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Dáil Éireann debate -
Wednesday, 23 Apr 1997

Vol. 478 No. 2

Family Law (Miscellaneous Provisions) Bill, 1997: Second Stage.

I move: "That the Bill be now read a Second Time."

The main purpose of this short but important Bill is to provide for validation of marriages where the three months' notice of marriage requirement under the Family Law Act, 1995, was given by some couples to the wrong Registrar of Marriages. The Bill sets matters right in those cases by validating, with retrospection, the marriages concerned. It also prevents such cases happening in the future by providing that a marriage shall not be deemed to be invalid in law solely by reason of notification being given to the wrong registrar. The opportunity is also being taken to make some useful technical legal changes to the law on barring orders granted in the case of cohabitants, on irrevocable powers of attorney and on disclaimers of interest in cases of intestate succession.

Section 32 of the Family Law Act, 1995, requires parties to a marriage to notify the Registrar of Marriages for the district in which the marriage is to be solemnised of their intention to marry not less than three months prior to the date of the marriage. The effect of section 32 is that, unless special exemption has been obtained from the Circuit Court or the High Court under section 33 of the 1995 Act, a marriage shall not be valid unless the parties have met the notice requirement.

The policy enshrined in section 32 of the 1995 Act derives from a considerable body of sources. It was recommended by the Oireachtas Committee on Marriage Breakdown in 1985 and it formed part of the Government's statement of intentions with regard to marriage, separation and divorce in the run up to the 1986 divorce referendum, while the merits were discussed in the Government's White Paper on Marriage Breakdown in 1992. During the Government's information campaign prior to the divorce referendum in 1995 the section was highlighted as one of the Government's measures to protect and support marriage. The provision now contained in the 1995 Act was the subject of debate during February 1994 and September 1995 and was welcomed by both sides of the House. The period of three months, as provided for in the Act, was considered appropriate to allow for a period of reflection on marriage as an institution of the greatest importance. The provision was welcomed by all interest groups, including the Churches.

My colleague, the Minister for Health, who has responsibility for the Office of the Registrar-General of Births, Deaths and Marriages, has informed me that considerable steps were taken by the Office of the Registrar-General to advise the general public, clergy and registrars of the new notification requirements. Those steps included the production of information leaflets for couples intending to marry, for celebrants and for registrars as part of a process which began early in March 1996. Notices in relation to the new requirement appeared in all national papers, the Sunday papers, 40 provincial papers and some magazines, while there were advertisement slots on RTE and commercial radio. In addition a number of circulars were issued to registrars reminding them of the importance of those procedures and of the need for strict compliance with the guidelines. Training courses were also held for registrars.

Since introduction of the notification requirement on 1 August 1996, the notifications which have been processed by registrars have not given rise to difficulties in 99 per cent of cases. I understand that between May 1996 and April this year notifications of intention to marry were received in respect of approximately 17,500 marriages and of this number 167 cases were referred to the Office of the Registrar-General for review. While 42 cases were found to be in order, 84 were found not to be in order because the parties failed to give any notice, gave notice short of the three months required or gave notice in error to a registrar for a district other than the district in which their marriage was to be solemnised. The remaining 41 cases are currently being examined to establish if the requirements of the Act have been met.

It is important to emphasise that the substantive requirement under section 32 of the 1995 Act of three months notice of intention to marry is not affected by this Bill. Neither does the Bill provide for the validation of marriages where parties failed to give notice in time or failed to give any notice. Circumstances can arise, however, where the inflexible application of the notification rule under section 32 could be unfair to parties. In recognition of this, it is provided for in section 33 of the 1995 Act that a person can apply to the court for an exemption from the notice requirement. In line with the substantive nature of section 32, exemptions by the court shall not be granted unless the applicant shows that its grant is justified by serious reasons and it is in the interests of the parties to the intended marriage.

The Bill deals with those cases where doubts have arisen as to the validity of marriages where notice was given to the wrong registrar. In those cases, it is reasonable to assume it was the intention of the parties concerned to comply with the law. For one reason or another, the notifications were unfortunately placed with the wrong registrar and the mistakes, having been made, were not discovered in time for all concerned to do anything about them. The Minister for Health has stated on several occasions in the House his concern about the matter and his regret about the position that has ensued for the parties concerned.The Minister for Equality and Law Reform has shared that concern and, in consultation with the Minister for Health, indicated his intention to bring forward amending legislation. The Bill implements the commitment of both Ministers in that matter.

I now turn to the specific provisions of the Bill. Sections 2 and 3 amend the 1995 Act in relation to the notification of intention to marry provisions in a number of respects.

Section 2(1)(a) inserts a new subsection (5) into section 32 of the 1995 Act to enable health boards pay fees to certain Registrars of Marriage to compensate them for processing the marriage notices they receive under the section. The certain registrars comprise about half of all registrars.They are not officers of health boards and their remuneration is currently made up of fees paid by the public and by the appropriate health board for each registered marriage. The new subsection provides that the level of fee to be paid to those registrars will be specified in regulations to be made by the Minister for Health under section 32(4) of the 1995 Act.

Section 2(1)(b), which substitutes a new subsection (6) for subsection (5) of section 32, contains a definition of the Registrar of Marriages for the purposes of the Act of 1995. In relation to a marriage to which section 11 of the Registration of Marriages (Ireland) Act, 1863 applies, it will mean the registrar appointed under section 10 of that Act or a person authorised to act on his or her behalf. In relation to any other marriage, it will mean the registrar appointed under section 57 of the Marriages (Ireland) Act, 1844 or a person authorised to act on his or her behalf.

Section 2(2) introduces a degree of flexibility as regards the jurisdiction of the Circuit Family Court to deal with applications for exemptions from the marriage notice requirement. Under section 38(4) of the Act, as it stands, exemptions may be given by a judge of the circuit in which any of the parties to the proceedings ordinarily resides or carries on any business, profession or occupation. Accordingly, the parties to an intended marriage have to apply to that circuit for such an exemption. Section 2(2) provides that applications for exemption from the marriage notice requirement may be heard by the judge of any circuit.

Section 3 deals with the validation of marriages where notification was given to the wrong registrar.Subsection (1) provides for validation where notice was given, under section 32 of the 1995 Act, to a registrar appointed under either the Marriages (Ireland) Act, 1844 or the Registration of Marriages (Ireland) Act, 1863, and that registrar was not the registrar for the district in which the marriage was intended to be solemnised. It also provides that, in the future, where couples give notification to the wrong Registrar of Marriage, this will not of itself invalidate the marriage.

Subsection (2) validates any marriages which have taken place since 1 August 1996 where a judge of the Circuit Family Court may have granted an exemption from the notice of marriage requirement in cases where the court did not have the jurisdiction to do so because the parties did not ordinarily reside or carry on any business, profession or occupation in that court's jurisdiction. The provision is for the avoidance of doubt and is a logical consequence of the amendment being proposed under section 2(2). That problem, if it exists at all, will not arise in the future because of the provision in section 2(2) which allows the judge of any Circuit Family Court to grant exemptions.

These are the main provisions amending the notification of "intention to marry" rules. I now turn to the amendments in relation to other areas of the law that are provided for in sections 4, 5 and 6.

Under section 3 of the Domestic Violence Act, 1996, a cohabitant who applies for a barring order must have lived with the respondent for a period of not less than six months in aggregate during the period of nine months immediately prior to the application for a barring order. It has come to notice that there may be a difficulty of interpretation of the Act in those cases where a cohabitant is seeking the renewal or extension of a barring order. For the removal of doubt, section 4 inserts a new subsection into section 3 of the 1996 Act. It provides that where, by reason only of a barring order or interim barring order, the parties have not lived together for the requisite period prior to the application, they shall be deemed for the purposes of the application for a further barring order to have lived together for the requisite period prior to the application for a barring order.

Section 5 amends the law on certain powers of attorney. The Powers of Attorney Act, 1996 is detailed and complex legislation. A main feature of the Act is that it introduces a power of attorney which endures notwithstanding the mental incapacity of the donor. Common law rules had been to the effect that a power of attorney must cease in the intervening event of mental incapacity of the donor. The Act repeals sections 8 and 9 of the Conveyancing Act, 1882 under which certain powers of attorney could not be revoked by the donor's death, mental incapacity or bankruptcy. Both sections had been widely criticised as being confusing and failing to provide adequate protection for third parties. Section 20 of the 1996 Act made it clear the only powers which ought to be irrevocable should be those given by way of security, for example, to protect a mortgage in the event of default in repayments by the donor of the power. This section applies to powers of attorney whenever created.

When the 1996 Act was introduced, it was widely understood there were no cases where powers of attorney had been granted otherwise than by way of security. However, the attention of the Minister for Equality and Law Reform has recently been drawn to a case where a person had given a power of attorney which was expressed to be irrevocable and was in consideration of an annual payment to the donees. The intention of the donor was that the donees should be in a position to act in the event of the donor's incapacity. Legal advice was obtained by the parties to the effect that the power was valid under section 8 of the 1882 Act. Although there may be other similar cases, none has so far been reported. The Minister for Equality and Law Reform is of the view that any power of attorney given before the date on which the 1996 Act came into operation under the 1882 Act, otherwise than by way of security, should not be so affected by section 20 of the 1996 Act. Accordingly, he has provided in section 5 that section 20 shall not invalidate powers of attorney given otherwise than by way of security under sections 8 and 9 of the 1882 Act.

The purpose of section 6 is to clarify the law in relation to the disclaimer of interest in cases of intestate succession. The section is being included following submissions made to the Minister for Equality and Law Reform by the Incorporated Law Society and the Revenue Commissioners for clarification of the law in this area.

The rules governing the distribution of an estate on intestacy are set out in Part VI of the Succession Act, 1965. There is some doubt as to the position of the State, as ultimate intestate successor under section 73 of the Succession Act, 1965, when the next of kin of a person who dies intestate disclaims an interest in the deceased's estate. Section 73 of the 1965 Act provides that, in default of next of kin, the estate of an intestate shall pass to the State as ultimate intestate successor.Section 6 makes clear that the disclaimed estate shall be distributed as if the person disclaiming had died immediately before the death of the intestate, and if that disclaimant is not the spouse of the intestate or a direct lineal ancestor of the intestate, it shall be distributed as if the disclaimant had died without leaving issue. The effect of section 6, which in effect is a codification of existing practice, is that where there are any possible successors of the intestate, other than the disclaimant, they will take precedence over the State for the purposes of intestate succession.

Deputies will appreciate that while the provisions will possibly affect only a small number of people, they are nonetheless important in their own right and for the people concerned. The Minister is happy to respond, by way of this Bill, to the various submissions made to him on these issues. I commend the Bill to the House.

Fianna Fáil welcomes the Bill which is a technical measure to tie up the serious loose ends in relation to marriage licences and barring orders. We have raised this matter on the Order of Business on a number of occasions and, therefore, we will facilitate its passage through the House before the dissolution of this Dáil.

I want to put a number of questions to the Minister of State by way of clarifying certain matters.My main concern relates to the marriages that took place between the passage of the Family Law Act, 1995 and now. I intend to table an amendment on Committee Stage on this but perhaps the Minister of State might clarify the matter in her reply. The Bill, when enacted, will regularise the position but what about the marriages that are currently in limbo? In her contribution, the Minister of State said: "Neither does the Bill provide for the validation of marriages where parties failed to give notice in time or failed to give any notice". I ask the Minister of State to clarify the position on that when replying.

The current position is that marriages which did not meet the unnecessarily restrictive requirements of section 32 of the 1995 Act in relation to the district in which notice should be given for a marriage to be subsequently carried out are possibly null. My amendment was intended to address this issue. I raised the matter on the Order of Business. Subsequently the Minister told me the form to be introduced was a matter for the Department of Health. I have also received further letters from the Minister for Health, but he still has not cleared up the point I raised.

The problem must be definitely resolved. The couples involved deserve to be absolutely assured of the status of their marriage as this problem has potential ramifications far beyond the immediate and obvious ones. If the validity of one of these marriages is successfully challenged in the future, perhaps far into the future, serious issues could arise. It is important that we get this right once and for all. Issues of succession, for example, for surviving partners and children arise, not to mention identity and status. It is imperative that, we as legislators, can be absolutely sure that we have cleared out this Pandora's box.

The other issue addressed in this Bill is that of barring orders for partners. The provision here will make it easier for barring orders to be secured in relationships where the partners are not married and, Fianna Fáil welcomes this provision.

The issue of violence against women is the subject of an important report about to be published by the Minister. I have met several of the groups represented on the working party and, on the basis of what I have heard so far, I look forward to being able to support the thrust of the report. My party leader, Deputy Bertie Ahern, launched an important policy initiative at the Fianna Fáil Árd-Fheis last Friday. He committed the next Fianna Fáil Government to enacting legislation providing for separate legal representation for victims in rape and sexual abuse cases. I hope the Minister's forthcoming report will contain a similar commitment. This is one of the most basic and important demands of women's organisations.

Regarding the point I raised in the Dáil on notification of the registrar of intention to marry, I still have difficulty with this on the basis that section 32(c) of the Family Law Act, 1995 makes it a substantive requirement of civil marriage in the State to register at least three months in advance of the date of marriage with the registrar of the local district where the ceremony is to take place. That matter has been clarified by this Bill. However, the form provided by all local registrars is headed "Republic of Ireland". Article 4 of the Constitution provided that in the English language the name of the State is "Ireland", and in the Irish language "Éire". To change the Constitution requires an amendment by the people. By way of example let me put it to the House that if an extradition order were to be sought from Ireland to another jurisdiction and that request were to be made on a form headed "Republic of Ireland" such request would be refused by the court. As it is a substantive requirement that couples notify the registrar of their intention to marry, the notification paper causes a problem. Parties who furnish the application on the official form as it is now provided, will not have notified their request to the State "Ireland". To accept the form as it is — and I will accept legal opinion in this area, but legal opinion may well be divided — is to deny the existence of the State "Ireland" and replace that legal entity with an unrecognisable entity "Republic of Ireland" and it does not adhere to the substantive requirement of the Act. To rectify the situation we should delete the words "Republic of". If I am correct, there remains a complex issue which is the nub of my proposal, namely, that all notifications prior to the proposed amendment being made law are null and void, not having been properly notified to the State "Ireland", and these are in respect of couples who have married since the Act came into force on 1 August, 1996. Having given such notice on the official form, it is open to legal opinion whether they are legally married, and cognisance of this will have to be included in amendments to regularise this dilemma.

The Minister for Equality and Law Reform brought this matter up with the Minister for Health, and it is the Department of Health that is responsible for the notification of marriage form which refers to anybody intending to marry in the Republic of Ireland on or before 1 August 1996. The Minister for Health wrote me the following letter:

You voiced your concerns regarding the wording of the form FLA 1.96 which may be used by couples to notify registrars of marriage of their intention to marry so as to comply with the requirements of section 32 of the Family Law Act, 1995 (Number 26 of 1995). The provisions of section 2(1)(a)(i) of that Act require the persons concerned to notify the Registrar of Marriages (for the district concerned) in writing of their intention to so marry not less than 3 months prior to the date on which the marriage is to be solemnised or to obtain an exemption from this requirement from the Courts.

I have had inquiries made with An t-Ard Chláraitheoir who is responsible for the administration for the procedures for the registration of marriages including notifications to registrars of intention to marry. I understand that this form, which is not a statutory form, was one of a number of forms and documents produced to facilitate the introduction of the new marriage notification procedures which apply to marriages in the State. I understand that the particular wording mentioned was noted after the form had been printed but that, as the form was purely for the convenience for couples rather than a statutory form and in order to avoid further delay it was circulated to the various information outlets.

I maintain there is a problem there. The letter continues:

I understand that a total redesign of the marriage information leaflet as well as the form in question, to incorporate additional information and clarify certain issues raised since its circulation is at an advanced stage. The points you have raised in relation to the wording has I understand been taken into account.

The Minister continues, and this I hope will satisfy married couples who have used the form:

As persons notifying the registrar are not obliged to use the form and may if they choose write jointly or separately to the registrar giving the necessary information, the concerns you expressed as regards the validity of notifications and, by implication, marriages once solemnised would not appear to be justified.

That still does not clarify the matter in this area. The Minister should look into the matter and clarify it once and for all. It is a technical, legal matter about which I have some concern. I would like to hear the Minister's response on it because it has been raised not alone by me but by senior legal colleagues whose concerns must be considered.

I do not wish to engage in scaremongering, but we should get the legislation right. If the document of notification to the registrar of intention to marry is not acceptable — the Minister said that another document is at an advanced stage — will the new document be headed "Ireland"? To prevent problems arising in five or ten years' time, this matter should be cleared up once and for all so that we can safely support the passage of the Bill through the House.

We welcome the efforts made by the Minister. The Bill does not provide for validation of marriages where parties fail to give notice in time or fail to give any notice. I put down an amendment to the effect that section 32 of the 1995 Act shall not apply to marriages solemnised between 1 August 1996 and 31 June 1997. I recognise this matter was widely advertised, but if for some reason people did not give notification of their marriage, they should be given further time, say, until 31 May 1997 to allow for retrospective registration.These matters should be clarified in the Bill. I did not put down an amendment to omit "Republic of" because that is an issue that should be dealt with at another time.

We do not intend to oppose the Bill, which is mainly a tidying up of loose ends, and we wish it a speedy passage through the House. The Bill provides for validation of marriages where notification was given in error to the registrar of marriages under section 32. This whole issue is farcical and should not have occurred. Registrars received the necessary training, advertisements were placed in newspapers and the whole process was open and easy to follow.It is farcical, therefore, that we now have to make provision to validate marriages people thought were valid. I am glad the loose ends are being tidied up because we do not wish to leave people in what might be termed a state of 'unmarriage'. One wonders what would have happened if any of those people had died. What would be the legal position in those circumstances?I may sound a little facetious, but this is a very serious issue and I welcome the fact that it is being cleared up in the Bill.

I agree with Deputy McDaid that we need to get the legislation right this time. This is not the only time doubt has been cast on marriages as a result of family law legislation. Sometimes difficulties cannot be foreseen and in some circumstances warnings are not heeded. With all due humility, perhaps the Minister's advisers will listen more carefully to the warnings of Deputies, particularly those with legal training — there are some eminent Members with expertise in family law and who are familiar with day to day cases. Deputy McDaid made interesting points on the document of notification of intention to marry. It appears this is not now necessary. Will it be sufficient to write to the registrar announcing one's intention to marry? Questions such as that need to be clarified in the Bill.

There are also technical issues involved relating to disclaimers, succession, powers of attorney and so on. I wish to refer in particular to the issue of domestic violence. I am glad the Bill deals with what was a gap in the legislation. Rather than bring various issues of law together under a miscellaneous provisions Bill, I would much prefer to see domestic violence legislation amended because other matters need to be dealt with. The loophole in this area caused a great deal of concern.The Minister said only a small number of people are affected by the Bill, and in regard to domestic violence in particular there may be a relatively small number of people affected, but it is important that we get the legislation right. The domestic violence legislation is very good legislation.When dealing with that Bill we were at pains to introduce the best legislation possible. It is important that we listen to the practitioners, those involved in women's refuges and women's aid, and to women involved in domestic violence cases.

I welcome the provision dealing with barring orders. While that provision addresses a shortcoming in the legislation, there are other gaps which could be addressed in amending legislation. The legislation on domestic violence must be monitored on a regular basis to ascertain its effecttiveness.As the gardaí play a major role in the implementation of that legislation, we should carry out an independent evaluation of the effectiveness of their policy on domestic violence. The domestic violence and sexual assault unit of the Garda should publish accurate statistics on domestic violence. Statistics show there were 3,986 cases in 1995, which ironically is only slightly more than those reported between May and December 1994. We know that only 15 per cent of cases are reported. How are Garda statistics compiled? Are they an accurate representation of the true figures? Women's Aid published figures on domestic violence in its publication Making the Links. It is against those figures I am comparing the Garda statistics. If this legislation is to be properly implemented, we need more information on the Garda statistics.

The long delays in securing legal aid appointments and in having family law cases heard before the courts, particularly outside Dublin, must be addressed. Those delays are crucial when women seek barring or safety orders. Those working with victims of domestic violence maintain that sanctions for breaches of safety orders, in particular, are not sufficient. They also maintain that women's lives are in danger during those delays and insist that sanctions imposed by the courts must be consistent. This points to the necessity to train members of the Judiciary in the area of family law. A total of 18 women were murdered in Ireland over a period of 12 months and 70 per cent of crimes against women are perpetrated by a person with whom they have had a relationship. It is difficult for a women to secure a barring order if she does not own 50 per cent of the family home or if she has a child by a man with whom she does not live. Therefore, we must constantly monitor this legislation to ensure all gaps are filled and attitudes must change.

We hear a great deal about zero tolerance nowadays.The first time that term was used was when Women's Aid, who highlighted the appalling nature of violence against women, stated that no civilised society should tolerate such violence. We cannot condone a society in which women are murdered, raped or attacked. I am always pleased when I hear male politicians speak out against crimes against women. They are excellent role models for changing attitudes towards women in our society.

In making those points I am merely trying to ensure we introduce the most effective legislation.While I welcome the amendment to the domestic violence legislation I would prefer to deal with that type of legislation in isolation rather than with a number of other matters. However, the Bill should receive a speedy passage through the House and I will support it.

I thank Deputies for the constructive manner in which they approached the Bill. Deputy McDaid referred to a form on which couples notify the registrar of their intention to marry which contains the heading "Republic of Ireland". That form does not have a statutory function. The Department of Health is in the process of replacing it with a form containing the correct constitutional terminology. Couples who notified the registrar of their intention to marry on such a form will not face any legal difficulties. The requirements of the Act merely state that couples must notify the registrar in writing, a specified form is not provided for. Therefore, it does not matter if the couple's intention is written on a plain sheet of paper or on the form to which the Deputy referred. We have received legal advice that marriages notified to the registrar on such forms are valid if the couple concerned gave sufficient notice.

Deputy McDaid also referred to validating all marriages, irrespective of whether notice was given, as distinct from marriages where adequate notice was given but to the wrong registrar. A three months' notice of intention to marry was agreed by the Oireachtas and forms part of an agreement dating back ten or 12 years. The marriages of couples who gave such notice in good faith will be validated retrospectively. If people were not in a position to give notice they can argue their case to get an exemption under section 33. Notwithstanding that, if a couple proceeded to get married, they can validate their marriage in a registry office.

Deputies McDaid and Keogh referred to violence against women and the loophole in the domestic violence legislation. When introducing that legislation it was not intended that a barred partner would not count as cohabiting, but that is the way it has been interpreted by the courts. That is why this is needed. As the Deputies are aware, I chaired a Government task force on violence against women. We have completed our work and a report should be published next week. We have carefully considered the points raised.

Deputy Keogh made a point about a couple who have a child. The anti-stalking provision in the criminal justice Bill will substantially address that and the position is being kept under review in case loopholes arise. The Deputies having dealt with my ministerial colleague, Deputy Taylor, will appreciate the constitutional problems concerning the 50 per cent ownership requirement. I did not write the 1937 Constitution which appears to give sanctity to the role of private property, but there are constitutional barriers and this matter was pushed as far as it could be legitimately pushed.

Deputy Keogh raised the point about delays in receiving legal aid. People who are seeking a barring order do not face any delays in receiving legal aid. They are given immediate clearance and are not put on a waiting list for legal aid. I am informed they are dealt with immediately by the Legal Aid Board.

They were the main points of substance raised. I welcome the support for the Bill and I hope we can tidy up the position for people who, in good faith, followed what they perceived to be adequate procedures, but due to a technicality found their marriages were invalid.

Question put and agreed to.