I move that the Committee agree with the Seanad in amendment No. 1:
TITLE: In page 5, lines 7 to 9, "CASES WHERE SPOUSES BECOME JUDICIALLY SEPARATED UNDER THE LAW OF THE STATE" deleted and "OR AFTER PROCEEDINGS FOR JUDICIAL SEPARATION" substituted.
Family Law Bill, 1994: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
Question put and agreed to.
Amendments Nos. 2 and 3 form a composite proposal and I suggest they be taken together.
I move that the Committee agree with the Seanad in amendment No. 2:
Section 2: In page 6, line 22, "Acts," deleted and "Acts" substituted.
Will the Minister give a brief explanation of the effects of those amendments?
They are tidying up amendments and they have no effect on the principles of the Bill.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 3:
Section 2: In page 6, line 23. "parentis” deleted and “parentis,” substituted.
Question put and agreed to.
Amendments Nos. 4, 41 and 80 are related and I propose that they be taken together by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 4:
Section 2: In page 6, subsection (1), line 26, "16 years" deleted and "18 years" substituted.
The purpose of amendments Nos. 4, 41 and 80 is to increase from 16 years to under 18 years the upper age limit under which a parent has a legal liability to maintain his or her child. That new age limit will apply in cases where an application for maintenance of a child is made under the provisions of Part III of the Bill and it will apply also in cases where an application is made for maintenance under the Family Law (Maintenance of Spouses and Children) Act, 1976. The Bill provides that where a child is in full time education the upper age limit is under 23 years and there is no upper age limit where the child has a mental or physical disability such that it is not possible for a child to maintain himself or herself fully.
I welcome this amendment which has been introduced in response to amendments tabled by my party on an earlier Stage of the Bill. It is satisfactory that it should be included at this stage.
I also welcome this amendment. As the Minister said, it raises the age for dependants from 16 years to 18 years. It is designed to particularly benefit those not in full time education. People are now entering the workforce at an older age than heretofore. Therefore, it is important that genuine dependence on a parent pending entry to the workforce is recognised in the maintenance code. The amendment creates the legal obligation to maintain children up to the age of 18 years. However, I recognise and welcome the fact that the court will have discretion to refuse maintenance or grant benefit at a very low level to those between 16 and 18 years of age if, for example, they were on a FÁS scheme. I also welcome amendment No. 80 which raises the age from 21 years to 23 years. My party is in fundamental agreement with that change.
On a slightly jarring note, we received this list of amendments at 9.45 a.m. this morning. As the Minister is aware, while many of the amendments are technical, there are very substantial changes in the provisions relating to pensions which were quite complex in the first place. The whole concept of pension adjustment orders is very welcome — it was a lacuna in the law. However, it is rather complex and we had great difficulty in absorbing the exact details in the short time available to us. I recognise that this is not the first time this has happened but it is bad practice. Ministers should be cognisant of the fact that the Opposition has to have time to prepare in order to be able to respond realistically to proposals.
I accept the point made by Deputy O'Dea and sympathise with him. However, these amendments were only completed in the Seanad yesterday and the staff of my Department worked through the night to prepare the material for today. It is important that this Bill be completed and I am grateful to the Whips for agreeing to complete the Seanad amendments today. It seems like a large amount of material but the overwhelming bulk of it — perhaps 95 per cent — is purely technical, drafting, tidying up amendments.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 5:
Section 2: In page 6, lines 42 to 46 deleted.
This is a drafting amendment.
Question put and agreed to.
Acting Chairman
Amendments Nos. 7 and 37 are consequential on amendment No. 28. Amendment No. 6 is a related drafting amendment. Amendments Nos. 6, 7, 28 and 37 may be taken together by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No.6:
Section 2: In page 7, subsection (1), line 6, "of the scheme" deleted.
Amendment No. 28 is in substitution for section 11, regarding pension adjustment orders. The main principles of the section have, of course, been in the Bill since the Bill came before the House. I indicated in the course of the earlier Stages of the debate that I was concerned to ensure that the pension provisions in the Bill would be comprehensive and that the arrangements for their implementation would be as practical as possible.
The provisions, and the amendments to them, have been framed on the basis of extensive consultations between my Department, The Pensions Board, the Irish Association of Pension Funds and other pension experts. Those consultations have been ongoing for a considerable time since I initiated an examination in my Department of pensions in the context of marriage breakdown. I am glad to say that the pensions personnel associated with the work are fully satisfied with the revisions being made and have indicated that they are in the best possible shape from the point of view of the practicalities involved. I wish to put on record my deep appreciation of their endeavours and co-operation in this area. I have never doubted that the area is complex and the provisions of the Bill reflect that complexity. However, I have remained firmly of the view that pensions must be regarded as an asset just like any other asset, whether it be real property such as the family home, a farm or business property or whether it be personal property such as money in a bank account, shares in a company or the contents of a home.
I am delighted to inform the House that the consultations have resulted in a maximum degree of consensus on the best way to frame the legislative provisions on pensions so as to meet the support that may be necessary for dependent spouses and children in that area. I thank the Pensions Board, the IAPF and all others concerned for their helpful and valuable assistance in this complex matter.
In general the amended provisions are the same as in the original section in that they provide for the earmarking and splitting of pensions. However, the amended section provides additionally for new definitions and for situations where the member of the pension scheme dies before normal retirement age and ceases to be a member of the scheme and where the dependent spouse dies before benefits come into payment. It also provides that the pension can be split at the discretion of the spouse in whose favour the order is made.
There is no change of the main policy involved in the substitute section before the House. What is involved is a series of technical drafting amendments and I will outline briefly the provisions contained in the new section. Section 11 (1) contains the relevant definitions. Subsection (2) allows the court, following the grant of a decree of judicial separation and on application to it by either of the spouses concerned, to make a pension adjustment order designating a portion of the retirement benefit of a spouse who is a member of a pension scheme — that is, the member spouse — for payment to a dependent spouse and children. Such an order would have the effect of preserving for a dependent spouse an interest in the member spouse's pension benefit and the proportion of the pension benefit which would be paid to the dependent spouse and children will be determined by the court. Subsection (3) has a similar effect in so far as a contingent benefit under a scheme is concerned. A contingent benefit is a benefit payable under a pension scheme to a member spouse's dependants where the member dies before retirement.
Subsection (4) provides that, where the court makes a pension adjustment order, the spouse in whose favour the order is made may be entitled to the payment of the proportion of the benefit specified in the order to another scheme or arrangement so as to create an entitlement to an independent and separate benefit — that is, splitting of the pension benefit. Subsection (5) provides for the mechanism whereby the pension benefit can be split on application by the person in whose favour the pension adjustment order is made. Subsection (6) provides in so far as specific schemes are concerned that the trustees may at their own discretion transfer the proportion of the benefit payable to the dependent spouse to another scheme so as to create an entitlement to an independent and separate benefit for the dependent spouse.
Subsections (7), (8), (9) and (10) provide for special circumstances where a member spouse leaves a scheme or where a dependent spouse dies before the pension benefits come into payment. They provide that where the member spouse dies or leaves the scheme before the payment of any benefit is commenced the trustees must, within three months of the death of that spouse, transfer the proportion of the benefit payable to the dependent spouse to another scheme so as to create an entitlement to an independent and separate benefit for the dependent spouse. Where the member spouse ceases to be an active member of the scheme the trustees must inform the dependent spouse and the court concerned that the member spouse has ceased active membership. Where the dependent spouse dies before the payment of any benefit has commenced the trustees must pay to the personal representative of that spouse the proportion of the benefit ordered by the court to be paid to the dependent spouse.
The remaining subsections provide for notifications to the various parties to proceedings for technical arrangements relating to the making of guidelines under the Pensions Act, 1990 for the calculation of the value of pension benefits. The guidelines for the calculation of the value of pension benefits are to be drawn up by the Pensions Board and the board is commissioning pension consultants to undertake this work. In relation to notifications, notice of any application in relation to a pension adjustment order must be given to the trustees of the pension scheme and the court in making a pension adjustment order must have regard to any representations made by the trustees.
The section also provides that the court, in making a pension adjustment order, will give pension trustees such directions as it considers appropriate to the order. I trust the House will support these amendments, which are aimed at improving the operation of the pensions section.
It has been a bone of contention for some time in this and in other jurisdictions that there is an absence of legislation to enable the courts to adjust the rights of spouses in pension schemes on the breakdown of a marriage. I have made it my business to ensure that a mechanism is provided on the matter. It has taken considerable time and effort to provide that but the Houses will agree that it has been worthwhile. In separation proceedings, the court is already obliged, in making provisions for a spouse and children, to take the financial and other circumstances of the parties into account. The section on pensions will ensure that pensions can be taken into account by the court in the same way as any other asset. I commend the provisions to the House. Amendments Nos. 6, 7 and 37 are consequential on amendment No. 38.
I tried to understand all the Minister said. As has been said, a pension is an asset. It was undesirable that there was no provision for the division of this asset in the same way as other assets such as shares, property, etc. Now that we are coming to the end of the legislative process, which it was necessary to put in place before a divorce referendum, I am somewhat reassured — and this Bill was debated at length in this House and the other House — to hear the Minister say substantive changes were not proposed in relation to pension adjustment orders. As I understand it, this long and detailed amendment is simply to make technical changes, tighten up definitions and to provide for a number of matters which had not been envisaged, such as the death of people before they qualify for a pension, etc.
I note, in looking through the definition section, that all the definitions seem to be tied into the Pensions Act, 1990, which, as the Minister will be aware, deals only with private occupational pension schemes. What is the situation in relation to public sector pensions? How do the changes being introduced by the Minister today relate to public sector pensions? Do I understand the amendment correctly to mean that a pension which has been the subject of a pension adjustment order can only come into payment when the pension has actually accrued?
In relation to what the Minister said at the end of his explanation of the amendments about the pension scheme trustees dealing with payment to the personal representatives of a deceased person, is there provision for payment of a lump sum in such a case? Is there provision for the conversion of the pension into a lump sum when the personal representatives of a deceased person are being paid? Did I understand correctly what the Minister said in relation to that?
I thank Deputy O'Dea for his comments. Public sector schemes are included in the Bill. They and defined contribution schemes come under the category of defined benefit schemes. The Bill will cover the broad spectrum of pensions in the private and public sector.
Deputy O'Dea asked about the timing of payment. Payment only comes into play when the pension accrues. Payment cannot be brought forward because of a split. It would only come into play when the retirement age is reached or as the case may be. The lump sum would depend on the terms of the pension scheme. Some schemes would have provisions for lump sums in certain circumstances and others would not. People would be dependent on the terms and conditions of the applicable pension scheme.
I thank the Minister for his explanation. The Minister said a pension cannot be payable until it has accrued. Section 11 (3) deals with contingent benefits under a scheme of which one of the spouses is a member. The application must be made to the court within one year of the decree being granted. If the scheme member dies more than one year after the decree has been granted, would this preclude somebody from applying under the section?
We dealt with substantial amendments on Committee Stage and discussed a number of these points. I am confused about the point made by Deputy O'Dea with regard to one year after the making of an order. Will the Minister clarify this? I agree with Deputy O'Dea that there is an enormous difficulty and I recognise the amount of work put in by officials in the Department.
This Bill has been in the making for more than a year and a half. It is extremely difficult for Opposition spokes-persons, who do not have expertise in this area, to consider substantial amendments. We had a great deal of debate in the Dáil Select Committee on Legislation and Security. At this stage we are nit picking to an extent and trying to ensure that the Bill is the best available, but the Opposition parties do not have the necessary expertise. At a private meeting we were fully briefed but as amateurs we have to take on board what is presented to us. I do not find this the most satisfactory way of dealing with legislation. Notwithstanding the constraints on the Minister, we are presented with difficulties which we should not have to face.
A contingent benefit is a benefit which arises if the member spouse dies while in the relevant employment, before he or she has attained the normal pensionable age. There are obligations of notification to the interested parties when that happens. The beneficiary, who has become entitled by virtue of the court order to a split portion of the contingent benefit, can apply for payment for that spouse or other dependants as the case may be. The payment can then be made but the application must be made within 12 months, which seems reasonable because there is an obligation under which people must be given notification of what has happened. After they are given this, they have 12 months to make the application if this is what they want to do.
I agree with the Minister that 12 months to make the application is a reasonable time, but should it not be 12 months after the contingency, namely the death, has occurred? It seems to me that if the contingency does not occur within a 12 month period from the date of the decree, then the applicant is precluded from making the application either on their own behalf or on behalf of another dependant in the family.
The contingent benefit is defined as meaning a benefit payable under the scheme where the member spouse has died while in the relevant employment before attaining normal pensionable age. Subsection (3) states:
Where a decree of judicial separation has been granted, the court, if it so thinks fit, may, in relation to a contingent benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf not more than one year after the making of the order for the decree by either of the spouses or by a person on behalf of a dependent member of the family concerned, make an order providing for the payment, upon the death of the member spouse while in the relevant employment for the payment to either or both of them in such proportion as the court may determine.
They have 12 months to do it and that seems appropriate. That was discussed at some length with the pensions people who are happy that it will operate properly. They are the people who have to operate the scheme at the end of the day.
I realise that the pensions people must operate the scheme and I sympathise with their difficulties. However, we are trying to ensure that we pass the best possible legislation for people who will be the victims of marital breakdown, and to ensure that all the assets are available for distribution whether on a contingency basis or otherwise.
I do not know what the mechanism is for changing the provisions of this legislation but if it is possible to change it along the lines that I have suggested I would ask the Minister to consider that. I am not at all happy with what I interpret the meaning of this to be.
It has to be made within 12 months of the granting of the decree of judicial separation. That is what the 12 month period applies to.
What is the situation if the contingency occurs more than 12 months after the date of the decree?
The contingency benefit has to be read in the context of the definition in the Bill which is that it is a benefit payable under the scheme when the member spouse dies while in the relevant employment and before attaining normal pensionable age. In conjunction with that definition it ties in.
Question put and agreed to.
Acting Chairman
Seanad amendment No. 7 has already been discussed with Seanad amendment No. 6.
I move that the Committee agree with the Seanad in amendment No. 7:
Section 2: In page 7, subsection (1), lines 9 and 10 deleted and the following substituted:
" `pension adjustment order' means an order under section 11;".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 8:
Section 2: In page 7, line 42, "(other than section 6)" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 9:
Section 2: In page 8, line 1, before "scheme" where it firstly occurs, "pension" inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 10:
Section 2: In page 8, subsection (2), between lines 17 and 18, the following paragraph inserted:
"(e) a reference to an application to a court by a person on behalf of a dependent member of the family includes a reference to such an application by such a member and a reference to a payment, the securing of a payment, or the assignment of an interest, to a person for the benefit of a dependent member of the family includes a reference to a payment, the securing of a payment, or the assignment of an interest, to such a member,".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 11:
Section 3: In page 8, lines 35 to 41 deleted and the following substituted:
"(2) Notwithstanding subsection (1)—
(a) orders made before the commencement of Part II under a provision of the Act of 1989 repealed by subsection (1) shall continue in force and be treated after such commencement as if made under the corresponding provision of this Act,
(b) (i) orders or decrees made or exceptions granted under section 1 of the Legitimacy Declaration Act (Ireland), 1886, section 1 of the Marriages Act, 1972, or section 12 of the Married Women's Status Act, 1957, before such commencement shall continue in force after such commencement,
(ii) proceedings instituted under any of those sections before such commencement may be continued and determined after such commencement, and
(iii) orders or decrees made or exceptions granted after such commencement in those proceedings shall be in force,
(c) proceedings instituted before such commencement under a provision of the Act of 1989 repealed by subsection (1) may be continued and determined as if instituted under the corresponding provision of this Act and orders made in those proceedings after such commencement shall be in force and be treated as if made under the corresponding provision of this Act.".
This is a technical amendment. The main effect is to make more clear the status of certain orders or decrees made under the Legitimacy Declaration (Ireland) Act, 1868, the Marriages Act, 1972, the Married Women's Status Act, 1957, or the Judicial Separation and Family Law Reform Act, 1989. It clarifies the position that orders already in existence under any of those Acts continue, notwithstanding the repeal effected by this Bill.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 12:
Section 5: In page 9, before section 5, but in Part II, the following new section inserted:
"5.— Each of the following sections, that is to say, sections 5 to 13, applies to a case in which proceedings for the grant of a decree of judicial separation are instituted after the commencement of that section.".
The purpose of this amendment is to make clear that the various orders the court will be empowered to make under Part II will apply only to applications initiated after the Act comes into force. This provision is standard in legislation of this kind where the courts are given new powers.
Question put and agreed to.
Acting Chairman
Seanad amendments Nos. 13, 16, 20 and 22 are related and Seanad amendments Nos. 23 to 27, inclusive, are consequential on Seanad amendment No. 22. Seanad amendments Nos. 13, 16, 20 and 22 to 27, inclusive, may be discussed together.
I move that the Committee agree with the Seanad in amendment No. 13:
Section 7: In page 9, subsection (1), lines 28 to 31 deleted and the following substituted:
"7.— (1) On granting a decree of judicial separation, the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders, that is to say:".
These are technical drafting amendments.
This allows a person, other than one of the spouses, to apply to the court for a periodical lump sum order on behalf of the dependent spouse or child. It allows someone else to step in if for some reason the spouse is incapable of doing so.
Yes.
I welcome this amendment because it fills a gap in the law. In most cases the spouse will be in a position to do this. However, there could be some cases where, if a person is hooked on drugs for instance, it would be necessary for someone else to step in either on his or her behalf or on behalf of the dependent children. I am glad the Minister has not restricted the category of people who can make the application. At one stage there was a proposal to restrict it to family members or certain categories of relatives. I welcome this progressive measure.
It clarifies that the application can be made by either of the spouses concerned or a person on behalf of a dependent member of the family.
Question put and agreed to.
Acting Chairman
Seanad amendment No. 14 and Seanad amendment No. 17 are related and both may be discussed together.
I move that the Committee agree with the Seanad in amendment No. 14:
Section 7: In page 10, line 44, ", or a property adjustment order," deleted.
This is a drafting amendment involving the deletion of the words "or a property adjustment order" in section 7 (5) (b). That subsection provides that if either spouse happens to remarry after obtaining a decree of judicial separation the court shall not, by reference to that decree, make a periodical payments order or a property adjustment order. Circumstances of remarrying could arise where one or other of the spouses obtains a foreign decree of divorce that is entitled to recognition in the State. Section 7 contains comprehensive provisions for periodical payment orders and the reference to property adjustment orders in section 7 is out of context.
Seanad amendment No. 17 is a consequenial amendment in that it transfers the effect. of subsection (5) (b) in relation to property adjustment orders to section 8, which contains comprehensive provisions on those orders.
Question put and agreed to.
Acting Chairman
Seanad amendment No. 15 is a drafting amendment.
I move that the Committee agree with the Seanad in amendment No. 15:
Section 7: In page 11, line 6, "the said person" deleted and "that spouse" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 16:
Section 8: In page 11, subsection (1), lines 17 to 21 deleted and the following substituted:
"8.—(1) On granting a decree of judicial separation, the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make a property adjustment order, that is to say, an order providing for one or more of the following matters:".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 17:
Section 8: In page 11, between lines 41 and 42, the following inserted:
"(3) If, after the grant of a decree of judicial separation, either of the spouses concerned remarries, the court shall not, by reference to that decree, make a property adjustment order in favour of that spouse.".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 18:
Section 8: In page 11, after line 47, the following new subsections inserted:
"(4) Where—
(a) a person is directed by an order under this section to execute a deed or other instrument in relation to land, and
(b) the person refuses or neglects to comply with the direction or, for any other reason, the court considers it necessary to do so,
the court may order another person to execute the deed or instrument in the name of the first-mentioned person; and a deed or other instrument executed by a person in the name of another person pursuant to an order under this subsection shall be as valid as if it had been executed by that other person.
(5) Any costs incurred in complying with a property adjustment order shall be borne, as the court may determine, by either of the spouses concerned, or by both of them in such proportions as the court may determine, and shall be so borne in such manner as the court may determine.".
This amendment provides that where a property adjustment order is made by the court and a person is directed to execute a deed or instrument in relation to land which is the subject of the order and that person refuses or neglects to comply with the direction, the court, where it considers it necessary to do so, may order another person to execute the deed or instrument. The amendment also makes clear that any costs incurred in complying with a property adjustment order will be borne, as the court may determine, by either of the spouses concerned or by both of them. The existing law under the Judicial Separation and Family Law Reform Act, 1989, is silent in these two areas and Deputies will recognise the need for expressed provisions to deal with these two important matters.
I am glad to see these amendments to the Bill. While not exactly the same, they are pertinent to another provision of the Bill relating to disclosure which I would like the opportunity to discuss. There is a difficulty on how this will be implemented and the Minister might give us some information on that later. There is also a difficulty in relation to sanctions in the context of disclosure and so on. It may not be appropriate to mention it at this stage but it is something about which many people are concerned and it does present difficulties.
I welcome the Minister's amendment which deals with another lacuna in the law. The amendment states that the court may order another person to execute the deed or instrument in the name of the first mentioned person. What does the Minister have in mind? Can it be anybody or must it be an official of the court? Will there be special rules of court to enable the operation of the section and provide, as Deputy Keogh mentioned, for sanctions and so on? This provision seems to be confined to land and real property. Would it not be advisable to extend it to other items such as shares? What will happen if somebody fails to complete a share transfer certificate? Should it not follow logically that we should have a similar provision for that type of situation?
Any person can be designated by the court to sign in the name of the other person. However, I envisage it would be the county registrar of the court who would be deputed to do so. This arose from my practical experience in dealing with these cases. There are cases where the court orders one spouse to transfer a half share in the property, or indeed the entire home, to the other spouse. If the court order is not complied with, that is, the deed is prepared but the person simply does not sign it, there are certain procedures for dealing with that involving contempt of court proceedings, notices of motion and other legal processes. This has been devised arising from practicalities which I experienced in practice. The court simply deputes another person to sign on the persons behalf and in their name and that is the end of it. It is very simple and effective and little or no cost is involved. It is a simple, practical procedure.
The difficulty really only arises in connection with land. Theoretically it could arise in connection with shares but the same degree of urgency or pressure would not arise. The pressure usually arises in connection with the family home or land. It is not envisaged to extend the provision beyond land at this stage.
I thank the Minister for his explanation and I welcome what he said. I do not agree that the same degree of urgency would not arise in relation to something like shares. The value of shares can fluctuate quite suddenly and dramatically. It is something we will have to look at in the future. I accept the amendment which is a vast improvement in the law in so far as it goes. This is thanks to the Minister's personal experience in this area.
It shows how practical experience can be a help.
I accept that. I believe that the Department should consider extending this to certain items of personal property where somebody may have to sign over shares, for example. We shall wait to see how it operates in relation to real property.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 19:
Section 8: In page 11, after line 47, the following inserted:
"(4) This section shall not apply in relation to a family home in which, following the grant of a decree of judicial separation either of the spouses concerned, having remarried, ordinarily resides with his or her spouse.".
The purpose of this amendment is to protect a family home from becoming the subject of a property adjustment order in cases where, after obtaining a decree of judicial separation, a spouse may happen to remarry. That circumstance could arise where one of the parties to a separation may subsequently obtain a foreign divorce which is entitled to be recognised in the State and that party remarries. The amendment would have the effect of precluding a family home, which is resided in by the parties to that marriage, from being the subject of a property adjustment order.
I agree to the amendment. However, may I gently remind the Minister about legislation in relation to joint ownership of the family home. Perhaps that is something which might not be allowed to escape the Minister's notice during the coming months.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 20:
Section 9: In page 12, subsection (1), lines 1 to 4 deleted and the following substituted:
"9.—(1) On granting a decree of judicial separation, the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be, the spouse concerned, make one or more of the following orders:".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 21:
Section 9: In page 12, line 31, "a dependent spouse and" deleted and "a spouse who is wholly or mainly dependent on the other spouse and for" substituted.
This is a technical amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 22:
Section 10: In page 12, subsection (1), lines 33 to 46 deleted and the following substituted:
"10.—(1) Subject to the provisions of this section, on granting a decree of judicial separation or at any time thereafter, the court, on application to it in that behalf by either of the spouses concerned or by a person on behalf of a dependent member of the family, may, during the lifetime of the other spouse or, as the case may be the spouse concerned, if it considers—
(a) that the financial security of the spouse making the application (the `applicant') or the dependent member of the family (the `member') can be provided for either wholly or in part by so doing, or
(b) that the forfeiture, by reason of the decree of judicial separation, by the applicant or the dependent, as the case may be, of the opportunity or possibility of acquiring a benefit (for example, a benefit under a pension scheme) can be compensated for wholly or in part by so doing,
make a financial compensation order, that is to say, an order requiring either or both of the spouses to do one or more of the following:".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 23:
Section 10: In page 13, line 2, "a dependent member of the family" deleted and "the member" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 24:
Section 10: In page 13, lines 4 and 5, "the other spouse" deleted and "either or both of the spouses" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 25:
Section 10: In page 13, lines 5 and 6, "that other spouse" deleted and "either" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 26:
Section 10: In page 13, line 8, "a dependent member of the family" deleted and "the member" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 27:
Section 10: In page 13, line 11, "that other spouse" deleted and "either" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 28:
Section 11: In page 13, lines 35 to 51, in page 14, lines 1 to 51, in page 15, lines 1 to 48 and in page 16, lines 1 to 31, section 11 deleted and the following new section inserted:
"11.—(1) In this section, save where the context otherwise requires—
`the Act of 1990' means the Pensions Act, 1990;
`active member', in relation to a scheme, means a member of the scheme who is in reckonable service;
`actuarial value' means the equivalent cash value of a benefit (including, where appropriate, provision for any revaluation of such benefit) under a scheme calculated by reference to appropriate financial assumptions and making due allowance for the probability of survival to normal pensionable age and thereafter in accordance with normal life expectancy on the assumption that the member concerned of the scheme, at the effective date of calculation, is in a normal state of health having regard to his or her age;
`approved arrangement', in relation to the trustees of a scheme, means an arrangement whereby the trustees, on behalf of the person for whom the arrangement is made, effect policies or contracts of insurance that are approved of by the Revenue Commissioners with, and make the appropriate payments under the policies or contracts to, one or more undertakings;
`contingent benefit' means a benefit payable under a scheme, other than a payment under subsection (7) to or for one or more of the following, that is to say, the widow or the widower and any dependants of the member spouse concerned and the personal representative of the member spouse, if the member spouse dies while in relevant employment and before attaining any normal pensionable age provided for under the rules of the scheme;
`defined contribution scheme' means a scheme which, under its rules, provides retirement benefit, the rate or amount of which is in total directly determined by the amount of the contributions paid by or in respect of the member of the scheme concerned and includes a scheme the contributions under which are used, directly or indirectly, to provide—
(a) contingent benefit, and
(b) retirement benefit the rate or amount of which is in total directly determined by the part of the contributions aforesaid that is used for the provision of the retirement benefit;
`designated benefit', in relation to a pension adjustment order, means an amount determined by the trustees of the scheme concerned, in accordance with relevant guidelines, and by reference to the period and the percentage of the retirement benefit specified in the order concerned under subsection (2);
`member spouse', in relation to a scheme, means a spouse who is a member of the scheme;
`normal pensionable age' means the earliest age at which a member of a scheme is entitled to receive benefits under the rules of the scheme on retirement from relevant employment, disregarding any such rules providing for early retirement on grounds of ill health or otherwise;
`occupational pension scheme' has the meaning assigned to it by section 2 (1) of the Act of 1990;
`reckonable service' means service in relevant employment during membership of any scheme;
`relevant guidelines' means any relevant guidelines for the time being in force under section 10 (1) (c) of the Act of 1990;
`relevant employment', in relation to a scheme, means any employment (or any period treated as employment) or any period of self employment to which a scheme applies;
`retirement benefit', in relation to a scheme, means all benefits (other than contingent benefits) payable under the scheme;
`rules', in relation to a scheme, means the provisions of the scheme, by whatever name called;
`scheme' means a pension scheme;
`transfer amount' shall be construed in accordance with subsection (4);
`undertaking' has the meaning assigned to it by the Insurance Act, 1989.
(2) Subject to the provisions of this section, where a decree of judicial separation (`the decree') has been granted, the court, if it so thinks fit, may, in relation to retirement benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf at the time of the making of the order for the decree or at any time thereafter during the lifetime of the member spouse by either of the spouses or by a person on behalf of a dependent member of the family, make an order providing for the payment, in accordance with the provisions of this section, to either of the following, as the court may determine, that is to say:
(a) the other spouse and, in the case of the death of that spouse, his or her personal representative, and
(b) such person as may be specified in the order for the benefit of a person who is, and for so long only as he or she remains, a dependent member of the family,
of a benefit consisting, either, as the court may determine, of the whole, or such part as the court considers appropriate, of that part of the retirement benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme and has accrued at the time of the making of the order for the decree and, for the purpose of determining the benefit, the order shall specify—
(i) the period of reckonable service of the member spouse prior to the granting of the decree to be taken into account, and
(ii) the percentage of the retirement benefit accrued during that period to be paid to the person referred to in paragraph (a) or (b), as the case may be.
(3) Subject to the provisions of this section, where a decree of judicial separation (`the decree') has been granted, the court, if it so thinks fit, may, in relation to a contingent benefit under a scheme of which one of the spouses concerned is a member, on application to it in that behalf not more than one year after the making of the order for the decree by either of the spouses or by a person on behalf of a dependant member of the family concerned, make an order providing for the payment, upon the death of the member spouse, to either of the following, or to both of them in such proportions as the court may determine, that is to say:
(a) the other spouse, and
(b) such person as may be specified in the order for the benefit of a dependent member of the family,
of, either, as the court may determine, the whole, or such part (expressed as a percentage) as the court considers appropriate, of that part of any contingent benefit that is payable (or which, but for the making of the order for the decree, would have been payable) under the scheme.
(4) Where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the spouse in whose favour the order is made shall be entitled to the application in accordance with subsection (5) of an amount of money from the scheme concerned (in this section referred to as a `transfer amount') equal to the value of the designated benefit, such amount being determined by the trustees of the scheme in accordance with relevant guidelines.
(5) Subject to subsection (17), where the court makes an order under subsection (2) in favour of a spouse and payment of the designated benefit concerned has not commenced, the trustees of the scheme concerned shall, for the purpose of giving effect to the order—
(a) on application to them in that behalf at the time of the making of the order or at any time thereafter by the spouse in whose favour the order was made (`the spouse'), and
(b) on the furnishing to them by the spouse of such information as they may reasonably require,
apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines either—
(i) if the trustees and the spouse so agree, in providing a benefit for or in respect of the spouse under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or
(ii) in making a payment either to—
(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or
(II) in the discharge of any payment falling to be made by the trustees under any such other approved arrangement,
as may be determined by the spouse.
(6) Subject to subsection (17), where the court makes an order under subsection (2) in relation to a defined contribution scheme and an application has not been brought under subsection (5), the trustees of the scheme may, for the purpose of giving effect to the order, if they so think fit, apply in accordance with relevant guidelines the transfer amount calculated in accordance with those guidelines in making a payment to—
(a) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or
(b) in the discharge of any payment falling to be made by the trustees under such other approved arrangement,
as may be determined by the trustees.
(7) Subject to subsection (17), where—
(a) the court makes an order under subsection (2), and
(b) the member spouse concerned dies before payment of the designated benefit concerned has commenced,
the trustees shall, for the purpose of giving effect to the order, within 3 months of the death of the member spouse, provide for the payment to the person in whose favour the order is made of an amount that is equal to the transfer amount calculated in accordance with relevant guidelines.
(8) Subject to subsection (17), where—
(a) the court makes an order under subsection (2), and
(b) the member spouse concerned ceases to be a member of the scheme otherwise than on death,
the trustees may, for the purpose of giving effect to the order, if they so think fit, apply, in accordance with relevant guidelines, the transfer amount calculated in accordance with those guidelines either, as the trustees may determine—
(i) if the trustees and the person in whose favour the order is made (`the person') so agree, in providing a benefit for or in respect of the person under the scheme aforesaid that is of the same actuarial value as the transfer amount concerned, or
(ii) in making a payment, either to—
(I) such other occupational pension scheme, being a scheme the trustees of which agree to accept the payment, or
(II) in the discharge of any payment falling to be made under such other approved arrangement,
as may be determined by the trustees.
(9) Subject to subsection (17), where—
(a) the court makes an order under subsection (2) in favour of a spouse (`the spouse'), and
(b) the spouse dies before payment of the designated benefit has commenced,
the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the transfer amount calculated in accordance with relevant guidelines.
(10) Subject to subsection (17), where—
(a) the court makes an order under subsection (2) in favour of a spouse (`the spouse'), and
(b) the spouse dies after payment of the designated benefit has commenced,
the trustees shall, within 3 months of the death of the spouse, provide for the payment to the personal representative of the spouse of an amount equal to the actuarial value, calculated in accordance with relevant guidelines, of the part of the designated benefit which, but for the death of the spouse, would have been payable to the spouse during the lifetime of the member spouse.
(11) Where—
(a) the court makes an order under subsection (2) for the benefit of a dependent member of the family (`the person'), and
(b) the person dies before payment of the designated benefit has commenced,
the order shall cease to have effect in so far as it relates to that person.
(12) Where—
(a) the court makes an order under subsection (2) or (3) in relation to an occupational pension scheme, and
(b) the trustees of the scheme concerned have not applied the transfer amount concerned in accordance with subsection (5), (6), (7), (8) or (9) and
(c) after the making of the order, the member spouse ceases to be an active member of the scheme,
the trustees shall, within 12 months of the cessation, notify the registrar or clerk of the court concerned and the other spouse of the cessation.
(13) Where the trustees of a scheme apply a transfer amount under subsection (6) or (8), they shall notify the spouse (not being the spouse who is the member spouse) or other person concerned and the registrar or clerk of the court concerned of the application and shall give to that spouse or other person concerned particulars of the scheme or undertaking concerned and of the transfer amount.
(14) Where the court makes an order under subsection (2) or (3) for the payment of a designated benefit or a contingent benefit, as the case may be, the benefit shall be payable or the transfer amount concerned applied out of the resources of the scheme concerned and, unless otherwise provided for in the order or relevant guidelines, shall be payable in accordance with the rules of the scheme or, as the case may be, applied in accordance with relevant guidelines.
(15) Where the court makes an order under subsection (2), the amount of the retirement benefit payable, in accordance with the rules of the scheme concerned to, or to or in respect of, the member spouse shall be reduced by the amount of the designated benefit payable pursuant to the order.
(16) (a) Where the court makes an order under subsection (3), the amount of the contingent benefit payable, in accordance with the rules of the scheme concerned in respect of the member spouse shall be reduced by an amount equal to the contingent benefit payable pursuant to the order.
(b) Where the court makes an order under subsection (2) and the member spouse concerned dies before payment of the designated benefit concerned has commenced, the amount of the contingent benefit payable in respect of the member spouse in accordance with the rules of the scheme concerned shall be reduced by the amount of the payment made under subsection (7).
(17) Where, pursuant to an order under subsection (2), the trustees of a scheme make a payment or apply a transfer amount under subsections (5), (6), (7), (8), (9) or (10), they shall be discharged from any obligation to make any further payment or apply any transfer amount under any other of those subsections in respect of the benefit payable pursuant to the order.
(18) A person who makes an application under subsection (2) or (3) or an application for an order under section 17 (2) in relation to an order under subsection (2) shall give notice thereof to the trustees of the scheme concerned and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by any person to whom notice of the application has been given under this section or section 40.
(19) An order under subsection (3), shall cease to have effect on the death or remarriage of the person in whose favour it was made in so far as it relates to that person.
(20) The court may, in a pension adjustment order or by order made under this subsection after the making of a pension adjustment order, give to the trustees of the scheme concerned such directions as it considers appropriate for the purposes of the pension adjustment order including directions compliance with which occasions non-compliance with the rules of the scheme concerned or the Act of 1990; and a trustee of a scheme shall not be liable in any court or other tribunal for any loss or damage caused by his or her non-compliance with the rules of the scheme or with the Act of 1990 if the non-compliance was occasioned by his or her compliance with a direction of the court under this section.
(21) The registrar or clerk of the court concerned shall cause a copy of a pension adjustment order to be served on the trustees of the scheme concerned.
(22) (a) Any costs incurred by the trustees of a scheme under subsection (18) or in complying with a pension adjustment order or a direction under subsection (20) or (25) shall be borne, as the court may determine, by the member spouse or by the other person concerned or by both of them in such proportion as the court may determine and, in the absence of such determination, those costs shall be borne by them equally.
(b) Where a person fails to pay an amount in accordance with paragraph (a) to the trustees of the scheme concerned, the court may, on application to it in that behalf by the trustees, order that the amount be deducted from the amount of any benefit payable to the person under the scheme or pursuant to an order under subsection (2) or (3) and be paid to the trustees.
(23) (a) The court shall not make a pension adjustment order if the spouse who applies for the order has remarried.
(b) The court may make a pension adjustment order in addition to or in substitution in whole or in part for an order or orders under section 7, 8, 9 or 10 and, in deciding whether or not to make a pension adjustment order, the court shall have regard to the question whether adequate and reasonable financial provision exists or can be made for the spouse concerned or the dependent member of the family concerned by an order or orders under any of those sections.
(24) Section 54 of the Act of 1990 and any regulations under that section shall apply with any necessary modifications to a scheme if proceedings for the grant of a decree of judicial separation to which a member spouse is a party have been instituted and shall continue to apply notwithstanding the grant of a decree of judicial separation in the proceedings.
(25) For the purposes of this Act, the court may, of its own motion, and shall, if so requested by either of the spouses concerned or any other person concerned, direct the trustees of the scheme concerned to provide the spouses or that other person and the court, within a specified period of time—
(a) with a calculation of the value and the amount, determined in accordance with relevant guidelines, of the retirement benefit, or contingent benefit, concerned that is payable (or which, but for the making of the order for the decree of judicial separation concerned, would have been payable) under the scheme and has accrued at the time of the making of that order, and
(b) with a calculation of the amount of the contingent benefit concerned that is payable (or which, but for the making of the order for the decree of judicial separation concerned, would have been payable) under the scheme.
(26) An order under this section may restrict to a specified extent or exclude the application of section 17 in relation to the order.".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 29:
Section 13: In page 17, line 6, "shall" deleted and "may" substituted.
Section 13 provides that where certain conditions apply, the court must, in cases of judicial separation, make an order extinguishing the succession rights of either spouse. This amendment allows the court discretion in the matter. The aim is to allow for a degree of flexibility in the operation of the section having regard to the specific criteria set out in the section and those set out in section 15.
This is something which I thought should have been changed at the initial stage. I cannot recall whether I had an opportunity to say so. I welcome the amendment. Situations can be envisaged where it might not be just or equitable to extinguish the succession rights. I welcome the fact that the courts are now being given discretion in the matter.
I agree that a decree of flexibility is called for in this instance. I am glad that the courts now have the element of discretion.
Question put and agreed to.
Acting Chairman
Amendments Nos. 30, 31 and 32 form a composite proposal and will be taken together by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 30:
Section 14: In page 17, line 47, after "payment", "or payments (whether periodical payments or lump sum payments)" inserted.
These are drafting amendments.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 31:
Section 14: In page 17, line 49, "or" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 32:
Section 14: In page 18, lines 1 and 2, "payments (whether periodical payments or lump sum payments)" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 33:
Section 14: In page 18, subsection (5), line 18, after "or section", "8 or" inserted.
This is a technical drafting amendment to section 14 (5) to make it clear that when the court makes an order for the sale of property of the spouse under section 8 and a third party has an interest in that property, the court must give that person an opportunity to make representations with respect to the making of the order.
As subsection (5) stands, the court must only do so in relation to an order as respects property under section 9 (1) (a) (ii) and clearly the court should also be required to do so in relation to an order under section 8.
Question put and agreed to.
Acting Chairman
We now come to Seanad amendment No. 34. Seanad amendment No. 59 is related and Seanad amendment No. 58 is consequential. Seanad amendments Nos. 34, 58 and 59 may be discussed together by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 34:
Section 15: In page 18, subsection (1), line 27, "or 17" deleted and ", 17 or 24" inserted.
This is a technical drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 35:
Section 15: In page 18, subsection (1), line 28, "financial" deleted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 36:
Section 15: In page 18, subsection (1), line 29, "the spouse applying for the order" deleted and "each spouse concerned" substituted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 37:
Section 17: In page 21, subsection (1), line 2, paragraph (h) deleted and the following new paragraph substituted:
"(h) and order under subsection (2) of section 11,".
Question put and agreed to.
Acting Chairman
Seanad amendment No. 38 is a drafting amendment. Seanad amendments Nos. 38 and 39 form a composite proposal and may be discussed together by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 38
Section 17: In page 21, line 5, "section," deleted and "section and section 15 and" substituted.
These are drafting amendments which involve no change of substance.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 39:
Section 17: In page 21, line 6, ", and section 15," deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 40:
Section 17: In page 21, subsection (2), line 10, after "matter", "or by a person on behalf of a dependent member of the family concerned" inserted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 41:
Section 17: In page 21, subsection (3), line 25, "16 years" deleted and "18 years" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 42:
Section 22: In page 23, subsection (2) (a), line 20, after "concerned", "or by a person on behalf of a dependent member of the family concerned" inserted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 43:
Section 22: In page 23, subsection (2) (b) (i), line 29, after "section 7", ", section 9 (1) (c)" inserted.
This is a technical amendment. Section 22 as it stands provides that Part II, the part dealing with various orders the court can make in support of dependent spouses and children following a judicial separation, shall apply to orders to be made by the court in support of a person, and his or her children, whose marriage is being dissolved abroad.
Section 2 (1) (b) (i) makes clear, however, that certain provisions in Part II shall not apply. They include provisions in sections 7 and 12, which have particular application to cases with judicial separation.
The effect of the amendment now proposed is to dis-apply section 91 (1) (c) concerning orders under the Family Home Protection Act, 1976, where section 22 cases arise.
It is a technical point.
Question put and agreed to.
Acting Chairman
Seanad amendment No. 44. Seanad amendments Nos. 45, 46 and 48 are cognate and Seanad amendment No. 47 is related. Seanad amendments Nos. 44 to 48, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 44:
Section 22: In page 24, subsection (3) (a), line 9, "spouse" deleted and "person" substituted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 45:
Section 22: In page 24, subsection (3) (a), line 11, "spouse" deleted and "person" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 46:
Section 22: In page 24, subsection (3) (c), line 20, "spouse" deleted and "person" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 47:
Section 22: In page 24, subsection (3) (c), line 23, "other" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 48:
Section 22: In page 24, subsection (3) (c), line 24, "spouse" deleted and "person" substituted.
Question put and agreed to.
Acting Chairman
Seanad amendments Nos. 49, 67 and 83 form a composite proposal and may be discussed together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 49:
Section 22: In page 22, between lines 24 and 25, the following inserted:
"(d) This subsection does not apply to an application for a relief order made pursuant to a request under section 14 of the Maintenance Act, 1994.".
These are technical amendments which involve taking into account provisions in the Maintenance Act, 1994. It readjusts the position having regard to the passing of that Act since the introduction of this Bill.
Question put and agreed to.
Acting Chairman
Seanad amendments Nos. 50 and 82 are related and may be discussed together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 50:
Section 22: In page 24, subsection (5), line 39, "or annulment" deleted.
These are drafting amendments consequential on amendments made in the other House.
Question put and agreed to.
Acting Chairman
Seanad amendments Nos. 51 to 54, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 51:
Section 22: In page 24, subsection (6) (a), lines 44 and 45, "of the spouse in whose favour the order is made" deleted and "concerned" substituted.
These are drafting amendments.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 52:
Section 22: In page 24, subsection (6) (a), line 46, "that spouse" deleted and "the person in whose favour the order is made" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 53:
Section 22: In page 24, subsection (6) (b) line 52, after "order", "in favour of a spouse inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 54:
Section 22: In page 24, subsection (6) (b), line 53, "in whose favour the order is made" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 55:
Section 22: On page 25, lines 10 to 22, subsection (1) deleted and the following substituted:
"23. (1) Where leave is granted to a person under section 22 (3) for the making of an application for a reflief order, the court may, subject to subsection (3), on application to it in that behalf by the person, if it appears to it that a spouse, or a dependent member of the family, concerned is in immediate need of financial assistance, make an order for maintenance pending relief, that is to say, an order requiring the other spouse or either of the spouses, as may be appropriate, to make to the person such periodical payments or lump sum payments for his or her support or, as may be appropriate, for the benefit of the dependent member of the family as it considers proper and, as respects any periodical payments, for such period beginning not earlier than the date of such grant and ending not later than the date of the determination of the application as it considers proper.".
This is a drafting amendment which involves a recasting of subsection (1) but does not involve a change in substance.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 56:
Section 23: In page 25, line 23, after "may"", on application to it in that behalf", inserted.
This is a technical amendment to section 23. That section provides for the making by the court of orders for the payment of maintenance pending the making of relief orders in support of spouses where foreign decrees of divorce are entitled to recognition in the State. Subsection (2) allows the court to order such payment subject to terms and conditions and the amendment makes clear the power of the court will be exercised on the basis of an application to it by either spouse.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 57:
Section 24: In page 25, subsection (1), line 33, "was" deleted and "is" substituted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 58:
Section 24: In page 25, subsection (3) (a), line 50, after "applicant,", "and" inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 59:
Section 24: In page 25, subsection (3), lines 51 and 52, paragraph (b) deleted.
Question put and agreed to.
Seanad amendments Nos. 60 and 62 are related and may be taken together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad amendment No. 60:
Section 25: In page 26, paragraph (e), lines 50 and 51, "the other spouse" deleted and "a spouse, or the spouses, concerned" substituted.
These are drafting amendments. Section 25 provides that the court shall have regard to certain matters in deciding to make relief orders. These amendments make it more clear that such considerations of the court apply equally to both spouses.
Question put and agreed to.
Seanad amendments Nos. 61, 63 and 64 are cognate and may be taken together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 61:
Section 25: In page 27, line 4, paragraph (f), after "applicant", "or a dependent member of the family" inserted.
These are three drafting amendments.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 62:
Section 25: In page 27, line 5, paragraph (f), "the other spouse" deleted and "a spouse or the spouses" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 63:
Section 25: In page 27, paragraph (f), line 7, after "applicant", "or dependent member of the family" inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 64:
Section 25: In page 27, paragraph (g), line 10, after "applicant", "or dependent member of the family" inserted.
Question put and agreed to.
Seanad amendments Nos. 65 and 70 are related and may be taken together. Is that agreed? Agreed.
I move that the Committee agree with the Seanad in amendment No. 65:
Section 26: In page 27, subsection (1) (c), line 29, "possession in a family home" deleted and "land" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 66:
Section 26: In page 27, line 29, "of the spouses" deleted.
This is a drafting amendment.
Question put and agreed to.
Amendment No. 67 has also been discussed with amendment No. 49.
I move that the Committee agree with the Seanad in amendment No. 67:
Section 26: In page 27, line 33, after "apply", "or to a relief order that is the subject of a request under section 14 of the Maintenance Act, 1994" inserted.
Question put and agreed to.
We now come to amendment No. 68. It is noted that amendment No. 69 is cognate and it is suggested that Nos. 68 and 69 be taken together.
I move that the Committee agree with the Seanad in amendment No. 68:
Section 34: In page 32, lines 11 and 12, "made pursuant to an application under subsection (4)" deleted and "affecting an order referred to in subsection (1) (e)" substituted.
This is a technical drafting amendment to the definition of the word "relief" in subsection (1) of section 34.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 69:
Section 34: In page 32, lines 13 to 15, "made pursuant to an application under subsection (4) of that section" deleted and "affecting an order referred to in subsection (1) (e) thereof" substituted.
Question put and agreed to.
Amendment No. 70 has already been discussed.
I move that the Committee agree with the Seanad in amendment No. 70:
Section 37: In page 35, line 42, "the land" deleted and "any land" substituted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 71:
Section 37: In page 35, subsection (3), line 43, after "Circuit", "Family" inserted.
This is a drafting amendment also. Its purpose is to make the reference in subsection (3) of section 37 to the Circuit Court cohere with the reference to the Circuit Family Court in subsection (1) of that section.
Question put and agreed to.
We now come to amendment No. 72. Amendments Nos. 73 and 81 are related and it is suggested, therefore, that amendments Nos. 72, 73 and 81 be taken together.
I move that the Committee agree with the Seanad in amendment No. 72:
Section 37: In page 36, subsection (7), lines 24 and 25, "he or she may reasonably require" deleted and "may reasonably be required" substituted.
Amendments No. 72 is purely a technical drafting amendment. Amendment No. 73 provides that the court will have power to direct persons to comply with the provisions of section 37 for disclosure of information and, where they fail to do so, they will be in breach of a court order which, as Deputies will be aware, carries its own penalty. Amendment No. 81 provides that the important provisions which are in section 37 be also incorporated in the Family Law (Maintenance of Spouses and Children) Act, 1976 which will provide for the first time that parties to maintenance proceedings under the Act will be required to make full disclosure of their property and income. The proposed amendment of section 37 provides for full disclosures of information in relation to the parties' property and income which disclosures can be enforced by the court.
I welcome these amendments. The Minister and I had an interesting discussion on this point on Committee Stage when I suggested an amendment to the effect that parties to an order shall be required to make full financial disclosure to include income and property of the parties. In fairness, the Minister has gone as far as he is prepared to go but I would have preferred the amendment to read "shall" rather than "may" direct the person, although I am sure the Minister would argue that point with me. I must emphasise the importance of this because this morning I became aware of a case where full disclosure had not been given and where every device is being used to avoid giving disclosure of assets. Unfortunately, many people are of the opinion that the sanctions that can be imposed are laughable. In this instance I am talking about a woman whose husband seems to be riding a coach and four through these procedures. She wants to know how a court will know that he is complying and also how she can get the information she requires to ensure that her husband is not fooling the Department of Social Welfare or other relevant authority. This issue causes great angst between separating couples. The Minister said that rules of court have their own sanctions but how can we ensure that this is implemented? What sanctions are available? I know a number of people who are at their wits end because of this and who are being given the run-around.
I agree with Deputy Keogh. I am aware of a number of cases where it was evident from the outset that the party against whom the application was made was determined not to make full disclosure. I am not satisfied that the sanctions in place were sufficient to force that party to do so. As Deputy Keogh said, the sanctions seem to be honoured more in the breach than in the observance. I am aware of cases where people have got away without making full disclosure which caused great distress to the aggrieved party. The whole concept of a property adjustment order becomes meaningless if there is not full disclosure. The court is adjusting part rather than the entirety of the property.
Regardless of what rules, regulations or orders of court exist to compel people to make full disclosure they are not working in practice. I am sure that is something the Minister does not like to hear and does not agree with. He would be horrified to learn it was not working in practice. I can send him cases to indicate it is not working. I do not like sending reports about civil law cases to Ministers but I can send him examples of cases before the Limerick Circuit Court where I am perfectly happy there was not full disclosure. I can send him statements from lawyers representing parties who went before that court where there was not full disclosure. The person who should have made the disclosure was determined from the outset not to make full disclosure. Regardless of what regulations or sanctions exist, in the cases with which I am familiar they did not work.
The reason I am bringing in this amendment is to address that very situation.
I welcome the amendment.
This is a new format. As the Deputy rightly said, we had an interesting discussion about it. There is every reason to believe that this amendment will radically improve the position. If either party suspects that full disclosure is not being made they can make an application to the court for a court order directed to that person to disclose. If the person fails to comply with that court order that is a very serious matter because the person would then be in contempt of court. The penalty for contempt of court is, theoretically at least, unlimited fine and unlimited imprisonment. It is a very serious matter and this highlights the seriousness of the issue. We cannot make it stronger than that. We have not even fixed a penalty. It is an unlimited penalty because we have put it into the ambit of a contempt of court. We must wait and see how that works but I believe it will bring about a radical improvement.
I agree that the Minister listened to the points made to him on Committee Stage. I am glad he put forward this amendment. In a case where the spouse does not disclose, is there some method which can be employed to ensure he is investigated? If, for instance, the person is in receipt of social welfare payments or is claiming for somebody else and has not declared them, is there interaction between Departments or some means by which an investigation can be initiated so that the onus is not on the other spouse? I am thinking of a particular case where the spouse has defaulted and has not made full disclosure. In this instance the onus has been on his wife to follow him through the courts. This keeps a very difficult situation bubbling but it is also causing her huge financial problems. She is just above the limit for free legal aid and, therefore, cannot apply whereas her husband can apply. Is there any mechanism for dealing with such a case?
Following on the introduction of this amendment the matter will come within the ambit of the court and the court will be making an order directing a full disclosure. The matter would then come back before the judge. If the judge was not satisfied that full disclosure had been made or had suspicions that the matter was not in order when the case came before the court he could say that he was not satisfied and the person might be asked to produce a letter from the Department of Social Welfare or take the necessary steps to satisfy the judge that the court order had been complied with. We are not talking about a request by the parties inter se. This amendment will put the matter on a different basis altogether and it is now a matter of compliance with a court order so the person is answerable to the court and has to satisfy the judge that the court order has been complied with. If a judge has reason to suspect that the court order has been flouted or denied, he can take whatever steps he deems appropriate.
In my initial contribution I omitted to welcome the Minister's amendment which is necessary to improve the situation. I do so now. It is not as simple as bringing the matter back into the ambit of the court. The Minister will be aware that judges are busy people who have not much time and are disinclined to get involved in long investigations about whether a person has money hidden. There may be cases, as Deputy Keogh mentioned, where somebody receives an income from social welfare which they do not wish to disclose but that can be easily checked out. I have come across a number of cases involving business people where the wife knew money had been salted away in bank accounts not in the immediate region and sometimes abroad. The spouse may very well know the person against whom the property adjustment order is being sought has salted away money at home or abroad. It would be unrealistic for a judge to ask a person in that situation to produce a letter from every branch of every bank in Ireland and England confirming that he had no money. I think Deputy Keogh is suggesting that there should be a mechanism whereby the judge is given discretion to order an investigation into this, perhaps through the Revenue Commissioners. I think that is desirable. It is very well to say that the court can order somebody to make full disclosure and if the person does not do so he is subject to the draconian provisions of contempt of court. There may be simply no way to know whether a person has told the truth. The person may say he has made full disclosure on foot of such an order and still not make it. If one convicts somebody for contempt of court one must prove the case beyond reasonable doubt.
The Bill is fine in so far as it goes. It brings in the threat of contempt of court and the consequences of it hang over somebody's head. Nevertheless there is no follow-up procedure. The Minister knows perfectly well that a judge who has a great many cases to hear will not get involved in an endless investigation about somebody's assets. It leaves the aggrieved party with a sour taste. There are cases before the courts as I speak where people have salted away money, have got rid of assets and have transferred them abroad. Their spouses are aware of this but they will get away with it in spite of the good intentions behind this amendment. There is no procedure for checking the veracity of what they say.
I disagree with Deputy O'Dea on one point at least in his last intervention. Courts and judges are very interested if they come to the conclusion that their orders are not being complied with.
They are rightly very insistent that their orders be complied with and if they come to the conclusion that they are not being complied with they will take whatever action may be appropriate in the circumstances. As I am sure Deputy O'Dea well knows, at the end of the day it is a matter of evidence and the courts adjudicate and make their decisions based on the evidence before them. It is very easy for one party to a claim to say that the other party has X pounds salted away but the court has to weigh up the evidence and assess its veracity. It does not have teams of detectives at its disposal to check out these matters, even assuming that was possible. It depends on hard evidence for example, a bank book or something specific rather than surmise, expectation or belief based on little or nothing.
Every case is different. The court will assess the case and if it comes to the conclusion that a full disclosure has not been made it will have the power for the first time under this amendment to order that person to make a full disclosure. If necessary the matter would then come back before the court which would re-examine it, hear the evidence of the parties and examine and cross-examine them. It will arrive at its own conclusions and decision. It it comes to the conclusion based on evidence that full disclosure has not been made, then the person could be held in contempt under this amendment. This is a new and progressive power and we will have to wait and see how it works. We will keep the situation under review and if further reasonable and practical improvements are found to be necessary at a later date, they will be considered. This important new remedy will substantially improve the situation and I am grateful to the Deputies for their support for it.
Will the onus of proof be shifted from the aggrieved spouse? Difficulties will arise in cases where a person saw a bank book or suspects that their spouse has one but cannot prove it. It is not intended to set up a moral police force, but a separate investigative body would be necessary in such cases. The Minister has accepted that this problem exists. Does he know the number of people charged with perjury or contempt of court? In very busy courts, particularly family courts where there are long waiting periods, the focus of attention is not necessarily on these issues which create great hardship. I am glad the Minister has put down these amendments but I am worried that they do not go far enough to alleviate the difficulties which undoubtedly exist.
It is difficult to know how much further one could go at this stage. The balance of probability rules apply here as they do in any civil proceedings. One must be realistic and practical about this issue: it would be impossible for any person to prove that a person does not have money salted away, and all the investigatory processes in the world will not help in that regard. A person can say that but nobody can prove that he does not have it. It is a matter of the evidence adduced before the court in a particular case.
Before making such an order, the court would have to have some basis for so doing. If it was alleged by the other party that the order had not been complied with, that would have to be based on something. No court will hold a person in contempt of court unless the allegation is well based. Nor can we expect any law to be brought in that would compel a court to do that. These things are always based on evidence, on the balance of probabilities. People are committed on occasion for contempt of court, but it does not happen very often for the simple reason that it carries such a draconian penalty and the potentiality of it is so vast that people are fearful of finding themselves in contempt of court because they leave themselves open to an indefinite or unlimited fine or unlimited imprisonment. Sometimes people are ordered to do something by a court and do not do it, and are imprisoned until they do. We are giving an important new remedy and we must wait to see how it works out.
I understand the sense of what the Minister has said. Nevertheless, I return to my original point that busy courts will not give an inordinate amount of time to one aspect of a particular family law case, and I have no doubt that if the referendum is passed their work will increase. Let me make a practical suggestion. A member of the court staff could be designated to do it if he had sufficient staff — I am aware that the staff who are there at the moment are overworked but members of the Government have stated that there will be improvements in that regard. Another way would be to increase the number of judges. I hope the Government will implement its promise in that regard because the backlog in some Circuit Court areas in regard to family law cases is nothing short of a disgrace. In conjunction with the former Minister for Finance, Deputy Bertie Ahern, the Minister for Equality and Law Reform has substantially improved funding for the free legal aid service with the result that delays have been reduced from 18 months to six weeks in the South Western Circuit. However, there has been a corresponding increase in the time within which a person can get into court because of the growing backlog in family law cases.
It is disappointing that the Deputy did not deal with that when he was in the Department of Justice.
Deputy Taylor has been Minister for Law Reform for over three years. If more judges were appointed they would have more time to indulge in investigations. However, such work could be done by a designated member of the court staff. Within the realm of property adjustment orders, I have one further technical question which is already being asked of me. What will be the effect of prenuptial agreements which are an increasingly important feature of divorce regimes in other countries? People are asking me this question, and I do not say that their vote in the referendum will depend on the Minister's answer, but I presume they have some reason for asking the question. Perhaps the Minister would comment.
I have nothing further to add. I will consider the point mentioned by the Deputy.
Will the Minister answer the last question regarding the effect of prenuptial agreements?
It does not arise on this amendment. I suggest that the Deputy table a question so that I can consider it in detail.
Question put and agreed to.
I move the Committee agree with the Seanad in amendment No. 73:
Section 73: In page 36, between lines 25 and 26, the following subsection inserted:
"(8) Where a person fails or refuses to comply with subsection (7), the court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.".
Question put and agreed to.
Amendments Nos. 74 and 75 are related and I suggest that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 74:
Section 38: In page 36, line 40, after "court", ", notwithstanding section 31 (4) of the Act of 1989," inserted.
The amendment proposes a small drafting change involving a minor juxtaposition of the words to improve the drafting of the section.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 75:
Section 38: In page 36, lines 42 and 43 deleted and "of the marriage concerned." substituted.
Question put and agreed to.
Amendment No. 76 is consequential on amendment No. 77 and I propose that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 76:
Section 39: In page 37, paragraph (a), line 2, after "concerned,", "and" inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 77:
Section 39: In page 37, line 3, paragraph (b) deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 78:
Section 40: In page 37, line 6, after "makes", "or has made" inserted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 79:
Section 42: In page 38, lines 6 to 11 deleted and the following substituted:
"(i) in the definition of `antecedent order', the substitution of the following paragraphs for paragraph (j):
`(j) an order for maintenance pending suit under the Judicial Separation and Family Law Reform Act, 1989, or a periodical payments order under that Act,
(k) a maintenance pending suit order under the Family Law Act, 1995, or a periodical payments order under that Act;', and".
This is a technical amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 80:
Section 42: In page 38, between lines 13 and 14, the following new paragraph inserted:
(b) in section 6 (3), the substitution of `18' for `sixteen' and `23' for `twenty-one',".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 81:
Section 42: In page 39, line 42 deleted and the following substituted:
"relates.',
and
(d) in section 23, after subsection (3), the insertion of the following subsections:
`(4) In proceedings under this Act—
(a) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and
(b) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned,
such particulars of his or her property and income as may reasonably be required for the purpose of the proceedings.
(4) Where a person fails or refuses to comply with subsection (4), the Court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.'.".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 82:
Section 43: In page 39, line 46, "a decree of nullity or" deleted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 83:
Section 44: In page 39, after line 49, the following inserted:
"44. —The Maintenance Act, 1994, is hereby amended—
(a) in section 3, in subsection (1), by the insertion of the following definition:
` "the Act of 1995" means the Family Law Act, 1995;',
(b) in section 4, in subsection (2) (a), by the insertion of `, 1995' after `(as amended by this Act)',
(c) in section 14—
(i) in subsection (1) (c), by the substitution of the following subparagraph for subparagraph (i):
`(i) if the amount of maintenance sought to be recovered exceeds the maximum amount which the District Court has jurisdiction to award under the Act of 1976 or, if the request is for a relief order within the meaning of the Act of 1995, make an application to the Circuit Court,',
(ii) in subsection (3), by the insertion after `1976' of `or a relief order within the meaning of the Act of 1995, as may be appropriate', and
(iii) in subsection (4), by the substitution of the following paragraph for paragraph (e):
`(e) pending the final determination of the application, make an interim order under section 7 of the Act of 1976 or an order under section 23 of the Act of 1995.'.".
Question put and agreed to.
Amendment No. 84 is consequential on amendment No. 85 and therefore it is suggested that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 84:
Section 45: In page 41, line 2, "and" deleted.
They are drafting amendments.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 85:
Section 45: In page 41, line 3 deleted and the following substituted:
"(h) in relation to an application for a decree of nullity, and
(i) under this Act.".
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 86:
Section 46: In page 41, line 16, "or the Act of 1989" deleted and "the Act of 1989 or this Act" substituted.
This is a drafting amendment.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 87:
Section 47: In page 41, between lines 16 and 17, the following inserted:
47. —Where a payment to which section 3 of the Finance Act, 1983, applies is made in a year of assessment (within the meaning of the Income Tax Acts) by a spouse who is a party to a marriage, that has been dissolved, for the benefit of the other spouse and—
(a) the dissolution was under the law of a country or jurisdiction other than the State, being a divorce that is entitled to be recognised as valid in the State,
(b) both spouses are resident in the State for tax purposes for that year of assessment, and
(c) neither spouse has entered into another marriage,
then, the provisions of section 4 of the Finance Act, 1983, shall, with any necessary modifications, have effect in relation to the spouses for that year of assessment as if their marriage had not been dissolved.".
This amendment secures that for income tax purposes couples whose foreign decree of divorce is entitled to recognition in this State and neither of whom has remarried will be treated the same as separated couples. Where one spouse is paying maintenance for the benefit of the other spouse they will if they so wish have the option of jointly electing to have their combined incomes aggregated for tax purposes. This amendment proposes to bring the income tax position into line.
What is the position regarding capital acquisition tax or capital gains tax?
That is already dealt with under other amendments not the subject of amendments today.
Question put and agreed to.
Amendments Nos. 88 and 89 are related and it is suggested that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 88:
Section 49: In page 42, between lines 4 and 5, the following inserted:
"(b) a deed of separation, or".
Section 49 provides that capital gains tax will not apply to the disposals of assets for one spouse to the other in consequence of an order of the court under Part II on or after the granting of a decree of judicial separation or in the case where a relief order is made under the Bill in support of a spouse whose foreign decree of divorce is entitled to recognition in the State. Amendment No. 88 now extends that exemption from capital gains tax to disposals of assets between spouses under a deed of separation.
Amendment No. 89 makes clear that the exemption from capital gains tax provided by section 49 will operate from commencement of the section. This amendment will preclude any possibility of claims for backdating of exemption of the tax. We are extending to deeds of separation the benefit of the capital gains tax provisions that apply on judicial separation.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 89:
Section 49: In page 42, between lines 23 and 24, the following inserted:
"(3) This section shall not apply to disposals made before its commencement.".
Question put and agreed to.
Amendments Nos. 90 and 91 are related and it is suggested that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 90:
Section 51: In page 42, subsection (1) (a), line 41, "in" deleted and "In" substituted.
These are technical drafting amendments.
Question put and agreed to.
I move that the Committee agreed with the Seanad in amendment No. 91:
Section 51: In page 43, subsection (1) (a), line 2, after "not", ", occupied as a separate dwelling" inserted.
Question put and agreed to.
Amendments Nos. 92, 93 and 94 are related and it is suggested that they be taken together.
I move that the Committee agree with the Seanad in amendment No. 92:
Section 51: In page 43, between lines 45 and 46, the following inserted:
"(c) A copy of a statement made for the purpose of subparagraph (ii) of paragraph (b) and certified by, or by the successor or successors in title of, the party or parties concerned ("the person or persons") to be a true copy shall, before the expiration of the period referred to in that subparagraph, as appropriate, be lodged by the person or persons in the Land Registry for registration pursuant to section 69 (1) of the Registration of Title Act, 1964, as if statements so made had been prescribed under paragraph (s) of the said section 69 (1) or be registered by them in the Registry of Deeds.".
Section 51 provides for a number of amendments to the Family Home Protection Act, 1976. Section 51 (1) (b) proposes a new subsection (8) in section 3 of the 1976 Act. Subsection (8) provides that proceedings may not be instituted to have a conveyance of a family home declared void by reason of the absence of a spouse's prior consent any later than six years after the date of the conveyance, unless that spouse is then in occupation of the family home.
Amendment No. 92 requires that rules of court be made to require the plaintiff in such proceedings to register a notice of the proceedings in the Land Registry or the Registry of Deeds, as the case may be, so that any purchaser of the property concerned can be aware of the proceedings. The amendment is intended to facilitate conveyances and is in response to representations made to me on the matter.
Amendment No. 93 also relates to subsection (8) where it provides in paragraph (b) that a conveyance is deemed not to be void by reason of absence of consent unless it has been declared void by the court or unless it is void and the parties to the conveyance are the successors in title so stated in writing within six years of the conveyance. The amendment requires registration of any such statement in the Land Registry or Registry of Deeds, as the case may be, before the expiration of six years.
Amendment No. 94 relates to the new subsection (9) which is proposed to be inserted in section 3 of the 1976 Act. That subsection enables a spouse to give a general consent in writing to any future conveyance of the family home. The subsection might, however, be interpreted as applying only to consents executed after the Bill comes into force. The amendment makes clear that the consent may be one given before or after the passing of the Bill.
These amendments result from consultations with the Law Society and other interested groups.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 93:
Section 51: In page 43, between lines 45 and 46, the following inserted:
"(d) Rules of court shall provide that a person who institutes proceedings to have a conveyance declared void by reason of subsection (1) shall, as soon as may be, cause relevant particulars of the proceedings to be entered as a lis pendens under and in accordance with the Judgments (Ireland) Act, 1844.”.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 94:
Section 51: In page 43, line 46, after "If", ", whether before or after the passing of the Family Law Act, 1995," inserted.
Question put and agreed to.
I move that the Committee agree with the Seanad in amendment No. 95:
Schedule: In page 46, line 31, in the third column, after "Part II", "(other than section 25)" inserted.
This is a drafting amendment.
Question put and agreed to.
Agreement to Seanad amendments is reported to the House and a message will be sent to Seanad Éireann acquainting it accordingly.
This Bill is the culmination of work done over the past three years, building on the groundwork laid by the White Paper on marriage breakdown of September 1992. I pay tribute to the successive Administrations, including all the political parties, who lent their efforts to the task of modernising our family law. This Bill is one of the most far reaching reforms of family law in recent years. It overhauls the law in relation to the financial consequences of marriage, pensions, maintenance, the effects of foreign divorce and separation, the age of marriage, tax treatment following foreign divorce and in many other areas.
This Bill puts in place one of the final elements of the preparations for the referendum on divorce in November. It demonstrates that all of the financial consequences of breakdown have now been catered for and the sole remaining issue issue is the right to remarry.
I thank Deputies on all sides of the House for their support. I look forward to a constructive and informative debate inside and outside this House on the Fifteenth Amendment Bill in the weeks ahead. I also wish to thank all the staff of my Department who worked so hard and for such long hours to prepare this Bill through all its Stages, not least this Final Stage today.
I thank the Minister and his staff for the work they have put into preparing this legislation. Naturally, we agree with its provisions since they were agreed between the Fianna Fáil and Labour parties when they were in Government. These proposals emanated from that Government.
A number of issues are still outstanding as a result of changes made during the passage of the Bill. The law on nullity, for example, has not been changed. The Minister said that it would be the subject of separate legislation. We should have some indication of the Minister's proposals in that regard before the divorce referendum. In addition, as Deputy Keogh said, legislation on joint ownership of the family home has foundered on constitutional grounds. Has the Minister any other proposals in that regard? He indicated that he has administrative proposals and we are entitled to know what they are in advance of this matter being put before the people.
I regret that the Minister for Social Welfare did not accept our proposals for changes in the social welfare code. Only the bare minimum has been done in that area to cater for divorce.
The Deputy must conclude.
I look forward to seeing what the Government does to provide for the stability of marriage and to cater for children, who will be the main victims of marital breakdown.
I thank the Minister, the officials of his Department and the many other people involved in framing this Bill. It is complex and far-reaching and I hope it will be the basis for a constructive debate on the forthcoming divorce referendum. We must focus on the importance of this Bill and not only in relation to divorce.
I am sorry the Bill is considerably different from the one we worked on a couple of years ago — it seems like ten years ago now. The provisions regarding nullity have been excised from this Bill. I thank Deputy O'Dea for his support on the issue of joint ownership of the family home, although it was not forthcoming when I needed it. That subject should be revisited with, perhaps, a different formula to deal with it. It is a subject I will never drop until joint ownership of the family home comes to pass.
I am glad we have this Bill. It has been a tortuous process. On behalf of Opposition spokespersons I appeal to the Minister to give us due notice of amendments when a Bill comes before the House. This is an important Bill and I always have great difficulty in satisfying myself that legislation is perfect. While it is probably impossible to ensue that a Bill is perfect, the more notice we receive of legislation and amendments the better such legislation will be from our examination of its provisions.
I wish the Minister well and I thank him for the huge amount of work he has put into this legislation.