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.