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Dáil Éireann debate -
Wednesday, 13 Apr 1994

Vol. 441 No. 2

Private Members' Business. - Family Law (Property) Bill, 1994: Second Stage (Resumed).

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

I compliment my colleague, Deputy Keogh, on the amount of time and thought she put into drafting this Bill and on the support she has gained for the Bill both in this House and outside. I also thank the Opposition speakers who, to date, have spoken warmly and cogently in support of the Bill. In anticipation, I thank Deputy Frances Fitzgerald who will be speaking in support of this Bill later this evening. The contributions of all the Members who spoke in favour of this Bill are much appreciated by the Progressive Democrats. The amount of research and preparation they put into their contributions stands to the credit of the Members who have subscribed to date and is a mark of the importance they attach to this Bill. It is particularly encouraging for women who will be the main beneficiaries of this Bill if passed into law.

I also acknowledge the support given to this Bill by the Council for the Status of Women. In a supportive statement sent to our party, the Chairwoman of the Council for the Status of Women, Ms Ann Taylor, said the Bill "was a laudable attempt to give statutory recognition to the unpaid work of women in the home". She goes on to say:

Following the Supreme Court decision which found the Government's Bill on joint ownership of the matrimonial home unconstitutional, women feel that their rights are not being adequately protected. This Bill is a valuable attempt to put this issue back on the agenda.

She goes on — and I am glad the Minister for Equality and Law Reform is here to take note—

The principle of this Bill is what matters and it is vital that the Government does not underestimate its importance to Irish women. Any attempt to recognise in law the contribution made by women in the home through their unpaid work must be welcomed and it is critical that this issue is dealt with before the Government's proposed referendum on divorce later this year.

There is a great deal of sound common sense in that statement. It is important that that be noted by the Government as it frames a response to this Bill and shapes up to voting on it in an hour and a half — I am still optimistic that the outcome will be positive.

This basic reform is long overdue. The objective of the Bill is simple, and its simplicity is its strength. It is simple without being simplistic. It was very clever and far seeing of Deputy Keogh to be able to frame a Bill that is set out in short and general terms and that lacks the complexity that often ends up with a Bill of this nature being in conflict with our Constitution. There would have been no need for this Bill if the Government's Matrimonial Homes Bill had been drafted with the same forethought as this Bill. After all the time discussing it, it is extremely disappointing that this Bill finished up being rejected. It is a severe setback to women's rights and to this Dáil. This suggests that the requisite amount of preparation and forethought was not put into it. It ought to be possible to frame legislation which, when referred to the Supreme Court, would not fall. If that had not happened the present Bill would not be before the House tonight.

What we are seeking is recognition in law of the non-financial contribution of a spouse towards the family home. What is the contribution of the spouse who does not make a financial contribution to the home? It is well known to most people, and certainly to women. It can be summed up simply as raising the children, the next generation on whom we pin our hopes, running the home and keeping house. However, to put it in those terms is a gross over-simplification. The tasks involved are those on which we, in the Progressive Democrats seek to put a value and to have recognised in law. The contribution made in the home is far more than raising a family. The spouse, in most cases the woman, who stays at home and makes the unpaid contribution to society and to the home is, among other things the person who does the shopping and the cooking. She is the source of consolation and encouragement to the whole family and, sometimes, to the whole community. She is the tutor who overseas the children's homework, the arbiter in childhood disputes, the imparter of a great deal of basic education, often the enforcer of the family's code of behaviour and of sanctions when there is a breach of that code, the monitor of the children's whereabouts, the promoter of the families religious or ethical standards, the purchaser of clothing, the counsellor, the willing listener, the career adviser, the manager of the children's social life and so on. Who could fail to put a value on that contribution to the well being of society and of our country? Who are the people who would benefit if this Bill were to be accepted by the Government? For the most part they are the women of Ireland.

In an extraordinarily patchy contribution Deputy Ferris, in a feeble attempt to denigrate this Bill, said: "only small categories of people would be involved". I would make two points in that regard. It has been quoted in the report of the Second Commission on the Status of Women that almost half of all women aged 15 and over do unpaid work in the home. It was also pointed out in that report that there has been no substantial increase in the number of women working outside the home in the last 20 years. It is, therefore, incorrect to say that we are talking about a small category of people. There is statistical evidence to prove that.

Even if we were talking about small categories of people, as legislators in this so-called Republic are we not concerned about small or minority groups? Surely the hallmark of a healthy society is the manner in which it provides for its minority groups. Women in this position have been overlooked for a long time. If that statement was quoted what signal would it give to minority groups in the North? What signal will go out from this House if legislation deemed by a particular Deputy to cater for a small group of people is rendered invalid and becomes the hallmark of the approach by Government to legislation? I am appalled that anybody should use that argument to denigrate this Bill.

The manner in which we deal with equality issues as opposed to the way we make speeches or put on paper our aspirations about such issues is a major concern. This legislation also relates to equality. The out-of-court settlement yesterday in respect of equality payments long overdue to married women — many in the category for whom we seek to make provision in this Bill — must make Ministers blush. It must be a matter of grave embarrassment, after years of fudging and denying those women their entitlements, that in total capitulation in an out-of-court settlement it was finally acknowledged the moneys claimed were due.

This morning I asked the Taoiseach if it was his intention to honour the settlement and to introduce a Supplementary Estimate to enable the long overdue payments to be made without delay. The women involved have shown incredible patience waiting so long, but their patience has run out. I appeal to the Minister for Equality and Law Reform to request Cabinet to introduce such an Estimate without delay so that the payments can be made. Payments should also be made to the many hundreds of women who were not included in yesterday's settlement, but who have an equally valid claim to payment. If that is done at least some kind of reparation will have been made for the long delay.

It is regrettable that this relatively new Government should, with a few exceptions, vote against Private Members' Bills, regardless of their merit. This Government claimed it would be an open one. To what is it open? Is it open to good ideas because at the heart of this Bill is a series of good ideas? If it is not open to good ideas and constructive creative thinking, from whatever source, it can hardly claim to be any better or different from the type of Governments the Labour Party denigrated with such energy when in Opposition. In that regard I pay tribute to the Minister for Justice, Deputy Geoghegan-Quinn, on whose part I detect a strong and exceptional degree of openness to taking on board good ideas from whatever source. She listens to people and takes good ideas on board. It will be disappointing if the Government votes down this Bill and refuses to acknowledge its excellence and urgency. This legislation would not have been introduced if the Government's Bill, which was so badly bungled, had not faltered at the hurdle of the Supreme Court.

This Bill is a direct response to the vacuum created by the collapse of that Bill. It is also a response to two factors that stand to be overlooked in the "retreat from Moscow" by the Government; its members are putting their heads in the sand and pretending the urgency we placed on that Bill is no longer a factor in society. The Bill is a response to the overwhelming need, in equity and natural justice, to give practical recognition in law to the unpaid work of the spouse in the home. It is also a clear response to the judgment handed down by the Chief Justice in the L. v. L. case. In summary, that judgment stressed the objective we seek is a desirable and social one. It was suggested by the Judiciary that legislation should be put in place to acknowledge its verdict and that the obligation was on the legislators to do so. It is regrettable that the House, in this as well as many other respects, lags behind court decisions. It is embarrassing that the Judiciary, as it has been forced to do from time to time, has had to draw attention to our failure to put in place the type of legislation that responds to modern conditions, hopes and aspirations. This is another case in point and it is disappointing it has not been dealt with.

The attitude of the Tánaiste and Minister for Foreign Affairs to this Bill was upsetting. When he was on the Opposition benches he was to the fore in seeking reforming legislation and in castigating the previous Government and its leaders day after day for their failure to bring our law up to date, to introduce essential reforms and to bring our law into line with that of other countries. He was particularly scathing about the failure of successive Fianna Fáil Governments in respect of social legislation. However, when he spoke in the House a week ago he was more conservative, obstructionist and destructive than any Member I heard speak in this House, and I have been here for seven years, two and a half months.

In the history of botany or whatever the relevant science is, it has seldom happened that the butterfly turned into a caterpillar with such speed. The great red winged admiral, the champion of reform, who stood on this side of the House suddenly turned out to be the green slithery caterpillar. It upsets me that that should happen. Although I can be as vociferous as any Deputy in Opposition, when a Government is doing well, whatever the label of that Government, I am the first to praise it. When a Minister is doing well I am one of the first TDs to admit it. As the Minister knows when the stillbirths Bill was introduced I was fulsome in my praise, but when the second in command in this Government, makes the kind of speech he made here a week ago, it makes the hair stand on my head. I am sorry that had to happen: and I am very sorry for the signals it sent to women. I predict that that speech will haunt him. I read his speech again this evening and it was only my sense of decency which prevented me from stitching quotations into my contribution and flinging them back at him.

And those from the equal status debate.

I quoted from that already. There is a number of other issues I could mention in this context. I call on the Minister for Equality and Law Reform to immediately allocate the £750,000 promised in the 1984 budget to marriage counselling services provided by voluntary and community associations. This is the Year of the Family. In this Bill we are seeking to strengthen the family and the family home. In that spirit I am calling on the Minister to ensure that the promised allocation is made. The amount of good work done in these marriage counselling services is known only to those who seek their services, but unquestionably it is one of the most valuable voluntary, social services here. The small amount of money promised to those agencies would yield a thousand-fold return. That is the key point I wanted to raise this evening.

I want to address my remarks particularly to the women Members of the House. There was an extraordinary surge of optimism and pride when, following the last general election, the electorate returned 20 women Members to this Dáil. At that time there was an expectation, and it still exists, that such a large number of women Deputies would make a difference, they would be better positioned to influence their parties, the course of events and legislation which would be promoted and supported and would get priority. The women Members of the Government parties have a great opportunity this evening to respond to that expectation to assure those who invested such optimism and confidence in them and to demonstrate to society, particularly married women in the home, many of whom spend their lives doing unpaid work, keeping the house, rearing children and making a home, that they recognise the validity and value of this Bill, that they recognise what it is aiming to do, that they see it as a small but crucially important step in the area of law reform, equal rights and making a good contribution to a healthy society. I invite the women Members of the Government, who I hope are listening to the debate in their offices, to show their mettle and judgment this evening and vote in support of this Bill. I now call on Ministers Geoghegan-Quinn, O'Rourke, Breathnach, Eithne Fitzgerald, and Burton and Deputies Shorthall, Coughlan, de Valera, Wallace and Moynihan-Cronin to demonstrate they are prepared to follow their better judgment by following Deputy Keogh, the Progressive Democrats and all the other Members of the Opposition who strongly and cogently supported the Bill, and other Members who because of time constriction did not have an opportunity to speak, through the lobbies this evening. Government Deputies should follow those Opposition Members and support the Bill. It may not be necessary for the women to identify themselves as a group. It may be that the Minister has had a change of heart and has been able to talk sense into the Leader of his party and the Leader and Members of the other party with whom they are in partnership. The Government might be prepared to demonstrate at 8.30 p.m. this evening that in some respects at least it is different. I continue to be optimistic until 8.30 p.m. and hope the Minister will be able to gather his troops to support the Bill and that it will not be necessary for the women to isolate themselves, but if that appeal fails, I am sure we can count on the support of the women in the Government parties.

Earlier in the debate in my absence, the Tánaiste and Minister for Foreign Affairs set out in detail the Government's position on this Bill. He explained why the Government cannot accept the Bill as being in any way an adequate or a practical response to the desire we all have to give further legislative recognition to the contribution made to the family home by spouses who work in the home and look after the family, and I fully agree with all his observations on the Bill before the House. I do not propose, therefore, to go over the same ground except in so far as it may be necessary to do so when dealing with some of the points made by those Deputies who have spoken in the meantime.

In general, Opposition speakers have followed the pattern set by Deputy Helen Keogh when she introduced the Bill, that is, they have combined praise for the Bill with criticism of the alleged failings of the Government in progressing the legislative and administrative measures that need to be in place before the divorce referendum is held.

I will deal first with the Bill itself. Deputy Browne suggested that it was being rejected simply because it was an Opposition Bill and that we were belittling Bills brought in by the Opposition. This Government's record in accepting Opposition measures will stand comparison with that of any previous Administration. For my part, I have no hang-up about accepting any Bill from whatever source if it constitutes a significant and practical improvement in the law. I assure the House that my opposition to the Bill is based solely on objective grounds.

I fully understand the motivation behind the promotion of this Bill. Every Deputy and every Senator accepted the principle of co-ownership enshrined in the Matrimonial Home Bill and in this they were reflecting the feelings of the great majority of their constituents. It was a huge disappointment to us all when the Supreme Court ruled that it was unconstitutional. I had hoped that it would be possible to produce an alternative measure that would give practical effect to that principle and that would give adequate recognition to the contribution to the family home made by a spouse working in the home in a harmonious marriage. I stress "harmonious" because that contribution is already fully recognised by the law when a marriage has broken down and property adjustments are made between the spouses in the course of separation proceedings. In the Family Law Bill, now before a Select Committee of the House, similar provision is being made for such contributions in the context of nullity proceedings and in cases where foreign decrees of divorce, nullity and legal separation are entitled to recognition in this State.

The Government gave the most careful consideration to the situation in the wake of the Supreme Court decision but, as the House will know, the terms of judgment were of a most far reaching character and no revision of the Bill's provisions could be regarded as free from the risk of a successful constitutional challenge. That conclusion was reached with regret but reality had to be faced. Indeed, the Government would have been severely criticised if another attempt to give both spouses a share in the ownership of the family home were to fail on constitutional grounds.

I now come to the Bill before the House. My fundamental ojection to it is that, as far as disputes between spouses are concerned, it does nothing for a spouse who has made a non-financial contribution to the home, unless she — it will usually be she — takes the other spouse to court, involving that spouse in substantial expense and giving rise to the uncertainty and disharmony, if not bitterness, that that can involve. I cannot see such a provision as being appropriate where partners are in a harmonious relationship. It would be more likely to create trouble between otherwise happy couples. It is shadow, not substance.

Deputy McDowell denied that the Bill would lead families into litigation, but it seems that is its main feature. The right it proposes to confer can only be asserted in an action between the spouses. If there is disagreement between them about the amount of the share that should go to a spouse on foot of non-financial contributions — undoubtedly there would be many such cases — the dispute would have to be resolved by the courts in an adversarial atmosphere. One spouse would see himself or herself as having lost and that would certainly affect the relationship.

I do not accept the argument that a provision for non-financial contributions to be recognised in litigation between spouses will have the result that spouses who make such contributions will be able to persuade their partners to convey formally a share in the ownership of the family home to them. If a spouse is unwilling to do this now, I doubt very much if the threat of court proceedings will make any difference. Indeed in that kind of relationship it could well make the spouse concerned more determined not to do so.

I am firmly of the view that any litigation between spouses on such a sensitive matter as the ownership of the family home would only arise where the relationship between the spouses had reached a very low point and where, therefore, the litigation envisaged by the Bill would be likely to exacerabate matters further. It could do more harm than good.

The Bill does not focus on the concerns of the vast majority of women within the home who do not wish to engage in litigation with their spouses but who do want some recognition of the contribution which they are making to this society and to this economy.

What it is saying is that, in the light of the Supreme Court decision on the Matrimonial Home Bill, this is as far as we can go and no further. I am not fully convinced of that and that is why I have not rushed to bring forward a substitute measure for the Matrimonial Home Bill which could only offer a very inadequate solution to the problem which now confronts us. I want to bring forward measures which will encourage joint ownership to the greatest extent possible and I am determined that a suitable package of proposals will be devised to this end. This Bill offers false hope to many spouses who may be deceived into thinking that if it were accepted by the Government they would have a share, as of right, in the family home. Clearly, this is not the case. This Government is, contrary to what Deputy Harney said recently, "really interested in giving homemakers a fairer and better deal". It is precisely for this reason that I hope to be able to bring forward proposals which are more substantial and practical than those now before this House, but this process will take time and care, elements which seem to have been lacking in the preparation of the Bill now before this House.

All parties in this House are at one in endeavouring to give practical, meaningful recognition to the contribution to the family home made by spouses who work in the home and who are living in harmony and whom we want to continue to live in harmony — that is, the great majority of our married couples. What deters many such couples from putting the family home into joint names is the formality and expense of doing so.

The Matrimonial Home Bill contained provisions for enabling the statutory joint ownership sought to be created by it to be registered in the Land Registry or Registry of Deeds without any formal conveyance and without payment of stamp duty or registration fees. I have under examination in my Department at present proposals for facilitating the conveyance of family homes from the owner-spouse to the joint ownership of both spouses. As many homes in sole ownership are mortgaged, consultations will be necessary with banks and other lending institutions and these consultations are being arranged.

Should these proposals be found to be feasible I will have the necessary legislation drafted as soon as possible. That would be a practical step to facilitate happily married couples in giving full and formal effect to the equality inherent in the marriage partnership and to the contribution made by the spouse who works in the home.

The present Bill, in contrast, deals only with a situation where spouses are in dispute about the ownership of the family home and where they are involved in litigation with all the expense, delay and uncertainty that would entail. I do not exaggerate when I refer to expense and uncertainty.

Unlike financial contributions, which give rise to an entitlement to a share in property, non-financial contributions are not capable of precise determination. Also, the Bill makes no practical contribution to the problem of couples who would wish to share ownership but are deterred by the legal formalities and expense involved. For these reasons, and those mentioned by the Tánaiste and Minister for Foreign Affairs in his speech, regretfully the Government cannot accept this Bill.

In her introduction Deputy Keogh dealt with the Bill with such brevity that I suspect she is somewhat uncomfortable with the topic.

The Minister is out of order.

Facts are facts.

Suspicions are not facts.

Rather than deal in any depth with the Bill she preferred to concentrate her efforts on the issue of divorce. Unfortunately, much of her contribution in that regard served more to confuse and misinform than to enlighten. For example, she suggested that "for many women contemplating divorce this Bill will come as an assurance as to their equal status". Such comment is entirely misconceived and wrong. Neither this Bill nor for that matter the Matrimonial Home Bill has any such bearing on divorce and I would have expected the Deputy to be only too well aware of that. The plain fact, which Deputy Keogh chooses to ignore, is that the question of the division of property, including the family home, is one for the courts to decide in accordance with the comprehensive property adjustment order provisions in the 1989 Judicial Separation Act. There are special provisions in the 1989 Act dealing with the family home which are repeated in the Family Law Bill and those provisions would form part of any divorce legislation. Neither this Private Members Bill nor the Matrimonial Home Bill would affect those provisions in any way. It is unfortunate that the Deputy should get it so wrong on that important point.

The Government's programme of family law reform is comprehensive, is proceeding steadily and will result in the holding of a divorce referendum. The Family Law Bill, 1994, has recently passed Second Stage in this House and is currently with the Select Committee on Legislation and Security. That Bill is a central part of the overall programme of family law reform. It extends and strengthens the powers of the court to deal with the financial consequences of marital breakdown, raises the age of marriage from 16 years to 18 years and requires persons to give three months' notice of intention to marry. It empowers the court to order social reports on spouses and children in family law proceedings and puts the role of welfare officers and social workers in this area on a statutory footing. The Bill provides for important changes in the jurisdiction of the courts so as to improve access to justice. Jurisdiction in nullity cases, heretofore confined to the High Court, is being given to the Circuit Court, which is also being empowered to deal with the questions of the recognition of foreign decrees of divorce, nullity and legal separation and the making of orders in support of parties to those cases. For the first time jurisdiction to deal with proceedings relating to the family home under the Family Home Protection Act, 1976, is being given to the District Court.

Access to justice is also being improved very significantly by development and expansion of the services provided by the Legal Aid Board. On taking office at the beginning of last year I did not ignore the lengthy waiting lists in law centres. I did something about them. I immediately secured extra funding and staff and in order to bring an early turn-around in waiting lists I initiated a pilot project involving private solicitors on family law cases in the District Courts.

I have secured unprecedented increases in funding for legal aid for 1994. At present there are 16 full-time law centres and by the end of this year we will have a total of 26 full-time centres located strategically throughout the country. All of these new centres will be in place and fully operational this year.

In addition to opening new law centres the staffing of the centres is being increased from 39 solicitors and 40 support staff to 75 solicitors and 103 support staff. These increases mean that in the short time since coming into office the Government will have more than doubled the number of staff employed by the Legal Aid Board. More than £1 million has been provided for mediation and counselling services this year and it is my intention to facilitate their continuing development.

The question of changes to the taxation and social welfare codes necessary in the context of the divorce referendum were also referred to by Deputy Keogh. As already indicated to the House, the Government has decided that property transfers between spouses whose marriages are dissolved following divorce or are annulled should be dealt with on the same basis for tax purposes as transfers between spouses. The Government has also decided 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 charged from married, separated or deserted to divorced or annulled. The provisions necessary to give effect to these measures in the context of divorce will be published for the information of the public in advance of the divorce referendum.

In the light of these and other measures, how can Deputy Keogh accuse me and the Government of being inactive and lacking in leadership on family law issues? Deputy Keogh made the extraordinary statement that in bringing her Bill before the House "the Progressive Democrats Party is conscious that it is oddly archaic that after 20 years of waiting for joint ownership in the family home to be secured for women it was bestowed to wives by the Matrimonial Home Bill in the mouth of a divorce referendum". Like, I think, most reasonable people, I regard that statement as odd when the party of which she is a member made promises in Government to bring forward legislation on joint ownership of the family home but failed to deliver on that promise. Within six months of coming to office the Government provided the necessary legislative proposals. That fact speaks for itself and demonstrates the priority which was given to the legislation. The Progressive Democrats clearly did not give the legislation any such priority when in Government. Neither for that matter did it give any significant priority to the development and expansion of the Legal Aid Board's services or to mediation and counselling services. I will let those facts also speak for themselves.

Deputy Keogh suggested that the Government ship was low in the water and that it was time to man the water pumps. I can assure the Deputy that the ship is well on course and will not be diverted by cheap political shots across its bow. I would suggest, however, that her party might invest in a water pump as it seems in need of being bailed out of this Bill if it is the best they can offer on issues concerning the family home.

It is entirely inappropriate and wrong for Deputy Harney to link rejection of this Bill with the success of a divorce referendum, and I must admit to being somewhat surprised since I know she has a strong personal commitment to change in this area. The cause of reform is not helped by such wild comments which may be seized upon and used by those who are not interested in seeing the referendum carried. In divorce proceedings, the arrangements for any division of property between the spouses, including the family home, will be determined along lines not dissimilar to those already applied by the courts under judicial separation proceedings, so that full regard will be had to the value of any non-financial contributions made through the work of a spouse in the family home.

I reiterate the Government's view that this Bill should be rejected as being not only impractical but also inadequate to deal with the problem it purports to address.

I am very disappointed that the Minister has not supported this Bill but rather has supported the comments made by the Tánaiste and Minister for Foreign Affairs. I am very surprised that he has not dissociated himself from the remarks and attitude taken by the Tánaiste to this Bill. I will refer to this point later.

The Tánaiste and Minister for Foreign Affairs should read the report issued by the Committee on Women's Rights on women's unwaged work. It is very clear from the tone of his speech that he has not read this report and does not understand the need to recognise the value of this unwaged work in law. It is clear from international research and thinking in this area that recognition of this work in law is the way forward. This Bill is a building block towards developing and recognising in our law the contribution of women through work in the home and through child care.

The Minister's speech is somewhat contradictory and, perhaps for the first time, he is now acknowledging the need to bring forward proposals while dismissing the Progressive Democrat Bill. The Minister states: "It is precisely for this reason that I would hope to be able to bring forward proposals which are more substantial and practical than those now before this House". Why can the Minister not accept this Bill as moving the issue forward rather than dismissing it completely as he has in his contribution this evening? This is the first time the Minister has acknowledged that the rejection by the Supreme Court of the Matrimonial Home Bill means that the issue must be examined again by Government and action taken. I remember the Taoiseach saying on more than one occasion that the matter was at rest and he gave no indication that the Government intended to bring forward proposals. I welcome the Minister's statement, therefore, that he intends to put forward proposals and I ask him what is the timescale for that.

I welcome the Bill and I congratulate Deputy Keogh and the Progressive Democrats on bringing it forward. The basic principle here is one that has generated much discussion in a whole range of arenas, including the Women's Rights Committee of the European Parliament, the First and Second Commission on the Status of Women and, obviously in the recent Matrimonial Home Bill which has been rejected by the Supreme Court. The Bill addresses broad questions about the role of women and unwaged work in the home, particularly in relation in home-making and childcare.

I welcome the discussion of these issues. The report of the Committee on Women's Rights of the European Parliament referred to the importance of this matter. Let us examine it from the point of view of economics. The report states that the economic contribution to the community's GDP of women who work full time in the home and the 9 million women who work with their husbands in varying professional activities, is estimated as between 30 and 75 per cent. The report goes on to state:

There is no doubt that work in the home is very important to the welfare of individuals and society. Calculations put the output of private households as between 30 and 50 per cent of GNP. These are figures on a scale which can no longer be ignored. Nonetheless, the complex area of work in the home is regarded as a set of marginal activities which must not get in the way and are, moreover, private.

I look forward to a change in that situation.

I am disappointed at the Tánaiste's very negative reaction to this Bill. His response was more than negative — it was belligerent, dismissive and contemptuous. We must ask why a Government with such an overwhelming majority would need to stamp so strongly and so venemously on a Private Members' Bill that is simply setting out to solve a problem that the Government is showing no signs of solving, despite the fact that it has set up a separate Ministry to ensure equality. The Government is safe in the short term, so why will it not give consideration to a Bill such as the one under discussion and examine its real possibilities as an instrument for equality?

It says much about the Government, and even more about the Tánaiste, that the response articulated by him in the House on 29 March was neither open nor innovative, but harshly hostile. There is scope for a much more positive approach to the thinking behind this Bill, and a more inclusive recognition by the Tánaiste of the principles involved in shaping it and the events that led to it being put forward. As Deputy Quill said so eloquently earlier this evening, this legislation would have been welcomed by many women in Ireland rather than the approach adopted by the Tánaiste to the principle outlined in it.

It is important to outline the background to this Bill and why it is important. Figures emerging recently show that 64 per cent of women are dependent and have no independent income. These figures are a clear reason why it is important for us in this House to take note of this Bill and help progress the issues which it addresses.

We have one of the lowest participation rates in the labour force by women in the European Union. The dependency rate of women is, therefore, very high and, of course, it is also linked to the role which women in Ireland have undertaken in relation to caring for the family and as carers generally. Many women working full time in the home would welcome the opportunity to take part in further education and training or, indeed, to become part of the paid workforce, but many women are not even recognised as unemployed because they do not qualify for inclusion on the live register.

Let us be blunt about it. We have discussed and read a great deal over the past two decades about the wonderful progress made by women and we should be proud of every individual and collective achievement in that regard. Six out of every ten women, however, are financially dependent on somebody else, usually their husband or partner. They may not be made to feel dependent, it may be a passing phase while they rear their children, but they are dependent and for many of them it was not a free choice happily opted for from a myriad of other choices. Real equality means choices and safeguards. Too frequently in the 1990s, mná na hÉireann have neither choices nor safeguards. That is why the principles outlined in this Bill are so serious and deserve a much better hearing than that given by the Tánaiste on 29 March and by the Minister this evening.

What we want — and what we should be committed to on all sides of this House —is that women should have real choice, for example, in relation to working full time in the home or working outside the home, either part-time or full time. Job creation for women is particularly critical given the feminization of poverty. The whole question of flexibility in the workplace is connected to this issue.

Another aspect of the Bill concerns the difficulty for women wishing to gain access to the law and to obtain justice. Our laws should reflect the real situations in which women find themselves such as those addressed in this Bill.

The Women's Rights Committee of the European Parliament stated that the activities involved in unpaid work can be divided into five categories. The first is unwaged professional work performed by women in the context of the profession/activity of their partner, husband, father, family etc. in, for example, agriculture, the retail trade and so on. The second is unwaged professional work by the wives of men in certain professional groups. It refers also to unwaged work of value to society such as the unpaid care and nursing of children, the sick, the handicapped and the elderly. Housework is another category and, of course, voluntary work.

In 1985 the United Nations General Assembly decided that statistics should be drawn up concerning women's unremunerated contributions to all aspects and sectors of development and that they should be calculated for economical and statical purposes and for the purposes of GNP. I asked the Taoiseach a question about that in the House some months ago and I was not re-assured by his answer. I urge that we consider that matter again.

A number of serious recommendations have been made by the committee of the European Parliament as well on taking this issue further. For example, the committee regrets that the law on matrimonial property is based primarily on property and earnings but, for assessment purposes, ignores the recognition of tasks performed by partners. That committee suggests that the law here should be brought up to date. It acknowledges that partners are entitled to decide not to divide the house work or to opt for an arrangement in which one undertakes the unwaged work and the other the remunerative work, but takes the view that this arrangement must be assessed as part of the property and earnings of the partners and may not serve as the basis for agreements concerning social security, for example, in a company.

The Tánaiste said this Bill had no implications not already covered in legislation. I disagree as there are a number of areas in which this legislation further extends the law, for instance circumstances in which a partner goes bankrupt. In the 1988 Bankruptcy Act Deputy Shatter ensured that wive's interests should be taken into account. The provisions of this Bill would further protect women's interests. It appears that the Labour Party in Government has very strong commitments to concepts but is not so hot when it comes to commitment to real people in real life circumstances.

Hear, hear.

When talking and thinking about concepts it is easy to be contemptuous about a Private Members' Bill such as this as being an intellectual exercise but the provisions of this Bill could make a difference. Let us take the example of a husband and wife married for, say, 30 years, the husband working outside the home full time, the wife working in the home. The husband dies and, when his will is probated, it is discovered that he has left his property to someone other than his wife who, knows that without her contribution to home-making, child care, budgeting, maintenance and so on it would not be half, one quarter or even one-eighth its value at the moment of his death and that she has made more than a one-third contribution, which is her current entitlement. If this Bill is welcomed, as it should be, by an open, responsive Government then that woman will have protection under the law, the protection to which she is entitled, if we claim to believe in equality at all.

The Tánaiste and the Minister, at the very least, should have suggested that the Government would consider looking at the issues raised by this Bill in an amendment to the Family Law Act, 1988 if they are rejecting the Progressive Democrats' Bill. It is extraordinary that it was never suggested that the original Bill was an essential legislative mechanism that should be put in place before the holding of a referendum on divorce. In fact it was made very clear by the Minister, on 7 July, 1993, when discussing Second Stage of the Matrimonial Home Bill, 1993 at column 1552 of the Official Report:

The Bill is one of the measures included in the major programme of family law reform to which the Government is committed and which will culminate in the referendum on divorce to be held next year. However, the fact that it is one of the milestones on the way to the attainment of that objective does not mean that it is not fully justified on its own merits.

Millstone or milestone?

So what; I brought it forward as quickly as I could?

The Minister ran away from it.

The Minister said that in this House. Many of the issues related to the adjustment of property have been dealt with under the Judicial Separation and Family Law Reform Act, 1989. It appears the Minister does not like to be reminded of that but he said so in this House. The provisions of this Bill are important because it brings thinking forward in the two areas I have mentioned and also in terms of managing the vacuum created by the Supreme Court decision. the Minister was allowing further doubt to develop — I agree with the points made by Deputy Keogh in this respect — among the public, particularly among women on these serious property issues. It smacks of déjà vu; we know what happened before on this issue. It is extremely important that it be well handled and that further law be written and passed by this House in this area. Many women are anxious that they do not have automatic joint ownership of the family home in the event of marriage breakdown and that it is left to the court to decide on property adjustment. Given the circumstances I have outlined, the economic dependency of Irish women, the difficulty of access to work and training, the lack of provision of child care — the second lowest within the European Union — this means that any effort that can be made to give women greater rights and recognise their non-financial contributions must take centre stage in our legislation. That is why I support this Bill here this evening.

It is clear from the Supreme Court decision that there are complex constitutional issues involved highlighting the need for constitutional change. I regret that on a number of occasions the Taoiseach said that constitutional change is not on the agenda. It is very clear that the Constitution does not meet the needs of this generation of women; a thirties Constitution does not reflect the needs of modern Ireland and certainly does not reflect the needs of Irish women. An equality clause is essential.

I welcome the more general discussion on this overall area of unwaged work, and that we are beginning to address it in law, which is important. I hope we can take steps to ensure it receives greater recognition. We should undertake a survey to determine standards that would permit a statistical study and assessment of the various aspects of unwaged work. It has been suggested that the member states of the European Union should establish a uniform method of assessing the economic and social value of work in the home and its contribution to GNP. We should do so and should also include the value of the various types of unpaid activities undertaken by women to the GNP and take up the many other recommendations of the European report to which I have referred already.

Another matter that clearly warrants examination is the promotion of individual social security entitlements and not derived rights. We must devise policies that encourage men to be more involved in home life and support women who want to work outside the home. It is very clear that we need greater flexibility between the public and private worlds, with men and women having real choices about their participation in one or the other. This Bill, if enacted would constitute a further step in that direction. I regret that the Minister has seen fit to reject it this evening.

I congratulate the Progressive Democrats and Deputy Helen Keogh on having introduced this Bill. As Deputy Frances Fitzgerald has said we are struggling to come to terms with the idea of equality in our laws and society generally. There is a very strong case for an equality clause being inserted in our Constitution.

I was very disappointed at the reaction of Government to this proposal which stands very much in the tradition of a number of measures put forward, some by the Minister, such as the Bill currently being considered in Committee, on attachment of earnings and on different aspects of equality. The arguments the Minister adduces to throw out what is a fundamental pillar of establishing equality are very threadbare. For example, in the course of his contribution he said:

Unlike financial contributions, which give rise to an entitlement to a share in property, non-financial contributions are not capable of precise determination.

If we are to cling to that type of argument we will never establish equality here because it has been the tradition, and is unlikely to change, that women are most likely to remain in the home and care for the children. If we decide not to attempt to get to grips with giving people equality in that position — because it is more imprecise and difficult to calculate — then we are stepping backwards, not taking the sort of innovative and novel approaches needed to our law if we are to achieve equality.

The Minister also argued in the course of his contribution:

I had hoped that it would be possible to produce an alternative measure that would give practical effect to that principle and that would give adequate recognition to the contribution to the family home made by a spouse working in the home in a harmonious marriage situation.

That was an alternative to the Matrimonial Home Bill, 1993 but it did not prove possible. Yet he dismisses this Bill on the grounds that its provisions suggested that this is as far as we could go and no further. The Progressive Democrats' proposal is at least a good deal better than the deafening silence emanating from the Government circles on this issue. If the Minister had better proposals to ensure it could go further, let him accept this Bill on Second Reading and then come forward with the further proposals for improvement.

He also suggests that this would put some new stress on harmonious marriage relationships, that the idea of giving recognition to the non-working spouse would be inappropriate and would be more likely to create trouble between otherwise happy couples; it is a shadow and not a substance. His basis for that argument is that it appears that such rights could only be ultimately established if they were not concealed by litigation. Most law provides for situations where the exercise of rights may ultimately have to be operated through the courts and by litigation. That is no defence for saying it is better to leave matters as they are when, on his admission, the situation is far from equal in relation to the family.

That is a great argument for a lawyer to be making; stay away from the law.

Harmonious inequality.

The Minister should have told them that in Tallaght. What about the fireplaces?

The Government is good at the rhetoric of equality but when it boils down to actually recognising cases for equality it is much more reticent. In the area of social welfare, under European law women are entitled to equality of treatment. It has been established that in regard to transitional and other payments to which women were entitled since 1986 they did not get a fair shake out. The Government's reaction to the pursuit by women of their rights under European law is to insist on litigation. So much for the harmony we want in a litigation free society. The Government is insisting that people go to litigation and will only concede the payments which women are rightfully due on the steps of the court when substantial costs have been incurred particularly by those most deprived and who have to depend on social welfare for long periods.

The Government must respond more creatively, must recognise that equality will not be achieved in a painless way and that sometimes decisions have to be taken. We are coming to a stage where those decisions are necessary. The fact that dependent relatives allowance is paid at less than two-thirds of the rate for the breadwinner is a carry over from the idea that the woman who remained at home and was the dependent spouse was in some way a second class citizen. That idea pervades throughout our social welfare system, our tax code and so on.

This Bill presented an opportunity for the Government to respond and we could have built on it. The Minister's arguments in rejecting the Bill come close to throwing out the basis of the Matrimonial Home Bill. In regard to litigation the Minister said:

One spouse would see himself or herself as having lost and that would certainly affect the relationship.

It is clear that under the Matrimonial Home Bill he envisaged situations where cases of dispute about behaviour would have to go to court to be resolved.

The basic point about the Matrimonial Home Bill was that it was an automatic vesting of an equal position.

That was not the case.

That was why it was struck down.

The Minister is not correct. He certainly provided for cases where a woman or a man would have to go to court to establish——

In accordance with an Order of the day I call Deputy Keogh to conclude.

I thank my colleagues for the excellent manner in which they contributed to the debate and acknowledging the necessity for such a Bill. I thank also Fine Gael and Democratic Left Members for their contributions which were well thought through and constructive. In contrast, with the exception of one female Member on the Government side, the contributions from that side ranged from being disjointed to uncommitted and ill-informed and, in the case of the Minister for Equality and Law Reform, contradictory.

My first task in summing up is to remind the House what the Bill is about. The Bill, sponsored by the Progressive Democrats and supported by all the Opposition parties, is about families, civil rights especially for women, change and how we value non-financial contributions to the creation of a home. Therefore, the Bill is about justice and equality. Given that it is about all those things and that both parties in the Government claim to care about families and civil rights, especially for women, change, justice and equality some Members on this side of the House, perhaps with the affliction of some chronic optimism, assumed that the Government contribution would be positive and significant. That in the main has not been the case.

In my case it may be an advantage to be a new arrival in this House. As a newcomer I have not lost contact with real life and I know what people are saying and thinking and I have contact with reality and with what women are saying. I recall the pre-election promises of the Labour Party and its commitment to civil rights. Deputy Michael D. Higgins made an international stance on the commitment to change, justice and equality while the Programme for a Partnership Government made a commitment to openness. We thought we would have something to look forward to in the debate on this Bill and I was making positive predictions. I thought the Labour Party, with its large number of women, would have at least one woman speaker on this issue who could see the benefits to women of this Bill or, at the very least, admit to the value of the principle behind the Bill. I thought that the Minister for Equality and Law Reform, Deputy Taylor, who is publicly committed to holding and winning a divorce referendum, as we are, would be only too delighted to have a solution to one of the precursor problems handed to him on a plate.

If the principle is so simple how is it that the Deputy's party did not introduce it when it was in Government?

We could not even persuade Fianna Fáil to have a divorce referendum.

Deputy Keogh to continue without interruption.

The problem is that the Minister was being handed something on a Progressive Democrats' plate. I thought the leader of the Labour Party with his personification of change and sensitivity and statesmanship would have a thoughtful or a thought provoking response, not old cliché ridden ritual attacks or whinges about lack of notice.

This is a very serious matter. Whether or not the people vote or whether they are directly affected by the issue this Bill seeks to address they are entitled to expect an attitude of civilised openness from a Government with such a huge majority. The Government was given an opportunity to show the courage of its majority. The singular failure of the Labour Party in particular, as part of this Government, to live up to its claims is sad. What is important is the contempt for democracy shown by the Government who tried to make the debate collapse and would not contribute on an issue of profound importance, especially to women. It is regrettable and contemptible. I could not believe that a member of the Government parties would sit on his hands and hope that the debate on the Bill would collapse.

Worse still, in his contribution, Deputy Ferris said the Bill would apply to a limited number of married women. Does he realise how many women are home makers, work in the home and feel that contribution should have a value? I was delighted Deputy Quill made such an eloquent speech and paid fulsome tribute to the work of women in the home. That is the type of debate which should be on record, not the rejection out of hand we heard from the few spokespersons on the opposite side of the House.

The Progressive Democrats are endeavouring to add to the corpus of legislation which the Minister for Justice said should be in the social interest and achieve social good. Those were the criteria she addressed. If, as she said, this Bill does not sufficiently meet those criteria I would be happy to debate a way to improve the Bill but surely its principle should be acknowledged? I will deal with the various objections raised by Ministers while acknowledging that at least the Minister for Justice upholds our good intentions.

Would this Bill 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 Bill cannot amount to disproportionate interference since all it allows is for a spouse 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. That was described as a desirable objective by the Chief Justice in the case of L. v L. supported by the judgment delivered on the recent Matrimonial Home Bill by the Supreme Court.

The Tánaiste said the Judicial Separation and Family Law Reform Act, 1989, and the Government's Family Law Bill contain provisions in respect of property adjustment orders. However, as is obvious from these measures, one is talking of cases where marriage has broken down. Many speakers made the point that there are circumstances in which a spouse could wish to establish a right in equity based on non-financial contributions to the family home other than in cases of marital breakdown. The statement that this Bill would only be relevant where spouses could not agree on ownership is incorrect. It may well be that a spouse had died, as Deputy Fitzgerald said, there may be a dispute between one of the spouses and a third party or a spouse may be suffering from disability due to mental illness and so on.

The Tánaiste criticised section 4 and said it was vague. The section is not vague, it has general application and is flexible. Deputy Harney dealt with other objections raised. We stated our case in a clear and objective manner in marked contrast to the remarks of the Tánaiste. I was very disappointed with the Minister's remarks as they were a rehash of what the Tánaiste said. His fundamental objection to the Bill is that in the case of disputes between spouses it does nothing for the spouse who made a non-financial contribution to the home unless she takes her spouse to court. We dealt with that specious argument.

I wonder if the Tánaiste who speaks well, has the legal training to improve his considerable talent and script writers for every sentence will deduct money from their pay packets because they stuffed his sentences full of contradictory clichés as well as legal inaccuracies. They ignored the wholehearted support of such bodies as the Council for the Status of Women who said that any attempt to recognise in law the contribution made by women in the home through their unpaid work must be welcomed. They also said it was crucial that this issue be dealt with before the Government's proposed referendum on divorce later this year. The Tánaiste said the Bill was half baked and had seen the light of day on the back of an envelope. Perhaps my domestic skills are not as well developed as the Tánaiste's but the next time he plans to bake something that starts out on the back of an envelope I would like to be there to watch.

An analysis of the touchy and negative contributions to this debate by the Tánaiste and Minister for Law Reform shows one thing clearly about the Tánaiste — he is defending his Minister's procrastination. He quoted the Minister as saying on 22 February that he was sympathetic to the idea of legislation which would place a value on work in the home by a spouse but that the matter required the most careful consideration. Translated it means it is on the back burner. The Tánaiste not only indicated that it was on the back burner, carefully watched by the Minister but that the matter "will continue to receive careful and sympathetic consideration by the Minister". What a relief that was to us all.

More than this Bill will receive.

We could all sleep easy in our beds but some women do not own the bed in which they sleep. However, the Tánaiste had reassuring words about this. He said 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. That sounds impressive but there is something odd about those words coming from that side of the House who are up to their neck in top level legal advice, the end result of which has been a series of legal cock-ups unprecedented in our history.

It is because we took legal advice that we cannot go ahead with this.

That is rubbish.

Why not get some women legal advisers?

The whole hierarchy of the Labour Party are men.

Procrastination is not a value and postponement is not a virtue. Neither is indicative of maturity or good Government. Neither entitles the Leader of the Labour Party to adopt a destructive attitude to this Bill exemplified by his generalised attack on it. This is a clear, functional, thoughtful, legislative solution to a Government problem. The irrational aspects of its rejection indicate a deep contempt for this House, the urgency of the problem and the real concerns of women. This Government has delayed allocating the necessary resources to marriage counselling services. It led 1,800 women to the steps of the High Court before agreeing to make social welfare payments which the European Court of Justice repeatedly held to be their entitlement. It has got it wrong on so many issues we should not be suprised to find that the role and contribution of the non-working spouse, which is not recognised by our system and is insufficiently protected by our laws, is not a matter for urgent attention.

This Bill is proposed by the Progressive Democrats in the interests of justice, equity and, above all, equality for women. I commend it to the House.

Question put.
The Dáil divided: Tá, 42; Níl, 69.

  • Allen, Bernard.
  • Barrett, Seán.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Connaughton, Paul.
  • Connor, John.
  • Crawford, Seymour.
  • Creed, Michael.
  • Crowley, Frank.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Avril.
  • Durkan, Bernard J.
  • Fitzgerald, Frances.
  • Foxe, Tom.
  • Harney, Mary.
  • Owen, Nora.
  • Quill, Máirín.
  • Shatter, Alan.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Keogh, Helen.
  • Lowry, Michael.
  • McCormack, Pádraic.
  • McDowell, Michael.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Nealon, Ted.
  • Noonan, Michael.
  • (Limerick East).
  • O'Donnell, Liz.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • Sheehan, P.J.
  • Timmins, Godfrey.


  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Aylward, Liam.
  • Bell, Michael.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Broughan, Tommy.
  • Browne, John (Wexford).
  • Byrne, Hugh.
  • Callely, Ivor.
  • Connolly, Ger.
  • Costello, Joe.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Dempsey, Noel.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ellis, John.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Geoghegan-Quinn, Máire.
  • Haughey, Seán.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • Moffatt, Tom.
  • Morley, P. J.
  • Moynihan, Donal.
  • Moynihan-Cronin, Breeda.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Rourke, Mary.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Power, Seán.
  • Quinn, Ruairí.
  • Reynolds, Albert.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Eamon.
  • Woods, Michael.
CLASS="CP">Tellers: Tá, Deputies O'Donnell and Keogh; Níl, Deputies Dempsey and Ferris.
Question declared lost.