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Seanad Éireann debate -
Wednesday, 10 Mar 1976

Vol. 83 No. 12

Family Law (Maintenance of Spouses and Children) Bill, 1975: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The Bill before the House proposes reform of a number of aspects of family law. It is not concerned only with changing the law relating to maintenance obligations, although this is one of its primary purposes. It also introduces a machinery for the enforcement of a wide range of orders by attachment of earnings; it contains a provision regarding the exclusion of a violent spouse from the family home; it proposes changes in the law relating to affiliation proceedings and a number of other reforms, including one relating to joint ownership of household allowances.

The Bill incorporates most of the recommendations of the Committee on Court Practice and Procedure in its Nineteenth Interim Report, entitled Desertion and Maintenance. I have already expressed publicly my appreciation for the very valuable work done by the committee, under the chairmanship of Mr. Justice Walsh, but I think it is right that I should take this opportunity to place it on record in this House. There are also some provisions in the Bill that are based on recommendations of the Commission on the Status of Women in their report to the Minister for Finance. If I do not formally thank the commission, it is only because their work covered a much wider field and its value to this community has long since been recognised.

The Bill has generally been very favourably received by the Dáil and by the public. I feel, however, that it is only fair to sound a clear note of caution at the outset of the discussion on the Bill in this House. The Bill is not just a simple little measure that does no more than to place the law in this country broadly in line with that in other countries. In fact it is a Bill that could have quite far-reaching social implications, not perhaps in the very near future but in the years ahead. In certain respects it goes considerably further than the law generally prevailing in common law—and some civil law —jurisdictions. For example, its proposal that it should be possible to obtain a maintenance order where the spouses are living together is one which is not by any means taken for granted in other countries. A very recent statement of the law in the United States has been to the effect that, unless the parties separate—and here I quote from Babcock, Freedman, Norton and Ross, Sex Discrimination and the Law: Causes and Remedies, at 623 (1975):

the wife's right is to what her husband chooses to give her, not what he can afford or what a Court thinks reasonable in the circumstances.

I believe that, on the balance of the argument, it is desirable to make the change, so that orders may be made when the spouses are living together, but it would be foolish to ignore or to minimise the fact that there is another view on the question. I mention this because it is perhaps the most obvious example, though not by any means the most important one. Indeed many of the Bill's proposals, far from being incontrovertibly the only reasonable ones that could have been put forward, have instead been made only after very considerable analysis and comparison with other possible solutions, each of which has many merits. In many areas of law, but perhaps especially in the area of family law, there is no such thing as perfection.

I turn now to the specific major proposals contained in the Bill.

I am sure that the Members of this House have taken an interest in the Bill during its passage through the Dáil and my remarks are premised on the assumption that Members are at least to some extent familiar with the substance of the Bill.

The primary provisions of the Bill are contained in Part II, section 5 to 9. Very broadly, the Bill proposes to abandon the present legal approach towards family maintenance obligations, which requires that a wife in seeking a maintenance order for herself should establish not only that her husband has failed to maintain her but also that he has deserted her. Moreover, under the present law a wife in no circumstances has an obligation to maintain her husband that is civilly enforceable by him. The Bill, in section 5, proposes that the court should be able to make a maintenance order in favour of either spouse where the other spouse.

has failed to provide such is proper in the circumstances.

The fact that the spouses are living together will not be a barrier to the making of an order. It seems undesirable that a wife whose husband is neglecting her by spending his wages on drink or gambling should be obliged to leave him, and try to establish constructive desertion, before being entitled to obtain a maintenance order. The argument against this view is that to give a remedy to the wife where the spouses are living together would encourage divisiveness and an overhasty resort to the courts because of trivial disputes. That argument undoubtedly has some merit but not sufficient, in my view, to decide the issue against extending the law as the section proposes.

No distinction is made in section 5 between the obligations of husband and wife. At first sight to do this might appear to be a simple matter of applying a principle of equality of treatment. However, the real problem that arises is what one means when one proposes that both spouses are to have a legally enforceable obligation, and an obligation expressed in identical terms, to maintain each other and their family. In the context of everyday living these obligations, however expressed, must be interpreted and applied in a way that takes account of the actual situation of the particular family—who is better fitted to be the breadwinner, can they both work, what are the needs of the children, and so on? Accordingly, to provide that spouses are both to have obligations, identically expressed, in regard to maintenance does not of itself resolve the problem of which spouse is to do what in individual cases. That this is not a problem which is easy to resolve is I would think supported by the fact that some degree of sexual differentiation is retained in the present maintenance law of Britain, Australia, most of the Canadian provinces and many of the States of the United States. For anybody who may be interested let me say that for an up-to-date account of the law in the United States, reference may be made to Professors Foote, Levy and Sander's Cases and Materials on Family Law, at pages 772-773 (2nd edition, 1976).

Although section 5 removes any distinction between the sexes, it does not, as I have said, imply that the spouses must provide an equal amount of money for the maintenance of the family. What is still the customary organisation of families means that, in general, it is the husband who goes out to work whilst the wife stays at home. The Bill takes account of the realities of life by providing in section 5 (4) (b) that the court, in determining whether to make a maintenance order, must have regard, among other matters, to:

the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

It seems reasonable to predict that a court, when determining the maintenance obligations of a wife with a number of young children, is not likely to require or expect the wife to go out to work. It is, however, easy to imagine a case where different considerations apply.

Let us take the case of a husband who is disabled in a car accident and who is confined to a wheelchair. His wife may have accumulated wealth, or she may be in a position to take a job—indeed she might have a very high earning potential. In such a case, it would seem only just that the wife should be expected to contribute to the maintenance of her husband, as of course the vast majority of wives so placed would want to do. In this as in so many other hypothetical situations, the law will come into play only in a very small percentage of cases.

However, the law can and does have an influence even in cases where the parties do not in fact resort to the law and it must be clearly recognised that, between the two hypothetical cases I have mentioned, there will be a large "middle ground" where the rights and wrongs of the case will be far less clear and in those cases the court will, in effect, be called on to make a value judgment and this in an area where social attitudes are certainly changing, and perhaps fairly rapidly. Section 5 has been drafted in a manner that should enable the courts to take account of such changes over a period without any amendment of the criteria set out in the section. I think that this is the best solution and I hope and believe that it will work. One cannot, however, be certain that it will work and one must therefore accept the possibility that some day a new Bill may have to be introduced to provide more specific guidelines to the courts, reflecting the attitudes then prevailing.

While speaking of section 5, let me refer briefly to section 5 (3) and 6 (3), which change the present rule that uncondoned adultery will disentitle a spouse from obtaining an order for maintenance. It is proposed that in future adultery should not be an absolute barrier to an award in all cases. One can envisage circumstances where there may have been an isolated act of adultery by a wife but, perhaps, a long series of adulteries by her husband so I think it will be obvious that it would not be right to retain the present rule whereby, irrespective of circumstances, an uncondoned act of adultery enables a husband to refuse to maintain his wife. Accordingly, the court is given a discretion in the matter.

An important change proposed by the Bill is in regard to the jurisdiction of the District Court in maintenance proceedings. Section 23 proposes that the maximum amounts which that court may order should be raised from £15 to £40 per week in the case of a spouse and from £5 to £10 per week for each dependent child. This means that in the case of a family with four children, the District Court could award maintenance of up to £80 per week. Of course, in very many cases, the husband's means would not be sufficient to sustain so high an award. I should mention that the High Court already has unlimited jurisdiction in maintenance proceedings.

Speaking of children, may I invite the attention of the House to the fact that, in section 3, the age of dependency is extended beyond the present limit of 16 years in two cases, firstly, it is extended to 21 years where the child is, or, if an order were made, would be, receiving full-time education or instruction at an educational establishment, and secondly the age is extended without limit where the child is physically or mentally disabled.

A provision of very considerable practical importance to a wife is contained in section 9, which provides that payments under a maintenance order will, in the ordinary event, be made to the District Court clerk, who will transmit them to the wife. If the husband falls into arrear, the District Court clerk will take the appropriate proceedings on behalf of the wife.

A major extension to enforcement procedures is contained in Part III of the Bill, which introduces a system of attachment of the earnings of a person who fails to comply with a maintenance order. The employer in such a case will be required to deduct a specific amount from that person's wages or salary and to hand it over to the wife. While it would be naive to imagine that the new procedure will ensure that the wife in every case will get the money due to her where her husband is in paid employment, there is no doubt that many wives will derive considerable benefit from the machinery either directly or because its existence on the statute book will deter some husbands from ignoring their obligations.

A provision in the Bill which should prove to be of considerable assistance to a number of wives is contained in section 8. This enables either spouse to apply to the court to have an agreement between the spouses which includes provisions relating to maintenance registered as a rule of court. The court will only register the agreement if:

it is satisfied that the agreement is a fair and reasonable one which in all the circumstances adequately protects the interests of both spouses and the dependent children (if any) of the family.

The effect of registration is that the maintenance provisions in the agreement will be enforceable in the same manner as a maintenance order. In other words, the attachment of earnings provisions will be applicable, and the District Court clerk may be brought in to assist in the collection of payments. This is a very considerable advance on the present law which requires the wife, if her husband ignores his agreement to pay maintenance, to take full proceedings for breach of contract against him, with less extensive enforcement procedures available even if she obtains a judgment against him.

The fact that an agreement has been registered under section 8 does not mean that the wife—or indeed her husband—is prevented from applying for a maintenance order under section 5 of the Act. Section 8 does not, however, permit a spouse to apply for a variation of the agreement which has been registered, for the good reason that if this could be done, a wife who had negotiated a specific sum to be paid under the agreement would have no guarantee that it would continue to be paid. Her husband could walk into court shortly after the agreement had been registered seeking a variation. It is primarily to protect the wife that the section does not permit variation. She is assured that she will continue to be entitled to receive what is due to her under the agreement and, if this is not enough, she may, as I have said, apply to the court under section 5 for a maintenance order. I am satisfied that, although a quick reading might suggest otherwise, the section as drafted affords better protection to the weaker partner in the marriage and I suggest that it does this without being unfair to the other partner.

I will turn now to Part IV of the Bill. Senators will notice that section 28, which proposes a number of amendments to the Illegitimate Children (Affiliation Orders) Act, 1930, is a very long section—extending over more than three pages. The essential purpose of the section is to place affiliation proceedings in line with maintenance proceedings under Part II of the Bill. The principle involved here is simple and one which I believe will be generally welcomed but, on a technical level, the drafting of the requisite provisions to amend the 1930 Act proved to be a formidable task, because the structure of the 1930 Act did not lend itself easily to such an amendment. Indeed, it was on account of drafting complexities that the Bill was originally published without the full amendment in its present form. Ideally, it would have been desirable to repeal that Act and start with a clean sheet. However, to have done this would have raised many issues that are clearly outside the scope of this present Bill and would have delayed much further both the introduction of the provisions and the subsequent passage of the Bill.

Among the amendments to the 1930 Act, there is one—in paragraph (b) of section 28 (1)—that extends the limitation period for taking affiliation proceedings from six months to three years. It is accepted widely that six months is too short a period for the mother to make up her mind on such an important matter. However, it is not so clear by how long the period should be extended. There are serious objections to allowing more, or at all events much more, than is reasonably needed because these proceedings are, of their very nature, such as to be open to be used against innocent people. One must therefore seek the right balance between protecting the genuine interests of mothers of illegitimate children, and even more so of the children, and, on the other hand, the good name of a man who may be entirely innocent of what is alleged. My own personal view was that two years would give the mother enough time to decide on whether or not to take proceedings. However, during the debate on the question by the Special Committee of the Dáil, it was argued by a number of Deputies that a longer time would be more appropriate. Accordingly, deferring to the views which were expressed on the matter, I introduced an amendment, which was accepted, to extend the period to three years.

Section 21 provides that a household allowance—or property bought out of the allowance—will, in the absence of agreement to the contrary, belong to the spouses jointly. Where the spouses are in serious disagreement with each other, the practical effect of the section is likely to be that the husband will not be permitted to appropriate those items that have been bought out of the housekeeping money. The legal presumption at present that such items belong to the husband alone offends, I believe, against common sense principles of fair play. The Commission on the Status of Women recommended the enactment of a provision somewhat along the lines of section 21, but in fact the scope of the section is wider than that which the commission recommended.

I now turn to section 22, which deals with the question of excluding a violent spouse from the family home. That section should provide very useful aid in a number of cases, by enabling the court to exclude a spouse where it is of opinion that "there are reasonable grounds for believing that the safety or welfare of (the applicant) spouse, or of any dependent child of the family requires it..."

That is all I wish to say at present regarding the main provisions in the Bill. As the Members of this House will have noted, I have not spoken at length on any section; more detailed discussion will, of course, be possible on Committee Stage.

One matter on which I feel that I should say a few words is in regard to the time taken for the Bill to reach its present position. Many letters, articles and comments which have appeared in the Press have not reflected an understanding of the nature or extent of the problems raised by any such Bill as this. I do not blame anybody for failing to recognise that something of which he or she has little or no experience is in fact much more complex than that person thinks. Life as Minister for Justice would be much easier if only the problems were as simple as some critics see them. But the realities are different and that this is so is of course commonplace among the authorities on family law in other countries.

Family legislation frequently involves very great complexities precisely because it has to deal with the infinite variety of human relationships and affects virtually everybody. As the authors of the leading Austrialian textbook on family law have observed:

If laws are concerned with human relationships, and families are among the most intimate of those relationships, family law reaches more closely into the life of the average person than does almost any other area of law.

I quote from Finlay and Bissett— Johnson Family Law in Australia, at page viii (1972).

I refer to this matter, not because I object to criticism however uninformed but because I am concerned at the extent to which the public in general and women in particular are in danger of being misled. It is common ground that there are deficiencies in the present law but to misstate and to exaggerate them can do, and to my own knowledge has done, positive harm to many women by indicating to them that they have no legal remedy in cases where very frequently they are in fact protected by the law. An example of this is the allegation that, where a deserted wife pays the mortgage on the family home for a large number of years, her husband can return and claim the beneficial interest in the home for himself. This is simply not the case: yet how many wives, in ignorance of their rights induced by such misstatement, have stood back from seeking legal advice which would have ensured that their interests were protected? I know for a fact that there have been some. It is unfortunate that in giving life to the old principle communis error facit ius such counsellors of despair have fashioned a ius of such dimensions. I could give many other examples of serious misstatements that are repeated regularly but these would bring us too far away from the present Bill.

Speaking of the family home, however, I am sure the House will allow me a very brief digression to say that the Bill that is being drafted to prevent a vindictive spouse from disposing of the home over the heads of the other members of the family is now at a very advanced stage and I am doing everything possible to have it published shortly. I cannot put a date on it because some specialist advice has to be sought on one or two provisions but I have every hope that it will be published in the present session.

Members of the House would, I am sure, all agree that family law reform is a highly important and complex process. It is, of course, true that, as Professors Kahn-Freund and Wedderburn have observed,

The normal behaviour of husband and wife...towards each other is beyond the law—as long as the family is "healthy". The law comes in when things go wrong.

In our role as legislators, our task is to ensure that when the law does "come in", it will do so in a just and humane manner that will afford protection to those whom we would all wish to help.

I would like to welcome this Bill which is generally acceptable and indeed very necessary. The Bill has introduced a number of very important changes. The two most important ones are, first, the fact that it is no longer merely the husband who is responsible for the wife but each of the spouses is responsible, in certain circumstances, for the other.

The second important change is that maintenance can be claimed even where there is no actual desertion. The Minister has said and it is obvious from the Bill that it has been drafted on broad principles, that it is not possible to define exactly all the circumstances that may arise, that the Bill generally speaking outlines merely the broad principles that should be applied and that the court must be allowed to interpret what is both in the Bill and what seems to be intended by the Bill. I think this is a proper approach because the kind of circumstances and problems that are envisaged in the Bill and which the Bill attempts to solve or deal with can take many different forms. It would indeed be quite impossible to spell out all the problems and apply a remedy for all of them.

The Bill provides for a number of points. It provides for maintenance until the age of 16 but in certain circumstances where the child is undergoing full-time education or where the child is disabled that is extended until 21.

This is a very proper provision, but nevertheless it is going to give rise to certain difficulties at times in interpretation, about whether the child is undergoing full-time education and in interpreting what is disablement. The court is going to have considerable trouble from time to time in interpreting these provisions.

Apart from interpreting them it does give a certain amount of scope for abuse. There may be cases where a child in ordinary circumstances would never have been sent for full-time education because the circumstances of the family would not have permitted it, where a spouse claims such maintenance as to enable the child being sent for more elaborate education than would normally be thought appropriate. However, I am not suggesting that merely because there is the possibility of abuse that the provision should not be in the Bill. It is proper that it should be. This is a matter for the court, but the court will certainly have difficulties from time to time.

One aspect of the Bill which is not quite clear in spite of the provisions of section 5, subsection (4) is the extent to which the spouse who is failing to provide for the family is obliged to contribute. Is this an absolute obligation or is it an obligation that arises only where it is proved that there is need for contribution? There may be certain circumstances in which the husband may have deserted or failed to contribute and where the need is very doubtful. In these circumstances is there no obligation on the spouse— the husband in most cases—to make a contribution?

Section 5, subsection (4) does attempt to deal with this, but it is somewhat ambiguous. If you take a case of a wife who is not wealthy but nevertheless has some savings or some capital, must she, in these circumstances spend all her savings, every penny she has, before she takes proceedings, or, once the husband has failed to contribute, can she take proceedings on the basis that in the ordinary sense there is no income coming into the house or there is not a sufficient income and that she needs a contribution from the other spouse? The Minister may say that this cannot be spelled out and that it is a matter for the court to decide. Perhaps that is the proper approach, but it does seem that there is a very important principle involved here and one on which different courts may take a completely different point of view and make decisions which will be widely different.

Section 8, dealing with the agreement, provides that where an agreement of this kind is made no variation downwards or upwards is possible, and that if the wife finds that the amount of the agreement is not enough she can take the proceedings envisaged in this Bill. Nevertheless it seems to me that this is somewhat rigid. There would often be circumstances where in equity the agreement could be varied upwards, but there must also be circumstances occasionally where in equity the agreement should be varied downwards. If the provisions of the Bill are as they seem to me to be this seems to be unnecessarily rigid.

I would like to refer to section 25 of the Bill. Subsection (1) of that section provides:

(1) Proceedings under this Act shall be conducted in a summary manner and shall be heard otherwise than in public.

Section 25, subsection (2) provides:

(2) Proceedings in the High Court and the Circuit Court under this Act shall be heard in chambers.

I wonder whether any distinction is being made between the two, and whether in practice there will be any difference. Does the section as it applies to the courts other than the High Court and Circuit Court mean that the Press can be present, or what is the distinction between the two if any distinction is intended from the practical point of view?

It is generally conceded that this Bill is acceptable in principle and is very welcome and that the points which may arise on it are likely to arise on the Committee Stage. Consequently any other points that I want to make can more properly be made on Committee Stage.

I also would like to compliment the Minister on the introduction of this Bill. The Minister made in his opening remarks a point which is worth emphasising, to the effect that this Bill is not simply a small measure designed merely to put the law on a par with law elsewhere, but that the Bill is one which in certain circumstances could have very far reaching effects socially, and which is in some respects very much in advance of the family law elsewhere.

I emphasise another remark which the Minister made at the concluding portion of his speech when he quoted some professors very aptly and correctly in the sphere in which we are considering this Bill. He quoted that:

The normal behaviour of husband and wife towards each other is beyond the law as long as the family is healthy. The law comes in when things go wrong.

It is in that context that—as the Minister appealed in his concluding remarks—we should examine this Bill from the point of view of ensuring that we can get not merely a practical measure but the best practical measure to apply to the cases where things do go wrong. Viewing the matter on this basis, the Minister firstly was right to have a very searching and in-depth examination of this whole field before he came in to the Houses of Parliament with this Bill. I imagine it was helpful to the Minister to have heard the discussions in this House which were undertaken by reason of the Private Members' Bills introduced by Senator Mrs. Mary Robinson in this field. Some of the lines laid down in this Bill take account of the expressions of view which were recorded in the House during those discussions. I am thinking, for example, of the time limit in connection with affiliation proceedings. I would have shared the Minister's view initially that a six-month limit was too short but that possibly going beyond the two-year limit was a bit on the long side. However, I have no complaint with the decision that was ultimately arrived at after discussions by the Special Committee of the Dáil which resulted in the three year limit being written into the Bill.

It is the kind of question on which there can be different views and it is necessary to come to some decision. Again, the Minister is correct in having regard to the general consensus opinion which was expressed on the subject. It is a novel procedure as far as our law is concerned to have provision that a maintenance order can be obtained when the spouses are living together. This is an excellent provision. It is one which I hope would not have to be used very frequently. Those of us in the legal profession from time to time come across cases where the existence of a provision such as this, if it was operated by the couple in question or by the injured party, could have resulted in obviating some cases of very great hardship. I am glad that this provision is there. The Minister has given some examples of cases where it would be useful to have this provision in operation, and probably all of us can think of other cases. Again, this is a question of having the law ready for operation when things go badly. It is obviously not the kind of thing that requires to be operated in what might be regarded as the normal, healthy family life and family atmosphere.

The statutory obligation in certain circumstances for the wife to maintain or to contribute towards the maintenance of the husband, which will arise when this Bill is implemented, is also a novel one. At the same time, it is one which when one examines it one wonders why it was not there all the time. I agree with the Minister that the cases in which this would be called upon to be operated would probably be very few. But there are cases when it might be of particular importance where the maintenance of the family and of family life is concerned that such a provision should exist in the family law.

There is another provision in the Bill that is useful although I did not appreciate the importance of it until I heard the Minister. I query whether it might have been better not to have the provision included. It is the provision which states that household money advanced by one spouse and any articles purchased out of it would be deemed to be the property of both spouses. When I read that provision first I wondered if generally the wives would like to have that provision, because in most "healthy" families— again I am using the quotation used by the Minister—when the breadwinner, the husband, makes over portion or possibly the bulk of his earnings to the wife and she makes purchases out of that, whatever about the strict legal position, in the "healthy" family both spouses regard property so purchased as belonging to the wife. A number of wives could be frightened when they see about this because perhaps they had been saving a bit out of the household expenses whenever they could and buying this, that or the other and regarding it as their own and the husbands were regarding it as the property of the wives. But now they find legislation being introduced to say that it was not to be the property of wife, it was to be the joint property of the husband and wife. The Minister is quite right when he points out that legally the position was that property so purchased was regarded as being the property of the husband in the example I have given. With that in mind, this provision in the Bill is an advance towards equality and greater equity in regard to household expenses and purchases made out of them. It may come as a shock to people—as indeed it is to me—to discover the position in strict law was as the Minister has outlined.

I should like to compliment the Minister for bringing in the Bill. I should like to compliment him also for the understanding of the difficulties which surfaced from time in this area which, indeed, has characterised his work as Minister for Justice since his appointment. The Minister, from various sources, has received a certain amount of flak from time to time. In his approach to these matters, as indeed to most matters, he has demonstrated himself to be a most humane and compassionate person and one who is prepared to approach legislation of this delicate type with the deep sense of humanity and compassion with which it should be approached.

In conjunction with my colleague, Senator Ryan, I also welcome this legislation. Family law is a highly important and complex process. The quotation which the Minister used, in which he said that the normal behaviour of husband and wife is beyond the law, is more or less the key to this Bill. It should be said that 99.9 per cent of married people are living as happy families. It is in only the very few isolated cases that dissentions of various kinds arise. People have resort to the courts and have become separated and bring legal proceedings.

The media and the manner in which some of these cases are highlighted do not help to remedy the situation. Very often, the example set by many of the film stars and those portrayed on television and through the various media, the number of times they have been wed and the number of times they have been divorced and so on, is not helpful, although these are things we cannot smother up because television can reach into every home in Ireland. Very often it brings too much of these messages in its trail when it reaches the ordinary people. It may have played a part in making people discontented. However, the family unit—the basic unit of society—is fairly intact in this country, and we are glad that that is so. Our effort is to ensure that things will continue in that way. Nevertheless, because there are isolated cases and because dissentions and trouble arise in homes, it is only right that the State and the Oireachtas should have legislation to deal with such matters.

The legislation that the Minister has introduced here is excellent. The recommendation was made by the Committee on Court Practice and Procedure, and help was given by such organisations as AIM and ADAPT and various other societies who highlighted many of the difficulties that did arise in family life and asked to have some provisions incorporated in this Bill so as to ensure that both sides would have law at their disposal to ensure that they were treated fairly. It is a pity that in some way or other many of these cases could not have been heard without going through the ordinary procedure of appearing in the court, because very often this is a terrifying experience for either of the parties. In all cases I think these proceedings should be held in in camera, because far too much publicity is given to them.

I am not sure how the free legal aid works in these cases, or indeed in the civil law in general, but if it applies at all there is certainly a place for it in matrimonial disputes. Very often one or other of the parties who might be in difficulties would find that they had not the finances with which they could bring their cases into the court and have them heard, and be certain that they were employing people of high legal standards who would fight their cases there. They would be worried about the outcome if they had not got properly qualified men in this case.

In this, as in all legislation, there will be great difficulties in pinpointing the offender, be it the husband or the wife. In particular, the husband very often is able to skip across to England or Scotland or somewhere like that and get out of the jurisdiction, and he can move from one job to another and, irrespective of efforts made, it could happen that the wife could succeed in the courts and in getting a maintenance allowance deducted from his earnings. But then it would transpire in the long run that she would get no money by virtue of the fact that we would not be able to trace where he was. A very welcome provision which the Minister has included is the one which says that when a maintenance order is made here and when the husband is told that he must contribute, that contribution will be paid through the court clerk. In many cases it has happened in the past that this maintenance might have been paid for a few years and then it dwindled off.

There are references here to ownership. It would be more appropriate to talk about these sections on Committee Stage. They are all very important. It says in some of the sections that the husband may be expelled from the house for violence. We know that in certain cases because of drink and perhaps other reasons, rows may take place. In the past many women, in particular, found themselves committed to institutions, and that was very unfair. In those cases it has been known that people have been left there for years and they had no redress whatever. It is up to us to ensure that people in such cases would be heard even though this committal might have taken place before this became law.

In legislation such as this we must also be concerned about the children because they are very important, and they should not suffer in any way. I am glad to see that the Minister has taken this into consideration.

The Bill in general is good legislation. The Minister deserves to be complimented on introducing it because it is something that is very important to those who are affected by it. Anything that we could do here in the Houses of the Oireachtas to ensure that both sides would be treated justly and fairly and at the same time cut down on the number of cases is welcome. When families are separated, it is a stigma on the children and often a stigma on themselves. In the best society such things do occur. We now have legislation that will help to resolve many of the difficulties, sorrow, trials and tribulations which can result from broken-up homes or from disagreement between married couples.

I welcome this Bill and commend the Minister for the thoughtful and enlightened way in which its provisions are framed. The Bill improved significantly, during its passage through the Dáil—I hope we can improve it further in its course through this House. Indeed, it is a very good solid piece of family law reform within its limits.

Firstly, I should like to deal with the significant and constricting limits before turning to the scope and provisions of the Bill. This Bill will introduce significant improvement in maintenance procedures before the courts and make other important changes in the area of family law, but these changes will still operate in a context where we do not have proper family tribunals with which to deal with these matters. That is a first and significant limit on how much can be achieved by the reforms in the Bill. We have inherited here the common law system and our courts are established on this common law tradition with its adversary approach to adjudication on matters. This approach has been well tried and well tested and it is an excellent approach for areas such as the general criminal law area or when resolving disputes between citizens in the area of torts or contracts, but it is much less satisfactory, indeed sharply inadequate, in dealing with family law problems.

It will be inadequate in dealing with the improved procedures which will be provided for in the Bill. For example, the Guardianship of Infants Act, 1964, stated the primary consideration of the court to be the welfare of the child, yet guardianship and custody proceedings become, in fact, a dispute between parents over the custody or guardianship of a child and not a general consideration in the light of legal and, perhaps, economic and social conditions of the well being of the child, of the rights of that child. That is not, and could hardly be, in the adversary proceedings of the existing courts, the primary consideration, even though it is the primary aspiration in the Guardianship of Infants Act. Similarly, in other actions before the courts in family law areas, the proceedings are adversary. There is an emphasis on the fault principle. There is, perhaps an accentuation of the division between the parties and certainly an accentuation of the tension, the nervousness and the strain of these proceedings.

One may ask how difficult personal disputes between spouses can be resolved satisfactorily in this adversary proceeding which places so much emphasis on proof of fault and relies on formal legal evidence and so on. Indeed, in this area of family law reform the courts are open to a serious charge that they have been, in the past, much too narrow, too inaccessible—because of the second limit which I shall deal with later, the absence of a comprehensive system of civil legal aid and advice—and largely irrelevant to people with serious family law problems. I do not think the problem is the fault of Irish judges. Indeed, an analysis of the relatively few reported cases and newspaper reports of cases in the family law area illustrates how far humane judges have been able to interpret the very constricting legal provisions such as they are, and yet they do so always within unnecessarily constricting and artificial limits. The common law court with its adversary procedure is not a good model for a family law tribunal; it is not a good forum in which to decide basic family law problems, problems of human relationships; the basic rights and obligations which flow and the responsibilities on the various parties.

We have failed as yet—it is a basic failure in our society—to evolve a proper system of family tribunals which could evaluate and adjudicate upon family law problems in a humane atmosphere which reinforced the dignity of the individual and, indeed, that of the family concerned. That is the first and significant limit against which one must assess the scope of the Bill.

The second limit is the absence of a comprehensive system of civil legal aid and advice. To a great extent, the significant provisions of the Bill will have too little real impact in the absence of access to free legal aid and advice. There is evidence that far too many women, in particular, who need legal advice cannot afford to get it or do not know where to go. They are remediless because they cannot get access to where they could get a remedy. To improve the remedies at the end of the procedure but not improve the access to advice, to legal aid, by providing this as a service in the community, is to approach the problem from the wrong end. I know the Pringle Committee are sitting on the question of civil legal aid and advice, but I regret that this committee are taking so long to bring in——

That is unfair to the committee.

I maintain that it is a fair comment. I regret that the committee are taking so long to bring in their report. I wonder if it is because the chairman of this committee has other very serious responsibilities and I wonder whether it would be better to change the personnel of the committee in order to bring in urgently the report and recommendations of the committee. I regard the introduction of a system of civil legal aid and advice here as an absolute priority in family law reform. It is relatively less significant to make good solid changes in the remedies and procedures available, such as are contained in the Bill, if they are a closed area for so many of the women who would want to avail of these remedies. They do not have the money; they do not know how to engage a solicitor and cannot do so. Many of them do not live in the urban areas where they could go to the FLAC centres or avail of the advice of voluntary bodies like AIM, ALLY and so on. This is a very significant limitation on the operation of the Bill. In order for the Bill to come into full effect it will have to be supported by the introduction of a comprehensive system of civil legal aid and advice.

A third significant limit on the operation of the Bill is that it still requires the spouse, which could be either the husband or the wife under the Bill but normally in Irish circumstances, it would be the wife, or the single mother, to instigate the proceedings. This is a serious defect. Other countries have provided for a state agency, a social welfare agency, to intervene and be the body instigating proceedings against the defaulting spouse. In her examination of Marital Desertion in Dublin, Kathleen O'Higgins examined the law in certain other countries. In her book she examined systems in Scandinavian countries, in Iceland, Denmark, Finland and so on, where the State agencies—the Advanced Payment of Maintenance Act in Norway, for instance—make the payment and then recover from the defaulting spouse or the defaulting debtor in question.

The relevant point made by her in the Irish context was:

One great advantage of these schemes is that they take the onus off the wife to initiate proceedings for maintenance, which is what a woman in Ireland and indeed, elsewhere, must do at present. To have to take this step (and even if granted a fixed sum, if it is not paid regularly a woman may have to apply for a summons at intervals) is most distressing and a continuous reminder of the rejection by the man.

It is distressing and requires a certain level of motivation, a certain independence of mind in some circumstances; it requires the ability to set the procedure in motion; it requires the financial capacity to do it in the present circumstances where we do not have a system of civil legal aid and advice.

I would prefer the framework of this Bill to have been one where it was not necessary for the individual to instigate the proceedings but that these proceedings would be instigated by a social welfare agency and that that agency would then recover from the defaulting party. There would, therefore, be the removal of this strain, responsibility and tension from the individual concerned. This is particularly relevant because we are talking about a deserted wife left with several children or a single mother left with a child or children and these are not people who want additional worries and responsibilities or the delays and frustrations of going to law, particularly in view of the court system as it operates at present. That is a third significant limit on the scope of the Bill.

The fourth limit in the approach is that the improved procedure for maintenance orders in their general sense is not integrated with the social welfare code, and with assistance under that code. This leads to confusion, anomalies and difficulties. For example, it appears at present that a wife who is deserted may have three possible courses at different periods. Initially, she may be able to apply for the improved type of home assistance. She may then institute maintenance proceedings under this Bill; if she fails there, she may then apply for a deserted wife's allowances under the Social Welfare Act, but these seem to be parallel remedies without any genuine attempt to have an integrated approach to this problem. That integrated approach would come sooner if the framework of this Bill had interposed the State agency, had interposed the social welfare agency between the individual and had allowed that agency to instigate proceedings in the circumstances.

I now wish to refer to the provisions of the Bill, and first of all I should like to review, briefly, the legislation which preceded it. The original Act, the Married Women (Maintenance in case of Desertion) Act, 1886, introduced the legal remedy of allowing a wife, and only a wife, to bring proceedings in the district court. She had the burden of establishing that she had been deserted by her husband. Her husband had a defence if he could establish uncondoned adultery on her part, even a single act of adultery, and there was no provision whatsoever for any maintenance for the children in question under this procedure. The maximum a district justice could award in those circumstances was £2.

It is possible that in 1886 it was a rather enlightened provision, but it remained the position here until that Act was amended by the Enforcement of Court Orders Act, 1940. Section 7 of the 1940 Act extended the maximum sum which the justice could award under the 1886 Act from £2 to £4, but there was still no separate provision for maintenance for dependent children. This Act was further amended by the Courts Act, 1971; section 18 of which allowed the district justice to award up to £15 per week to a wife and up to £5 for each dependent child, and there was also a provision for unlimited jurisdiction of the high court.

It is worth recalling that until 1971 a deserted wife could only hope to obtain an order of a maximum of £4 per week to cater for herself and the children. This is a reflection on Irish society; it is a reflection on our unwillingness to see the cruel and harsh situation in which so many Irish deserted wives found themselves, particularly during a period of very high emigration in our society. In that context this Bill is a genuine solid piece of reform and its provisions are very thoughtful and well construed in some difficult situations. There are many good aspects of the Bill. One of the best ones was dwelt on by the Minister, and it provides that to apply for maintenance a deserted wife no longer has to establish desertion. This avoids some of the worst problems and the most divisive aspects of the earlier procedure. I welcome this substantial reform.

I also welcome the extension of the definition of dependent child to include a child where either party is in loco parentis of the child and the other spouse accepts this position. I welcome the definition of desertion in so far as desertion is still relevant to maintenance proceedings to include:

"desertion" includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living separately and apart from him, and cognate words shall be construed accordingly;

This writes into the Bill the concept of constructive desertion which had been evolved in the case law of the court. It is good to have it introduced into the text of the Bill although the concept of desertion is much less significant in this Bill because it is not one of the necessary proofs in order to get a maintenance order in the first place.

I also welcome the fact that section 5 provides for period payments of maintenance orders. This was absent from the 1886 Act, and it allows much more flexibility in that they may or may not be weekly payments, and that they may be for a definite time and need not continue indefinitely. There is flexibility to respond to the situation in question.

The Bill gives a very broad discretion to the district justice, a discretion which had to be given. I would be happier to see this discretion exercised by a family tribunal in the context of the broader approach of a family tribunal, with the resources and the atmosphere of a family tribunal. It may be that if there are a large number of applications for maintenance orders in the district court, and if there is a significant variation in practice by district justices in deciding on the amount of a maintenance order and what he thinks is proper because the formula gives him a broad discretion in the matter, this could give rise to a feeling of injustice in certain areas.

A district justice also now has a discretion—and I welcome this provision—as to what weight to attach to evidence of adultery. Adultery does not exclude the granting of a maintenance order under the terms of this Bill but a district justice may refuse to grant a maintenance order if there is evidence of substantial adultery. Again, this is an area where a district justice has a broad discretion. The increased powers and responsibilities of district justices, and the fact that they have a greater discretion over the parties concerned in these proceedings, should encourage the sort of self-analysis and self-examination which takes place by judges and justices in other countries.

It would be a welcome innovation —which I suppose would have to come from the justices themselves—if they held frequent conferences and seminars on their policy in relation to these matters, so that there was a relatively equal administration throughout the country of the discretionary aspects of the Bill. It would be important that the operation of this Bill be monitored in the district court so that gross discrepancies do not arise through the exercise of discretion by different district justices.

I welcome the new provision for interim orders in section 7. In fact, it is my understanding that district justices were more and more making interim orders pending the report of the probation officer in these cases. There was some question about their legal authority to do so, and I welcome the clear provision of authority in section 7. It is important that the court be able to make an interim order to cover a particular situation, pending further hearing and pending, in particular, the report of probation officers, who perform a very important role in many of these cases.

I should like to ask some questions in relation to marital agreements in section 8. It appears that this section only applies to agreements entered into—including a separation agreement—after the commencement of this Act, and I should like to ask the Minister why he has confined the operation of the section to agreements entered into after the operation of the Act, whereas maintenance orders made under the existing law will be carried on by the provisions of the Act and one can apply for attachment of earnings of them and so on.

There will be a difficulty in that very few legal advisers will advise spouses that they should enter into a new separation agreement in order that the wife could, if necessary, take advantage of the attachment of earnings provisions if there was default and so on. It would, in my view be desirable that this provision extend to existing separation agreements, if the parties apply to have them made a rule of court.

Section 9 is a very important and significant reform of the existing proceedings, that the transmission of payments should be through the District Court clerk. Did the Minister make any attempt to assess what the burden on a District Court clerk might be in these circumstances, given that this includes payments under orders whether they are made by the High Court, Circuit Court or District Court? They would all be transmitted through the District Court clerk. I also note that the District Court clerk is given a fairly broad measure of discretion in relation to recovering sums in arrears. Under subsection (2) of section 9 it is provided:

Where payments to the District Court clerk under this section are in arrear, the District Court clerk shall, if the maintenance creditor so requests in writing, take such steps as he considers reasonable in circumstances to recover the sums in arrear whether by proceeding in his own name for an attachment of earnings order or otherwise.

So he may proceed for an attachment of earnings order or he may presumably simply write a letter; he has a discretion. He only acts at the written request of the applicant involved, but he has discretion as to the way in which he acts. Again, that is a flexible and interesting innovation. It will be easier to judge how it works when one has seen it in practice, and it is important that there be an assessment of the work load of District Court clerks when this procedure is in effect. Obviously, it will depend on the rate of default on maintenance orders in general but, perhaps, it would be possible to have some figures on that?

Section 10 which provides for attachment of earnings is, of course, a very welcome and very desirable provision. This has been sought for a long time by women's groups, such as AIM, and other groups. It is a very important provision. Before dealing with attachment of earnings I should like to refer back to what I consider a rather anomalous provision which I hope the Minister will be prepared to consider amending: the fact that when the court is making the initial maintenance order, considering the basis on which this will be made under section 5, the court has no power at that stage to call for a statement of earnings as provided in section 13, although when making an attachment of earnings order, or a variation on an order, the court has power to call for a statement of earnings both from the defendant and from his employer. It seems strange and, indeed, inadequate that when initially deciding on what is a fair maintenance order, on the amount, the district justice does not have the necessary information and data on which to do that so that he makes a maintenance order, to some extent, in the dark.

He has guidelines under section 5, subsection (4) (a) and (b) in which he can take into account the following matters:

the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or on the statute and (b) the financial or other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.

These are good provisions which allow the district justice to take in the whole financial picture and the capacity and responsibility of both spouses when making the maintenance order; but he does not have what I believe is a very necessary power, the power to require a statement of earnings at that stage, which is a power which he has, indeed, under Part III of the Bill in relation to attachment of earnings. Therefore I think it would be an improvement if the statement of earnings provision in section 13 could apply also where the original maintenance order is being made under section 5 of the Bill.

It appears that in countries which have experience in the operation of a system of attachment of earnings it is not an altogether successful procedure and that there is a considerable amount of evasion. This certainly seems to have been the experience in Britain, and therefore I think it is important to ensure that the procedure is as watertight as one can make it. Again, there is a possible defect in section 14 of the Bill, read together with the enforcement of it in section 20. Section 14 relates to notification of changes of employment and earnings. Section 14 (a) provides:

Where an attachment of earnings order is in force: (a) the maintenance debtor shall notify in writing the Court that made the order of every occasion on which he leaves any employment, or becomes employed or re-employed——

Then when one looks at the enforcement section, it is provided under section 20 (2):

Where a person gives to a Court—

(a) a statement pursuant to section 13 of this Act, or

(b) a notification under section 14 of this Act,

that is to his knowledge false or misleading——

but not a failure to notify under section 14 (a) there are penalties involved. A failure to notify under section 14 (a) has the effect of making the maintenance creditor civilly liable, but he is civilly liable already, so it is not allowing for a specific penalty for failure to notify of a change of employment. Yet that seems to be the most likely way in which somebody who would be liable would try to evade his responsibility. He is liable if he gives a false or misleading notification, but he is not liable to a penalty or imprisonment if he fails to notify. It is my understanding that the provisions in relation to fines and imprisonment have had to be invoked relatively often in England for failure to notify of changes in employment and trying to skip from employment to employment in order to evade the responsibility. I think it would be important to ensure that that loophole was closed.

That is all I would like to say about the attachment of earnings procedure, which I welcome very much. It was one of the major recommendations of the Committee on Court Practice and Procedure.

I should like to turn to Part IV of the Bill. I fail to see any substantial significance in section 21 relating to property and household allowance. I have no quarrel with the terms of it, but it provides:

Any allowance made by one spouse to the other spouse after the commencement of this Act for the purpose of meeting household expenses, and any property or interest in property acquired out of such allowance, shall, in the absence of any agreement, whether express or implied, between them to the contrary, belong to the spouses as joint owners.

That is, of course, an improvement on the present law where it would probably be construed as belonging to the husband. In these inflationary times the average housewife would have so little over from her household allowance—indeed, the problem is that the household allowance will not bring home the necessaries any more—that it is hard to read it as a very significant proceeding.

Section 22 is significant in that it gives legislative form to the judicial development of a form of matrimonial injunction which had been developed by the Irish courts. It is desirable that this be a protection offered to a spouse. This will be an important safeguard. It has the advantage over judicial interpretation in that it has clarity, is applied generally and it does not depend, to the same extent on the interpretations of particular judges and on their willingness to grant an injunction in the circumstances.

Certainly in the last couple of years various judges of the Circuit and High courts have granted injunctions restraining a husband from having access to the matrimonial home in certain circumstances. In one particular case, Mr. Justice Kenny, on an application by a wife, ordered the husband to leave the house. Other judges have made similar orders. However, it is desirable that this be incorporated as part of the Bill. Before I heard the Minister's speech introducing this Bill I was going to point to the fact that although this section does grant protection, it does not grant protection in relation to a third party. It still would not give a wife a registerable interest in the property, but I understand from the Minister's opening remarks that he proposes to deal with this particular problem in separate legislation which he will introduce in the very near future, and I am very glad to see that.

Another section which I think is of very considerable importance, and which was introduced as an amendment in the course of the passage through the Dáil, is section 27. Section 27 provides:

An agreement shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Act (other than section 21).

Section 21 relates to household allowances, which as I have said I do not regard as being of great significance in any case.

The provision that any attempt to contract out would be void is very necessary because in far too many cases deserted wives have signed away their legal rights. They have been ill advised and have not got the full benefits that they were entitled to because they have contracted out of them. I welcome that change.

I also welcome the necessarily rather elaborate and difficult amendments incorporated in section 28 of the Bill. Indeed, as President of Cherish I should like to take the opportunity of thanking the Minister for considering the submissions made by Cherish, the body concerned with single mothers and their children, and to convey to him the thanks of Cherish for the way he considered the submissions they made and for the amendments which were brought in, particularly at Report Stage in the Lower House.

I would still prefer that there were no time limit on the bringing of affiliation proceedings. To impose a time limit, whether it be six months, as it is under the existing law, or whether it be three years as proposed here, is evidence of a frame of mind about affiliation proceedings. It ranks affiliation proceedings as quasi-tortuous, or even quasi-criminal, so that in order to protect a party it is necessary to impose a time limit on these proceedings. I do not approach affiliation proceedings at all in that way. I regard affiliation proceedings as being the right of a child to support from a parent. That right is the same, whether that child was born within the bonds of matrimony or not; and just as we would not put a limit of three years on the right of a child born within wedlock so we should not put a limit on the right of a child born outside wedlock. I would propose to introduce an amendment to that effect in the hope that I can finally convince the Minister that three years, although a very substantial improvement on six months, still reinforces the concept of illegitimacy and the framework within which the affiliation proceedings operate. Also, I think it is all the more important now because of the substantial improvement in section 28, the improvement on the Illegitimate Children (Affiliation Orders) Act, 1930, to provide mechanisms for blood testing, to bring in an amendment or a new Bill dealing with the problem which provides for blood testing. I think that the number of affiliation proceedings brought will, very likely, increase, particularly since the significant amendment as the Bill was going through the Dáil brought affiliation proceedings and orders made under affiliation proceedings into the general provisions for attachment of earnings and therefore improved the remedy, improved the time within which the remedy can be brought, improved the amounts which can be claimed, and provided that there can be an attachment of earnings for default. It is likely that there will be an increase in proceedings brought in this area, and this is all the more reason for a more general reform in relation to it.

Speaking of the fact that section 28 raises the amounts which have been fixed in the Courts Act, 1971, brings me to a general observation about the limits fixed in this Bill. It is undesirable in a Bill of this kind, which is going to provide for the amount that a wife can claim from the District Court for maintenance, the amount which can be claimed on behalf of a dependent child by a spouse, either husband or wife, fixing it at £10 a week—it is wrong to write fixed amounts into an Act because they will become outdated very rapidly. It may seem in March, 1976, to be generous to allow £10 per dependent child; but if the rate of inflation continues at the present level, then in five years' time £10 will not be generous; if will be parsimonious in relation to dependent children and we will require an Act of the Oireachtas to amend the particular provisions here. I would prefer that the Minister took unto himself a more flexible power by Ministerial Order laid before both Houses to vary the amounts from time to time so that they can respond to the rate of inflation and to current views about what is a fair ceiling on the amount for which a person can be liable under these proceedings.

There are some rather small queries and points which I should like to mention briefly at this stage, because it might be helpful to do so, as the Minister might agree that there was reason for such amendments. Some of them are so small that it is almost nitpicking. There might be a considerable problem of citation in relation to section 3 of this Bill. For example, if one were to cite section 3 (1) a) then there are at least three section 3 (1) (a)'s that one could be referring to. The context might or might not make it clear, but I think it might be preferable not to use (a), (b) and then again (a), (b) within the same section. It is used three times within the same section.

The next point I have to make relates to the fact that adultery is spelled wrong twice.

We are not experts on the subject.

It is rather like whiskey, spelled with and without an ‘e'. This occurs in section 6, page 7.

There is another small query in relation to section 10 (2) (b). I do not understand what is meant by "in any other case, to the person referred to in paragraph (a) of this subsection", since the person referred to in paragraph (a) of the subsection is a district court clerk. I can only conclude that it must be paragraph (a) of subsection (1)?

A more serious query relates to the working of section 5 (1) (a). I should like to have the view of the Minister on this point. Section 5 (1) (a) which is a key provision, provides:

Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances,...

As I read that, a smart lawyer on the other side would be able to say that this requires proof, that there has to be a failure to provide for both spouse and dependent children and not either the spouse or dependent children. I may be reading too much into that, but it seems it would be preferable that it be a spouse or dependent children in the circumstances, rather than create a possible technical defence to a claim.

Finally, I would propose at Committee Stage to introduce amendments in the areas that I have indicated, introduce an amendment which would enable the Minister to fix the amounts by Ministerial Order rather than have them sealed into the text of the Bill itself, and, in particular, introduce an amendment which would provide that, when fixing the maintenance under section 5 of the Bill, the district justice would have power to call for a statement of earnings from the defendant and from the employer, as he has power to do when making an Attachment of Earnings Order later on in the Bill.

In conclusion—I do not know whether this would be a matter for amendment, but I should like the Minister to comment on it—was it a deliberate policy to confine the Bill to periodic maintenance payments and to exclude the jurisdiction to grant lump sums? There have been particular cases where it would have been preferable if the court could make a lump-sum payment rather than a periodic maintenance order. As I read the Bill, this is not specifically provided for. Indeed, the only area where it can be provided for is by agreement of the parties, which is then made a rule of court. I would ask the Minister if it would be possible to pay a lump sum in certain circumstances? In certain cases it is preferable if a lump sum payment can be made, rather than just a periodic maintenance order.

Senator Mary Robinson agreed with much of the Bill with which I do too. At the end of the Senator's admirable speech she commented on something which I wholly and heartily disagree with, that is the suggestion that this Bill should have been held up—so badly needed as it is—to cope with the extraordinary controversial questions which arise with regard to amendments of the illegitimacy law, if of the nature and extent indicated and suggested by Senator Robinson. For example, she talked about blood testing. If I understand anything about blood tests, they cannot prove that a man was the father. They can only prove that he was not. I do not see that that would be a very great advance in law if we do make that change.

Secondly, the Senator said she is going to put down an amendment extending the period to three years which is, of course, the United Kingdom's compromise. When the Illegitimacy Bill, which Senator Robinson promoted in this House, was under debate, Senator Lenihan— if I remember correctly—first thought it should be six years and then revised it in the latter part of his speech to three to six. I think the Minister has ended up with them at the right number or length of time. But we will debate that when the amendment comes in fully, I hope.

I should like to say a number of things. I do not think everything in the Bill is good. I do not welcome, as Senator Robinson does, the Bill for the same reasons in all particulars. I certainly welcome the increased ability to collect from the failing debtor, the increased provision which is made, or which is proposed to be made, in the Bill for proper maintenance. All that part of the Bill, I think, is absolutely right. The Minister has been under pressure to do it. The Minister has given reasons why the Bill was not just rushed in here, although it is fair enough to point out that it has come quicker into this Parliament than any previous Bill recommended by the Committee on Court Practice and Procedure. I think that point should be credited to the Minister. It should also be credited, I must admit, to the articulation of Senator Robinson and others of her sex, who have over the years paid such attention to this.

If we look back on the much publicised and elaborated programmes for law reform laid by the Minister for Justice, Deputy Haughey, before the Houses of the Oireachtas in January, 1962, we did not find even the idea of making such an amendment in the law as is proposed here. That fact is a sign of great enlightenment. Among the persons who have been given credit by the Minister for work on this are the members of the Committee on Court Practice and Procedure. I think Justice Delap should be mentioned too, whose evidence was so very helpful in enabling them to form the views which they expressed.

The Minister is correct. I should like to say once more in relation to a law reform Bill that I found the Minister for Justice's contribution personally stimulating. The references to various authorities which I have not been able obviously to take up are very interesting to look at. Could I make just a few points? On this question of example the Minister makes the point —I have not got the speech in front of me and he can correct me—that there is not in the United Kingdom a situation—apparently we do not have it in many jurisdictions—in which you can have a spouse coming to court looking for a maintenance order, even where there is not desertion, and where you have now an extraordinary breach with a very ancient position, a breach which we are effecting and which many very wise people are not. After all, the promises of husband and wife, as has been said in an ancient case, are not sealed with seals and sealing wax. I am damned if I think it necessarily right that a district justice who does not know all that much about what is the true significance of a particular earning, having regard to his own experience, who may not know all that much about the wife's ability to look after it, may not know as much as the provider, be it husband or wife, knows about the other party's expenditure habits—this is a very extraordinary discretion. I understand that the Minister has received considerably strong recommendations on this matter. He has made his judgment on it and I am expressing just a great doubt, because I think a member of the Fine Gael Party, the present President of the High Court, waged a long battle in the Dáil, when he was a Member of the Dáil, against his own Minister, whose brief, I think, was being conducted by Mr. Costello on this infringement of the unity of the home where there is no proof of real bad behaviour.

We thought we were going to discuss a certain aspect of privacy today, at least I thought I was going to discuss it but we did not come to discuss it. This is an aspect of privacy too. Incidentally, may I compliment the draftsman on the fact that he has obviously been affected by the Punch glossary of legal terms. We do not find the usual words "in camera" in this Bill. I have never seen a Bill with regard to this matter without the words "in camera" in it but according to the Punch glossary "in camera" means the showing of pornographic films in private. The draftsman has avoided all possible pejorative implications by saying "it shall be held otherwise than in public", which I thought a compliment to the up-to-date reading of the draftsman.

That is my first reservation on this, this matter of coming in, looking for maintenance orders where they are not separate. I wonder what the implications of these are going to be for our various tax codes. I know there is a section at the end, and the Minister has abstained from enlightening us as to the precise effect, but no doubt the Revenue Commissioners will have advised him of the effect this will have on the position of husband and wife, the paying spouse or the receiving person.

The other matter which I have doubts about is the clamant need for the husband to be entitled to bring his wife in to look for proper provisions. How many cases do any of us know, or where is the need felt? How many cases are there where there are husbands so injured by their rich wives, their high potential earning wives, that they need to be provided for in this fashion, in an amendment which essentially relates to it? If it is a person of wealth, I understand the Minister's case in the Dáil has been that he is not going to go after funds coming from wealth, so that, if I understand this thing, that language is not apt for this Bill, because that will not be relevant. There will not be earnings to be attached if it is a wealthy wife in that case.

We often get the case of the husband who is handicapped and so on, or has become handicapped. There is a case for this sort of situation, but I think it ought to be very tightly drawn down to a handicap which has proven to make it impossible for him to work. I should like to look more closely at that section when we get to it. We have heard about malingering, but I remember years ago a doctor friend of mine telling me that he gave evidence in a court to say that the man was definitely malingering. The court would not listen to his evidence. He picked up the evening paper about 12 months later and he read "Tremendous feat of strength in County Clare. Man lifts donkey out of pit single-handed". This was the man found entitled to heavy compensation by the High Court because of his incapacity. Are we going to have malingering husbands? Nowadays there is a very curious thing developing psychologically. There is obviously going to be a change. There is a generational change in relation to what a husband does and what a wife does and a lot of it is good. But there is a curious anxiety with certain women. They think they ought to be out earning because they know the problems that can arise. Maybe they ought not to be out earning at all but staying at home looking after their children. But there is another element coming in as a result of this: husbands are thinking that wives ought to be out earning. Is there anything here which could be used by such a husband to say: "this is a woman who has several degrees; I am doing my best for her, but why not let her go out to work"? Or might there be a husband to say "this lady is the only one in the city who really understands the most advanced types of computerisation so instead of staying home and reading, for instance, Cosmopolitan she should go out to work”? This seems to be dangerous, and illustrates very well the wisdom of the Minister in his reference to the complexities involved in statutory interventions in the family. At the same time I welcome the improvements in the provisions for maintenance and many other improvements. These typify a type of adjustment of society, a type of achievement of justice which does not impose any particularly grave cost on the Exchequer—presumably there would be some additional cost in so far as there may have to be more court clerks.

When we get into discretions in equity as we say it is "as short and as long as the chancellor's foot". How many district justices are there? How many misshapen feet are going to be finding what is right for somebody to have or not have? I have some difficulties about these matters. I have always though it was meant to be good law not to encourage litigation. We ought to look at this whole measure and ask if there is anything we can do without, where there may be unnecessary litigation. I do not know anything about the family court idea but I am in favour of anything that means you can get rid of lawyers for these kinds of problems and replace them by people who have experience from a cumulation of cases of anything that would create less of a burden. But I would like to get a paper on how these family courts work. I should like to see what are the difficulties about them, what are the costs; what kind of skills have the people who administer them; do they exist in societies like ours with our kind of spreadout of population; where do they exist? People pontificate on these matters who have, no doubt, read all the necessary theological literature before they utter their statements but we would like to have references to the literature so that we could form our own views about the degree of infallibility possessed by those people.

There are a few points that should be taken care of. One of them is being made by Senator Robinson. The Minister seemed to be saying, when I read the report of the Select Committee in Dáil Éireann, that you could have an order in which the term "periodical payment" did not necessarily exclude the possibility of a single payment. I may be wrong about that but if there is any doubt there ought to be provision for the making of a single lump sum payment. You could have a situation, for example, where there were no children, where the marriage lasted only for a short time but where the consequences of the marriage damaged the earning power of the spouse—the wife as I would think it should be— and that is where there ought to be an assessment of compensation to be given to her in that situation. I do not know of any other legal way by which she could get this. I know of a case where the only asset was the house which was in the husband's name. He had paid for it and provided for it. There would not be under this Bill, as enacted, even, any right of the wife to say it was partly hers. The husband's future earning power is dubious but his ability to spend anything he may earn is undoubted. There ought to have been power to have an order made imposing a charge in that case.

In relation to the question of the right to occupy the residence during a certain period, again I am thinking of litigation costs because every time you go down to these courts it costs more money. The labour costs of the legal profession have increased as they have in respect of every other profession. I wonder whether the period in question, ought not to be more than three months. I think it ought.

I take the Minister's point about the great difficulty of providing for the family home; there are considerable title problems and so on involved there, but part of the exclusion order ought to be a prohibition on the vindictive spouse from surrendering his tenancy and thereby effectively defeating what was intended to be procured by the section. I do not think that involves too much intervention in another field of law, and it might be necessary. In the enforcement of these things—I am told it takes about 14 days to get into the court—there ought to be an ex parte order which could be discharged very quickly if the husband came in subsequently and showed that his position was not as had been represented to the justice, but meanwhile it would be effective. I wonder, having regard to the free movement of men, women and children between Ireland and elsewhere, whether there should not be some system whereby a deposit would be required before departure from the country could take place. I believe there is a mutual enforcement as a result of an Act passed last year but in the context of this legislation we ought to have another look at that provision.

I agree with Senator Robinson that the section with regard to the initial maintenance provisions ought to be like the later one whereby statements of earnings should be required from the intended debtor. I would approve of that. It will be difficult for the District Court to do very much. Again, it is not a statutory defect of our code that a frugal wife having saved from her allowance, finds at the end of the day when she thought she had £1,000 that it was not her money at all. That is equity; it was established by equitable judges. That sort of situation is heinous and outrageous and I am delighted to see that going.

The section goes on to say "and any property it gets into", but there ought to be some system under which—perhaps the Minister will tell the House of some alternative—an order could be placed on that. Suppose a wife puts property in her husband's name in, say, Arthur Guinness, Son & Co. Ltd., and then a row develops and they were breaking up, there should be a quick procedure whereby the wife can have an order put on that so that her husband cannot dispose of it. It is all right to have the house in joint names. The Minister spoke of salvage payments and mortgages, but few people know about these rights. Would a system of registering orders made under this provision against a known property be feasible? I know the principle of the Bill is the attachment of earnings but I do not know if it would create greater difficulties in respect of a person who was keeping up his payments. There should be some system whereby the attachment order is secured if there are known assets. There is the contrary situation where the order can be charged on the property.

With regard to the section dealing with the provision of the extension to dependents between 16 to 21 or those attending a higher institute of education, I wonder whether the figure is high enough at £200. Also, there should be some provision—maybe this can be done at present in the High Court—whereby a lump sum be made available to set a person up in a trade or whatever. This should be considered if it is thought possible as everybody wants to see the Bill enacted quickly for good reasons.

I like the idea of registering maintenance agreements and the provisions whereby if they are not adequate, one can go to court with them. The Minister's approach to this situation is right. All the variations will be in regard to amounts, and if they can be got in a simple way from the District Court it will be a good change. I should like to know the reason why this is to be available only in the case of agreements which have been entered into before the enactment of the Bill.

After its enactment.

Yes. There may be excellent reasons, and I am open to debate the matter, but I would have thought that no matter when the appeal was made, even if not registered, the provisions for registration should be available, but I hope the Minister will tell the House the reasons for dealing with it in this way.

I would hesitate to go as far as Senator Robinson on the matter of making it a criminal offence to "fail to notify" as distinct from making a false return. We should be slow to extend the range of criminal offences. There are many fellows on the bottle or whatever, and to render them civilly liable is as much as can be done in bad circumstances, without making them criminals to boot because they may not have known they had to notify. There could be such cases, so we must not send innocent people to jail. On the other hand, I would go a long way in the matter of the vindictive spouse trying to break his way into the home, if he is not already covered by the criminal code, which he may well be. I do not know if it is necessary to have provisions for arrest in such cases, even arrest without warrant, particularly with short-term orders. He could come along on the 89th day and say: "I'm coming in here and with me ‘mot' too; you are all going out". At that stage there should be some automatic extension of the three months and automatic arrest as well.

That is all I wish to say at this stage except to ask that if an order is made, making the chap a debtor and this order is served on a particular employer regarding the attachment of earnings, what would be the position if he changes employment? Does the existing order stand or is the new employer's name substituted? In the case of a wife not wanting to apply for any variation in an order, there should be some simple procedure whereby CD will pay from tomorrow what AB was bound to pay up to yesterday. Is it for the wife to discover if the income has increased? There is procedure for that, but meanwhile there should be no slowing down in the flow of money from the debtor.

In general, I congratulate the Minister on the Bill and on the expression of wisdom of his opening speech. I indicated some doubts about various matters but we can deal with them at Committee Stage.

I do not propose to speak for very long. The Bill is aimed at providing against meanness and cruelty within the home. It also provides for a far better degree of equality as between the treatment of the spouses under the law. I am glad that this equality is not seen as a purely unilinear way, that in several provisions of the Bill inequalities under which the male suffers are included equally with those under which the wife may suffer in such circumstances. It seems, too, to reduce the cost of litigation, but at the Committee Stage of the Bill I would like to see this more clearly proven. Also, it seems to make litigation more expeditious.

I would like to raise a problem here which I wish to pursue later. It is a problem raised by Senator Alexis FitzGerald where he enters a caveat against the kind of legislation that encourages people to go to the courts, the kind of legislation which in itself is an enticement or an encouragement towards litigation. It is an aspect of the Bill that deserves a good deal of scrutiny because it raises the question of the desirability of family courts. One of the advantages of family courts, where they have been practiced, has been that frequently they deflect court litigation at an early stage. This is because the family court is a specialised tribunal, because the people who handle family courts are people extremely experienced in human relationships and in the more minute aspects of family relationships. I understand that frequently family courts can arrest, prevent and deflect the intentions of people to prosecute each other, and solve problems before they get locked and before the litigants themselves become petrified and immovable in their attitudes towards each other. Of all relationships in the world the family relationship is the most difficult one. When one shot is fired another is fired in return and before long it becomes an all-out artillery exchange. When that situation enters the court it can become infinitely more complex. Immediately it comes into the public light—even if it is not in camera, in the definition of Punch or Senator FitzGerald—it always involves an escalation of illwill.

The idea of family courts is one to be borne in mind for future legislation, perhaps. The Bill covers a very wide range of humanity and sympathy and human concern. I welcome particularly the part of the Minister's speech where, commenting on the family home, he said:

...I am sure the House will allow me a brief digression to say that the Bill that is being drafted to prevent a vindictive spouse from disposing of the home over the heads of the other members of the family is now at a very advanced stage and I am doing everything possible to have it published shortly.

I am glad he acknowledges the urgency surrounding that particular issue. Until that problem is solved a great deal of the difficulty that this Bill sets out to dispel will not be very susceptible to solution.

One of the greatest difficulties at the moment is the extraordinary delay in the law. Free legal aid is urgently needed, but lawyers have been extremely good. There are many young barristers and solicitors who work very hard from morning to night with little hope of remuneration, with very little hope of material reward except that they are perhaps making a way for themselves in the early stages of their career. What the litigant seems to be up against is an almost paralysing sense of delay. The litigant could wait all day for a case to be heard and be sent home without it being heard. A mother with very little resources could make arrangements for a babysitter in order to be present in court but a case could be deferred for as long as weeks or months. I know of a case which was nearing the moment of solution but the judge was promoted and then the entire brief was handed to somebody else. This could mean a delay of up to eight weeks. This is an agonising situation for people who are without means and who find it very difficult to get maintenance orders or any kind of relief from the courts. It is also true that injunctions are made against vindictive spouses to keep them out of houses but that these are flagrantly ignored. There could be an injunction there but police are very slow, at the application of the wife, to come and arrest the husband. It usually involves bringing the husband back to court. The enforcement of these measures seems to be one of the biggest problems.

There seem to be several provisions in the Bill aimed at expediting matters, to make the courts more streamlined with regard to the implementation and the working through of these cases. It seems to be more strenuously geared to enforcement. The penalties now against a defaulting husband, either imprisonment or fines, are very considerable. Let us hope there is the back-up necessary to enforce them.

The most delicate and adroit part of the Bill is the Minister's provision that it ought to be possible to obtain a maintenance order where the spouses are living together. It is one that is not taken for granted in other countries. It is an important point, and the Minister spelt it out particularly well. A wife when seeking a maintenance order for herself should no longer have to establish whether her husband has deserted her as well as failing to maintain her. Very often it could be a case of a drinking husband, a difficult man who was not all that malicious—she might still want to live with him—but she would find it necessary to attach his earnings. I like that aspect of the legislation. I share Senator FitzGerald's view that any aspects of the legislation which would tend to arouse people towards litigation should be carefully looked at. Prevention is much better than cure. It is within that context that I would again join with other Senators in urging on the Minister the re-examination of the possibility of family courts within which many of the problems which arise in the courts at the moment could be dealt with.

I welcome wholeheartedly this Bill in both the letter and the spirit.

The position regarding No. 3 on the Order Paper is that if we can start it by 7 o'clock we can go ahead with it. The Minister would be available then. If there was a prospect of finishing the Second Stage of the Family Law Bill I think we should not break for tea, but that depends on the number of speakers.

An Leas-Chathaoirleach

There are three people who wish to speak.

It is a matter for the House.

I would like to join with other Senators in welcoming this Bill, but my welcome is qualified in so far as I believe that we seem to be reforming family law and the whole purpose of family law in a rather piecemeal fashion. This is not the Minister's fault, but it is a fact. Desirable and necessary as this legislation is, it is being brought in without having due regard to the many other equally important aspects of family life in which other abuses occur. Hopefully I say in the near future we should have a comprehensive Childrens Act brought into this House based on the findings of the task force. With such a situation, particularly with different Departments dealing with the various aspects of family development, duplication and anomalies are going to occur and this is going to make it very difficult to work this legislation.

Four aspects of this Bill come in for most comment, and the first of these aspects is the best feature of the Bill. That is the section which deals with the attachment of earnings.

As was pointed out today as well as in what I have read in the Report Stage in the other House, there seems to be little point in a district justice making a court order in effect against an errant husband if such a court order brings him into court and after the hearing of the case he is sent to jail. I do not think this improves the position, and for that reason I welcome this idea of the attachment order, because the only alternative left to a justice at the moment is to send somebody to jail and unfortunately it is the wife and children who are to suffer most by this. In my experience of listening to cases in court where the most intimate details of family life are paraded publicly this is a very sad thing, and I have listened to this and I have heard talk of family courts. Though not an expert on this, I hope that future legislation would consider this aspect. It seems to me wrong to have these things brought out in public and, as Senator FitzGerald said, it is not in camera any more but at least it is not in public. It is phrased in the Act, and I think this is very desirable, to have such cases heard privately and without the full glare of publicity.

I am unhappy about the arbitrary figures fixed by the Minister of £40 and £10. In a few years' time this could be meaningless, and it may be worth considering the fixing of a percentage rather than a fixed sum in such cases. This may not be possible, but I think it would be more desirable than a fixed sum. With the increased cost of living £40 in a few years' time will mean nothing.

The third point brings me back to the opening comment on family courts. The Minister should have a look at this aspect. I have read a lot about them. I believe that based on the Scottish principle they would be more than desirable in a new comprehensive Act and would tie in with this legislation.

I would also urge that we should have a look at the legal aid side of the aspects of this Bill, because it is the people least able to afford it who need this Bill more than anyone else. For that reason it may be necessary to try and tie in some legal aid into the Bill.

However, in all I welcome the Bill. I commend the Minister for bringing it before the House. It is a step in the right direction and the first of many for which I hope the Minister will be responsible. He has shown his humanity in most of the Bills he has tried to bring into this House. This is another one of them, and I wish it well.

I too would like to welcome this Bill. Many have said that it is long overdue but I say: "Is fearr go déanach ná go bráthach". It has already been well discussed in a Special Committee and it has subsequently gone through the Dáil with many amendments. There is very little that we can add to it in this House except to enlighten ourselves by having this discussion and to highlight the provisions and make them better known to the Press and to the public.

I have no intention of going into the rights of women or the Report of the Commission on the Status of Women because this is only one section of women's rights and one of the recommendations made in that report.

The Minister has rightly said that the Bill seeks to rectify many of the problems that affect married women where the husbands are irresponsible and where they fail to support them. The main items have been outlined by all the speakers, and indeed much of what we have to say here is only repetition. The most important one is that the maintenance order may be related to the husband's earnings. That is only right, because the wife up to the date when there was a breach in the relationship had been used to a certain standard and because of that the allowance should be related to the husband's capacity to pay. Senator Kerrigan made the point that a percentage may be a better way of regulating it and ordering it rather than saying £10, £15 or £20 a week because of the changing values of money. I ask the Minister to look into that aspect of the allowance.

It is also to be welcomed that employers may be allowed to deduct from the pay packet. The other provision that everybody has referred to is the order which may keep violent husbands from the family home. That is something that is to be welcomed. People have been surprised that the Minister has brought in a section here which he says is not in legislation in other countries. That is that the wife can claim a maintenance while she is still living in the same house as her husband. This can happen only where you have normal, civilised people living under the one roof. The position pointed out by Senator Martin is an example of where this can apply. Many Senators have said that where there is a family breakdown women are very slow and reluctant to appeal to the courts. There are many reasons for this, one being that they cannot afford to do so. Many of them spend their lives penniless and patient without taking this action. A family court would be something that would be welcome, as also would be more free legal aid.

Senator Dolan and others have said that any family problems should be heard in camera, and we all agree to that. It only worsens the situation if the family problems are highlighted, and this is where I condemn the local papers. Whenever there is a family case in our courts they just cling on to it and give it the greatest publicity possible. While we have 80 per cent or more of our married people living very happily, when one steps out of line and there is a court case the Press just feasts on it and gives it far too much publicity.

I am glad that the provisions of the Bill apply equally to the wife as to the husband. If a husband becomes incapacitated or invalided or meets with an accident and she is the breadwinner and able to support the family, he is entitled to his share of the income.

Allowing the age of dependency for those to be maintained up to 21 is something that we expect now, because most parents try to keep their children at school until they have finished an apprenticeship or until they have gone through university. Twenty-one is the age to specify.

The idea also of paying the maintenance through the court clerk is a good one, because when it is being so paid it ensures that the defaulter, husband or wife as the case may be, will be much slower to fail to pay up the allowance.

We all should congratulate groups like Concern, AIM and ADAPT and others that have been highlighting many of these family problems which, before these organisations came on the scene, were always swept under the carpet. I hope that this Bill will have a speedy passage, and we all welcome it.

This Bill gives an overall authority to the courts to step in, as it were, and take over where either spouse has proved faulty in maintenance. It does this by enabling payment to be determined and to be paid at periodic intervals and it sets up the machinery for attachment of earnings. This is a progressive matter in regard to existing legislation and is to be welcomed.

There are a few major provisions in the Bill which will surprise many people, for example that a spouse does not have to prove desertion now, that they can still be living together and a maintenance order can be taken out.

The second principal provision is that a maintenance order can now be made out in favour of either spouse. Under existing law there was difficulty in this regard.

These two main provisions appear beautiful in theory but I cannot stop myself from envisaging some difficulties in regard to the proper implementation. In a very large number of cases it is unlikely, to take an example, that a wife will, if she is living under the same roof as her husband and wishes to continue living in that house, go through the necessary procedure to take out a maintenance order. This act on her part, she would conclude, would be divisive certainly as regards the family. It certainly would add further friction to an already difficult situation between herself and her husband.

Points were made that there should be an agency which would institute the necessary machinery to bring about the maintenance order in the case of a family dispute. The possibility of an agency to take such action rather than the wife or husband, to me, smacks a little bit of undue interference in what is a very intimate relationship. As the Minister said in his opening speech, family law has to do with perhaps the most intimate human relationship there is, and for an outside agency to be brought in in the initial stages and to be asked to process all the necessary procedures, might be excessive interference, as certainly the wrong stage.

The point has been made that this Bill is limited and will continue to be limited in its operational effect until family courts are instituted. I wish somebody would explain what family courts are supposed to do and how well they can do what they are supposed to do. Again this is stepping into a very delicate field of operations, namely human relationships within this very tight and complex entity of the family. Would we have a situation where every little bickering that can happen over the breakfast- dinner- or tea-table would be held out by one spouse to the other as a threat that it would finish up in a family court? That certainly would be divisive. Until it is spelt out what family courts' terms of reference would be, what they should engage in and what their procedures would be, I will always remain a bit suspicious about their overall effect.

The Bill is to be welcomed because certainly it is in accordance with the recognition of the equal status of either sex in the present world. It gives either party certain rights which, under the existing laws, they had not. I feel that its operation will prove difficult for the reasons I gave. A deterrent is one thing. Whether a person can go ahead and implement that deterrent to the fullest extent by taking out a maintenance order and still hope to live under the same roof is going to be a very difficult thing for any party to engage in consideration of. It is a piece of legislation which, notwithstanding the reservations I have about it, is to be welcomed. It is in line with what the present Government have been trying to do since they took office three years ago, namely to bring a certain semblance of social justice into all human relationships, and particularly to help those people who are least able to help themselves. I can only give my utmost hopes that it will be successful because it is progressive, and perhaps it is going to be a great surprise to people who have been defaulting in regard to their responsibilities as regards maintenance of either spouse or children. Marital difficulties are something which have not been talked about openly and publicly in this country, and perhaps that has been wrong.

There were some comments this afternoon that publicity should not be given to these matters in regard to the taking out of maintenance orders. There are two points about this. Publicity can act as a deterrent against other people not acting up to their responsibilities in regard to maintenance, but as against that perhaps it does give the wrong image. The Bill, as the Minister has said, is complicated. It is dealing with a complicated subject, and as such I can only hope that it will have the best results, the results which the Minister would hope for.

A Leas-Chathaoirleach, I am obliged to Senators for the welcome they have given to the Bill, for the interest they have taken in what it proposes and for their contributions in regard to what is involved in the Bill.

When I was introducing this Bill, both in this House and in the Dáil, I indicated a number of areas where it was breaking new ground—for example, the age of dependency. That has been raised to as high as 21. I welcome Senator Uí Eachthéirn's endorsement that this would be a good limit and the reason of the maximum age being set. It was suggested in the other House that there should be no age limit, but it would be unrealistic to expect parents to have an open-ended commitment to maintain children even after the age of 21 which, according to the normal rules of our society, denotes the attainment of maturity and adulthood.

I mentioned too that we would be depending to a considerable extent on the value judgments of our district justices. This is a novel departure and quite a radical step. We are giving the District Court, the court of first instance, very wide discretion in this complex area of family law. Senator FitzGerald made the point that it has been said that the equity in deciding a case depends on the length of the Chancellor's foot, that there was a certain amount of hit-and-miss in it. Unfortunately—or fortunately—this is the way it has to be. There can be no objective criteria laid down which would rigidly bind the court as to what it must find. That cannot be, because each case will have characteristics peculiar to itself, and these characteristics will have to be read by the court adjudicating on the matter and we will have to rely on the discretion, intelligence, experience and good judgment of the presiding judge to make the right decision as between the parties.

I said in the other House, and I say it again, here district justices and the Judiciary generally are men of common sense, intelligence and wide experience in all matters of life. I would have confidence that in this complex and delicate area of family dispute they would bring to the solution of these disputes the fruit of their experience and their legal learning and experience of life and general intelligence. I would be quite happy to leave the adjudication of these matters to them.

Senator Alexis FitzGerald questioned the correctness of having this discretionary element in the doing of justice in this sensitive family area. In the absence of objective criteria— and I submit that they will be always impossible to define because each particular family problem will be unique —we have no alternative but to leave it to some tribunal to adjudicate. As our system stands that tribunal will by and large be the District Court. There will however be instances where proceedings will be taken in the High Court where very large sums are involved.

The suggestion made by a number of people has been for what they call family courts. Senator Alexis FitzGerald and Senator Markey have asked what precisely is meant by family courts. Senator FitzGerald said that people who pontificate on this subject should be prepared to back up their pontifications with theological documents to show precisely what is meant. I have a lot of sympathy with the point of view that some clear indication be given by those who speak of family courts as to what they mean by the term. Nobody has said to me who would compose the courts, who would be the people who would serve on them, what their qualifications and experience would be, what the jurisdiction of these courts would be in terms of imposing punishment by way of sanction to enforce their orders, what rights they would have with regard to property of the people coming before them, what rights and powers they would have with regard to the personal liberties of the people coming before them, what rights they would have in relation to the custody of minors coming before them, or whether they would be courts under our Constitution.

I think they would have to be courts under our Constitution and, if so, there would have to be a judicial presence. At what level of our judicial system would these courts be inserted? How wide of a spread would they have over the country? Would they have territorial jurisdiction or would it be an itinerant court that would move from place to place throughout the country as the need arises? Again, would their proceedings be open to lawyers or advocates, even if nonprofessional lawyers? Would the parties before them have the right to call advocates to present their cases, and what would their procedures be?

These are all questions which would require very considerable thought, and a large amount of research and analysis. Even after completing all that process we still might come to the conclusion that this type of family court might not suit our society. Senator Kerrigan suggested that in Scotland there is something analogous to a family court, the so-called children's panel system dealing with young people. But there are many question marks being raised over these children's panels as to their efficiency and as to whether they are appropriate or formal enough to deal with a serious problem. One question mark—this would be particularly relevant for us in our society—is that on these panels there are members of the community. I feel that in many parts of rural Ireland there would be great resentment on the part of people in the community to neighbours coming in and sitting in adjudication on them, particularly if the subject matter for adjudication was some complex, delicate and sensitive family matter.

I must say that as of now I have heard no analytic argument to support the case made for the family court as against the District Court. The District Court will be holding its hearing in private for these matters, which will get over the unfortunate consequence to which Senator Uí Eachthéirn referred—the local publicity, which can be most hurtful and harmful. It can certainly cause a lot of personal anguish. If that difficulty is removed and the matter heard in private in the District Court, the things that people fear about the court proceedings— that they may be impersonal and that it may be too formal—immediately disappear when the court closes its doors to the public and the Press. I have no doubt that the humanity that I have always found among district justices will ensure that the proceedings will be informal and humane and that compassion will be the order of the day. I anticipate that these cases will be heard in the informal surroundings of a justice's room.

Presenting a case for family courts involves telling us precisely what they are or what people think they should be and we have never heard such a case yet, even from those who urged them frequently. Until we have such a case made and can see that the family tribunal, or family court, is a superior institution in this context of dealing with family problems to a District Court hearing its proceedings in private, in its own locality, with lawyers and a justice who know the area and know rural and Irish life, I have no doubt in preferring our District Courts. We have to rely on the value judgments, the discretion of our district justices. This is inherent in what we are proposing.

I made the point, in reply to Senator Alexis FitzGerald's point as to the length of the Chancellor's foot, that this is something we cannot avoid; that there will be a certain amount of value judgments. In fact, every decision by a district justice, or a judge of the High Court, in adjudicating on one of these maintenance matters will be a value judgment as between the parties. I am content—I speak from experience in this matter—to leave such matters to the good sense of our courts, bearing in mind that they will have the assistance of the parties and their lawyers. In matters such as this the proceedings will be comparatively informal; they cannot be entirely informal because no court proceedings can be entirely informal. It is right that they would not be because it is necessary for the continued respect of our courts that there would be a certain formality attached to their proceedings, the formality to be appropriate to the particular type of proceeding before the court.

Another matter which I indicated in my opening speech as being a new departure was that for the first time an obligation was by statute, being placed on a wife to support her husband and an obligation was being placed on the court to take into account a wife's earning capacity in deciding what her husband's obligation to her might be. The way society is developing, and the pressures that are on to ensure equal opportunity for women and for men, we could not have a maintenance statute without acknowledging that there are mutual obligations and that society has advanced from the time when a wife was regarded literally as a chattel, and as a person who had a definite but very limited role which ignored perhaps great accomplishments or great capacity for accomplishments. Society is demanding that the capacity of a wife to earn, or contribute to the benefit of her household, her family, has to be taken into account.

Senator Alexis FitzGerald felt that possibly it was not proven at this stage of our development that we could reverse the old situation or that we had progressed so far that the old situation where there was no obligation at all on the wife, was now completely out of date. I am afraid that it is out of date. We must recognise that now, bearing in mind that we are not legislating for today, tomorrow or five years hence. Senator Robinson indicated the long intervals that have taken place over the last century between family law statutes. We are probably legislating for at least a decade in this legislation.

We must recognise the trend that is already apparent in our society. We must recognise that it is probably going to accelerate and intensify and that we may see quite dramatic changes in the structure of our society arising from changes in the attitudes towards the respective roles of husbands and wives. This is something that I do not view with any great joy. I view it with some apprehension because I could foresee that it might be the thin end of the wedge towards damaging the family unit. If the family unit becomes damaged society must necessarily become damaged and, as we know it, must change radically for the worse. Nevertheless, this is the way society is evolving and it would be unreal in a statute providing for maintenance obligations to ignore the fact that a wife can have, and in many cases should have, an obligation towards her husband at least as strong as his obligation to her, not merely to him but also to their children. This is now common case in western society and I think we must recognise it.

How far it is to be observed, recognised and implemented in a particular case depends on the facts of that case and the interpretation put on those facts by a court. We are getting back again to the question that is basic to this piece of legislation, that we are relying on the value judgments of our courts. For good or bad, we have to do this, but I am confident and happy to rely on the good sense, experience and intelligence of our judiciary to ensure that the obligations we are providing in this Bill will be invoked so as to do justice between the parties without damage to their respective rights, without damage to the family unit coming before the court. We would be closing our eyes to what is taking place around us if we did not recognise these changes. We might like to close our eyes and hope that when we open them again these changes will have gone away but I do not think that is going to happen. They are with us and I believe they will accelerate. We have to recognise that they are there and provide for that recognition in our law.

Many of the other points made on the Bill would probably be best left to Committee Stage. Unless I went into them in great detail I would be answering them in possibly a superficial and, unwittingly, misleading way. I ask Senators who raised points that are not dealt with now to bear with me. It is not that I am ignoring their points but I would prefer to deal with them on Committee Stage in the context of the particular section to which they refer.

Some Senators raised the points that the reforms introduced by the Bill will not be as beneficial as they might be in the absence of a system of civil legal aid. I take that point and can recognise its merit, but I do not think that absence of civil legal aid will be a serious impediment to any person getting justice for himself or herself under the Bill. The person seeking remedy under the Bill will normally be the wife, and it is my experience, and I am sure the experience of Senators, that a wife who has a grievance, and who goes to seek legal assistance to rectify that grievance in her local court, is not going to be rejected because there may be some doubt as to her capacity to pay fees.

In any event, I expect that when an order is made on foot of these proceedings, when this Bill becomes law, costs will follow the event and will be awarded against the husband and that the solicitor will be aware of this. He will be aware that, while he might not be generously paid for his labours, he is not going to be left without a fee. I do not think the absence of legal aid will inhibit any woman from seeking her remedy under the Bill.

Senator Robinson criticised the Pringle Committee for their delay in making a report. She gave the impression that the committee should have reported by now. This is one of these facile criticisms about delay that is easy to make without taking any account of the complexities of the subject under review or examination. I am aware that this is an extremely hard-working committee who have gone into their brief in the greatest of detail. They are all volunteers on the committee and they are all busy men with other occupations. I am aware that they have given a great amount of their spare time to serve on this committee. We must all be grateful to them. Senator Robinson singled out, in particular, the distinguished and learned chairman of that committee, Mr. Justice Pringle, and suggested that because of his other commitments he might not have enough time to devote to this committee. I reject that suggestion with the contempt it deserves. I am sorry Senator Robinson is not here to hear me say that, because this distinguished and learned gentleman, like the others on the committee, gives his free time, and his free time is the same as that of the other members, to serve on the committee.

There is no question of lack of interest, lack of attention or lack of hard work by this committee: the subject that they are discussing is a highly complex one. I have no doubt that when they report they will do so in a comprehensive way, and I have equally no doubt, because they are aware of the urgency of this problem, that they will report as quickly as possible. It is important that this be made clear that they are giving a lot of time and attention to a complex problem.

Senator Robinson criticised the Bill in that the wife would be the one who would have to instigate proceedings. She felt that somehow she should be kept out of it and that there should be a third party, a State agency, coming in. This would be a serious invasion in the liberties and privacies of a citizen for some social agency, some welfare agency, some third party, some arm of the State, to look at Mr. A and Mrs. A and decide "things are not so good in that house; we will have them into the District Court and see if Mr. A is supporting Mrs. A and their children". This is a consequence of what Senator Robinson proposes. It would be a gross violation of civil liberty. I am surprised and abhorred that a person with Senator Robinson's concern for civil liberties would propose the like. It is for the parties themselves, and this is the way we should leave it, to vindicate their own interests. If, however, it is a question of saving the wife of a defaulting spouse from the trauma of attending at the adjudication of the matter, that cannot be avoided because there would have to be evidence and the only person who can give evidence of neglect and failure to maintain will be the affected spouse, probably the wife.

Senator Robinson suggested that there is not sufficient integration between the social welfare code and what we are proposing here. She instanced the case of the wife who is not being maintained firstly having to seek home assistance. After that she will seek her remedies under this Bill and if that fails she will then seek a deserted wife's allowance. Senator Robinson felt that all these should be integrated. I suggest the reality of the situation is that the person who is in a state of hardship will go, in the first instance, to the first available State agency for help, and that is the home assistance officer. That presently is being changed and that distasteful poor law title is being done away with. That will frequently be the first port of call for the person needing help. The second port of call should be the legal remedy under the Bill, bearing in mind that the person is being assisted by way of home assistance pending the taking of proceedings under the Bill. If they can be taken successfully against the husband, and enforced here or in England on foot of the reciprocal arrangements which we successfully negotiated with the UK in 1974, then the husband, whose primary liability it is —not the State's—to support his wife should be first gone after. If the remedy against him is ineffective, or if it is futile to take proceedings against him in the first place, the State should be called in aid of the woman. That is the procedure as prevails at the moment and it is the commonsense approach. To suggest that there should be some integration that would call the State in from the beginning until the end is wrong.

There was also criticism—this is in support of the argument in favour of family courts—of the so-called adversary system of our law, that somehow this would not suit contention between husband and wife as to whether there was a default in maintenance. I do not see how a family court can help, even assuming this vague concept has some meaning. There will have to be an adjudication before it and points of view will have to be argued. People arguing points of view against each other are, willy-nilly, in an adversary position. To suggest that there can be a legal system or an adjudication process without involving an adversary element is unreal and is part of the unreal talk some people indulge in in this sensitive and emotional area of family law.

Senator Alexis FitzGerald and Senator Robinson wanted to know why section 8, the section which provides for the registration of agreements, could not be made retrospective, why it could not cover all separation or marital agreements made prior to the coming into operation of the Act. There would be something wrong or inequitable concerning that. It would, in effect, mean changing the rules of the game for people who had already started to play. That is not a good principle to introduce in legislation. It would have an element of, not quite retrospection, but it could bring with it a certain inequity. In any event, there is nothing whatever to prevent those persons, if they are of a mind and are agreed, to enter into a new agreement so as to take advantage of the provisions in the Bill. That is the reason why it is not retrospective and I think it is a valid reason.

It could be argued, if it were retrospective, that a person could say: "If I had known that this was going to come I would never have entered into this agreement; I would not have any separation agreement with my spouse; I would have let the matter drift on". It would be inequitable to provide that agreements entered into without any thought whatever of having them made a rule of court would find them then, willy-nilly, made rules of court if either party so decided.

The question was raised as to the propriety or the need for having maintenance proceedings where a separation had not occurred, where there was no desertion and the parties were still living under the one roof, that there would be something slightly "off" or incongruous about that sort of situation. I am advised, and my own experience leaves me to know that the advice is correct, that one can have a situation, not frequently, but not infrequently such as the phenomenon here known as the "street-angel, house-devil". He is possibly to be found in other countries also.

Unless we provide for maintenance being paid by the husband where the parties are living under the one roof that type of situation would not be dealt with. Perhaps up to now it could have been dealt with if the wife was prepared to leave and so establish constructive desertion. That was a rather contrived legal remedy and one that would inhibit taking it because of its contrived nature. Possibly, too, wives would be inhibited from moving in that type of situation for reasons of respectability; they did not want to disclose to their neighbours the true position in their household, especially if they had the second hurdle to cross of establishing constructive desertion. There is no doubt that, for reasons of respectability, there will be certain women who will not avail themselves of the remedies being made available in this Bill, but inhibitions such as those will become less as people become more concerned about getting a fair deal rather than presenting a re-respectable front to the neighbours.

Children are also becoming more independent-minded. I anticipate that the way society is evolving the initiative might be taken by children in the case of such households. It is proper to provide in the Bill, bearing in mind that we are providing for an evolving situation, for maintenance proceedings between spouses who are still living in the same household.

Senator Kerrigan criticised the Bill on the ground that it was piecemeal. I heard this criticism before and I reject it. It would have been wrong to delay this Bill and, for example, to delay the Maintenance Orders Bill passed in 1974 in regard to the mutual enforcement of maintenance orders, until such time as we could have a comprehensive Bill. Equally it would have been folly to have delayed introduction of this Bill until the measures dealing with the protection of the family home would be added. That would delay the benefits of this Bill for people who are immediately in need of them. To introduce important legislative reforms as they may become ready is part of a phased reform of the area of family law; the word "piecemeal" has a pejorative ring about it which I reject.

This Bill is a substantial piece of legislation that deals comprehensively with the law relating to maintenance in its entirety. It so deals with it in a manner that will enable it to fit naturally into further legislation as it is drafted. There will be a Bill later in the session dealing with the family home. We have touched on that subject in this Bill by giving the court power to exclude a violent spouse in a summary manner from his home for the protection of the wife and children. The Bill which is being drafted will prevent the vindictive sale by a spouse of the family home over the heads of the other spouse and the children.

Senator Alexis FitzGerald made the point, which we experienced in the drafting of the Bill, that it will bring with it certain technical questions relating to title. We must be careful that in remedying the particular ill we do not cause a complete logjam in conveyancing. It has proved difficult to reconcile the two positions, but I am hopeful that the problems that have arisen in the course of the preparation of the proposed legislation will be resolved very shortly.

Senator Dolan made the point that the effectiveness of this Bill will depend on being able to enforce any attachment orders granted on foot of it. I quite agree. It is no remedy for a woman to have a court order unless that court order produces a weekly sum of money for her. If an errant husband decides to go to ground in England, he may in some cases do so pretty successfully. I cannot see a system being devised whereby it can be guaranteed that he can be traced from job to job in a large urban society so successfully as to enforce an attachment order made against him. The same could be said of a person in this country, if he decided to go to ground. There would be an odd case such as that in which a person would be determined to avoid his responsibilities and I do not think the law would be able to catch up completely and effectively with such a person. What the Bill can do is to provide a proper remedy for a wife against a husband who is in stable employment and, for whatever reason, is not maintaining his wife and children. It was suggested in the other House that there should be some liaison with the Revenue Commissioners or the Department of Social Welfare to mark people with attachment orders against them so that it would go with them wherever they were employed. This raises questions which would be outside the scope of this Bill and would involve the Department of Social Welfare and the Revenue Commissioners engaging in activities that would not be part of their brief. Again, whether even that would be effective is a moot point.

Senator Alexis FitzGerald spoke about an evicted and malicious spouse who might seek to surrender his tenancy. This will be covered in the new Bill on the family home that is being drafted.

Senator Eoin Ryan was worried that the provisions extending the age of dependency up to 21 might be abused and could result in indolent young adults leaning on a parent for support. We must remember that we have given discretion to the courts. The courts will hear a particular case and decide whether dependency is genuine or not or whether the person in question is a chronic student and no longer deserving of support from his father.

Senator Eoin Ryan also raised the question as to whether need must be shown before a maintenance order is shown. In other words, must the wife, for example, spend all her income and savings and only then, when she has exhausted all her own property, come to the court and seek a maintenance order against her husband? The answer to that is that the Bill includes no such requirement. It will be for the court, having regard to the respective positions of the parties, to decide whether a maintenance order should be made to them and how much it should be. The Bill does not provide that the court can only be operative when the wife has spent all her own income. Of course, the court would be entitled to look at an application by a wife and at her means and her capacity to earn at any time. If the court decided that in the situation before it a small amount was payable by the husband, having regard to all the circumstances of the family, then only a small amount of money would be ordered. The position might change, and if so there is provision in the Bill for either spouse to come to the court to have a variation made.

Senator Eoin Ryan criticised section 8, in that the inability to vary an agreement is too inflexible. I feel that it must be inflexible. We cannot have a situation where the parties enter into a contract and either one can then come to court and apply to have it varied. There would be no point in entering into the contract in the first instance.

I have covered most of the points, with the exception of Committee Stage points, which Senators made. Senator Markey thought that orders would not be sought unless there was desertion. That may well be the position at the moment, but when this Bill becomes law and the right to seek orders, in cases other than desertion becomes known, I think such orders will be sought. Constraints such as respectability and shyness that might have prevented people up to now from seeking a remedy in the courts in the knowledge that their case might be reported widely in the local paper is an inhibition that exists at the moment and will be removed by the Bill. Many of the hidden injustices in our society, such as the case of the husband who is mean at home, generous outside, or who is not discharging his responsibility or discharging it in a very niggardly way, will be tackled.

I wish to thank Senators for the welcome they gave the Bill. I am very gratified at the opportunity of introducing such a Bill. It has certain novel features in it. I indicated what these were in opening the debate. Some were followed up. Senator FitzGerald questioned the power of a court making value judgments in this area, the idea of putting both spouses on an equal footing. This is something we have to recognise as part of living today. Other novel areas include the exclusion from the family home, the increase of the age of dependency and the changed law in regard to adultery. All these features generally meet the approval of the Senators and the recognition that they constitute what is needed in a modern statute. I thank Senators and look forward to the Committee Stage debate.

Question put and agreed to.
Committee Stage ordered for next sitting day.