We had been discussing amendments Nos. 33, 34 and 40 together. I accepted Deputy Shatter's amendments Nos. 33 and 34 and I was about to reply to amendment No. 40 when the House rose.
Matrimonial Home Bill, 1993: Report Stage (Resumed) and Final Stage.
Debate resumed on amendment No. 34:
In page 17, line 27, to delete "appropriate" and substitute "proper".
—(Deputy Shatter).
The Minister is right in that we had been discussing the three amendments and the Minister indicated that he would accept two of them. We were about to discuss amendment No. 40 which is interrelated to the two earlier amendments. I have yet to respond to the Minister who was only starting to speak on the matter when we adjourned.
Deputy Shatter's amendment No. 40 states:
"(3) For the avoidance of doubt, the law as developed by the courts in proceedings determined pursuant to section 12 of the Married Women's Status Act, 1957 prior to the commencement of this Act shall continue to be applied in proceedings instituted under section 18 of this Act save in so far as it is amended by section 4 of this Act and by this section.".
It seems Deputy Shatter's amendment is inappropriate and not required. Having regard to the provisions of section 12 of the Married Women's Status Act and section 18 of this Bill, the purport of the Deputy's amendment escapes me. If one looks at section 12 of the Married Women's Status Act one can see it is not a section that enacts any substantive matters of law. It is simply an enabling provision to enable disputes of a certain type involving family property to be determined by the court in a convenient and summary manner. The substantive laws which the courts would examine when dealing with applications under section 12 are matters of general law, matters that have been laid down over the years, primarily rules of equity developed over a long period. There is nothing whatever in section 12 of the Married Women's Status Act, 1957, that affects any of those laws. They have been developed along certain lines and in certain ways.
Section 12 provides for a convenient method of access to the courts to deal with applications that one spouse may wish to bring affecting property and to enable such applications and such disputes to be resolved simply and quickly in the manner laid down in that section. The section contains no substantive law that in any way affects the rules of law which have developed over the years. When section 12 is repealed and reenacted in section 18 of the Bill before the House it will provide for an application to the court in a summary manner to determine questions arising between the parties. The principles of law on which they will operate are there and section 18 does not change them any more than did section 12 of the 1957 Act. Therefore, to insert an amendment to provide that the principles of law which developed over the years continue under section 18 of this Bill as they were under section 12 of the 1957 Act would be entirely inappropriate. The corpus of laws which evolved over the years may at some stage need to be amended and reviewed in a modern context. In one minor respect that is precisely what section 20 of the Bill before the House addresses.
One aspect of the corpus of laws that has developed, namely where one spouse puts up money to carry out improvements on matrimonial property, a development resulting from the W & W case which has been referred to, required immediate attention and was, perhaps somewhat inappropriately, slotted into this Bill. It does not have a direct reference to the Bill but I felt it was appropriate to include it. I will have more to say on that matter when we come to amendment No. 38 which deals more directly with that point.
The inclusion in the Bill of a provision which says that "the law as developed by the courts in proceedings determined pursuant to section 12..." is not appropriate because that law has not been developed by section 12. Section 12 is no more than an access mechanism to the courts to enable disputes which arise to be determined. Therefore, the acceptance of an amendment which refers to the law as developed in applications under section 12 would be entirely inappropriate. It is clear that that amendment is not well founded.
The Minister's last contribution is probably one of the most depressingly foolish contributions I have heard from him in the debate on this Bill. I do not make any bones about saying that. I wonder what function we have in this House and, on occasion, what function Opposition Deputies have when we listen to such contributions.
We are dealing with three amendments, two of which are being accepted by the Minister. These two amendments propose to substitute the word "proper" for the word "appropriate" in section 18. As I said, the reason I put down these amendments is that under the Married Women's Status Act, 1957, the courts were directed when dealing with property disputes between spouses to make such orders as they deemed proper. I want to ensure that when the jurisdiction under section 18 is enacted it does not turn back the law some 30 years and create a situation where all the legal principles the courts have enunciated in cases instituted under section 12 have to be gone over yet again to determine whether they are still applicable. I gave a relatively simple and brief explanation of my reasons for putting down these amendments and the Minister seemed to understand and accept it — he is taking two of the amendments on board.
Another reason I put down the amendments is that when the 1957 Act replaced the 1882 Act — which told the courts to make such orders as they deemed fit — there was an ongoing legal discussion at the time as to whether the 1957 Act conferred a different jurisdiction to the 1882 Act. I was anxious to ensure that that difficulty and problem did not arise again. The acceptance of two of my amendments by the Minister means that the possibility of that problem arising again has been greatly ameliorated.
My third amendment, which is totally appropriate to this legislation, was designed with the same purpose in mind. Decisions were delivered by the High Court every two to three weeks from the mid-sixties up to 1989-90 and proceedings instituted under section 12 of the Married Women's Status Act, 1957, in more cases than one could count. Even though they did not all produce written judgments or report judgments, a large number of them did. The judges pored over the legal principles applicable in determining such disputes which the Minister now seems to think are irrelevant to section 12. The Minister correctly stated that the section provided a procedural mechanism for instituting proceedings between spouses. However, decisions are delivered by the courts in cases initiated under section 12 and the law has been developed, as the amendment says, "... by the courts in proceedings determined ...". If the amendment is so irrelevant, I wonder why the Minister has included section 19 in the Bill. The Minister seems to think that this is all very amusing. He has included a similar provision in section 19 which states:
For the avoidance of doubt, it is hereby declared that the reference in section 5 (1) of the Family Law Act, 1981, to the rules of law relating to the rights of spouses in relation to property in which either or both of them has or have a beneficial interest shall relate and be deemed always to have related only to the rules of law for the determination of disputes between spouses, or a claim by one of them, in relation to the beneficial ownership of property ...
Because my first two amendments are being taken on board, my other amendment is now of somewhat lesser importance. I think the courts will assume that the law they have to administer under section 18 is the law they administered under section 12 except in so far as it is affected by section 4 and section 20, which is highly appropriate and relevant to the legal principles applicable. The Minister seems to be partly disowning this provision and wondering why it is included in the Bill. The provision is clearly applicable and relevant to my amendment No. 40. I will be pressing my amendment No. 40 to a vote when we reach it because I have an interest in ensuring that husbands and wives do not unnecessarily litigate issues which do not need to be litigated. The inclusion of the subsection (3) proposed in my amendment to section 20 would ensure that the law was clear and obvious, which would be helpful. I am not going to extend the debate on this amendment any further. I thank the Minister for agreeing to take on board my other two amendments. I presume the reason he is taking them on board is because the difficulties I have just described appear to him to be a possibility. Otherwise, there would be no particular reason for agreeing to take them on board. I will be putting my amendment No. 40 to a vote. The Minister's comments on this amendment were somewhat disingenuous and confused.
Amendment agreed to.
Amendment No. 35. Amendment No. 37 is related. It is proposed to take amendments Nos. 35 and 37 together. Is that agreed? Agreed.
I move amendment No. 35:
In page 17, to delete lines 35 to 41 and substitute the following:
"(7) (a) Where a marriage—
(i) has been annulled under the law of the State, or
(ii) has been annulled or dissolved under the law of another state and is, by reason of that annulment or divorce, no longer a subsisting valid marriage under the law of the State
an application under this section shall not be made by either of the spouses more than 3 years after the date of the annulment or divorce.".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 36:
In page 18, line 7, to delete "no longer" and substitute "not".
Amendment agreed to.
I move amendment No. 37:
In page 18, line 11, to delete "dissolution" and substitute "divorce".
Amendment agreed to.
I move amendment No. 38:
In page 18, line 25, before "improvement" to insert "acquisition or"
Section 20 as currently drafted is designed to deal with a legal anomaly which has arisen from a number of decisions — initially a decision of the High Court and more recently a decision of the Supreme Court which was delivered some 12 to 18 months ago. As the law stands, a wife who contributes financially to the purchase of property which is in her husband's sole name can acquire a beneficial interest or ownership right in the property in proportion to the contribution she has made to its acquisition. Section 20 seeks to deal with a difficulty which arose in a court case in which it was held that if a wife contributes to the improvement of property which is owned by her husband — for example, making £10,000 available for the building of an extension — and there is no borrowings on the property she may not have a beneficial interest or ownership right in that property by virtue of the fact that she has only made a contribution to improvement as opposed to a contribution to acquisition. The same would apply if the property was a business property.
The Minister is seeking to incorporate within our law a provision which, I think from recollection, was enacted into English law in 1958 or 1968, namely, a contribution in money or money's worth to the improvement of property should be regarded as giving the contributor a proportionate beneficial interest or ownership right in that property. My amendment is designed to ensure that there is no confusion about the law. The Minister referred to proceedings under section 12 of the Married Women's Status Act, 1957, which will now be brought under section 18 of this Bill in which the law I have described is judge-made law. My amendment seeks to make it clear that the current common law as developed by the courts — the way in which one contributes financially towards the acquisition of property — will become part of statute law. Section 20 states that where a spouse contributes in money or money's worth to the improvement of real property that contribution can give rise to the acquisition of an interest in the property.
But this Bill is silent on cases where one make's a contribution to acquisition as opposed to improvement. Because of the way section 18 was originally structured and because there is no reference to acquisition, I was concerned that this could be perceived as changing the law to mean that a contribution to acquisition, in the absence of your name being on the property, would not result in one having any ownership rights. Deleting the word "appropriate" and replacing it with the word "proper" would partially resolve the problem. If the Minister accepts amendment No. 40 it would totally resolve the problem. In the light of the Minister not accepting amendment No. 40 there is no real argument for not putting into section 20 the position as we understand the law to be. What we are doing now is providing for the acquisition of property or an interest in property where one contributes by way of financing an improvement. That will be made part of statute law. Where one makes a direct or indirect contribution to acquisition, that will be left part of common law as developed or declared by the judges, leaving a question mark over whether it continues to be part of our law because of the restrictive nature of section 20. Section 20 could be interpreted as a restrictive provision rather than simply extending the circumstances in which contributions give rise to ownership rights.
I hope the Minister would accept amendment No. 38 and I urge him to do so. In this context I want to ask the Minister also to comment on something which might more appropriately arise under amendment No. 39. The intention of this legislation is that where a family home is in the sole name of the spouse it will be regarded as being jointly owned. Presumably, where the property and the legal title are in joint names they simply remain in joint names and the position is not affected by the legislation.
Section 20 is in effect being copied from an existing English statutory provision and because English law does not have legislation which approximates to this Matrimonial Home Bill — English law does not deal with the matrimonial home specifically in this context — this section applies not just to the matrimonial home but to all property. It does not just apply to making improvements in the matrimonial home; it refers to any real or personal property. It seems to me there is a confusion in the Bill, and I will come back to this when we deal with amendment No. 39. The tenor of this Bill throughout — if one confines section 20 to dealing with the matrimonial home, although it extends to other properties — is that all matrimonial homes in effect are jointly owned, except for those in which deserted wives may be residing who were deserted before 25 June, but I do not want to complicate the argument for the moment. We then put in a provision which says that if one contributes to the improvement of a matrimonial home or other property, one might obtain a greater interest in it.
As I understand it, the intention of this Bill is that regardless of the level of contribution made by a husband or wife to the acquisition of a matrimonial home, it will be jointly owned unless one falls under the bailiwick of the court application and a court deeming it unjust that one should get a greater interest. However, marrying section 20 into the earlier sections of the Bill does not work and it seems to me the Minister has a problem in this regard. In one part of the Bill it states that regardless of who contributes what to the acquisition of a matrimonial home it is jointly owned, but then in section 20 it states that if one makes an extra contribution to improvements one will get a greater share of the matrimonial home.
The amendment I have tabled concerning acquisition or improvements is to deal with all other properties and when we come to it I am proposing amendment No. 39 to clarify what the Minister intends. However, the Minister may want to tell us exactly how he envisages section 20 interacting with the concept of joint ownership of the matrimonial home.
If the Deputy examines subsection (2) he will see that it is excluded.
I accept that, but we then need to deal with the acquisition provision in relation to other property.
The purpose of this Matrimonial Home Bill is to allow for matrimonial homes to be in the joint names of both spouses. Section 20 departs from that general issue in one respect and makes an amendment to the law which requires to be made following on a particular decision of the courts in a case of W v. W, 1981, Irish Law Reports Monthly, 202, where Mr. Justice Finlay stated the principles of law which applied in cases where an improvement in property was paid for by one spouse:
Where a wife expends moneys or carries out work in the improvement of a property which has been originally acquired by, and the legal ownership in which is vested solely in her husband, she will have no claim in respect of such contributions unless she establishes by evidence that from the circumstances surrounding the making of it she was led to believe, or it was specifically agreed, that she would be recompensed for it. Even where such a right to recompense is established either by an expressed agreement or by circumstances in which the wife making the contribution was led to such belief it is a right to recompense in moneys only and cannot and does not constitute a right to claim an equitable share in the estate of the property concerned.
That provision is a measure which required urgent amendment and section 20 is intended to provide in effect an overrule of that decision. In a typical case, say, where a wife contributes £5,000 or £10,000 towards carrying out a substantial improvement in a property that belongs to her husband, regardless of whether it is the matrimonial home — it excludes a matrimonial home where it is held equally but that is excluded in subsection (2) — it is not sufficient that she should be simply recompensed or entitled to a recompense ten or 20 years later of the £5,000 or £10,000. It is fair and appropriate that she thereby acquires a proportionate share ownership interest in the property in which she invested the money. There is a fair and reasonable proposition to make where the sum is substantial. If the sum was not significant it would not arise, but where the sum invested by the spouse was substantial she should be entitled thereby to acquire a specific pro rata share of ownership in that particular property.
This does not apply to the matrimonial home where it is owned in equal shares by both spouses. No one is suggesting that if someone contributes £5,000 or £10,000 to put a new bathroom in an ordinary matrimonial home, that share in the matrimonial home should be put into any state of imbalance. However, cases could arise where the matrimonial home would not be owned on an equal basis for one reason or another. These instances may be rare, but it could occur that part of the wife's 50 per cent ownership might have been transferred back to her husband for whatever reason thereby creating an imbalance in the ownership. In that case I would want this provision to apply, that a substantial financial input in improvements would increase her proportion of the ownership position. Apart from that limited provision, matrimonial homes are excluded from this section but it is intended to include other property in the reversal of that provision.
There is a whole corpus of law out there dealing with circumstances in which one person puts up money towards the purchase price of a piece of property and that piece of property goes into the name of the other party. In other words, the husband buys a piece of property, the wife puts up, say, £10,000, but the property goes into the husband's name. There is a whole corpus of law out there dealing with those circumstances — the doctrine of advancement, resulting trusts, it is a whole, well developed area of law. It may be that it requires re-examination at this point. This Bill is not the vehicle to do that. That law has developed, is well settled; it may need reform, it may need amendment, but this Bill is not the vehicle by which to do it. That would require a major piece of conveyancing legislation which would need to be examined on a broad, comprehensive basis for that purpose.
The purpose of section 20 is limited. Nonetheless, it is intended to effect an important improvement in the law as we now find it. I am sure all Members would agree that where money on improvement is put up by one spouse, it is appropriate that a share should vest in proportion thereto rather than at best, as the Chief Justice said in that case, entitle her, as would be the position that would prevail in most cases, merely to recompense perhaps very many years down the road. The position is that if money is put up for an acquisition of property purposes the resulting trust position does apply. By and large that is the legal position. There is no intent to interfere with that proposition in this Bill. I do not accept that by a process of elimination that body of law is in any way affected by the limited amendment dealing with improvements posited by section 20.
Deputy Shatter would purport to perhaps restate the law as it is by including the words "acquisition or". That would involve a major re-examination of quite a number of broad ranging, equitable principles. As I said, it may be appropriate to have them re-examined, but there is no need to do so in this Bill. That is not appropriate to this one, which is a Matrimonial Home Bill.
I contend it is as appropriate to do so in this Bill as it is to include section 18 in this Bill. I am in an odd position here in that I actually have to tell the Minister that not only is this a Matrimonial Home Bill but one which now sets down the procedural mechanisms for resolving all property disputes between spouses regardless of whether they relate to the matrimonial home, business properties, investment properties, bank accounts or anything else. In deference to Deputy McManus, one might even lob in the pet dog in the circumstances. I am not sure whether the pet dog would qualify as real property or personal property, probably personal property.
A household chattel.
Yes, perhaps a household chattel, which is a term I hate. We shall have to invent a 21st century term for "chattel".
Parts I and II of this Bill deal with the matrimonial home and Part III with all property, family property, in disputes. I can tell the Minister it is highly appropriate that he has section 20 included. It is equally appropriate that the amendment I propose to insert the words "acquisition or" be accepted because it would finally provide a statutory basis for what is happening in practice anyway. It would also ensure that no legal dispute arose in the future as to the court's powers being in any way limited under section 18 in a way in which they are not limited under section 12 of the Married Women's Status Act, 1957.
The Minister is relying on the advice available to him. I am really trying to dot i's and cross t's. I would suspect that the courts — because we have now provided for a change in the wording of section 18 — are unlikely to regard the body of law to which I have referred as no longer applicable. I thought it made sense, that we might as well set out precisely in the Bill what is the position currently in practice and what we intend it to remain.
I take it the Deputy is pressing his amendment?
Yes.
Amendment put and declared lost.
What is the position in regard to amendment No. 39 in the name of Deputy Shatter?
I am withdrawing that amendment.
Amendment No. 39 not moved.
I move amendment No. 40:
In page 18, between lines 43 and 44, to insert the following:
"(3) For the avoidance of doubt, the law as developed by the Courts in proceedings determined pursuant to section 12 of the Married Women's Status Act, 1957 prior to the commencement of this Act shall continue to be applied in proceedings instituted under section 18 of this Act save in so far as it is amended by section 4 of this Act and by this section.".
What are the Deputy's intentions with regard to amendment No. 40?
I want that put.
Amendment put and declared lost.
We come then to amendment No. 41 in the name of the Minister. I observe that amendments Nos. 43 and 44 are related and suggest that amendments Nos. 41, 43 and 44 be taken together. Is that satisfactory? Agreed.
I move amendment No. 41:
In page 19, to delete lines 32 and 33 and substitute the following:
"(a) by the substitution of the following section for section 2:
2. (1) In this Act "family home" means the dwelling in which a married couple ordinarily reside at any time after the passing of the Matrimonial Home Act, 1993, as their sole or principal residence.".
In the Select Committee I moved an amendment to make the definition of "family home" in the Family Home Protection Act, 1976, correspond with that of "matrimonial home" in the present Bill. The amendment was designed to ensure that a family home would remain a family home even where the couple had gone to live elsewhere. I withdrew the amendment with a view to re-tabling it on Report Stage in conjunction with a provision under the 1976 Act to protect the rights of spouses who were separated at the passage of the Bill.
Amendment No. 41 contains a revised definition of "family home". Amendment No. 44 ensures that any spouse who is separated by reason of desertion or otherwise still has available to him or her the essential protections afforded by that Act. Once this Bill has been passed the mere fact that a married couple ordinarily resided in their home at any point in time thereafter will be sufficient to ensure that those protections can still be availed of in the case of either party to the marriage.
Amendment No. 43 is a consequential drafting one.
We had some detailed debate on this issue on Committee Stage when both the Minister and I had tabled amendments. I think it is fair to say that the worries I had relating to rights currently vested in spouses under the Family Home Protection Act, 1976, being taken away from them have now been addressed by the Minister in amendment No. 44. That is the crucial amendment in this context. I made the case that in the context of the Family Home Protection Act, 1976, as its provisions currently operate, if a wife is residing in the family home and the husband behaves in a manner which is likely to lead to a loss of the family home, such as failing to make mortgage repayments or is dealing foolishly with the family finances and creating major debts which could result in judgments being lodged against the home, the courts can make orders under section 5 of the Family Home Protection Act, 1976, to provide for protection for the home, perhaps orders which would force the husband to make mortgage repayments and, in particular circumstances, can transfer a home directly from a husband to a wife to ensure that it is preserved for the benefit of the wife and children of the family.
The Minister's original amendment, as tabled, in relation to spouses who were separated or deserted before the coming into force of the provisions of this Bill, once enacted, would have deprived them of all of the protections that the Family Home Protection Act, 1976, extended to them up to the date of its provisions coming into force.
I welcome amendment No. 44, which largely addresses the problem under the provisions of the Family Home Protection Act, 1976, but — to finish on a note on which I began today — it puts the spotlight on the anomaly in that Act. I find it difficult to comprehend that the Minister accepted the difficulties in this area in relation to the Family Home Protection Act, 1976, but appears to be rejecting them in relation to this Bill and joint property interest.
To take the example of the wife who was deserted, say, on 1 June 1993, if that wife's husband fails to pay mortgage repayments she will be able to go to the courts and get an order under the provisions of the Family Home Protection Act, 1976, to force him to pay the mortgage repayments. If he is behaving with the family finances in a manner that may place the house at risk she may even be able to go to court and ask the court to transfer the house to her. But if she was deserted before 25 June 1993 and if the husband is paying the mortgage repayments and is not placing the house at risk, she will not have a joint interest in the matrimonial home. I do not understand the logic of that. I welcome the fact that we are dealing with the problem under the Family Home Protection Act but we are leaving a major anomaly in relation to the matrimonial home law and we are leaving thousands of wives in a position where they will not have joint ownership rights automatically conferred on them because that will only apply if they are living with their husbands on or after 25 June 1993. It does not matter whether it is your fault or whether you were living with your husband. I do not like using the word "fault" in the context of marriage breakdown. In my experience it takes two people to break up a marriage, though that is not always the case. There are instances where one spouse is the contributor to a marriage breaking down. In the majority of instances both spouses make a contribution towards a marriage breaking down.
We are addressing the problem under the Family Home Protection Act and we are putting through this House legislation which creates a new problem and creates a new type of wife — a second class citizen — in the context of ownership of the family home. We will have a situation where different wives will be treated differently instead of all wives being treated differently following the enactment of this legislation. The Minister has recognised the problem under the Family Home Protection Act but for reasons that escape me does not recognise the new problem he is creating with his own legislation. Having said that I welcome the fact that the issue we addressed at some length on Committee Stage in relation to the Family Home Protection Act appears to be largely addressed by the Minister's amendment and this side of the House will not be opposing those amendments.
I am sorry Deputy Shatter does not appreciate the distinction between the two situations he enunciates. Perhaps in the fullness of time it will occur to him that there are basic distinctions. The thrust of the Matrimonial Home Bill has some features in common with the Family Home Protection Act but it is an advance in a different direction. It gives different protections in different kinds of situations. The Family Home Protection Act was a very important measure but its effect was limited in a negative kind of way. It did not actually vest any ownership interest or take a proactive position in actually changing an ownership of the matrimonial home and vest an actual property right in the wife. This is a very different proposition from saying, as the Family Home Protection Act did, that the home could not be mortgaged or sold without the written consent of the other spouse.
This Bill is a major step forward and I am sure Deputy Shatter, in the fullness of time, will come to the conclusion that there had to be an appropriate starting point for the transfer of that ownership interest as there could be major possible consequences if it was left open-ended through the recesses of history. If it was left open-ended a husband and wife who were living together in a house 20 or 30 years ago would now find that one of the half share ownership vested interests in it would be affected by an Act passed in 1993. That is not a tenable property proposition and is unlikely to be a constitutional proposition either. It is not required and the parameters of the Bill as laid down and as it will go forward, are appropiate to the needs of the situation today and it will be well received.
I appreciate the help of Deputy Shatter and other Deputies in pointing out the protection and the limited remedy so far as the Family Home Protection Act is concerned. I am pleased he is happy that the new amendments I am bringing forward today meet the reasonable and agreed needs of the House.
Amendment agreed to.
I move amendment No. 42:
In page 20, line 32, to delete "(b)" and substitute "(a)"
Amendment agreed to.
I move amendment No. 43:
In page 21, line 9, to delete "commencement of section 4" and substitute "passing of this Act".
Amendment agreed to.
I move amendment No. 44:
In page 21, between lines 9 and 10, to insert the following:
"(3) Where, before the passing of this Act, a dwelling was a family home (within the meaning of the Act of 1976) by virtue of the fact that, before such passing—
(i) the spouse whose protection was in issue (`the spouse') ordinarily resided in it, or
(ii) if the spouse had left the other spouse, the spouse ordinarily resided in it before so leaving,
the amendment effected by subsection (1) (a) shall not apply as respects the spouse in relation to the dwelling.".
Amendment agreed to.
I move amendment No. 45:
In page 21, line 17, to delete "may" and substitute "shall, unless it sees reason to the contrary.".
Under the Judicial Separation and Family Law Reform Act, 1989, a court may order that the family home vests in one of the spouses but a subsequent sale of the home by that spouse could still require a consent of the other spouse under the Family Home Protection Act, 1976.
On Committee Stage I introduced an amendment to enable the court, when making such an order, to further order that the consent of that other spouse would not be necessary in the circumstances of the case. However, having considered the matter further I am of the view that an order dispensing with consent should usually accompany a decision to give ownership of the home to one spouse and that it would only be in exceptional circumstances where the court would still retain discretion that such an order would not be granted. This is a simplification of procedures which I think is desirable and which I am sure will be acceptable to the House.
Amendment agreed to.
When is it proposed to take Fifth Stage?
Now.
Is that agreed? Agreed.
Question proposed: "That the Bill do now pass".
In general I welcome the Bill. Having listened to and participated in the debate at various levels I have seen the benefits and I have learned a great deal. As I do not have legal qualifications I found that most of the Bill was very technical and there were many legal definitions and terms. One of the features of the debate on this Bill both in the House and at the Select Committee on Social Affairs was the constructive manner in which it was approached by all Deputies. A particular word of praise must go to the Minister who has shown himself to be receptive to the arguments advanced by all sides. It is a welcome development for legislation that the Government is committed to introduce and pass in accordance with its programme during the remainder of the lifetime of this Dáil. I hope this precedent will continue, particularly in the coming months when important Bills will be coming from the Minister's Department, notably the Family Law Bill dealing with issues of nullity and providing for spouses and children in the event of marriage breakdown. It would be desirable if the precedent established with this Bill was to be followed in the case of the other Bills which will come before the House on this subject.
As I indicated, I found much of this Bill very technical and I was at a loss in regard to terms, definitions and clarifications. The Minister extended the definition of the "matrimonial home" to give ownership rights to couples who may have separated before the Bill becomes law when the Bill was introduced in June. It gives the benefit of joint ownership only if a couple were living in the home when section 4 came into operation — six months after the Bill becomes law.
During Second Stage and the debate in the Special Committee the Minister was pressed to back-date that provision to a spouse who has been deserted or who had been forced to leave the home before the passing of the Bill. The Minister has now amended the Bill in order to give the full benefit to a couple who have separated on or after 25 June 1993 — the date on which the Bill was published.
I think Members on all sides welcome that tremendous advance. It may not have gone as far as some Deputies had sought but one can appreciate there would have been serious difficulties in going further back. As the Minister explained, a separated spouse may invoke the judicial separation Act, 1989, at any time to have the ownership of the matrimonial home assigned to him or her, if the circumstances of the case justify it.
Another example of the Minister's flexible approach to the amendments is evident in an amendment he moved today to provide that a spouse must have obtained independent legal advice before opting out of joint ownership. It must be said that there is a case against as well as for such a provision and one might ask why an adult should be forced to seek advice from a solicitor and pay the relevant fee, whether substantial or nominal. Perhaps at a later date the Minister will clarify whether it is proposed to introduce a nominal fee for this service, particularly as some people may be of the opinion they are well capable of making up their own mind. I am sure many people, both men and women will feel offended at being obliged to engage a professional in that regard. Of course, those who support the requirement of legal advice are concerned in the main for wives who are unduly influenced by or live in fear of their husbands. As a public representative I can appreciate that point because I have often come across such cases but I wonder if this provision will really help or give the wife the necessary support to fight off someone of whom she is living in total fear. One would like to think that it will and it may have the desired effect in many cases but if someone is that intimidated I doubt if any advice, whether legal or otherwise, will have any effect. However, the view of the majority is that such advice should be taken but there is no way such a provision could be designed to distinguish between those spouses who would need legal advice and those who would not. The Minister received due congratulations for bringing this provision before the House.
The Minister made significant improvements on the original text by simplifying the various technical terms. Let me assure the House that I for one benefited from that. He has amended such terms as "matrimonial home" and the "former matrimonial residence" without any apparent adverse side effects. There are many other improvements, mostly of a technical nature, that have resulted from the Minister's receptive attitude to the debate.
This Bill is a milestone in the development of equal rights for men and women and demonstrates how such rights can be achieved with the co-operation of all parties and with the support of the Minister and his Department. We had a great many problems and difficulties arising from marriage breakdown but this Bill brings us ahead by leaps and bounds and we are now on a par with some of our European counterparts. I commend this Bill to the House.
I, too, welcome this Bill but in slightly less gushing terms than the previous speaker. A good principle is being established, but the Bill is short on imagination and long on caution. It shows up the slowness of the legislative process to respond to changes in modern life, in family structures, in the way people live and the way property is owned. Now that we are nearing completion of this Bill questions need to be raised. The easy part has been dealt with but the difficult parts remain to be dealt with in the future. First, if a spouse has a right to property that he or she has not bought for himself or herself, surely people who cohabit as a couple and have a commitment to the relationship — where, for example, the woman stays at home and looks after the children and gives up the ability to earn an independent income — have certain rights to security. What about the grown up son or daughter who stays at home to look after elderly parents who may then end up in old age having committed his or her life to the role of caring and given up the right to an independent income? Surely their rights have to be considered. If the principle has been acceded to in this regard it has to be acceded to other people as otherwise it would be unfair.
It also raises the question of property. The question of community property was raised in the Second Commission on the Status of Women report which recommended the concept of community property in marriage and not only of the matrimonial home or the chattels. I had tabled an amendment in this regard but unfortunately I was called away when my amendment on chattels was called. I would hate to finish the debate without making the point because it is important and relates to the disjunction between the legislation and the way life is being lived. When one considers that household chattels for the purpose of this Bill include linen, china, earthenware, glass, books, ornaments, consumable stores, garden effects and domestic animals, my modest little amendment which asked that an important item of the household chattels, the car, should be included in that list — I do not have to state the reasons why a car is so vital for modern domestic life——
Let me remind Deputies that we are on Fifth Stage and the debate is confined to what is in the Bill.
The matter of chattels is in the Bill and as I read it a spouse will now have the right when the Bill is enacted to half the budgerigar, half the cat, half the dog or, indeed, half the garden hose or half a tin of baked beans, if consumable stores mean what I take them to mean.
That is a valuable item in some cases.
This Bill is poor consolation for a spouse who owns half the matrimonial home but does not have the means to get from that home to the shops, particularly if she lives in a rural area, to buy a tin of beans. I acknowledge that I am raising a matter which I should have raised earlier but, unfortunately, I was called away. In general, this legislation does not relate to the way life is lived today and does not reflect the importance of material goods for people to survive, to meet the educational requirements of their children or to have an independence which gives equal status to women. Finally, research has shown that the likelihood of a child having learning disabilities can be determined by whether the householders own a car or a telephone. The value of a car in enabling a spouse to have access to educational or shopping facilities is important, but this Bill does not recognise that. The Bill limits equal status to the chattels, which include the domestic pet. This indicates a weakness in the legislation. It illustrates that we are looking backwards, that we are always a few steps behind. We were promised progress and the previous speaker believes we have made great progress.
We have.
I would like to pour a little cold water on that belief because the most serious problem in regard to the equality of women, particularly in marriage, is the belief that it is an easy matter to resolve and that a simple solution will provide the magic formula. However, I welcome the Bill and will support it.
I would remind Deputies that we are discussing the contents of the Bill.
(Laoighis-Offaly): For the benefit of the media, we sat through the match on this occasion. There was no question of an adjournment to watch it and we do not have the result.
I would not ask if I were you.
(Laoighis-Offaly): The Deputy who made a great deal of mileage in the media on the occasion of the last match was absent from proceedings today.
She is at the match.
She is ill and at home in her bed.
(Laoighis-Offaly): I hope those of us who were present during the match today will receive recognition.
I agree with the Deputy, but from someone who has been present in the House for the past 25 minutes only that sounds somewhat rich. He should not attack absent friends when he was absent for most of the day.
(Laoighis-Offaly): I have been in the House since the end of Question Time.
We missed the Deputy this morning.
Deputy Gallagher, without interruption.
(Laoighis-Offaly): As a member of the Select Committee on Social Affairs, participating in that type of exercise for the first time was somewhat similar to being on the outside of a goldfish bowl looking in. The debate was confined to members who are expert in the law. However, it was an interesting experience to observe the passage of the Bill through Committee Stage.
My experience is not in the area of law, but in my previous capacity as a community worker and current capacity as Member of this House I am familiar with the question of access to the legislation we are about to pass. It is appropriate that law should be amended and brought up to date, but will the legislation be accessible to those who need it? I acknowledge that the Minister is preparing proposals which will improve access to legal aid services and allow people to access this legislation. I trust that the co-operation which members of other parties have shown during this debate will be forthcoming when the Minister requests the necessary finance from this House to allow people recourse to the law under the provisions of this Bill.
This legislation is an important step in bringing our laws into line with reality. Deputy McManus's point about whether we are behind or in front of reality is a separate argument. Opinions differ as to whether law should lead change or cope with it as it happens. This legislation is a reasonable approach.
Frank Litton's book, Unequal Achievement makes a worthwhile point in relation to the changes since the fifties. The project of economic and social development initiated by the Government at that time resulted in a much more complex society in terms of its economic, gender and social structures and this Bill is a genuine attempt to bring our laws into line with that complex reality. Some people are against such progress and when we come to deal with the substantive issue of divorce I am sure we will hear their voices raised in a much more controversial manner. While it is necessary to deal with the matter of divorce through legislation, this Bill stands on its own merits. I welcome the fact that it will update the law in regard to equality and the Minister and the officials of his Department, which was set up at the beginning of this year, are to be complimented on the way they have speedily brought this legislation before the House. It was introduced in June and will pass through this House today.
As a newcomer to this type of procedure, I was impressed by the contributions from all sides. I pay tribute to all Deputies who contributed on Committee Stage. As a non-expert it was difficult to make a contribution, but, as a member of the Select Committee on Social Affairs I am glad that many Deputies contributed and that flexibility was shown on all sides. That demonstrates that with a reasonable approach better laws can be enacted. I will support the Bill.
I welcome the Bill as amended. Substantial amendments were made to the Bill on Committee Stage. The Minister was flexible in answering many of the points raised and as a result we have a better Bill than introduced initially.
This Bill deals mainly with the rights of spouses, but there is a danger that women might consider it will provide protection for them, as is the case in respect of the Family Home Protection Act. This Bill will not provide them with any great protection and this should be drawn to the attention of dependent spouses of both sexes who should be advised to become actively involved in the legal status of all their property, including their home. It would be better for the owners to have the property jointly registered in their names regardless of the provisions of the Bill. The intestacy provision in the Bill is welcome. In a nonconflicting relationship where a spouse dies intestate the Bill provides that the surviving spouse will automatically inherit the estate and that is a significant improvement. However, people should be aware of the legal position surrounding the ownership of property and dependent spouses should not depend on this legislation to protect them. A word of caution should be sounded on the passage of this Bill that where there is a conflict the provisions of the Bill will be superseded by those of the family law separation legislation. People will need to be actively involved in the proper resolution of personal disputes and not depend on the absolute protection of the Bill. In the past spouses who believed they enjoyed such protection later found that was not the case.
I commend the Minister, and Opposition Deputies, who worked on this legislation even when the House was in recess. They used the legislative process to the full in Select Committee. The Bill does not address all the problems identified, particularly by the Opposition. I accompanied the Minister on a recent visit to a constituency and we found the need for this legislation. There is a need for it in all constituencies, irrespective of people's background or social standing. There are social concerns particularly in regard to women's rights.
Many women, separated from or deserted by husbands now living outside the jurisdiction, felt insecure in the family home. Some were making extraordinary claims on the spouse in the family home who was looking after the children, trying to maintain the home and meet the mortgage repayments. Demands were made on those women to sell the family home to meet the other spouse's claim to half the value of the property. Those women were getting advice on the judicial separation Act and trying to work within the Family Home Protection Act, and this Bill addresses some of the problems identified. It provides that a spouse who had no ownership rights in the past will now have joint ownership rights in regard to the property. That is progress. The Bill will also address some of the problems dealt with in the past in social legislation. Items of property and chattels were used as a diversionary tactic by those with vested interests and this moved the debate away from the real contest.
Women in particular will benefit from this Bill. I know of cases where people are trying to reach a settlement and chattels are the important issue. The Bill will address that issue. I welcome the co-operation of the Minister and the contributions of Opposition Deputies who have such expertise in this area. The House benefited from that expertise and the legislation is all the better for it. I welcome the Bill which was promised in the Programme for Government. Hopefully, following the enactment of this legislation we will be able to address many of the problems we face in our constituencies.
I join Deputy Ferris in welcoming the Bill. I have worked to ensure that women's rights in Ireland are recognised. I am hopeful this Bill will pave the way for a more equitable society. This Bill is particularly important in a country where 70 per cent of women work full time in the home, where access to paid employment outside the home creates great difficulties for women and where there are so many barriers to women getting paid employment. I appreciate the flexibility the Minister displayed on Committee Stage in accepting amendments which make this a more comprehensive Bill.
I share some of the concerns expressed by Deputy Shatter in relation to the two categories of women to which he referred and I am concerned about how that will play out legally for some women. I am sure many women will be disappointed that their problems are not dealt with in the Bill. I would like to pay tribute to Deputy Shatter for the hard work he put into the Bill on Committee Stage. Many of the amendments he tabled were accepted and improved the Bill. The real test will be when women seek to avail of the provisions of the Bill.
It is extremely important that women have access to information about its provisions. Good quality legal information should be made available to women and there are many ways this can be done. A booklet should be prepared by the Minister's Department following the passage of the Bill and financial help should be given to organisations such as AIM, the group advocating family law reform, to help it make such information available. While this is a technical and complex Bill it is extremely important that its main provisions should be explained to Irish women as soon as possible.
I am pleased we have reached the stage where this Bill has been passed by this House. We have contributed substantially to the Bill which will leave the House a better Bill than when it was introduced. That is what the legislative process is all about. I regret that some of our amendments were not accepted. I hope the Minister will reconsider them when the Bill is going through the Seanad and, perhaps, redress some of the difficulties that exist under the Bill.
The Bill is of importance in particular to wives. It will benefit wives more often than it will benefit husbands. I regret we have created two different categories of wives in the context of the Bill. A previous speaker referred to the Bill as being a milestone of equal rights for men and women. Unfortunately, under this Bill, because of the Minister's refusal to accept one of the earlier amendments, some women will be more equal than others and that is a wrong way to go about our business.
The Bill is an improvement on the legal position that pertained and is one women will welcome. I hope the Minister between now and the Seanad debate will seriously reconsider the problem I outlined which can be properly and adequately addressed. We should ensure that all women are treated equally and not leave some women more equal than others.
I thank Deputies on all sides who made such a major contribution to this Bill, which, as Deputy Fitzgerald said, is a milestone in progress on the Irish scene. This Bill was an exercise of legislation here at its best. It was recognised that this was a major technical Bill, as witnessed by the fact that it has been on the stocks for many years. Many Deputies had not realised how complex it was until it was circulated. I agree with Deputy Shatter that it is a better Bill leaving the House and that is the way it should be. Deputies who have a particular expertise should give their best and those who do not have a professional expertise also have a major role to play and many played that role at the various Stages of the Bill.
I thank the officials of my Department who worked long and hard at the preparatory stage for me and other Deputies who came for briefings to the special committee. The special committee is an important new device and many Deputies considered it very helpful.
I am sorry that it was not possible for me to accept all the amendments put forward but I tried to be as objective and constructive as possible. In some instances to some extent the amendments I accepted were against my better judgment. I allowed myself to be influenced by the arguments put forward. It was unfortunate that some amendments were not debated. I know that Deputy McManus was very concerned about second homes and motor cars, perhaps not in classical Democratic Left style.
I want everybody — particularly women — to have a car.
It is unfortunate that the Deputy was not in the House when her amendment came up so that we did not have the opportunity to debate the question of the motor car.
This Bill in its thinking puts us to the forefront in western democracies. Some countries in Scandinavia have a universal community of property regime which is an advance of this — and something to be aimed at, as recommended in the second commission report — but, so far as matrimonial homes go, we are to the forefront and we can congratulate ourselves on that in a moderate fashion. In the UK, for example, a law reform commission report going back to 1970 recommended the introduction of a law putting matrimonial homes into automatic joint ownership of both spouses, but that proposal has not seen the light of day there.
This Bill has often been referred to as being a run-up to the issue of divorce. I would make it quite clear to the House that this measure stands on its own independently of the issue of divorce. Whether or not the people decide to vote for divorce in 1994 is separate and distinct from this important Bill. Both spouses are entitled to this measure. I know from communications received by me that women and women's groups in particular have warmly welcomed it and I appreciate the generous comments on the Bill made by Deputies from all sides of the House.
I fully accept that the question of access to necessary advice in connection with the Bill is important and steps are being taken by the Department in that regard. The structure of the Bill is such that it makes any procedures needed to be invoked in connection with the Bill as simple and as cheap as possible. For example, the vesting of the joint interest in both spouses is an automatic measure, and even without the benefiting spouse taking any specific overt action there is a vesting of the beneficial interest in that benefiting spouse. That is not to say that the spouses should not take steps to get themselves registered and we have devised the simplest and cheapest possible procedure to enable them to do that. I strongly recommend that all spouses should take that step when the Bill is passed. We have provided that in the Land Registry stamp duty will not be involved in registering title. That is a major step forward. Only simple documentation will be required for it and likewise in the Registry of Deeds there is a simplified cheap procedure involving no stamp duty.
I thank everybody concerned with the Bill and will consider outstanding matters in the context of the Seanad. As has been said, this is a good Bill and we can look forward to further measures in this House on family law issues which I trust will be addressed in an equally constructive manner.
Question put and agreed to.
The Bill will now be sent to the Seanad. Will the Minister kindly move that the sitting should be suspended until 7 p.m.?
On a point of order, as this is only our second week back and since it is only 5.15 p.m., I wonder if the Govenment has no other legislative business to deal with in the House? Sitting suspended at 5.20 p.m. and resumed at 7 p.m.