Vol. 439 No. 2
11 Ms McManus asked the Minister for Equality and Law Reform the steps, if any, he intends to take to provide spouses with adequate security in regard to the family home and property in view of the Supreme Court decision on the Matrimonial Home Bill; and if he will make a statement on the matter.
136 Mr. Shatter asked the Minister for Equality and Law Reform whether it is intended to hold a referendum to amend the Constitution to allow legislation to be enacted to provide for automatic joint ownership of the matrimonial home as a result of the Supreme Court judgment on the Matrimonial Home Bill, 1993.
137 Mr. Shatter asked the Minister for Equality and Law Reform whether he intends by way of legislation to implement the provisions formerly contained in the Matrimonial Home Bill which were intended to amend the Family Home Protection Act, 1976, the Married Women's Status Act, 1957, which did not provide for automatic joint ownership of the family home and which were not found to be unconstitutional by the Supreme Court.
I propose to take Questions Nos. 11, 136 and 137 together.
As matters stand, there is a wide range of provisions in place which are designed to provide spouses with a measure of protection in relation to the family home and property. These include provisions under the Married Women's Status Act, 1957, the Succession Act, 1965, the Family Home Protection Act, 1976, and the Judicial Separation and Family Law Reform Act, 1989. The Supreme Court decision on the Matrimonial Home Bill has not diminished these protections. Furthermore, this House will shortly have the opportunity to debate the Family Law Bill which will provide substantial additional powers to the courts in a wide range of new areas.
The Matrimonial Home Bill proposed to give each spouse equal rights of ownership in the matrimonial home unless they already had those rights. The effect of the Supreme Court's decision appears to be that, because the Bill applied joint ownership to every matrimonial home and not merely to particular categories or instances, it could alter many joint family decisions, as the Supreme Court put it, freely agreed about the ownership of matrimonial homes. This, the court held, would be a disproportionate interference by the State in the inalienable and imprescriptible rights of the family to make decisions within its authority. Having regard to the fundamental nature of that decision, no Government could lightly embark on the road to a referendum on the matter and, as announced on 1 February last, the Government has no plans to bring forward a Bill to enable a referendum to be held on the question of automatic joint ownership of the matrimonial home.
I am aware of the deep disappointment felt by many people at the decision made by the Supreme Court. I share that disappointment. However, I am convinced that our immediate priority must be to focus on other aspects of family law, including administrative measures, which need to be addressed and which are included in the Government's comprehensive programme of civil law reform. As Minister with responsibility for this area, I look forward to implementing that programme in full and with all possible speed.
I have already referred to the fact that the Family Law Bill, 1994, contains a range of substantive measures. The position regarding the provisions contained in Part III of the Matrimonial Home Bill which impacted upon certain existing legislation, notably the Married Women's Status, Act, 1957, the Family Home Protection Act, 1976, and the Family Law Act, 1981, is that they are also included in that Bill which is before the House awaiting Second Stage.
Will the Minister accept that existing legislation clearly does not protect women in the home and that is why the Programme for Government made a commitment in regard to joint ownership? Will he accept also that by jettisoning the principle of joint ownership he has thrown doubt over his entire programme of law reform and unless he takes action he will cast doubt over the possibility of a divorce referendum being won? Will he accept there is an ideal opportunity to show consistency by holding a constitutional referendum on the question of joint ownership on 9 June because it must be separated from the divorce referendum? If the Minister does not avail of that opportunity, the destabilising effect of the Supreme Court decision will be felt when he seeks support for the divorce referendum. The Minister should (a) address the question of joint ownership on 9 June, (b) publish quickly in unequivocal terms his constitutional amendment which he intends to put to the Irish people and (c) accept that there is a matter of grave concern relating to children. His reply does not address that concern.
Brevity should obtain at this time, Deputy.
I accept that but many points were raised on which I did not have an opportunity to reply. I tabled a question on this matter. The Minister has on obligation to take advice not just from lawyers and not just in regard to property, but regarding the central issue of the case of children. He must take advice also from the public and from professionals on how divorce can be managed in a way that minimises the impact on children and that must be couched in proposed legislation. If that central question is not dealt with, many people will be fearful of——
I would not accept that existing legislation does not afford any protection to women in the home. The legislation to which I referred in my reply, the Family Home Protection Act, the Family Law Act, the Married Women's Status Act and so on afford a measure of protection to women in the home by providing that the family home cannot be sold, mortgaged or disposed of without the consent of both spouses. However, that legislation does not vest a half share by way of joint tenancy in the family home and contents which was the intent of the Matrimonial Home Bill. I regret that very much because that was the result which the Government desired to achieve.
It is quite incorrect of the Deputy to say that the Government has jettisoned the principle of joint ownership. The Government advocated the principle of joint ownership to the extent that it introduced to this House and to the Seanad and secured the passage of a measure to implement joint ownership of the family home. It was the Supreme Court that held that that was not possible as a matter of principle under Article 41 of the Constitution. It would be open to the Government to hold a second referendum to attempt to deal with that but in the view of the Government, with which I whole-heartedly agree, it would not be appropriate or prudent at this time to suggest a separate amendment to attempt to override the provisions of Article 41 of the Constitution. There must at least be some doubt whether such an amendment would be welcomed by the Irish people at this stage.
The only possible way of approaching this problem — there may be a way of doing so on a different basis — is by a different form of legislative change which would not have constitutional implications. All aspects of that matter are being carefully considered in my Department, in consultation with the Attorney General. If it proves possible to proceed down that road, an announcement will be made to the House at the appropriate time.
Is the Minister aware that many women are in an impossible situation when they are called in by financial institutions and asked to agree to the family home being used as collateral against borrowings? Out of loyalty to their spouse or otherwise invariably they have to agree to this. Has the Minister any intention to caution women against taking this step? Has he any proposals to meet representatives of financial institutions and request them to refrain from putting women in this impossible position? I am aware of several cases where this happened to women on farms. The banks requested these women to agree to the family home being used as collateral against borrowings for the business.
Yes, I have heard of cases of women being requested to release their rights under the Family Home Protection Act. Obviously, they would need to consider that carefully, in consultation with lawyers, before they sign such documentation. I was asked in the House — I think by Deputy Ahearn — whether it might be possible to prohibit such signatures but, as I said on that occasion, that would not be possible because there may be many occasions when spouses may wish to raise finance, to improve a farm, business or whatever, and that finance might not be advanced by a financial institution if the house was not used as collateral. That might be disadvantageous to many families.
It would represent an undue intrusion into their rights. However, it would be important — I agree with Deputy Ahearn on this — that before signing such a document which might pose a threat to the family home, a spouse should exercise the greatest care and realise there is a risk that the family home could be put in jeopardy. They should seek legal advice before doing so. We made that compulsory in the ill-fated Matrimonial Home Bill.
Is it correct that the Minister will re-examine the principle of joint ownership of the family home with a view to bringing forward legislation and that he will ask the Attorney General to examine that legislation? If so will the Minister seek independent legal advice?
Automatic joint ownership of the family home is not capable of revival for the reasons given and on the basis of the decision of the Supreme Court on the Matrimonial Home Bill. Unfortunately — I say this with regret — it is not possible to achieve the principle of joint ownership. However, it may be possible to secure, in certain circumstances, an interest in the family home for women who work in the home, but not an automatic joint ownership. I think the Deputy knows what I am talking about. That may be possible, but I am not certain as yet. It is a complex matter involving the law of property, trusts, contributions to property in the name of another person and such matters. It requires very careful examination. If it is possible to achieve it without involving constitutional risk, I will certainly look at it very carefully. We are examining it in the Department and consulting with the Attorney General but it is downstream at present. The House will be advised what progress may be possible.
Would the Minister agree that, if he does not produce an alternative, the flawed Matrimonial Home Bill, 1993 will have dealt a mortal blow to the prospect of any success in a divorce referendum?
Certainly not. Under no circumstances would I concede that point. It is not in accordance with the fact. The Matrimonial Home Bill, 1993, for the reasons I have already explained, was referable to stable marriages. In the case of a marital breakdown, be it separation or divorce, extensive powers already exist under the Judicial Separation Act, 1989. These will be extended further by the Family Law Bill, 1994, to enable the courts to distribute in the appropriate way, not only the family home but all the property and assets of that marriage. In many cases the decision of the courts will be — and is already under the Judicial Separation Act cases — not the transfer of a joint ownership of the family home to one spouse but the transfer of it entirely to one spouse, usually the wife. That is what people will be examining in the context of separation and a divorce referendum. There is no basis for Deputy Carey's presumptive suggestion that the failure of the Matrimonial Home Bill, 1993 to pass the Supreme Court would affect the outcome of a divorce referendum in any way.
Just one small supplementary——
We have expended a lot of time on this question. I do want to facilitate other Members who have tabled questions. I will take three brief supplementaries from the three Deputies who have been offering.
The point I was making was that the Government jettisoned the principle of joint ownership when it took the decision not to hold a referendum. I wanted to clarify that point. In relation to any future plans the Minister may have——
That is not a correct point.
The decision has now been put on the back burner, which means it will not happen. That is the reality and women in the home know it.
The Deputy must put a question or I shall call another Member.
Would the Minister not accept that it would be extremely reassuring — because of the lack of public confidence in the Attorney General's judgement — if he would take independent legal advice in relation to any proposal in regard to women in the home and ownership of that home, partial or otherwise, and also in relation to divorce legislation?
I have every confidence in the legal advice given by the Attorney General and his staff.
I do not know why.
The Attorney General is a constitutional officer of this State. It is quite improper for Deputy McManus to call into question his professional abilities. He is a person of many years experience and under the Constitution he is the legal adviser to the Government. His advice must be, and always will be, sought by the Government and followed.
I have two comments in relation to the Minister's last remarks. The first is on the principle of joint ownership. Those people who are willing to support a divorce referendum are very fearful about its result. I am sure the Attorney General is a very fine person.
A Leas-Cheann Comhairle, with respect, I do not think the Attorney General should be criticised in this way in his absence. It is quite improper.
It is quite appropriate to say in this House what people are saying in the streets, which is that unfortunately some of the advice given by the Attorney General has turned out to be very wrong. If we cannot criticise that here, I do not know where we can do so since we have had a series of incidents in respect of which the advice given by the Attorney General has turned out to be wrong. If we are asked to accept his advice, as we are continually in this House then we, the legislators, should have the confidence in the Attorney General that the office deserves. I do not wish to engage in a personal attack on an individual but in particular instances, we do not have confidence in the advice given. The Minister should take this criticism on board.
I do not think there was any question there.
It is not sufficient for the Minister to say that it is wise and advisable for wives to seek legal advice when subjected to pressure by financial institutions. I am not so concerned about those spouses who know their rights but I am concerned about the vast numbers of spouses who are in very vulnerable positions. How does the Minister intend to ensure that legal advice is made available to such spouses and to ensure that it is mandatory for financial institutions to ensure that such legal advice is made available, thereby protecting spouses in very vulnerable circumstances?
If the Deputy cares to table a question on that I will consider it in some detail. This question deals with the Matrimonial Home Bill, 1993.
