This is a Bill designed to deal with court disputes between spouses in relation to the matrimonial home. It purports to empower the courts in such proceedings to give recognition, where the need arises, to non-financial contributions by spouses to the acquisition of the matrimonial home.
The Government does not propose to accept the Bill because it would have no practical effect on the law in this area which already contains comprehensive provisions for distribution of ownership of family property between the spouses based on non-financial considerations such as working in the home.
Before turning to the serious defects in this Bill, I want to address the divorce issue. I do so because of the probability that some Opposition Deputies will attempt to link that issue with this Bill, as did Deputy Keogh.
In recent days, there has been a great deal of talk in the media and in other places about the so-called "liberal agenda". One is supposed to believe, on the basis of at least some of this commentary, that it is not possible to be concerned with issues that involve pluralism and tolerance, and at the same time to be concerned about the need for more jobs and tax reform.
There are, it appears, some who believe that the "liberal agenda" constitutes a set of obsessions, rather than issues, which so preoccupy the Government that it cannot attend to its normal business. That is just rubbish. All of the issues involved in the liberal agenda have their right and proper place in the scheme of things, and are properly open for public debate and action.
One of these issues, obviously, is divorce. To listen to some of the critics, one would think that the Government's intention was to ram change down the throats of the people in order to turn Ireland into a suburb of Reno, Nevada. This kind of analysis is utter rubbish. The Government is committed to moving towards a situation, through the removal of the constitutional ban on divorce, whereby people whose marriages are irretrievably over will secure the opportunity to remarry, provided certain reasonable conditions are met. Those conditions must and will include protections for children and spouses.
Although the Matrimonial Home Bill, 1993 was part of the Programme for Government, and was part of a series of law reform measures which the Government intended to introduce, and although it had the backing of all parties in both Houses of the Oireachtas, it was not part of the legislative programme regarded by the Government as essential in advance of the referendum on divorce. Nor could any further measure to achieve similar ends be regarded as essential prior to the divorce referendum.
The reason is simple, but it seems to have eluded some people on the Opposition benches. In marital breakdown, the courts have power to make an order known as a property adjustment order, which can transfer an interest of one spouse in any property, including the family home, to the other spouse. Therefore, regardless of whether the family home is jointly owned or in the sole name of one spouse, the courts have jurisdiction to protect the dependent spouse by giving that spouse a part or full interest in the family home.
This is the law of the land in separation cases under the Judicial Separation and Family Law Reform Act, 1989. It will be extended to cases of nullity and foreign divorce by the Family Law Bill, 1994. If and when the divorce referendum is passed, legislation will be introduced to extend the power to make property adjustment orders to divorce cases.
I will refer to a few facts about the Government's approach to the divorce referendum, in view of the cloud of misinformation under which the Opposition is labouring on this issue. The Opposition would do well to recall that if it chooses to play politics with the divorce issue, it will have to take responsibility for the consequences.
The Government is entirely united behind the divorce referendum, which is a fundamental commitment of the Programme for a Partnership Government, to which both Government Parties fully subscribe and is putting in place a detailed plan of administrative and legislative measures preparatory to that referendum. Much of that work has been done; the remaining measures will be put in place shortly. Preparations are on course for the referendum, and the Government will not be deflected from its task. The Government's programme of family law reform culminating in the divorce referendum is already in the course of being implemented. The matters being advanced are the Family Law Bill, 1994, expansion and development of the legal aid system and of mediation services and increases in funding of counselling services.
The Family Law Bill, 1994 now before the Select Committee on Legislation and Security is one of the most extensive family law legislation measures to be initiated in recent times. It has measures aimed at protecting and safeguarding the institution of marriage and it provides substantial powers to the courts to deal with the financial consequences of marital breakdown in certain cases. Those powers will in substance be the same as the powers in any divorce legislation and they include wide powers in relation to maintenance, lump sums and property generally, including the family home and pensions.
The Minister for Equality and Law Reform has already secured £5 million as grant-in-aid for the Legal Aid Board in 1994 which will allow the board to open ten new full-time and four new part-time law centres this year. This unprecedented expansion will result in every county having either a full-time or part-time law centre in 1994. The legislation to put the scheme of civil legal aid and advice on a statutory footing is at an advanced stage of drafting and will be introduced as quickly as possible.
The Minister for Equality and Law Reform has also secured £300,000 for the development of the Family Mediation Service and he will be announcing his proposals in that regard shortly.
A provision of £750,000 has also been provided for the assistance of bodies involved in marriage counselling to enable them to expand their counselling services. The Minister shall allocate that money very shortly to the relevant bodies.
The Government has made important decisions on the tax and social welfare aspects of marital breakdown. It has agreed: (a) that property transfers between spouses whose marriages are dissolved following divorce or are annulled should be dealt with on the same basis as transfers between spouses; and (b) that the necessary changes in social welfare should be made to ensure that no spouse will be disadvantaged in terms of his or her social welfare entitlements as a result of his or her legal status being changed from married, separated or deserted to divorced or annulled.
The remaining measures required in connection with the divorce referendum are being worked on actively and will be put in place shortly. Two working sub-committees of the Government have been established to ensure that the technical and political aspects of the measure will be worked out in sufficient detail to enable the people to take a decision on the right of remarriage, in full possession of all the facts, well before the end of the year.
The details of the tax and social welfare decisions referred to will be spelled out in statutory form, and there will be further legislation on enforcement of maintenance orders and to put the civil legal aid scheme on a statutory basis. The definitive proposals of the Government for an amendment of the Constitution on divorce will, as they must, be in the form of a Bill since a precondition of the holding of any referendum is the initiation of a Bill in the House. The date of publication of that Bill will, to a large extent, be determined by the date on which the Government proposes to hold the referendum and it is the Government's intention to proceed with the necessary legislative framework as quickly as possible.
The Minister for Justice has already indicated to the House that she is examining the court services. In the course of that examination she will have the benefit of the Consultation Paper of the Law Reform Commission which has just been published.
In summary, this Government has a detailed plan of action leading to the divorce referendum. It has already invested enormous work in putting that plan into place and will continue to do so. That plan is on course for the referendum. The Government is united behind that plan, and it is very much hoped that the Opposition can have the grace to recognise that, and to support our common objective, to lift the absolute constitutional bar on the right to remarry.
There is no similarity between this Bill and the Matrimonial Home Bill, 1993. The object of the Matrimonial Home Bill was to give each spouse equal rights of ownership in the matrimonial home and contents unless they already had those rights. It proposed that the home and contents be held by both spouses jointly so that if one spouse died the other would become the sole owner of the joint interest. The Bill was supported by all political parties, family law groups and the Second Commission on the Status of Women and the policy of the Bill had been supported by successive Governments. The Bill applied equally to both spouses. Spouses who had no ownership interest in the matrimonial home would have gained joint ownership and spouses who were sole owners of such homes would have lost sole ownership and become joint owners with the other spouse. The Bill was regarded as having particular implications for women who worked by looking after the home or caring for the family. The decision of the Supreme Court was that the Bill was unconstitutional. It is a decision which has been met with great disappointment by many people who supported the Bill, not least those mainly affected who, for the most part, would have been non-owning spouses who worked in the Home.
Nobody in this House can possibly doubt the commitment of this Government to the cause of family law reform or to the principle of partnership in marriage and in marital property.
The idea of automatic co-ownership of the family home first emerged in the report of the First Commission on the Status of Women as far back as 1972. After 21 years of waiting, after reports from the Law Reform Commission, the Oireachtas Joint Committee on Women's Rights, and the Second Commission on the Status of Women, it was this Government which finally introduced the Matrimonial Home Bill and saw it through both Houses of the Oireachtas. In light of the adverse Supreme Court decision, and in view of the complex issues of law involved, I would have thought that all sides of this House would accept the need to proceed in a considered and careful way in this matter.
Instead, what do we get? As recently as Wednesday of last week. Deputy Michael McDowell intimated to the House that he intended to make suggestions regarding matrimonial property by way of proposed amendments to the Family Law Bill, 1994. Some time between then and now the issue has become, in his and his party's mind, a measure that is so urgent that only one day's notice of it can be given to the Government.
On the principle of the Bill, I would remind the House that at Question Time on 22 February 1994, the Minister for Equality and Law Reform intimated to the House that he was sympathetic to the idea of legislation providing for the valuing of work in the home by a spouse, but that the matter required the most careful consideration. I can assure the House that the matter has received and will continue to receive careful and sympathetic consideration by the Minister, but there is nothing to be gained and everything to be lost by neglecting the careful analysis of the legal and practical issues which would have to precede any proposals for change in this area.
If the Government believed that a ready alternative to the Matrimonial Home Bill was possible the Government would be only too happy to promote or support such an alternative. The fact is, uncomfortable though it may be, that no such ready alternative exists. The Bill now before the House fails to add anything meaningful to the law as it already operates in this area and could lead to considerable uncertainty and confusion.
The Bill is misconceived and is based on a misunderstanding of the law as it already operates in the area of family property. It is being put forward as a modest proposal and as one to protect the non-working spouse. I have to be cruel to be kind and say that the measure is neither modest nor protective. It is a complete non-event and is bereft of any meaningful protection.
It is, I fear, a measure born of political expediency. I understand that some spokespersons of the Progressive Democrats Party have, since the decision of the Supreme Court, expressed the view loudly that notwithstanding that decision, there is still much more that can be done by legislative means to give recognition to the work of spouses in the home. They have been critical of the Government for not acting quickly enough to do something about the matter. At least we now know what the Progressive Democrats had in mind when they gave the impression, not for the first time, that they had all the answers. This Bill completely flatters to deceive and is in no way acceptable as a measure protective of spouses' work in the home.
I now propose to set out the background to and the reasons for rejecting this Bill. In Ireland, ownership of property has always been a complex matter and has often given rise to strong feelings. For many people, the most significant piece of property they will ever own is the family home. Not surprisingly in matrimonial disputes the home is often the focus of the most intense emotions. There is general support for the view that joint ownership of the matrimonial home is socially desirable and is to be encouraged. When the Matrimonial Home Bill came before the House, that support translated itself into widespread approval for both its intended purpose and the way in which it attempted to achieve that purpose.
In its decision on the Bill, the Supreme Court accepted that the provisions of the Bill were directed towards encouraging the joint ownership of matrimonial homes and that such an objective was clearly an important element of the common good conducive to the stability of marriage and the general protection of the institution of the family. The court went on to hold that the right of a married couple to make a joint decision as to the ownership of a matrimonial home is one of the rights protected by the Constitution and that its exercise is an important part of the authority of the family which the State guarantees to protect. According to the court's decision, the provisions of the Bill did not comply with the relevant constitutional provisions.
The implications of the Supreme Court's decision have been carefully examined by the Government. It was clear that the judgment went to the root of what the Bill was trying to accomplish and that it would be no mere matter of adjusting the Bill in some point of detail in order to make it conform to constitutinal requirements. Accordingly, the Government decided not to proceed with an amended version of the Matrimonial Home Bill or with any measure based on it.
It would be a mistake to think that the various protections now in place, most notably under the Succession Act, 1965, the Family Home Protection Act, 1976 and the Judicial Separation and Family Law Reform Act, 1989, have been adversely affected by the decision of the Supreme Court. The Government is actively examining the ways in which these protections might be strengthened and affirmed. This does not mean that the Government no longer believes in promoting the concept of equality of ownership rights in the matrimonial home. If meaningful reform in this area is to be attained, any legislation must secure a real and tangible interest for a non-owning spouse in the matrimonial home. If this were not to be the case, any legislation would lack credibility.
This lack of credibility is very evident in the legislation now before this House. Essentially, all that it is saying is that in the case of applications brought under section 12 of the Married Women's Status Act, 1957, which allows the courts to determine property disputes between spouses, the courts will, in declaring that a spouse has a benefical interest in the family home, be empowered to take into account the non-financial contributions to the family household of that spouse. Such a measure is clearly of very limited use, if any, in the normal marriage situation. The explanatory memorandum openly admits that the Bill is designed for the situation where there is litigation concerning the ownership of the family home and, in consequence, it acknowledges that the Bill is a very modest proposal.
Prior to the Judicial Separation and Family Law Reform Act, 1989, section 12 of the 1957 Act was frequently used in a situation of marital breakdown where one or both spouses wished to establish their ownership rights to any property. The Act provided a mechanism for this by way of a court declaration in relation to such interests. In other words, the Act offered a way in which disputes about property which arose between spouses could be resolved by way of court intervention but, with the advent of the Judicial Separation and Family Law Reform Act, 1989, the procedure under the 1957 Act is no longer being availed of in many cases. This is hardly surprising since the 1989 Act contains substantial property adjustment provisions which ensure that the needs of a dependent spouse and children can be given full recognition by the courts.
The contribution of a spouse in looking after the home and caring for the family is an important criterion to be borne in mind by the court. This is spelled out clearly and unmistakably in the 1989 Act. As Deputies will be aware, the Family Law Bill, 1994, which is before the Select Committee on Legislation and Security, having recently passed Second Stage in the House, retains this important reference to work in the home.
Recent statistics on the property adjustment provisions show that over the last two years a total of 1,822 decrees of judicial separation were granted and a total of 1,316 orders relating to property were made in respect of those decrees. The orders included 515 property transfer orders, 518 orders for residence in the family home, 150 property settlement orders and 122 orders for sale of the family home.
The court, in making property orders relating to the sale of the family home, is most likely to order that the net proceeds of sale be split evenly between the parties. Where an order is made transferring legal title from one spouse to another or giving residency of the family home to one spouse, usually a mother with dependent children, to the exclusion of the other spouse, it is usually the case that a declaration is made by the court at the time of making such an order that each spouse will have equal beneficial ownership in the home.
The statistics which I have given indicate the importance of the property transfer provisions in the context of separation. Those provisions are being extended to cases of nullity and foreign decrees of divorce, separation and nullity under the Family Law Bill and will, in time, become even more important.
I am putting some emphasis on this point in order to make it clear that it is my belief that this Bill does little to address the ordinary needs of a couple whose marriage is stable and who, in the normal course of events, would not contemplate litigation in order to resolve a matter so personal to them as the ownership of the family home. Were matters to reach a stage where litigation was contemplated, the reality is that it is likely that the marital discord would give rise to a judicial separation action and, in that context, it is already well within the power of the courts to provide for an equitable property settlement.
A fundamental problem with this Bill is that it proposes court intervention as the only way in which a spouse who works within the home can obtain a beneficial interest in that home. The Matrimonial Home Bill sought to remove the need to demonstrate a contribution to the marriage in order to acquire an ownership stake in that home. Joint ownership flowed as a right from the fact of the marriage relationship. The Private Members' Bill not only restores that notion of contribution but openly invites spouses to litigate on the matter. That approach is, arguably, inappropriate where a marriage is not in difficulties. The Bill could be viewed as likely to give rise to marital disharmony. If a couple cannot reach an agreement between themselves on joint ownership of the family home, the invocation by one spouse of court jurisdiction in this area could give rise to considerable family tensions.
This Bill will not give rise to any changes whatsoever in those provisions in the law which already recognise the work of spouses in the home. The guidelines given to the court under the Bill lack precision and are vague in what they purport to achieve.
A striking absence from the Bill is any express mention of the main circumstance which presumably gave rise to the Bill, namely, the recognition which should be given to spouses who work by looking after the home or caring for the family. The Bill also fails to mention what should happen in the event that spouses have already agreed or that spouses agree on a division of ownership of the family home. It could be argued that the Bill as it stands would conflict with the test laid down by the Supreme Court on the Matrimonial Home Bill regarding disproportionate interference with the rights of families to make decisions having regard to Article 41 of the Constitution. Before any interest can be established, an expensive court action would be necessary under the provisions of the Bill. The interest would take time to establish and, in a situation where one is talking mainly about contributions which are not monetary in nature, the precise share in the home to which a spouse is likely to be entitled may well be uncertain.
One may argue that these same features are also present in the provisions of the Judicial Separation and Family Law Reform Act, 1989 and in the Family Law Bill provisions which replace them. In those instances, one is talking about marital breakdown where it is appropriate to make final and definitive provisions in relation to property matters.
Here, one may well be talking of a valid and subsisting marriage where the same features may not be appropriate at all. If the parties were amenable to jointly owning the family home, it could be done under present arrangements and, while conveyancing fees might apply, stamp duty and the normal registration fees would not. Clearly this Bill would be of relevance only where the spouses could not agree on such ownership. In such circumstances, any court action might well be contested and any future relationship between the spouses would almost inevitably be impaired.
The Bill is very short on detail. Section 4 is the key provision. However, that section is only of assistance where a spouse has enabled or assisted the other spouse to acquire or enlarge a legal or equitable interest in the family home. The common situation here would be in relation to a mortgaged property where the work by one spouse of parenting and household management facilitates the other spouse in making repayments on the family home. The section would have no application where the property was acquired by way of gift to a spouse, a frequent situation in the context where the family farm is transferred to a member of the younger generation or where it was inherited under a will on intestacy.
This is a section that bristles with anomalies. A couple could have lived in a family home for ten or 20 years and because one spouse had received it by way of gift and was the sole legal owner, the other spouse, if that spouse worked solely within the home, would have no stake in its ownership under this Bill. However, should a mortgage be raised on that property, for whatever reason, those household contributions would suddenly assume a degree of relevance under this Bill, although no other circumstances would have changed.
There are few in this House who could regard this as being a totally satisfactory response to the needs of the situation.
Under section 4 the court is asked to determine "the extent of a spouse's non-financial contribution to the family household". In this and in other matters the section is extremely vague. On making an order under section 4 it would, it appears, be open to the court to make any number of subsequent orders. There is nothing finite about the court orders. They could, on application to the court, be changed to vary the value put on work in the home. It seems to be the intention that a spouse who gets an equitable interest of 10 per cent in one year may return in a few years time to get a fresh declaration and so, progressively over time, build up to an equity stake of 50 per cent.
Another question which arises is whether the Bill places a premium on marriages of a particular duration so that a few years of marriage must exist before a court action can even be thought of. Is a special premium to be put on cases depending on the number of children in the family? Are the courts going to have to keep records on that basis to ensure that spouses with one child do not get a greater stake than those with two or three?
The Bill caps non-financial contributions at 50 per cent. Under the current law, as it has evolved on financial contributions there is no such cap. I am not clear what the situation would be where an individual claims simultaneously under this Bill and section 12 of the 1957 Act and some clarification of that in the Bill is surely necessary.
The Bill may also have serious implications for conveyancers and the normal sale of family homes. Given the very limited time for examination of the Bill I cannot comment on this matter in any great detail other than to say that conveyancing could become complex and difficult and this could result in delays and expense for couples.
Section 12 of the Married Women's Status Act of 1957, on which this Bill rests, is being repealed and re-enacted in extended form by the Family Law Bill, 1994. It is rather odd that no reference to this is made in the Explanatory Memorandum. There is one consequence of that change to which I would, however, draw the House's attention. A child of a deceased spouse is being given a right to recover money or other property or its equivalent to which that deceased spouse was entitled and which has, or may have, gone out of the ownership of the dependent spouse.
Under the Bill, would it be open to such a child to raise the question of a trust in relation to non-financial contributions over a period of years and would the court then be in the invidious position of hearing conflicting evidence from a parent and child as to the extent of such contributions by the deceased parent?
There is a final net point in this Bill relating to the definition of "dwelling" in the context of the Family Home Protection Act, 1976. The view taken was that there was no need to proceed with the amendment which had been contained in the Matrimonial Home Bill since it was intimately linked with the definition of "matrimonial home" itself. However, the matter can be looked at again and if the need for change suggests itself, it can be done in the context of the Family Law Bill.
In conclusion, for the reasons I have given, the Government is unable to accept this Bill. The Bill presents itself as a contribution to the process of law reform. It is nothing of the sort. It will have no appreciable effect on the rights of spouses who work in the home. It is, quite frankly a half-baked measure which shows every sign of having received little thought and every sign of having seen the light of day on the back of an envelope. The issue of family law reform is too serious to be dealt with by way of amateurish efforts such as this.
Many in this House will be surprised, if nothing else, about the solemn defence being made for a Bill which first made its appearance on the Order Paper of this House only this morning. I am unsure as to whether this signals an end to the Progressive Democrat's wish to see Bills on the Order Paper for two weeks before debate, or they merely wish to have an exception for publicity stunts of their own.
