I feel much more confident that this amendment will be accepted. I move amendment No. 3:
Before section 16 to insert a new section as follows:
"An agreement entered into between spouses shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Act."
The purpose of this amendment would be to prevent attempts to evade the key provision of the Bill, that the written consent of a spouse is necessary for the sale, disposal, mortgaging, leasing or whatever, of a family home. It may sound contradictory, as it reads, but one must view this Bill against the background, overpowering in many circumstances, of a wife in a family breakdown situation. I think it is frequently the case that a wife does not have the power to resist either the mental attempts to overpower her by her husband or, quite a common phenomenon, the physical attempt to overpower her, and we have a sufficient incidence of wife-beating and brutality to wives to know that these pressures can be exerted. Similarly, some notorious cases have reached court in recent years in Ireland. I am thinking particularly, for example, of a case where a wife was so bullied and overpowered by her husband that she appeared to consent to a divorce being had in England. There was collusion between the spouses, between husband and wife. The wife had no free will in the matter. She was forced by her husband to appear to consent to the divorce and to make it appear to the English court that they were both domiciled there.
It is this type of situation which we must be aware of as a possible loophole on the provisions and on the content of this Bill. For example, it would be quite possible that husbands would try to either bully or persuade wives to enter into a written agreement with them that they would not have to give their consent in writing for the sale of the family home. This could be done in various ways. If two young people were thinking of getting married and if the fiance were to say, "Well, I was thinking of marrying you but I am afraid that I will only do so if you will enter into an agreement that we will forget about any question of the necessity for consent in writing". Or the agreement might be entered into after the marriage had taken place, several years afterwards, when there was a family home and the husband could overpower the separate will of the wife in the matter and could so bully her that she could enter into an improvident agreement with him, an agreement which would negate the protection offered by this Bill, and agreement which would persuade her that she would by agreement forego her rights under the Bill.
On the Report Stage of the Family Law (Maintenance of Spouses and Children) Bill the Minister introduced a somewhat similar amendment to that Bill, that is the insertion of a new section, section 27, which provided that "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". That provided for a very desirable exclusion of any improvident or, probably, bullied agreement by a wife that she would not demand her legal rights, she would not require that her consent in writing would be necessary for any sale or mortgage and so on of the family home or, in the case of the Maintenance Act, foregoing her claims for maintenance under that Act, or other particular claims.
Just as I think it was desirable to have that amendment in the Family Law (Maintenance of Spouses and Children) Bill—indeed I specifically referred to it and commended the Minister for it when we were discussing that Bill—so I would hope that this amendment would be accepted in order to exclude the possibility of a wife being bullied or persuaded or just foolishly or thoughtlessly entering into an agreement with her husband that she would not enforce the rights under this Bill, that she would not insist on her consent in writing.
I think this is very necessary because we are not just talking about a wife in the particular circumstances. We are also talking about the dependent children. Since the type of proceedings under the various sections of this Bill are proceedings which arise on application by a spouse are adversary proceedings, the needs and the position of the dependent children will not be catered for unless they are catered for through an application being made by a spouse. Therefore it is most important not to allow opting out by agreement, whether an improvident type of arrangement, under the influence of infatuation, love, whatever one might call it, or under physical threats or under some mental cruelty threats of the other spouse that a wife would forego her rights through entering into some agreement.
Therefore the amendment provides that any such purported agreement would be void to that effect, that whatever else was in the agreement, if it was an overall arrangement between the spouses, all the other parts of the agreement would be valid but the agreement would be void in so far as it would try to exclude or limit the operation of any of the provisions of the Bill.