Michael Woods
Question:8 Dr. Woods asked the Minister for Equality and Law Reform the position which will pertain in relation to prenuptial agreements in the event of a "yes" vote in the forthcoming Referendum. [15598/95]
Ceisteanna—Questions. Oral Answers. - Divorce Referendum.
Michael Woods
Question:11 Dr. Woods asked the Minister for Equality and Law Reform if he intends to make any commitment regarding the establishment of a Commissioner for children in advance of the forthcoming referendum; and if he will make a statement on the matter. [15600/95]
Ivor Callely
Question:14 Mr. Callely asked the Minister for Equality and Law Reform the consideration, if any, that has been given to the number of times a person can remarry if the divorce referendum is successful. [15563/95]
Ivor Callely
Question:31 Mr. Callely asked the Minister for Equality and Law Reform the outstanding issues in relation to divorce that may or may not require legislation; the time scale involved; and if he will make a statement on the matter. [15564/95]
I propose to take Questions Nos. 8, 11, 14 and 31 together. Deputy Woods's Question refers to the establishment of a commissioner for children in advance of the forthcoming referendum. I presume he is talking specifically about the proposal contained in the Fianna Fáil policy document on children which envisages that a commissioner for children would be attached to the courts who would be responsible for highlighting to parents the needs of children in marriage breakdown/divorce situations.
I know the Deputy appreciates that the welfare of children is a matter of supreme importance for this Government. That is one of the reasons we have set up a commission on the family to make recommendations on how families can best be facilitated in the support and development of their individual members. It is also the reason the constitutional amendment is framed precisely in the way it is.
When the Deputy's party published its policy document I welcomed it and indicated that the recommendations it contained would be examined carefully and in detail in my Department. That remains the position and I am happy to repeat the undertaking in that matter which I have given.
However, we must remember that there is already in existence a comprehensive charter of rights and protections for children consisting of the legal and administrative measures which have been put in place over the years. Furthermore, the consultation paper on family courts, published by the Law Reform Commission, puts particular emphasis on the need to give priority to the interests of dependent children and on the importance of avoiding any damage or distress to them. When the final report becomes available, it will be considered by the Government and the appropriate decisions will be taken on foot of it. While a commissioner on children does not feature specifically as one of those recommendations, it is a proposal which could be considered in that context.
On the question of pre-nuptial agreements, existing separation legislation provides that, in relation to property adjustment orders, a court may vary for the benefit of either spouse or for a dependent family member any ante-nuptial or post-nuptial settlement made on the spouses. It is my intention that equivalent provision would apply in the context of divorce.
Turning to those Questions tabled by Deputy Callely, the number of times which a person might be able to remarry if the divorce referendum is successful is an issue which has been raised in the context of the recent debate on the Fifteenth Amendment of the Constitution (No. 2) Bill, 1995. That issue was also considered in the context of the preparation of the White Paper on Marital Breakdown where the view was taken that any attempt to restrict the right to remarry might run counter to the European Convention on Human Rights.
In so far as outstanding issues in relation to divorce are concerned, I would point out that the Government only brought forward its proposal to amend the Constitution to allow for a divorce jurisdiction here because it was confident that the necessary legislative and administrative measures were already in place to ensure that such a jurisdiction could be operated efficiently and in a way that was likely to be fair to all parties.
As Deputies will know, over the past decade there has been a large volume of legislation in the family law area which is designed to support the family, both materially and otherwise. In September, I published the draft Family Law (Divorce) Bill which clearly spells out the detailed provisions which would apply if divorce is introduced here. Counselling and mediation services are in place which will assist couples who wish to obtain guidance in resolving differences in their marriages or who are willing to enter into negotiations on separation agreements. Legal aid will be available to individuals seeking a divorce in the same way as it is now available to persons seeking a judicial separation. The Social Welfare (No. 2) Act, 1995 ensures that a divorced person will not be at a loss in terms of his or her social welfare entitlements. Detailed taxation provisions have been devised which, in essence, will mean that divorced couples will be treated the same way for income tax purposes as separated couples. Similarly, property transfers between former spouses on foot of a court order governing a divorce settlement will be exempted from all capital taxes.
Taken together, we have in place a comprehensive package which will assist those seeking a divorce, should the referendum be carried.
I object to these four questions being taken together. Combining questions which are related in any way has become a habit. That is very undesirable because we table specific, clear-cut questions to obtain clear answers. These questions have been joined into one large jumble and two of them are not priority questions with the result that Members who tabled them will not have an opportunity to ask supplementaries.
They would not have had the opportunity anyway.
I am making the point because I do not believe it is a good practice.
The Deputy will be aware that that is not a matter for the Chair. It is the Minister's prerogative to group questions.
I understand. People are asking whether the integrity of a farm, for example, can be protected in a pre-nuptial agreement. I have my own views on what the situation might be. However, the Minister can supply the definitive answer to that question. He stated in the course of his reply that the court may vary any settlement. A person who owns some asset — a farm or pub, for example — may wish to ensure that, in the event of a marital breakdown, adequate maintenance exists. I am aware that the Maintenance Act, 1976 applies in that regard. While people may wish to ensure maintenance is adequate the question of maintaining the integrity of an asset is something about which questions are being asked. Can this be done? To what extent can it be done under pre-nuptial agreements?
I remind Members that we have only ten minutes and a further four priority questions to be answered. I am anxious to accommodate the Deputies concerned and I require assistance from Members in that regard.
This question has been raised on a number of occasions at meetings on the divorce issue. It is not an easy question to answer. When one talks about a pre-marriage agreement, one has to ask to what is one agreeing, as pre-marriage agreements could cover a multitude. One would have to be specific as to the terms of the agreement, the transfer of property and the basis on which it was transferred and, for example, life estates, discretionary trusts and the multitude of legal situations that could be involved. To deal with the different types of categories that come under the broad term of a pre-nuptial agreement would take a long time. I could do it but not in the short time available.
The short answer would be to refer Deputies to section 15 (c) of the Judicial Separation and Family Law Reform Act, 1989, which is repeated in the Family Law Act, 1995, and is also in the draft divorce Bill. It gives the court jurisdiction to make:
An order varying for the benefit of the spouses and of any dependent child of the family or any or all of those persons any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the spouses;
In the short time available I will confine myself to one example. If under the terms of a pre-nuptial agreement an arrangement was made that a payment of an annual sum of money was to be made to one of the spouses the court would have authority to vary that condition attaching to one of the spouses to deal with a division of income. On the question of property, it would depend on the basis and structure of the pre-nuptial agreement and whether it was a direct trust, a life interest or a discretionary trust and there is a multitude of types of cases.
Will the Minister consider making available a note on that issue as people have an interest in it?
It has arisen a few times.
The Family Law (Maintenance of Spouses and Children) Act, 1976, makes void any arrangements that might interfere with the proper provision of maintenance and I presume that will be carried forward in any event. As the Minister said, it is complicated and that is why I have sought clarification. It might be worthwhile if the Minister were to provide a note in the first instance to the House but better still make the information available generally so that people will understand the position.
In so far as the property is vested in a spouse, it could be varied by the court.
There were two Priority Questions included in this reply. The Minister mentioned the Commissioner for Children and said while he welcomed the document we produced emphasising the needs of children and the importance of making proper provision for them he would in a future context look at the possibility of a Commissioner for Children. Was that in the context of the Commission on the Family? I would prefer the Minister to give a positive commitment before the referendum to set up a Commissioner for Children on the lines which he set out, of ensuring that in the course of marriage breakdown and the court cases arising from marriage breakdown the children's interests are fully protected and there is somebody to look after them specifically. Will the Minister not give a commitment in advance of the referendum to appoint a Commissioner for Children?
Before making a commitment one has to examine it with a great deal of care. There is already in place a large raft of legislation directed towards protecting the interests and needs of children and a clause to that effect is specifically being included in the constitutional amendment providing that the court may not grant a divorce unless proper provision is made for children and there are many other pieces of legislation which deal with the protection of children.
The Deputy's suggestion is interesting but we have to examine carefully how a Commissioner for Children would operate, the basis for the post and the role of the person. I agree to examine the issue with great care. The Commission on the Family has been set up and this too will have a role in this regard.