I wish to respond to what the Minister has said, given that I am one of the people who first raised what was perceived to be a difficulty in this area. I have always been of the view that what the Minister says in relation to notifications given prior to 1 August is open to two different legal interpretations. The interpretation given by the Minister is a valid interpretation, and my argument on that issue has always been that without a court decision there is still a matter of some legal uncertainty.
I accept the Minister's advice is from the Office of the Attorney General, but the office is not always correct. I assume the Minister acted on the advice of the Office of the Attorney General during each Stage of the Bill and I presumed the Minister brought forward all the amendments deemed necessary on Committee Stage. I am sure Members would have been informed if the office, when going through the Bill with a fine tooth comb before Committee Stage, had reached the conclusion that other amendments were required. However, the House is dealing with a plethora of amendments to other sections tabled by the Minister.
I am not criticising the Minister and I support the legislation. I am anxious that it be passed. The Office of the Attorney General and the departmental officials may have regarded it as the final version of the Bill, addressing all outstanding issues after Committee Stage, with the exception of a number of matters raised by Opposition Deputies which the Minister said he would reconsider. However, although it is being done properly and in good faith, amendments have been tabled to a series of sections which were not suggested previously.
I have a greater degree of unease about the Circuit Court exemptions — perhaps the Minister will confirm they are Circuit Court rather than High Court exemptions — to the notification requirement granted prior to 1 August than about the giving of notification. The Minister's statistic that 148 applications were received prior to 1 August and 138 were granted is interesting. The date 1 August is relevant because it is the date on which the Family Law Act came into force and I have a problem with the interpretation Act being relied on in this manner by the Circuit Court. It granted exemptions in circumstances where couples went before a Circuit Court judge in chambers and said they wanted the exemption and the judge wished to facilitate them. There were no contests, hearings or teasing out of the legal principles applicable between contesting parties.
The Family Law Act provided that the power conferred on the courts to exempt people from the notification requirement would come into operation when the Act was brought into force by ministerial order. The order brought the Act into operation on 1 August. There is express provision in the Act in terms of when it comes into operation. However, the interpretation Act was relied on to allow the courts to grant exemptions before 1 August. From memory, that provision in the interpretation Act is applicable save in so far as it is inconsistent with the wording of the Act to which it applies.
This appears difficult and technical but, while I have some reservations about notifications given prior to 1 August, once they were given three months before a marriage there is a good case to suggest that the validity of the marriages will be accepted, although an argument can be made on the other side. However, if 138 people are granted notification exemptions prior to 1 August and subsequently married on that basis. I have great difficulty accepting the view, even if the Circuit Court made the decision, that the exemptions are valid.
If some of the marriages of the 138 couples, who married pursuant to exemptions granted prior to 1 August, break down and there is a contest in the future, there is a real possibility that a court higher than the Circuit Court could declare the marriages null and void. There is a serious likelihood of this scenario and I am most uneasy about the manner in which we are dealing with this aspect. The people involved want to know if their marriages are valid. Perhaps the Minister could consider a solution to this matter in the Seanad. It is not unknown to include matters in legislation, even if they are considered unnecessary, to give people peace of mind. The Minister may consider such a move is unnecessary but another provision in the Bill is equally unnecessary.
Section 8 (2) provides that, for the avoidance of doubt, the grant of a decree of divorce shall not affect the right of the father and mother of an infant under section 6 of the Guardianship of Infants Act, 1964, to be a guardian of the infant jointly. There was never a doubt that, if a decree of divorce was granted, it could in any way affect the guardianship rights of a husband and wife. This is clear, but for comfort because people were concerned about the impact of divorce, section 8 (2), although unnecessary, is included in the Bill.
The Minister is dealing with the Bill on the basis of advice received but I ask him to consider including a similar provision to section 8 (2) when the legislation is before the Seanad. It could state that, for the avoidance of doubt, a notification to marry given prior to 1 August, or an exemption granted by the court of the need for such notification given prior to 1 August, is regarded as valid. This would ensure a marriage cannot be impugned on the basis that either the notification was given or an exemption was granted prior to 1 August. If the guardians of children are entitled to reassurance that the granting of a divorce will not affect their guardianship rights, couples who married during the summer pursuant to procedures put in place in recent months are entitled to equal assurance that their marriages are valid. They should be facilitated in that regard.
A simple mechanism could be used to deal with this matter which does not involve going against the advice of the Attorney General or loss of face. Nobody is trying to score political points. It addresses an issue which could prove problematic in the future. It will be a cause of litigation in the future and such a move should be taken if only to avoid unnecessary litigation. It may be the case that, at the end of litigation between a couple whose marriage has broken down, the Attorney General's view on all the issues will be proved right. However, why should a couple be put through the difficulty of dealing with this matter in the courts? I urge the Minister to consider the solution he applied in relation to guardianship in section 8.