On behalf of the Progressive Democrats I thank Fine Gael, Democratic Left and the Independent Deputies for the responsible and fair approach they adopted to the Bill. It is important, particularly in the context of the huge Government majority which causes concern not just to Opposition Deputies but in the country generally because of the manner in which the Government has used its majority and sought to collapse this Bill on the last occasion. I am pleased there is such unity of purpose among the Opposition parties and it is important that that would continue.
The Progressive Democrats put forward this Bill in order to give legal recognition to the unpaid work of women in the main, and in some cases, men, in the home. It is an honest attempt by us to recognise the non-financial contributions which many women in particular make to the home as homemakers and child rearers. The rejection of the Bill by the Government shows it is not really committed to equality, despite the words in the Programme for Government, or to giving statutory recognition to the aspirations in the Constitution as far as women are concerned. The Government's treatment of the Bill raises serious questions about its capacity to handle the divorce referendum. How could it dismiss out of hand a Bill that was welcomed by the Council for the Status of Women and several other organisations? The council described it as "a laudable attempt to give statutory recognition to the unpaid work of women in the home." They went on to say "any attempt to recognise in law the contribution made by women in the home through their unpaid work must be welcome. It is crucial, in our view, that this issue be dealt with before the Government's proposed referendum on divorce later this year". Despite those words from the council, which is the umbrella organisation for over 100 organisations, we all know what the Government sought to do; I am the third speaker from my party and the fifth Opposition speaker to contribute to this debate.
The delay in the allocation of £750,000 which the Minister for Finance told us about on budget day to marriage counselling services is also regrettable. I have been approached on behalf of the Marriage Counselling Service — a body which is not affiliated to the Catholic Church. That organisation is in jeopardy because of the failure of the Minister for Equality and Law Reform to make a grant available to it out of that £750,000. I appeal to him to make the allocation as soon as possible.
I heard the Minister of State, Deputy Burton, speak on radio this morning about the Government's commitment to the family. This is the Year of the Family and if an allocation is not made to an organisation which is trying so hard under very difficult circumstances to help those whose marriages are in difficulty it raises serious questions about the Government's judgment and its handling of the divorce referendum.
I do not want to see the divorce referendum diverted but I must question the ethics of allocating taxpayers' money to one side of an argument in the context of the referendum. I appeal to the Minister to give this serious consideration, as I have tried to do since I was approached by interested people. I am not saying public money should be allocated to a particular church but there will be organisations campaigning on both sides and all the public money should not necessarily be spent by the Government. Given the issue and the sensitivities involved, we and the Government must deal with the allocation of resources in a sensible, sensitive and realistic way. I would hate to think issues relating to the allocation of resources for a campaign would grab the headlines, get all the attention and divert interest from the main issue, which is recognising in law those whose marriages have broken down and allowing them to remarry if that is their wish.
I want to deal with the matters raised by the Tánaiste in a fair, honest and reasonable fashion but I must express how disappointed not only I but my party were at what he had to say — not just his out of hand dismissal of the Bill but the manner in which he chose to deal with the issue involved, his criticism of my party, his description of the Bill as an amateur effort written on the back of an envelope and his questioning of whether we were playing politics with the divorce issue. I have assured the Minister for Equality and Law Reform privately, and will do so publicly, that as far as the divorce issue is concerned, he will receive nothing but the fullest co-operation from my party. We co-operated fully on the last occasion with the then Coalition Government, in contrast to the main Opposition party at the time, and campaigned as vigorously as we could within our available resources. We had just established our party and had four Deputies; nonetheless we worked as hard as we could to ensure the success of the referendum. We helped the Government of the day and it would be my intention to do so on this occasion. This issue is far too important for party politics.
I regret the tone of the Tánaiste's remarks and it is a pity that the Minister for Equality and Law Reform was not present on that occasion because he has complimented me and my party on our co-operative approach to this issue. The Tánaiste suggested there were serious defects in the Bill. I have assessed each of his criticisms carefully and have concluded they are wrong and without foundation in fact or law. Taking the first point he made 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 rights of families to make decisions having regard to Article 41 of the Constitution.
This is a groundless criticism. The Bill cannot amount to disproportionate interference since all it allows is for a spouse, in the last analysis, to agree before a court that as a matter of equity, the non-financial contribution to the family home gives rise to an entitlement to beneficial ownership therein. Not only was this described as a desirable objective by the Chief Justice in the case of L & L but in the judgment delivered in the recent Matrimonial Home Bill case, the Supreme Court said:
The court accepts, as it has indicated, the advantages of encouraging by any appropriate means joint ownership in family homes as being conducive to the dignity, reassurance and independence of each of the spouses and to the partnership concept of marriage which is fundamental to it. It is not, however, satisfied that the potentially indiscriminate alteration of what may be joint decisions validly made within the authority of the family concerning the question of the ownership of the family home could reasonably be justified even by such an important aspect as the common good.
It is clear from all the available dicta of the Supreme Court on the issue that the court considers that legislation to permit a spouse to establish a right in equity to a share in the family home is not merely desirable or constitutional but clearly a value which the Constitution encourages and welcomes.
The Tánaiste went on to say:
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.
In this criticism the Tánaiste ignores present day legal realities. It is equally true of financial contributions giving rise to an equitable share because, unless agreed, the interest can be established only by "an expensive court action", to quote the Tánaiste. This is no reason to discriminate between financial and non-financial contributions. Moreover, since the Government has abandoned the idea of conferring a specific defined share on spouses as of right, by legislation a formula which reflects the contribution made by the spouse who stays at home, the homemaker, will necessarily be general in its terms and flexible in its nature. Such uncertainty is inevitable unless a rigid formula can be applied by statute. This is not a reason that a right should not be created.
The Tánaiste said also that the Judicial Separation and Family Law Reform Act, 1989 and the Government's family law Bills contain provisions in respect of property adjustment orders but, as is obvious from these measures, one is talking only about situations where a marriage has broken down. There are many circumstances in which a spouse could wish to establish an equity based on non-financial contributions to the family home other than cases of marriage breakdown. One such case is that of succession rights. In such a case, a spouse might wish to establish a share in the family home which was held in her husband's name before asserting her statutory right to a legal share in the remainder of her spouse's estate. Moreover there will be other cases where a spouse will wish to establish her equitable right in the family home to defeat competing claims, possibly by other members of the family who have made cash contributions to the family home, or to defeat subsequent claims by persons claiming equitable rights in the family home such as third parties not related to the spouse. In all these cases, the present law is wholly inadequate and makes no provision for the protection of the interest of the wife who stays at home.
The Tánaiste's statement that "this Bill would only be of relevance where the spouses could not agree on such ownership" is incorrect. A spouse might have died, a spouse might be disabled due to mental illness or whatever or there might be a dispute between one of the spouses and a third party. To suggest that any action to establish such a right would impair the relationship between the spouses in such cases is completely misconceived. Likewise, when examined the Tánaiste's criticism of section 4 falls apart completely. He distinguishes between a house which was purchased by a mortgage paid out of the earnings of one of the spouses during the marriage and a house which was given by way of gift or inheritance to one of the spouses either before or during the marriage. This is the precise distinction which the Supreme Court drew in rejecting the Matrimonial Home Bill. The Progressive Democrats Bill makes such a distinction in order to avoid the unconstitutionality which threw the Government's Bill into the constitutional wastepaper basket.
The Tánaiste also claimed that section 4 bristles with anomalies. When we look to what these anomalies might be we find that he considers it to be an anomaly that a right in equity might exist in relation to a home on which repayments were made but might not exist in respect of a home which one of the spouses had always owned outright. It is somewhat surprising that he cannot see that this distinction is of fundamental importance in ensuring the constitutionality of this measure, having regard to the Matrimonial Home Bill. He criticised section 4 because it was vague. The section is not vague but is of a general and flexible application.
One of the more hollow criticisms offered by the Tánaiste is that section 4 would allow the court to make any number of subsequent orders. That applies equally to financial contributions as there is nothing finite about the number of orders that the court could make under section 12 of the 1957 Act in respect of financial contributions. There is no good reason to cap the number of applications that could be made in respect of non-financial contributions in circumstances where there is no such cap on financial contributions. The idea that a spouse would return regularly to the court to get a top up is entirely foolish. The Tánaiste must know that equivalent rights in respect of financial contributions have never given rise to topping up litigation. People are not as foolish as he apparently takes them to be. He also criticised the Bill because it "placed a premium on marriages of a particular duration". In the context of non-financial contributions, nothing could be more sensible than to distinguish between a marriage of one week's duration and one of 20 years duration in determining whether an equitable share in the family home should exist as a result of a non-financial contribution. Is he seriously saying that a marriage of one week and the non-financial contribution of one week is equivalent to the non-financial contribution of 20, 25 or 30 years? It is hard to see that he was acting in good faith in framing this criticism.
The Tánaiste also attacked the proposal to cap non-financial contributions at 50 per cent and pointed out that there is no such cap on financial contributions. If the courts are to be given jurisdiction to create an equitable interest to reflect the non-financial contributions of spouses who stay at home it is surely more desirable that there should be some upper limit on such interests. Otherwise, the spouse making financial contributions might argue that the effect of the Bill was to deprive him or her of the benefit of his or her financial contributions. If the Tánaiste believes that a 50 per cent cap is unreasonable in this context, will he suggest the percentage he finds acceptable?
Claims that the creation of a right to establish equitable ownership based on non-financial contributions could give rise to conveyancing problems are hollow. A similar jurisdiction in respect of financial contributions has not complicated conveyancing matters, but on the Tánaiste's arguments it has an equal potential to do so. Coupled with the obligation to obtain a spouse's consent under the Family Home Protection Act, 1976, the provisions of the Progressive Democrats' Bill would not complicate conveyancing in the slightest. There is no basis for believing that the right to establish equitable ownership in respect of non-financial contributions is any more complex from a conveyancing point of view than a similar right in respect of financial contributions. A moment's reflection might have led the Tánaiste to see how empty was that criticism.
Moreover, his reference to the proposal in the Government's Family Law Bill to repeal and re-enact in extended form, section 12 of the Married Women's Status Act, 1957, is irrelevant. If one measure becomes law before the other, the appropriate amendment can be made in either. The entitlements of children of deceased spouses to recover moneys in respect of non-financial contributions by the child's parents could be dealt with either by leaving the provisions of this Bill as they are and allowing non-financial contributions to be dealt with in the same way as financial contributions, or alternatively, by providing that the provisions relating to non-financial contributions could only be actionable as the personal suit of the spouse affected. Either of the adjustments could easily be made if the Government's Family Law Bill becomes law.
The Tánaiste also criticised the Bill on the basis that the term "non-financial contribution" was not adequately defined. If he felt that the Bill would be improved by such a definition we would be glad to consider any such proposed definition. On reflection he might well consider that it is best not to attempt to define the term "non-financial contribution" as it is virtually impossible to lay down a formula in law which would be both just and effective.
Unlike the Tánaiste we have carefully considered each and every one of his criticisms. They are all without substance and were not seriously offered. If anything was written on the back of an envelope, as he suggested, it was his series of criticisms of this Bill.
We can appreciate, because the Government complained that it had inadequate notice of the Bill, that it did not have time to elaborate its criticism, but it is abundantly clear that every criticism offered by the Tánaiste is hollow, specious and insubstantial when examined. I would have expected, given the commitment in the Programme for Government to accept Bills of a non-contentious nature and the request of the Minister for Equality and Law Reform to my party colleague, Deputy Michael McDowell, who was involved in drafting this Bill that, at least, the Government would have given it a Second Reading and allowed it go to Committee. That would have shown that the Government was at least interested in teasing out the issues. I regret that a great deal of notice was not given, but my party was faced with the choice of abandoning the possibility of having a Bill such as this and taking the road of the divorce referendum or taking the opportunity now. We get an opportunity to put forward such a Bill only once every six parliamentary weeks when there are motions or every ten weeks when there are not. We would not have had an opportunity before the Dáil adjourns for the elections to put this measure again. I regret that there was not more time.
Given the resources at the disposal of the Government the lack of time was not a good enough reason for the Tánaiste, the Labour Party and the Government to adopt such an attitude. Unless they rethink their attitude to this proposal there is a serious danger that the upcoming divorce referendum will be roundly defeated. Many women and the organisations that represent them, which have been in contact with me, have expressed alarm at the attitude adopted by the Government to this measure.
My colleague, Deputy Keogh, drew a contrast between the attitude adopted by the Minister for Justice who is due to speak next and that adopted by the Tánaiste. I have always found the Minister for Justice to be both reasonable and fair; she will always accept good amendments from the Opposition and does not make an issue out of this. I admire her for that. It may be due to the fact that she is not paranoid about her own legislation and does not insist that she is always right. That is the approach we must adopt to legislation of this kind which is sensitive, urgent and important. It is legislation that all of us should like to see on the Statute Book as quickly as possible.