I move: "That the Bill be now read a Second Time."
One of the hallmarks of a modern and caring society is one which recognises needs and is prepared to do something about them. In the context of marital breakdown it means a society with strong support services whether State or voluntary and it means a system of laws which protects spouses and children and which enables justice to be done, where necessary. The Government is committed to a society which cares and a system of laws and administrative measures which deals comprehensively with the issues of marriage breakdown.
The Bill is part of a series of family law measures provided for in the Government's partnership programme for which I have responsibility as Minister for Equality and Law Reform. In terms of its size and scope it is one of the biggest and most extensive family law measures to come before the House. It substantially modernises and develops the courts' powers to deal with the financial consequences of marital breakdown, extends those powers to cases of nullity and foreign divorces, creates new remedies and jurisdictions and makes the law more accessible. In effect, the Bill extends powers to the courts for the support of spouses and dependent children where marriages break down in every circumstance short of domestic divorce. It provides substantial new powers in relation to pensions and strengthens the law on maintenance. With a view to safe-guarding and protecting the institution of marriage, the age of marriage is being increased and there is provision for notice of marriage. With a view to having clear and simple procedures in the law to enable persons to establish the validity of their marriage in the event of foreign decrees of divorce, separation or nullity being granted the Bill provides for updating of the law in this area. As the Bill contains, in effect, model provisions for any future divorce legislation its importance stretches far beyond the framework in which it is currently set.
The key features of the extended powers of the courts to make ancillary orders in support of dependent spouses provided for in the Bill are that they will extend for the first time to parties of any marriage that is annulled after the commencement of the Bill and to any spouse whose foreign decree of divorce, separation or nullity is granted after commencement of the Bill's provisions and is entitled to recognition in the State.
The Bill contains important new provisions in relation to jurisdiction of the courts. Jurisdiction in proceedings for a decree of nullity of marriage, at present confined to the High Court, is being given also to the Circuit Court. The purpose is to bring that jurisdiction into line with the jurisdiction for separation proceedings, to improve access to the courts and to reduce costs. The Circuit Court is being empowered also to make the ancillary orders in support of spouses where foreign decrees of divorce, separation or nullity are entitled to recognition in the State and to make any declarations in relation to the status of a person's marriage. The District and Circuit Courts will have jurisdiction to order maintenance by way of lump sums and secured payments. That jurisdiction is at present confined to the Circuit Court in separation proceedings only.
The Bill provides a comprehensive framework within which extensive remedies can be secured through the courts by spouses and children who face the consequences of marriage breakdown. The Bill, in effect, gives statutory recognition to the fact that, on breakdown of marriage, there is an obligation on a spouse to maintain and accommodate the other spouse and children to the fullest extent possible, where this is necessary, and that in the absence of agreement on those matters the courts should be in a position to intervene on the basis of a comprehensive range of powers to order maintenance, lumps sums, secured payments and a redistribution of property generally including the family home and pensions.
In bringing forward the Bill I am indebted to a wealth of sources, not least the White Paper on Marital Breakdown. The Bill draws on the provisions of the Family Law (No. 1) Bill contained in that paper. It also takes into account the recommendations contained in the "The Law of Nullity in Ireland" published by the Office of the Attorney General in 1976. I should also like to mention the following reports of the Law Reform Commission on which the Bill is based: the report on The Age of Majority, Age for Marriage and some connected subjects; the report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees and the Hague Convention on the Celebration and Recognition of the Validity of Marriages. The list of reports would not be complete without mentioning also that account has been taken of the work of the Oireachtas Joint Committee on Marital Breakdown, the Combat Poverty Agency in their report on the financial consequences of marriage breakdown, and the work of the Second Commission on the Status of Women.
The recent Supreme Court decision on the Matrimonial Home Bill, to the effect that the Bill was unconstitutional, resulted in considerable publicity and a great deal of contradictory opinion as to its impact on the referendum on divorce planned for later this year. The Supreme Court judgment struck down what was in effect the central principle of the Bill, namely the establishment of joint ownership of the matrimonial home as the norm within marriage. In the light of that judgment, the Government has already announced that there is no alternative legislative route which can safely be taken to achieve a broadly similar result.
The essence of the Bill was an attempt to copperfasten the principle of equality in marriage and was aimed at stable marriages. It was not framed to deal specifically with instances of marriage breakdown, be they separation, nullity or, for that matter, divorce, in the event of divorce being introduced following a referendum. If couples obtain a judicial separation, the question of the division of property is one for the courts to decide in accordance with the provisions of the Judicial Separation and Family Law Reform Act, 1989.
The Matrimonial Home Bill provisions would not have affected that position in separation proceedings any more than it would in any divorce proceedings, nor would it affect this Bill which deals with all property, including the family home, and allows the court to deal with questions of the transfer of ownership and occupancy of the family home. As with the property adjustment remedies in separation proceedings, the courts will operate the provisions in the Bill in the interest of justice being achieved for all parties concerned and among the particular criteria which the court will take into account in making property orders in support of a spouse will be the contribution which each has made or will make by looking after the home or caring for the family. Again, that criterion among others, is already a feature of our separation laws.
The major thrust of the Bill is the courts power to make financial, property and ancillary orders on the grant of a decree of nullity. It may surprise some people that, following the granting of a decree of nullity of marriage the courts have no power at present to order maintenance in support of a former spouse or to order a redistribution of property between both former spouses. That is not the position in other countries, including the UK, where a wide range of powers to make ancillary orders is available to the courts.
The courts here can order maintenance in support of children of an annulled marriage but they have no powers to order that property be transferred in suitable cases to such children. Some may argue that since, on nullity, the parties are no longer spouses there should no longer be obligations one to another. The Government is not of that view. The 1976 report of the Attorney General pointed out that on the grant of a decree of nullity the consequences for the parties to the marriage and children of the marriage may be far-reaching. It stated that it was clearly desirable that the hardships which may result from a decree of nullity should be minimised as far as possible and recommended that power be given to the court to enable it to give a wide range of financial relief to the parties of the marriage and to the children of the marriage, in order to do justice between the parties and their children. The White Paper on Marriage Breakdown reached a similar conclusion.
Deputies will appreciate that in view of its size it would not be practicable for me to go through all the Bill in detail at this stage. This is something we will do on Committee Stage. I propose, therefore, to concentrate on the main provisions.
Part I contains provisions dealing with short title, commencement and interpretations. Some of those definitions, for example of "family home", "conveyance" and "household chattels" are standard provisions in other family law legislation. Deputies may wish to note that the word "spouse" in the Bill includes persons whose marriage is annulled even though, legally speaking, they were never spouses. The definition is used in that way for drafting reasons only.
Part II, sections 5 to 23, is concerned with the financial, property and other ancillary orders which the court is empowered to make in or after proceedings for nullity or judicial separation. It enables the courts to make, for the first time, financial provision orders following the granting of a decree of nullity. Part II also re-enacts the substance of Part II of the Judicial Separation and Family Law Reform Act, 1989 which is being repealed by section 3 concerning the powers of court to order financial support in the context of judicial separation. The purpose is to consolidate those ancillary provisions with the new ancillary provisions in relation to nullity proceedings.
The provisions in section 5 deal with preliminary orders that may be dealt with by the court in proceedings for nullity or separation and allow the court, before deciding on an application for a decree of nullity or judicial separation, to make a barring order, protection order, or a custody order, and orders for protection of the family home and contents.
Sections 6 and 7 are, in one form or another, concerned with the question of the maintenance of a spouse and dependent children. Section 6 allows the court to make interim maintenance or award lump sums pending the determination of an application for decree of nullity or judicial separation. Provision for interim lump sum payments is new and is intended to cover situations where there may be hardshp or where immediate bills have to be paid by a spouse. Section 7 provides for the making of orders for periodical payments, secured periodical payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.
The provision in section 7 (6) is new. It gives important new powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding to make or refusing to make such an attachment of earnings order the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. Under section 43 I am extending those provisions to cases where maintenance is ordered to be paid in proceedings which do not involve nullity or separation, that is, proceedings under the Guardianship of Infants Act, 1964 and the Family Law (Maintenance of Spouses and Children) Act, 1976. There are good and valid reasons for strengthening the law in this area. The Combat Poverty Agency in its report on the financial consequences of marriage breakdown highlighted the extent to which maintenance debtors default on payments ordered by the courts. While there are cases where the debtor may, due to a change in circumstances, be unable to pay — and this is allowed for in legislation already by permitting variations of maintenance — there are many other cases where the debtor simply refuses to pay and this results in the dependent spouse having to pursue separate proceedings in the courts for enforcement of the maintenance. The agency found that where enforcement was ordered by way of attachment of earnings it doubled the chances of payment. Those facts cannot be ignored and Deputies will agree that the provisions I have made in section 7 (6) and in section 43 are warranted and overdue.
Sections 8 and 9 allow the courts to redistribute property as between spouses for the benefit of a spouse and any dependent children. In substance, they repeat the provisions contained in the 1989 Act. Section 8 provides that the court may make an order for the transfer of property from one spouse to the other or to any dependent child, an order for the settlement of property, an order to vary for the benefit of the other spouse and/ or a dependent child any antenuptial or postnuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property. Section 9 deals with a number of orders which may be made in relation to the family home. These may include orders in relation to the right of one spouse to occupy the family home to the exclusion of the other spouse, an order for the sale of the family home and for disposal of the proceeds of sale, and orders under existing statutes, including the Family Home Protection Act, 1976.
Section 10 enables the court on granting a decree of nullity, or at any time thereafter, to make an order for the assignment, in whole or in part, of a spouse's interest in a life assurance policy in favour of the other spouse or dependent child of the family or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent children. These orders are designed to supplement or substitute for, where necessary, other orders in support of a spouse and dependent children. However, they may also be awarded to "compensate" for any loss of benefit such as may arise on succession or, for that matter, a pension to which the person might, but for the nullity decree, be otherwise entitled.
Sections 11 and 12 deal specifically with the question of pensions. While in cases of nullity, the loss of a prospective occupational pension may in some cases be met by making a property adjustment order, or by a lump sum order, or by a financial compensation order under section 10, adequate relief under those provisions may not be possible.
Section 11 will, therefore, allow the court, in appropriate cases, to make one of two types of pensions orders. The first type may be described as a "pensions split" order where the member spouse's interest in his or her scheme is reduced by order of the court and that amount is used to create an entitlement to an independent and separate benefit for the dependent spouse. The second mechanism which may be described as "ear-marking" is one that retains the dependent spouse's interest in the member spouse's scheme (including the survivors' part) with the proportion of benefit to be paid to the non-member spouse being determined by the court. In devising these new powers I had regard to consultations with pension experts, including the Pensions Board, and I have taken into account a wide range of reviews which have been carried out internationally.
Provision is made in section 11 that notice of any application in relation to a pensions adjustment order must be given by the applicant spouse to the trustees of the pension scheme and, under the section, the court in making a pensions adjustment order must have regard to any representations made by the trustees. In making a pensions adjustment order the court will give the pension trustees such directions as it considers appropriate in relation to the order.
While section 12 also deals with pensions, its scope is confined to pensions in the context of separation. The section contains a useful provision enabling the court to order the trustees of a pension scheme not to regard the separation of the spouses as a ground for disqualifying a spouse from benefiting under the scheme on the death of the other spouse. This is intended to remove a difficulty in situations where the rules of a pension scheme may provide that survivors' benefit will only be paid to the spouse of the deceased member if both spouses are residing together at the time of the member spouse's death. Again, notice of an application under this section must be given to the trustees of the pension scheme and the court is required to have regard to any representations made by them.
Section 13 repeats in substance provisions in the 1989 Act empowering the courts in suitable cases to extinguish rights of succession of the spouses following a separation decree. A decree of judicial separation will not end succession rights but the court is empowered in certain circumstances to do so.
The position is different in the context of nullity. As pointed out in the White Paper on Marital Breakdown, following nullity, succession rights must end because the parties are no longer spouses. Two ways around possible hardship involved in loss of succession rights suggested in the White Paper are now provided for in the Bill. The effect of section 16 (2) (k) is that loss of succession rights will be one of the matters to be taken into account when the court is making financial provision for the dependent party; and the effect of section 14 is that where the court finds that it cannot make adequate provision for the dependent party — in a case where it would otherwise have done so — it may allow that spouse to apply for provision out of the other spouse's estate. The Bill goes even further by providing in section 10 for financial compensation orders.
The section 14 provision will operate as follows. Where a decree of nullity is in force and one of the parties to the decree dies the other party, if he or she has not remarried, may apply to the court for financial provision to be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section the court must have regard to any lump sum payments or property adjustment order made in favour of the applicant, or any device or bequest made by the deceased spouse to the applicant spouse. The provision which the court can make under this section, with any lump sum payments already made or property adjustment order, must not exceed in total the share — if any — of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was valid.
Section 15 empowers the court to order the sale of property and repeats provisions in the 1989 Act. It provides that where a court makes a secured periodical payments order, a lump sum order or a property adjustment order, it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale.
I referred briefly to the criteria contained in section 16 for the making of court orders under Part II in support of spouses and dependent children. In view of the importance of that section I now propose to deal with it in more detail. Subsection (1) sets down a general criteria. The court, in deciding whether to make financial and property orders must endeavour to ensure that such financial provision is made for the spouse and children as is adequate and reasonable having regard to all the circumstances of the case. Subsection (2) sets out more specific criteria in relation to such matters as spouses' income, earning capacity, property and financial resources, likely future obligations, age and conduct of the spouses and accommodation needs. The court must take into account any contribution by either spouse to the financial and other resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family. Subsection (3) sets out specific criteria in relation to children which take into account financial and accommodation needs, and other matters. Conduct of the spouses may also be relevant to the question of the making of financial orders in support of a spouse — desertion, for example, will be a bar unless the court is of the opinion that it would be unjust not to make such orders.
These criteria in section 16 are the same as those in the 1989 Act except that under section (2) (b) the court must, in nullity cases, take into account responsibilities which a debtor spouse may have in a subsequent marriage and the court must also, in cases of nullity, under paragraph (k), have regard to the value of any benefit — pension or otherwise — which by reason of the annulment of a marriage, the spouse will lose the opportunity or possibility of acquiring.
The remaining section of importance in Part II is section 18 which empowers the court, on the application of either spouse, to vary or discharge previous orders under Part II taking into account any change in circumstances. Variation orders are also subject to the criteria set out in section 16.
Part III of the Bill is new and empowers the court to order relief under Part II following the granting of a decree of divorce, annulment or separation in another state which is entitled to recognition in the State. At present, where a foreign decree of nullity or divorce is entitled to recognition in the State the courts have no power to order financial or other relief for a dependent spouse. Part III takes into account the Law Reform Commission's report entitled "Recognition of Foreign Divorces and Legal Separations" which recommended that in cases where a divorce is recognised in the State the court should have a discretionary power, acting on the principles of domestic legislation, to protect the rights of a spouse with respect to such matters as maintenance and occupation and ownership of the family home.
An aspect of the proposals in Part III deserves particular comment. The Court of Justice of the European Communities, in interpreting the Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters or, as it is commonly called, the Judgments Convention — which has been in force in Ireland since June 1988 — ruled that a maintenance order granted in one state, on the basis of the obligation, arising out of marriage, of one spouse to maintain the other, is irreconcilable with a decree divorcing the spouses granted in the State where enforcement of the maintenance order is sought. This means, for example, if a wife had a maintenance order granted against her husband by an Irish court and her husband subsequently obtained a divorce in England, an English court would not then be in a position to enforce the maintenance order because it will now be irreconcilable with the fact that a divorce has been obtained there.
This decision is binding on all contracting states and has been followed by the UK High Court in a decision involving an Irish maintenance order sent to the UK for enforcement. In such circumstances the only avenue at present open to an Irish person seeking maintenance is to apply to the English court, in the divorce proceedings, to make financial provision for him or her at the time of granting the divorce decree or at any time thereafter.
It will now be possible under the proposed provisions in Part III of the Bill for the maintenance creditor, where the divorce is recognised here, to seek the leave of the Irish courts to apply to our courts for financial provision to be made in his or her favour. A maintenance order granted in such circumstances by an Irish court, since it would be granted following a divorce which is recognised here, would no longer be "a maintenance order granted on the basis of the obligation, arising out of marriage of one spouse to maintain the other" and should, therefore, be capable of being enforced throughout the EC as it would no longer be irreconcilable with the decree of divorce.
Part IV of the Bill deals with declarations as to marital status and the purpose is to restate the law which enables a person to apply to the court for a declaration as to the validity of his or her marriage. The proposed provisions implement, with certain changes, recommendations of the Law Reform Commission in its report entitled "Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters." The commission was of the view that the present law would benefit from restatement in clear terms in modern legislation. At present, the power to give such declarations of status is confined to the High Court and its statutory basis comes from an Act of 1868. The Bill gives the Circuit Court jurisdiction to deal with the provisions in Part III.
Occasionally, the question of the marital status of a person, particularly one who has been married or divorced abroad, may be raised — for example, to determine whether he or she is free to marry here or can claim a pension or other benefit as the spouse or widow or widower of another. Part III enables the court to make a declaratory order regarding marital status in these and other cases. These provisions will be welcomed by, among others, the Registrar of Marriages who can now refer persons with queries about their marital status to the straightforward procedures in Part III.
Incidentally, there is no power, under Part III, to apply for a declaration, say, that a marriage was void ab initio: in this case the correct procedure is to petition for a decree of nullity.
Although a declaration will normally be sought by one of the parties to the marriage, others may be legitimately interested in its validity. For example, the trustees of a pension fund may wish to establish whether a woman is the widow of a former member of the scheme. Applications for a declaration may, therefore, be brought by anyone, but the court must refuse to hear a case if it considers that the applicant does not have a sufficient interest in the outcome of the proceedings. Moreover, the practice where the Attorney General must be joined as a respondent to any application is being continued.
Part V of the Bill implements a long outstanding recommendation in the report of the Oireachtas Joint Committee on Marriage Breakdown for an increase in the age of marriage from 16 years to 18 years. The Law Reform Commission and the Second Commission on the Status of Women also made this recommendation.
The notice of intention to marry provisions are consistent with the requirement of most churches that notice be given by members proposing to marry. Circumstances may arise where the inflexible application of either or both of the new rules could be unfair. In recognition of this, I am providing that a person affected in this way can apply to the court for an exemption from one or both of the requirements.
Part VI of the Bill deals with a number of miscellaneous provisions, the most important of which, in relation to a new power to the courts to order attachment of earnings orders at the same time as the making of maintenance orders, I have already mentioned. There are also jurisdictions in Part VI and I dealt with the more important of those in my opening comments.
This concludes my summary of the main provisions contained in the Bill and I am confident that it will be found acceptable in principle by all sides of the House. I assure Deputies that I will consider fully the points which they make today and during later Stages of the debate.
I referred earlier to the need for strong support services in the context of marriage breakdown and to the fact that the Government is committed to those services. That commitment has been given very clear expression by way of substantial additional funding allocated to my Department for 1994 for counselling services, the Family Mediation Service and the Civil Legal Aid Board. As the Minister responsible for those areas, I am glad to be able to say that the moneys provided for counselling have been increased by 150 per cent to £750,000; by 142 per cent to £300,000 for the mediation service and by 56 per cent to £5 million for the Legal Aid Board. I look forward to a period of development and expansion of those services in the coming months.
Deputies will, no doubt, agree that while it is essential to update and modernise our family law provisions and to give the courts full powers to enable justice to be done to parties of broken marriages, it is equally important that where parties can settle the terms of their separation they should be facilitated by way of mediation and that where there is the possibility of reconciliation they should be facilitated by way of counselling. The extra funding for support services which I have secured for 1994, together with the various legislative measures I am bringing forward, are a measure of the comprehensive approach I am endeavouring to achieve in relation to the issues involved in marriage breakdown.
The question of the application of the tax and social welfare codes in the context of marriage breakdown, as well as in the context of this Bill, is being examined by the relevant Department of Finance and Social Welfare. Decisions in this area will be provided for in Finance and Social Welfare Bills.
I commend the Bill to the House.
