Like many other speakers, I welcome the Bill and compliment the Minister on bringing it forward. It is interesting to note that I am the third representative from my constituency to contribute to the debate. This represents a 100 per cent turnout for my constituency. I am not sure if this reflects the level of competition which exists between the public representatives from County Westmeath or whether we are extremely conscious that social issues need to be addressed. I think it is a unique record for County Westmeath that its three public representatives have contributed to this debate.
Marriage is a commitment for life entered into voluntarily by the contracting partners. We seem to have lost sight of this fact. Many young people tend to regard marriage as a temporary commitment which may last for a while. Marriage is a sharing of ideas and ideals, of hopes and aspirations, of goals and dreams. The Minister of State at the Department of Enterprise and Employment, Deputy O'Rourke, said that she favoured raising the age at which people could get legally married. I agree with her, not just because she is my constituency colleague but because I believe young people enter into marriage much too quickly without giving it enough thought and adequate preparation. I think that the legal age at which people may get married — the Minister can correct me if I am wrong — is 18. People under the age of 21 who get married must have the written consent of their parents. I am of the opinion that the age at which people can get legally married should be raised to 21 years. All too often young people rush into marriage, and in some cases these marriages turn out to be a disaster. Consideration should be given to setting up a course which would prepare people for marriage. I do not know if this is within the remit of the Minister. The various marriage guidance agencies are carrying out much good work. While they are receiving State suppport at present, this funding should be increased.
Most marriages survive, with varying degrees of happiness, until one of the partners die. However, a proportion of marriages end up in separation. All speakers regard this Bill as a long awaited and long sought after breakthrough for women. It is important to say that this Bill is also a breakthrough for men — men who marry women with property, men who marry into the family home of their wives and men who marry into a form or business owned by their wives. The rights of these men will also be recognised under the Bill. This is an equality Bill — men and women in similar situations will have the same rights.
Many speakers said that the Bill did not go far enough, that shared ownership of the matrimonial home may not be enough. This is an interesting concept which should be pursued. What about spouses who have given many years of their lives working in a partnership or building up a family business and who in the twilight years feel they have no rights to what they have created? This Bill will be poor consolation to those people. Will a spouse who leaves his or her husband one month after they get married have the same rights to the matrimonial home as a spouse who has shared a home, worked in it and shared the responsibilities and hardships of family life for many years? I do not think this should be the case. Consideration should be given to this shortcoming in the Bill. I am not sure how this issue could be addressed or how one could devise a solution with which we would all agree. A previous speaker referred to women who brought a dowry to her husband's family farm when she got married and who 40 years later had no rights to that farm. Will she have the same right to the family home as a person who walks out on their marriage after one week? Perhaps there could be a graduated increase in rights, so to speak, in different cases. This matter needs to be looked at in greater depth.
I know the Minister is walking on a minefield. Having regard to discussions which took place in, I think, 1985, this Bill could cause tremendous difficulties. All Irish people hold property very dear to their hearts — the high level of home ownership in this country in comparison with other European countries proves this. No person who has a family business wants to see the family name disappear from over the door of their shop. No farmer wants to see land which has been in his family for generations being sold. I wonder how far down the road can we go in ensuring total equality so that a husband and wife have an equal share in all property. I accept that difficulties may arise if a business has to go into receivership. I ask the Minister in his reply to say how far down this road we can go.
I wish to refer to the rights of children. Section 6 (3) deals with the position of children where perhaps a spouse has died. It provides that the Circuit Court has the right to decide most of the issues which may arise. Where one of the spouses has died, the child has only nine months, or three months after the grant of representation, to make an application to the court and prove that it is unfair or unjust that section 4 be applied in that case. A minor child can, with the consent of the court, make such an application. Although these provisions attempt to make matters more certain for persons buying property, the amount of unease will be considerable. A person buying property where one or other of the joint owners has died will be faced with the possibility that three months after the grant of representation any one of the children can apply to have the sale set aside. Furthermore, there is the distinct possibility that some of the minor children could come back for a second application, perhaps claiming that they suffered from undue influence in the first instance. Even though the draftsman has, with the best of intentions, provided that the court can supervise an undertaking given by the child not to make an application, I am not convinced that the tragic loss of a spouse would be helped by the necessity to make a long and expensive court application.
A further point arises in regard to people living in rural areas. Circuit Court judges are already greatly overworked. Indeed many judges have complained that family matters are taking up more and more of their time and they do not have enough time to deal with these cases as criminal cases get priority. The assumption that the Circuit Court will be able to handle all these matters will come as bad news to the public, the Judiciary and practitioners who are already trying to cope with an overloaded system.
The buildings in which many Circuit and District Courts are held in rural areas are in an atrocious condition. A building which has closed in Athlone had no room where familes could meet to dicuss cases with their legal representative. Indeed, many of these discussions had to take place in the corridor or out on the street. By referring these matters to the Circuit Courts the Minister will further overburden the system, thus leading to more trouble. This Bill is very intricate from a legal point of view and as a layperson I find it very difficult to interpret. I am delighted it is being referred to the Select Committee next week as this should provide us with the opportunity to discuss it in detail. I am not a member of that committee but I am a member of the Select Committee on Finance and General Affairs and we found the briefings by civil servants invaluable. It would be no harm I suggest, to arrange briefings for Members. I suggest the provisions should be explained in every day terms to practitioners who, in turn, can explain them to the committee and deal in detail with the questions that may arise on its intricacies. There would then be a more enlightened discussion and, as a result, we would have better legislation. It may be difficult to make these arrangements but from my experience the briefings by officials of the Revenue Commission were very worthwhile.
In relation to the matrimonial home on a farm I know, as I come from a rural area, the Minister will run into all sorts of difficulties. On the typical farm it is very difficult to separate the family home from the cluster of buildings and the yard adjacent to it. It will be extremely difficult to define where the matrimonial home ends and the farm begins. I know this will only apply in a minority of cases where there is a break up of the marriage and it may be decided to sell the family farm. It will be almost intolerable to work on the farm thereafter if the sale has gone though under duress. Another Member raised the difficulties that will arise when the matrimonial home is above the shop or the pub. How does the Minister propose to get over these difficulties?
As it is proposed that this legislation will be retrospective how will it stand up to a court challenge? Article 43.1.2º of the Constitution refers to private property as follows:
The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.
Will the retrospection provisions cause a difficulty? For example, someone who entered into marriage 30 or 40 years ago will now find that the matrimonial home becomes jointly owned with his or her spouse, and does that cut across the guarantee given in Article 43.1.2º?
I acknowledge that Article 43.2.2º states:
The State, accordingly, may as occasion requires delimit by law the exercise of the said righs with a view to reconciling their exercise with the exigencies of the common good.
Does the Minister envisage using that provision? I believe the provisions in the Bill will be challenged in the courts and, perhaps, it should be referred to the Supreme Court at an early stage to avoid possible difficulties later. Like other Deputies, I received correspondence from solicitors and this seems to be the point they are making. There is a number of outstanding cases before the courts at present that hinge on this question and I wonder if the retrospective nature of the legislation will cause difficulties later.
I hope this legislation will have a speedy passage into law.