Before embarking on the Bill I wish to bring to the attention of the House an error in the Bill as printed after consideration by a Select Committee. In page five, line 25, the words "which vests" should read "vesting". An erratum slip has been published accordingly.
Matrimonial Home Bill, 1993: Report Stage.
Acting Chairman
On a point of order, Sir, before we embark on Report Stage of what is a very important Bill I want to register the strongest protest. This Bill has gone through Committee Stage, commencing in July and through a number of days in September before the Select Committee on Social Affairs. If the Bill had gone through Committee Stage within the Chamber of this House, within seven to ten days of that taking place there would have been a full Dáil report containing details of the debate, the discussion that took place on the Bill and on the amendments, and recording commitments made by the Minister in relation to amendments tabled by Deputies on this side of the House.
I recall that when I first entered this House in 1981 the tradition was that Dáil reports were available normally within four days of a debate concluding. Despite improved technology things appear to have deteriorated hugely in this area in recent times. I appreciate that is partially due to the additional workload on staff because of the committees. The only point I want to make is this. This morning we finally had published and circulated to Deputies the Select Committee on Social Affairs parliamentary debate, printed report of 15 July 1993, which deals with the start of the discussion on this particular measure.
Acting Chairman
We note the remarks.
No other reports have been published. Deputies did not have available to them the assistance of the printed reports for the preparation of Report Stage, nor did groups outside this House who have a particular interest in this have available to them the record of the debates that took place. If the committees are not properly staffed the committee system will not work properly. Instead of assisting the legislative process it will create difficulties within that process. I am saying that to the Minister because presumably this Minister will be bringing further legislation before the House, the Committee Stage of which will go before the Select Committee on Social Affairs.
I want an explanation as to why the Minister's office did not ensure that a full record of the debate that took place was circulated to all Members of the House. I want an assurance in future that that will happen before the Report Stage of any further Bill is taken.
I sympathise with the comments of Deputy Shatter. It would be desirable that the records of committee proceedings be available. I do not know the reason they are not available but I will make inquiries with the appropriate authorities.
It is the duty of the Government to provide this House with the resources necessary to ensure that the committees which have been set up work properly. It is the duty of the Minister to ensure that that happens. I am astonished that the Minister is unaware of the reasons for this.
I move amendment No. 1:
In page 3, line 15, after "sections 2", to insert ", 3".
A number of material provisions are already due to come into operation on the passing of this Bill. The purpose of this amendment is to ensure that the repeal of section 12 of the Married Women's Status Act, 1957, will take effect from that date also. This is necessary because section 18 of this Bill, effectively a replacement section for section 12, will itself be operative from that date.
Can the Minister confirm to the House, for the sake of the record, that any proceedings that have been initiated pursuant to section 12 of the Married Women's Status Act, 1957, prior to the commencement of this Bill will not be affected by the Minister's amendment?
I confirm that.
Amendment agreed to.
Acting Chairman
We come now to amendment No. 2. Amendments Nos. 4 and 16 are related. I propose that we take amendments Nos. 2, 4 and 16 together.
I move amendment No. 2:
In page 4, to delete line 5.
These are purely drafting amendments.
Amendment agreed to.
Acting Chairman
We come to amendment No. 3. Amendment No. 1 to amendment No. 3 and amendments Nos. 10, 23 and 26 are related. I suggest that amendment No. 3, amendment No. 1 to amendment No. 3 and amendments Nos. 10, 23 and 26 be discussed together.
I move amendment No. 3:
In page 4, to delete lines 8 to 12 and substitute the following:
" `matrimonial home' means a dwelling in which a married couple ordinarily resides or reside on or at any time after the 25th day of June, 1993, as their sole or principal residence and includes any easements attached or annexed to such a dwelling and exercisable over any other land;".
On Committee Stage I was struck by the arguments made by many Deputies who put forward the view that in certain circumstances the original definition of "matrimonial home", with its emphasis on ordinary residence, immediately before the commencement of section 2 could act to the detriment of vulnerable spouses and the definition could, in effect, be used to subvert the intention underlying the Bill, namely, that of shared ownership of the matrimonial home as is the norm within marriage. Having considered the matter further I am now satisfied that it would be appropriate to backdate this particular provision to 25 June 1993, the date of publication of the Bill. It is reasonable to assume that as and from that date individual spouses would be on notice concerning the fundamental provisions of the Bill and that it would be manifestly unjust if that knowledge were to be used to deprive a vulnerable spouse of rights which they might otherwise have enjoyed under this Bill. A consequential adjustment is also being made in relation to mobile homes — section 10.
Deputy Shatter's amendment on this point would backdate the definition indefinitely and cover couples who had separated 20 or more years ago provided that one of the spouses is still living in the home. In my view this would introduce uncertainty and would go far beyond any limitation period that could be reasonably justified. With the backdating of this provision to 25 June 1993 it is more than ever likely that couples who may have separated since that date will have made their own arrangements with regard to the disposition of their property. It is not my intention to upset such arrangements and an adjustment in the existing separation provision to line it up with the new definition of a matrimonial home is being made in amendment No. 10.
I move amendment No. 1 to amendment No. 3:
In the last line, after "other land;" to insert the following:
"the expression comprises in addition a dwelling in which a married couple ordinarily resided prior to the 25th of June, 1993, as their sole or principal residence and in which either spouse continued to reside on or after the 25th of June, 1993 and includes any easements attached or annexed to such a dwelling and exercisable over any other land;".
This is a very important amendment. For a Bill of this importance I am amazed that there is nobody in this House to deal with Report Stage from either the Progressive Democrat Party or Democratic Left. I find that absolutely incomprehensible. I find it particularly incomprehensible in the context of the serious issues that will now be discussed under this amendment. It bodes ill for this House that Report Stage of an important measure is treated in this way by the other parties in the House. I noticed on the preceding Bill that there was nobody present from Democratic Left and I find that extraordinary. I also deplore the fact that there is not a single member of the Fianna Fáil Party in the House debating this Bill.
The Minister's amendment derives from a lengthy discussion we had on Committee Stage. I have to say that when this Bill was first published I had serious concerns about the nature and quality of the Bill as drafted. The principle of the Bill has at all times been supported by the Fine Gael Party and for many years I have campaigned for legislation to ensure that the partnership element in marriage was recognised during the lifetime of couples and that they would be regarded as automatic joint owners of their matrimonial home.
When first published this Bill had very many serious flaws but fortunately a number of those flaws were remedied on Committee Stage by the Minister's taking on board amendments I tabled. Following detailed debate on Committee Stage the Minister is now bringing forward amendments to redress some problems which he admitted either existed or whose existence he vehemently denied. On Committee Stage I made the point that applying joint ownership to the matrimonial home in circumstances in which the couple were residing in it only immediately prior to the commencement of the Act would create all sorts of difficulties and would exclude many thousands of spouses from joint ownership. As this Bill is primarily designed to redress the imbalance whereby large numbers of wives do not have joint ownership of the family home it is particularly prejudicial to many thousands of wives who were deserted or already separated but had not entered into any formal legal separation agreements with their husbands or in circumstances where there were no court orders.
The amendment the Minister has tabled is a limited recognition of the extent of this problem. In non-legal language, the effect of the amendment is that if a married couple were residing together in the matrimonial home on or after 25 June 1993, regardless of who has legal title to the property it will be regarded by and large as jointly owned. On Committee Stage I deliberately sought to cajole the Minister in a constructive way to address some of the problems in this Bill and I think I was successful. However, if the Minister adopts his definition of "matrimonial home", this Bill will be fatally flawed because on its enactment it will exclude from automatic joint ownership thousands of wives already separated or deserted who are residing in family homes owned by their husbands. It will do so for one reason only, that their husbands happened to walk out on them sometime prior to 25 June 1993. If a husband deserted his wife on 24 June 1993 and his wife is living in the family home with her three children, she will not have automatic joint ownership if the home is currently in the husband's sole name.
I will explain in more detail why this is such a major problem. I have here the statistical information on social welfare for 1992, published by the Department of Social Welfare. That report states that 15,000 women were in receipt of the deserted wife's allowance and deserted wife's benefit. I am sure a number of those wives were living in homes jointly owned with their husband but it is not unreasonable to assume that at least 50 per cent were living in homes that were vested in the husband's sole name. From Government statistics alone I can identify in the region of 7,500 wives for whom this measure will not provide automatic joint ownership of the home.
Let us take it a stage further. One only qualifies for deserted wife's allowance on the basis of a means test. There are many deserted wives throughout the country who do not qualify for this allowance and whose husbands or themselves have not made sufficient insurance contributions to qualify for the deserted wife's benefit. An unknown number of wives who are deserted do not appear in these statistics. There are also husbands and wives who have agreed to separate without concluding a formal agreement or by bringing proceedings, for example a husband may agree voluntarily to move out of the family home because of an extra marital relationship but that is not desertion and his wife does not qualify for deserted wife's benefit. A husband may be currently making support payments to his wife from whom he made a verbal agreement to separate. It is impossible to estimate the number of wives in that position. No one has accurate statistics and I am not going to pretend that I have. We do not know the number of husbands and wives who may be getting legal advice on their options where only one spouse was left residing in the family home prior to 25 June 1993. A very conservative estimate of the number of wives in that category would be between 16,000 and 20,000. I will not say there are 25,000 people or more in that position because I do not know, but it is reasonable to assume that there are more wives living apart from their husbands without any legal arrangements sorted out between them who are not in receipt of social welfare payments than there are wives who are in receipt of social welfare payments.
I can see no justification for the Minister's amendment defining the "matrimonial home". The fact that on Report Stage we are still trying to redefine "matrimonial home" illustrates the complexities and difficulties in this area, even when there is agreement on all sides of the House on the principle of what we need to do. I tabled an amendment to amendment No. 3 because I anticipate that if the Minister does not accept my amendment there will be huge anomalies and injustices created and those anomalies and injustices may give rise to constitutional difficulties with this legislation. Wives in identical circumstances will be treated differently depending on the date their husbands deserted them. That is a bizarre way to go about implementing legislation of this nature. When the Family Home Protection Act came into force in 1976, there was not a cut off date to define what a family home was.
In his amendment the Minister seeks to define matrimonial home as follows:
In page 4, to delete lines 8 to 12 and substitute the following:
" `matrimonial home' means a dwelling in which a married couple ordinarily resided or reside on or at any time after the 25th day of June, 1993, as their sole or principal residence and includes any easements attached or annexed to such a dwelling and exercisable over any other land;".
I propose that the following addition be attached to this definition:
In the last line, after "other land;" to insert the following:
"the expression comprises in addition a dwelling in which a married couple ordinarily resided prior to the 25th of June, 1993, as their sole or principal residence and in which either spouse continued to reside on or after the 25th of June, 1993 and includes any easements attached or annexed to such a dwelling and exercisable over any other land;".
The Minister says that acceptance of this provision would introduce uncertainty into the legislation. It will not, because if someone had moved out of the family home 20 years ago it would be unjust to give that person an interest in the matrimonial home and there is specific provision in this legislation to ensure that he or she does not get it. To take the example the Minister gave, if someone had moved out of the matrimonial home 20 years ago and the couple had resolved any matters at issue between them by legal proceedings or by conclusion of a formal deed of separation, that would not affect the ownership position of the family home because of the other provisions contained in the legislation.
This amendment will provide protection for thousands of deserted and separated wives for whom the courts have not made orders to resolve the consequences of their marriage breakdowns and where there is no written agreement in force between the husband and wife in regard to ownership of the family home. Let us take the example of a husband who deserted his wife 20 years ago and has been living with another woman since. Let us say no legal arrangements were put in place and, following the enactment of the Family Home Protection Act, the wife did not take any legal steps in respect of ownership of the home because she knew the husband could not effect the sale of the home without her consent. She continues to live in the home which is in her husband's sole name while he resides in another house he has purchased jointly with a person with whom he is having an extramarital relationship. Is the Minister saying that such a wife should not have automatic joint ownership of the family home? He may say that she is entitled to take proceedings under the judicial separation Act, but that argument could be used to prove that this legislation is unnecessary because if one's marriage breaks down either before or after 25 June 1993, one can take proceedings under the judicial separation Act and ask the courts to provide one with a joint or full interest in the family home.
The intent of this legislation is to recognise that marriage is a partnership and that when two people marry the family home, in law, will be regarded as jointly owned. The intention is to provide wives, who are often the financially vulnerable party in a marriage breakdown, with the security of knowing that if they must go to the courts or seek legal advice that, at the very least, they jointly own the family home. The Minister has committed a grave error in dismissing my amendment before hearing the explanation.
The Minister and I were on the same side in the divorce referendum of 1986. I recall the individuals and groups who sought public recognition during that campaign in opposing the referendum by spreading scare stories to frighten people who, in the weeks prior to the referendum, were in favour of divorce, into voting against divorce. I spoke to many wives both in my capacity as a public representative canvassing support for the referendum and as a solicitor advising people in respect of marriage problems. During the divorce referendum campaign thousands of deserted wives planned to vote in favour of divorce but were frightened into voting against it by scare stories which claimed that if they voted for it they would be left homeless. Despite the promises of the then Government to introduce legislation similar to the judicial separation Act to provide protection in the home prior to divorce decrees coming into force, they were led to believe that if they voted for divorce they would lose their family home.
Regardless of whether or not divorce is introduced, this is a worth-while Bill. The Minister spoke about the need to put this Bill in place so that people would feel secure if a divorce referendum is held and to ensure that the scare tactics used to frighten people, against their better judgment, into voting against divorce would not be successful again. However, the Minister is depriving thousands of wives of rights to which they are entitled under this legislation and creating two categories of wives, the wife whose husband deserted her prior to 25 June 1993 and the wife whose husband deserted her after 25 June 1993. Both will hold a different status and that is indefensible in the context of rights in respect of the matrimonial home.
The Minister is also laying the foundations for the creation of major difficulties for the success of a divorce referendum, something I hope will be successful. That type of anomaly would be exploited unmercifully by those who oppose a change to allow people a second chance when their marriages break down. It is extraordinary that a Minister for Equality and Law Reform should introduce legislation that will create two types of wives in law, the wife who has rights in the matrimonial home and the wife who does not and who will be left to the discretion of the Judiciary to get ownership rights in respect of the matrimonial home if her marriage breaks down. That is the exact antithesis to the philosophy which should surround the Minister's Department in addressing issues.
I do not envisage any difficulties in practice in accepting my amendment. The uncertainty to which the Minister referred could be dealt with easily by other provisions in the Bill. The Minister is condemning to uncertainty thousands of wives who, because they do not understand the technicalities of this legislation but have a general indication from the media that the legislation is before the House, believe this legislation will assist them, but they are wrong. What is happening here in the context of wives who were separated prior to 25 June 1993 and live on their own in the family home is of no relevance because they are not entitled to the same rights as others.
I do not wish to labour this point any longer. I am conscious that this legislation is implementing a principle we all support, it is extremely difficult and technical and the general public do not understand its technicalities or the anomalies pertaining to it, but this issue is vital to thousands of wives. Of course, as the legislation also extends rights to the husband, it will be vital to husbands whose wives currently own the family home and have deserted their husbands. That is not the usual position when marriages break down but it is the case in some circumstances. I am sure all Members have met husbands who are in that position.
We should not enact a measure which, in effect, under statute compounds a discrimination and gives a legislative imprimatur and affirmation to it. Currently, no wife has an automatic joint interest in the family home, unless the home is in joint names or she has made a financial contribution to it. Under this legislation a category of wives will remain in that position and others will be taken out of it. Such discrimination may be unconstitutional and could be at the very root of the operation of this measure but I would be happy to be proved wrong.
I stated in respect of other provisions of the Bill that it would be a good idea if the Bill was referred to the Supreme Court for a decision as to its constitutionality. If the constitutionality of this Bill is not determined, pursuant to a constitutional reference by the President, as sure as night follows day within 12 months of its enactment it will be constitutionally challenged by either a husband or a wife. The Bill will wind its way through the High Court and the Supreme Court and the law will be uncertain for one or two years. That is not desirable. The Minister is adding another complication. He has dealt with a portion of the problem that derived from the use of the word "immediately". He has not dealt with the larger problem I referred to on Committee Stage that he appears to be copperfastening today. I urge the Minister to accept this amendment. In his later amendments he appears to be seeking to amend the Bill to deal with problems other Deputies and I raised on Committee Stage and which the general public were informed through the broadcasting media need not be addressed. He now recognises the need to address them. This is our last opportunity to address this issue in the Dáil unless it is returned from the Seanad. I ask the Minister to accept the amendment. It is intended to make the Bill workable, comprehensive and to apply it equally to people in identical circumstances. It is regrettable that the Minister has indicated he does not intend to accept this amendment. If he does not, this matter will be put to a vote.
Before Report Stage I gave careful consideration to the commencement provisions of the operative and definition sections of the Act and concluded that the format presented in amendment No. 3 is the correct and proper one to use.
There are two elements involved, that of residency and marriage. To bring legal provisions into play now in regard to say a separation that took place 20 years ago is something that could not be seriously considered and would have many dangerous implications. Far from accepting Deputy Shatter's point that to leave the provision as it is might have constitutional implications, I believe the reverse would be the case. To introduce the element of indefinite, non-defined, uncertain retrospectivity could bring constitutional questions into play.
The Bill sets out to provide that married couples will have the ownership of their matrimonial home vested jointly in them from the date the Bill was published on 25 June 1993. That was the date on which a new prospective legal position was established. People who separated 20 years ago are in a different position. They have rights but their rights are different. The legal and factual position of that family changed from the date of their separation 20 years ago. They may have availed of their rights during the years of their separation. They may have entered into a separation agreement and brought proceedings under the 1989 judicial separation Act. If they had not taken such action it is still open to them to do so.
I do not accept Deputy Shatter's comment that by reason of the judicial separation Act this Bill is redundant and I am sure very few people would hold that view. The Bill is an important and necessary one. It deals with marriage partnership positions as the law finds them at the date of introduction of the Bill on 25 June 1993 and from that date forward. The legal position of couples before that date is covered by a different legal regime. Their rights exist and are adequately covered by the 1989 Act. In the majority of cases whatever arrangements were appropriate may by now have been availed of and if not, may yet be availed of.
To leave open the question of vesting a matrimonial home in a spouse in respect of a separation which took place 20 years ago would give rise to incalculable conveyancing problems. It would have very serious effects on the conveyancing and marketability of property and would raise retrospective questions relating to an indefinite period in the past which could not seriously be contemplated. It would leave the way open for unjust and unacceptable positions.
Under Deputy Shatter's amendment, if a wife was deserted by her husband 15 years ago and he settled with another woman, and the wife owned the dwelling, the spouse who deserted would be vested with a joint interest in the former matrimonial home. That position is not one that should be allowed develop. I have gone the maximum length to meet the proposals put to me on Committee Stage by taking the earliest possible date that could reasonably be contemplated as setting up the new legal situations envisaged by this Bill — the date of introduction of the Bill on 25 June 1993. Having considered the matter carefully, I regret it would not be appropriate to extend the date, particularly on an indefinite basis.
Unfortunately the Minister has not fully grasped the position. His Bill ensures that no one will unjustly benefit as a result of joint ownership. The Minister gave an example of a wife who owns a family home and was deserted by her husband 15 years ago and he claimed that under my amendment the husband could now claim joint interest. The Bill provides a mechanism to ensure the husband could not gain joint interest. To take a counter example of the wife who is living in a home solely owned by the husband who deserted her 15 years ago. Why should that wife not have an automatic joint interest? A wife who was deserted on 25 June 1993 will have that right.
The provisions in the Bill are anomalous, unjust, arbitrary and do not provide for equality of treatment. No one outside this House has any control over the date on which a Bill will be published. The provisions in the Bill make no legal sense. The Minister is not considering this matter as someone whose remit is to protect the rights of vulnerable wives. Effectively he is approaching this matter as a conveyancing lawyer might. Lawyers who deal with conveyancing matters have always felt uncomfortable at the manner in which family law impinges on the work they do. I do not see this as creating any more problems than the Family Home Protection Act did. At the time it was enacted it had certain defects that gave rise to problems, but this difficulty was not one of them.
The Family Home Protection Act provided for the definition of a family home as a residence in which a couple were ordinarily residing or in which they had ordinarily resided. It did not say that a family home was only a family home if a couple lived in it after the date on which the Family Home Protection Bill was published. Although that Act was passed in 1986 it provided protection for wives who had been deserted in the seventies and early eighties and this Bill should provide the same joint interest right. If there were any constitutional difficulties they would have arisen in the context of challenges to the Family Home Protection Act. The Minister is wrong in what he is saying. I regret that he is not taking on board this amendment. The message that should go out from this House is that a wife who has been living apart from her husband prior to 25 June 1993 without having had the good fortune to conclude legal arrangements to ensure an ownership right in the family home cannot look to this measure for ownership rights and that this measure is of no relevance to a woman living apart from her husband in the home owned by her husband if she has been living apart from him prior to 25 June 1993. That is the message and it is a wrong message.
I did not say that the judicial separation Act was not relevant. Of course it is. Fortunately that Act was put through this House as a Private Members Bill and will provide for a residue of protection, but it means that a wife now going to the court under that Act when a marriage is broken down, if she has separated from her husband prior to 25 June 1993, may do so from a starting point where she has no ownership right in the home but she will if she is separated after 25 June 1993 have such ownership right. Having completed the debate on the matter I regret that the Minister is not accepting this amendment and I now want it put to a vote.
Amendment No. 1 to Amendment No. 3 put.
The Dáil divided: Tá, 44; Níl, 79.
Tá
- Barrett, Seán.
- Barry, Peter.
- Boylan, Andrew.
- Bradford, Paul.
- Bruton, John.
- Bruton, Richard.
- Carey, Donal.
- Clohessy, Peadar.
- Connaughton, Paul.
- Connor, John.
- Cox, Pat.
- Crawford, Seymour.
- Creed, Michael.
- Cullen, Martin.
- Currie, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Dukes, Alan M.
- Durkan, Bernard J.
- Finucane, Michael.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Foxe, Tom.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Hogan, Philip.
- Kenny, Enda.
- Keogh, Helen.
- Lowry, Michael.
- McCormack, Pádraic.
- McDowell, Michael.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mitchell, Gay.
- Mitchell, Jim.
- Molloy, Robert.
- Noonan, Michael.
- (Limerick East).
- O'Malley, Desmond J.
- Owen, Nora.
- Shatter, Alan.
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Andrews, David.
- Bhamjee, Moosajee.
- Bree, Declan.
- Brennan, Séamus.
- Briscoe, Ben.
- Davern, Noel.
- Dempsey, Noel.
- Doherty, Seán.
- Ellis, John.
- Ferris, Michael.
- Fitzgerald, Brian.
- Flood, Chris.
- Gallagher, Pat the Cope.
- Gallagher, Pat.
- Geoghegan-Quinn, Máire.
- Haughey, Seán.
- Higgins, Michael D.
- Hilliard, Colm M.
- Howlin, Brendan.
- Hughes, Séamus.
- Jacob, Joe.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenneally, Brendan.
- Kenny, Seán.
- Kirk, Séamus.
- Kitt, Michael P.
- Lawlor, Liam.
- Leonard, Jimmy.
- Martin, Micheál.
- McDaid, James.
- McDowell, Derek.
- Moffatt, Tom.
- Morley, P.J.
- Moynihan, Donal.
- Broughan, Tommy.
- Browne, John (Wexford).
- Burton, Joan.
- Byrne, Hugh.
- Callely, Ivor.
- Collins, Gerard.
- Connolly, Ger.
- Costello, Joe.
- Coughlan, Mary.
- Moynihan-Cronin, Breeda.
- Mulvihill, John.
- Nolan, M.J.
- Ó Cuív, Éamon.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Leary, John.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Penrose, William.
- Power, Seán.
- Quinn, Ruairí.
- Reynolds, Albert.
- Ryan, John.
- Ryan, Seán.
- Shortall, Róisín.
- Smith, Brendan.
- Smith, Michael.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Upton, Pat.
- Wallace, Dan.
- Walsh, Eamon.
- Walsh, Joe.
- Woods, Michael.
Tellers: Tá, Deputies E. Kenny and Boylan; Níl, Deputies Dempsey and Ferris.
Amendment to the amendment declared lost.
Amendment No. 3 agreed to.
I move amendment No. 4:
In page 4, to delete lines 29 to 33 and substitute the following:
"(2) References in this Act to a dwelling, a home or a matrimonial home include references to a part of the dwelling, home or matrimonial home, as the case may be.".
This amendment has already been discussed with amendments Nos. 2 and 16.
Amendment agreed to.
I move amendment No. 5:
In page 4, to delete lines 42 and 43 and substitute the following:
"(c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the".
This is a drafting amendment.
Amendment agreed to.
We now proceed to amendment No. 6. I observe that amendments Nos. 6 and 8 are related. I propose therefore that we discuss amendments Nos. 6 and 8 together by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 7, line 24, after "paragraph (b)", to insert "and having such priority (if any) as may be so determined".
Amendment agreed to.
We now proceed to amendment No. 7, which is a drafting amendment.
I move amendment No. 7:
In page 7, line 25, after "each spouse", to insert "or either spouse".
Amendment agreed to.
I move amendment No. 8:
In page 7, line 29, after "amount", to insert "and shall have such priority (if any)"
Amendment agreed to.
We now proceed to amendment No. 9. I observe that amendment No. 11 is related. I suggest therefore that we discuss amendments Nos. 9 and 11 together. Is that satisfactory? Agreed.
I move amendment No. 9:
In page 8, to delete lines 1 to 6, and substitute the following:
"(2) Where a married couple have concluded a deed of separation or a separation agreement on or after the 25th day of July, 1993 but prior to the commencement of section 4, the application of that section to the matrimonial home concerned shall be subject and without prejudice to the provisions of any such agreement made between the spouses.
(3) Where an order has been made by any court prior to the commencement of section 4 relating to a matrimonial home, the application of that section to the matrimonial home concerned shall be subject and without prejudice to the provisions of any such Court Order.".
This is a technical amendment which has been designed to ensure that the section works and I urge the Minister to accept it. It seeks to insert in section 5 a new subsection (2) for the existing subsection and a new subsection (3). This section would then read as follows:
(2) Where a married couple have concluded a deed of separation or a separation agreement on or after the 25th day of July, 1993 but prior to the commencement of section 4, the application of that section to the matrimonial home concerned shall be subject and without prejudice to the provisions of any such agreement made between the spouses.
(3) Where an order has been made by any court prior to the commencement of section 4 relating to a matrimonial home, the application of that section to the matrimonial home concerned shall be subject and without prejudice to the provisions of any such Court Order.
I presume the Deputy means 25 June 1993, not 25 July 1993?
I am sorry, that is a printing error; it should read 25 June 1993. I did not notice the error.
The amendment is noted.
This amendment would address in a more technically correct manner what I perceive to be the Minister's intentions in regard to this section and ensure that the legal position was relatively clear with regard to couples who resolve their marriage difficulties in the interregum period between the date of publication of the Bill and the date it comes into operation by the conclusion of deeds of separation which address the issue of the matrimonial home or by the granting of court orders. It is a lacuna in the Bill that this is not spelled out to this extent. Issues of interpretation could give rise to a great deal of litigation if the current subsection (2) remains as drafted without the amendment I am proposing.
My amendment No. 11 is designed to ensure that the joint ownership provisions of section 4 will be subject to any court order made during the period between 25 June 1993 and the commencement of section 4. In the case of a couple who have separated or agreed to separate during that period, section 5 (2) already makes those provisions subject to the terms of any separation agreements. The main difference between section 5 (2) as proposed to be amended and Deputy Shatter's amendment seems to be that he does not wish the existing court order in relation to the ownership of the matrimonial home to be affected by the coming into operation of section 4. Section 5 (4) expressly preserves the jurisdiction of the courts in relation to any future such orders. If, after full consideration, a court has awarded full ownership of a home to one spouse because of, say, the reckless behaviour of the other spouse, section 4 shall not operate to give a half share of the ownership back to him or her.
I would like an opportunity to consider this proposal between now and Committee Stage in the Seanad. There is the point that such an order could have been made many years ago and the errant spouse may have become rehabilitated in the meantime. If that did not happen and section 4 applied, it could be disapplied under section 6 of the Bill by reference to the misbehaviour of the benefiting spouse. I am inclined to be sympathetic to the principle of the amendment. I will look at it closely and if I find it necessary I will move an appropriate amendment in the Seanad.
Were we dealing also with amendment No. 13 in this context?
No.
The manner of dealing with the matter is correctly set out in the amendments I have tabled. I raised these issues on Committee Stage to warn the Minister of my concerns about them. Certainly that is my recollection. I am not satisfied that what the Minister is doing deals with these issues adequately and it is my belief that the amendment as tabled does so.
In relation to the Minister's subsection (2) it is not clear, when he talks about a couple having separated, whether he means separated and some form of agreement put in place, that one has walked out on the other or that they have agreed to live apart with no formal legal agreement in place setting out what is to happen to the matrimonial home. That would give rise to very real problems. I do not want to delay the House unduly on this. I merely want to say that I am pressing the amendment. Otherwise this matter will go to the Seanad and will then come back here. If the Minister feels there is merit in the amendment he should take this amendment on board to avoid the necessity of having to come back here. If, on reflection, he finds further change is needed, the amendment might inevitably have to come back here. However, from the Minister's remarks, I think he recognises that the amendment I have tabled is desirable and as we are now completing this matter in this House I see no particular reason for postponing this further.
Question, "That the words down to and including `period' in line one, page eight, stand" put and declared carried. Amendment declared lost.
I move amendment No. 10:
In page 8, lines 1 and 2, to delete "of 3 months before" and substitute "beginning on the 25th day of June, 1993, and ending on".
Amendment agreed to.
I move amendment No. 11:
In page 8, line 6, after "separate", to insert "and to any order of a court made during the period aforesaid".
Amendment agreed to.
I move amendment No. 12:
In page 8, between lines 6 and 7, to insert the following:
"(3) The Judgment Mortgage (Ireland) Act, 1850, shall not apply so as to enable a judgment against the spouse in whose favour section 4 applies to be registered against the interest to which that spouse becomes entitled by virtue of that section in the matrimonial home concerned in respect of debts, obligations or other liabilities arising out of acts or omissions occurring before the application of subsection (2) or (3) of the section to the interest of the other spouse in the home.".
Under the Judgment Mortgage (Ireland) Act, 1850, a creditor who obtains a judgment in a court against a landowner may convert that judgment into a mortgage against the land. On Committee Stage there were very persuasive arguments advanced in favour of the idea that the debts of a non-owning spouse prior to the section 4 interest becoming vested should not be available to creditors as this would put them in a position which they would not otherwise have enjoyed of being able to move against the matrimonial home concerned. This could arise in a situation where the non-owning spouse who has incurred substantial debts did not have any worthwhile property interests which justified his or her creditors in obtaining a judgment mortgage.
I undertook to consider this matter further and bring forward an appropriate amendment. The amendment before the House is intended to ensure that the obligations incurred by a non-owning spouse prior to the section 4 vesting will not be available for ultimate conversion into a judgment mortgage. This is done by effectively disapplying the Judgment Mortgage (Ireland) Act, 1850 in this one specific instance. I am sure that Deputies will share my view that this is a fair way of proceeding. It should be noted that the provision is quite broad and extends not just to debts in the ordinary meaning of the term but also to contractual obligations and to any liabilities that might be incurred on foot of a personal injuries claim, for example.
This is a matter that I specifically raised with the Minister on Committee Stage. It was debated at some length and the Minister agreed to have a look at it. I welcome the amendment he has tabled. I support that amendment as it would ensure that a spouse who has been dealing impecuniously with the family finances or who has incurred large numbers of debts that the house-owning spouse may be unaware of will not be able, following the enactment of this Bill, to affix the matrimonial home with any liability for those debts. It is a welcome amendment. I am glad the Minister took on board what was said on Committee Stage.
Amendment agreed to.
I move amendment No. 13:
In page 8, line 12, after "1989" to insert "nor as affecting any matter in issue in relation to a matrimonial home or a family home in respect of which proceedings were issued before the passing of this Act".
This amendment is necessary to ensure the constitutionality of the legislation. There are currently before the courts many hundreds of cases pursuant to the judicial separation Act both at Circuit Court level and at High Court level in which there are claims and disputes with regard to ownership of matrimonial homes.
In the Sinn Féin funds case many years ago this House sought by way of legislation directly to affect a litigation before the court by changing the law whilst that litigation was before the court in a way which would require the court to reach a particular decision based on the legislation the Dáil was then enacting, as opposed to the possibility of the court reaching an entirely different decision if that legislation were not enacted. It was held to be unconstitutional for laws to be enacted which directly impinged on current or existing legislation.
I have already said I fear there may be constitutional challenges to this legislation that will create difficulties. The amendment I tabled earlier may relate to an area that will give rise to constitutional challenges but there is nothing I can now do about that. I am anxious that this issue should not create another layer of difficulties. To some extent this is a technical amendment relating to the way the work of this House and legislation we enact interacts with litigation pending in the courts. I ask the Minister to take on board this amendment.
I am not sure this amendment is necessary. In so far as a family home is concerned section 23 (2) as proposed to be amended provides that any proceedings instituted under the Family Home Protection Act, 1976, before the passing of the Bill will not be affected by the amendment to the definition of family home being made by subsection (1) (a) of that section. As regards a matrimonial home, this concept will not come into being until the Bill is passed so that technically at any rate proceedings cannot be instituted in relation to it before then. However, I would like to explore the matter further in consultation with the Attorney General to see if some transitional provision may be necessary for proceedings instituted after 25 June last in relation to a home which becomes a matrimonial home when the Bill becomes law. If necessary, I shall move an appropriate amendment in the Seanad.
The Minister referred to a later section which deals with the Family Home Protection Act. There are proceedings in being currently under section 12 of the Married Women's Status Act in which claims will be made regarding beneficial interests in a family home or matrimonial home and there are proceedings in being under the judicial separation Act in which a husband or wife may ask the court to make property transfer orders or sale orders in relation to a family home or a matrimonial home. The court will have to start from a key position of knowing in whose ownership the home is held at the start of those proceedings. It is quite clear that the section the Minister referred to is not adequate to address this issue.
I find myself in a rather odd position in relation to this legislation in that rather than standing on this side of the House as an Opposition Deputy — these are technical issues — perhaps I should be getting some retainer from the Minister to ensure the legislation he puts through the House is workable and is not constitutionally infirm, giving rise to difficulties. I would have expected that the discussions the Minister is suggesting he will have with the Attorney General would have preceded Report Stage. I am quite certain this is an amendment that should be made. I am certain that if the amendment is not accepted the Minister will come back to this House from the Seanad with yet another amendment. The amendment could be put into this section, as I am seeking, and into the later section referred to by the Minister.
We are starting to reach the stage where this House is ceasing to act as a Legislature. Perhaps what I should do is every so often send the Minister private flyers by way of comment on his legislation so that he can consider them in some backroom with the Attorney General. We are supposed to be legislators. This is a technical amendment and I am sure the general public has not the remotest interest in it.
We could do without that comment.
It is an amendment that may affect the constitutionality and workability of this legislation. I ask the Minister to take it on board.
Amendment put and declared lost.
I move amendment No. 14:
In page 8, between lines 12 and 13, to insert the following:
"6. —A person who has been guilty of the murder of his or her spouse shall be precluded from retaining or acquiring any interest in the matrimonial home under the provisions of this Act.".
This matter refers to a debate we had on Committee Stage. Earlier the Minister pointed out that it might be unjust that someone could get joint interest in a matrimonial home if they had many years before left the matrimonial home. It would be highly unjust if someone who murdered their wife or husband automatically got joint interest in the matrimonial home and if the only way that joint interest could be taken from them was by surviving children or personal representatives initiating court proceedings under this legislation to deprive them of that interest. On Committee Stage I suggested that an appropriate measure should apply not only to murder but also to attempted murder and manslaughter. Some Deputies argued that, for example, in the case of a wife who is convicted of manslaughter upon the death of her husband, having been the victim of violence for many years and was provoked into her actions, it would be unjust in those circumstances that she should be automatically disentitled to joint interest in the matrimonial home.
The amendment is different to that I proposed. My amendment states: "A person who has been guilty of the murder of his or her spouse shall be precluded from retaining or acquiring any interest in the matrimonial home under the provisions of this Act". Under the Succession Act, 1965, a person who murders his or her spouse is automatically precluded from entitlement as a legal right to a share in the estate of that spouse. That Act also deals with manslaughter and attempted murder, as my original amendment sought to do. I have taken into account what Deputies said and, bearing in mind other provisions in the legislation, it is not unreasonable to remove the reference to attempted murder and manslaughter. We should not allow a situation to prevail whereby, for example, if a husband owns a house and the wife, on a pre-meditated, planned basis, murders her husband she would automatically have joint ownership. Equally, if the wife owns the family home and, on a pre-meditated, planned basis, the husband murders the wife he should not have automatic joint interest in the matrimonial home. The position should not prevail whereby the only way the husband would be deprived of joint interest would be by the initiation of court proceedings by the personal representatives of the deceased wife or by the surviving children. I propose that where a spouse is found by the courts to be guilty of the murder of the other spouse automatic joint ownership of the matrimonial home should not apply.
It is particularly anomalous that a spouse convicted of murder is deprived of inheritance rights under the 1965 Act but will initially get joint interest under this Bill. If a person is convicted of murder it does not mean they have killed their husband or wife because of some uncontrollable provocation to which they have been subjected. It means they have killed the person cold-bloodedly on a planned basis with the intention to kill. As a person is deprived of his succession rights under the 1965 Act — there is no suggestion from the Minister that he will amend that aspect of that Act — this amendment should be made to this Bill so that it will be consistent with the approach we have taken to this horrendous problem which rarely arises.
It is a well settled legal principle that a person may not profit by that person's own crime. Where one joint tenant kills another the joint tenancy will be severed and the murderer will be prevented in equity from benefiting from the right of survivorship. If both spouses have a share in the ownership of a home by virtue of section 4 and one kills the other he or she will not acquire full ownership by survivorship. If the spouse who commits the murder is the spouse who originally owned the home he or she will not get back the half share that was conferred by section 4 on the murdered spouse but will retain his or her own half share. If the murderer is the benefiting spouse he or she will not benefit by receiving the murdered spouse's half share, but as the Bill stands he or she will retain the half share in the joint tenancy conferred by section 4.
There is a number of issues involved here, one of which is whether we wish to treat the statutory joint tenancy substantially different from a joint tenancy created by the spouses. On the one hand, if a joint tenancy is to be the norm the spouse who committed murder should be in the same position as any other joint tenant, particularly where the statutory joint tenancy has been in operation for a long period, and forfeit only the half share in the tenancy that would otherwise pass by survivorship. On the other hand, the House has indicated by its acceptance of the principle of section 6 that the benefiting spouse can be deprived of the benefit of section 4 by a serious misconduct. Clearly murder would justify any court in disapplying section 4.
That is the very point I am making — it may justify a court not applying these provisions but why should the personal representatives or surviving children have to go to court to deprive a murderer of an interest which would otherwise be vested in the murderer when they do not have to do so under the Succession Act? The Minister read out a grand technical script about how joint tenancies work. The bottom line is that under this legislation a person may acquire a joint interest in the home although the legal title to the home was not originally in that person's name. The point I am making is that a person who acquires a joint interest in the home should not be entitled ultimately to own the full house and should not be entitled to retain his joint interest in it if he murders his spouse.
I wish to give as an example the position of a wife who owns her family home at present and who is living with her husband. If this legislation is passed by the Oireachtas and this section becomes operable on 30 March next but the husband murders his wife on 2 April 1994, we will be told the husband has a joint interest in the matrimonial home even though he has murdered his wife. If his children and the personal representatives of his wife want to deprive him of that interest they will have to go to court. If he is foolish enough to murder his wife on 28 March 1994, a few days before the legislation comes into force, he will not have a joint interest in the home. If that happens — and God forbid it does — how many Members of this House will stand up and say it is an outrage that this murderer has a joint interest in the home? Emergency legislation will have to be rushed through the House to deal with this peculiar anomaly.
If this anomaly arises it will not be unexpected. If the Minister is saying the court will deprive a murderer of his interest in the home if this happens, why should we generate legal costs and force personal representatives and children to go to court and to get legal advice? Why force proceedings to be brought which presumably will ultimately be paid for out of the estate or property of the deceased person to the detriment of the people, her close family, who will inherit the property? I do not understand why the Minister will not accept this amendment. We are having a very strange debate on this Bill. It seems that a rather odd message is being sent from this House, that is, a wife who was deserted on 1 June 1993 and who is living in a house which was owned by her husband will not be given any protection under this Bill but a spouse who murders his wife after the Bill comes into force should start off with having a joint interest in the home. This means we are giving preferential treatment to future murderers over previously deserted wives. I find all this very odd. It is an outrageous anomaly, an injustice. The Minister's reluctance to accept this amendment makes absolutely no sense. I will not delay the House any further. I have made the point and I cannot make it any better than that. I wish my amendment to be put to the House.
Amendment put and declared lost.
I move amendment No. 15:
In page 9, between lines 29 and 30, to insert the following:
"(d) if the application is by the personal representative, or by or on behalf of a child, of a deceased spouse, the fact (if it be the case) that an application under subsection (1) had not been made by that spouse in relation to the matrimonial home concerned.".
While I remain convinced of the desirability of allowing children in particular to apply for an order disapplying section 4 where one of the parents has died, the somewhat distasteful nature of such proceedings and the fact that success in obtaining such an order may result in the enrichment of the applicant cannot be denied. Therefore, I have decided that it would be appropriate to introduce an additional specific factor to which the courts must have regard before granting such an order, namely, that no application under section 6 was made by the deceased spouse during his or her lifetime. I am sure that the courts would in any event have given due weight to this factor, but it is no harm to specify it in the manner proposed in this amendment.
Amendment agreed to.
I move amendment No. 16:
In page 9, line 34, after "home", to insert "(within the meaning of that Act)".
Amendment agreed to.
I move amendment No. 17:
In page 9, line 46, to delete "of Deeds" and substitute "of Deeds,
and, upon such registration, any legal interest in the home vested in the spouse in whose favour section 4 applies or applied shall, subject and without prejudice to the rights of any other person, become and be, or be deemed to have been, re-vested in the other spouse".
Under section 6 as now drafted the court may make an order declaring that section 4 shall cease to apply to a benefiting spouse's interest in the matrimonial home or shall be deemed to have ceased to apply to that interest. However, it may be the case that the benefiting spouse has already registered a joint tenancy interest under, for example, section 8. The purpose of this amendment is to make it clear that any vestigial legal interest also revests or is deemed to have been revested in the other spouse once the court order has been registered.
Amendment agreed to.
Carlow-Kilkenny): We now come to amendment No. 18 in the name of Deputy McManus. Amendments Nos. 19 and 20 are related. It is proposed to take amendments Nos. 18, 19 and 20 together by agreement. Is that agreed? Agreed.
I move amendment No. 18:
In page 10, line 4, after "writing", to insert "in the presence of a Commissioner for Oaths".
I put down this amendment as a fall back position following the debate on Committee Stage about the rights of a spouse when the opt-out clause is being used and a spouse is giving up her right to a half share in the property. The Minister seemed to be intransigent on Committee Stage and we did not think he would take this point on board. The point was very strongly made on Committee Stage that the rights of a spouse, particularly the wife — it is more likely to be a woman — had to be protected.
The Deputy can now see how open-minded I am.
Let me finish my point. At the time we seemed to be trying to push an immovable object. Even though it took a lot of pushing, I am delighted that the Minister has put down an amendment which includes this clause. I know the difficulties, financial and otherwise, experienced by people in getting legal advice. Perhaps a special fund should be set up for this purpose — I cannot imagine that many people would be affected. Despite the financial difficulties, there is no alternative to establishing the principle that a spouse who is giving up his or her interest in what is probably the most important asset they will ever own should not make a declaration until he or she is fully aware of their legal position.
I welcome amendment No. 19 which will protect the rights of women in particular in regard to ownership, a right which was hard won. I will happily withdraw my amendment No. 18 which is not as comprehensive as the Minister's amendment. I welcome this change.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 10, between lines 11 and 12, to insert the following: "(2) (a) A declaration under subsection (1) shall be void unless, before making it, the spouse concerned has received advice from a lawyer in relation to the declaration and its effect.
(b) In relation to such a declaration, a certificate purporting to be signed by a lawyer and stating that the spouse concerned has, before making the declaration, received advice in relation to it and its effect from the person purporting to sign the certificate shall, without proof of the signature of that person or that such person was a lawyer, be evidence in any proceedings of the matters stated in the certificate. (c) In this subsection lawyer', in relation to advice to a spouse, does not include a lawyer who is acting or has acted on behalf of the other spouse or who is a member of a firm of lawyers which, or another member of which, is so acting or has so acted.".
There was extensive debate on Committee Stage concerning the need to obtain independent legal advice. Deputies from all sides of the House seemed to be of the view that the provision of such advice was essential before a benefiting spouse should be able to opt-out of the provisions of the Bill.
Although I still have some reservations about this matter, in response to the weight of argument I have decided to introduce this amendment to deal with the points raised on Committee Stage. The essential element of the proposed amendment is that a declaration opting out will be void unless the advice of an independent lawyer in relation to it and its effect has first been obtained.
There was a very lengthy debate on this point on Committee Stage. I can recall the Minister engaging in something of a campaign against this proposal. Every time I turn on the radio I seem to hear the Minister launching attacks on lawyers who might make money out of giving advice to wives about this issue. Perhaps the Minister will be a bit more restrained in taking to the airwaves in that way in future when people come forward with constructive proposals.
If some lawyers were more restrained——
Bearing in mind his background, one would expect the Minister to be more restrained in these areas and to make more considered comment.
My amendment No. 20 is somewhat different from the Minister's amendment. I bore in mind a remark made by the Minister which rang a chord with me. I took the view that there must be protection to ensure that no wife was forced into signing any documents without having independent legal advice and that there had to be some certainty that the advice was independent.
The Minister raised an issue regarding two people who are perfectly happy and who do not wish to incur expense, so I framed a somewhat different amendment to the one I proposed on Committee Stage. I proposed a new subsection (2) which would state that a "declaration pursuant to this subsection shall not be valid unless the person making such declaration has first obtained independent legal advice and in such declaration confirms that such legal advice was obtained or in such declaration confirms that their entitlement to obtain independent legal advice was explained to them and they have declined to seek such advice".
Acting Chairman
Is the Deputy moving his amendment?
I am formally reading it into the record. That amendment was designed to address some of the objections that the Minister was raising. I did not agree with those objections and I felt they contained an element which was designed more to pander to prejudice than to ensure that people's rights were truly protected. Wives should not be forced into signing documents that they would subsequently discover to be hugely prejudicial. In the light of the Minister's amendment I will not formally move my amendment. I will agree to the Minister's amendment and I welcome the fact that he has had a change of mind on this issue.
The Deputy has had a change of mind also.
There is nothing wrong with having a change of mind. I am not criticising the Minister for it. On a technical basis the Minister might want to reconsider subsection (c) of the proposal when he puts the Bill before the Seanad. I am not sure whether the term "lawyer" is normally used in legislation. One often sees references to solicitors or barristers.
The thinking behind that was that it might be somebody outside the jurisdiction.
If a lawyer from outside the jurisdiction, say, Costa Rica, is giving advice, one cannot be certain that they will know what they are advising on. I appreciate there may be good reasons for using that term as a definition but the meaning of the term "lawyer" might become a matter of contention. On a technical basis I am asking the Minister to examine it.
I welcome the fact that this amendment is being made. I regret that we had such an unnecessarily lengthy discussion about this on Committee Stage and indeed the Minister, myself and others present in the House today took to the airwaves on this particular issue at one stage. However, the change that has been made will ensure that a wife does not sign documentation whilst unaware of the consequences.
Amendment agreed to.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 10, to delete lines 24 to 26 and substitute the following:
"and, thereupon—
(i) the matrimonial home, or the intended matrimonial home, concerned shall cease to be, or shall not be, a matrimonial home to which section 4 applies, and
(ii) subject and without prejudice to the rights of any other person, any interest in the home then vested by virtue of section 4 in the spouse in whose favour section 4 applies shall thereupon become and be re-vested in the other spouse.".
The purpose of this amendment is to make it plain that where the interest of a benefiting spouse in the matrimonial home revests in the other spouse as a consequence of a decision by the former to opt out of the benefit, the interest revests subject to the rights of any other person. This could arise where that interest had been used as security in order to raise a loan. In such a case it is only fair that any revesting should be subject to the obligation to repay the outstanding debt.
Amendment agreed to.
Amendment No. 22 not moved.
I move amendment No. 23:
In page 12, to delete lines 22 to 26 and substitute "in which a married couple ordinarily resided or reside on or at any time after the 25th day of June, 1993,".
Amendment agreed to.
I move amendment No. 24:
In page 12, line 28, to delete "other".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 25:
In page 12, line 30, to delete "residence" and substitute "home".
This is also a drafting amendment.
Amendment agreed to.
I move amendment No. 26:
In page 12, line 45, after "Sections 4 (5)," to insert "5 (2),".
Amendment agreed to.
I move amendment No. 27:
In page 13, between lines 32 and 33, to insert the following:
"(1) No stamp duty shall be payable on a declaration under section 7 (1), 8 (1) (b) or 10 (4) (a).".
Amendment agreed to.
I move amendment No. 28:
In page 13, line 36, to delete "6 (8) (a)" and substitute "6 (7) (a)".
Amendment agreed to.
I move amendment No. 29:
In page 13, line 37, to delete "6 (8)" and substitute "6 (7)".
Amendment agreed to.
Amendment No. 30 not moved.
I move amendment No. 31:
In page 15, line 10, to delete "or".
Amendment agreed to.
I move amendment No. 32:
In page 15, between lines 10 and 11, to insert the following:
"(d) in a case where the matrimonial home concerned is held under a lease or other tenancy agreement with any other land, as to the apportionment of the rent under the lease or agreement between the home and the other land, or".
Amendment agreed to.
I move amendment No. 33:
In page 16, line 30, to delete "appropriate" and substitute "proper".
I expect we will complete this stage of this Bill within ten minutes. As we are five minutes away from 1.30 p.m. could it be agreed by way of motion of the House that we sit here until 1.40 p.m. to complete the Bill rather than coming back to deal with only five remaining minutes? The Minister may want a moment to think about it but we are coming towards the conclusion of matters and I am inviting the Minister to consider making the proposal. I will continue to speak to my amendment so as not to delay the House.
In the context of amendments Nos. 33 and 34, I suggest we also discuss amendment No. 40 because they are interrelated. I want to explain the reason for these amendments and I suggest we discuss amendment No. 40 in the context of the other two. We do not have to vote on them together but they are related and I feel it will facilitate matters.
I have no objection.
Section 18 seeks to replace section 12 of the Married Women's Status Act, 1957, which was a replacement for section 17 of the Married Women's Property Act, 1882. Section 12 of the 1957 Act provided the courts with the general jurisdiction to determine disputes between spouses concerning property. Section 18 of this Bill replaces section 12 and again provides the courts with a general jurisdiction to determine disputes between spouses about property and some others in certain circumstances.
On Committee Stage I expressed concern that a large body of law has built up under section 12 of the 1957 Act that would continue to be applicable under section 18 of the new Act save in so far as this Bill contains a specific provision to amend or reform that law. The reason I am seeking to delete the word "appropriate" and replace it with the word "proper" is that I want to take the wording from the 1957 Act and put it into section 18 so as to avoid a plethora of court cases in which it is suggested the court has some different power in dealing with property under section 18 from the power it had under section 12, and so as to preserve the existing case law in this area, save in so far as it is amended by express provisions in this Bill which will arise specifically under section 4, this particular section and also the section to which amendment No. 40 relates.
I am seeking in amendment No. 40 to insert in the legislation a subsection which 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.
I ask the Minister to accept the amendment and also to give consideration to extending time for the few minutes necessary to complete the Bill.
It is an attractive proposition to extend the time and complete the Bill but I am concerned there may be other Deputies who may want to come in on some of the later amendments.
I think they would be here if that were so.
I suppose it is unlikely having regard to the poor attendance this morning but nonetheless it might be better that the Order of the House already made should stand. I would be reluctant to change that without consultation with the other Whips.
We are dealing with amendments Nos. 33, 34 and 40, is that the position?
Acting Chairman
That is correct.
So far as Deputy Shatter's amendment No. 33 is concerned, it is a drafting amendment. I have consulted the parliamentary draftsman in connection with it and I have no objection to accepting that amendment. In regard to amendment No. 34, the wording of that amendment is acceptable also.
Amendment agreed to.
I move amendment No. 34:
In page 17, line 27, to delete "appropriate" and substitute "proper".
Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.