This Bill is very welcome as an interim measure on the road to a proper and just system of co-ownership of the matrimonial home. I use the word "interim" advisedly because of the Minister's sensitivity about "piecemeal". Nevertheless, it is a very useful and important Bill indeed in Irish terms. Probably the source of greatest hardship in our family law has been the helplessness and the dependence of the wife who could not prevent the matrimonial home from being sold over her head. She could not protect herself and her children from this hardship and she was solely at the mercy of whatever goodwill her husband would show her when the marriage relationship had broken down. If he wished to desert her and sell the home and realise his asset there, she could not prevent it.
I agree therefore with the Minister, that it is a very important measure. Indeed, I find it interesting to see what an empty House we have on this July afternoon to examine the terms of the Bill. I would prefer to think that this is evidence of support for the principle, as Senator Ryan said, rather than a lack of interest in its provisions. When we were dealing in this House with the Family Law (Maintenance of Spouses and Children) Bill the point was raised that that Bill would provide for possible exclusion of a violent spouse from the home, but that it did not cater for the problem of the sale of the home to a certain party. The Minister, in introducing this Bill, has emphasised this aspect of it: the vindictive sale by a spouse against the wishes of the other spouse—normally, as the Minister said, the wife. I think that is a misdescription of the scope of this Bill, with respect. This is not just a Bill to prevent vindictive sale. It is much more far-reaching, a much more important interim measure than the Minister indicated in his speech here today. It is a general provision in that when any matrimonial home is being sold the wife's written consent will be required. That is extremely significant. I think it will have a deep psychological and cultural impact in the country. The wife in Ireland has been in a very disadvantaged position; she has frequently not been consulted by her husband in relation to financial matters she is very often unaware either of the extent of the husband's property, of the value of the house they live in or of the husband's income. She is often in a position of total financial dependence and ignorance. She may not even be consulted in relation to financial decisions to be taken. All too often it is the husband who has taken them and perhaps has been kind enough to inform her afterwards. That is the position for a very significant number of wives in Ireland. To try to pretend that is not the case, to try to pretend that it is not a matter of concern to those interested in law reform, is to ignore reality.
Any measure which will have a general impact on all marriages in the country—good, rocky and bad marriages—and which will improve the position of the wife, her psychological commitment to the partnership of marriage, is a very important one. It will have a very significant impact on the wife's psychological identification of herself, of her role in the partnership of marriage when she realises the fact that her consent in writing will be needed for any mortgage, for any sale of the house, for any leasing or disposition of the family home. I am fairly sure that the majority of women in the country are unaware of the proposed impact of this Bill. Indeed I am equally sure that the majority of solicitors in the country are unaware that they will need a new type of requisition on the sale of property; a requisition to ascertain whether the vendor is a married man and, if so, whether the written consent of his spouse has been obtained.
That aspect reinforces the point that this Bill is an interim measure on the road to co-ownership of the matrimonial home. I regret that it is only an interim measure. I think that it would be more desirable if the homework had been done—and I do not underestimate the homework and research that needs to be done—if the Minister had had the courage to pursue the principle, just that important step further and to create a concept of co-ownership of matrimonial property. To do so would be to reinforce the concept of partnership in marriage, to have our laws reflecting the importance which we place as a State on the concept of a genuine partnership in marriage. In this regard I would refer to the report of the Commission on the Status of Women, where at paragraph 450 reference is made to this question of the matrimonial home, and I quote:
There are, we consider, two acceptable alternative courses by which the protection referred to in paragraph 449 may be achieved. The first is to provide that neither spouse of the marriage may dispose of the matrimonial home without prior consultation with the other spouse and that where it is not possible to reach agreement a period of time should be allowed to expire before any further action is taken.
The Minister did refer to this first alternative in introducing the Bill in the Dáil. I would agree with him that the solution in this Bill is better than that first solution proposed by the Commission on the Status of Women. The report continued in paragraph 451:
The second way in which the protection sought could be achieved would be to introduce a system of co-ownership of the matrimonial home under which the home would legally be regarded as being jointly owned by the husband and wife, by virtue of the marriage bond, except when an agreement to the contrary has been entered into by the spouses.
The report states that this involves complex property problems, complex relationships and so on. It will involve very careful study and the Commission on the Status of Women, not having the benefit of such study could not express a view on it. The Minister in replying to the debate in the Dáil said much the same as he said here today—that it would require great research and study. As reported at column 426 of the Official Report for 27th May, 1976, he said:
Deputy Callanan and Deputy Mrs. Desmond both advocated joint ownership as being a preferential mechanism for securing what the Bill wants to secure. In another jurisdiction where they had means of investigating these law reform measures in some detail, it took many years to investigate this question of compulsory joint ownership and the question still is to some extent an open one and the problems that were found in that jurisdiction are equally present here. There could also be a constitutional difficulty in relation to compulsory joint ownership.
I presume the Minister, when referring to another jurisdiction, was referring to the British Law Commission Working Paper No. 42 on this subject of matrimonial property.
However, we have a Law Reform Commission in operation here. There was considerable enthusiasm for the Bill which established it. It has come into existence and is manned by expert people. Has the Law Reform Commission been asked to study the problem of joint ownership of matrimonial property? Has it undertaken this as an important aspect of family law which I understand was to be a priority for the Law Reform Commission? I ask this because a number of people who wish that body well, who regard it as a very important step, now wonder what stage it is at. To some extent it has gone underground. This is understandable in that it takes time to get established. It would be extremely useful for the Law Reform Commission to examine this and other aspects of family law reform so that the whole approach could be more co-ordinated and comprehensive and less piecemeal.
If there is a constitutional difficulty, then that difficulty would seem to be a difficulty in reconciling the provisions of the Constitution which reinforce the concept of private property and the provisions which reinforce the family in Ireland. It appears that the Government are contemplating a constitutional amendment in the autumn in relation to protection of the interests of the child. As yet I have not seen or heard a clear statement of the Government's intention but if it is intended to have a constitutional amendment on that aspect of family law, then I submit that it would also be appropriate to have a constitutional amendment to remove any shadow of possibility that the concept of private property referred to in our Constitution might weigh more heavily than the concept of partnership in marriage which would provide stability and strength to the family relationship. The reason for having a constitutional amendment as in the other context, is that part of the Constitution is in conflict with aspirations in our society, in conflict with a desire to have legislation which reflects our social aspirations: the awakening and deepening aspirations of women to play an equal and full part in Irish society.
There is no doubt that the introduction of a scheme of co-ownership of the matrimonial home would be a significantly better measure in reinforcing the dignity of the marriage relationship. It is a partnership which includes a partnership in responsibilities, in financial arrangements and so on. It would be more significant than this measure, which—although it will have psychological importance in regard to the role of the spouse when there is a question of either sale or leasing or mortgage of the family home—will not give her any legal interest in the proceeds of the sale of the home. She has no legal property right during her lifetime. Admittedly she would have a substantial property right under the Succession Act. If there is a will she could defeat the will by claiming her legal share; or if not she would get a substantial property right on intestacy and indeed a particular right to the family home. Why not give her a protection during her life which we have been happy to give her after her death? Why were the same constitutional problems not posed by the Succession Act in limiting the disposition of property which is a private property right? Why must we invoke some vague shadow of a constitutional difficulty to prevent the equal sharing in a lifetime which we have to a large measure achieved through the Succession Act after a person is dead?
If I could return to the psychological significance of this Bill, any women's organisation in the country which has done any research into the problem, or listened to its members, knows of the cruel dependence of the wife in Ireland. They know of her lack of possibility of protecting herself against the abuses that can occur. But even more lacking is the recognition from society that she is an adult independent member of that society. A wife in all her relationships outside the home is a less important person even to herself than is her husband. She has to get a signature accompanying her own signature on a number of legal forms. She is not treated as an adult independent person by many of the agencies she deals with. She thinks of herself, ultimately, as being in an inferior position to that of her husband because of the cultural conditioning factors which are so strong. She is very largely in ignorance of the earning power of her husband. Now, of course, it is to be hoped that a spouse who is not being maintained by her husband will enforce the procedures under the Maintenance of Spouses and Children Act for attachment of earnings. That will probably be the first time for a number of wives that the wife will know how much her husband is earning. A considerable number of wives do not know their husband's income and do not share with him in the financial budgeting of the family.
When one comes to the question of income tax it is the husband's income tax form which is the income tax form for that family. It is the husband who signs it. His wife's income tax, if she is earning a separate income, is included on the husband's form unless she applies to be assessed separately. So again, in dealings with the Revenue Commissioners, it is the husband who is the sole actor in relation to the financial arrangements involved. It is clear from the homework done by the AIM group in relation to maintenance of deserted wives and in relation to their recent report on legal separation in Ireland, that even in separation agreements the wife's position has been a very inferior one. Quite often there has been no specific provision in relation to matrimonial property. Quite often the agreement has been entered into at the last minute, just before going into court, and consequently in a hurried manner.
The report, which is a relatively small sample of 30 cases, nonetheless shows very decided trends. It shows that the separation agreements do not protect the best interests of the wife. She is not adequately advised as to her possibilities of protecting herself. Obviously this report referred to the fact that the wife could not prevent the matrimonial home from being sold over her head. That is one of the matters that will be remedied by this Bill. There are other significant defects in the present arrangements particularly stemming from the economic dependence of the wife who does not operate on equal terms with the husband in cases of matrimonial breakdown where it is necessary to enter into separation agreements or other arrangements.
Consequently this is not a minor Bill dealing only with a narrow matter, the matter of vindictive sale of a family home. It is a mainstream Bill, which will deal with the sale of every family home by a husband in this country from now on. The Government should use their best endeavours to get that message across on the highways and byways so that it is appreciated and realised. The Bill will provide for the need for consent in writing by a wife to the sale by the husband of the family home. What does this mean? It means firstly that the wife must be made aware in advance of the intention to sell or mortgage or lease the family home. That would be an improvement on the situation in a significant number of cases at present. Secondly, it means the wife must be consulted about the intention to sell or lease or mortgage, including creating an equitable mortgage by bringing the title deeds down to the local bank. She must be consulted in advance, and, thirdly, must give her written consent for that, which will be a considerable improvement on the present situation for the majority of wives. She must be made aware in advance. She must be consulted as an adult person with a view to express on what happens to the home she is living in, which is again an improvement in a large number of cases at present in Ireland, and she must give her consent in writing to such sale or lease or mortgage. I would say it would be difficult to calculate the cultural impacts of that in Irish society, and hard to estimate the difference it will make to the psychology of the woman herself, to the psychological relationship between the husband and wife.
I was interested to read the Minister's reply to the debate in the Lower House, where he expressed doubt about the support for a system of co-ownership. He said that he felt it might not be something that would be wanted by the general Irish public. I have not got the precise quotation, but the sense one got is that he was talking about the usual political grassroots, the male grassroots. I think if he were to go out and listen to the women speaking from a woman's point of view there would be a very strong support for the concept of co-ownership of the matrimonial home. There would be a very different perspective indeed. In the case of the average Irish male who has had the entire disposition of property in his own hands—who has not had to consult his wife, who has not had to inform her of his plans—why should he be particularly anxious to change and to enter into new responsibilities and new commitments? I would suggest that in looking for reactions to the proposal for co-ownership of the matrimonial home it is neither relevant nor adequate to look to the usual grassroots, the usual male grassroots in a constituency; but rather the approach should be first of all to create an awareness of the considerable impact of this measure and then to see what support there is for going further, for having a full system of co-ownership which would give the wife a genuine sense that the partnership in marriage was a partnership in relation to the property and the fruits of that marriage. This would help to redress the very considerable imbalance she feels; that the work she does is cleaning the house, looking after the children, painting the house, exerting herself to make it a home, does not have an economic value in the community and is therefore of less value than the wages which her husband brings home.
Somebody has said—there is an ironic side to it—it is only when a criminal conservation suit is brought that true value is put on the work that the wife does and her services within the house which normally do not get an economic value. If one sees the damages awarded by our courts occasionally for criminal conversation one has some idea of a judicial determination of what is the value of the work done by a wife. I say that as somebody who would prefer not to see suits for criminal conversation in our legal system. However, they are useful to point to as an example of one way of assessing the input of a wife to the matrimonial home and the reason and justification for having a system of co-ownership of the matrimonial property.
Therefore, it is regrettable that this Bill, which I described as an important interim measure, attacks only the symptoms of the imbalance in the marriage relationship. The Minister said it attacks only the particular symptom of the vindictive sale. I would say that it goes further than that and attacks the symptoms of any sale by any husband or any disposition of the property by lease or mortgage or whatever without the written consent of the spouse. Nevertheless, that is only a symptom of the reality that the wife has been in a very inferior and unequal position. It would be better to go further and create a genuine system of joint ownership so that the wife would have legal title. She would have a legal share in the proceeds and she would have a genuine sense that the relationship was one of partnership.
Another important matter was raised by me and other Senators when considering the Maintenance of Spouses and Children Bill and it becomes more and more obvious as we pass measures of this sort. It is that we are creating some sense of a better balance in family law on paper, but little improvement in reality because we are not introducing side by side with these measures a comprehensive system of free legal aid and advice. Without that parallel mechanism which makes a reality of these Bills then I am afraid they will not have anything like the impact which they appear to have on their face. The Minister must face that reality. I do not know how to say strongly enough that unless we have a system of free legal aid and advice a great many people whom this measure and the Maintenance of Spouses and Children Act are supposed to benefit will not benefit and cannot benefit under our present system. Therefore, I was disappointed when this question of legal aid was raised in the Dáil that the Minister seemed to find it largely irrelevant to this Bill. He referred at column 431 of the Official Report on 27th May, 1976, to the fact that it would be the husband who would be making an application to the court to have the court dispense with consent of his wife and said:
Therefore I do not think the lack of legal aid will be an inhibiting factor in the operation of this Bill. The onus is being placed on husbands not on wives to move.
With respect to the Minister, that is a complete misreading of the Bill. If one goes through the various provisions of the Bill: it may be the husband who will be making an application under section 4 to have the court to dispense with the consent, but in very many other important sections it will be the wife who will make the application. It is the wife who will make the application under section 5 in relation to conduct leading to loss of the family home. It will be the wife who will make application under sections 7 and 8 in relation to adjournment and paying off of mortgage proceedings—or by and large it will be the wife. It will be the wife who will make an application under section 9 for restriction of disposal of household chattels, and it will be the wife who will probably make the application under section 12 to voluntarily register the fact of the marriage in the Registry of Deeds. So, far more of the sections of this Bill relate to applications by a wife, applications to protect herself, applications to record the fact that she is married, applications to prevent sale of household property while there are matrimonial proceedings ensuing.
Some of these applications are highly technical matters. She will certainly require the services of a solicitor, if not of counsel, and she will not get that service in the way that she should until we have a system of civil legal aid and advice. The Minister is a solicitor. He knows that some solicitors are extremely helpful in these sorts of cases but they are the few: the vast majority of solicitors do not want to know if there is a family law problem walking in their door. It takes time; there is no guarantee of any fee at the end and they do not want to proceed with it. Voluntary organisations who have women coming to them with legal problems, and who direct them to solicitors, all come back with the same story—that solicitors on the whole—for understandable reasons if one is running a busy practice and has got to make one's overheads meet—do not want to take on this sort of family law application. Costs depend, in the end of the day, on whether you succeed in the application and the husband has enough money to meet the costs of both sides which may be a heavy bill for costs. Therefore, the women are deterred, letters are not written on their behalf; they sit in the corridor waiting for the solicitor; he is not in when they telephone and they have the whole heartache. As the Minister knows, that is why so many of these people go to the FLAC centres. It appears that FLAC are carrying the Government and State responsibility in the matter. I do not think they can cope with that much longer. Perhaps, in some senses, they coped with it too long because it has been a safety value in the demand for civil legal aid and advice.
There is absolutely no doubt that the provisions in this Bill are of little real significance to the people who are supposed to benefit from them; the wife in a position where the house is to be sold without her consent, where the household property is to be sold without her consent, where her husband has defaulted on mortgage payments and the mortgagee wants to close, or where she wants to register the fact of her marriage to prevent a sale of the property without her written consent. In all of these circumstances she needs legal advice. It is unreal and unfair that our system does not provide for a comprehensive scheme of legal aid and advice. When mentioning this matter in the debate on the Maintenance of Spouses and Children Act I made reference to the committee on civil legal aid and advice. I referred to the fact that that committee still has not reported. That was some months ago, and certainly the report has not been made public, if it has reported with proposals in this area. I made specific reference to the chairman of that commission, Mr. Justice Pringle. I said that, in view of his heavy commitment and engagement in the Special Criminal Court, he was perhaps not the best chairman of that commission because he could not spend enough time on it. The Minister reprimanded me very sharply for that; implied that I was in some way criticising Mr. Justice Pringle, which was not the case. I would say this of any person who is supposed to be bringing in a report as important as that on civil legal aid and advice. If he has to do a very heavy, responsible and wearing job somewhere else, then get somebody else to do the job. The important thing is that we do not wait more than two years for an important report such as that on civil legal aid and advice. Also, when the report does come in, we must move very sharply on it so that the measures for reform of family law that we have been passing can become a reality, can be implemented actively and can redress that very substantial imbalance which has existed where the wife has been helpless and dependent in so many areas and lacking in proper legal protection.
I would like now to turn briefly to the specific provisions of the Bill. I agree with Senator Eoin Ryan, it is largely a Committee Stage Bill and is one with which we will deal in more detail on Committee. However, there are a number of matters on which I would like clarification. Section 2 in defining the family home provides that it means: "primarily a dwelling in which a married couple ordinarily reside". Then it continues:
The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse ordinarily resided before so leaving.
I should like clarification as to whether, in relation to one family, there can be two family homes? I am not quite clear what is the precise significance of that. If the wife has been deserted by the husband and he has established a home elsewhere, are there two family homes then, one in which the wife continues to reside and the other, the home the husband has which he wishes to sell?
The second point is in the very important section 3 on the alienation of interest in the family home. This is one of the key provisions. Subsection (1) provides:
Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections (2) and (3) and section 4, the purported conveyance shall be void.
The exception on which I wanted some clarification is that no conveyance shall be void by reason only of "(a) if it is made to a purchaser for full value, ..." Then, in subsection (6) "purchaser" is defined as a person who "in good faith" acquires an estate or interest in property. I am wondering whether that is strong enough for the purchaser who, in good faith, does not ask any questions? Is the Minister satisfied? Obviously it is a key provision. Suppose a person is just buying a property and asks no questions about it? If, on the other hand, it is considered adequate, then is it proposed to ensure that the requisitions sought by solicitors incorporate a provision to this effect, that it is implemented into conveyancing practice so that no purchaser could say: well, in all good faith I had no idea there was this provision? It is very important that it be copperfastened.
Section 4 deals with where the husband applies to have the court dispense with the consent of the wife. I am using the words "husband" and "wife" in the sense that the Minister was, that this would normally be the relationship; it is, of course, either spouse. I am not clear about the precise significance of section 4, subsection (3), which says:
Where the spouse whose consent is required under section 3 (1) has deserted and continues to desert the other spouse, the court shall dispense with the consent. For this purpose, desertion includes conduct on the part of the former spouse that results in the other spouse, with just cause, leaving and living separately and apart from him.
That seems to me to be slightly unfair. If the reason for the desertion is that the spouse has been driven out by the conduct of the husband then in those circumstances why should the court dispense with the consent of that wife to the sale of the family home? I would say that, for this purpose, desertion should not include conduct on the part of the former spouse that resulted in the other spouse, for just cause, leaving and living separately, that that should not constitute desertion.
With regard to section 5—conduct leading to loss of the family home— there are two cases where application can be made to the court—again it would be normally by the wife— where the other spouse is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home, or where he has deprived the applicant spouse or a dependent child of the family of his residence. It is in relation to subsection (2) I should like to ask the Minister a question. Is this subsection retrospective? If so, is there any time limit on how far back it goes because it provides:
Where it appears to the court, on the application of a spouse, that the other spouse has deprived the applicant spouse or a dependent child of the family of his residence in the family home by conduct that resulted in the loss of any interest therein or rendered it unsuitable for habitation as a family home, the court may order the other spouse or any other person——
that cater for the third party's interest——
to pay to the applicant spouse such amount as the court considers proper to compensate the applicant spouse and any such child for their loss or make such other order directed to the other spouse or to any other person as may appear to the court to be just and equitable.
The reason for my question is a fairly obvious one, that this would leave a cause of action to all of those spouses who were deprived of their residence in the past and who did not have the right we are giving under this Bill—a right of veto, if you like, a right to refuse consent and force the husband to go into court, if necessary, to establish whether that consent had been unreasonably withheld. If that is a retrospective provision, then this should be made very clear because I am sure there will be a queue applying to enforce its provisions.
In relation to section 6 the same question is relevant, whether it applies to existing mortgages. Section 6 provides for payment of outgoings on the family home. Subsection (1) says:
Any payment or tender made or any other thing done by one spouse in or towards satisfaction of any liability of the other spouse in respect of rent, rates, mortgage payments or other outgoings affecting the family home shall be as good as if made or done by the other spouse.
If a wife comes in on the default and makes a payment, then that would constitute a valid payment. I know this is done in practice by wives who are in a position to do it, but I would like clarification as to whether that section also is retrospective.
I welcome the provisions of section 9 in that they afford a necessary and parallel protection to a spouse, again usually the wife, where matrimonial proceedings have been initiated which would prevent the disposal of household goods or chattels without the consent. It really is a case of disposal. Subsection (2) says:
Where matrimonial proceedings have been instituted by either spouse, neither spouse shall sell, lease, pledge, charge or otherwise dispose of or remove any of the household chattels in the family home until the proceedings have been finally determined.
Then there is provision in subsection (4) for penalty where a person contravenes that:
A spouse who contravenes the provisions of subsection (2) shall, without prejudice to any other liability, civil or criminal, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100 or to imprisonment for a term not exceeding six months or to both.
It seemed to me, reading the wording that that could be rather harsh. For example, one can foresee a circumstance in which a certain item of household property would be pledged, put in pawn, that matrimonial proceedings might have issued and a person could find himself liable to criminal penalties. Perhaps it would be better to insert the word "knowingly" or a word which does figure in subsequent provisions for penalties. In section 15, for example, there is the phrase "knowingly gives information which is false or misleading...". It is possible that this could create a certain hardship in that a person might have disposed of, sold, or pawned some household property without any intention of undermining the family provenance.
I agree with the parallel procedure for voluntary registration of notice of existence of a marriage provided for in section 12. This is the best combination of protection to the wife in this instance, the fact that there cannot be a sale, mortgage or disposition for value of the family home without her consent and, at the same time, a facility for voluntary registration of the fact of the marriage in the Registry of Deeds. It is proper to waive any stamp duty or fee on the registration of such notice. Again, it would be important to get over the idea that this is in some way evidence of a breakdown of the marriage relationship, that it is—if you like—a score, in a bad sense, by the wife against her husband. It would be much preferable if it could become standard practice that notice of a fact of marriage be entered in the Registry of Deeds. There was no pejorative content to it. It was not a last minute emergency measure where the wife feared that the family home might be sold. In fact it would be desirable that it would become standard practice on marriage—put the notice in the paper and put the notice in the Registry of Deeds. This would reinforce stability and be further evidence of the joint role of the husband and wife in relation to the matrimonial home which is a good way along the road towards creating a proper system of co-ownership.
I welcome this measure and I think it is more far-reaching than the Minister indicated in his opening speech. At the same time I would ask that the Law Reform Commission be called upon as a matter of urgency to examine the whole concept of joint ownership of matrimonial property, and that a Bill to this effect be introduced; and if necessary a constitutional amendment together with the other proposals for amendment of the Constitution be made so that we can have the full realisation of some of the thinking behind this measure —of the concept of partnership in marriage, the concept of sharing in the responsibilities and the property dealings in the marriage. This would ensure the consequent reinforcement of the position of the wife, the strengthening of her property interest, but even more so the reinforcement of her own psychological status as a coequal partner in marriage.
