I am delighted to have the opportunity to participate in the debate on this Bill which, apart from any considerations of an impending divorce referendum, is necessary and desirable. While it contains a number of important and welcome provisions, I am deeply concerned that a number of statements made by a member of the High Court over a period of a year or more seem to indicate a frame of mind, in that person at least, which is utterly antagonistic to what I regard as the compassionate philosophy that underlines this Bill.
The Bill gives the courts a number of powers in dealing with pension schemes, the objectives of which I support but which can require trustees of pension schemes to do things which are not consistent with the rules of their schemes. I find no evidence that the Government has given serious consideration to the implications of those proposals or to their feasibility — I will come back to that matter later.
Some sections of the Bill require the courts to make judgments based on an assessment of matters such as likely future obligations on parties in family law cases, without giving directions as to how the court is to assess these obligations. These are referred to in section 16. The courts will find it very difficult to interpret these powers and may choose not to use them at all or perhaps to use them very conservatively. That is not the intention of the Bill.
The proposed provision for notification of intention to marry three months prior to the date of marriage is absolutely absurd although I know I am out of step with a great many of my colleagues on all sides of the House in saying so. I could not find anything in the Minister's speech to explain why the Government believes that a change in the current law and practice is required. This is very bad because unless the Government can produce a valid and sensible reason for making a provision of this kind — it is highly unlikely that any such reason can be produced — then the provision should be dropped from the Bill. I will come back to that point later.
The general thrust of the Bill and many of its detailed provisions underline once again the central importance of the Bill published in 1988 by my colleague, Deputy Alan Shatter, which eventually became the Judicial Separation and Family Law Reform Act, 1989. I am happy that Deputy Shatter, with my full backing and the full support of the Fine Gael Parliamentary Party, persisted with that Bill and overcame what was sometimes a very cynical rearguard action by deeply conservative elements in Fianna Fáil to have that Act finally placed on the Statute Book. That Act has been a major bench mark in the development of family law and the compassionate philosophy which underlines this Bill, and should be valued as such.
I welcome the increasing attention given to family law matters in recent years and the increasing public sensitivity to the many problems which still have to be resolved. However, there are still many causes for concern, one of which must be the recent Supreme Court decision on the Matrimonial Home Bill. I do not for a moment question the President's decision to refer that Bill to the Supreme Court for an adjudication on its constitutionality — that was the perfectly proper thing to do — but I am worried that in its judgment the court seemed to indicate it sets rights to property above concerns with equality. With a different frame of mind, the court could just as easily have come to another conclusion, setting concerns with equity above rights to property.
I have no patience with the various disingenuous criticisms of the drafting of that Bill since the Supreme Court found it unconstitutional. The number of Bills referred to the Supreme Court and adjudged to be unconstitutional or successfully challenged by individuals is not very high in terms of the total volume of legislation we pass in this House. The provisions in our Constitution for the referral of Bills, for the right to challenge legislation and for the Supreme Court to tell us what the Constitution means were all put there with a very specific purpose in mind and it is nonsense to complain when those provisions are invoked from time to time.
Having said that and taking the view that the court could just as easily have made a different decision on that Bill, I hope the Government will come back to the issue in the light of the specific judgment made by the court. I hope the Minister agrees that, taking account of what the Supreme Court said and the reasons it has given for its adjudication, it may be possible to secure the objective this House set out when it began to debate the Matrimonial Home Bill. Regardless of what the court said, our Constitution clearly must allow us to make progress in the direction of equity and justice for the people involved.
I am worried about a series of comments made by a member of the High Court, Mr. Justice Rory O'Hanlon, which seem to indicate a rejection of much of what has been done in recent years in family law and related areas. They indicate a frame of mind which is antipathetic to the direction family law has taken in recent years, a direction which in my view — and I think in the view of many other Members of this House — represents a belated but nevertheless welcome appreciation of the nature of many of the problems affecting families today. It is a matter of deep concern to me to find on one of the Benches principally concerned with this area of family law an attitude which seems to be deeply hostile to the direction the law is taking. I shudder to think what this might mean for the administration of the law.
This matter goes further. Mr. Justice O'Hanlon recently characterised the contents of condom vending machines as "repulsive". I cannot imagine that he intended us to take that remark at face value as an aesthetic judgment informed only by personal observation or experience. I think what he finds repulsive is the fact that a woman and a man can decide and have the means to control the fertility of their union. Mr. Justice O'Hanlon has expressed other views which go far beyond the simple question of contraception; they go to the heart of many of the difficulties which cause people to resort to the courts to resolve family law matters. I find it deeply disturbing that these views are held and expressed with such force and so publicly by a member of the Judiciary who may be called upon to preside over hearings of family law matters in our courts.
Mr. Justice O'Hanlon is perfectly entitled to hold whatever views he thinks proper, but I am worried that a member of the Bench would resort to the kind of nonsensical claim, which we will hear more and more in the coming months, that in some way Members of this House are involved in a conspiracy to sap the moral fibre of our nation. That is the last thing we want to do. We are trying to find a way through the difficulties which beset people in our society and to find compassionate and just means of resolving their difficulties. I would have expected a far higher degree of analytical competence to be shown by a member of the Bench of the High Court.
Some provisions of the Bill call for particular comment or question. The provisions on pensions and succession rights in cases of nullity show just how precarious the concept of nullity is. Section 2 (3) deals with the issues of nullity and voidability from a definitional point of view. I do not for a moment question the necessity for those references in the Bill but the very fact that those contortions have to be included in the definition section shows very clearly that it would be much more logical to provide for divorce than to have to go through the kind of legal and mental gymnastics involved in making those types of provisions in a Bill of this kind.
The matter becomes even clearer when we conside the concept of nullity of marriage in the precepts of our principal Church. It is incomprehensible for anyone to pretend to determine the state of mind of a couple on the day they married when looking at their situation after perhaps 20 years of family life. The entire concept goes far beyond the limits of credibility. I have enormous sympathy for the people on tribunals dealing with these cases — I know some of them — who find their work intellectually, emotinally and spiritually draining. The work they do rests on what I would regard as a conceptual fallacy and it puts them and, more tragically, the people who come before them in an appalling emotional wringer, all for the sake of avoiding the concept of divorce. It makes provision for the very same thing at the end of the day.
The difficulty in this area was well illustrated, perhaps inadvertently, when the Minister introduced the Bill. At Volume 439, column 618 of the Official Report, when speaking of succession rights in section 13 of the Bill, the Minister said: "The position is different in the context of nullity. As pointed out in the White Paper on Marital Breakdown, following nullity, succession rights must end because the parties are no longer spouses". The Minister should have said that no succession rights ever existed in such a case because legally the marriage never existed. The fact, however, is that the Minister, the Government and the Committee on Marital Breakdown recognised what the Minister described as "possible hardship involved in loss of succession rights". The fact that the Minister recognised that in such cases must surely indicate that for some time at least couples involved in such situations believed they were married and believed that the marriage gave rise to the duties, obligations, rights and expectations that are normally associated with marriage. Any hardships arising — and hardships undoubtedly arise in situations of that kind — should be dealt with on the basis that is appropriate to divorce. We should not put people through mental contortions by saying that something is a nullity when in fact it clearly existed in their minds, in their behaviour and even in their hearts for a period of years.
Section 11 proposes to empower the courts to give directions to the trustees of pension schemes and in subsection (3) such directions may even go to the point of requiring trustees to act in a way which does not comply with the rules of the pension scheme in question. Has the Government reflected on the possible implications of empowering the courts to give such directions? What will be the legal situation of the trustees of a pension scheme who, after representation, are ordered by the court to do things which are clearly outside the rules of the scheme of which they are trustees? Has the Minister given any attention to that matter? If not, we should not make such a provision in this Bill even though the aim of the Bill in so doing is laudable and motivated by a concern for justice.
In making provisions under section 16 relating to periodical payments, lump sum orders, property adjustment orders, miscellaneous ancillary orders, financial compensation orders, pension adjustment orders, the preservation of pension rights after judicial separation and orders for the provision of a spouse out of the estate of the other spouse, the courts would be required by this Bill to make a number of judgments, including judgments as to the likely future obligations and capacities of spouses. Section 16 contains a whole series of the kinds of judgments that the courts have to make. In section 16 (2) (a) there is reference to "resources which each of the spouses concerned has or is likely to have in the foreseeable future". That reference occurs twice. The effects on the earning capacity of each spouse is also mentioned. It states also that the court must have regard to "the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it". We can all argue whether the court should have regard to those matters but they are areas that are likely to be very difficult indeed for the courts. Has the Government teased out all of the possible implications in connection with these kinds of judgments?
The Bill proposes to raise the minimum age of marriage, currently 16, to 18. Although I dislike regulations of this kind and believe the legislation should not enter further than is necessary into people's personal lives, I recognise that this question is largely a matter of judgment and I would have to go along with the proposal. It is likely, however, to give rise to some difficulties among the travelling community and since the Minister for Equality and Law Reform has the primary responsibility also for policy in relation to the travelling community, on which he has my full support, I would be interested to hear his views on this matter. I hope he will not tell me that the provisions of section 33 of this Bill solve that problem. I will deal with those in a moment.
The provision in section 32 requiring three months notice of intention to marry — and I say this with all the emotion of which one is capable on a Bill such as this — is an outrageously bureaucratic and intrusive provision. That provision is "big brother" gone mad. When introducing the Bill the Minister gave no justification for that proposal and I would like to know why it was thought necessary or desirable to depart from current law or practice in this area and write it into legislation. What useful purpose, if any, could possibly be served by this provision? What defect in the present law, if any, is it proposed to address by means of this measure? I see no reason whatever for making this provision. It is nothing more than a piece of nonsence perpetrated by interfering, busy body socialists and it has no place in this Bill.
The nonsense is compounded, of course, when one examines section 33 of the Bill which provides for exemption from this provision and from the provision providing for a new age of marriage. If an application is made under section 33, the unfortunate Solomon on the bench must decide whether the applicants can show that they have serious reasons for the application or that the application is, and I quote from the Bill "in the interests of the parties to the intended marriage". What serious reasons can people bring before the courts to dispense with the three months requirement from the notice of marriage or to allow one or other or both of them to marry under the age of 18? What would be required to convince the court that it would be in the interests of the parties to the intended marriage to allow them depart from these procedures? Are the courts now to be given the job of ruling on the depth of emotion and commitment between a man and a woman? It is impossible and nonsensical to ask the courts to do that. This Bill deals with very serious issues and this bit of comedy should be taken out of it because it has no place in this legislation.
