Married Women's Status Bill, 1956—Committee and Final Stages.
Section 1 agreed to.
I move amendment No. 1:
In sub-section (1), to add a new paragraph as follows:—
(f) be capable of seeking, entering or continuing in employment,
I am proposing that, in Section 2, a paragraph be added. Section 2 says, in substance, that, "subject to this Act, a married woman shall be capable of acquiring and holding property, be capable of contracting," etc., as if she were unmarried. The purpose of my amendment is to add to the present number of paragraphs a paragraph which will enable a married woman to be capable of seeking, entering and continuing in employment as if she were unmarried. On at least two previous occasions in the Seanad in relation to other Bills—one, I think, the Local Government Bill and the other, the Civil Service Regulation Bill—I have attempted by way of amendment to ensure that the existing type of discrimination against married women in relation to employment should cease and that it should no longer be possible in this country to dismiss a woman from employment simply by reason of her married status.
On both occasions, several Senators suggested to me—and indeed, I think, both the Ministers concerned—that while at any rate they might be prepared to discuss the problem, they felt that an individual Bill such as the Local Government Bill or the Civil Service Regulation Bill was not the place in which to discuss what was more than a point of detail, a general principle, the general principle of the status within the State of the married woman. Consequently, when I pressed both amendments in detail, on the grounds that I felt that if we could get an improvement in detail, we might later on get an improvement in the general picture, the amendments were rejected by the Seanad.
Now, however, that we have precisely this general Bill dealing with the whole status of married women within the State, it cannot be said we are trying to "get in the back door," as it were, on some side issue, a principle with which the Bill is not concerned, because here the Bill is specifically concerned with defining the status of married women; and the Minister told the Dáil in his opening remarks on the Second Stage that it was intended by this Bill to remove the last disabilities placed upon married women in this State and said, with justification, I think, that he felt a certain pride in the Bill in that it did remove the last of the disabilities under which married women suffer under our law.
When on the Second Stage, I pointed out there was still this disability, that married women get dismissed on marriage—and I mentioned the case of teachers—the Minister replied that the dismissal of teachers on marriage was not prescribed in any law or piece of legislation, but was a matter of departmental regulation. Nevertheless, even for married women teachers if the Married Women's Status Bill laid down the principle that, in the view of the Legislature, married women should not be dismissed from their posts simply because they enjoy married status, then I feel the framers of these Department of Education regulations or other such regulations would tend to take that into account when reframing their regulations.
Furthermore, in the case of civil servants, it is not merely a departmental regulation which requires married women to retire on marriage. In the Civil Service Regulation Bill, 1956, which I have mentioned and which I tried to amend, this House and the Dáil passed the Bill containing a section, Section 10, the first sub-section of which reads:—
"Women holding positions in the Civil Service other than positions which are declared excepted positions under sub-section (2) of this section, are required to retire on marriage."
That is a piece of legislation; it is not a departmental regulation. It is a piece of legislation which requires women—it lays it down as the law—to retire on marriage and that was maintained in the Bill, despite any pleas that such a decision might be left to the individual woman, and that she should not be discriminated against by reason of her married status.
That leads me to hope, consequently, that the Seanad will see the force, and indeed the necessity, for this amendment if we are really to consider this Bill as a Bill one of whose purposes is to remove the last disabilities which married women in Ireland suffer under the law. I am taking this as an individual point—I am not saying this in a general criticism of the Bill which I think is a very good Bill. I am pointing to one discrimination, one glaring discrimination, which remains—there are one or two others also—in that a married woman in the Civil Service and in certain posts in this country is debarred in some cases from continuing in employment and in other cases from seeking employment or from entering employment by sole reason of her married status. It is for that purpose that I should like this additional paragraph (f) to be added to sub-section (1) of Section 2.
Surely the purpose the Senator has in mind would not be achieved by his amendment? At the present moment, the position is that a married woman is, in fact, capable of seeking employment, of entering employment, or of continuing in employment. The position about which the Senator is worried is that there are people who will not allow her to continue in employment, but if this amendment were accepted, that situation would not be altered. Whatever opinion one may have about the bar against married teachers or about civil servants who are compelled to retire on marriage, or the bar which I think certain trade unions have in certain trades, nothing in this amendment would alter the present situation. I suggest to the Senator that, if he desires to remedy the situation which exists, this amendment certainly does not do it. It adds nothing to the existing state of affairs. A married woman is now capable of seeking, entering and continuing in any employment and the amendment does not add anything to the position.
It seems to me that everything that is in the amendment is already covered by paragraph (b) of the section. That paragraph provides that, subject to this Bill, when enacted, a married woman shall be capable of contracting as if she were unmarried. That amounts to saying what is in the amendment, namely, that she shall be capable of seeking, entering or continuing in employment. It means, merely, that she is capable of contracting. It seems to me that there is nothing in the proposed sub-section which is not already in paragraph (b).
I am in favour of this amendment in principle. But I would agree with the other speakers that this is probably not the best occasion for pressing this principle. What we want is a really good debate in this House on the question of the rights and wrongs of employing married women in the Civil Service and elsewhere. If, on this Committee Stage, we could have that debate, I would welcome it. But I hardly think that, in the circumstances, we can have it now. I hope Senator Sheehy Skeffington or some other Senator will have an opportunity of putting down a motion for a full-dress debate on this subject. I am aware that there is opposition to this principle but I cannot get any reasons for the opposition. One of the speakers to-day said he is opposed to it; I take it he does not think this is the time or the place to give his reasons for his opposition. I should like these reasons to come out into the open: but I do not think that this is the occasion for it. Therefore, while I support the principle of the amendment I do not think it should be pressed on this occasion.
Senator Hayes suggests that no purpose at all is served by this amendment. He says that a married woman can at the moment continue in employment. He says she has the legal right so to do——
No. I suggest she is capable of continuing——
Subject to correction, I take it that the word "capable" in the Bill means legally capable—not, I think, physically capable.
If, as is suggested, a married woman is capable legally of remaining in employment, why do we venture to pass a law saying she must retire on marriage? If you say that a married woman must retire on marriage how can we hold at the same time that she is legally capable of remaining in employment? That seems to be an example of "double-think" in which I am not capable of following the convolutions.
My amendment simply asks that a married woman shall be capable of remaining in employment, and so on, as if she were unmarried. The wording of the actual proposed sub-section is that she shall be just as capable of seeking, entering and continuing in employment as if she were unmarried. The section sets out a number of things which she shall be capable of doing just as if she were unmarried, and despite the fact that she is married, I would add one other definition relating to continuance in employment and the seeking of employment. I suggest that were a married woman to seek employment in the Civil Service her application would not be accepted, because she would not be considered as having the right legally to apply. Therefore, I suggest that several of our laws already enshrine this restriction upon married women.
On the Second Reading, the Minister said that this Bill was for the purpose of freeing married women from restrictions which now, he said, would be "abolished altogether." I am underlining the fact that there is one restriction which is not abolished altogether, I feel the Minister is in sympathy with me when I say I think this is an unjust disparity remaining in relation to the married woman, namely, that she is not allowed freely to choose whether she will remain in employment or not, as a single woman is.
Senator Cox said that under paragraph (b), we were already granting a married woman a right of contracting. I am not a lawyer and I defer to him in this matter but he suggests that contracting would cover the question of entering and continuing in employment. I should hate to cross swords legally with Senator Cox but I should just like to put the question as to whether seeking employment is a contract—whether, by seeking employment, one is contracting anything. Continuing in employment might come under the head, perhaps, of contracting, in which case I would ask him whether he thinks the regulation in the Civil Service Regulation Act will becomeultra vires once we pass this sub-section. If this sub-section really means that a married woman shall be just as capable of remaining in employment as an unmarried woman then Section 10 of the Civil Service Regulation Act would appear to me to be null and void. I wonder if Senator Cox thinks that and I also wonder if that would be the legal interpretation of it in the courts were it to be contested.
Senator Stanford says this is not the best occasion to raise this matter because he feels we cannot have a general debate on the Committee Stage. He would like a general debate, presumably, on a motion. I feel that while that would give rise to the possibility of stating views on this matter it is open to two objections— (1) the objection that anybody who wants to give his views against this principle can do so here and now and (2) the objection that even if we pass a general motion without amending this Bill we would then subsequently have to produce an amending Bill to deal with this special aspect of the status of married women. For these reasons, I feel this is the time and the place to express our views. I feel that the best way, in justice, to express them is to pass this amendment.
I cannot accept the amendment and neither can I agree with Senator Sheehy Skeffington's view. Last December, the Senator had a similar amendment in connection with the Civil Service Regulation Bill and, as recently as that, the House expressed its views on the matter.
I have to consider the rights of the employers as well as those of the workers. Can we dictate to an employer that he must employ a person who is married? The question in relation to the Civil Service Regulation Act is a matter of public policy and it has been decided in that light here and in the other House. There is a lot to be said against laying down in this Bill—which it was never intended to do—that an employer should be compelled to give employment to a married woman. Some unions might put up another argument about married women depriving other people of employment.
I regret I am unable to accept the amendment because of the decision arrived at here last December. It is not a matter for this Bill. We cannot and ought not to interfere with the freedom to contract and the freedom to employ.
May I just say that, in a sense, my point has been proved? We will not get a debate on this fundamental matter on the Committee Stage of any Bill. It would be well worth debating. It would be well worth while putting down a motion, eliciting the reasons for and against, and, on the basis of that motion, proceeding further. I think my view has been proved in practice this afternoon.
The Minister now recognises that all restrictions on married women are not abolished by this Bill. There is one remaining which, for reasons of public policy or for some reason, he feels must remain. Therefore, he loses the right, I am afraid, to say that we are abolishing all restrictions. Secondly, may I point out, in differing from Senator Stanford, that I think he forgets what this Bill is about? This is a general Bill dealing specifically with the status of married women. It could not be more specific it could not be more comprehensive. It deals with the whole general position in the State of married women and, although the Seanad may find it awkward to discuss and give reasons, and although Senators may be reluctant, there is no question but that this is the time and this is the Bill upon which to state their views and reach a decision. There could not be a more general Bill dealing with a more specific subject: the status of married women in all its aspects. Here is one of them under Section 2——
An employer might not employ married men, either.
All I am asking is that married women be dealt with on the same footing as single women. There is no question of forcing an employer to employ them, but simply that they be given equal status, and "status" is the operative word.
Amendment put and declared negatived.
Will those in favour of a division please rise?
Senators Stanford, Sheehy Skeffington and McHugh rose.
The Senators will be recorded as dissenting.
I move amendment No. 2:—
To delete sub-section (2) and substitute a new sub-section as follows:—
( ) Sub-section (1) of this section shall not apply as between husband and wife, save in respect of proceedings by either of them against the other for negligence in the driving of a vehicle.
Sub-section (2) of Section 2 provides:—
"Sub-section (1) shall apply as between a married woman and her husband in like manner as it applies as between her and any other person."
In the present context, that means that the husband and wife would be capable of suing each other in the same way as if they were not married. That is a very fundamental alteration of the law as it has always been. I think this alteration in the law has been suggested without any public demand for it. In the Dáil, when the Bill was discussed, this section was queried—there was no division— by Deputy Finlay, Deputy Boland, Deputy Dr. Esmonde and Deputy Moylan, all of whom are people to whose views a great deal of attention should be paid. The amendment I am offering is that the sub-section as proposed should be deleted and that instead it should say that sub-section (1) shall not apply as between husband and wife, save in respect of proceedings by either of them against the other for negligence in the driving of a vehicle.
The one point which has arisen as a practical matter, and in which, perhaps, hardship has arisen in the past, is one arising out of the many accidents that occur. It is that, in motoring, under an insurance policy, liability did not arise to an insurance company to indemnify because no right of action existed if the accident occurred because of the negligence of a wife, when she was driving, causing injury to her husband or by the negligence of the husband causing injury to the wife. That is a matter that should be provided for, but in general I would feel extremely strongly that there has been no case whatever made for an alteration in what has been always a fundamental law. It is not merely a question of the law of this country but of the law of every country in the world, so far as I am aware, except only the State of New York.
I understand that in the State of New York—this was mentioned in the debate in the Dáil—a change in the law was made such as is suggested here. That change was made about 20 years ago, but no other country in the world has sought to adopt that change, except this country in the present Bill. As I have said, that is being done without the slightest public demand of any kind for what is undoubtedly a radical alteration in the law. It seems to me to be entirely an experiment, more or less saying: "We are making a law now; let us try this on", but I would impress on the Seanad that, while there has been no demand for what is now proposed, if the Seanad adopt it and if the Bill is passed in the form in which it is proposed, it will be almost impossible to alter it afterwards.
In the Dáil, Deputy Finlay in particular referred to the many difficulties and grave consequences which might arise if it were possible for husband and wife to engage in litigation with each other. It appears to me that, if the section is adopted as it stands, not only are we altering what the law has always been, but we are practically calling on the courts to frame a completely newcorpus of law and it is almost impossible to see where that may bring one. It appears to me— and I am speaking now with sincerity, I hope, and experience of about 40 years' practice as a solicitor—that the kind of thing the Bill is seeking to do is something for which there is no demand and which can only give rise to the most vexatious consequences.
In this Bill, there is a section, to which I am opposed, removing the restriction upon anticipation. The grounds given for that are that it might give rise to fraud on creditors. If the section is passed in the form now suggested, the door is thrown wide open to fraud. If either the wife or the husband realises that the other spouse is about to become insolvent, it would be perfectly easy to take collusive action in which a judgment might be obtained which would ante-date any proceedings bybona fide creditors. That is merely one aspect of the sort of thing that might arise.
Another aspect was discussed a good deal in the Dáil and the Attorney-General dealt with it in considerable detail. It is the possibility, if the Bill is passed as it stands, of either spouse, who happens to be the owner of a house or premises, forbidding the other to enter. It is only common sense to say that, if matters have reached the stage between husband and wife that they have to go to law against each other, it is time then to consider separation. It does seem somewhat ludicrous to contemplate the feelings of the children when the parents return in the evening to be met by the children inquiring how the family litigation got on in court that day. The kind of consequences that might result if this change is made in the law seem almost laughable.
I would argue very strongly against adopting this section. As I have said, the section was not called for and it will lead to difficulties inevitably, difficulties which no one can really foresee now. If this change is made it will be almost impossible later to remedy the damage done. If we adopt this section the law as between husband and wife will in future be different here as compared with any place else in the world, with the exception of the State of New York. For that reason, I would like to press the amendment.
I support Senator Cox in this amendment. The dangers that can arise if the section is enacted in its present form are obvious. As Senator Cox has stated, the enactment of this section could give rise to vexatious and undesirable actions as between husband and wife. Like Senator Cox, I do not see what has occurred in the social life of the country which would justify our passing this section as it stands. A fundamental change in the law as between husband and wife is envisaged. We should be very careful before we pass legislation of this kind. Because I feel we should give this matter much more careful consideration, I appeal to the Seanad to accept the amendment tabled by Senator Cox. If the amendment is accepted the matter will then go back to the new Dáil and the new Dáil will have an opportunity of considering it.
It will be argued by the Minister and by those in favour of the section as it stands that a husband or a wife already has the right to sue in criminal cases and that each is a competent and compellable witness against the other. That is the legal position in relation to criminal cases but there is a vast difference as between criminal actions and civil actions. In criminal actions, not alone are the mutual rights of the husband and wife involved, but there is also involved the peace and good order of the community. In the case of civil actions the rights are confined to the parties concerned. For these reasons I support the amendment though I am a bit doubtful in relation to the terminology of the amendment especially the last few words, "negligence in the driving of a vehicle." I think it would be better to insert there, "negligence in the driving of a mechanically propelled vehicle," because those are the words used in the Road Traffic Act.
The vehicle could be drawn by a horse.
But that kind of vehicle would not be covered by insurance.
The general position is that it is not covered by insurance. One of the objects of this amendment is to give the husband and wife the right to sue each other in tort in cases where one or other suffers injury as the result of an accident. Senator Cox is quite rightly endeavouring to segregate these cases, which would be covered by insurance, from the other undesirable provision in the section, namely, the giving of the right to the husband and the wife to sue each other in tort in the civil court.
My difficulty in understanding the amendment and the section is that we have not had it quite clearly defined as to what constitutes undesirable litigation between husband and wife. We have now reached the stage, as a result of Senator Kissane's speech, wherein we are not quite clear in relation to the provision that a husband and wife can only sue each other as a result of an accident arising out of the use of a mechanically propelled vehicle, whether there might not be other instances where, following the same line of argument, it would be desirable that the wife could sue or be allowed to sue. For these reasons I do not feel too happy about the amendment whilst, at the same time, not being very clear as to why the sub-section is there at all. I would like to have the whole matter better explained, if possible, before we are asked to make up our minds.
Undesirable litigation would, in my opinion, be slander, assault, conversion or detinue. That type of litigation between husband and wife is extremely undesirable. There is a danger of our encouraging the bringing of grievances into court. In this country, where the sacredness and the permanency of the married state is so much respected, possibly to a greater extent than in most other countries, I think we should be very slow to introduce this type of legislation which, as Senator Cox has stated, applies apparently now only in the State of New York.
I feel, however, that restricting the amendment to negligence arising out of injury caused by a mechanically propelled vehicle is possibly going too far. For instance, I can imagine husband and wife playing golf and the husband injuring his wife by the swing of the club or by the golf ball. In those cases, as Senators are aware, quite frequently there is a golfer's policy which covers them. Furthermore, one could visualise a wife being injured in her husband's business premises owing to some defect or some negligence on the part of the husband which is covered in an insurance policy. I suggest, therefore, that if the Senator would consider leaving out the words "in the driving of a vehicle," it would cover cases in which insurance companies are involved and where otherwise they would not be able to recover under the insurance policy.
In the other House, there was also the question of a joint tortfeasor. If a husband and a third party are both liable, the third party cannot obtain a contribution from the husband if the wife obtains judgment or a decree against the third party. At present, a wife cannot sue at all under existing law, if there is contributory negligence. As has been mentioned, I understand that a new Civil Liability Bill is to be introduced at a later date, under which it is proposed that in cases of contributory negligence each party will be responsible for the percentage attributed to his own negligence. For that reason, I think the section as set out is a desirable one and is necessary, but it should be restricted, as Senator Cox has indicated, to cases arising out of negligence.
I note that the definition of a vehicle is "any kind of carriage or conveyance for use on land, having wheels or runners." If we progress as we are doing at the moment, I can well visualise some time when a husband would take his wife out for a run some evening in a helicopter. He may be negligent and he may be insured, but a helicopter is not a vehicle, according to the definition.
I agree it has wheels, but it is not really intended for use on land, and, while it has wheels, I think it may not be covered. However, that is only a very small point. Apart from that, I certainly agree that it is a very serious matter to allow this type of litigation to be brought into the courts and we should think twice before we permit that section, as it stands at the moment, to pass through this House.
I find myself in disagreement with the proposer and supporters of this amendment. I am afraid I do not agree with Senator Cox either about the state of marriage, or the State of New York, for that matter. I do not see why the fact that the State of New York alone so far concedes the right of a man and wife to resort to litigation against one another about tort and so on, necessarily puts the State of New York outside the pale. We should not be in such very bad company if we were to find ourselves on this issue alone in the world with the State of New York.
The permission to husband or wife to indulge in this kind of litigation is very far from forcing them to do so. In fact, I think Senator Cox would recognise that very frequently the right to resort to litigation has a salutary effect upon general relationships, not only relationships in married life but relationships between people. The right to resort to litigation, to resort to the courts, has an effectin terrorem which materially improves conditions without one ever having to resort in fact to the law. One could cite many examples of that, and I should merely weary the Seanad by attempting to do so. I feel that to grant this right, therefore, would not in fact lead to an immense outcrop of litigation—though I must say it is unusual to find two lawyers getting up in the House and deploring a measure which might increase litigation.
It shows how serious they are.
It is a very disinterested action on their part, and it shows how serious they are, as Senator Mrs. Dowdall says, about the whole matter, and I think it is sufficient to merit commendation.
Senator Walsh says it would be dangerous to allow a wife to sue for assault. I am not a lawyer, but I understood it was possible.
I understood it was quite possible to have assault cases brought. One sees them brought in the courts by women who are beaten by their husbands. I do not feel that that right to resort to the courts in any way helps to break up a home. On the contrary, I think it encourages an attitude of mutual respect, the attitude one would expect.
Senator Cox and Senator Walsh both seem to fear that people would rush to litigation, that married couples would rush to the courts at the first little upset. I do not think so at all. I take a more common-sense view of marriage than believe that, and I think most married people do. I do not think there is any question of everybody rushing to the courts. I was slightly perturbed, however, by one suggestion made by Senator Cox. He says that if things have gone so far and the husband or wife reach the point where they would litigate, in that case the marriage may well break up, and they certainly might as well go to the courts and get a separation. I wonder if the Senator sees the full implications of that, and I wonder whether the Seanad accepts the full implications—that we are about to refuse a right in minor litigation and put it up to the husband or wife that, if they are suffering under such a grievance, they must apply for a separation and that that is the minimum they can ask for. I think that argument is not a very strong one. It is quite obvious that the effect of being able to go to law might be quite valuable, and might not, in fact, lead to many cases at all. I think it is always true to say that when you try to change the law somebody will say: "If you permit this, it is the end of civilised life, the end of all marriages."
I happened to come across a quotation from a recently published book on family law ("A Century of Family Law," edited by R. H. Graveson and F. R. Crane). It refers to the fact that in 1891 a law was introduced which finally extinguished the right of the husband to lock up his wife. In the "Nineteenth Century Magazine," in May, 1891, this piece of legislation was hailed with the sentence: "One fine morning last month marriage in England was suddenly abolished," the suggestion being that if a man could not lock up his wife that was the end of marriage as an institution.
I feel that in a sense Senator Cox is taking up that attitude. I think he is entirely too pessimistic, that he takes too gloomy a view of the institution of marriage, and of the common sense of the ordinary man and wife. I do not believe that the rights given under this Bill will lead to abuses. I think that the whole point was very well dealt with in the Dáil by several Government spokesmen. The Attorney-General himself, I think, dealt with it. The whole question was very carefully gone into, and the case made by the Opposition was met very well by the case made by the Government speakers.
Therefore, I would be opposed to the amendment, and I would say finally, in opposing it, that I do not even think it is clear what the implications in the amendment would be because it says:—
"Sub-section (1) of this section shall not apply as between husband and wife save in respect of proceedings by either of them against the other for negligence in the driving of a vehicle."
Sub-section (1) refers to the acquiring, holding and disposing of any property on the part of a wife. It refers to the capacity of a wife to enter into contracts; it refers to the married woman being capable or liable in regard to tort, contract, debt or obligation, to her being capable of suing and being sued and to being subject to the law relating to bankruptcy and the enforcements of judgments and orders. I am not sure what the effect of Senator Cox's amendment would be. It seems to say that none of these provisions shall apply at all as between husband and wife, except in cases of accidents arising out of negligence in driving a vehicle and what would be the full implications were we to pass his amendment? I would suggest that they are more far-reaching than are realised by the proposer and seconder, and for all these reasons I am opposing the amendment.
I would not like an opportunity of agreeing with Senator Sheehy Skeffington to pass. I must say that a couple of points about this amendment strike me. Having heard the case made for the amendment, and having heard Senators Kissane and Walsh support it, it appears to me that the meaning of the amendment is that a husband and wife may not sue each other except in cases where they can make an insurance company pay.
I wonder if that is correct. That seems to be a rather curious doctrine; they are to be prevented from suing each other except where an action by either of them involves payment by an insurance company. I am not so sure that is a high moral standard. I think I am right in saying that a wife cannot at present sue a husband for injury through negligence. Under this section a wife can sue for injury through negligence, for assault, for libel or slander. If a wife is assaulted to the extent that she must seek the protection of the courts, should she be prevented from seeking that protection? At the moment she may call in the police and get a criminal assault prosecution preferred against the husband. However, I do not know how this amendment could work.
I think Senator Sheehy Skeffington is right when he says that the amendment implies more than Senator Cox intended. I think marriage can stand up to a great deal more than the rights given under this section. I do not see why, in modern circumstances, a wife should not have the right to sue her husband for negligence and to take an action for assault. The fact that she has not got such rights does not seem to me to be a very great rampart, support or bulwark for matrimony. I do not think that the absence of such rights is a support for Christian marriage.
The effect of this amendment would be to prevent one spouse suing the other in any type of action except where there is negligent driving of a vehicle. This would mean that one spouse could not sue the other in contract and one spouse could not contract with the other. This would effect a radical amendment in the existing law.
In the case of tort, the amendment would prevent a wife suing for the protection of her separate property, which would also be a radical amendment of the existing law. If the Senator's object is to prevent one spouse suing the other in tort except for negligent driving one may fairly ask why this form of negligence is to be singled out for separate treatment. Not, I assume, because, in cases of the kind, the risk may be covered by an insurance company. Else the scope of the amendment would be restricted (which it is not) to mechanically propelled vehicles. Besides it would be a most questionable procedure if we were to act on the principle that it was all right for a wife to sue her husband if an insurance company was going to foot the bill but not otherwise. Is there any valid distinction in the present context between one kind of tort and another? If a wife is injured by her husband's negligent handling of a gun when, perhaps, she has been forced to join a shooting party by a husband who was drunk at the time, is she to have no civil remedy? And what if the wife is injured by a bull or a stallion that is not kept under proper control or is involved in a boating accident or sprayed and perhaps blinded by some corrosive substance? Is she to have no remedy no matter how reckless or negligent the husband may have been? And if she is violently assaulted and injured for life is she to be left with no other resource but to call in the police?
Where the act of one spouse is a criminal one a prosecution may be brought. We think it is far better to allow a wife to sue her husband civilly for assault than to force her to bring in the State to prosecute him and put him to prison. The only other tort action apart from assault which is of practical importance as far as our proposals are concerned is defamation. A wife may, at present, sue her husband for defamation if the defamation is an interference with her separate property. Take the case where a married woman runs a sweet shop frequented by the children and young persons of the district and her husband spreads allegations as to her moral character.
If, say, a wife is prevented from taking civil proceedings for torts such as assault and defamation, the marriage may eventually end up in the courts and she will sue for separation. As the Attorney-General has pointed out in the Dáil we are introducing a valve at a lower pressure where there is marital discord.
It has been alleged that this Bill will mean the breaking up of the marital home. Surely, this is not so. On the Second Reading in this House actions in detinue were mentioned. A wife may sue her husband for wrongful conversion or detention at the moment, and the Bill makes no change. Senators should remember that when the stage is reached that one spouse wants to go to the courts against the other, there is very often little marital peace left to be disturbed. Experience in the United States has proved that allowing one spouse to sue the other in tort has not meant the breaking up of the home and the gloomy prophets who said it would have been proved false. Moreover, alternative solutions to the problem have proved unsatisfactory.
One of the difficult questions which arises is what is to happen when a third party is involved. Supposing the wife assists another person in beating up her husband, is the wife to escape responsibility and the other person to be totally liable although the law says there ought to be contribution between tortfeasors?
The two main objections raised to the proposal in the Bill are, firstly, that there will be collusion and, secondly, that the door will be opened to actions of an objectionable or undesirable type. As to collusion, we fail to see any more objection to a collusive action between a husband and wife than to a similar action between a parent and child. Anyway, collusive actions are most unlikely to succeed. Actions which may be brought at the moment are just as objectionable as those which may be brought under our proposals, and the Attorney-General pointed this out clearly in the Dáil. In the United States the courts have not been inundated with tort actions between spouses in those States where such actions are permitted.
It is common knowledge that actions in regard to property are fought much more heatedly and tenaciously than other actions; and the existing law allows these actions between married people. If the law, as we propose it, causes serious difficulty it can always be amended. I do not want to be a prophet, but I shall be glad in, say, ten years' time, if I live that long, to be shown an example of a case where the Bill as enacted will have upset the marital home or given rise to any more serious consequences than can result under the present law. The Government have considered this matter very carefully and we are satisfied that our proposal is the proper one to remedy what is a most anomalous position in our law.
Is Senator Cox pressing his amendment?
Amendment put and negatived.
Sections 2 to 5, inclusive, agreed to.
Question proposed: "That Section 6 stand part of the Bill."
I have an intimation from Senator Sheehy Skeffington of his intention to withdraw his opposition to the section.
I wish to oppose Section 6. As Senators are aware, it has been a very frequent practice that a settlor or a testator, either by deed or by will, makes provision that the interest of his daughter or the woman who would benefit under the will should, while she was married, not be subject to anticipation; in other words she would be protected and prevented from alienating the benefit that was given to her. That is a provision which has been found extremely useful and helpful and very much to the protection of many married women.
This Bill, I understand, does seek to give rights to married women but the fact remains that it is a desirable and proper thing in certain cases that they should be protected. Again it is very difficult to see for what reason it should be sought to alter the law in that respect. I do not know whether it has been considered if such an alteration is constitutional as regards settlements already in existence but it does appear to me that it is wrong and uncalled for to alter and make impossible a practice which has been operated for very many years to protect women.
As the law stands at present there is a power to the court in the case of hardship, if the court thinks proper, to release from the restriction. I do not think there has been any demand for this alteration in the law and I do not see why it is right or why it could be right that the law should now be altered so as to defeat the perfectly legal and proper provision which was made by settlors and testators at the time that they endeavoured to make this provision for the protection of their daughters or whoever it would be. Therefore, I wish to oppose the section.
I do not know if I could find myself entirely in agreement with Senator Cox on this amendment. The criterion which should guide us in cases like this is whether this equitable doctrine of restraint on anticipation has been resorted to in many cases, whether it is a legal provision which should be maintained for the purpose for which it was introduced the first day. I am inclined to think that the equitable doctrine of restraint on anticipation has become more or less outmoded. However, I cannot claim to be an authority on that and I would not like to be dogmatic on it but I would like if we could get from the Minister an indication as to the present efficacy of that equitable doctrine. It would be of great assistance to the Seanad if we could have that information at our disposal.
As Senator Cox has stated, this doctrine was introduced originally to ensure that an improvident husband would not make use of his wife's separate property for his own improvident purposes. While it may have been absolutely essential to have such a safeguard in bygone days, I do not know if it is so essential to-day. However, I would like to hear the Minister's case made before I would commit myself any further in this matter.
I feel, perhaps, I owe an explanation and an apology to the Seanad for having put down my name as opposing the section and then asking to have my name removed. Senator Hayes referred earlier to-day to taking an opportunity, which was not very frequent, of agreeing with me. I should like to take the opportunity, which perhaps is not very frequent either, of saying quite simply that I have changed my mind.
I spoke on the Second Stage, and I put down this amendment when I had the view that this form of legal protection for the married woman could be defended and might well be a good thing. Since then I have thought it over, and, I confess, gone into it a bit more deeply, and I am led to the view that while there is some substance in the case made by Senator Cox, the case on the other side is much stronger. Originally I felt that it was only right and just that if a father or any other testator wished to protect his daughter as a married woman from having her property frittered away by a dissolute or improvident husband, he should be able to put a restraint upon her right to anticipate and realise that property. That seemed to me to be a just form of protection, but I did not, I am afraid, fully realise the implications and the hardship that might be entailed for the individual married woman, by reason of this restraint upon her right to anticipate and realise that type of property. I think this was very well dealt with in the Dáil debate and the case made by the Government speakers there, the Attorney-General in particular, is unanswerable.
There was also, on this same topic, a debate in the House of Lords—in which the best case made, as it seemed to me, was not in favour of removing this right to place a restraint on anticipation—dealing largely with the married woman's rights to the use of her property, and dealing also with the possibility of evasions, and underlining the fact that it applies only to married women—that this was a form of protection given only in fact to married women, and in fact much evasion would be possible and a woman having had such property given to her could evade the restraint on anticipation by disposing of the property just a day or two before marriage, and that thus it was quite possible to evade that restraint on anticipation.
I came across a sentence, which I shall quote, from the article by Mr. C. A. Morrison, on Contracts, from the same volume to which I have previously referred, and in which he deals, on page 124, specifically with the question of anticipation on restraint. He makes the point that it was protection given to married women but not to single women and the comment on the 1882 Act, in his words, "had some justification in saying that it was ‘an ill-conceived and ill-drawn Act, sanctioned by the ignorance and stupidity of Parliament, and rendered more complicated by the subtlety of judicial interpretation.'" I feel that we must vote with the Minister on this question and against the proposer of the amendment, because what it amounts to is that, by rejecting the section, we would be giving protection to married women in a way which might constitute something far more than mere protection. I feel that we should be prepared to treat the married woman as a responsible adult, and not subject her to over-protection, which might have a crippling and hampering effect.
There is also another unfair aspect of this, and that is that very frequently a creditor of the married woman finds himself disbarred from realising claims against her by reason of the fact that there is a restraint on anticipation of portion of her property. The same Mr. C. A. Morrison on page 127, said: "The often defeated creditor found that the married woman was not in the same position as the single woman and that as regards her capacity to contract she had all the rights, but not all the liabilities, of independence." Any fair-minded upholder of the rights of women must hold that they should have equality of liability as well as equality of rights, and that particular unfairness to creditors must be recognised also as arising from retaining this concept of restraint on anticipation.
I think Senator Kissane has already pointed out that the matter does not arise very frequently now, so that it is more a point of academic interest. I feel that the law and the Bill as at present framed are suitably framed. I feel that the married woman should be allowed to realise her own property, and to do what she will with it without the necessity of having to go to the courts. I believe that the married woman, just as the single woman, or the married man and the single man, should have a full right to the free disposition of property. I feel that in opposing this section we should be failing to treat a married woman as a grown-up person. For that reason I do not oppose the section and I support the present wording of the Bill.
I understand that on the last day Senator Cox made a case which was not quite the same as the one he made to-day and, like Senator Sheehy Skeffington, I thought there was something in it. But looking at it and making inquiries about it the position appears to be that a man whose daughter is getting married can make over property to her and she can then enjoy the income from the property or from the capital. She cannot use the property and the only thing which she can do, as the law stands, is to go to the court and seek permission from it to allow her to use some of the capital for her own purposes but not for her husband or family. That concept seems to be based on the outmoded notion of the relations of men and women and of the relations of man and wife. It implies a wife as a clinging vine and with a husband against whom she needs to be protected.
As Senator Sheehy Skeffington pointed out the court cannot remove the restraint generally. The position also, of course, is that she may contract a debt; she may owe money to a creditor and the creditor may be by no means a rich person and the person owing him the money has considerable property which she cannot get at. That situation can be used therefore to defraud a creditor. I understand from some inquiries which I have made that it has been frequently used for that purpose. I think this is the only country in the world now, since Britain abolished this particular restraint on anticipation in 1949, with this position. Whether we like it or not we will have to abandon the idea that a married woman's property needs protection and that she needs a restraint which is not operative when she is single, or very young, and which is not operative when she becomes a widow. It seems to me that we should allow any person to dispose of his or her property at his or her discretion and for that reason I think the section as it stands is a good section and should not be taken out of the Bill. If there is a case where a parent with a daughter getting married feels that he wants to give her the use of income from property, but does not want to give her the right to dispose of the property, he can create a trust. In that case the annual fruits would become hers. I think I am right in that.
I feel that the objection to the section is based upon a notion which is, as I say, outmoded and even though there may be individual cases where things might go wrong we have to look upon a married woman as an adult capable of doing her own business and we will have to remove the idea that the courts must have power over her property. For that reason it seems to me that this section brings our law into line with the law of other countries and is desirable.
There is also the question of the impossibility of utilising the property for good purposes, such as education of children and so on.
And medical treatment for husbands.
We must take those into account.
What is the Senator's attitude towards the section?
I should like to press my opposition to it.
Question put and declared carried.
Government amendment No. 3:—
To delete the section and substitute the following:—
7. (1) This section applies to a policy of life assurance or endowment expressed to be for the benefit of, or by its express terms purporting to confer a benefit upon, the wife, husband or child of the insured.
(2) The policy shall create a trust in favour of the objects therein named.
(3) The moneys payable under the policy shall not, so long as any part of the trust remains unperformed, form part of the estate of the insured or be subject to his or her debts.
(4) If it is proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, on account of their debts, payment out of the moneys payable under the policy, so, however, that the total amount of such payments shall not exceed the amount of the premiums so paid.
(5) The insured may by the policy, or by any memorandum under his or her hand, appoint a trustee or trustees of the moneys payable under the policy, and may from time to time appoint a new trustee or new trustees thereof, and may make provision for the appointment of a new trustee or trustees thereof and for the investment of the moneys payable under the policy.
(6) In default of any such appointment of a trustee, the policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives in trust for the purposes aforesaid.
(7) The receipt of a trustee or trustees duly appointed or, in default either of any such appointment or of notice thereof to the insurerer, the receipt of the legal personal representative of the insured shall be a good discharge to the insurer for any sum paid by him under the policy.
(8) In this section "child" includes stepchild, illegitimate child, adopted person (within the meaning of the Adoption Act, 1952 (No. 25 of 1952)), and a person to whom the insured isin loco parentis.
(9) This section applies whether the policy was effected before or after the commencement of this Act.
There is a misprint in sub-section (7). The word "insurerer" should be "insurer." The amendment is merely a drafting amendment. It proposes to substitute a new section for Section 7 so as to make it quite clear that the right of a beneficiary under an insurance policy will be a trust right. Having considered the matter again, it has been decided to use the wording in Section 11 of the Married Women's Property Act, 1882, and to extend that wording to cover endowment policies.
Under our proposals, if the insured person dies, the policy moneys will be part of the estate of the person for whose benefit the policy is taken out. Section 8, which deals with ordinary contracts, merely gives a contract right.
There is a typographical error in the amendment.
That is in sub-section (7).
"Insurerer" instead of "insurer". It occurs in the third line of sub-section (7). That can be corrected. It is merely a misspelling.
Amendment, as altered, agreed to.
Section 7, as amended, agreed to.
Sections 8 to 10, inclusive, agreed to.
I move amendment No. 4:—
In sub-section (2), lines 51 and 52, to delete "where alimony has been ordered by a court to be paid and has not been duly paid by" and in line 53, the word "he".
I raise this merely to clarify the position. I know that the sub-section, as it stands, is existing law, but it seems from the way in which it is worded that the principle that a husband would be liable for the necessaries supplied to his wife is possibly contravened by the manner in which it is put here. I understand that it has always been the law that a husband is liable for necessaries supplied to the wife. The sub-section, as it stands, is to limit that solely to where the husband has been ordered to pay alimony. It seems to me that the sub-section, as it stands, might, therefore, give rise to difficulties and doubts as to what the liability of the husband might be in the case of necessaries.
We are opposing the amendment. The Senator appears to be under a misapprehension in this matter. What in effect his proposal means is that if alimony is being paid the husband is still to be liable for the wife's necessaries. That is not the law nor should it be the law. Alimony is paid to allow the wife to keep herself and it is on this basis that it is fixed. When a woman is separated from her husband she is not his agent for necessaries. That is no more than reasonable. If, however, he does not pay the alimony the position is changed. The wife is not getting anything from the husband to keep herself and it is only fair that she should be able to contract for food and clothing as the agent of her husband. Where husband and wife are living together and there is no question of alimony, the wife is the agent of her husband for necessaries and that position is being preserved in sub-section (1) (d) of Section 11. We cannot accept the amendment.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Section 12 agreed to.
Amendment No. 5 not moved.
Section 13 to 18, inclusive, agreed to.
Question proposed: "That Section 19 stand part of the Bill."
I mentioned this matter on the Second Stage and said I would oppose the section. The section lays it down:—
"Nothing in this Act shall be construed as requiring or authorising any body corporate to admit a married woman to be the holder of any shares therein, contrary to any enactment, charter, by-law, articles of association or deed of settlement regulating that body."
My purpose in opposing the section is that it seems to me that by the insertion of this section the framers of the Bill have specifically left unremoved a disability. This is an obvious disability on the married woman; if by any charter, enactment or by-law a married woman is prevented from holding a share in any body corporate that disability, under which at the moment she suffers by reason of her married status, remains unremoved by reason of this section. It seemed to me that that was going against the whole spirit of the Bill. I think I am right in saying—I speak subject to correction—that the case is more theoretical than practical. It does not, in fact, arise in many cases, and it might even be difficult to cite a case. I would appeal to the Minister to be bold enough to drop the section.
I am prepared to accept the Senator's suggestion to delete the section. We do not think the section is necessary or that any difficulty will arise if it is omitted from the Bill.
Question declared negatived.
Section 19 accordingly deleted.
I move amendment No. 6:—
Before Section 20 to insert a new section as follows:—
On the death intestate of a married woman the devolution of her property shall be governed by the like rulesmutatis mutandis as those governing the devolution on the death intestate of a married man.
As the law stands at present, on a wife dying intestate, all her property goes to the husband. That is not now the law in England. I have never really quite understood why, on the death of the mother, the children would not share. I should like to propose that the law in that respect should be amended, that on the death of the mother, if she has not made a will, her property would pass, in like manner, in the reverse position, as already applies in the case of a husband. It is always open, naturally, to the married woman to make a will if she wishes to do so but, if she neglects to do so, I do not see why all her property should automatically pass to the husband and why the children should not benefit.
I heartily agree with Senator Cox in this amendment. I feel that the amendment has every merit but I understood that the Minister had undertaken to introduce a new Bill within a short period which would incorporate that particular amendment. If the Minister considers that it is more appropriate to incorporate the amendment in new legislation embodying intestacy and if it is proposed to introduce that Bill within a reasonably short space of time, perhaps it would be better to allow this Bill to pass and to have other legislation brought in within as short a space of time as possible.
As I mentioned, I am in full sympathy with the object of this amendment but I am afraid I am unable to accept it. As I said in the Dáil, we have under consideration a comprehensive Administration of Estates Bill which will bring the whole law of intestacy up to date. I hope that that Bill will place each spouse on the same plane as the other in so far as intestacy is concerned. In order to do that, a number of provisions will be required such as provisions to abolish curtsy and dower and to repeal the Intestates' Estates Act, 1954.
We are making one small change in the law of intestacy in this Bill but that concerns cases where there has been a legal separation. The Bill proposes to repeal the provision in the Irish Married Women's Property Act, 1865, which enacts that any property acquired by a legally separated wife after the separation shall devolve on her death as if her husband were then dead. There is no similar provision in regard to the property of the legally separated husband. I can assure Senators that these matters will be considered and will be in the new Bill under consideration at the present time.
In view of what the Minister has said, I propose to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 7:
Before Section 30 to insert a new section as follows:—
A Married woman shall on the death of her husband be the guardian of the infant children of their marriage.
As the law stands at present, the wife has not got an absolute right to guardianship. She may apply for guardianship and would have to give evidence that she was a fit and proper person. It seems to me that, if the father dies, the mother should, by operation of law, be the guardian of the children and that it should not be necessary for her to seek appointment and that the husband should not have the power to appoint someone else, not the mother, to be guardian.
Again, I am in sympathy with the object of this amendment. The question of the guardianship of infants is, however, a matter for a separate Bill and we hope to consider such a Bill when a suitable opportunity arises. Under the Guardianship of Infants Act, 1888, the mother is, on the death of the father, the guardian of the children either alone or jointly with any guardian appointed by the father or the court. If the mother is dead, the father is the guardian, but the mother may appoint a guardian before her death. If the father proves unfitted to be a guardian, the court may confirm the appointment by the mother. What we need is a Bill giving the mother and father equal rights as to guardianship and the appointment of guardians. Senator Cox's amendment in its present form would give the mother more rights than the father has at the moment because it makes no provision for the appointment of a guardian by the father. What we should seek to do is to give them equal rights as was done in England by the Guardianship of Infants Act, 1925.
I am speaking, of course, subject to any changes in the law which may have been brought about by the 1937 Constitution. If any amendment of the law is to be made, the position under the Constitution will have to be carefully considered as will also the law as laid down by the Supreme Court in some recent cases. There is also the question of the functions of the courts in matters of custody and guardianship.
Perhaps the Senator would withdraw his amendment. The whole subject can be considered with a view to having a separate Bill dealing with the guardianship of infants both when the parents are alive and when one or both of them are dead.
In view of what the Minister has said, I propose to withdraw the amendment.
Amendment, by leave, withdrawn.
Section 20 agreed to.
I move amendment No. 8:—
In sub-section (1), line 44, before "Married" insert "Married Man's Limitation of Liability and".
As I mentioned on the Second Stage, my purpose in suggesting an amendment of the Title of the Bill is to make it perhaps a little clearer that the Bill has a double function. My suggestion is that it should be called the Married Man's Limitation of Liability and Married Women's Status Bill. The sort of point I have in mind is that which is made, for instance, in Section 11, which states: "The husband of a woman shall not, by reason only of his being her husband..."—and then a number of liabilities from which he is free under this Bill are listed. Again, Section 10 states that a woman after her marriage shall continue to be liable for all debts contracted and all contracts entered into or torts committed by her before her marriage. That is a very important section which frees the husband of liability for his wife's pre-marriage debts and liabilities —a freeing of the husband of these liabilities and having in fact very little to do with the status of married women.
Again, in Section 14, the sole purpose of the section is to free the husband again of a certain liability. In frankness, we ought in the Title of the Bill to recognise that, while the principal concern is to deal with the status of married women, there is a secondary consideration which is not a matter of indifference to men and to married men in particular, that is, the limitation or removal of their liabilities. That is, in fact, recognised in the Long Title of the Bill, which does refer to the liabilities of husbands. I feel that that also ought to be indicated in the Short Title because, although one does not like too many words in a Short Title, nevertheless, the Short Title should contain the main elements. In this Bill, there are two main elements, both mentioned in the Long Title, and I think both should be mentioned in the Short Title. It is for this reason that I put down the amendment.
The point of having a Short Title to a Bill is that it is short. The Senator's point is covered in the Long Title. We cannot accept the amendment.
I think I have made my point. There is no necessity to press the amendment.
Amendment, by leave, withdrawn.
Section 21, Schedule and Title agreed to.
Bill reported with amendments.
Agreed to take remaining stages to-day.
Question—"That the Bill be received for Final Consideration"—put and agreed to.
Question proposed: "That the Bill do now pass."
I should just like to say on this Bill before we let it go, as it were, that I think the Minister and the Government deserve great credit for this kind of Bill. Despite the fact that we have had some controversy on certain aspects of it, and despite the fact that one might wish for certain amendments which have not been accepted, nevertheless the main body of the Bill and the intention of the Bill, the drafting and the framing of it, are of such quality that I think we are all agreed that the Minister and the Department should be congratulated on it.
I feel, perhaps, it is legitimate to say that at this time, when there may, or may not be a change of Government, that I would like to pay tribute to the concern of the present Government for legal reform and legal consolidation. I think if we look back over the last two-and-a-half years——
The Senator must confine his remarks to what is in the Bill before us.
I should just like to say, then, that I regard this Bill as an admirable example as it stands, by reason of what it contains, of the concern of the Minister and the Department, and I think one might say, indeed, of the personal concern of the Taoiseach, for legal reform, and we should not let this particular Bill go without saying that in itself it constitutes an excellent example of that concern and that intention admirably implemented.
Question put and agreed to.