I thank the House for allowing me to share my time with Deputy Currie and I congratulate him on taking up this brief which will clearly need to be handled with great sensitivity in the run up to a referendum on divorce. My party has absolute confidence in the way Deputie Currie will handle this issue on our behalf.
Issue of Writs: Motions. - Family Law Bill, 1994: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I thank my colleague for his good wishes and his confidence. It was an early confirmation of the challenge of this portfolio that within five hours of my being appointed the Minister introduced the Second Stage of this Bill. I was thrown in at the deep end and I am glad of the assistance which has been given to me by Deputy Richard Bruton. In his speech the Minister said that in terms of its size and scope this Bill is one of the biggest and most extensive pieces of family law measures to come before the House.
I have been thrown in at the deep end but, of course, that is not the first time and probably not the last. It is also my luck that my first speech as party spokesperson should be on law reform rather than equality, of which I have some experience during my long career.
I hope this is a matter on which we will co-operate in the interests of the community generally but particularly those sections where there is inequality and people believe themselves to be marginalised and impotent. I pay tribute to my colleague, Deputy Shatter, because this Bill owes much to the Judicial Separation and Family Law Act, 1989, which he introduced. I think Members on all sides appreciate what we owe to Deputy Shatter. I look forward to having his assistance in the future.
Commenting on the size of the Bill, the Minister said:
Turning now to specific provisions of the Bill, Deputies will appreciate that in view of its size it would not be practicable for me to go through all of the Bill in detail at this stage.
I too will concentrate on a number of specific points. During the RTE news this morning they referred to this Bill as a blueprint for the Government's divorce proposals. The Minister put the introduction of this Bill in context when he said:
Because the Bill contains, in effect, model provisions for any future divorce legislation the Bill's importance stretches far beyond the framework in which it is currently set.
I do not see it entirely in this light because certain proposals in the Bill stand in their own right, for example, the provisions in relation to the minimum age of marriage at 18 years; three months of preparation before the actual marriage and the provisions in general terms on pensions. These stand on their own apart from the larger agenda the Minister might have.
The Minister referred to the recent Supreme Court decision on the Matrimonial Home Bill where the central principle, the establishment of joint ownership of the matrimonial home as the norm within marriage, was struck down. Whoever was at fault, whether the Minister, the Government or the Attorney General it was, by common consent, a mess, particularly when it was being portrayed as a stepping-stone to the divorce referendum. Can the Minister assure this House that this Bill, if passed, will not suffer a similar fate? I ask that question not only in the light of the Matrimonial Home Bill but also because this Bill is based very largely on the 1989 Act which I understand will be challenged in the Supreme Court. In those circumstances it is only fair to clarify this issue. Debate on legislation is never a waster of time unless at a later stage the Bill is found to be unconstitutional. I assume the Minister is satisfied that this Bill is constitutional but I wish him to elaborate on the reasons. This would be of interest not only to me but to others in the House. We would also like to know the procedure that has been gone through to establish the constitutionality of the Bill, in the Department, in the Government and in the Attorney General's Office.
It is important to have this matter clarified because at its mildest there has been a number of mistakes in the advice offered to the Government in recent times. We would be in a better position to proceed with the Bill if we knew as much as possible about the advice on the constitutionality of the Bill. Has the Minister been advised on the constitutionality of a three month notification period? Can he assure us that this and other aspects of the Bill are constitutional? It might be helpful if the Minister would consider advising the President to refer the Bill to the Supreme Court. I say that in the light of the constitutional issues that have arisen with the former Bill. We are heading into a referendum on divorce and at all stages the question of constitutionality is likely to be raised.
I support strongly raising the marriage age to 18 years. It was ludicrous that it was lower in the past. We used to restrict the voting age to 21 and it was subsequently lowered to 18 years. A decision as to how to cast one's vote hardly weighs in the same category as the decision to enter into a marriage contract, the biggest decision in most people's lives.
I welcome the fact that the age of marriage is to be raised to 18 years. I welcome also that three months notification of marriage is required. This is a sensible proposal and is in line with the procedure in some of the churches. It is very good to put it on a statutory basis. Section 32 (2) states:
The Registrar shall notify each of the persons concerned in writing of the receipt by him or her of a notification under subsection (1) and, upon receipt by him or her of such a notification he or she, shall make it available at his or her office or place of business for inspection by members of the public during ordinary office hours in the month following its receipt.
I am concerned, for two reasons, about this provision. Last year my eldest daughter got married. Although it was a happy occasion I would not like it to happen every year. After making inquiries at a number of hotels about wedding receptions the post increased significantly. Offers were received from florists, car hire companies, caterers and so on. If this notification is displayed in public for a period of up to one month it will attract the interest of all those involved — caterers, florists, car hire companies, building societies, travel agents and Lord only knows who else will get in touch with the couple. If the date of marriage is included in the notification the happy couple would be well advised to take out insurance on their wedding presents as they may have unwelcome visitors on the day. In the case of obituary notices houses of relatives have been burgled while they were at the funeral. If this happened on the wedding day it would turn joy to sorrow.
Will the Minister to be more specific and indicate if the date of marriage will be included in the notification which will be displayed in public? I ask him to give this matter serious consideration in view of the difficulties I mentioned.
Will the registrar be required to display the notification in the areas where each of the partners lives? If so, the danger to which I referred will be heightened.
There is another provision about which I am concerned and I would like to hear the Minister's observations on it. It appears that the only person who will have a role in relation to the notification procedure is the registrar. Will the churches have any role and, if not, why? Most churches require the couple to give notice which is announced from the altar or, in some instances, displayed at the back of the church. Is there another agenda? I will listen to the Minister's reply before I come to any conclusion. I think my concern is shared widely throughout the communty. Are the churches not to be trusted in this matter?
Provision is made in section 33 for exemptions in relation to the requirement to give notification. Section 33 (2) states that an application may be made to the court informally, that it may be heard and determined otherwise than in public — in other words, in private — that a court fee shall not be charged in respect of it and that it should not be granted unless the applicant shows that it is justified by serious reasons and in the interests of the parties to the intended marriage. I can think of some serious reasons: one of the partners, or a close member of the family, may be terminally or seriously ill or to be posted abroad on active service, for example, to the Lebanon. Can the Minister give us any other serious reasons and what advice would he give in cases involving pregnancy — the reason for many rushed marriages?
If the Government is serious about family law reform it will have to give careful consideration to two other issues — access to the courts and court facilities. In the past the Minister voiced the opinion that justice is like the Ritz Hotel, it is open to all as long as they can afford to pay. I ask him to bear this in mind in consideration of the Bill. These matters must be addressed before this or any other Bill is enacted.
The Bill, which gives the courts the power to make financial provision for separated spouses, will be meaningless unless parties have free access to the courts. There are not enough judges to cope with the existing work-load and not enough staff to cope with administration. Delays of up to two years in the Circuit Court are common. This is not good enough.
The Sunday Press on 20 February last carried an article by Catherine McGuinness, Senior Counsel. I was glad to hear that she has been appointed to the Bench, I congratulate her and those responsible for making this appointment. It is an excellent one and I am glad that she will specialise in family law. In the Sunday Press she made the point that because marriage breakdown and family law cases are heard in camera no one knows the real level of marriage breakdown. She said that there are long delays and that “such a situation is particularly damaging in the complex delicate situation of marriage breakdown”. To the very last she made sensible observations which I am confident she will contine to make on the Bench.
We do not have a proper civil legal aid system. Without it, this Bill, laudable though its aspirations may be, is of no use to a separated and impoverished spouse. Law centres will only deal with emergency cases. Normal cases where a spouse is looking for maintenance often wait months for an appointment. This is not the fault of the staff of the law centres; there are just not enough of them.
The earning spouse has free access to the solicitor of his or her choice while the best the Department of Justice can come up with is a pilot scheme to allow plaintiffs to be referred through their law centre to a private solicitor in certain limited circumstances. Civil legal aid is not cheap but we are going to have to bite the bullet. We cannot purport to grant remedies if people cannot enforce their rights.
This legislation extends the jurisdiction of the District and Circuit Courts. Is the Minister familiar with the state of District Court buildings and can he seriously suggest that they are suitable for the transaction of sensitive family law cases? Many District Courts are held in community halls, dance halls and libraries. Even the so-called purpose-built courthouses are totally lacking in facilities. Consultations take place on the roadside. Both parties to a dispute are thrown together in overcrowded halls. Many of the Circuit Courts are no better. There are inadequate or non-existent consultation facilities. There is no privacy and long queues of litigants wait together in hallways. Although I welcome this legislation, without more court staff, more judges, better facilities and, most important, a proper civil legal aid scheme for family law cases, it will be irrelevant and meaningless.
The best thing we can do in this international year of the family is to strengthen the support structures of the family. In most churches it is compulsory that two people contemplating marriage attend a pre-marriage course, but nowadays the only connections people have with the church are on marriage, at birth for the christening and at death for the burial. There is, therefore, a strong argument for State involvement in pre-marriage preparation or State assistance for the churches and voluntary organisations involved in pre-marriage preparations.
I will conclude on that note. I fully accept the principle of the Bill but hope that on Committee Stage the questions I have posed will be answered.
I congratulate Deputy Currie on his new portfolio as spokesman on equality and law reform and look forward to the many debates I am sure we will have. I hope that we can count on his and his party's wholehearted support in ensuring a successful conclusion to the divorce referendum.
This Bill is part of the groundwork for the divorce referendum which we are to have in the autumn. There is no one who would not in principle welcome a Bill which develops the corpus of legislation on marriage breakdown. Unfortunately this legislation comes under a cloud of suspicion in the wake of the Supreme Court's decision on the Matrimonial Home Bill and the High Court challenge to the 1989 Judicial Separation and Family Law Reform Act.
This Bill re-enacts much of that 1989 Act, and I too pay tribute to Deputy Alan Shatter for his work on that legislation. This Bill fills in gaps that have become evident since the enactment of the 1989 Act. If that is a fair interpretation of what this Bill is, then we must be reassured on the constitutionality of the 1989 Act and this Bill.
Did the Minister know of the challenge to the 1989 Act when formulating this legislation? If so, is the Bill premature? If he did not, whose responsibility was it to make sure he did know? Was it the responsibility of the Director of Public Prosecutions or of the Attorney General?
We have already received, through the Minister, assurances about the constitutionality of this Bill from the Attorney General. However, I regret that my confidence in the Attorney General, and that of others, is shaken by a series of events which have marked his term of office. Did the same person who reassured the Minister on this Bill inform him of the challenge to the constitutionality of the 1989 Act on which it is largely based?
In addition to the present challenge in the High Court, has the Minister even considered the possibility that this Bill may be referred to the Supreme Court by the President for other reasons and that it is not inconceivable that a divorce referendum will be introduced following the defeat of yet another Bill? Has there been any exchange of information between the Offices of the Director of Public Prosecution and the Attorney General and the Government in advance of this proposed legislation?
Those who have campaigned on equality issues and who have pledged their support to the Minister in the divorce referendum are going through a crisis of confidence and the Minister must be aware of this. If he is not, it is not for the want of telling. We must act in any way possible to alleviate genuine fears about such a referendum.
I am one of the people who fought for equality and for the rights of women. What I now fear is that in the midst of constitutional confusion key principles will be lost. The disaster of the Matrimonial Home Bill is a case in point. The Minister must revisit the principles contained in that Bill which provides spouses with adequate security in regard to the family home and property. The Minister should listen to the practical information available from practitioners in family law on how best to move forward and secure an orderly and successful progression in the reform of family law. Does the Minister have any plans to consult practitioners and the many agencies involved in this area in this regard?
When I was elected to this House I wanted to bring about change and I still believe that is possible. The Matrimonial Home Bill was seen as desirable and had cross-party support. It is rare that a Bill would have such widespread support. Although it was found to be unconstitutional by the Supreme Court, the Progressive Democrats do not accept that the matter should end there. It is up to us as legislators to bring forward legislation that will achieve the principles outlined in that Bill and which will be constitutional. If we want something badly enough we try again and again until we get it right. How many of the Deputies now in Dáil Éireann would still be in politics if they had given up at the first attempt? I know I would not be. That is the spirit we must have as legislators. If the principle is right we must uphold it and see it through.
I acknowledge that this Bill tries to come to terms with the deficit in the legislation and contains some good points. Unfortunately some of the logic is inherently flawed.
I welcome the fact that where a legally recognisable divorce has been granted by a foreign court, under this legislation, Irish courts will, make financial orders where at least one spouse is domiciled in Ireland. It is entirely appropriate that a wife, for example, resident in Ireland whose spouse has obtained a foreign divorce should be able to seek maintenance here if she would have been able to apply in the court where the divorce was granted.
The effort to come to terms with pensions is also a positive move and another attempt to bridge the gaps in the Judicial Reform and Family Law Act, 1989. The approach of this legislation, as was the case in 1989, allows considerable discretion to be given to the court to rearrange and adjust pension rights by splitting or earmarking pensions to protect the original spouse. I heard a number of comments on the provisions of this legislation, for example, that the Bill repeals the provisions of the 1989 Act, re-enacts it and sticks in nullity. I am sure all Members acknowledge that hardship can result from loss of succession rights if a marriage is annulled, especially if it involves an elderly or incapacitated spouse. What is the feasibility of maintaining succession rights if it cuts across the rights of a spouse in a marriage contracted later? Would there be inheritance tax implications in respect of pension orders after nullity? All those questions must be teased out.
At present many wives who believe they have grounds for nullity do not apply because they would not get maintenance, pension rights or property orders. If this Bill is enacted there will be an increase in the numbers seeking annulments. Will that be divorce Irish style, another half baked Irish solution to an Irish problem? I do not believe that will be the case, but we must be aware of it. If the status of the marriage entitles one spouse to apply for a property transfer order, will there be a constitutional difficulty in proposing that even though the parties were never married, nonetheless one can get a property transfer order? If that is the case there is no argument against giving unmarried couples the same rights to property and maintenance orders and pension rights if the relationship breaks up. As pointed out in the White Paper on Marital Breakdown, in the absence of the possibility of remarrying some people whose marriages have broken down go on to form second unions outside marriage. Neither party to a second union enjoys the same legal protection available to parties to a marriage, but the children of such unions have been given full legal protection by the Status of Children Act, 1987. There are many implications associated with holding a divorce referendum which must be examined further on Committee Stage.
Some Members mentioned raising the legal marriage age to 18, a sensible move which has been sought by a number of individuals and agencies in the past number of years. I have no objection to requiring intending couples to give the Registrar of Marriages three months' notice of their intention to marry — the so-called cooling off period. Some people have argued that one or two months' notice should be sufficient, but in my view a three month period is necessary. There is a difficulty in relation to noncompliance resulting in the marriage becoming void which can be examined on Committee Stage. I do not see any reason for making the notification of a marriage available for public inspection, it is an unwarranted invasion of privacy, the constitutionality of which has been questioned. While I do not envisage the Registry Office in Kildare Street being surrounded by the paparazzi, there are grounds for concern about the invasion of individuals' privacy. I will be questioning the Minister on that matter on Committee Stage.
There are many worthwhile provisions in the Bill. I give the Minister an A for effort but a bare pass for achievement.
Many of the provisions need to be discussed in more detail. The Minister said that the Bill was too long to go through it section by section, but we will have to spend a long time on Committee Stage teasing out a number of issues.
The Bill proposes considerable changes in the law on nullity which raises more difficulties and questions. In considering that, we should recall the background to many family law cases for which free legal aid is required, some of which were outlined by Deputy Currie. On numerous occasions in the past few months the Minister referred to the provision of extra funding for the free legal aid service, including the recruitment of more solicitors to deal with cases. He said he was committed to assisting the support services with the substantial additional funding allocated to his Department for the family mediation and civil legal aid services. I congratulate the Minister on his achievements to date, but the funding is still inadequate. I have been told that solicitors with little or no experience in the complex area of family law have been recruited to provide the free legal aid service. I hope we are not creating a two-tier system whereby some people — mainly women — do not receive the level of competence in service that their cases may require.
As a result of this legislation, nullity cases will be heard in the Circuit Court. Initially that may appear to be a good move which will allow cases to be processed more speedily. However, the reality is different. Everyone knows of the delays in processing Circuit Court cases because there are not enough judges and until today we had no women judges at that level. I congratulate Catherine McGuinness, Senior Counsel, on her appointment to the Bench. We can be confident that we now have somebody with the necessary training and expertise in the area of family law. I welcome her appointment.
Under the legislation the Circuit Court will be called the circuit family court, even though everyone knows that is a big joke. The Circuit Court sets aside one day per session to deal with up to 50 family law cases and that is without transferring any more business to that court. How does the Minister expect us to take seriously a plan to move nullity cases to the Circuit Court knowing that such cases may take up to three or four days to conclude. There is not enough time, not enough judges and only one woman judge. This legislation does not refer to the training of judges or family tribunals which could deal with family cases outside the court system. The physical and emotional toll on family litigants is already intolerable as a result of delays and lack of facilities at our courts. In some cases there are consultations and negotiations on the street to avoid being overheard by the other side, at a time when people are at their most vulnerable.
We must always stress the need for support for families and should restate the aims of the Judicial Separation and Family Law Reform Act, 1989, which encourages marriage counselling and mediation for separating couples. Such services require more recognition and funding. A strong case has been made for the reform of the family law system with an adequately resourced family law division in which psychologists and lawyers could work together with the children's welfare as their main priority. That is the type of resource necessary and it should run in tandem with legal developments at all times. There is only one probation officer available to carry out investigations and write reports on family law cases in the District Court and that service is not available in the Circuit Court, a serious inadequacy which must be addressed. Many more gaps remain to be filled.
The Minister received many representations from professionals and interest groups — those directly involved — to extend barring orders to include the barring of adult children and cohabiting couples. It is disappointing that the Minister did not include those necessary provisions in this legislation. He should communicate with his colleague, the Minister for Justice, who, I am sure, would support me in that regard.
Organisations which contributed to conferences on violence against women have highlighted this point. It is not just spouses who should be the subject of barring orders, it should be open also to the individual to apply for protection orders independently of barring orders in cases where that is the most appropriate measure.
Suggestions I make in debate or in amendments are designed to ensure that the legislation we eventually agree will be as comprehensive as possible. They are made in the context of the Minister having assured us that there will be a divorce referendum later this year. An assurance is given in that regard in the programme for Government. It is regrettable that it does not give a greater feeling of certainty about the constitutionality of Bills. It would be unthinkable to have a 1986 type of referendum revisited. That is why certainty and not reassurance is needed. The reasons which led people to reject the proposal on divorce in 1986 need to be addressed. This legislation can be part of the process and that is, why I support it. I support it subject to amendment and on the basis that the 1989 Act, which is fundamental to the Bill, is constitutional, and that the Bill as presented will not be challenged as to its constitutionality.
We in Democratic Left welcome the publication of the Bill. There are important measures in it which will resolve difficulties experienced in cases of martial breakdown. The first and most important statement to make about the Bill is that it has nothing to do with divorce. We have yet to hear proposals from the Government about divorce legislation. It is time we did. All we have had to date are Bills tidying existing arrangements, is the case with this one.
The doomed Matrimonial Home Bill was ushered in by the Minister. At that time he said that while there were many priority areas in his legislative programme the issue of joint ownership was one to which he assigned considerable importance. Now that the Supreme Court has blown the Matrimonial Home Bill out of the water it is worth noting how swiftly not just the Minister, but the Taoiseach and the rest of the Government, have pushed women in the home unceremoniously back to the end of the queue. Apart from dashing women's hopes the débacle had another effect. In the public debate the Matrimonial Home Bill became entangled with pending divorce legislation. Inevitably, when the Bill collapsed so did much of the public confidence in the capability of the Government to frame legislation on divorce.
What about the Supreme Court decision?
I am referring to the Government's actions subsequent to the Supreme Court decision. I am not referring to the Supreme Court decision. The Government put the Matrimonial Home Bill in the bin by ignoring the need to establish joint ownership in the manner to which it gave a commitment.
The Bill is about maintenance, property rights following nullity, raising the legal age for marriage, pension rights following nullity and foreign divorce, among other matters. It is not part of divorce legislation or even part of the building blocks of divorce legislation. It stands alone. Inevitably, the context in which it is being brought in cannot be disregarded.
That context is one in which there is no such thing as an Irish divorce. The Bill extends the legal remedies available in a judicial separation situation to the law of nullity. The law of nullity is a legal procedure to determine whether a valid marriage has taken place. The main areas are lack of capacity, nonobservance of formalities, absence of consent, insanity, intention not to fulfil a fundamental term of importence. Because of a lack of divorce the concept of nullity has become elastic. It has developed and expanded over the years to grant remedies where divorce would be more appropriate. If divorce were made available it is likely that the growing number of couples seeking annulment of their marriage would decrease. At present in each case the justice of the nullity case may have demanded an annulment it would be far me appropriate for our Legislature to introduce divorce legislation than to develop the law of nullity.
Annulment of marriage is allowed by the Catholic Church in certain circumstances. The development of State annulment parallels that of church annulments. For example, the development of the concept of the intention to fulfil a fundamental term was first developed by the Catholic Church. It reached a ridiculous stage when it was held that the breakdown of a marriage many years later was proof that one of the parties did not intend to fulfil a fundamental term at the date of the marriage. Such thinking should not have a place in our law. Many people would be surprised to hear that State nullity exists. Many believe a church annulment is the only kind that is obtainable. However, it is clear from the growth in the number of annulments that people are using annulment as a form of Irish divorce. It is an extremely expensive procedure and costs approximately £8,000. One must either be well off or qualify for free legal aid to be able to proceed with an annulment case. A tragic position may exist where one partner may be in that happy position while the other may have difficulty securing equal legal representation.
I know of at least one case pending at the moment where the couple have been married for a long time. The husband is taking a nullity case against the wife, and she is not in a position to pay for her legal representation, nor is she eligible to avail of free legal aid because her income is just over the limit. It is extraordinary after many years of marriage and having had a large family that a case stating the marriage never existed is now being taken against that women's will. The cost of High Court action is adding considerably to her anguish as is the knowledge that if her husband wins the case she will lose her right to the matrimonial home.
In recent times, much attention has been focused on the impact of marital breakdown on children. The Exeter report is the most recent report in which there is evidence that marital breakdown has a damaging effect on children. This is a feature we live with in Ireland without totally comprehending it, or without tackling it in any real structured way. That is something we must come to terms with because marital breakdown figures indicate it is a growing problem. The nonavailability of divorce has done nothing to stem the rate of growth of marital breakdown and there is an onus on us, as a society, to provide damage limitation to those children. In the case of nullity a marriage is obliterated from the record even after many years. Such an experience causes great trauma to all members of the family involved.
The expansion of nullity in Ireland — there has been an expansion of it both in interpretation and in the numbers coming forward for nullity — is a major argument for the provision of divorce. If we do not introduce divorce we will see the continuing expansion of nullity as a means of escape from marital breakdown. It is a totally inappropriate way out for the majority of marital breakdown cases. Surely it should be the exception rather than the rule to decide that a marriage which has broken down never actully existed. It is more honest, fair and realistic for us, as a society, to say that a marriage has broken down and provision must be made for those within the family. Partners must be free if they choose to have a second chance and to remarry. If anyone doubts that the rate of nullity cases is increasing, I would refer them to the figures from the Legal Aid Board which show a steady increase. In the period 1990-91, the Legal Aid Board took up proceedings on nullity in 33 cases. In the year 1992-93 there were 43 cases of nullity and in the last year for which we do not have up-to-date figures it is expected that the figure will be higher. Those figures are only in respect of cases for which there is an application for free legal aid. There were 58 applications for nullity in 1991, in 1992 there were 60 and in 1993 there were 71.
There is a remarkable increase in the figures for judicial separation. In 1990, 200 cases were dealt with through the Legal Aid Board; in 1991 there were 420 cases and in 1992-93 there were between 600 to 700 cases.
Marital breakdown is part of the Irish experience and we should not try to pretend it is anything other than part of what we are. It has grown inexorably. That growth puts additional demands on the courts and legislators to deal with the outstanding matters of property rights, maintenance and particularly the care of children.
I welcome the sections of the Bill that deal with maintenance payments. There have been many cases where women have had great difficulty in extracting their entitlements from their spouses and, in order to do so, have had to make the most demeaning efforts.
The proposal to make maintenance payments more effective is a great improvement and I welcome it. However, as the Matrimonial Home Bill was produced in the shadow of a constitutional case, this Bill is being produced in the shadow of a constitutional case that is under way.
Debate adjourned.