Dáil Éireann debate -
Tuesday, 8 Mar 1994

Vol. 440 No. 1

Family Law Bill, 1994: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Costello

I am delighted to have an opportunity to speak on this Bill on International Women's Day, as this legislation is another milestone in attaining rights and equality for women. It has taken a long time to tackle the question of family law reform. It is 150 years since the last major Act dealing with marriage was introduced in 1844. We are notoriously slow in keeping pace with changes in family life, particularly with regard to marriage and child care.

This is the first Government in the history of the State which has taken the question of law reform and equality seriously. It was a master stroke to separate criminal law from civil law between the Department of Justice and the Department of Equality and Law Reform. In years to come the decision to appoint a Minister for Equality and Law Reform will be considered one of the most significant decisions taken by the Government.

During the three years I was a Member of the Seanad while a plethora of criminal justice Bills were presented not one measure under the heading of civil law reform was introduced. This underlines the need for a Minister for Equality and Law Reform. I welcome the Minister, Deputy Taylor, the first Minister to hold that portfolio.

I also welcome the package of legislative proposals contained in the Programme for Government under the heading of law reform covering such matters as women's rights and family law. It is appropriate on International Women's Day to highlight the steps taken to date by the Government: on the question of gender balance, 40 per cent of the members of State boards must be women; legislation has been passed protecting the family home and we are now discussing the Family Law Bill, substantial legislation, which marks a further step towards the proposed divorce referendum due to be held in the autumn. This matter was raised on the Order of Business today. There is a crying need to introduce a Bill to allow this constitutional referendum and make the required changes.

Foreign divorces are recognised but people do not have the right to remarry. There is no point denying that marriages break up. The purpose of the 1989 judicial separation Act was to put a mechanism in place under which the affairs of spouses whose marriages have broken up could be put in order. That Act contains provisions dealing with children, property and financial matters. We must also consider the question of what happens to the partnership; we must not confine spouses for an eternity to a relationship which everyone knows no longer exists. This is a mature society which should be reflected in the Constitution and our laws. We must recognise that if two mature adults have the right to enter into a binding legal contract they also have the right to dissolve that contract and start all over again.

We cannot avoid this issue because if we do this will remain a stunted society which will be damaging for those compelled to remain within marriages which have broken down, particularly for the children. It would also damage what we hold sacred in the Constitution, the institution of marriage.

The Minister referred to the support services he has put in place to protect the institution of marriage. It is my contention that divorce, instead of damaging it, protects the institution of marriage just as this legislation is intended to protect the family. Raising the age of marriage from 16 to 18 ensures that youngsters are more mature when they marry and that there is, therefore, a greater likelihood of their partnership enduring. Making it a requirement to give three month's notice of intention to marry allows people a period of time to reflect on the substance and scale of what they are entering into. That also is of benefit in ensuring that people enter in the fullness of knowledge into one of the most important relationships in their lives.

The Minister has provided for a 150 per cent increase in counselling services, a 142 per cent increase in mediation services and a 56 per cent increase in legal aid with the allocation of the Legal Aid Board increased to £5 million. These are substantial financial increases to support the institution of marriage. It is when a marriage has broken down irretrievably that we must resort to the courts, but there must be as much intervention as possible to prevent marriages reaching that stage. An adequately-resourced and adequately-staffed family mediation service is, therefore, an essential plank in helping to maintain stable relationships within marriage.

There are now 14 new family law centres, almost a doubling of the existing 16. That means every county in Ireland will have access to family law court facilities through the Legal Aid Board. As well as almost doubling the number of family law centres, a further 24 solicitors will be made available, also an enormous increase. In addition, 34 additional staff, typists etc. will service the centres. Already the queues have been reduced enormously and, no doubt, in the not too distant future the service will be a fast and efficient one. All of this is geared to supporting the existing institutions, putting emphasis on reconciliation and the mediation services and, in the last analysis, going to court. That is the background against which we are discussing this legislation, where the Government is committed to a major overhaul of family law, and is prepared to put its money where its mouth is by providing the necessary resources. We could talk forever about reform but if we do not provide the funding it is just waffle.

In this legislation we are bringing our procedures into line with those of our European counterparts. The courts can, for the first time, make orders following decrees of nullity, foreign decrees of divorce and nullity, and legal separation. It is important that we recognise what is happening in other countries and regulate relationships that have been established and terminated abroad. We are extending Circuit Court jurisdiction which will enable a greater number of cases to be dealt with. The Circuit Court will have jurisdiction specifically over nullity proceedings. We are extending the power of the court to make declarations about the status of a person's marriage. We are raising the minimum age of marriage to 18 and providing that three month's notice of marriage be given, and the law relating to maintenance is being strengthened.

There has not been a major overhaul of family law for 150 years. We have been picking at this issue for up to 20 years. The report on the law of nullity in Ireland was produced by the Attorney General as far back as 1976. We have had a variety of reports both domestically and internationally since then. There was the Law Reform Commission report of 1983 on the age of majority and of marriage and we are only dealing with that now, 11 years on. We are only now dealing, too, with the question of proceedings for nullity though it is almost ten years since we had the report on recognition of foreign nullity decrees. We have also had The Hague Convention on recognition of validity of marriages, the report of the Oireachtas Joint Committee on Marriage Breakdown, the report of the Combat Poverty Agency on the financial consequences of marriage breakdown and, more recently, the initiative taken by the previous Taoiseach, Mr. Charles Haughey in 1991 when he made an announcement to the Fianna Fáil Ard Fheis that he would introduce a White Paper on marriage breakdown. The then Minister for Justice, Mr. Flynn, produced that White Paper in 1992. That plethora of reports and recommendations has finally been drawn together in this legislative package. It is good to see the matter being dealt with rather than merely reports being produced and left to gather dust. That is why I am particularly glad to be able to compliment the Minister today.

This legislation was initially proposed in the Programme for a Partnership Government. It is a step on the way to a divorce referendum and provides safeguards for those who are married and for those whose marriages are breaking up. Up to now decrees of nullity were available only through the High Court, but under the provisions of this legislation they will be available through the Circuit Court which is more accessible to ordinary citizens. Also, up to now the courts did not have power to make financial or property arrangements or support regulations in the case of annulment. An annulment means that the marriage did not exist in the first place, but the considerations — children, property, etc — for a couple in such a union are likely to be the same as for a couple in a valid marriage. By taking the view that because a marriage was null and void no such problems would arise, we were turning a blind eye to the real issue. Under this legislation the question of nullity will be dealt with in a similar manner to that of judicial separation. We are providing for barring, protection, custody and maintenance orders and for the protection of the family home and contents.

The proposals in this legislation in respect of attachment of earnings by the courts when a spouse has been in default in the matter of contributions are infinitely superior to the measures which apply at present. Statistics indicate that approximately double the level of payments is achieved once an attachment of earnings order is provided for.

This is significant legislation but I do not have time to deal with all the sections. I welcome the Minister's decision to increase the age of marriage from 16 to 18 years. Couples are biologically capable of procreation at the age of 16, but boys and girls of that age are still in their youth. They are in their mid-teens, in most cases have completed their junior certificate and are not fully grown mature adults. They are in the process of exploring life and not in a position to make long term lifelong decisions. Eighteen is the age of majority and the age at which people are entitled to vote and I compliment the Minister for increasing the legal age of marriage to 18.

I commend the Bill to the House and congratulate the Minister for introducing it.

Mrs. T. Ahearn

I thank the Minister, Deputy Taylor, for introducing this Bill, but like other Members I have some concerns in regard to it. We cannot but notice that this Minister is being watched carefully by many groups and individuals and that the legislation he introduces is being carefully scrutinised. We are assured that one of those scrutineers is the office of the Attorney General, but I must remind the Minister that the opinion of that office did not coincide with the opinion of the Supreme Court in respect of recent legislation, namely, the Matrimonial Home Bill. As a result the time spent debating that legislation both here and in the Seanad was wasted. There is no doubt that those who are scrutinising the Minister's moves, including the introduction of this legislation, will seek to have this Bill referred to the Supreme Court when it is passed through the Oireachtas. If the Bill is not referred to the Supreme Court it is likely that its constitutionality will be challenged at a later date.

The contents of the Bill are comprehensive and intricate. The Minister described it as one of the most extensive family law measures to come before the House. It is likely to take up much time and effort on the part of Members of this House, particularly on Committee Stage.

Without wishing to abuse the privilege of this House by making unfair allegations, I would like to place on record my concern with the legal advice the Minister has been receiving. I do not wish to unfairly criticise the Attorney General, but his advice to the Government on the last occasion was wrong. As it is likely that similar questions will be raised about the constitutionality of this Bill——

An Leas-Cheann Comhairle

I am sorry, Deputy, it is not in order to reflect on an officer of the Government. If serious charges are to be made against the Attorney General it should be done by way of substantive motion rather than by making comments here.

Mrs. T. Ahearn

I have no wish to do so. I am merely issuing a word of caution.

I believe the Minister will reassure and convince us that the work and effort we will put into this Bill will be useful and that it will not be overturned by the courts. Such a turn of events would be unfortunate for a number of reasons. It would mean that many valuable hours of this House's debating time would have been wasted. More importantly, it would mean that the Government would introduce divorce legislation in the autumn minus an important chink in the armour that could protect the rights of the separating parties. We have yet to see the Government's proposals for divorce legislation, but the chances of those proposals being just and equitable would be severely impaired if this Bill was declared unconstitutional In short, if the Bill is passed, it must be capable of withstanding any challenge to its constitutionality. We need more reassurances from the Minister for Equality and Law Reform that his legal advice is authoritative and reliable.

I strongly urge the Minister to consult as widely as possible among constitutional and family lawyers so that any necessary amendments may be made on Committee Stage. Unfortunately, even if one line of the Bill is found to be repugnant to the Constitution the entire Bill is lost. While I have some reservations about the Bill, it would be tragic if divorce legislation was passed in the Oireachtas and accepted by the people without the backup of legislation such as this. It would also be tragic if in this, the year of the family, we lifted the ban on divorce without the measures and provisions of this Bill being implemented, measures and conditions designed to minimise the hardship of the less well off partner and the children in the sad event of a marriage breakdown.

That would surely offend against the spirit of the Constitution even if the ban on divorce is lifted by will of the people. It would be unfortunate if the law provided for the dissolution of marriages without making adequate provision for the fair treatment of the less well off partner. Such a scenario would, without doubt, seriously undermine the family and the family status as "the natural primary and fundamental group of society" as defined in our Constitution.

During our deliberations on this legislation we must recognise that if separation of spouses, whether by way of annulment or dissolution of a marriage, is allowed, it will not constitute the annulment or dissolution of the family. We all know it alters the family but it does not dissolve it and, regardless of the steps taken, the family must be protected. The Bill goes a long way towards providing that protection and I welcome it for that reason.

A number of sections in the Bill are particularly welcome. Perhaps the least controversial and complicated provision is the Minister's decision to raise the age of consent of marriage to 18 years for both partners. In an era of an increasing incidence of marriage breakdown it is important that couples do not rush into marriage too young or too quickly. The provision for three months' notice of intent to marry is welcome. Too often young couples rushed to the altar without a proper and realistic understanding of marriage and it has turned out to be a serious mistake with couples not giving themselves sufficient time to fully evaluate their relationship and commitment to one another. Even today couples feel they are trapped into marriage by a pregnancy, pressure from parents and relatives and the need to keep up appearances. Such circumstances make a strong case for nullity in that the partners married without full consent. I welcome the provision for a period of three months from the time of notification of intent to marry to the time of marriage. Some Churches have made that provision a requirement for some time and it is strongly recommended by many psychologists and marriage counsellors.

I note Deputy McManus's earlier contribution in respect of this point, she stated that the requirements to be 18 years old and to give three months' notice of intent to marry were alien to the travelling community and that they would enforce a cultural change on travellers. Deputy McManus is aware of the traditions and culture of the travelling people from her work as chairperson of the task force on the travelling community and I urge the Minister to take her remarks into account.

I note the 18 years and three months' waiting period requirements can be avoided by making application to the court. It is a good idea to recognise that sometimes extenuating circumstances make the three months' notice too long but I have reservations in that regard as I am afraid that this provision could become the norm. Unless there is a clear definition of extenuating circumstances this provision could defeat the aim of the three month's notice provision, namely, to prevent people getting married without due consideration. Will the Minister clarify what the court will interpret as "serious reasons"?

This Bill is also vague as to how the application for dispensation will be made. Paragraph 33 states that the application may be made informally. I do not understand how one makes an informal application for a Circuit Court order and I ask the Minister to clarify the matter. I have visions of engaged couples tapping the county registrar on the shoulder as he eats his lunch and asking him if they can be exempted from the three months' rule. The idea of him fixing an early morning appointment so that their case can be heard privately is ridiculous.

I recognise that the idea of informality in respect of cases heard in camera would help to make the process user friendly and less traumatic. However, this facility, even though it may be essential and helpful to a small number of couples, will be available only to those with the means to pay for legal representation. It seems unfair that a measure designed to help groups, such as the travellers, to preserve their traditions and culture will not be available to them because of the cost of engaging counsel. It would be quicker to give the registrar the required three months' notice and then marry rather than having to sign for free legal aid and applying for the three months' period to be waived. The process of gaining a dispensation from the court would take longer than three months and this measure is ridiculous.

Section 5 which provides for the requirements of 18 years and three months' period should be the least controversial and the most readily understood by the non-legally trained reader, but it is causing much confusion. The lack of clarity is worrying and makes one want to shrink from examining the more complex sections of the Bill.

I welcome many of the provisions. The Bill is comprehensive in granting to the court powers to order either partner, even in the case of nullity, to pay for the maintenance of the other. I welcome the variety of options open to the courts, such as lump sums, periodic payments, attachment of earnings and soon. It is interesting that we are debating this Bill on International Women's Day. I have already criticised the Minister for not letting this important day become a valuable marker and a special day for all women. I had hoped that the Minister might have made an interesting statement on behalf of women in respect of the payment of their arrears or increasing the lot of carers. It is ironic and sad that the first time many women will have heard that today is International Women's Day is through news reports of the visit of the President to the United Nations Headquarters in New York to address the United Nations organised conference to mark women's day.

While we may not be having either largescale celebrations or conferences here to mark International Women's Day, we are doing something in this House which will make a positive impact on the lives of many women, particularly those who have suffered marriage breakdown. Women are usually poorer when couples separate. While we cannot legislate for ways to prevent the terrible personal, psychological trauma suffered by a woman when her marriage breaks up, at least we can do our best through this legislation to ensure that when a couple split up, neither will be suddenly impoverished or destitute.

On Second Stage the Minister for Equality and Law Reform, Deputy Taylor, said:

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.

I agree fully with the Minister on this, but I am frustrated with the Bill as it provides for only one small element of what needs to be done. While it provides the basic framework on which the courts can base their decisions in cases of separation and nullity and is welcome, there is no provision in it for support services. I cannot accept this Bill alone will prove to be a hallmark of a caring society.

Since 1989 when the Judicial Separation Act came into force, one in 12 of Irish couples affected by marital breakdown applied for judicial separations similar to the type provided for in this Bill. It is interesting to note the reactions of different people to the way the system has been working since then. Lawyers say it is fair and equitable and I have no doubt it is. However, last week a spokesperson for the lone parents group, Gingerbread, said in The Sunday Tribune:

What we hear from most people who have gone through judicial separations is how horrible and expensive it was. It is all done in a very adversarial manner and it means that everyone ends up being even more bitter about the whole separation than they would have been.

The two key words in his observation are "horrible" and "expensive". Considering the expensive element, it is not difficult to see why bringing an action to court would be expensive. It involves engaging solicitors and barristers and other experts like auctioneers, bankers, quantity surveyors, pension scheme administrators and many others who all charge fees. This is a great expense and certainly cannot be afforded by many of the couples who separate. It is especially crippling for a wife separating from a mean husband, who is caught in the vicious circle of not having enough money to sue him for maintenance. The waiting lists for free legal aid, coupled with the waiting lists for court applications to be heard, conspire to make this Bill either too expensive or completely inaccessible to many couples.

The other concern of the spokesperson from Gingerbread was that the process was horrible, that it was too arguementative and confrontational. There are a number of quotations in the same feature from women who have been through court proceedings and who found the experience deeply impersonal and soul destroying.

I welcome the decision to give jurisdiction in this Bill to the Circuit Court to determine and hear proceedings under the Bill. This should shorten the waiting lists, but the fact still remains that an X versus Y court case will continue to be the pattern. I would be interested to know it on the one or two days per session that the Circuit Court transforms itself into the Circuit Family Court, the judge and barristers will still use the existing Victorian courtroom and the positively medieval wigs and gowns. Some flexibility in this regard could go a long way towards making the process less daunting and I hope that the Minister, in collaboration with the Minister for Justice, will take this on board.

However, this would still be only a modification of the adversarial approach. What we need most urgently is the other half of that coin that the Minister flipped over in his opening speech, that is, strong support services. In particular I refer to stronger and better funded family mediation services. Many voluntary and Church groups already provide services such as these where the couple, their solicitors and others such as psychologists and social workers sit down and work out a settlement without having to face one another across a courtroom, with a decision being enforced by a judge and his sheriffs. Surely this is the way we should be going? Surely this Bill, valid as it is, should only be a last resort when one partner refuses completely to take responsibility for the other partner and the children?

By bringing in legislation such as this, without increasing the funding for services such as counselling and mediation, we are forcing people into the courtroom. I strongly urge the Minister, after he has seen this Bill through the House, to get working immediately with his colleagues, Deputy Geoghegan-Quinn and Deputy Howlin, to ensure that such support services are put on a firmer footing. If that is done at least in the case of marriage breakdown, we may be able to upgrade the hallmark of a caring society which the Minister speaks of from 12 carat rolled gold to 24 carat pure gold. I look forward to that day.

Ms Shortall

I congratulate my colleague, the Minister for Equality and Law Reform, Deputy Taylor, for introducing this much needed legislation. I am grateful for the opportunity to speak on this very important matter which affects many people in society. As legislators we should show compassion and leadership in cases of marital breakdown. The Government must not be allowed shirk from its responsibilities in this area, and I believe it will not do so.

The Programme for Government is the blueprint from which the Government will implement its policies and initiatives. It is obvious to anyone who has read this document that it contains a very strong commitment to reform of the law in this area. The Programme for Government states the Government's commitment to a major programme of family law reform, culminating in a divorce referendum at end 1994. There are many people in society who believe that this legislation is urgently required. A practical and caring approach must be taken to law reform in order to give people whose first marriages have failed a second chance.

To the best of my knowledge, this legislation is the first major attempt in more than 150 years to tidy up the whole area of family law. It is a wide-ranging, comprehensive Bill containing 49 sections. It is one of the most extensive Bills in this area to be published in recent times and it represents a substantial improvement on existing solutions to marital breakdown. The Bill will implement many of the proposals in the 1992 White Paper on Marital Breakdown. In the past many critics claimed that reports on this matter have done little more than gather dust on shelves. On this occasion that has not happened, and I compliment the Government on taking much needed action in this complex legal field.

The absence of divorce laws in Ireland has in no way prevented widespread marriage breakdown. The 1991 labour force survey shows that approximately 60,000 individuals are affected by marriage breakdown, but the real figure may be higher. We could opt to bury our heads in the sand in the hope that the problem will go away — this approach has been taken in the past — but I am glad the Minister, with courage and the sense of urgency which the problem of marriage breakdown requires, is setting about tackling the many complex issues in this field.

Under the Bill the Government is protecting the institution of marriage by raising the age limit from 16 to 18 years. This follows the recommendations of many reports and bodies, including the report of the Oireachtas Joint Committee on Marriage Breakdown, the Law Reform Commission and the Second Commission on the Status of Women. Statistics show that the risk of marriage breakdown is much higher for those who married at a young age. Very often those under the age of 18 are not mature enough to enter serious long term contracts — marriage is perhaps the most important and solemn contract entered into by a person in the course of their entire life. I welcome the introduction of a three month waiting period for marriage. This is consistent with the requirements of most Churches. Both of these measures reflect the Government's strong commitment to protecting the institution of marriage.

This Bill will resolve the problems created by the absence of a statutory role for the probation and welfare services in family cases. The Bill provides that social reports be given by the probation and welfare service and by the health board. This measure will contribute towards protecting the welfare of spouses and particularly children in marital breakdown. The Bill will enable the courts to make financial property and other ancillary orders following the granting of a decree of nullity of marriage. This is the first time the courts have been given such wide-ranging powers to protect the financial position of a dependent partner in cases of nullity. The powers given to the courts will cover all aspects of matrimonial property, including houses and other assets, pensions, succession rights and maintenance.

At present when a marriage is annulled the courts have no power to award maintenance to the dependent parties. Under the Bill separation and nullity cases will be treated in a similar and corresponding fashion. It will also provide protection for spouses in cases where nullity, separation or divorce takes place outside the State — for example, where a husband emigrates to England, gets a divorce and the spouse does not appear in court. In such cases the spouse can apply to the Irish courts for a maintenance order which can be served in the UK.

The Bill deals for the first time with the allocation of pensions in nullity and separation cases. This is a very welcome development. In nullity cases the courts can either split a pension between the two parties or earmark a benefit for one of them when the payment falls due. These provisions, which have been broadly welcomed by the pensions industry, go way beyond the provisions in other jurisdictions.

The Bill will improve the application and enforcement of maintenance orders. It also introduces the concept of automatic attachment of earnings. This is an order under which a husband's employer will be directed to pay the spouse directly. The Bill also deals with the sale of the family home following a separation. Under the 1976 Family Home Protection Act the sale of the family home was a very complicated matter as the spouse selling the home had to have permission in writing from the other spouse at every stage of the conveyancing. The Bill sets a six year limit on the provisions of the 1976 Act so as to speed up the conveyancing. This will protect the interests of both spouses and allow enough time for a spouse to challenge the sale of the home. In addition, power will be given to the courts to make an extensive range of financial orders to protect a dependent spouse in cases where a foreign decree of separation, nullity or divorce is recognised as valid in Ireland.

I wish to refer to recent newspaper reports which suggest that the outcome of the proposed autumn referendum is in doubt. I think all of us accept that much work needs to be done before that referendum can take place. The Bill, with its wide ranging provisions, is an excellent start to this work. It is important to recognise some of the other measures taken by the Minister, including the increase in funding for the family mediation service. This voluntary service, which until recently operated mainly on a shoestring budget, has done excellent work in the area of family mediation and has assisted couples who have been the victims of family breakdown in reaching a non-acrimonious solution to their problems; I also welcome the increased allocation to the Legal Aid Board.

These measures and the other promised legislation is proof of the Government's commitment and determination to put in place the appropriate legislation before the divorce referendum later this year. We cannot allow a repeat of what happened in 1986. We cannot forget or abandon those people whose marriages have irretrievably broken down. It is imperative that we as a nation show people whose marriages have broken down that we are prepared to deal with their problems in a compassionate and humane way. These people must be given a second chance and we, as legislators, have a duty to give them such an opportunity.

Ms. F. Fitzgerald

I welcome this very comprehensive, detailed and complex Bill, which requires much further discussion on Committee Stage in order to tease out its many implications. Given the background to the 1989 Separation Act, it is unfortunate that once again a constitutional question hangs over this Bill to some degree. The shadow of the decision of the Supreme Court must also be on our minds today as we discuss this Bill. The very basic recognition in law of the right of the partner to automatic joint shared ownership in the home, as recommended by the Commission on the Status of Women, has unfortunately been rejected by the Supreme Court. This raises very serious questions and, despite the Taoiseach's statement in this House to the effect that the Supreme Court has spoken, I urge the Minister to look again at the issue of automatic joint ownership in the home to see whether it is possible to translate this principle into law by making arrangements for those who have already reached legal agreements in regard to the family home. I know that the Supreme Court was concerned about this matter and I hope the Minister will look at it again.

If we cannot translate into law a very basic principle of equality which recognises the contribution of the spouse who is not working outside the family home, serious questions will arise about how well our Constitution can deal with equality issues. I regret very sincerely the refusal of the Government, in the person of the Taoiseach, on a number of occasions to concede that there is any need for a review of our Constitution. At the very least there ought to be a preliminary paper on this issue. A number of recent issues — for example, the debate on Articles 2 and 3 and general equality issues — has shown that the Constitution is stretched to its limits in coping with the society of the 90s. It would be appropriate to include in the Constitution an equality clause, as recommended by the Commission on the Status of Women. Such a clause might have impacted on the Supreme Court decision and other decisions which need to be made. Our Constitution should reflect the needs of the society of the 90s and not of the 30s. Surely any Constitution needs review. The society of the 90s is vastly different from the society of the 30s in terms of expectations and the realities for women with children, families, men and women. I do not think I am asking too much for legislators to keep an open mind on this issue and not to treat the Constitution as if it was carved in stone and never to be looked at again. This also has implications in terms of our approach to the Downing Street Joint Declaration, the needs of women and divorce.

I congratulate the Minister on the introduction of this Bill, but it is surprising that we are discussing it so late in the day. The Bill contains a wide range of provisions dealing with the legal age at which people can get married, nullity, the implications of the nullity orders granted for property rights, pension rights, foreign divorce, the extension of the jurisdiction of the District and Circuit Courts and notification of marriage. The fact that we are dealing with the Bill so late in the day highlights the key point that in many ways we have continued to deny the reality of marital breakdown and separation. For many years the AIM group on family law reform have provided assistance for people whose marriages have broken down. These people, desperate for advice and information and caught in a real personal tragedy, found again and again that the structures in place — the legal aid structure, the court structure and the structures governing custody of or maintenance for children — were not sophisticated or developed enough to deal with the reality of the situation in which they found themselves. To take one small example, it has been confirmed to me today that there is a nine month waiting list for custody reports within the probation and welfare service. This raises serious questions about the practical services which will have to be put in place if this Bill is to be of benefit to people.

In 1969 a writer described the tragic children of separation, the children caught in the entrenched legal battles of their parents, as the "children of Armageddon". I do not think national figures are available on the number of families involved in full scale legal battles over custody and visitation, but I have seen the tragedy these battles have wrought on many families. I have seen the lack of resources in child and family centres to handle parental visiting rights, for example, in disputed and contentious custody cases and to provide the therapy and supervision which is required for these families. Who will do this work if we make the legal avenue much more accessible for people? What about the follow up work that is often needed? Where will that take place? I am also aware of the difficulties for many families because we have not faced up to the reality of marital breakdown. Many children in schools suffer because of social attitudes. Divorce will not introduce family and marital breakdown, it recognises the reality and is an attempt to deal with it in a humane and legally competent way.

In regard to the structures that must be put in place, and as marital breakdown is a reality, we must ask what support services and structures are required to deal with this problem. That raises a complex set of issues and I see divorce as being at the end of that continuum. There is no doubt that changes within the contemporary family are reshaping the experience of growing up for many children and we must examine these changes in a realistic way. That will then help us to develop the services to deal with this problem through mediation, legal aid, the courts or counselling services, so that families are supported by the services available and emerge strengthened by their experiences.

The fact that we have not dealt with these issues in the past — which I acknowledge the Bill now attempts to do — has weakened families and prevented them from coping with stress. To speak of the family in Irish politics, however, is no longer seen to be using a neutral term. Like so many issues it can be hijacked and devalued by fundamentalists of the right and left. It is important that one can believe in the value of the family, in support for the family while also supporting the concept of divorce. This seems obvious but we sometimes conduct the debate in such a polarised way that it is not recognised. We must not only legalise divorce; we must legislate positively for the family and cater for the effects of marital breakdown and divorce when this referendum is held.

It is important, however, as we approach a referendum on divorce, to deal with property issues, the question of access to the courts and which courts will deal with maintenance and other issues. It is important also — and I would like the Minister's view on this — to recognise that the legal system can cause great stress to those trying to deal with these issues, picking up the pieces of their lives and getting on with parenting. There are many cases, for example, of continued legal contests, which are complex and multi-determined, between separating couples. There is a growing recognition by many people, particularly mental health professionals, that the adversarial system of the courts is not only poorly suited to resolving family conflict but may intensify it by further dividing the hapless parent and adding to the stress on the family. It has been said that the adversarial system is ill-suited to deal optimally with custody conflicts, psychically detrimental to children and, therefore, antithetical to good practice.

Will the Minister address this issue and outline how it and other issues can be resolved, particularly those which arise in separation cases? I would like him to comment on how legal intervention can be kept to the minimum for many families. I realise this may be difficult for the Minister as a solicitor——

Mr. Taylor

Non-practising solicitor.

Ms F. Fitzgerald

——but how can we ensure that the legal system operates in an effective but minimal way rather than placing the legal system at the centre of the situation?

I welcome the increases in funding to legal aid centres, mediation services, voluntary groups dispensing legal aid, advice and information, but of course it is not enough. We have not placed the development of our social services and supports for families sufficiently high on our list of social priorities. The Minister's Department should have much more financial support, this is the essence of the problem. Are we prepared to allocate resources at the preventative stage rather than waiting until matters have deteriorated?

This is similar to the problem in the health system, the Department of Health should be called the Department of Health and Social Services thereby allowing us to shift the emphasis from the high tech, hospital-centred approach, which has been the case over the years, to a more health promotional, preventative, community care type approach. Obviously, both are needed but we have erred in our approach to justice and in our approach to helping families and health by focusing too much on the point of highest intervention rather than on intervention at an early stage.

As legislators, we must have an informed debate on the issue of separation and divorce, the changing family and the effects on children. We must learn from other jurisdictions. A review is being carried out in England on divorce legislation because it is clear mistakes have been made. There is an attempt to ensure, for example, that the many issues which arise as a result of a family separating are dealt with before the divorce is granted. In other words, as many of the problems as possible should be dealt with before the final decision is made by a court. That is a fundamental point and I would be interested to know the Minister's views on the review in Britain. It is important to learn from mistakes in other countries and the Government has a serious task in relation to this issue to ensure there is informed discussion. It is wrong to pretend that a short, sharp campaign is the answer. There should be a steady and informed degree of public discussion on an ongoing basis in relation to the many issues I mentioned and dealt with in this Bill.

The divorce referendum must be put in its proper context. Many people are frightened to discuss it at present. Attempts will be made to define the family in an unrealistic, idealised way which does not sufficiently acknowledge the complicated family of the 1990s and the powerful pressures and distress facing many families. The Government should indicate its approach to divorce. We need to know this now and we must have a discussion on the matter over the coming months.

In regard to public policy — which as legislators we must address — we must recognise that many families need professional advice and guidance to negotiate their way through the tangled pathway and conflicts of separation and divorce. It is important not only to provide the services they need but to find ways to reach adults and children at the appropriate times, mainly at the time of marital separation and at critical turning points along the arduous road that lies ahead for many families. We must provide the necessary services to those experiencing marital breakdown. I am sure the Minister is aware that most health boards are engaged in crisis work; they are unable to provide — and I know this from experience — the type of counselling necessary for families suffering from stress.

In relation to support for families, we are dealing with juvenile justice legislation from 1908. Young delinquents are not getting the services they need and in many cases these children come from families who have experienced marital breakdown. The problem is interconnected. Services must be provided for families at risk and all the evidence indicates that we are not dealing adequately with these families. In this regard, we must have three agendas. The first is the preventative agenda which is extremely important when we are discussing a fundamental change. The second agenda should be the restoration of the family structure and parent-child relationships within the separated, divorced or remarried family.

The third agenda is in relation to children. The child of a divorced or separated couple faces a special set of challenges. While it is quite clear from research undertaken that many children wear the distress of marital separation or family rupture without huge psychological problems a considerable number do falter along the way. This is something we must address and not pretend that it is not a problem. Of course, there are children who end up in better circumstances after separation since they may have been living with extraordinary levels of marital stress and violence. However, we must also recognise that, for example, one national survey of adolescents whose parents had separated found that 30 per cent of those children by the time they were seven, had received counselling or psychotherapy by the time they reached adolescence compared with 10 per cent of their counterparts in intact families. Much of this research has been undertaken in the United States; we do not have a great deal of data, although there is some emerging here now. That, too, has implications for the various services.

The provisions of section 46 allow for social reports in family law proceedings. Perhaps the Minister could clarify a point in this respect. Is it possible for a judge to request an independent report on children and how they are faring as opposed to either of the parties requesting such report, in other words, a sort of guardianship report?

Mr. Taylor

The court can do that on its own motion.

Ms F. Fitzgerald

I welcome that provision. I consider it most important that there be an independent report on the functioning and needs of children in those circumstances. Children's needs must be central to any discussion of this nature and it would be helpful to such families if that began to be the case. We have been slow here to place children's needs high on the agenda. It is crucial, at a time when we are experiencing marital breakdown and considering a referendum on divorce later this year, that we have an informed discussion on this subject. However, it is distressing to note that the report of the United States Government on human rights in Ireland finds strong evidence that this Government has not been publicising the United Nations Rights of the Child Convention signed by a former Taoiseach some years ago amidst great ceremony. For example, the US report found that in the past year we have not been highlighting the various points referred to in the convention. I urge the Minister and the Government to devote more attention to the contents of this report, ensuring that they receive higher priority and are publicised nationwide so that our electorate are clear about them.

The inability of this Government to deal with poverty and unemployment which so many of our people are experiencing is clearly a major issue for those families affected. It seems now that children — and relevant evidence supports this view — are the quickest route to poverty in Ireland. We are not supporting the family in the manner in which we ought in terms of financial and/or tax supports. The presence of unemployment is extraordinarily damaging to family life and, more than anything else, places enormous pressure on children and families. Here the overall matter of developing community supports is critical.

The fact that we have the second lowest level of child care services in Europe demonstrates that we are not approaching this issue seriously; only the United Kingdom has less publicly-funded child care services than we have. I want to know from the Government — whatever the final amount of Structural Funds made available may be — what amount will be allocated to child care services? To date we have seriously neglected to meet children's needs. We need to urgently develop further publicly-funded child care services here. If we really want to support families in our society we must do so by the development of these types of services, whether it be through providing playgrounds in our parks, flexibility in the workplace or whatever.

We support families also by our attitude to women in our society, the respect we afford equality issues and the manner in which they are dealt with. Some responses to the discussion on leakages of the provisions of the Equal Status Bill do not take sufficient account of the importance of the question of "leadership" which politicians, judges and others in prominent positions do. For example, it is incompatible with public duty to be a member of a club that discriminates against women, incompatible with the needs of ensuring equality in society. I make no apologies for saying so. Whether it would be enforceable legally, whether our Constitution would support this contention being translated into law, is another matter. But we, legislating in this House for equality, should not at the same time be members of clubs that discriminate. At the very least we should state whether we are members of such clubs.

The provisions of this Bill cover a wide range of issues which I have endeavoured to place within the wider context of the changes in society we face at present. As Deputy Currie said, if the Government is serious about family law reform, careful consideration must be given to the overall matter of access to the law, to our courts and court facilities. If there are insufficient judges to cope with the existing workload, insufficient staff to cope with administration, if major delays occur, what impact will these have on implementing the provisions in this Bill?

I welcome many of the other detailed provisions in this Bill. However, the Bill should not serve as a blueprint for the Government's divorce proposals, rather it should form part of the blueprint. The many other issues I have raised must be addressed and expanded in the coming months.

Mr. E. Ryan

This Bill is a progressive one which is long overdue. The Government has tackled the reality of the social, economic and psychological problems arising from marriage breakdown in this country today. I congratulate the Minister on introducing this Bill.

The provisions of the Bill comprise a wide-ranging expansion of family law legislation, providing for the promotion of stability within marriage by recognising that security is necessary to any successful marriage partnership. This is helped also by the provision to raise the legal age for marriage from 16 to 18 years and a three month period of notification of intention to marry. Anybody who has lived abroad — I lived in the United States for a time and was shocked at the number of people who had married at 17 and divorced at 18 years of age — will realise the importance of this provision. I remember thinking that it was a total farce. I very much welcome the raising of the legal age for marriage because it is very important, when people decide to marry, that they realise it is a partnership for life. Any legislative assistance a Government can provide to bring such stability into marriages must be welcomed. I also congratulate the Minister on the three month period of notification of intention to marry which is important, particularly when one realises that elsewhere, in the United States in particular, one can marry at the drop of a hat, within a matter of a couple of hours, and very often this proves to have been a wrong or imprudent decision. I realise that that does not happen in Ireland, although it may have.

At the other end of the spectrum the provisions of this Bill recognise and establish structures where marriage breakdown has already taken place. The Government is putting in place provisions accepting that marriage difficulties have arisen. The Bill provides for the resolution of such difficulties, where they are capable of resolution, through the expansion of mediation services and legal aid. This in turn, enables easier, less costly access to the courts if disputes cannot be resolved between the parties themselves. Some interest groups have suggested compulsory mediation, which is worthy of serious consideration. I might congratulate the various mediation services and the Legal Aid Board for the work they have undertaken in the past. I have been a strong supporter of the mediation services and have lobbied on numerous occasions to have money allocated to them in various budgets. I have not been anything as successful as the present Minister in getting £750,000 for voluntary marriage counselling, £300,000 for the family mediation services, in addition to £5 million for the Legal Aid Board which will go a long way to help these groups provide a badly needed service. Any examination of the record of many of these mediation services will clearly demonstrate their high success rate in reinstating marriage, getting partners to recognise the various personal problems within their marriages.

Since 1989 there have been 6,583 applications for separations under the provisions of the Judicial Separation and Family Law Reform Act, 1989, of which 2,395 have been granted. There is a huge backlog of such cases. The present position is that couples who have filed for judicial separation this year are unlikely to have their cases heard before next Christmas. This adds to the difficulties which many people experience and is an area that has been badly treated in the past and needs to be tackled by the Government. Meanwhile the misery continues. The cost of an application for judicial separation, which includes solicitors, barristers and other expenses and the punitive 21 per cent value-added tax applied to solicitors and barristers' fees in family situations, can range between £3,000 and £10,000. Perhaps the Bill should allow in these exceptional cases of last resort where the marriage contract has broken down to waive the value-added tax element and thereby reduce the Bill by over 20 per cent. In family law cases there are never any winners and the further hardship imposed and this additional 21 per cent, which none of the parties can recover, seems a further imposition in an already stressed situation. Justice at this price can be justice denied.

This Bill will attach the relatively successful mechanism of "divorce Irish style" as it operates under the Judicial Separation and Family Law Reform Act to cases of nullity where the courts decide for a number of reasons that the marriage never existed from the outset. This is to be welcomed in itself as the current inequalities in the nullity law area are both undemocratic and unchristian. It seems extraordinary that while on the one hand couples can be legally separated and those separations recognised or enforced by the court, on the other hand couples who have their marriages nullified do not have any facility to have financial support mechanisms such as maintenance applied in their situations. The Government is to be applauded for correcting this position with this Bill.

"Once a husband, always a husband; once a wife, always a wife". This adage does not hold true at present. The effect of a decree of nullity voids the marriage from the outset and holds that it never existed, despite the wedding anniversaries, births and christenings. If the marriage never existed then no provision can be made for a spouse regarding maintenance and, furthermore, all succession rights are extinguished as the marriage is considered never to have existed or taken place. However, children of the marriage have entitlements under the Succession Act, 1965. This is an extraordinary situation and is now corrected in this Bill.

This Bill should be read in the context of the very comprehensive White Paper on Marital Breakdown prepared by the Government which outlines both the extent of marital breakdown in this country and suggested alternatives to deal with the situation. These range from better recognition of the financial aspects of nullity and maintenance as set out in this Bill to the possible ultimate introduction of divorce. This may follow a constitutional referendum to be held possibly in the latter part of this year.

Ms O'Donnell

Possible referendum.

Mr. E. Ryan

I have supported divorce for many years but I do not believe we should have a referendum if we are not prepared for it. We will probably be prepared for it at the end of this year. We should not rush headlong into it as we did in 1986 when it was defeated for many good reasons. This careful and considered consultative approach by Government is in stark contrast to the headlong rush in 1986. At that point the only apparent remedy to marital breakdown offered to the public was a divorce referendum on its own. At that time the financial implications of divorce and marriage breakdown did not appear to have been considered. It resulted in a massive rejection by the public of the divorce amendment itself. On this occasion the Government will be seen to have involved the public in an open debate and have furnished enlightened and progressive legislation to address all of the financial and property issues which have to be considered in advance of such an important constitutional decision. The stakes are too high for the issue not to be approached in this way. We are all aware of the hardship caused by marriage breakdown, and in recognising it as a fact of Irish life it must be confronted and addressed in a sensitive and balanced fashion. This is the purpose of the Bill.

Part I, section 2 (1), has a key definition of the word "spouse". It includes persons who are party to a marriage which is void or voidable or in respect of which a foreign decree of divorce or nullity is recognised in the State. Part IV provides for cost savings by enlarging the jurisdiction of the courts to hear nullity proceedings and to allow both the Circuit Court and the High Court to make the necessary orders. These orders can be made either at the time of granting the decree of nullity or judicial separation or at any time afterwards. In the interim section 5 envisages that before such financial determination is decided, urgent orders such as protection, barring and custody orders can be made.

When marriages break down and couples separate this inevitably leads to financial difficulties for the family. The court may order periodic payments or lump sums payments, pending determination of the application of nullity or separation. These payments, whether periodic or of a lump sum nature, may be directed by the court to be secured, and the former may also be the subject of an attachment of earnings order at the time the payments are ordered.

The attachment of earnings order to which the Minister referred in his speech is very important. It has been proven that when one has such an order the financial problems of the separated couple can be lessened considerably. However, on the basis that financial difficulties can result and be experienced by both parties in the proceedings, before any such attachment order is made the Bill provides for the right of the spouse who is to make the payments to be given an opportunity to make representations to the court in the matter. Furthermore, it is provided that any periodic payments ordered shall cease upon the marriage of the spouse in whose favour it is made, or indeed any further property adjustment order in their favour.

Following a decree of nullity or judicial separation a number of property adjustment orders may be made under section 8 (1) of the Family Law Bill. The courts will take all the circumstances into account. These orders include transfer of property from one spouse to another, or to a dependent child of the family; an order for settlement of property; an order for variation of ante or post marriage settlements made between spouses, or orders varying or extinguishing or reducing the interest of either spouse under such settlement. This is important as the courts can now police bad marriage settlements made, particularly if one spouse is under pressure at the time of signing. The courts will level the playing field and ensure fair play all around.

This is a very important area because when people are in such a situation there is enormous pressure on them, due to the whole nature of marital breakdown. Other orders which can be made include conferring a right of residency, an order for sale of the family home and the disposal of the proceeds of sale between the parties.

In the interests of justice and fair play and for the protection of the more vulnerable spouse and dependent children, the long-term financial effects of nullity have been considered and legislated for. To minimise the hardships that may result, the courts have been given a wide ranging power to modify the financial status of both parties to provide a fair division of the marriage property.

All in all this is fair and balanced legislation which brings people in the nullity limbo into the fairness of the judicial separation mechanisms that have operated since 1989. The Government intends to continue this programme of legislation to rectify the inadequacies in the law so that there is fair play for all parties concerned. It is only in this way that we will have a balanced and sensitive approach to deal with the ultimate issue in marriage breakdown, which is the question of divorce.

The debate on the divorce referendum should be an open and informed debate to ensure that people are aware of the choice before them. On the last occasion in 1986 the debate was full of confusion and half truths. As it turned out, some of the arguments we made were wrong because the legislation was not in place. If the divorce referendum, even though I supported it, had been carried, there would have been enormous problems in the courts because of the lack of legislation. We must proceed with caution and ensure that all the necessary legislation is in place rather than rush headlong into a divorce referendum. Huge mistakes in regard to this issue have been made in other countries. We must recognise those mistakes and look at things such as the Exeter report, which was published recently, and the problems and the needs of children, which are paramount. There is no use in saying, as one speaker said, that divorce can sometimes be a challenge to children. We have to recognise that in many cases those children are not up to the challenge. This is a huge problem, but I welcome the furthering of this debate. By the time the referendum is held at the end of the year, one would hope, people will be well informed about the choice they will make. I welcome the Bill.

Ms O'Donnell

I welcome the debate as it provides a forum for Deputies to address the forthcoming divorce referendum. The Bill seems to be a masterpiece of distraction in that it refers to introducing powers for the courts to make orders in relation to judicial separations, marital breakdown and the recognition of foreign divorce. What we are really talking about is divorce and what the position will be if and when we convince the people that divorce is the way forward.

The Bill is a comprehensive one. I agree with Deputy Ryan that there is widespread gloom about the possibility of the divorce referendum being carried. We must be courageous and accept that this is the case. The Bill does not address the public's legitimate worries which might well scupper the referendum. The worry in the previous referendum was in relation to property and the financial implications of marriage breakdown, but now the main public worry is about children. It would be an exercise in distraction for this House not to respond to these fears and have a full debate on how marital breakdown affects children.

In introducing the Bill to the House the Minister outlined its main purpose and then voiced his regret at and acceptance of the Supreme Court decision regarding the Matrimonial Home Bill which was held to be unconstitutional. I regret that everyone does not have a copy of the Supreme Court judgment. The Minister and his officials should revisit that judgment because I am not inclined to cave in so readily.

Mr. Taylor

I can send the Deputy a copy of the judgment.

Ms O'Donnell

I have one. The Minister said that the Supreme Court judgment struck down what is, 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 there is no alternative legislative route which can safely be taken to achieve a broadly similar result. He went on to say the Bill was an attempt to copperfasten the principle of equality in marriage and was aimed at stable marriages.

I do not recall that the concept of a stable marriage was spoken about in the debate on the Matrimonial Home Bill. We had a fulsome contribution from all sides and now much is being made in a revisionist way about the notion of a stable marriage. It is an attempt by the Government to accept the bottom line of the Supreme Court judgment and not look to the arguments made in the judgment which were very supportive of the notion of joint ownership of the matrimonial home within marriage. The Government is fleeing with indecent haste from the principle of joint ownership within marriage and I regret this is the only opportunity I have had to raise the matter with the Minister.

The principle was a good one and for the Government to give in at the first obstacle shows a lack of courage and belief in that principle which the House supported. We must look at the original motivation of the Bill. The courts had decided in a series of cases, particularly in L & L, that they were not prepared to extend the principle of joint ownership of the family home to instances where the wife had not made any financial contribution to the home. The gist of the judgment was basically that they could not extend any further the notion of a wife having equity in the matrimonial home where she made no material or financial contribution. The judges said it was a matter of social policy on which the Oireachtas should legislate.

It is interesting to see the agruments put forward by the Attorney General in support of the Bill and those put forward by counsel to challenge the Bill. The Attorney General's argument was that the Bill supported marriage and should be constitutional. It secured the family home for the family; emphasised the partnership in marriage; contained a mechanism which secured the interests of the wife working within the home and provided security for spouses and children in the event of marriage breakdown. Much reliance was placed on the decision in L & L, where, at page 107, it was stated that anything that would help to encourage that basis of full sharing in property values as well as every other way between the partners in a marriage must directly contribute to the stability of the marriage, the institution of the family and the common good.

Counsel for the other side argued successfully that such a blanket and mandatory creation of a joint tenancy was a disproportionate intervention in the authority of the family. They had a point. The Bill did not try to address a particular category of spouses but was expansive and indiscriminate in its application and on that point the judges said it was a "disproportionate intervention". They said provisions do not constitute reasonably proportionate interventions by the State and went on to say that the provisions of the Bill did not seek to apply to particular categories of cases only. In other words, they upheld the fundamental principle, which was a good one and had the support of the House, that to help and support the notion of an equal partnership in marriage is supportive of marriage but because it was mandatory and interfered in decisions entered into by the spouses it was not reasonably proportionate. They said that as one section of the Bill offended the Constitution the whole Bill must fall. I got a clear signal from that judgment that they were not blowing the fundamental principle of joint ownership out of the water but that the Bill, as framed, was too expensive.

It was complex legislation and we were blinded by its detail. We had constitutional qualms about it but never imagined that they would relate to Article 41, the authority of the family. The notion of a stable marriage, which has been introduced in the flight from the principle of joint ownership, is one which arouses considerable annoyance in me. What is a stable marriage? Is stability in marriage to be a matter of law? The Minister is saying that the State can only intervene in marriage when the marriage is at the point of breakdown.

The emphasis of this and all legislation surrounding family law should be to buttress and support marriages when they are viable. The Minister is saying to women that when their marriage breaks down, but not before, they can be assured that the courts will see them right and look to the contribution they made by way of their home making. However, that will be at the judge's discretion and that is not enough. In the context of a stable marriage they cannot assume that they have joint ownership or believe that they have a stake in the house which is usually the main asset of a family. They may have been working in the home looking after children or elderly parents and unable to contribute to the purchase of the matrimonial home. Many women are horrified that they have not been given the assurance that, as a result of their work in the home, they have a stake in the matrimonial home. It is not very reassuring to women working in the home that they do not have a stake in the house. The Minister will recall that it was this worthy category of women to whom we were originally trying to address the benefits of the Matrimonial Home Bill.

It is disappointing that the judgment has not been analysed further and that the Government is accepting the bottom line without a whimper. It is clear the judges rejected the Bill because it was disproportionate in its application and also an intervention into the authority of the family. I believe, however, there must be another way to focus on women working in the home who have no possibility of earnings to contribute to the mortgage. There must be a way to frame legislation to meet that need. I see the Supreme Court judgment as a comma rather than a full stop in the long march to joint ownership of the family home in the context of women's rights within marriage.

I need not remind the Minister of the long gestation of joint ownership in the family home. The First Commission on the Status of Women recommended 20 years ago that legislation should be framed that would enshrine joint ownership of the family home. Subsequent legislation protected the spouse from a vindictive partner selling the home over her head without conferring ownership and it was left to the Judiciary to develop the law.

It is important for the Minister to recognise that for many women economic dependence in marriage is a major cause of depression and a feeling of disempowerment. It contributes to an overall climate of unhappiness if a woman can only rely on the breakdown of her marriage to be awarded the right of joint ownership in the family home. I reject the Minister's revisionist justification that the Matrimonial Home Bill was a bad idea.

Mr. Taylor

I never said it was a bad idea.

Ms O'Donnell

I know he is disappointed but I urge him to reconsider the Matrimonial Home Bill. I have spoken to judges, constitutional and family lawyers and academics who say that this Bill must be revisited as it is not appropriate that this Coalition Government which had a commitment to the principle of joint ownership should run away from it.

This Bill deals in detail with the financial maintenance of both spouse and children following the breakdown of a marriage and a decree of judicial separatation or nullity. I agree with previous speakers that nothing in the Bill deals significantly with the emotional maintenance of children. The Bill fails dismally to address the most important issue arising from the breakdown of marriage, which is what will happen to the children and how divorce and judicial separation is managed by the institutions set up to manage the breakdown. This will clearly colour the possibility of success or failure in the forthcoming divorce referendum. The financial maintenance of children cannot be divorced from the emotional maintenance of children. The Bill does not address key problems and issues surrounding the custody of children. Nowhere is it questioned that the best decision is always to give custody to the mother and limited access to the father. There is nothing in the Bill which seeks to explore new models of custody based on learned experience in other jurisdictions where they have had a long experience of divorce and marriage breakdown. I think we can learn from the bad experiences of the United States where some 30 states have now adopted joint custody models after marriage breakdown.

The adversarial and litigious model of judicial separation and divorce must be questioned and changed now. I do think it is sufficient for this Bill to try to bend the existing facilities in the Circuit Court, as it will be swamped by the volume of litigation. The adversarial nature of judicial separation proceeding exacerbates the trauma of marital breakdown. The court's focus on financial maintenance pitches the parties against each other which brings out the worst in individuals, leaving the children to live in the war zone of marital breakdown.

Since the foundation of the State Governments have failed, in spite of the pious aspirations of the Constitution, to support the institution of marriage and to be supportive of families in the various ways the State can impact on their lives. The State has consistently refused to be proactive in encouraging proper child care and the division of responsibilities for child care. Last week I took the Minister to task for his lethargy in encouraging and supporting measures to provide workplace crèches for working parents. There is no interest in this House in the need for the workforce to respond to the changing role of women working outside the home who still have to bear full responsibility for child care arrangements. Women's lives have changed enormously in the past 30 years. Thank God for that — I would not be here otherwise — yet there has been no legislative recognition of the duality and complexity of women's lives, given equality and opportunities to work in the professions, politics and at all levels in society. Women bear the main brunt of responsibility for the care of children and as soon as their child care responsibilities finish they are presented with the expensive and traumatic responsibility for elderly and infirm parents and the management of their old age. There is no evidence that this Government or previous Governments have taken an interest in the fulfilment of women and their ability to combine working and parenting duties. If equality is to be anything more than a pious aspiration, it means questioning a range of presumptions about how work is shared and how families can function properly in the context of the changed needs and aspirations of women.

We have been asked to take part in a survey to prove the need for a Dáil crèche and inherent to that request is a deep seated reluctance to accept the rights of women and family to be integrated into the workforce. What hope have we of influencing public opinion if this House refuses consistently to budge on the issue of a Dáil crèche?

The theme running through the Bill is that we are doggedly preparing for the worst. We are not planning for the best and the Bill does not address the reality when divorce will be introduced. There is an air of gloom among the general population because they fear the divorce referendum will not be successful. I share their gloom because Fianna Fáil Ministers have been sitting on their hands and have not helped the Minister for Equality and Law Reform.

The Bill in its attempt to be pragmatic and deal with dependants following nullity is attempting to treat them in the same way as following a judicial separation. That is a curious and a dubious way of dealing with the matter. While this may be necessary in some cases, it highlights the hypocritical way in which we have dealt with the question of marriage breakdown. Many people have sought nullity decrees in the absence of divorce. It is disingenuous to suggest that judicial separation and nullity are the same, they are different. Nullity and divorce are also different concepts. We are fudging the issue on the basis of pragmatism. If we say that a marriage never existed but nonetheless spouses and dependants have obligations and rights, there is no justification for not extending these rights to cohabitees and, by extension, to their dependants. I await the Minister's comments with interest.

Mr. Penrose

This is one of the most extensive family law measures to be presented in recent times. I wish to congratulate my colleague, the Minister for Equality and Law Reform, Deputy Taylor, for introducing this much needed legislation.

The Bill re-enacts substantial portions of the Judicial and Family Law Reform Act, 1989, and will allow considerable discretion to rearrange or adjust pension rights or earmark pensions to protect the original spouse. The Bill contains many complex provisions and it would be advisable to examine the various sections at great length on Committee Stage. Until now, the High Court had exclusive jurisdiction to grant decrees annulling marriages. This jurisdiction derived from the Ecclesiastical Courts which had exclusive jurisdiction until 1870 when the Matrimonial Causes and Marriage Law (Amendment) Act was passed. Under section 13 of that Act a new civil court was established.

The law on nullity to which the previous speaker referred has for the most part been developed by judges. The Judiciary have developed the nullity principles taking into account advancements in the field of psychiatry and psychology. It is proposed to make considerable changes in the law on nullity, and jurisdiction will now be conferred on the Circuit Court.

It would appear at first sight that people seeking annulments will have greater access to the courts but the outcome could be different and may well be a cause for concern. There are not enough judges to deal with the number of cases that will have to be dealt with. While it is important to provide remedies it is also important to provide adequate resources to ensure that access will not be restricted due to a backlog of cases.

A number of factors have led to a backlog of cases in the Circuit Court. The Circuit Court has jurisdiction to hear and determine family law proceedings on the following matters: judicial separation; ancillary orders made pursuant to orders for judicial separation; guardianship; protection and barring orders; the Married Women's Status Act, 1957, especially section 12 which is of vital importance in disputes between spouses over the title to or the possession of any property in the wake of the Supreme Court ruling to which reference has been made; the Family Home Protection Act, 1976; the Partition Acts, 1868 and 1876; maintenance; wardship; injunctions and the Family Law Act, 1981.

As a practitioner I am aware that one day per session is set aside in the Circuirt Court on each circuit to deal with family law cases. This is inadequate in dealing with complex matters. By granting the Circuit Court jurisdiction to deal with nullity cases the pressure will be enormous. It can take three to four days to hear and determine a nullity case. This could defeat the purpose in allowing litigants who, unfortunately, are unable to resolve their difficulties without having recourse to the courts, greater access to them.

I call on the Minister, in conjunction with the Minister for Justice, to increase the number of Circuit Court judges by at least eight and designate these judges as family law judges; to reorganise the Circuit Court sittings to ensure that one week on a particular circuit is devoted to family law cases with a specialist family law judge presiding and to upgrade the facilities available to litigants, particularly consultation rooms. Consultations are often conducted in overcrowded rooms within earshot of the other parties to the case. This has led to increased tension and confirms the perception of litigants that the system is adversarial. It is not uncommon to find lawyers and litigants conducting consultations or settlement negotiations in passageways or on the street. This is not conducive to the efficient administration of justice which is the aim of all concerned.

I take this opportunity to congratulate Catherine McGuinness on her appointment to the Circuit Court. She has a wealth of experience in the area of family law. The Government should appoint more judges with experience and expertise in this area. To date, Catherine McGuinness is the only woman to have been appointed to the Circuit Court. The Government should appoint more women judges in meeting the need for at least eight more judges.

Under section 7 (6) the court will be permitted to make an attachment of earnings order when a maintenance order is being made by the presiding judge. The spouse who will have to make the payments will also be allowed an opportunity to make representations on this matter.

A maintenance order may now be made in proceedings under the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children) Act, 1976. This provision is long overdue and I congratulate the Minister on introducing it. If the circumstances of a maintenance debtor change, as often happens, he may apply to the court for a variation of the maintenance order made against him. Up to now, if the maintenance debtor refused to pay or did not bother to seek to have the amount varied the maintenance creditor had to go back to court to seek enforcement of the maintenance order. The current proposal to expand the provisions relating to the attachment of earnings will be welcomed by maintenance creditors who have lost out in the absence of this much needed provision.

In examining nullity decrees we must bear in mind that such a decree pronounces a marriage to be null and void. The marriage is thus declared to have been invalid from the date of initiation. In the case of a marriage which the parties are entitled to treat as void without obtaining a decree, the decree does not apply retrospectively, it merely declares that the marriage is void ab initio. In the case of a voidable marriage the decree effects a change in the status of the parties and will apply retrospectively. A voidable marriage is valid until it is set aside by a nullity decree.

Under the law as it stands the parties to a void or voidable marriage which has been annulled are not considered to be spouses and are not entitled to the various remedies, protections and benefits which the law confers on a married couple. Neither can apply for maintenance unless it is to be used to support a dependent child under the Family Law (Maintenance of Spouses and Children) Act, 1976 or for a barring or protection order under the Family Law (Protection of Spouses and Children) Act, 1981. The various protections afforded by the Family Home Protection Act, 1976, in respect of the family home and other matrimonial property are not available, nor are the rights of succession afforded the spouses by the Succession Act, 1965. Questions have arisen as to whether a person is entitled to retain any financial benefit, for example, under a maintenance order derived from the foregoing legislation, prior to obtaining a nullity decree. The legislation before the House is useful in so far as it brings clarity and certainty into this complex area of law. This is an important function of any legislation but, although the provisions for reliefs in the case of nullity may be desirable, they may be open to constitutional challenge. Cohabitees may well claim that they are entitled to a similar level of protection as married couples.

I wish to take this opportunity to comment on the law relating to barring and protection orders. The Family Law (Protection of Spouses and Children) Act, 1981, provides a system of barring and protection orders for the benefit of spouses and children whose safety and welfare is put at risk by the conduct of the other spouse. Only a spouse may apply for a barring or protection order. This means that cohabitees are not entitled to apply, nor is it possible to bar other relatives or members of the household. In these instances the applicant's remedy would be by way of an injunction. I urge the Minister to bring forward legislation to fill this lacuna and thus take cognisance of the changes that have occurred since the 1981 Act.

The greatest advances relate to the making of financial and property orders, which were ancillary to a decree of judicial separation, under the Judicial Separation and Family Law Reform Act, 1989. The 1989 Act permitted the court to examine a wide range of options to ensure a fair distribution of property and other resources between separated spouses. The property adjustment order was the most significant of these ancillary orders which were not previously available in family law proceedings. Other orders, such as those relating to the occupation of the family home, orders for the sale of the family home and orders extinguishing possession rights, are also important advances.

The provision in section 31 relating to the minimum age for marriage is necessary and is an important amendment to the current law as set out in the Marriages Act, 1972, which permits marriage at the age of 16. This is a sensible provision because young people will have a greater awareness of their responsibilities and the nature of the commitment they are entering into at the age of 18. It is noteworthy that people are not allowed to vote in this jurisdiction until they have reached the age of 18. It was ludicrous that people could get married at 16 years of age but could not exercise the franchise in the selection of the parties by which they wished to be governed until they reached the age of 18. This provision, together with the provision that three month's notice of marriage must be given, will help to protect the institution of marriage and lead to greater stability in marriage.

I am not happy with the requirements of notification as set out in section 32 (2) which states:

The Registrar shall notify each of the persons concerned in writing of the receipt by him or her of a notification under sub-section (1) and, upon receipt by him or her of such 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 have grave reservations about this provision and ask the Minister to amend or possibly delete it. If the publication process envisaged full-scale publication there would be some attendant difficulties and an unwarranted invasion of the privacy of the individuals concerned. A number of churches already have notification procedures in place. Accordingly, there is no need for the publication procedure to be vested in the registrar. A more useful approach might be to extract and harmonise the procedures already in use by the various churches.

Section 33 permits the exemption of certain marriages from the application of section 31 (1) which deals with the age requirement and section 32 (1) which deals with the notice requirement. It is stated in section 32 (2) (d) that such application which will be made to the court shall not be granted unless the applicant shows that its grant is justified by serious reasons and is in the interests of the parties to the intended marriage. It would be profitable to set out what serious reasons are envisaged by the Minister as being important enough to warrant the granting of the application.

I compliment the Minister for his undoubted commitment to the delivery of strong support services in the event of marriage breakdown. A brief examination of the allocations by the Department demonstrates that he has delivered in this area. We have seen substantial increases for counselling services, mediation services and the Civil Legal Aid Board. It is always preferable that considerable time and resouces be expended in exploring the possibility for reconciliation and this has been greatly facilitated by the provision of expanded counselling services. Only last week the Minister announced a substantial increase in the number of legal aid centres and I congratulate him on that. At this stage I must be parochial and tell the Minister that we need a legal aid centre in Mullingar. I am using this opportunity to call up him — I know he always listens — to ensure that we get this service in 1995.

Legal aid centres have long waiting lists and we are all aware that justice delayed is justice denied. Many of my constituents have to go to Athlone legal aid centre and take their place in the queue. The staff in the legal aid centres are working above and beyond the call of duty to deal with the ever increasing number of cases and I am glad the Minister is in a position to give additional resources to these centres. I look forward to the Minister being in a position to bring good news to Mullingar and its environs in 1995.

The right of access to courts was first recognised by Mr. Justice Kenny in the High Court in the case of Macauley v the Minister for Posts and Telegraphs (1966). However, the constitutional right of access to the court may, on grounds of expense alone, prove the theoretical only and it has been recognised that the cost of litigation may effectively preclude access to court. The civil legal aid scheme has been unable to meet all the demands made upon it. It would be appropriate to examine the levy payable to the State by litigants in the form of stamp duty on legal documents and other charges and the high VAT rate imposed on both solicitors' and barristers' fees, as they may have a major deterrent effect on people who require access to courts and who have limited resources.

This Bill re-enacts substantial portions of the 1989 Act which provided the basic framework for separation, dealing with custody, maintenance, division of property and other essential matters. Cognisance should be taken of the constitutional challenge which is now before the High Court to the Judicial Separation and Family Law Reform Act, 1989 which will have the effect of at least adding certainty to this area of law when the judicial pronouncement is made.

Section 46 deals with a matter about which I have been concerned for some time. I brought it to the attention of the Minister for Justice on a number of occasions and, therefore, I welcome the provision in the legislation for the presentation of social reports in family law cases. That will resolve the problem created by the absence of a statutory role for the probation and welfare service in such cases. The provision whereby social reports may be given by the probation and welfare service and health boards will contribute significantly to the protection of spouses and children in cases of marital breakdown. That matter was not highlighted by many other Members but I certainly noted its inclusion in the legislation and I compliment the Minister.

Mr. Taylor

We highlight only the bad news.

Mr. Penrose

This is important and balanced legislation and contributes greatly to the corpus of legislation in the area of family law. It is one of the most extensive Bills on family law introduced recently and I compliment the Minister on his work in that regard.

Mr. E. Walsh

I support this legislation. In introducing the Bill the Minister stated that the Government's approach to law reform is practical and caring, focused on the areas of high social priority and that there is a real and pressing need for legislation and administrative measures to deal with the growing problems of marital breakdown. The Family Law Bill, 1994, is the first in a series of legislative measures which the Minister believes will address the problems effectively and I agree wholeheartedly.

The Bill increases the legal age of marriage from 16 to 18 years and, for the first time three month's notice will be required before a couple can get married. Those measures are important signals from the Government of its firm intention to protect the institution of marriage and they will clarify matters for those who might misunderstand the purpose of this legislation. For many years there has been a growing concern about the absence of a statutory role for the probation and welfare service in family law cases and the Minister has taken this opportunity to deal with the matter. Such reports will greatly assist those assessing the difficulties experienced by people in our courts and will make a real contribution to the welfare of spouses and children in the case of marriage breakdown. It is an important provision.

The Department estimates that, in tandem with the enactment of this legislation, a sum of £750,000 will be provided for voluntary marriage counselling organisations and for measures to promote the International Year of the Family. I welcome the allocation of £300,000 for the family mediation service which is double that provided last year and will enable the service to expand outside Dublin. Legal aid centres will receive an allocation of £5 million, an increase of 56 per cent on last year, the largest increase in the history of the legal aid service. That additional money will enable us to tackle the problem of waiting lists, new law centres can be opened and extra staff recruited. This is tangible evidence of the Government's firm commitment to provide the necessary support for families and to assist in minimising the difficulties associated with marital breakdown. The Tallaght law centre will benefit greatly from such funding as it will shorten the waiting list for people seeking advice and will make access to the services of the legal profession more amenable to the vulnerable sections of our community.

I welcome the provisions in respect of pension adjustment and financial compensation orders which will give the courts the necessary powers to deal with pension rights. This new provision is very important in dealing with family resources and the pension rights of partners in the case of marriage breakdown.

The Circuit Court will now have the power to hear nullity cases which at present are heard in the High Court. The move to the Circuit Court will reduce considerably the cost of such cases and thereby give many more people access to such services. In regard to separation and maintenance, new powers will be provided for the preservation of pension rights where appropriate. The existing law on maintenance will be strengthened and the new provisions will ensure a much wider use of the courts in respect of attachment of earnings orders. I am conscious of the recent research carried out in those areas and from my experience the new provisions will greatly benefit those deprived of the service at present.

This legislation is part of a series of measures designed to strengthen and improve the position of injured parties in marital breakdown cases. I presume it is the Minister's intention that all those issues will be clarified and that the necessary financial powers will be given to the courts to clear the way for the divorce referendum later in the year.

This Bill is part of a series of provisions to be introduced by this Government in the area of law reform for which the Minister is responsible. It is one of the most extensive Bills on family law to come before this House. It substantially modernises and increases the powers of the courts to deal with the financial consequences of marital breakdown and extends those powers to cases of nullity and foreign divorces. It creates new remedies and jurisdictions and makes the law more accessible. In effect, the Bill extends power to the courts for the support of spouses and dependent children in the case of marriage breakdown in all circumstances except domestic divorce.

With a view to safeguarding and protecting the institution of marriage the increase in the legal age at which a person can marry signifies that perhaps easy access to marriage is one of the problems of marriage breakdown. The seriousness of marriage must be recognised by ensuring that people who enter such a complex contract know precisely the long term consequences. The Bill contains important new provisions in respect of the jurisdiction of courts in proceedings for a decree of nullity. At present jurisdiction is confined to the High Court and under the Bill it will be extended to the Circuit Court to bring it in line with that for separation proceedings. That provision will improve access to the courts and reduce costs. The Bill provides comprehensive remedies which can be secured through the courts by spouses and children to deal with problems of marriage breakdown. It gives statutory recognition to the principle that following a marriage breakdown a spouse is obligated to maintain and accommodate the other spouse and children, if any, to the fullest extent possible. In cases where this obligation is not met and in the absence of an agreement on such matters, the court should be in a position to intervene on the basis of a comprehensive range of powers to order maintenance, lump sums, security payments and the restitution of property, mainly the family home and pension rights.

The Supreme Court's decision that the Matrimonial Home Bill was unconstitutional resulted in considerable publicity and a great deal of contrary opinion as to its impact on the divorce referendum to be held later this year. The judgment struck down the central principle of the Bill, namely, the establishment of joint ownership of the marital home as being the norm. In the light of that judgment the Government announced that there is no alternative legislative route to achieve a similar result. The essence of the Bill was an attempt to copperfasten the principle of equality in marriage. It was not framed to deal with marriage breakdown, separation, nullity or divorce. If couples obtain a judicial separation the division of property is a matter for the courts to decide in accordance with the provisions of the Judicial Separation and Family Law Reform Act, 1989. The provision in the Matrimonial Home Bill would not have affected that position.

The major thrust of the Bill deals with the power of the courts to make decisions in respect of finance, property and ancillary orders on the granting of a decree of nullity. It may surprise some people that following the granting of a decree of nullity the courts have no power to order maintenance in support of a former spouse or restitution of property between both spouses. Many people will know of cases where the Catholic Church has granted annulments and find it difficult to understand why the State does not allow people whose marriages have been annulled to marry again. The implementation of such a provision would conform with the rulings of the Catholic Church, which is not regarded as progressive in the area of social legislation. In the area of annulments the State is not in tune with the Church.

The Bill covers a wide range of social legislation dealing with the many difficulties couples experience in marriage breakdown. Marriage difficulties may affect people's health and lead to problems of anti-social behaviour and in coping with relationships. The effects of marriage breakdown are so great that we must introduce some regulation to deal with those issues and prevent problems in areas of education where children suffer greatly because of the difficulties experienced by spouses who try to keep the family unit together. Civil legal aid centres are the first point of contact for many people who seek advice on marital problems and the new law centres being financed by the Minister will be of great benefit, especially in the Tallaght area.

The lack of legislation dealing with separation in many cases leads to family violence, particularly where couples have no acceptable alternative but to remain in the marriage. That causes a great deal of stress and in many cases violence. Due to financial difficulties the husband may resort to drink and abuse the family, especially his wife who is under great strain trying to keep the family home together. Those difficulties are manifested in many ways. Women will be pleased that the legislation will provide a clear guideline as to what rights they have should they suffer from the problems associated with a marriage breakdown. Husbands to a lesser extent also suffer and will have access to the same facilities.

The matter of dividing the family home and resources to ensure that nobody loses their legal entitlements will be clearly stated and everyone will have access to the courts to deal with those difficulties. Children of 18 years and older who live in the family home will also have access to the courts for protection should they experience any difficulty exercising their rights.

I appreciate the Minister's work in the area of family support. His expertise has helped the weakest section of the community. This legislation is an example of his commitment to that section of society. I congratulate him on his contribution and wish him well in the future and assure him of my support.

Debate adjourned.