I move: "That the Bill be now read a Second Time."
Today's debate is the last stretch of a long road which began in January 1993. On a day such as today, it is right to record that this Bill will remedy a deficiency in our law, and to some extent in our recognition of social reality, that has been persistent and visible for many years. Many previous Governments, for whatever reason, did not address this issue. No previous Government was able to see the issue through. I point out this fact not to criticise others but simply to underline how gratified I am that it fell to this Government, and to me as the responsible Minister, to bring this Bill before the House.
It is not our business today to refight the referendum campaign. However, I want to recall one point of principle which, as I said Second Stage of the Constitutional Amendment Bill last year, goes to the very heart of this debate. This Bill is about the welfare of tens of thousands of citizens whose lives are blighted by marriage breakdown and who remain married in the insistent eye of the law. It will enable them to put their lives in order at last and to remarry if they wish to do so.
Some commentators have recently described this Bill as a sort of last hurrah for a so-called liberal agenda, which today's debate is supposed to bring to a close. I regard this as superficial. As far as I am concerned there is no liberal agenda. Rather, there is a complex and changing set of social problems, each of which has to be addressed on its own merits. The Government put forward the referendum proposal, and now puts forward this Bill, as a way of dealing with a significant issue which has an important impact on the lives of many people.
The process which the Government embarked on in January 1993 was at times fraught and difficult, and I am very grateful to colleagues on all sides of the House who were supportive in this task, as were all those outside the House who played their part, and to my officials for their dedicated and professional assistance.
To those who took the other view, I would say that their reassurance is that there will be no easy or quick divorce. There will be no divorce for marriages in difficulty. There will be divorce only for marriages that are irretrievably at an end. The reassurance is written in the Constitution and it is reflected in this Bill. The Government will continue its strong support for the family. We bring this Bill before the House, not in isolation, but in the context of very major improvements in family laws and services in recent years.
I do not expect, and I believe that the public would not accept, any suggestion that this debate should become a competition to see which side of the House is more pro-family than the next. It would be appropriate for every member of the House to recall that a draft of this Bill, formally prepared by the parliamentary draftsman, was published and available to the people in advance of the referendum, in the Government paper,The Right to Remarry. That draft Bill was one of the basic supporting documents on which the Government sought a yes vote. It is that Bill, with merely some minor and technical amendments, which is before the House today.
The absolute prohibition on divorce which has stood for almost 60 years is no more. It was harsh, unbending and uncaring towards many persons who have experienced irreconcilable differences in marriage. It brought the law into disrepute because it was unable to address properly the position of those tens of thousands of persons whose marriage had ended, many of whom had entered second relationships and wished to remarry. There are some who would prefer to see the prohibition retained and would wish that enactment of the Bill was not possible. I appreciate their concerns but I hope that in time many people will come to terms with the fact that our law on divorce and the right to remarry gives legal options which must be available to members of society, as is the case in other jurisdictions throughout the world, many of which have a strong family ethos and cultural traditions not unlike our own.
Because divorce is an end result of marriage breakdown I understand that some people may feel uncomfortable with its reality but I understand more that everyone feels uncomfortable with marriage breakdown. It is marriage breakdown that causes the hurt not only for the spouses, but those related to them, those who know them and those who know of them. The truth is that society does not salute divorce but it must, through its laws, address the problem of marriage breakdown comprehensively.
The wealth of reform in our family laws in the past decade has been of staggering proportions compared to previous decades since the foundation of the State. In the past decade 18 Bills on the subject of family law have passed through the Houses of the Oireachtas under various Governments. No one can say that the record of this House does not demonstrate that family law has not been a priority. The various measures have been of very great significance in their own right, but if we were to single out measures which laid foundations for divorce legislation it was the 1989 judicial separation legislation, the 1992 White Paper on Marital Breakdown and the Family Law Act, 1995. The support of both Houses for and the dignified way they debated the Government's proposal for the referendum contained in the Fifteenth Amendment of the Constitution Bill, 1995, was a significant turning point. The various reforms in the family law area have meant that all fundamental issues arising on marriage breakdown are now addressed or being addressed in one form or another through legislation and administrative arrangements.
The House will be familiar with other recent associated measures, apart from the Family Law Act, 1995, which I promoted in the run up to the referendum such as the Maintenance Act, 1994 the Civil Legal Aid Act, 1995 and the Domestic Violence Act, 1996. In addition, there has been the major expansion in resources for civil legal aid, family mediation and counselling services. Other Ministers have been responsible for other important measures in the social welfare and child care area as well as the courts service. Apart from life itself, there is nothing more fundamental than the family and its protection and support. Our laws and support services demonstrate that and will continue to be reviewed and updated as necessary by this Government.
This Bill is, in many respects, the culmination of a decade of work in the family law area. Its publication, made possible by the result of the referendum, addresses the major jurisdictional and legal issues which will arise in our courts concerning the status of marriage and the duties and responsibilities of the spouses, as between themselves and their children. The Government is proud to be associated with this legislation which is modern in its approach and is intended to give our courts allnecessary power to settle disputes, with due regard for the administration of justice, in complex social and legal matters concerning the family.
Before proceeding to deal with the more important aspects of the Bill I should like to take this opportunity to mention the recent judgment of the Supreme Court in the Hanafin case. I, of course, welcome that judgment which has had the effect of clearing the way for publication of the Bill. A few points in the judgment which I should like to mention are the following. A number of the judges made clear that, having regard to two previous judgments of the High Court, the Government was justified in considering that the use of public funds on the advertising campaign was within its constitutional rights. it was noted also by some of the judges that the Government had without hesitation or prevarication dropped its advertising campaign immediately following the McKenna case. The court emphasised that there was no suggestion in the case that the advertising material placed before the people by the Government was untrue. These are important points in so far as the approach of the Government was concerned during the referendum campaign and I think it reasonable to make brief mention of them in the opening stages of debate on the Bill.
In line with what the people voted for, the main features of the Bill are contained in Part II which sets out the grounds on which a court may grant a decree of divorce. These are as prescribed in the Fifteenth Amendment of the Constitution Act, the relevant amendment of the Constitution contained therein being approved by the people in the referendum. This Part of the Bill also contains safeguards to ensure that both parties are aware of alternatives to divorce proceedings and to assist reconciliation. Part III enables the court to make various orders in support of spouses and dependent children following the granting of a decree of divorce. The orders may relate to maintenance, lump sums, property, occupational pensions and to a spouse's interest in the other spouse's estate. Part IV contains amendments to the tax code relating to income tax and capital taxes — i.e. stamp duty, capital acquisitions tax, capital gains tax and probate tax — which will ensure that couples who are divorced will not be disadvantaged in terms of our tax code. Part V includes various miscellaneous provisions relating to, for example, the courts' jurisdiction in divorce proceedings.
I turn now to the specific provisions of the Bill. Sections 4 to 8 are key provisions regarding the obtaining of a decree of divorce. Subsection (1) of section 4 details the circumstances in which a court may, in exercising the jurisdiction conferred by new Article 41.3.2º of the Constitution, grant decrees of divorce. The section, as it must, replicates the terms of the constitutional amendment which was approved by the people in the 1995 referendum. In exercising its jurisdiction in relation to divorce, the court must be satisfied that each of three specific conditions has been fulfilled, namely, that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at lease four years during the previous five years; there is no reasonable prospect of a reconciliation between the spouses, and such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family. These conditions have already been the subject of long and detailed debate in the House on the Fifteenth Amendment of the Constitution Bill. They have been voted on by the people. They are enshrined as Article 41.3.2º of the Constitution and cannot, of course, be the subject of change other than on the basis of an amendment of the Constitution.
Subsection (2) of section 4 is of importance in relation to children. It allows the court, upon granting a decree of divorce, to give directions regarding the welfare, custody of, or right of access to a child under section 11 of the Guardianship of Infants Act, 1964, as if an application had been made under that Act. The purpose of the subsection is to streamline court procedures in relation to children which can be invoked under the 1964 Act in divorce proceedings.
Sections 5 and 6 contain safeguards designed to ensure that parties to divorce proceedings are fully aware of the alternatives to such proceedings, including the availability of mediation to effect a separation or a divorce on a basis agreed between both parties. The safeguards are also designed to assist attempts at reconciliation. The solicitors for both parties will have an obligation in law to ensure that the provisions of these sections are complied with and will have to provide a certificate to the court to this effect at the time divorce proceedings are instituted. It may be that even by the time the parties get to court they may be in a position to settle some of their differences. In this context section 7 empowers the court to adjourn proceedings either to assist reconciliation or in order to facilitate both spouses in reaching agreement on some or all of the terms of a divorce settlement. The provisions in sections 5 and 6 are similar to those which apply in separation proceedings. The purpose is to inform and encourage parties about options to settling disputes in court over matters that perhaps could be settled for the most part out of court with less cost, acrimony, resentment and bitterness and for the good of the parties concerned and their children.
The effect of granting a decree of divorce by the court by virtue of section 8 of the Bill will be the dissolution of the marriage and each of the parties to a marriage that is so dissolved will thereby be in a position, if they so wish, to marry again.
Part III of the Bill, which runs from sections 9 to 26, assigns to the court extensive powers in divorce proceedings to make financial, property adjustment, pension adjustment and other ancillary orders in a way that is designed to do justice to both parties and to any dependent members of the family. The provisions in section 9 deal with preliminary type orders that may be dealt with by the court. They allow the court, before deciding on an application for a decree of divorce, to make various orders provided for under the Domestic Violence Act, 1996, namely, a safety order, a barring order, an interim barring order or a protection order and to make custody and access orders and orders for the protection of the family home and contents.
Sections 10 and 11 are, in one form or another, concerned with the question of the maintenance of a spouse and dependent children. Section 10 allows the court to make interim-type maintenance or lump sums payments pending the determination of an application for a decree of divorce. Provision for interim lump sum payments is intended to cover cases where there may be hardship or where immediate bills have to be paid by a spouse. Section 11 provides for the making of orders for periodical payments, secured periodical payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.
Subsection 6 of section 11 gives important powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding to make such an attachment of earnings order the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. The previous failure of the spouse to maintain the other spouse and any children would be an obvious consideration for the court to take into account. The propose of the subsection is to reduce, where possible, the need for a dependent spouse to engage in subsequent court proceedings for enforcement of maintenance.
Sections 12 and 13 are the provisions which allow the courts in divorce proceedings to redistribute property between spouses for the benefit of a spouse and any dependent children. The word "property" in the Bill, as in the case of judicial separation legislation, is not confined to the family home. It includes any form of property, the family home, a business, shares in a company and money in bank, post office or building society accounts. Section 12 provides that the court may make the order for the transfer of property from one spouse to the other or to any dependent family member, an order for the settlement of property, an order to vary for the benefit of the other spouse or a dependent family member or both any ante-nuptial or post-nuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property.
Under section 13 it will be possible for the court to give one spouse the right to occupy the family home to the exclusion of the other spouse. The right may be limited in duration. It may, for example, apply for the duration of the occupant spouse's lifetime. Alternatively, the court may direct the sale of the family home subject to such conditions as the court may think proper and provide for the apportionment of the sale proceeds between the spouses concerned. In either case, the court will be required to take into consideration the need to provide proper and secure accommodation both for a spouse and for dependent family members. Section 13 also allows the court in divorce proceedings to make certain orders under existing statutes including the Family Law Act, 1995, the Family Home Protection Act, 1976, and the Domestic Violence Act, 1996.
To further ensure that adequate and reasonable provision can be made for a spouse and dependent children, section 14 enables the court to make an order for the assignment, in whole or in part, of a spouse's interest in a life insurance policy in favour of the other spouse or dependent family member or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent family member. These orders are designed to supplement or substitute for, where necessary, other orders in support of a dependent spouse and children.
In the Family Law Act, 1995, I made provision for what should happen to occupational pensions in the context of judicial separation and where a foreign divorce is recognised in the State. Section 15 of the Bill makes similar provision where domestic divorce is concerned.
Subsection (2) allows the court, following the grant of a decree of divorce and on application to it by either of the spouses concerned, to make a pension adjustment order designating or "ear-marking" the whole or part of the retirement benefit of a spouse who is a member of a pension scheme for payment,inter alia, to a dependent spouse or to a person for the benefit of a dependent member of the family. Such an order would, for example, 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 other family member will be determined by the court. Subsection (3) has a similar effect to subsection (2) 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.
Subsections (4) and (5) provide that, where a court makes a pension adjustment order under subsection (2), the spouse in whose favour the order is made may apply to the trustees of the pension scheme concerned to have the designated or "earmarked" portion of the benefit "split" from the main retirement benefit to provide a separate and independent benefit for that spouse.
The remaining subsections of section 15 deal with special circumstances where, for example, after a pension adjustment order is made by a court, a member spouse leaves a scheme or where a dependent spouse dies before pension benefits come into payment. It also deals with the provision of notification to various parties to proceedings and with various technical arrangements relating to the calculation and payment of pensions benefits.
The valuation and calculation of benefits and the manner in which benefits ordered by the court are to be applied and paid will be in accordance with guidelines to be made under the Pensions Act, 1990. On Committee Stage I propose to table an amendment to allow the guidelines to be promulgated by means of regulations. That is the approach being provided for in relation to corresponding guidelines for the purposes of the Family Law Act, 1995. The House agreed that approach recently on the basis of an amendment to the Pensions Act, 1990, provided for in the Pensions (Amendment) Bill, 1995. The guidelines in each case will help to standardise practise in relation to pension adjustment orders. I take this opportunity to thank the Pensions Board and certain key figures in the pensions industry without whose expertise and advice it would not have been possible to bring forward the provisions in the 1995 Act and in this Bill.
The question of what should happen to rights of succession following the grant of a decree of divorce is addressed in section 16 of the Bill. In the context of judicial separation, it is already possible for the court to make an order extinguishing rights that spouses havevis-á-vis each other. Where a couple divorce, the parties being no longer spouses will no longer have rights of succession. In compensation for that loss the court will be able to make provision for a spouse by using the various financial and property adjustment provisions in sections 11 to 15 of the Bill. Where at the time of granting the decree of divorce it is not possible to make adequate provision for a spouse, and that spouse has not married in the meantime, section 16 provides that the court may order that financial provision be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section the court must have regard to any lump sum payments or property or pension adjustment orders made in favour of the applicant, or any devise or bequest made by the deceased spouse to the applicant spouse. The provision which the court can make under this section, with any lump sum payments or property or pension adjustment orders already made, must not exceed in total the share, if any, of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was not dissolved.
Section 17 provides that where a court makes a secured periodical payments order, a lump sum order or a property adjustment order it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale. The power to order the sale of property may not be exercised to interfere with a right to occupy the family home conferred by virtue of Part III of the Bill. Neither will the power apply in relation to the family home where either of the former spouses, following remarriage, lives with his or her current spouse.
Important criteria are contained in section 18 for the making of court orders under Part III in support of spouses and dependent children. The courts will have flexibility, on the basis of the circumstances of each case before it, to determine an equitable division of income and property. Subsection (1) sets down a general criterion that provision must be made for the spouse and any dependent member of the family as is proper having regard to all the circumstances of the case. Subsection (2) contains more specific criteria in relation to such matters as a spouse's income, earning capacity, property and other financial resources, likely future financial needs and obligations, age and conduct of the spouses and accommodation needs. The court must take into account any contribution made by either spouse to the financial and other resources of the other spouses and any contribution made by either of them by looking after the home or caring for the family. Subsection (4) sets out specific criteria to which regard shall be had by a court in deciding whether to make an order in relation to children which take into account financial and accommodation needs and other matters.
Provision is made in section 22 for the situation where a couple seeking a divorce have already obtained a judicial separation. It is provided in the section that orders in relation to the separation will be continue in force unless the court orders otherwise, notwithstanding the grant of a decree of divorce. The remaining section of importance in Part III is section 20 which lists the orders under Part III which, on the application of either spouse, can be varied, discharged or suspended by the court taking into account any change in circumstances. Variation orders are also subject to the criteria for the making of orders which are set out in section 18.
Part IV of the Bill, which runs from sections 27 to 32, deals with amendments to the tax code in respect of both income and capital taxes — namely, capital acquisitions tax, capital gains tax, probate tax and stamp duty — which will apply to divorced couples in this State. Section 27 is a standard provision in family law legislation and provides that payments of money made pursuant to an order under the provisions of the Bill shall be made without deduction of income tax. A pensions adjustment order does not come within the ambit of this section.
Section 28 provides that, in certain circumstances, couples who obtain a decree of divorce may, similar to separated couples, opt for joint assessment for income tax purposes. To avail of the provision, both of the parties to the dissolved marriage must be resident in the State for the relevant year of assessment and neither spouse must have remarried. The net effect of the section is that, through opting for joint assessment, where one party to a dissolved marriage is paying enforceable maintenance for the benefit of the other party, the party making the maintenance payment, and not the recipient, will bear any tax referable to the maintenance payments. If the recipient has no other income, the paying party will be granted the personal allowances and tax bands appropriate to a married person. If the recipient has other income, the tax assessed on the parties will be apportioned between them but the tax referable to the maintenance payments will still be borne by the payer.
Sections 29, 30, 31 and 32 of the Bill exempt property transfers between former spouses on foot of a court order governing a divorce settlement from capital gains tax, capital acquisitions tax, probate tax and stamp duty. In effect, any property transfers related to the divorce will be exempted from all capital taxes, provided that they are covered by a court order. However, in relation to any subsequent property transfers not consequent on the divorce, the divorced couple will be treated as strangers for capital gains tax, capital acquisitions tax, probate tax and stamp duty purposes.
Part V of the Bill deals with court jurisdictions and the power of the courts to seek social reports under arrangements with health boards and the probation and welfare service on issues affecting the welfare of parties to divorce proceedings including children. As in the case of judicial separation, the Circuit Court will be the main court to deal with applications for divorce. Sections 39 and 40 of the Bill contain minor amendments to the Maintenance Act, 1994 and the Family Law Act, 1995 some of which are of a drafting nature and others still are consequential on the introduction of divorce.
I have made clear to the House on a number of occasions that the position of children under our laws as they stand is of special importance and that constitutional and statutory provisions and administrative policies reflect that. Recent legislation reflects that policy. Each of the 18 Bills passed since 1986, which I referred to earlier, relate to children in one way or another. I do not imply that nothing more needs to be done. This Bill has strong protective and support measures in the interests of children based on experience of operation of existing laws. The extensive provisions which already exist in relation to children are continually being reviewed and will be updated as necessary under the Government's programme of renewal. As I mentioned earlier, as part of the legislative programme in hand in my Department, progress is being made on new measures to update the law on guardianship and in relation to the evidence of children. I propose to introduce those measures as quickly as possible and to continue the pace of social reform as may be necessary in the family law area.
The introduction of divorce will place extra demands on our courts, on legal aid and on counselling and mediation services. Health boards will be affected because of the requirement on them to provide social reports if called upon to do so by the courts in divorce proceedings. The probation and welfare service will be similarly affected. The House will be aware of the strategic plans being developed in recent years in each of these areas to meet the demands of the growing area of family law cases. Significant resources have and are being provided in all of the areas concerned. The Estimates of the Departments concerned are testimony to that. In so far as my own Department is concerned the record in relation to funding of legal aid, mediation and counselling should not leave any Member of the House in doubt about my commitment and that of the Government to those services. That commitment will extend to dealing, as necessary, with the demands of a divorce jurisdiction. Other Ministers with other responsibilities in the relevant Departments of Justice, Health and Social Welfare will continue to have the same commitment in relation to the various social services in support of families.
I look forward to debate on the Bill. I hope I have helped the House to put the Bill in context and to elucidate and inform on the more important provisions. The provisions are not, for the most part, unfamiliar because they in substance correspond with provisions in the Family Law Act of 1995, which we discussed several months ago. However, this Bill provides for the first time in the history of the State for the exercise by our courts of jurisdiction to grant decrees of divorce. On its enactment, it will give effect to that which the people themselves have enshrined in the Constitution, the right of persons in certain irreconcilable circumstances to have their marriage dissolved by our courts and to remarry, if they so wish.
I commend the Bill to the House.