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, entitledDesertion 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 maintenance...as 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'sCases 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— JohnsonFamily 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 principlecommunis 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.