The irresponsible and divisive nature of sections of the Tánaiste's speech last evening was not helpful to the divorce debate. A successful referendum campaign, as indicated by recent opinion polls, will require the support of all parties in this House. To allege that Opposition parties are playing politics with the divorce issue and to threaten them with responsibility for the consequences is not only contemptible in terms of veracity, but helps to create an atmosphere of recrimination and ill will which, if allowed to continue, will seriously harm the divorce process. The Tánaiste's speech has credibility only on the basis that the opposition to which he referred was the opposition from his own benches, particularly among Fianna Fáil Deputies none of whom even bothered to come in to listen to his speech.
Private Members' Business. - Family Law (Property) Bill, 1994: Second Stage (Resumed).
They are absent again tonight.
That is true.
The introduction of divorce was promised in the Programme for Government and every Government Deputy is committed to it. Fine Gael is a responsible Opposition and has always been responsible on this issue. We will do our job as a responsible Opposition and we do not need lessons from anybody. We will always put the interests of the people above party politics and, whatever the temptation or justification, we will not be drawn into a rancorous divisive point scoring debate which can only do harm to a resolution of this grave problem.
Despite the Tánaiste's lengthy speech yesterday evening in which he detailed steps the Government intends to take, it was only in one of this morning's newspapers that we learned of the intention of the Department of Equality and Law Reform to spend £500,000 on a major publicity campaign to "try to ensure the carrying of the referendum". The Tánaiste did not mention that yesterday evening. Why not? This is public money and its expenditure must be carefully scrutinised. In recent times there have been many publicised examples of wasteful expenditure by PR companies. What safeguards will there be to ensure it will not happen again? Who will control the direction and thrust of this advertising? If Opposition parties are expected to contribute to the success of the referendum campaign and, as the Tánaiste inferred, be blamed by the Government if it is not successful, should we not be entitled to some say in the formulation of that advertising? I will reserve my position on that proposed advertising campaign until I know more about it.
There was an arrogance in the Tánaiste's speech which I found distasteful and worrying. We are told that a former Minister for Foreign Affairs insisted on being called Gerard Collins; are we now to have Richard Spring inflicted on us?
It is strange that the Government benches show no further interest in and are trying to collapse this debate because it shows a contempt for this House, its procedures and for what is at hand. When the Matrimonial Home Bill was introduced in this House, the Minister for Equality and Law Reform, Deputy Taylor, stated it was an integral part of the approach of the Government to the divorce issue and a major preparatory step in the process which would lead to a referendum on divorce. Last night, devoid of political honesty, the Tánaiste said there was no connection between the two; he went so far as to say the two issues were separate — to coin a phrase, that they were divorced. He criticised the Opposition for seeing a linkage between the two; when it was the Minister for Equality and Law Reform, Deputy Taylor, who sought to create a linkage between the two Bills.
In many respects this House has been fooled by Government rhetoric on this matter. We have been asked to believe the Government has a programme of law reform relating to marriage of which the Matrimonial Home Bill was one part and the divorce legislation and the Family Law (Property) Bill was another.
I regard the Tánaiste's speech last night as not only arrogant, as Deputy Currie stated, but nasty and vindictive in tone. It was devoid of any constructive positive content, it was aimed at point scoring, destructive intent and was couched in terms which were offensive, futile and devoid of legal content. His remarks were waspish and devoid of legal, political or constitutional import.
This Bill is designed to make spouses' non-financial contributions reckonable by a court in determining who owns the family home and its contents. As the Tánaiste pointed out in his shallow and rather shabby speech, it would be desirable to achieve that end by legislation and not in the context of a court hearing but, unfortunately, the Supreme Court has ruled on the matter and the question is whether this House will establish rights for stay-at-home spouses who contribute to home-making to have an equitable interest in the family home or this House walks away from that issue. I have nothing but obloquy and scorn for the miserable attitude adopted by the Tánaiste last night. His remarks were surprising and disappointing but, as Deputy Harney said in a statement today, they exhibited a level of legal ignorance and political malice which this House has not seen for some time. Deputy Spring is a lawyer and I will deal with the "legal points" he tried to make last night.
The Progressive Democrats Bill is a modest measure designed to allow the courts to recognise non-financial contributions by stay-at-home spouses who decided to make their contribution to a family by home-making. In the majority of cases we are dealing with wives but now, increasingly, we find ourselves dealing with husbands who are in the same position. Marriage is a partnership and given the economic circumstances of the day there must be some specialisation of function. One person must stay in the house because it is so difficult to find remunerative employment for one or both spouses.
In the L v. L case in the High Court, Mr. Justice Barr attempted to recognise that a spouse who, by staying at home and by contributing to the welfare of the family, and by contributing services to the other spouse, the children of the family and the household, created some right in the economic wealth which that family developed in the course of the marriage. Could anything be more humane or more admirable as a change in our Law? Mr. Justice Barr made that judgement by reference to the Constitution. He thought there was ample reference in the Constitution to the contribution of spouses at home. Notwithstanding the somewhat sexist language of the Constitution he thought there was constitutional recognition for the proposition that at least one of the partners in a family had a function in the home which deserved constitutional legal protection, recognition and validation. When that case came to the Supreme Court it, by a unanimous decision, decided that this was a matter for this House and not for the High Court or the Supreme Court to decide. If non-financial contributions were to be recognised in developing the concept of joint ownership in equity of a family home, the Supreme Court said that was a matter for this House to decide and it should not be done by judges alone. That is a perfectly reasonable attitude for the Supreme Court to take. In the language used by the Supreme Court in the L v. L case there was more than passive acceptance that this House might, in time, grant recognition to non-financial contributions to the ownership of the family home but there was some positive encouragement in the House to introduce legislation to achieve that end.
The Chief Justice in his judgement in the L v. L case stated:
After careful consideration and with a reluctance arising from the desirable objective and I emphasise the words "desirable objective" which the principle outlined in the judgement Barr J. would achieve, I conclude that to identify this right in the circumstances set out in this case is not to develop any known principle of the common law, but is rather to identify a brand new right and to secure it to the plaintiff. Unless that is something clearly and unambiguously warranted by the Constitution or made necessary for the protection of either a specified or unspecified right under it, it must constitute legislation and be a usurpation by the courts of the function of the legislature.
The first thing to note from the Chief Justice's quotation was that the Supreme Court stated it was a desirable objective and that the second was that they said it was a matter for this Legislature to deal with. Since that time the Matrimonial Home Bill has been introduced, the only legislation introduced in this area. When that Bill failed before the Supreme Court the attitude taken by the media, the Government and others was that they had made an effort, they had tried their best, they had tried to bring about a legislative formula which had failed and been rejected by the courts and that was the end of the matter. This party and Deputies on this side do not accept that proposition and are unanimously of the view that, even in the decision of the Supreme Court on the Matrimonial Home Bill there is plenty of room for improvement and for the advancement of the position of people who contribute to the development of family wealth in a non-financial way.
The Progressive Democrats' Bill has been characterised in its explanatory memorandum and by the Tánaiste in one of his speeches as a modest measure; in another section he allowed himself the contradictory sentiment that it was neither modest nor protective. I get the impression that two word processors met somewhere between the Department of Equality and Law Reform and Merrion Street and gave rise to a contradictory and stitched together speech last night but the malice was in both sections and it dripped from both even at the point where they were stitched together.
The Bill is a modest measure to allow the courts to recognise non-financial contributions by stay-at-home spouses who are home-makers. At present the only situation in which spouses can hope for relief in relation to the family home asset, from which they are excluded by legal title, is in the context of a judicial separation or by proving that the home-making spouse has made a cash contribution to a family kitty which has been used to meet mortgage repayments, etc.
It should have been apparent to the Tanaiste, who at one stage in his career was a junior barrister in the Law Library, even with his limited experience of the law, that there are many other circumstances apart from judicial separation in which a wife might wish to establish equity in the family home. What are these circumstances? One is in the context of a succession Act dispute. A spouse may make the point that by staying at home and allowing her husband to go to work, she is entitled to a share, as of right, in the family home independent of the legal share conferred upon her under the Succession Act. She might make the point that if she is entitled to a legal share of one-third or one-half, depending on the circumstances, in her husband's estate, half of the home should be attributed to her before that process started. That is one circumstance in which this Bill would make a significant improvement.
In many cases individual members of a family, other than husbands and wives, make contributions towards the cost of a family home. For example, an unmarried son or daughter living in the family home who makes weekly contributions to the mortgage repayments, may make a claim on the family home by virtue of such a contribution. In those circumstances a wife might say she had made a contribution by staying at home for 25 years to create the circumstances in which the family stayed together, prospered together, and purchased the family home. It is just and proper for the mother to say that her contribution should be valued by the courts in equity as the cash contributions of one of the children who contributed to the mortgage repayments.
Those are two instances the Tánaiste chose to ignore as if they are exiguous and had no value in this matter. A person with a legal background who accuses the Opposition of putting forward a Bill, described in choleric and bitter terms as being drafted on the back of an envelope should have thought more deeply about the issue before expressing his intemperate and arrogant views.
The Tánaiste said that the existence of a right for a woman or a man to claim an equitable right in the home by virtue of their non-financial contributions would only lead families into litigation. That is a false, vacuous and foolish assertion for somebody in his position to make. If a spouse had to go to court, it would only be because an injustice was being done to that spouse and that he or she was being wrongly denied their fair share in the family assets by reason of the failure of the Legislature to do what the courts invited it to do in the L v. L case, that is, to recognise that there is such a thing as an equity based on family-making contributions of a non-financial kind to the acquisition of family assets.
The Tánaiste was not content with that foolishness. He went on to say that giving recognition to non-financial contributions could give rise to conveyancing problems but, because he did not have enough time to think about it, he was not in a position to work out what those problems might be. Anybody who had experience of conveyancing problems would know that too was a hollow and vacuous point because the moment every spouse who has made a financial contribution is entitled, under the Married Women's Status Act, 1957, to go to court and have that right established and vindicated and have the result declared in her favour. It does not create one problem to conveyancing that such a right exists in relation to financial contributions; it would not add one complication to accord such a right to people who, because they have specialised in family function to a different degree, have made all their contributions in a non-financial way.
The Progressive Democrats' Bill is a direct response to the implied invitation by the Judiciary in the Supreme Court to alter the law to recognise non-financial contributions. This is not some whim of ours; the Supreme Court said publicly that a desirable social objective falls to this House to be vindicated and suggested that legislation is the way to achieve this end. The Labour Party and Fianna Fáil in particular produced one Bill and when it failed because of unanticipated constitutional difficulties they turned their back on the entire project and left the non-financially contributing spouse with nothing. Having failed with that approach in the Matrimonial Home Bill, the Government, particularly the Labour Party, has apparently given up attempting to achieve what the Chief Justice referred to as a desirable objective in the context of the L v. L case.
It was stated here yesterday that this Bill is short and general. That sounds like a clever point made by somebody who might hold the view that any worthwhile arrangement or change in the law should be long and complex, but a simple idea is best expressed in short terms and general language if it is capable of being implemented. Of course, the Progressive Democrats' Bill is short. A general principle does not need to be, and would be ill-served by, a long and detailed legislative measure to implement it. The Bill proposes to give spouses a right which they can, if necessary, vindicate by litigation. In the vast majority of cases once a light is established, sensible people will, by compromise and by sharing and by a positive attitude towards each other, give effect to it. What this party says, and what all Opposition parties say, is that non-financial contributions by stay at home spouses who engage in family-making ought to be recognised by the law, and this measure is designed to give them that recognition.
The Tánaiste stated that the present law and the anticipated changes in the Family Law Bill will give that right in cases of separation, but what about other cases? I mentioned the spouse of a deceased husband or wife who wishes to avail of this principle. I also mentioned the possibility of conflicting rights among members of the family who were not spouses in which it would be important that the stay-at-home spouse had some protection, but none of these points seem to have lodged in the Tánaiste's mind; quite the reverse. All these points seem to have escaped him. I wonder why.
As a party we would have preferred the formula which was implicit in the Matrimonial Home Bill, that is, that as a matter of law and of legislative rule, every spouse had an entitlement in the family home but once that principle was cast down by the Supreme Court, in the circumstances of this case, it does not mean the issue is dead; even though the Labour Party and Fianna Fáil give up on it we will not do so. It is noteworthy that not a single member of Fianna Fáil attended this debate, contributed to it or intends to contribute to it.
In the context that the Supreme Court has rejected the formula of legislative prescription for families, it follows as a matter of necessity that any other formulation must be general and flexible. Therefore, all the attacks launched by the Tánaiste on this measure last night were missing the point because the virtue of the Bill is that it is flexible and general in its terms. The question for this House is whether we wish to face up to the issue or whether, as the Tánaiste has done, we should throw our hat at it and fail to legislate in any way within constitutional constraints for what the Chief Justice termed a "desirable objective".
Last night the Tánaiste told the House that if the Government was of the view that a ready alternative to the Matrimonial Home Bill was possible it would only be too happy to promote or support such an alternative but the fact was, uncomfortable though it may be, that no such ready alternative existed. That view is entirely wrong, misconceived, arrogant, selfish and ignorant of the legal possibilities open to this House.
At one point in his rambling and defensive speech the Tánaiste said that the Bill was neither modest nor protective, while at a later stage he said the Bill was a very modest proposal. It is not true to suggest that the right to establish an equitable interest in respect of non-financial contributions to the family home would lead to litigation and family breakdown. In many cases the existence of such a right would encourage spouses to be reasonable with each other. Such a jurisdiction already exists for financial contributions and it has never, in that context, led to an explosion in litigation.
He gave a list of silly objections to the Bill, most of which are beneath criticism and a good few of which are beneath contempt. He asserted that giving the courts jurisdiction to declare a wife entitled to an equitable share in the family home by virtue of her non-financial contributions could be unconstitutional. That suggestion shows a deep and apparently ingrained difficulty on the part of the Tánaiste to grasp the basics of constitutional law, not to speak of coming to terms with what the Judiciary has said on this subject.
This Bill is short and simple but it is not as simplistic as the formula of the Minister for Equality and Law Reform turned out to be. This Bill respects property and family rights, recognises constitutional realities and applies to more than judicial separations and, therefore, deserves consideration. If the Bill is given a Second Reading it may well be improved upon on later stages. The Bill is much better than nothing, which is what the Tánaiste has offered this House thus far.
I wish to refer to the detailed criticisms of the Bill set out by the Tánaiste in what he aptly termed his contribution to the debate. He said that this measure would be of very limited use, if any, in a normal marriage. It is accepted that the Bill will be of less use than the proposals in the Matrimonial Home Bill because it will not apply to every marriage. In view of the Supreme Court ruling, we still have to deal with the principle of in law a non-financially contributing spouse is entitled to some equitable return on her efforts in building up the family and its assets.
He went on to suggest — this may worry Members who place some credence on the legal views expressed by him — that one of the fundamental problems with the 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. That is not the case. The Bill merely says that just as in the case of financial contributions, which the court may declare exist, the court may also declare that non-financial contributions exist. The Bill will merely put in place a background against which most people will judge their behaviour. Most solicitors advising a couple who have differences will say, "your wife or husband has an interest in the family home even though he or she has not contributed to it and this is something a court will determine for you if push comes to shove". The suggestion that this Bill invites litigation is entirely false.
The Tánaiste said that a striking absence from the Bill was any expressed mention of the main circumstance which presumably gave rise to it, namely, the recognition which should be given to spouses who work by looking after the home or caring for the family. It was not necessary to do that because the Bill is a carefully crafted legal measure which does not have to engage in florid rhetoric of a legal kind. He said 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 greatest of respect, that statement is silly beyond belief. The only rights which can be declared under this Bill are those declared by members of the Judiciary who, by definition, will not engage in disproportionate interference in family affairs.
The Tánaiste suggested that before any interest could be established expensive court action might be necessary. That applies to present financial contributions and it is not the cause of any major difficulty. He went on to say that the Bill would only be of relevance where spouses could not agree on such ownership. Spouses will agree on ownership if the law reflects the reality and the justice of the situation. He criticised the Bill on the grounds that it was short on detail and said it might draw a distinction between different spouses in different situations. He said that a spouse who came to a marriage with the home would not be caught by the terms of this Bill. Unfortunately, that is part and parcel of the Supreme Court decision on the Matrimonial Home Bill: if a spouse comes to a marriage with an asset already in his or her pocket, so to speak, then one cannot by legislative interference take it from them merely because they have married. He suggested that there would be a difference in such circumstances between a person who remortgaged their house and someone who never got a mortgage. There would be a difference if one of the spouses was staying at home to allow the other to finance the mortgage on the home.
He asked if the criteria set out in section 4 were vague. They are general but they are not vague. He suggested that there might be discrimination between spouses depending on the length of time they were married. Of course, there would have to be discrimination by anybody in these circumstances between spouses who were married a week and those who were married a month unless one includes the formula set out in the Minister for Equality and Law Reform's failed Bill, that is, on marriage everyone automatically gets a 50 per cent share in the home. If one was talking about earning an equitable share by way of contribution, which is what we have been driven to by the Supreme Court decision, the length of the marriage and the extent of the contribution must be taken into account and the court must be given leeway to distinguish between one circumstance and another. He also made the ludicrous suggestion that the number of children involved might vary the decision in some sense. I do not believe it would, and anyone who read the L. v. L. case could not have come to that conclusion.
The Tánaiste suggested that in present circumstances the Bill might allow a series of claims to be made in respect of the same matrimonial home. Under existing law on financial contributions such claims can be made in respect of the same matrimonial home. People are not as foolish or stupid as the Tánaiste thinks. People do not litigate unnecessarily in these circumstances. If financial contributions give rise to litigable rights and successive actions can be taken in those circumstances then the same applies to non-financial contributions.
The measures we have proposed are simple, short, specific, general in application, flexible and adaptable to individual family circumstances. We repudiate completely the criticisms offered by the Tánaiste yesterday. These criticisms were motivated more by a desire to camouflage by a smokescreen his retreat from a worthwhile legislative principle than by any genuinely held and bona fide entertained belief that there is any shortcoming in the Bill.
On 7 July 1993 the Minister for Equality and Law Reform came into this House to fulfil a promise. He stated:
As the law stands, where the matrimonial home is in the legal ownership of one spouse, the other spouse may acquire an equitable share in its ownership through direct monetary contributions made towards its purchase ... No share of the ownership is earned by non-pecuniary contributions, such as looking after the house and family. This position was confirmed by the Supreme Court in the case of L v. L, (1992), Irish Law Reports Monthly, page 115.
This alone is the issue that is being tabled today. The Minister failed to meet the objectives he set himself. Spouses, and women in particular, are still at a disadvantage when it comes to ownership of the family home. It has now fallen to the Opposition to take up the cause on their behalf.
I welcome the Bill proposed. It is significant that it is being put forward by an Opposition party rather than by the Government. We must ask why that is the case. The Joint Programme for Government states clearly that the Government is committed to introducing changes in the short term to enhance women's rights. Included in those changes promised in the short term is legislation to give each spouse an equal share in the family home and household belongings. The Government's Matrimonial Home Bill set out to meet this particular proposal. It introduced the concept of 50-50 ownership as of right to spouses and the Bill was the subject of considerable debate in the Dáil. I recall sitting here through many hot days in July debating the minutiae of legal points and putting forward propositions to test them against the proposed legislation. Whatever one can say about that Bill it certainly was not short in general.
If a woman murdered her husband, for example, did she lose her right of ownership? If a woman was coerced by her husband to sign over her rights, how would she regain them? All types of propositions were put forward and debated. The Government and Opposition parties eventually passed the Matrimonial Home Bill and there was general support for it. As we all know, however, as soon as it was tested in the Supreme Court the Bill fell apart, not just a particular clause in it but its fundamental proposition was found to be unconstitutional.
How can a Government with all the panoply of legal advisers, programme managers, special advisers, the services of the Attorney General and, I am sure, the services of private consultants, as they are needed, get matters so wrong? The debacle of the Matrimonial Home Bill undermined public credibility in the judgement of this Government. It undermined confidence in its capability to deliver on promises made and that the public accepted in good faith.
The failure of the Bill to be passed into law was seen rightly as the fault of the Government. It was seen as a failure to wrestle with the realities of our Constitution in a way that would bring about progress for spouses, and for women in particular. The print was barely dry on the text when the Bill was thrown out lock, stock and barrel, and the Government ended up with egg on its face. Embarrassment for the Government, however, is of little consequence when compared to the loss experienced by women.
When the Matrimonial Home Bill was presented to this House the Minister made statements which highlighted its importance. During Second Stage on 7 July 1993 he stated: "This Bill is based on the view that marriage is a partnership which each spouse has an equal role and interest in promoting, enhancing and safeguarding. It gives statutory recognition to the contribution that each partner to a marriage can and does make towards the maintenance of the family unit".
The Bill was welcomed by Opposition Members who spoke at length on the importance of recognising the contribution made by women in the home. It followed the Oireachtas Joint Committee on Marriage Breakdown which devoted considerable space to that issue in its 1985 report. That report stated: "A woman working in the home does not become entitled to any interest in the family home simply by reason of the work which she carried out therein as a wife, looking after the home and the family". It further stated: "While the 1976 Act has introduced some element of protection, that protection is by no means complete".
The report concluded, "that the present system of dealing with matrimonial property is extremely unsatisfactory and effectively discriminates against women since in most marriages the wife is obliged to give up work outside the home".
In the Report of the Second Commission on the Status of Women, a whole section is devoted to the issue of community property. The commission clearly recommended joint ownership of the family home but it also extended that principle to joint entitlement of all income, a legal right share of one half of the estate when the other spouse dies intestate, and many other provisions that would protect spouses and ensure equality within the marriage relationship.
The Government specifically requested the commission to pay special attention to the needs of women in the home. The commission report pointed out that almost half of all women aged 15 years and over were engaged in home duties and that during the past 20 years the overall proportion of women in the labour force has risen very little.
While there is a trend among married women to work outside the home there is still a large percentage of women who see their primary role as working in the home. It must be stated, however, that working in the home, while perceived by the person who does it as having fundamental importance, is not recognised or acknowledged as having anything but the lowest of status by society at large. One submission to the commission made this point. It stated:
What is the full-time housewife categorised as by the State? A dependant, a type of non-person with absolutely no rights at all. The full-time housewife has no identity, no self-esteem, and often no money. Is her work of any value?
That is the fundamental question that women want answered in the affirmative by this Government. Is the work of women in the home of any value?
I followed in disbelief the speech made here by the Tánaiste, Deputy Spring, last night. He exposed the real nature of this Government. He peeled away all the weasel words, the cosy assertions and the pious aspirations. He came into this House and proceeded to sell out women. In particular, he sold out women in the home.
He did so by rubbishing an opportunity that is being presented in this Bill which is, in the words of it proposer, a modest proposal, but one that begins to answer the question: is the work of women in the home of any value?
The Tánaiste insulted the genuine desire among women who have kept this country going by their work in the home. He did it with arrogance, with ignorance, and with a cynicism that is hard to stomach from a man who made his reputation out of integrity and a commitment to the principle of equality. Last night he smashed down the veneer of commitment that the Labour Party has carefully constructed over the years.
That is nonsense.
He did it by trampling on a dream that women hold dear, the dream that what we do in rearing children and making a home out of bricks and mortar counts for something and has worth.
The Tánaiste last night talked about divorce. He began by making the point that this Bill is not directly related to divorce — in that I agree with him and I believe all Members agree with him. He went on, however, to speak at length about divorce and the proposed referendum. He stated on a number of occasions that the Government is entirely united behind the divorce referendum. He said the whole Government is united behind "that plan"— that plan being the one on course for the referendum.
I do not believe him. Nobody believes that the whole Government is united behind the plan that, as has been stated publicy, is leading to the divorce referendum. I do not believe that all the Members on the Government side of the House are in favour of a referendum or the provision of divorce as a civil right. Any Member who can come into this House and try to convince us of that is guilty either of self delusion or is trying to delude the rest of us.
The reality is that the Government is not united, it is split on the issue of divorce and this should be publicly stated.
Last evening the Tanaiste and Minister for Foreign Affairs turned on the Opposition and tried to blame it for playing politics with the divorce issue, a tactic worthy of the cowardly and the weak. The Tánaiste is getting more support at present from the Opposition Parties on the divorce referendum than from his own side. To blame the Opposition for the faults of Government is the last resort of the politically bankrupt; when conviction fails and impotence reigns blame the Opposition.
This Bill has been introduced because of Government bungling. Those of us who recognise that divorce is a civil right are concerned that the Government is not capable of providing clear leadership through what we all agree will be a difficult referendum. What is required is clarity of purpose and vision and there was no evidence of either in the Tánaiste's contribution. I see a man frightened of the difficulties ahead in the divorce referendum, in particular, the difficulties of the Government's making.
To have undermined public confidence so easily by making a botch of the Matrimonial Home Bill, 1993, is something from which the Tánaiste and his Minister for Equality and Law Reform will not recover easily. If the Tánaiste had had the wit and imagination to accept the Family Law (Property) Bill he would have done much to repair the damage. Instead of the siege mentality he displayed last evening, he could and should have shown openness. He should have recognised that women in the home are discriminated against, held in low esteem and not rewarded for their commitment, work and endurance. If he had it would have gone a long way towards redressing the offence. However, instead of openness we got retrenchment; instead of enthusiasm we got vitriol; instead of intelligence we got stupidity, and I make no apologies for using the word "stupidity".
The Tánaiste came into the House last evening and made untrue statements. For example, he said that a measure like this is of very limited use in a normal marriage. At least he was sufficiently wise not to endeavour to define precisely what "normal marriage" means. The explanatory memorandum states that the Supreme Court could not uphold a High Court finding, that the courts could extend the ordinary principles regarding indirect contributions to include non-financial contributions. There is no ambiguity about that judgement. The Chief Justice in the L v. L case indicated that he was reluctant to take such a decision because he recognised the desirable objective attached to the principle decided by the High Court but he also made it clear that to find in favour of the High Court decision would be to identify a brand new right, that this was not warranted by the Constitution and, therefore, it would be a usurpation by the courts of the function of the Legislature. Implicit in that statement is a signal to the legislators to bring into law the principle that a wife's contribution should be recognised where it is not financial but has substance and value of a different kind. If for no other reason, it enables the husband to go out and make money.
When the Supreme Court signals a difficulty in this way and a failure of the legislators to deal with providing for a principle the Tánaiste should have jumped at the opportunity to put things right. He did not, he reacted defensively and out of ignorance. He quoted section 12 of the Married Women's Status Act, 1957, but he does not appear to be aware of the Supreme Court decision. He then went on to compound the error by saying that such a measure is clearly of very limited use, if any, in a normal marriage.
A women's right to recognition of her contribution is important regardless of whether the marriage is "normal". Marriage is a partnership largely dependent on negotiation. If the ground rules are that one partner is always at a disadvantage, always having to struggle for equality, then, even in the best marriages, it causes grief, yet the Tanaiste maintained that this measure is of very limited use. He also said that the Bill does little to address the ordinary needs of a couple whose marriage is stable. If the provisions of this Bill were implemented they would set the context within which many marriages could flourish and, when they broke down, could put to right some of the wrongs at present perpetrated against women. The Tánaiste displayed a fundamentally reactionary view. I thought the Labour Party was all about change, making progress, equality and law reform, empowering women and enabling them to take their rightful place in society. The Tánaiste also said that 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 it. That is the point, at present that is the only way the Government seems to be capable of handling the matter since the Matrimonial Home Bill, 1993, whose provisions sought to give that interest as a right, has gone down the plug hole.
The option proposed by Democratic Left clearly is far too radical and effective for this Government to even contemplate. We argued for a constitutional amendment to be put to the people when it became clear that the Government had made a mess of things.
The Tánaiste said he believed that the Matrimonial Home Bill had nothing to do with the divorce referendum. Would that that were so but the two have become so intertwined in the public mind the failure of one might well affect the success of the other. The question that remains to be addressed is the rights of women in the home. Mr. Tom Cooney, law lecturer, said recently:
Security for vulnerable dependent spouses who have no rights in the family home is an absolute imperative. During the last referendum on divorce, anti-divorce campaigners exploded the proposal to accommodate the human right to remarry by igniting panic among dependent spouses on this very issue as well as the issue of income maintenance.
AIM, the family law information, mediation and counselling group called on the Minister for Equality and Law Reform to take urgent action to enact much needed legislation when the Matrimonial Home Bill, 1993, fell. The Minister responded by saying that the Government was determined to enshrine in law the principle of the Bill, to provide security in the family home for both spouses, but he has not done so.
After days of speculation as to what the Cabinet intended to do to resolve the difficulty created by the Supreme Court decision the Taoiseach stated that nothing would be done. He said this was a Cabinet decision and the Cabinet certainly seemed quite happy to jettison a fundamental commitment in the Joint Programme for Government. The obvious question is if it is so easy to jettison this commitment in the joint programme, what other parts of the joint programme will be dropped overboard from the ship of State when the weather becomes more stormy and the crew more restless as we near the date of the divorce referendum?
I am sickened at the response of the Government to this Bill. It is not a Bill that Democratic Left believes will meet the case of spouses who work in the home but, at least, it breaches the wall of discrimination against them; it is an effort to make progress towards equality. As Mikhail Gorbachev said — we may all be groping in the dark. At least the Opposition is groping to find a solution. On the other hand, the Tánaiste is clearly rendered nervous by the dark and has given no indication of how the Government intends to face up to its obligations. He refuses to consider a constitutional amendment. He refuses to consider a very modest proposal from the Progressive Democrats. Rather like the Republican Party in America of whom President Bill Clinton complained recently, Dick Spring's response is to say: "no, no, no".
I must bring the Deputy's attention and that of the House to the fact that Members of this House should be referred to in accordance with the position or office they hold — Deputy, Minister, Tánaiste, whatever.
The Tánaiste's response was "No, no, no". It is not as if the Labour Party do not understand what needs to be done. Deputy Penrose understands what needs to be done. Speaking on the Second Stage of the Matrimonial Home Bill on 7 July 1993, as reported in the Official Report, at column 1609, he spelt it out clearly when he said, in reference to the Supreme Court decision overturning the High Court decision:
The Judiciary decided that under the separation of powers, it could not embark upon that process. They certainly gave a clear indication to the Oireachtas that it could legislate for the result of that High Court decision. Many people have waited patiently for the past 18 months for this legislative void to be filled.
The void is still there and I wonder how Deputy Penrose will vote when this Bill is voted on.
Will he speak?
Will any of them speak? The void is echoing with silence. Deputy Penrose knows there is a way through the dark and that there is an obligation on the Oireachtas to take account of what the Judiciary is indicating to us.
He is a practising lawyer unlike the Tánaiste who only pretends.
Sometimes lawyers get it right. I am no fan of lawyers. It is an indication of the lack of leadership that exists within his party that his leader can come into this House and reject with such disdain what is a logical outcome of that judgement of the Supreme Court.
Instead, the Taoiseach talks about marital breakdown and lists the property adjustment provisions that have been made in two years as a result of judicial separation. That is to simply miss the point. Whether a marriage has broken down or whether it is still in good shape, the principle is unchanged. The principle is that a woman's work in the home must be recognised as having value. The Joint Committee on Women's Rights is considering the distribution of personal wealth in Ireland and women's participation in that distribution. The findings so far have serious implications. While the research is not up to date, there is evidence that in 1991 the share of women in the total of personal wealth had actually decreased from 28 per cent to 26 per cent.
It should be remembered that when we talk of women and ownership — even though we are talking about half the population — we are talking about a group in the population who do not as a norm own either wealth or property. Where they do own property it is often through inheritance. There are, of course, historical reasons for this. It is not unique to this country. In the UK, the United States and Sweden there is still an imbalance, but in many of those countries there are indications that that imbalance is being righted. Here there is no clear evidence that there is a perceptible trend towards greater equality. We have yet to see that shift in Ireland. I am not arguing that legislation of this type will change the essential inequity but it will put another building block in the foundation on which true equality can be built.
If we seize every opportunity to tip the balance more equitably we can make progress. If we refuse, as the Tánaiste refused yesterday, to take an opportunity that lands in his lap and instead expresses the obstinance of blind and ill-informed prejudice, then there is little chance that we will succeed as women in winning our rightful place.
I am sure this Bill is deficient in many ways. I am sure many amendments could be made to improve it but that is not the issue. The issue is whether the Government will avail of the opportunity being offered to put right a wrong that is being done not just to women, but primarily to women, who have waited patiently for many years and believed in the promise offered them in the Joint Programme for Government.
Many years ago, the writer, Thornton Wilder, said: "Marriage is a bribe to make a housekeeper think that she is a householder". Is that what we will see: marriage being simply a bribe to make a housekeeper think she is a householder. Is it not time the housekeepers also became householders?
(Carlow-Kilkenny): It is amazing that we have such an empty House to hear a debate on such an important Bill, especially on the Government side we have silent partners on this very important topic. Reference has already been made to the Tánaiste's speech which I was surprised to hear. While in Opposition he made many attacks on the Government but in Government he is very touchy. He would not tolerate half of what he said himself when in Opposition. To refer to the Bill produced by the Progressive Democrats as giving the impression that it was written on the back of an envelope is an exaggeration. Whatever else one may say about the Progressive Democrats they have political expertise on their side. The Tánaiste would lose that battle before it started.
Following the failure of the Matrimonial Home Bill it is important that something be done about rights to the family home. We were criticised last night by the Tánaiste for daring to show any responsibility when he said:
I think the Opposition would do well to recall that if they choose to play politics with the divorce issue, they will have to take responsibility for the consequences.
The Government should take responsibility for the divorce issue and let the Opposition deal with it. If we knew what was going on we could be responsible. It also appears that the Government does not know what it is doing. It may be that the Tánaiste meant his remarks to travel to the Fianna Fáil Party and others who are doubtful, as well as to his back-benchers. It is absurd to tell the Opposition to be responsible about something of which we have no knowledge. We do not know whether there will be a referendum in the autumn. The Tánaiste should have answered that question as there is considerable doubt about it. I will have no difficulty in being responsible when I see a divorce Bill before us but I do not want to hear anything about being responsible in advance. The responsibility lies with the Government. The Government is there to lead and to give us a Bill to discuss. If the Opposition behave irresponsibly the Government can tell us. In the meantime it is outrageous to tell us how to behave.
The question of the home is very important for people who have spent their life building up a home in a non-financial way. It is politically correct to talk about househusbands and wives but from my point of view 95 per cent of the time we talk about wives. Many wives give up successful careers to give full-time attention to the rearing of children and they must be admired for doing that. Obviously, they do it willingly but they take on the role of child bearing and child rearing. It is a full-time and responsible job and one we should appreciate. A mother who is full-time in the home has to do a great deal of work: she has to do the housekeeping and the cooking; hungry mouths have to be fed. She has to balance the budget, sometimes against the odds; if she is lucky she has a husband who hands over his wages. She has to act as nurse when children come home ill or with injuries.
Wives who go out to work have a double role. Frequently when they return home they have to do the housework. It is almost impossible to put a value on that work but absurd financial figures have been suggested. It is absurd that a wife who put all her energy and time into keeping a family and home together would have no claim on the property. The issue poses real problems.
I had a case a few weeks ago where a wife was bullied by a husband into leaving the family home. She not only contributed through her work but also in a financial way to the upkeep of the home. She did not think she had any rights. We tried to get free legal aid but there was a long delay and I asked a solicitor friend of mine to help. When I discussed the fee with him he said there would be no charge. We heard so much about solicitors and lawyers scooping all the money in one case, which I will not refer to in case I am brought up before some body or other, it created the impression that everyone in the legal profession earned the same amount but that is not true. It is to their credit that they give free help to people in certain circumstances. As a result of the solicitor's advice to the woman she is still in her home.
In discussing the Bill we are not just preparing the way for a divorce referendum. The wife working in the home should feel she is protected and cannot be turfed out at the whim of anyone. This would be a major advance in guaranteeing her that protection.
In lacerating us last night the Tánaiste said:
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 whole Government is united behind that plan, and it is very much to be hoped that the Opposition can have the grace to recognise that, and to support what is our common objective, mainly to lift the absolute constitutional bar on the right to remarry.
The Government should put the plan on the table and tell us what it is talking about. The first leg of that plan seemed to fall off when the Matrimonial Home Bill was found to be unconstitutional. The Minister stated:
If the Government were of the view that a ready alternative to the Matrimonial Home Bill were possible the Government would be only too happy to promote or support such an alternative.
It is a dreadful sign of weakness to think there is no alternative to a Bill that has failed. Why have we legal advisers? I will not mention any specific one.
The Deputy might find himself before another body.
(Carlow-Kilkenny): I must pick my language carefully. It is outrageous to say there is no alternative to the Matrimonial Home Bill and we cannot protect the partners in a marriage. It looks as if the Government has given up on this issue and yet we are lectured on how to behave when the plan is presented.
The Tánaiste also stated:
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. And 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.
It saw the Bill through after 21 years and still did not have the proper legal wording. In a silly attack on the Progressive Democrats he said:
Sometime 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.
That is a reference to Deputy McDowell. If we had been waiting 21 years for something to be implemented it is hard to know how this could be seen as a rush of blood. It might have been a sign of frustration. The Minister could have been grateful and said that the Progressive Democrats had come to their aid and introduced a Bill which they would examine. He overshot the mark last night by blaming the Progressive Democrats for introducing the Bill.
In general, Opposition Bills are treated with scorn. I accept Deputy Shatter got through the maze. It is outrageous that such Bills are not accepted. My party introduced a Bill on the liability for trespass and the Government would not accept it because it was bringing in its own Bill but it looks now as if that will never happen. Governments should accept that Opposition Deputies have just as much ability as members of the Government. Those in Opposition today whose Bills are being rejected might easily be in Government within a short time. If so I hope they will adopt a sensible approach and realise that all 166 Deputies might be able to contribute just as well as those who are hand picked to be in Government. There is something outrageous in belittling Bills introduced by the Opposition.
This Government has the luxury of having so many advisers it does not know which one to listen to. Even so it still manages to get the wording wrong. The least it could do is accept Opposition Bills, take them through Second Stage and amend them on Committee Stage. It could then thank the Opposition and acknowledge it could not have got that far without its help.
It is customary to word the provisions in a Bill in a certain way. Sometimes the words would not be found in old dictionaries. Opposition Bills tend to be worded in a different way. This Bill was described as being short and general. If it clearly outlines what it is about why should it be couched in words nobody understands? I compliment the Progressive Democrats for introducing the Bill and would like to think the Government will treat it seriously and not rubbish it as the Minister did last night.
If the Government has sense it will accept and amend the Bill and make an effort to ensure that those who give of their time working in the home who may not contribute financially will certainly be regarded as major contributors to it. That is the least we might do to protect them and show our appreciation of the wonderful work done by those who stay at home to look after their family.
I delayed because I had hoped the Government would offer some speakers on this debate. The manner in which the Government is treating this legislation is an absolute disgrace, it turned down two Government slots to contribute to the debate. It is offensive to those who went to the bother of preparing the legislation — and considerable work went into its preparation — as there was consultation with those concerned about the rights of women. The Tánaiste promised to put justice into economics and trust into politics, but the manner in which the Labour Party, in particular, and the Government in general treated this debate speaks volumes for their commitment to put trust into politics and justice into economics.
Earlier today the Government parties sought to suspend indefinitely the workings of the Committee of Public Accounts. The Government would prefer if there was no accountability and if that committee did not exist because its active members from the Opposition parties, from the excellent Chairman to the excellent members of the Opposition parties work very hard, ask difficult questions, try to make sure there is accountability and that we get value for public money. I know the Government would prefer if those questions were not asked. They trooped into the committee this morning and again this afternoon and had the committee meeting suspended for at least three weeks.
Yesterday Deputy Durkan asked relevant questions to which he was refused answers and Minister after Minister responded that people are not entitled to know. Yet it was because Ministers did not answer parliamentary questions that an expensive tribunal was set up to inquire into the difficulties that arose in the beef industry. Deputy Durkan's questions were simple and relevant. He and every other Deputy has a right to the answers to those questions. The Government — with an unprecedented majority in the history of the State — failed to take this debate seriously. When it was formed I said that the one really bad thing about it was the size of its majority. I predicted it would make the Government arrogant and complacent, which it has. It could not care less. The Government would prefer if the Dáil did not exist as it does not value democracy. It refuses to hold by-elections and if European elections on 9 June were not mandatory they probably would not be held either. It is really sad when there are so many problems and in particular when so many women are told that the legislation will be gender proofed—the Programme for Government stated that all legislation and every Government decision would be gender proofed. I wonder who gender proofed the speech of the Tánaiste and Minister for Foreign Affairs last night. I wonder if all the advisers on the desirability of making this speech were male. I wonder what the Minister for Education, Deputy Bhreathnach, the Minister for Justice, Deputy Geoghegan-Quinn, the Minister of State at the Department of Social Welfare, Deputy Burton, the Minister of State at the Department of Finance, Deputy Fitzgerald or the Minister of State at the Department of Enterprise and Employment, Deputy O'Rourke, thought about this speech. For every woman in the Government parties, that speech represents a total and utter denial of a basic right — particularly a right of stay at home women who have worked long and hard to provide the circumstances that allow their husbands to acquire the resources, as Deputy Keogh said last evening and as Deputy McDowell said this evening, to purchase a family home and continue to pay the mortgage on it. They make a home and rear their children but are not supposed to get anything in spite of the noble words of the Constitution which states in Article 41:
2.1º In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2º The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
3.1º The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
Many Members including the Tánaiste, referred to the fact that this is a short Bill. However, its detail and the length of the explanatory memorandum should suggest to him, if nothing else does, that it was not written on the back of an envelope. At one point in his speech the Tánaiste said it was not a modest proposal but later in the same speech he said it was. Obviously two word processors, one from the Department of Equality and Law Reform and the other from the Tánaiste's special office met at Iveagh House and that is why the speech was confused.
My party gets an opportunity only every six weeks to table a matter of concern during Private Members' time. As a woman leader of a political party I was shattered when the Supreme Court struck down the Matrimonial Home Bill because my party and I supported it. Other Deputies and I spent a great deal of time during the summer discussing the Bill at committee meetings where we went through its fine detail. I would have preferred if the Matrimonial Home Bill had not been found unconstitutional, but it was. I went to the bother of reading the judgment on the Bill because I thought we might as well give up but on reading it I found that the the court was not totally striking down the principle, what annoyed it was the mandatory nature of the provisions. I looked with hope to the Government as I felt there was a way out and that a more modest proposal would be constitutional. I asked the Taoiseach if the Government would not reconsider its earlier contention that it had to walk away from the Matrimonial Home Bill and he told me it could not be done. When I insisted it could the Minister for Equality and Law Reform said a few days later that he would ask the Attorney General to again look at it. It was only when the Taoiseach reiterated that the Government would do nothing about the Matrimonial Home Bill that my party decided this was not good enough and that we could not wait another six weeks — which would bring us to June — before the matter could be again raised. We would then be involved in an election campaign and perhaps we would be accused of electioneering. If we did not decide to table the proposal now we would be told the divorce referendum was underway and it would not be helpful. That is why we have chosen this time to table this Bill. I believe it is the appropriate time.
As someone very committed to the principle of divorce and as a pluralist, I believe divorce is a civil right and that those whose marriages have tragically broken down should be given the legal option of having them dissolved and the option to remarry if they wish. If this legislation is not accepted by the Government and if we have an approach like that of last night from the Tánaiste, there is no hope of the divorce referendum being carried. The Tánaiste accused the Opposition parties of playing politics. I was one of the Opposition party leaders who went to see the Minister for Equality and Law Reform. He thanked me for the helpful contribution I had made, not only at that meeting but subsequently, and he contrasted it with other advice he had been given by Deputies. I have spoken to the Minister for Equality and Law Reform on many occasions about the proposed divorce referendum because I am concerned and I do not believe what the Tánaiste said last night that there is a commitment from everybody in the Government. I do not accept that, I wait to see every member of the Cabinet endorsing the need for the referendum and supporting the concept of divorce but I very much doubt if that support is there.
Because I was concerned that support for the concept of divorce was declining I asked the Taoiseach if he would agree to meet with the party leaders so that a co-ordinated approach could be adopted but he said he was not interested. Ten days before polling day when there is chaos everybody will be called in but at a time when we could be of help the Government does not want to know because it has a 35 seat majority. Why should it bother about the Opposition?
That is nonsense.
The Tánaiste should not be so cranky. Is there any reason it should not meet with party leaders?