when involved in conveyancing matters. It will lead also to many disputes and much expense. I am not saying there is a way to introduce this legislation without it becoming a legal minefield, but the failure to clarify some of the terms and to have synonymous definitions rather then three separate definitions, futher complicates what is already a complicated area.

Deputies O'Donnell and Flaherty dealt very well with the history of women's rights in this country in so far as property is concerned. I personally believe that our Constitution is an insult to women. The provisions in our Constitution represent very much the ethos, the thinking and the role of women in the thirties. Fortunately, that role has long since changed in everything but the law and the Constitution. I look forward to the day when we can have a Constitution of which the women of Ireland can feel proud and which women will feel gives them a role other than that of housewives or mothers. Women are not referred to in the Constitution other than in the context of a woman's life within the home and in the context of the pro-life amendment regarding the rights of the unborn child. Those are the only two cases in which there is any recognition that women exist as persons in this country. Since the Constitution is the fundamental document upon which all our laws and rights are based, it is important that that Constitution, in so far as it relates to women, is amended as quickly as possible.

I wish to raise also a query with the Minister in relation to the Interpretation Act. I raised this matter during Question Time in the House yesterday. At the time I had not examined the Bill before us to see whether it also was sexist. It is sexist. There are many references to "his" throughout this Bill and I regret that coming from a Minister who I hope will bring in much reform, particularly as far as women are concerned, and family law reform generally. It is particularly important that we use language in our legislation that is gender neutral. That is a recommendation not just of the Commission on the Status of Women, but many people also feel it is most regrettable that our legislation is sexist in the way it refers to people and particularly in the way it refers to Ministers. It is always assumed that the Minister is a male. I must say in this Bill that is not the case in relation to the Minister. It simply says "The Minister may" or "The Minister may not". It does not refer to the Minister as "he" and I welcome that. However, I would prefer to delete the references to "his" that appear in this legislation and I will be putting forward amendments in this regard on Committee Stage.

I wish to raise a number of matters with the Minister brought to my attention by lawyers experienced in conveyancing. It is regrettable that legislation such as this was not enacted prior to the holding of the constitutional referendum in 1986. The lack of such legislation was one of the reasons for its defeat. There is a view — which I do not share — that the next referendum on divorce will be automatically passed. I will campaign to ensure the referendum is passed because I am committed to the principle of divorce based on irretrievable breakdown of marriage. In any civilised democratic society, to deny people the right to a second chance of marriage and to legally dissolve a marriage that has ended is inhumane and wrong.

I have strong reservations about the success of the forthcoming referendum. Therefore, it is important not only that this legislation is passed before the referendum but that there is a reasonable time period between its passing and the holding of the referendum. It is also important that the referendum is not held in conjunction with another electoral contest. For example, if the referendum is held in conjunction with European elections or elections to sub-county structures such as urban district councils and so on, politicians will concentrate on those elections because that is where their interests lie. The attention and resources of political parties would go almost exclusively to these elections, as happened in November last year when the abortion issue received very little attention from the media or political parties by way of commentary or resources. I was very happy with the outcome of that referendum. If the divorce referendum is to succeed a very thorough campaign will be required on the part of all parties committed to it. I would like to see cross-party consensus on holding a referendum and allowing for divorce, with a single campaign by Government and Opposition.

To ensure a successful outcome to the divorce referendum we must not only pass this legislation, we must also provide for issues such as protection orders and division of property and income. There should also be a proper information and awareness campaign by parties. Nobody should seek to play politics with this matter because it is much too important. We should concentrate exclusively on the divorce issue even if it means deferring it until the autumn of next year. It is very important that the referendum is carried whether it be held in June, October or November. If the referendum fails it will be perhaps eight or ten years before another such referendum is held. Although the opinion polls are favourable, as was the case on the last occasion, when it comes to dealing with issues such as these, with all the repercussions for property and families as well as the uncertainties and fears, we cannot be sure the referendum will be passed. This will be the last chance for those who campaigned against such issues as homosexuality and condoms and they will put every effort into their campaign for no change. I know they are already well organised and prepared for it.

I wish to raise a number of queries on the Bill. I welcome the concept of joint ownership of the family home. It is appropriate that both spouses should equally own the home. Since the 1976 Act was passed many women believed that such a law was in existence — I was surprised at the number of intelligent women who thought this was so. There is confusion about the protection under the 1976 Act and the right to ownership of the property, and I welcome the provisions in the Bill in this regard. When introducing laws there are always areas of unfairness and injustice. For example, in a marriage that lasts for only six or eight months, despite the contract out option, it could be argued that it is unfair to the partner who may have owned the property in advance of the marriage to have it divided when the marriage breaks up. There may be hard cases, but hard cases do not make the law and we cannot legislate on that basis. However, I would welcome a provision whereby in certain circumstances such as I mentioned the court would have discretion.

I welcome the contract out provisions in section 7. I agree with Deputy O'Donnell that those provisions should apply only when legal advice has been taken. Most people getting married are happy and full of enthusiasm. They do not comtemplate problems arising. They would not even consider a contract out option because they believe the marriage will last forever. Contract out provisions need to be carefully explored and should only be availed of on the advice of a lawyer. Otherwise a clever person may advise a spouse that because business complications may arise they should avail of the contract out option and the person readily agrees without considering the matter. I know the Minister may make regulations in this regard, but regulations should require that legal advice is taken. There is an inconsistency in that contract out provisions are included in this legislation but not in the Family Home Protection Act.

Section 18 does not give the court sufficient power to use its discretion in defining a family home. As I understand from lawyers who practise in this area; once the family home, always the family home. We are talking about disputes, and courts should be given discretion to make decisions in these matters. Many problems will arise in relation to farms. There is a reference in the Bill to the farm and the garden but there is no mention of a courtyard which may be part of a house but could be used for farming activities. Will the vegetable garden be part of the farm or the house? Lawyers will have a field day with this provision. I understand that under the landlord and tenant legislation one acre is referred to — I am not sure whether that is a requirement or a custom. Depending on the size of the farm, one acre may be liberal or conservative. One acre of a 20 acre farm is a lot of land but in a farm of over 100 acres it is very little. We need to be very careful when dealing with provisions relating to farms because a farm is not just a place where one resides, it is also a business. If a farmer dies, his wife automatically becomes the owner of the house and his son inherits the land, how will the deceased's representative, when registering the land under the name of the son, decide what is part of the house and what is part of the farm? In regard to capital acquisitions tax what guidelines will apply? There are many difficulties in this area that must be teased out.

Section 21 appears to give the spouse an enlarged share of property where she contributes to improvement of the property. However, if she contributes to the purchase of the property she has no rights. If that is the case, it is obviously a mistake.

In relation to section 6 are the contents of the explanatory memorandum and what it purports to represent similar to the provisions of the Bill? In circumstances where a husband and wife are divorced, the husband remarries and has a second family, on his death the children of the first marriage would have no property rights and any rights to the property will be conferred on the children of the second marriage. Perhaps the Minister will clarify that.

A number of constituents have experienced difficulties in relation to consent, and getting consent. A constituent whose marriage broke up in the seventies and whose family home had been repossessed because of debts became a local authority tenant when her husband went to the US. She saw him only once since. Her mother died and left her a sum of money with which she bought the local authority house. She now wishes to sell it but despite the fact that her husband has never been in the house she has to go to court to get his consent to sell it.

Mr. Taylor

The Bill will not apply to that situation.

Miss Harney

This Bill should have amended the Family Home Protection Act that requires consent before the property can be disposed of. This loophole is a huge mistake where a person has never resided in the property and it was never the matrimonial home. If a court makes an order in a marriage dispute under any legislation giving the house to one spouse, for instance a wife, if she wishes to sell it she must still get the consent of her spouse under the Family Home Protection Act. Even where there is an agreement between spouses she must still get his consent. These loopholes should be closed and we should use this Bill to do so. These provisions are a nightmare for lawyers and they lead to expense and confusion. When my constituent heard that she must get her husband's consent she was furious. She had been left penniless and now had to ask her husband's consent to go to the court to have his consent dispensed with. Section 24 gives an amnesty of sorts. After six years the conveyance cannot be declared void, if the consent is not given. We need to do more than that and perhaps six years is too long.

I have a number of other queries which I will probably pass on to the Minister's advisers because it will make it easier for me to formulate amendments if my queries are clarified. These inquiries have not originated from any great ingenuity on my part but rather from a number of lawyers with whom I spoke this morning. I understand that yesterday the Minister's advisers met a group from the Incorporated Law Society who put many of these points to him. I know the Minister is a reasonable person and is prepared to take amendments on board. It is very important to have fair legislation giving women, wives in particular, just treatment. Farm wives particularly will benefit from this legislation. Many women in rural communities do not have any protection and this will give them some protection. I am delighted that they will get some property rights to which they are entitled. If the legislation is to be effective we should go through it slowly and get an outside view from law practitioners who often see things that the rest of us do not see on the basis of their many years of experience.

Ms McManus

This is the first time in my life that I regret not being a solicitor. I found this Bill hard to take in but I, too, hope we will have the time to tease out all aspects of it. I know the essential features of the Bill but there is a great deal of technical material which is hard to grasp. The question of language should be sorted out fairly quickly. It would be most inappropriate if this Bill showed a gender bias. We in Democratic Left welcome the Bill which deals with an aspect of inequality which is very offensive and which has damaged women. Marriage is often presented as a romantic occasion with orange blossom and white lace, but essentially it is about property. This Bill is addressing the inequality inherent in the marriage contract. Marriage is essentially an institution that ensures that property is kept within families and passed on from one generation to the next.

In the past women have been discriminated against consistently in our marriage laws. The legacy of that discrimination is still very evident where a woman wants to separate from her husband. The first question is, "Will I lose the children?" and the second is, "Will I lose the house?". Other Deputies have said that many women believed they already had this right but my experience is that many women do not believe that they have any right and they are terrified to put this to the test. We must ensure that women are aware that this Bill has given them an essential right.

Mr. Taylor

That is just it. They have not had it until now.

Ms McManus

That is right. Women have been able to get some share in the family home through the courts, but it has not been established as a fundamental right. This Bill is catching up with changing attitudes. We must establish full equality of ownership of the matrimonial home and its chattels.

The Second Commission on the Status of Women makes much more sweeping recommendations than this. It recommends joint ownership of the family home, joint entitlement to all income, a legal right to share one-half of the estate where the other spouse dies testate and no change where the other spouse dies intestate, a legal prohibition against alienation or charging of any lands, premises, business enterprises, assets, savings or investments without the consent of the other spouse above a given discretionary limit. They recommend that there should be a provision for the court to dispense with this consent, and make recommendations with regard to a legal right to information about income and assets, control and management of property to be based on title, and no responsibility for pre-marital debt.

It is a much larger brief than simply dealing with the matrimonial home. It would be more direct and fairer to say that if one gets married one shares the property in common and if one is no longer married the property should be dealt with in a fair way. If the Minister is to live up to the commission report, and the Taoiseach has quite clearly stated that the Government supports the commission report, there will be a lot more in the pipeline. It will be interesting to see how far the legislation can go in the future.

It all comes back to a very simple question. If a spouse is entitled to half the matrimonial home, what are his or her entitlements to the rest of the property held by the other spouse? If a man can only go out to work because his wife stays at home and looks after the house and children, what rights does she have over part of his income? That is not tackled here and I do not expect it to be, but it is a good question because if we have rights to the matrimonial home as wives, surely we must look at our rights to all the property of the marriage. The work done in the home is acknowledged in the Constitution where the social function of women is stated as follows:

...by her life within the home, women gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

In terms of putting a monetary value on all that wonderful work the Constitution has totally failed to protect women. The second commission recommends that Article 41.2.2º should be deleted. I would like to see that coupled with the divorce referendum. It is ironic that the Constitution has not given women the rights implicit in that Article. Not only does the Article fail to protect women in the home but it has been taken to mean that the home is where women should stay.

The Judicial Separation and Family Law Reform Act enabled the courts to divide any family property between spouses and children but there was not an automatic share of the matrimonial home as in this Bill. That is surely its most significant feature. It is the principle, the idea of equality and an equal share between husband and wife which is important.

The first document ever produced by the women's liberation movement in the seventies makes interesting reading. People feel that we move at a snail's pace but it should be remembered — I remember the period well — that in the early seventies women were subjected to inequities. It is incredible, but a wife was considered to be the chattel of her husband and, regardless of where she resided, her domicile was considered to be that of her husband. We were remarkably bigoted in terms of the rules that were applied. A wife had to get the permission of her husband before she could pledge credit or make any private financial arrangements. Indeed, a man could desert his wife for as long as he liked, come back and walk into the house. However, if a wife left the family home she forfeited rights.

Property means power as well as security. It has given men power over the centuries and we are still living with the consequences, even if it is now waning and diminishing. It has inculcated a culture which has led to the marriage contract being distorted. In the past — I hope not so much now — one came across many cases where if the man treated people in the way he treated his wife, he would have been put in jail; but somehow or other this was tolerated in the case of his wife because that was what men did to women. A good example is the Kilkenny case, as it shows just how horrific the position can become for women and children, but it is not the only one.

I have advised women who wish to escape violent partners. Usually, they are not sure what their rights are and are afraid to go to court to put them to the test. When this Bill is passed I will be able to say that they will own half the house. This can be used to end the subterranean war which took place and is still being waged in some homes today.

This Bill has been slow in coming. People have had to be patient and plod through the quagmire of legal test cases. Indeed, legislation was first promised ten years ago. In the meantime life has changed. The minority are now living in the traditional family unit of the two parents and a couple of children. The family unit today is different to the traditional model. While spouses will be given certain rights, the complexities of modern family life have not been grappled with in the Bill. I am not underestimating the difficulties that will be encountered in cases where there is no legal contract. For example, if divorce is introduced an unmarried couple may choose not to marry. If they have a longstanding commitment to each other, surely each deserves a certain amount of protection and the fact that they are unmarried should not undermine their right to equal ownership. We have all come across cases where a person nurses or cares for an elderly relative and lived with them for 25 years, but the house was then left to somebody else. I am raising these examples to show that there is a fundamental principle that should be applied as widely as possible.

There is one point that should be made, and I intend to table an amendment on Committee Stage to cover it. If an elderly parent is a tenant or tenant purchaser of a local authority house and a son or daughter moves in, normally they take out joint tenancy. When the parent dies the son takes out joint tenancy with his wife. However, if the mother is the joint tenant her share is frozen and she has the right to pass this on to whoever she likes. I do not expect an answer from the Minister now, but I suspect that in cases where a mother and son take out joint tenancy in a local authority house the son could run into difficulties on the death of his mother in that her share is not automatically transferred to him.

Mr. Taylor

Is the Deputy dealing with a case where there is just one parent?

Ms McManus

Yes.

Mr. Taylor

For example, a widow and a son?

Ms McManus

It can happen where a parent is living in a council house and the junior members want to move in and take it over as time goes on.

Miss Harney

What about the farming community?

Ms McManus

There are many farmers in County Wicklow and, as far as I am concerned, that is the issue on which the last divorce referendum was defeated.

On the question of succession, a spouse ends up with either one third or one half of the estate. I presume that if one owns 50 per cent of the house this is taken out of the estate before it is divided.

Mr. Taylor

Correct.

Ms McManus

That is important——

Mr. Taylor

Provided there is joint ownership.

Ms McManus

If a person is a tenant in common and this Bill presumably does not apply they will lose out. The Minister said that people should register ownership. I agree with him, but I have met widows on low incomes particularly in rural areas, whose husbands died without making a will and they did not take out probate on the will first because they were terrified and, second, because they did not have the money to do so.

Mrs. O'Rourke

It is too expensive.

Mr. Taylor

It goes on for generations.

Ms McManus

Does the Minister want to come over to this side of the House?

Acting Chairman

I am sure the Ceann Comhairle would allow a Committee Stage debate if he was here, but as he is not perhaps the Deputy should return to Second Stage.

Mr. Taylor

I am just trying to be helpful.

Ms McManus

This is an important point. Even where a person has the right, this does not necessarily mean that it has been formalised. In the case I have mentioned the widow in question would not be able to take out a loan. For instance, if she is living in a ramshackle house which has no bath she will not be able to take out a loan to do it up unless she has taken out probate on her husband's will. Technically, women can transact this business themselves, but most people are terrified to do so. I agree with the Minister when he says that the procedure should be simplified; it should be possible to introduce legal procedures whereby people will not need to employ a solicitor. If that is the case, this needs to be spelt out; we have to inform and educate people. If people do not sort this matter out they could find themselves in a mess later.

Why are holiday homes excluded? I am aware that mobile homes and house boats are mentioned, but I take this to mean the primary matrimonial home. Nowadays a large number of people own a holiday home and a house in town.

Are they regarded as two matrimonial homes? I suspect that is not the case. If this is the way people live today we should recognise it and include a relevant provision in the Bill.

I am somewhat concerned about this matter. I know that the courts have the overriding power at the end of the day to overrule a joint vesting arrangement. The Bill provides that an application for such an order may be refused if it would be injurious to grant that application. I should like to know the circumstances which would render it just to exclude a spouse from ownership. There is a danger of value judgments being made. The Minister has great confidence in the capabilities of district justices but it is not unknown for them to make bizarre decisions. I came across an extraordinary case some time ago where a woman who sought a barring order in court had the barring order issued against her. She appealed the decision and won, but it had taken her six months to gain access to her home. This was outrageous as the woman in that case was barred from her home on a flimsy excuse.

What will happen in a case which involves cruelty, desertion or adultery? There are many reasons this right could be waived. I know I am being facetious but another reason could be over-spending on a credit card. What are the determinants and criteria under which this right could be waived? The Minister should set down specific guidelines covering this matter because the decision to waive this right could end by reflecting prejudices which exist in the system and which are part of our lives. We should not pretend we can change the way people think simply by changing the law.

The opt-out provision in section 7 has caused a certain amount of unease. Under this section the Minister may make regulations as to the form of agreement. If it is accepted that the opt-out clause remains then the Minister must make regulations at the same time as the passing of the Act and the form and content must be clear. We need to know how valid the agreement will be if independent legal advice is not obtained. Many people never get legal advice about documents they sign. What will happen in circumstances in which a spouse makes financial contributions to the property and the couple decide to separate years later? This may be covered in the Bill but I cannot find any reference to it. If a woman has made either direct or indirect contributions and then decides to opt out, will she be deemed to have made a gift to her husband? After all, there will be an agreement in writing. Does she have a beneficial interest in the property based on her contributions?

It is hard to understand why there should be an opt-out clause given that pressure can be exerted on a woman, particularly during the early days of a courtship, to make a contribution to the property. We have all heard about farmers who give their wives a right to residence for life on the family farm. If a woman decides to opt out, what real protection will she have so that she will not be left in a very vulnerable position? The only circumstances in which this clause will be advantageous is where a person is self-employed, for example, the husband may put the matrimonial home in his wife's name to ensure that it cannot be seized by creditors. It must be agreed that there is no reason self-employed people should be treated differently from anyone else. If a person who is not self-employed loses his job his creditors can register a judgment mortgage against the family home and/or the building society can repossess it. It may well be that a statute without an opt-out clause could run into difficulties on a constitutional basis. If that is the reason for this clause, the Minister should say so.

I am unclear about the provisions in section 5 which simply state that the household chattels belong to both spouses. The explanatory memorandum describes the word "chattels" in some detail, for example, furniture, bedding, linen, etc. There is a scene in every Hollywood film involving divorce where the couple gather in the house and start sharing out the household belongings. It is right that these belongings should be included in the Bill. However, I am worried about the definition of the word "chattels" which I do not believe is adequate to cover the multifarious products available in our consumer-based society. What about modern technology? For example, the husband may have bought a computer worth £5,000 which he used once a week to add up the business accounts. During the rest of the week the wife may have used the computer to write a novel. She may only have sold 2,000 copies of the novel, which did not even cover her costs——

Miss Harney

That happens only in the McManus household.

Ms McManus

I sold more than 2,000 copies. The children may have used this computer for three hours every night to do their homework projects. Who owns that computer? Is it a chattel?

Will a car be regarded as a chattel? In all pop cultures a car is regarded as a natural extension of the home. If the wife contributed towards the purchase of the family car but is not the owner for whatever reason — she may only be a named driver — does she not have a 50 per cent share in that car? Some years ago I visited a woman who lives on her own and whose house was being inspected by the Department for a home improvement grant. Her house was valued at £11,000 and she was concerned about whether she would get a grant. The inspector told her that his car was worth more than her house and that she need not worry.

We should not underestimate the value of property related to the household but not necessarily included in the Bill. I do not know — this is where I show my ignorance — if the explanatory memorandum is part of the Bill. I presume it is not——

Mr. Taylor

It is not.

Ms McManus

If it is not, how will these items be defined in the Bill? We can deal with these issues in greater detail on Committee Stage. It would be fairer and simpler to legislate that all property should be shared in common ownership when a couple marry, rather than picking our way through the bits and pieces of a shattered marriage, the way they do in Hollywood.

This is a good Bill. It deals with one aspect of the marriage relationship. It is of particular significance to relationships which break down. It will right a wrong which has been done to generations of Irish women. This wrong maintained that a woman's place was in the home but the home was not a woman's place — it belonged to her husband, not to her. Legislation and changes in legal practices have chipped away at that injustice and this Bill will eliminate it once and for all. For that reason I welcome the Bill. Many other reforms need to be put in place to ensure that people will eventually be able to live as married people on an equal basis and, if they choose, be able to extricate themselves from that marriage in a dignified way and with a modicum of humanity.

At the end of the day the courts still hold the power to alter the provisions of this Bill in particular circumstances. I hope this will not mean that test case after test case will be brought before the courts which will undermine the essential principle of the Bill. The day when a woman was regarded as a chattel is well and truly over; the woman's ownership of chattels is now the subject of debate. However, this Bill is also about much more. It is about the waning power of one sex over another and the emergence of an equality which is only catching up with the modern world.

I believe we learned lessons from the last divorce referendum. Fears about property were one of the main reasons for the defeat of the referendum. We must deal with that aspect of marriage, that it is about property and procreation. It is but it has also to do with the protection of rights and partnership. While I certainly support this Bill I will be tabling amendments to it on Committee Stage. Essentially this Bill deals with the rights of the two spouses. In a marriage where only the two spouses are involved, I think divorce should be very easy. If there are no children it should be very simple to deal with the legal contract, the property should be divided and everyone should go his or her own way. However, in marriages where there are children I believe there should be some legal contract between the children and their parents. I do not know how that could be done, if it is done elsewhere, but it certainly makes sense to me to have a formalised arrangement whereby children have certain rights, regardless of how the spouses relate to one another. The rights of children in relation to their parents should be enshrined in law. I know that is a question for another day and it certainly has implications for property. I welcome this Bill. It is one step, probably one of the less contentious steps in the many we will take.

Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)

I wish to share my time with Deputy Dermot Ahern.

An Leas-Ceann Comhairle

Is that agreed? Agreed.

Mrs. O'Rourke

I welcome this Bill and I am glad to have the opportunity to speak on it. Because I knew this Bill would be debated I have been reading the discussions in the newspapers in the run-up to it. Indeed, the speech of the Minister for Equality and Law Reform, Deputy Taylor, brought to mind, as matters like this always do, the past. In 1972 the then Commissioner for the Status of Women recommended that this proposal should be introduced in their proposals on homes. I was elected to the local authority in 1974 and the first motion I had on the agenda was that the council should give joint tenancies to their council tenants. In fact, I checked the minute book of the proceedings to confirm that it was my first motion. At that time there was absolute consternation about my proposal and the follwing Sunday a clergyman spoke from the altar in Athlone and said that no longer would there be peaceful lives in Athlone——

Mr. Bradford

How right he was.

Mrs. O'Rourke

——that there had come on the council a harridan who was proposing joint tenancies. I do not jest, I am telling the truth. How far we have come in 19 years. The modest proposal of joint tenancy was given effect to later. Deputy Taylor clearly says that the ongoing measures will clearly have a cumulative effect. Again we are debating another modest proposal — I agree with the previous Deputy's comments in that regard — but a very important one for the rights of women. I do not consider it to be a prelude to something else — I note the Minister was careful to make this point but when one reads about it it is presented as a prelude to something else. I believe this Bill gives expression to what is a woman's due in recognition for her work in the partnership. Marriage is a partnership and not a hierarchical structure but unfortunately the latter regime has obtained in many homes.

This is a modest proposal but I wonder if, in fact, the Minister has gone far enough. We all know the difficulties attaching to property and the passions and emotions it arouses in households. Let us say a man and a woman are involved in running a business. Often if the man is the upfront person in the business he is only able to do so because of the work the woman has done in the home and with the family and minding that end of the partnership. I wonder if the Minister will be bolder as the debate goes on and look at that issue. I know the legal aspects have been very well addressed by the previous speakers so I will address the issues of women's confidence in themselves as people and as full partners in a relationship.

When people get married they start off with stars in their eyes and high hopes in their hearts. Indeed, there would not be a marriage if there was not that sense of idealism and many marriages would not survive if people were not starry eyed at times and retained a sense of idealism about marriage. I now strongly believe that the marriage age at present is too low. The commission recommended strongly that the marriage age be raised to 18 years. I did not think so at one time but the more experience I have of life the more I am in agreement that the legal age of marriage should be set at 18 years. Young people are rushing into marriage with starry eyes, high hopes and good intentions but with no factual idea of the contract they are entering. They have no idea of the realities of life; they have very little interest in parenting, in budgeting, communications, in sexual relationships and how to deal with one another when conflict arises. One is a child at 16 and 18 is still very young and I strongly urge that the Oireachtas look carefully at the marriage age.

I will now deal with the system of education. I speak with some knowledge in this area and I feel entitled to put forward my views on it. Throughout our time at school there is not enough emphasis on the matters of which I speak: making up your own mind about matters, communications between people, proper appreciation of sexuality and what the contract of marriage entails. These issues are not on any school curriculum. There is still a huge rumpus when one talks about sexual education and education for relationships. Indeed, there is still opposition to the stay safe sex programme for primary schools which I introduced. There will always be opposition to what I consider to be normal everyday topics that young people in schools should have discussed. Our young people should have the opportunity to talk through—matters with responsible people in order to complement the information they get in their homes on these matters. Sometimes through no fault of the parents this is not able to be done at home. These issues should be addressed in a programme of confidence-building in women, of which this Bill forms a very important part. Women will feel recognised for the role they play in their home. For that reason alone I welcome this Bill. I do not want to see it coupled with another matter, with which I am in agreement, as this Bill stands on its own merits and is not just a prelude to another Bill on which the people will have a say.

Mr. D. Ahern

I thank my colleague, the Minister of State at the Department of Enterprise and Employment, Deputy O'Rourke, for giving me this opportunity to speak. I listened very attentively to the contributions of the previous speakers and it is somewhat intimidating to be the first male, apart from the Minister, to speak on this Bill. The six speakers before me were female and I am glad to see that some of my male colleagues have come in to back me up.

Mrs. O'Rourke

Do not be too abashed.

Ms O'Donnell

The 20 female Deputies have to spread themselves around.

Mr. D. Ahern

I would not want anyone to think that the female representation in this House have the monopoly on matters matrimonial.

Mrs. O'Rourke

We want to have it in the home though.

Mr. D. Ahern

I welcome this legislation very much. When introducing it the Minister said it was high time it came on stream. In my legal practice I have always encouraged couples at every opportunity to put property into joint names if they can, and this Bill in these enlightened times puts on a formal basis the encouragement people have had down the years. In my legal practice also I encouraged separated wives to continue to make mortgage repayments when the husband had flown the nest to ensure they would have some equity in the dwelling house that perhaps was not in their name but in the name of the defaulting spouse.

When I was going through college the one legal hero, much maligned in these days, was Lord Denning. He was light years ahead of his time in that he was the first person to introduce the concept of constructive trust which basically gave people, mainly females, the right to have an equity in a dwelling house or property on the basis of the contribution, not necessarily financial, they had made in the partnership. As I said Lord Denning was light years ahead of his time and it is only now that we are on a statutory basis catching up with that concept.

Mr. Taylor

I think he was overruled bit by bit.

Mr. D. Ahern

He was. I agree with the Minister. Even our Supreme Court in their wisdom had an overly conservative view of the involvement of mainly wives in the home and the contribution, not even financial, they had made towards the building up of that home. Most right thinking people acknowledge the fact — I do not want to overstate it — that spouses, mainly female spouses, down the years have not been given enough recognition for the work they have put into building the home.

The Minister mentioned the divorce referendum, and I would like to echo the views expressed by my colleague beside me, Deputy O'Rourke. Some people see the divorce referendum as being the panacea for all ills. I wonder whether it will not be the female of the union who will suffer more if divorce is introduced here. I just pose that question. It is another day's work, but particularly females caught up in a divorce situation should think about it, because the responsibility will most likely fall mainly upon them in relation to children and perhaps they would not win in a divorce situation.

To return to the Bill, other speakers mentioned the Family Home Protection Act. That was good legislation in the way it was framed, but it was in effect a stop gap, a first effort at giving a spouse some interest in a house. In effect it gave spouses no interest at all, but at least it gave them the right to object to the mortgaging or sale of the house. It was badly drafted legislation and I agree with some speakers here who have said we should take our time on this.

To refer again to Lord Denning, the difficulty is that while previous Governments wanted to bring this legislation forward earlier, because of our Constitution and the Articles in relation to private property the drafters were reluctant to put it forward. I still fear there may well be some constitutional difficulties inherent in it when it is passed. I pose a question to the Minister and when replying he can correct me if I am wrong. I think this is the first time in the history of legislation in our State that we are giving the District Court the right to meddle in what are called property rights. Maybe that is a good thing in that it will to some extent reduce the costs of any disputes that arise.

Perhaps I will surprise some of my friends in here. I wonder if this legislation is going far enough in defining the family or matrimonial home. I have heard most of the speakers so far, but I do not know if any one of them adverted to the fact that there are numerous common law relationships which will not be covered in this Bill. We have previous examples of legislation put through this House which unfortunately have not taken into account the fact — and it is a fact of life — that there are people living as man and wife with children. The barring order legislation is very pertinent here. A barring order cannot be imposed in the case of a common law union. Similarly the Family Home Protection Act does not apply in that case either and neither will the measure we are debating. I accept that it could have very significant implications for our social legislation, but as a compassionate race we should look at it. We have to accept that there are many unions which do not get the protection of legislation put through this House.

The other general point I would like to make is that the measure is restricted only to the house and the garden around the house. Most couples, and mainly wives, have put in years of effort and coming together in a marriage and they find they are getting the right only to the dwelling house and nothing else. Wives who have put in endless hours of work in the family and in their home are not getting any right under this legislation to any other property that may be owned by the husband or the unit. Perhaps that will lead to injustice. There are injustices already where the matrimonial home is already in the joint names, but other property owned mainly by the husband is not. Many wives whom I have dealt with do not even know what property the husband owns. If there was a break up it would be impossible to find out what property the husband had because of the various intricacies of legislation and the way in which property can be put into different peoples' names. That could be examined. I am not saying the wife should be given an absolute entitlement to the extra land — when I say "wife" I mean the other spouse — as in the home she is given an absolute entitlement. But there should be some facility whereby that wife would be in some way entitled to an equitable interest, as it is called, in the balance of the land. I pose the question as to whether it would be possible to give perhaps a limited interest to the wife in that situation. Perhaps the wife could be given a life interest in the balance of the land; whereas she would be given an absolute interest in the dwelling house, she would be given a life interest in the estate.

I listened through Question Time and tried to get in on another issue yesterday when the Minister was here. When Deputy Harney was questioning the Minister I heard the phrase "gender proofing". I was amazed at it and wondered what it was. Somebody asked the Minister whether the National Development Plan was gender proofed. I have looked at the explanatory memorandum and the phrase has no legal meaning. But for the interest of our female participants here on page 2 there is a phrase "implications for women" of the legislation. There is no mention of the men there.

Mr. McGrath

Exactly.

Mr. D. Ahern

This legislation was not gender proofed by the Minister.

Mr. Bradford

I bring no amazing legal knowledge to the debate and, therefore, have to work at a slight disadvantage. To add insult to injury having neither property nor a wife I am further disadvantaged.

Mrs. O'Rourke

The Deputy is falling into the trap.

Mr. N. Ahern

The Deputy has a Dáil seat.

Mr. Bradford

I will try to bring a basic layman's perception to this debate. Like previous speakers I should like to give a wholehearted welcome to the Bill. It is not before its time and it will have the full and generous support of the House because the principle behind it is good. Most of the newspaper comments following the publication of the Bill described it as clearing a major obstacle for a proposed divorce referendum next year. As the Minister, and other speakers said, this Bill is much more important than simply being a prelude to a divorce referendum. It is important in that it gives recognition to hundreds of thousands of people here. The Minister said that 700,000 people who have absolutely no statutory property rights or entitlements will have an advantage following the enactment of this legislation.

In relation to the possibility of a divorce referendum and its success or otherwise I support the views of Deputy Harney. There is a common perception that the Government, in this and other planned legislation, is moving smoothly towards holding a divorce referendum and that the public will pass it. I do not agree with that assessment. As the referendum day approaches the fears, worries and concerns will increase and there will be many of the same type of scare stories which were circulating in 1986.

A difficult campaign lies ahead for those — myself included — who advocate such legislation. In that regard I noted a comment made by the Minister at his press conference last week that the extension of statutory joint ownership to farms and property would be looked at in the fullness of time but would not be in place before the divorce referendum in June 1994. If the Minister is expecting to "look at joint ownership of farms and property in the fullness of time" he would need to indicate clearly, before the divorce referendum, what the likely result would be. We do not need any seeds of doubt to be sown during a divorce referendum campaign and certainly the "F" word, the question of the farm, is one on which we need clarification. We need to hear more than "the matter will be looked at in the fullness of time".

I support the Bill and I hope, as a result of this and Committee Stage debate which I expect will be lengthy and detailed, we will produce good workable legislation. We all hope this legislation will not cause confusion, legal chaos or end up in the courts. The fact that section 4 applies to matrimonial homes in existence six months following the passing of the Bill will cause some people to consider a legal challenge. We cannot argue with the concept of the legislation. There will be an opt out clause and everybody should be covered by it but there could be difficulties justifying the inclusion of existing dwellings.

I am informed by some legal friends that the Family Home Protection Act, 1976, the Family Law Act, 1981, and the Judicial Separation and Family Law Reform Act, 1989, could in some cases offer sufficient protection to the cases which existed prior to the enactment of this legislation. It is because of that that there are genuine grounds for fearing that a case could be made that the application of this Bill to existing dwellings would be tipping the balance against the individual property rights guaranteed by the Constitution. In that regard it would be preferable if the matter was referred by the President to the Supreme Court to test its constitutionality. We do not want challenges to the legislation in three, four or five years. That could cause legal chaos. We must try to avoid what happened in regard to the Family Home Protection Act, 1976, which was before the courts for further debate and discussion up to 1979.

The provisions of the Bill will significantly increase the cost of property conveyancing. Title investigations will need to be more detailed and new statutory declarations will be required. Legal advice for both spouses and intending spouses will be required. There will be a need to ensure that both parties have detailed and separate legal advice, all of which will cost money. It will be essential to have an improved or expanded scheme of civil legal aid.

Unfortunately, there will be further litigation between spouses in some cases and that may concern the principle asset, namely the property of the couple. Both sides will need full legal representation. In many instances, due to economic circumstances couples may not be able to afford private legal representation and will have to seek access to civil legal aid. The present scheme does not offer that protection and will need to be expanded.

Section 6 provides that the application of the Act can be excluded where, having regard to the circumstances of the spouses, it would be unjust not to do so. In regard to the general opt out clause in section 7 I agree with much of what Deputy McManus said but I should like some clarification on the whole concept of the opt out clause. Due to its open-ended state many problems will arise and there will be much confusion. Why did the Minister consider it necessary to include that clause? How frequently does he expect it to come into play? What difficulties will it cause?

Under section 6 the court is given power to exclude an application where it feels it would be unjust not to do so. This power will be at the discretion of the Judiciary — in most cases the District Court — and will be at the whim of individual judges. Is the Minister confident that there will be consistency and common application in these instances? Obviously the Minister sees the need for this section. Will the Minister set out the precise circumstances when these provisions would be needed? The Dáil should be leading rather than following the Judiciary.

The Minister made it clear that in most cases the District Court would become the focal point of this legislation. He stated through the media that the fact that most cases would be dealt with in the District Court was advantageous because it was cheap and accessible, but I would question that entire concept. The District Court will deal with all matrimonial property cases with a valuation not exceeding £25, which will include the majority of dwellings costing £50,000, £60,000 or £70,000. Yet at present District Court jurisdiction is limited to cases not exceeding £5,000. Since the foundation of the State District Courts have had no jurisdiction in regard to property matters and now all matrimonial property cases will come before those courts for judgment. I would question whether we should be taking such a major step. The District Courts will now have a greatly increased workload and I would ask the Minister to comment on that matter.

The majority of appeals from District Court cases are limited in scope and nature. People owning houses with a valuation of less than £25 — the majority of people in this country — will have their cases heard in the District Court with little possibility of appeal to the higher courts if that is necessary. The size and value of one's house will determine one's final court of appeal on matters relating to this legislation. We must also examine the structure of our District Courts. Staffing levels at present cannot be described as adequate to deal with the increased workload following the enactment of this legislation. We must examine the matter of backup staff, court facilities, the number of judges and so on if the entire legal system is not to become blocked up with such cases.

I welcome wholeheartedly the concept of this legislation. The fact we are having a debate on this matter in such a mature fashion illustrates how far this country has moved forward from the era when such legislation would probably have brought people out on the streets in protest and, as the Minister of State, Deputy O'Rourke, stated earlier, prompted preaching from the pulpit. The Ireland of the nineties is a relatively modern one requiring modern legislation and this is a move in the right direction. The Minister indicated his willingness to examine areas where problems may arise. I hope I have pointed out a few of the difficulties which may arise, in particular the one relating to the constitutionality of the legislation. The Minister should address that in the immediate future so that we will not have a problem in that regard in five or six years' time involving many legal difficulties.

I look forward to the Minister's reply and commend him on this important legislation. He can be assured that he will have the full and constructive support of the Fine Gael Party.

Mr. Penrose

I welcome wholeheartedly the legislation before us. This Bill, when enacted, will give spouses equal rights in the ownership of the family home. It is an important Bill and stands on its merits. It is another step along the way to the recognition of the equal status of women in marriage and in society in general. It is regrettable that it has taken so long to have such a fundamental principle of equality recognised.

At this juncture we should reflect on the traditional perception of the common law that prevailed as late as the 19th century in relation to a woman's role as perceived by the society of that era. The married women was regarded as subservient to her husband and the husband had proprietary rights over her. A woman did not have contractual capacity and property owned by a woman at the time of her marriage automatically became that of her husband. The harshness of those common law rules was ameliorated somewhat by the development of equitable principles by the Courts of Equity. Deputy Ahern reflected on Lord Denning's contribution in relation to the development of the equitable principles which served as the basis for advancement. In that regard I would reflect on cases such as Gissing v. Gissing and Pettit v. Pettit which served as the benchmark for advancement in relation to equitable principles.

Even in death, the law leaned heavily in favour of husbands and the rules of succession to property reflected the prevailing ethos of the day. In the latter half of the 19th century we had the first significant signs of a change in that chauvinistic view by society of women's role therein.

The Married Women's Property Act, 1882, altered the common law position to allow married women acquire, hold and dispose of property by will or otherwise. That provision covered any real or personal property as her separate property as if she was a femme sole. Section 17 of that Act provided that either party could have property disputes resolved by application to the court which would then make the appropriate order. Other changes in the law took place in relation to the legal position of spouses regarding their property, culminating in the passing of the Married Women's Status Act, 1957. The jurisprudence of trust was thus developed by the Judiciary and utilised extensively in the resolution of disputes arising under section 12 of the 1957 Act. I note that section 3 of this Bill states that section 12 of the 1957 Act will be replaced and I will refer to that on Committee Stage.

Women play a crucial and pivotal role in sustaining the fabric of family life and it is important that is reflected in the laws of the land. There have been other notable advances in the law concerning the security of the family home. The basic purpose of section 3 of the Family Home Protection Act, 1976, was to protect the family home by giving a right of avoidance to the spouse who was not a party to the transaction. It ensured this protection by requiring for the validity of the contract that the non-disposing spouse should have given a prior consent in writing.

As a practising lawyer I discovered that people, particularly women, frequently believe that section automatically gives them the right now being given in this legislation, but that is a misconception. It was nothing more than a negative right in that it prevented the unilateral disposition of property. Many people thought that gave them a share in the property. It is amazing how many people I have met, even in the last six months, who thought they already had the right this Bill is giving them. Section 3 was a major advance for the non-owning spouse but it was nothing more than a negative right. Section 4 of the Act provided a procedure for dispensing with the consent of a spouse where that consent was unreasonably withheld and subject to certain conditions as judicially extrapolated.

A 1988 High Court judgment held that the wife was not, on the basis of established authority, entitled to a beneficial interest in the family home unless she had made a direct or indirect contribution in money or money's worth towards the acquisition of the property.

However, the court concluded that having regard to Article 41.2 of the Constitution, a woman such as the respondent in that case, who elected to adopt the full-time role of a wife and mother in the home, should have her work as home maker and caring for her family in the family home taken into account in calculating her contribution towards the purchase of the family home.

This was overturned by a Supreme Court decision in December 1991 which ruled that to allow the courts to extend the circumstances in which a wife may claim a beneficial interest in the family home to a situation where she has made no direct or indirect financial contribution to the acquisition of the property or to a family fund but has performed the constitutionally preferred role of wife and mother in the home would not be to develop any principle known to the common law but rather to create an entirely new right.

The Supreme Court further stated that unless the foregoing result was clearly and unambiguously warranted by the Constitution or were necessary for the protection of a specified or unspecified right provided by the Constitution, such a course of action would constitute legislation, would be a usurpation by the courts of the function of the Oireachtas, and would represent an invasion by the Judiciary into the legislative domain.

The Judiciary decided that, under the separation of powers, it could not embark upon that process. They certainly gave a clear indication to the Oireachtas that it could legislate for the result of that High Court decision. Many people have waited patiently for the past 18 months for this legislative void to be filled. Thankfully, my colleague, Deputy Taylor, Minister for Equality and Law Reform, has brought forward this important legislation within six months of taking office.

Article 41 of the Constitution contains the following relevant constitutional provisions: Article 41.1.1º —"The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law."; Article 41.1.2º —"The State, therefore, guarantees to protect the Family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State"; Article 41.2.1º was particularly relevant to the case I mentioned and is as follows: "In particular, the State recognises that by her life within the home, woman gives to the State support without which the common good cannot be achieved"; Article 41.2.2º —"The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." These may sound aspirational, but they are in the Constitution. Therefore, a woman who leaves the home and carries out remunerated work and contributes to the repayment of a mortgage directly, or indirectly by contributing to the family pool, would derive a share in the family home proportionate to the contribution made. This would lead to the anomalous position where the wife who followed the preferred and endorsed constitutional activity of staying at home and looking after the family would be in a less advantageous position with regard to ownership of or an interest in the family home. This Bill, which encourages a full sharing of ownership in the family home, will contribute to the stability of marriage, the institution of a family, and the common good.

The doctrine of constructive or resulting trusts, which has been elaborated upon in numerous judicial decisions, had as its basic requirement a contribution of money towards the acquisition of the family home: this could arise either by direct contribution to the purchase price or from indirect contributions by provision through earnings of moneys into the family pool. The Oireachtas has already, by the Act of 1989, made statutory provision for property adjustment orders on the granting of a decree of judicial separation or at anytime thereafter.

Section 20 (2) (f) of that Act obliged the court when making a property adjustment order on the granting of a decree of judicial separation to have regard inter alia to “the contribution which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including the contributions made by each spouse to the income, earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family”.

I note from the provisions of the Bill that the definition of a matrimonial home differs somewhat from the definition of the family home as set out in the Family Home Protection Act, 1976, in that the definition of a family home in this Bill is more expansive as once a matrimonial home comes into existence it remains a matrimonial home even after the couple have gone to live elsewhere, and the equal entitlement of the spouses to its ownership remains intact until the home is disposed of. That is an important provision. I welcome the fact that the definition of a matrimonial home has been extended to include a house obtained from the local authority and subject to a weekly tenancy. This Bill will facilitate the smooth transfer of such houses to the tenant who remains in the House should the other spouse opt to leave.

The Bill, and section 4 thereof, provides that statutory joint ownership will apply to all existing and future matrimonial homes unless they are already in joint ownership or unless both spouses or intending spouses decide otherwise. This will be a significant boost to many of the 700,000 women who currently work full-time in the home. This measure overcomes the difficulty whereby a spouse who worked full-time in the family home did not heretofore acquire any share in the ownership of the family home by virtue of her work. From a legal point of view, the fact of vesting existing and future matrimonial homes and household chattels in both spouses as joint owners will facilitate the surviving spouse in becoming owner of the joint interests upon the death of the other spouse.

From a legal point of view vesting future and existing matrimonial homes and household chattels in both spouses as joint owners will facilitate the surviving spouse becoming owner of the joint interest upon the death of the other spouse.

I note the Bill does not apply to the farm proper but only to the farmhouse and any land in the vicinity that is subsidiary and ancillary to it is required for its amenity or convenience and is not used or developed commercially.

This Bill stands on its merits. Other Deputies have referred to the proposed divorce referendum in June 1994 and matters relating to it should be attended to.

I would like to draw attention to section 4 (8) which states:

(a) Where, immediately before the application of subsection (2) or (3) to a matrimonial home, an interest in the home or dwelling concerned was or is held (whether alone or with other land) by a person ("the spouse") who was or who, upon such application, becomes one of the spouses concerned and one or more other persons as joint tenants, then, upon such application—

(i) the joint tenancy shall become and be severed,

(ii) the spouse and the other person or persons shall hold the interest aforesaid as tenants in common in equal shares,

(iii) the share of the spouse in the tenancy in common shall, by virtue of such application, be held by him and the other spouse as joint tenants, and

(iv) in case any land other than the home or dwelling was held on the joint tenancy existing immediately before such application, that land shall continue to be held by the spouse concerned and the other person or persons as joint tenants.

(b) Paragraph (a) applies to the case where the interest referred to therein was held by the persons who were or who, upon the application aforesaid, became the spouses concerned as it applies to the case specified in that paragraph, with any necessary modifications.

That is a technical provision. It is often the position in rural Ireland that one spouse may be a joint tenant and hold an interest in the family home with one or more persons, for example a brother. This section deals with that position. It is a praiseworthy Bill which provides a neat technical adjustment for dealing with this problem. Joint tenancy will be severed and become a tenancy in common, with each of the original owners, including the spouse holding it in equal shares. Under a tenancy in common where the tenants hold equal shares each tenant may dispose of his or her share by will, whereas under a joint tenancy each tenant's share passes on death to the surviving joint tenant or tenants.

Section 4 (8) provides that the spouses' share of the tenancy in common will become vested in both spouses as joint tenants. This section is concerned only with the subsisting joint tenancy of the matrimonial home. Thus if property was held under the joint tenancy that property will continue to be held by the spouse and the other person or persons concerned as joint tenants. This is an important provision.

I wish to refer briefly to a number of exclusions provided in relation to the application of section 4. Spouses are allowed to decide between themselves as to the nature of the ownership of the matrimonial home. Deputy Harney and other Deputies referred to section 7 and I would have some reservations in that regard. That section allows spouses to contract out of the application of the Bill and its statutory joint tenancy therein created. It is incumbent on the Minister to prepare an agreement and regulations on the contracting out provision as this is an area where undue influence might be applied. Somebody in a vulnerable position might readily waive his or her right. Any contracting out in this fashion should be accompanied by legal advice.

I look forward to this Bill being examined in detail on Committee Stage and I compliment the Minister on introducing it.

Mrs. Doyle

I welcome the Bill and the introduction of what has been referred to as an automatic regime of community property for married couples. There is great inequality in the traditional marriage, particularly in regard to the division of property and in the recognition of the contribution made by the spouse, more often the woman who stays at home. This was not always the position.

In the 7th and early 8th century women were granted extensive rights, particularly in regard to marriage, divorce and property. This was the position in secular law. Under the early Irish church law, while separation or divorce was possible in the case of adultery, one could take on another spouse during the lifetime of the first spouse. O'Corrain stated:

The evidence, secular and ecclesiastical alike, would tend to indicate that the older customs remained the norm. Despite the intense activity of the twelfth century reformers, secular marriage with its tolerant attitude to divorce continued in Ireland until the close of the middle ages.

The wide-ranging and flexible grounds for divorce available to women under the Brehon laws "served as a guarantee of extensive women's rights and protected women in a way which was remarkably different from the customs of other European countries."

Depending on one's outlook the possibility of an easy dissolution of marriage will be evaluated differently, but the care which was evident for the individual personality of the woman in Irish marriage law at that time contrasts favourably with the unrespected position of women in earlier times in other societies and latterly in Ireland.

Historians view the Norman invasion of 1169 which was followed by the imposition of English law in the early 17th century as having a curtailing effect on the development of these Gaelic customs. It has been said that modern Ireland enjoys no continuity with its Gaelic past in its attitude to women and their place in society. I agree with that view.

Following the Norman invasion when we were partly conquered and apparently colonised, the Gaels and the Anglo-Normans lived side by side for more than 400 years in two different communities, each with their own legal system. Gaels continued to live under the Brehon law although it was modified somewhat in the latter period. Anglo-Normans lived under the English common law system. The English common law system reflected the standard legal practice in most of western Europe at the time and it was much less egalitarian than the Brehon laws in the rights it accorded to women.

The position of Irish women did not deteriorate until the conquest and plantations of the 16th and 17th centuries by the English. From that time until the famine according to O'Tuathaigh "women were totally without formal political rights;... Their property and inheritance rights both within and outside of marriage were now governed by English Common Law, and...their's was a subjective and subsidiary role to the male, and it was performed for the most part within the domestic context".

The great famine in the mid-19th century further weakened the position of women in Irish society. Before the famine women had an important role in the agricultural and non-agricultural sectors. One of the main effects of the famine was to wipe out the spinning industry which was a major source of womens' independent income. Womens' role in agriculture became more diminished as agriculture became more focused on livestock and less on tillage and thus became less labour intensive. It followed that the deterioration in the economic status of women affected their marriage prospects and made them vulnerable to male dominance. This helped to explain the growing importance of the dowry after the famine. Daughters became more dependent on their fathers and less independent in choosing their spouse. Professor J. Lee is particularly interesting in analysing the position from this point forward. His view of the position of women in Irish society following the famine deserves to be quoted. He stated:

Farmers would not normally dower two daughters. That would dissipate their savings, and drag the family down in the social scale. Marriage might be a sacrament, but for the farmer the marriage contract was essentially a commercial transaction, and it devalued the family currency to put two daughters on the marriage market.

Deputy McManus stated earlier that this issue was mainly to do with property. Apparently, some things never change. Professor Lee continued:

A society dominated by strong farmers and providing little female employment, inevitably denied most of its children the chance of rearing a family in the country. It was, therefore, crucial to maintain the economic dominance of the new order, that all thoughts of marriage in Ireland should be banished from the minds of the majority of Irish youth. Temptation must not be placed in their way. Sex, therefore, must be denounced as a satanic snare, in even what had been its most innocent pre-famine manifestations. Sex posed a far more subversive threat than the landlord to the security and status of the family. Boys and girls must be kept apart at all costs. Economic circumstances, therefore, conspired to make Ireland an increasingly male dominated society after the famine.

Lee goes on to say that the rise of the strong farmer coincided with the growth in clerical power and a new public obsession with sexual morality generally, easily understandable in this context.

Events did not change significantly until 1882, with the introduction of the Married Woman's Property Act, which altered the common law provision at the time. We have struggled on slowly since then. In 1957 the Married Woman's Status Act was introduced, followed by the Family Home Protection Act in 1976 and the Judicial Separation and Family Law Reform Act of 1989. That brings us to the Bill before us today, the Matrimonial Home Bill, 1993. I welcome the introduction of this Bill because it brings us back to our Gaelic past and the Brehon laws, which unfortunately, were lost for several centuries, in our treatment of women, particularly women within marriage.

I commend the report of the Second Commission on the Status of Women in relation to issues in this area. Many of my colleagues quoted extensively from this report earlier today. The Minister does not appear to go as far as some of the recommendations in that report and perhaps when concluding Second Stage he might indicate his willingness to progress a little further in this area. Perhaps he has been advised by the Attorney General that this is as far as he can safely go at this point. I understand that there may be some constitutional queries about the Bill before us even in its present form. There is a fine balance in our Constitution in terms of property rights and, indeed, the protection of the family generally.

I would be pleased to hear the Minister's views when responding to Second Stage as to the recourse to advice that he has in this area and I hope that he can say with some conviction that no constitutional queries should arise concerning this Bill when it is passed. This may perhaps be the first item of legislation that President Robinson will refer to the Supreme Court for constitutional consideration. I hope that is not the case because I would not like to see this legislation delayed unnecessarily. However, if there is to be a constitutional query it is better to have it resolved at an early stage.

Why does this Bill not apply to couples living apart until six months after it has been enacted? The Minister stated earlier:

To constitute a matrimonial home the dwelling concerned must be one in which a married couple are ordinarily resident when the Act comes into force — that is, six months after the Bill is enacted — or at any time afterwards. Couples who are living apart at present will not be affected by the Bill.

I am a little concerned about this aspect of the Bill because there are many couples at the moment living apart who have made no final decision as to what to do with the family home. Usually one spouse has moved out and perhaps they are presently in negotiation with solicitors. They have not proceeded under any of the legislation presently on the Statute Book, namely, the Family Home Protection Act or the Judicial Separation and Family Law Reform Act. Many of these couples have been waiting for the past few years to see what legislative response would be forthcoming from the Supreme Court case of December 1991. They were waiting to see how the Minister would respond in the hope that it would resolve their particular dilemma. If because of tensions and other difficulties one spouse has left the family home but has not proceeded to tidy up his or her affairs in the eyes of the law, and if such people are to be excluded from the terms of this Bill, we are doing an enormous injustice to them. Perhaps the Minister might elaborate on the reason for this provision in the Bill. Would the Minister reconsider it? I can understand if a case has already been taken under the Family Home Protection Act or the Judicial Separation and Family Law Reform Act by couples who have already separated. I realise it might be difficult in those cases to begin applying various items of legislation in that situation. One cannot reopen cases that have been dealt with satisfactorily as far as the law goes at present. However, couples who have not proceeded to tidy up their affairs legally should be allowed the benefit of the provisions of this Act, even if they are required to wait six months. Why is it necessary to exclude those who may not be living together at present? I find that hard to understand and enormous injustice may be done to many couples in relation to that.

The Minister would be doing a great service, particularly to many women, if he insisted that the opt out clause in section 7 was only made use of following legal advice being taken. In fact, I would like to see it being compulsory that a spouse coming into the property could only opt out if they obtained sound legal advice and produced evidence of that advice. None of us entering into a marriage believes that anything can go wrong. No one would get married if they thought that separation or divorce would be the outcome. No one enters a marriage contract with that in mind. Therefore, it would be easy to accept an opt-out clause unless the matter was explained carefully by an independent solicitor to the spouse marrying into the property, which is usually the woman. This area should be tidied up so that those entering a marriage who do not believe anything will go wrong in the future, will not be gulled into signing a contract without realising the full implications of what they are doing. They must have some sort of protection before signing any opt out clause.

The position regarding the liability for any pre-marital debts or any charges on the house that subsequently would become the matrimonial home requires clarification. This usually involves the woman, who would be protected under this Bill before us today. Is it absolutely clear that these women will not be taking on additional debts and charges that were incurred prior to the marriage if the marriage breaks down following a number of years? I would like clarification in this area because joint ownership of the family home is of tremendous benefit as long as one is not including joint ownership of a large bank debt or a charge of some other financial institution. It must be made clear that this is a benefit we are conferring on the spouse that will be staying at home, usually the woman, rather than a financial noose being put around their necks.

I welcome this Bill. It represents the first step along the road in this area. There is no doubt that the last referendum on divorce was lost mainly due to fears in relation to property considerations, fears that could not be answered satisfactorily by many of the politicians who were trying to sell the case that was being made by the Government at the time. This Bill will allay the majority of those fears. For some, it does not go far enough in dividing up property but for the average Irish family it will allay the fears and allow at least for reasoned consideration of divorce rather than dealing with it from a property perspective. People will be able to make up their minds on the real issues involved rather than living in terror of being put on the road, as was the case in the mid-eighties when the last referendum was held. Fine Gael will be supporting the Bill and I hope on Committee Stage the members of the committee will have an opportunity to tease out matters of concern.

Debate adjourned.