Dáil Éireann debate -
Tuesday, 11 Mar 1997

Vol. 476 No. 2

Written Answers. - Separation Agreements.

Mary Harney

Question:

23 Miss Harney asked the Minister for Equality and Law Reform the reason it is necessary to reopen deeds of separation where couples have agreed their circumstances and have no need to do so; and if he will make a statement on the matter. [6648/97]

Minister for Equality and Law Reform (Mr. Taylor)

I assume the Deputy is referring to separation agreements that may be in question in the context of divorce proceedings instituted under the Family Law (Divorce) Act, 1996.

The Deputy will appreciate that among the criteria laid down in Article 41.3.2º of the Constitution and approved by the people in the divorce referendum in November 1995 is the requirement that before a decree of divorce can be granted, a court must be satisfied that proper provision having regard to the circumstances exists or will be made for the spouses and any children of either or both of them. Section 5 (1) (c) of the Family Law (Divorce) Act, 1996 gives legislative effect to this constitutional requirement.

In granting a decree of divorce and in deciding whether or not to make an ancillary order in favour of a spouse or any dependent children, it is important that the power of the court to ensure that there is an equitable distribution of income and property in favour of the parties concerned, in line with the requirements of Article 41.3.2º of the Constitution, is not restricted by any deed of separation which may have been entered into between those parties before divorce proceedings are instituted. It would, of course, be open to parties to such proceedings, where agreement exists between them, to seek to have the terms of any existing deed of separation reflected in any ancillary orders made by the court on their behalf.

Accordingly, when farming the Bill that led to the Act of 1996, I made provision in section 20 (3) that a court must, in deciding whether to make certain ancillary orders and in determining the provisions of such orders, have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force. I do not accept, as the Deputy seems to infer, that there will be a necessity for the court to re-open separation agreements in all cases. Clearly, where the parties are in full agreement on the terms of their separation, the reasonable assumption must be that the court will have no difficulty in giving due recognition to the wishes of the parties concerned.