Seanad Éireann debate -
Tuesday, 6 Jul 1976

Vol. 84 No. 10

Family Home Protection Bill, 1976: Committee and Final Stages.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Mrs. Robinson

Could the Minister clarify the precise scope of "dependent child of the family" for the purposes of this Bill? The definition of dependent child of the family is quoted as:

"dependent child of the family," in relation to a spouse or spouses, means any child—

(a) of both spouses, or adopted by both spouses under the Adoption Acts, 1952 to 1974, or in relation to whom both spouses are in loco parentis, or

(b) of either spouse, or adopted by either spouse under the Adoption Acts, 1952 to 1974, or in relation to whom either spouse is in loco parentis, where the other spouse, being aware that he is not the parent of the child, has treated the child as a member of the family.

There are two aspects of that on which I would welcome clarification. First of all, "if being a child of either spouse" would presumably include children born out of wedlock to either spouse prior to marriage. Secondly, the question of an explicit reference to Adoption Acts in this way arises. Why is it necessary to say that a dependent child of the family includes a child under the Adoption Acts? Is that legally necessary under our adoption code?

Mr. Cooney

In regard to the amendment introduced in the Dáil, it probably is not. We will be dealing with this under the Adoption Acts. It may be superfluous but, in order to remove any doubt, we include it there. It is probably not necessary.

Mrs. Robinson

On the first question——

Mr. Cooney

On the first question, the child born out of wedlock is covered.

Question put and agreed to.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill."

Mr. Cooney

Senator Robinson on the Second Stage raised the question as to what does the "family home" mean. Could there be two family homes? There could conceivably be two family homes. There could be a situation where, for example, a husband had two homes in one of which the family were normally living. We will assume that relationships deteriorated and his wife and children on account of the husband's misconduct, departed to the second residence. For the purposes of this Bill, if there were an attempt to sell it, the second residence would then be regarded as the family home. It would depend on the construction of the facts in a particular case coming before the court. There could conceivably be two family homes.

Mrs. Robinson

I thank the Minister for the clarification.

Question put and agreed to.

SECTION 3

Mrs. Robinson

I move amendment No. 1:

In subsection (6), page 3, line 45, after the word "who", to insert "having made all proper inquiry,".

This amendment arises out of a doubt which I had, and which I expressed on Second Stage, as to whether there is a sufficient safeguard so that a purchaser of the property from a spouse, where there has not been the consent in writing of the other spouse, will not be entitled just by asking no questions to be a bona fide purchaser for value. The purpose of the amendment is to insert into subsection (6) an additional clause explaining what is meant by a purchaser in those circumstances. Subsection (6) provides that “purchaser” means a grantee, leasee, assignee, mortgagee, chargeant or other persons who in good faith acquires an estate or interest in property. The amendment would insert before the word “who” the words “who having made all proper inquiry” in good faith acquires an estate or interest in the property.

The reason behind this amendment is that it is possible somebody would be a bona fide purchaser of property which he did not know was a family home as defined by section 2. That person could acquire that property for full value and then in a court assert he was bona fide and that he had no reason to suspect that the vendor selling the property was married and did not feel any reasonable necessity to make any inquiry. Nothing in the relationship between them gave rise to any reason to make any inquiry. The purpose of the amendment is, by inserting the words “after having made all proper inquiry” the onus is on anybody who claims to be a bona fide purchaser for value to say that he made inquiry and was either misled or defrauded in the sense that false information was given that there was no spouse whose consent was required or a forged consent of the wife or some other document. It is necessary to include expressly a requirement that nobody can claim to be a bona fide purchaser for value unless he has made full inquiry in the circumstance and, as a result of having put in a specific requisition, he was then led to believe that the consent in writing either did not arise or was forthcoming.

Mr. M.J. O'Higgins

I was interested in this amendment because in the last few days I had in the course of my practice to advise on this particular phrase that Senator Robinson is imparting into this amendment. I felt that it was quite unworkable, not necessarily in relation to legislation but in relation to the particular query that was put to me. I would feel the same way in relation to the use of the phrase "in legislation". It seems to me that the section, as it stands, is quite clearcut. Either a purchaser purchases in good faith or he does not and it is a matter for the court, if it comes before the court, to determine and, in determining that, the court no doubt would take into account what steps the purchaser had taken to ascertain whether the property was free from encumbrances regarding this Act, if you like, as an encumbrance, or what representations were made to the purchaser.

He either purchases in good faith or he does not whereas, if these words are imported into the section, it opens up all sorts of avenues which could, instead of clarifying the position either from the purchaser's or the landlord's point of view, cause any amount of confusion. It puts the onus on the purchaser first to decide what are and what are not proper inquiries. Secondly, it imposes the virtually impossible task on a purchaser of making all proper inquiries. He may make 99 inquiries which he regards as proper and fail to make the hundredth inquiry and his purchase is then vitiated on that account because someone sitting on the bench holds that one inquiry that should have been made was not made. It would be quite impossible to operate this section if these words were imported into it. It would be much more workable and reasonable from everybody's point of view, including the point of the wife who might be affected by it if it were left on the basis of good faith, left to the court to determine, in all the circumstances of the transaction, whether or not good faith existed.

Mr. Cooney

I think the matter is covered by section 3 of the Conveyancing Act, 1882, which provides for the making of necessary inquiries and inspections by a purchaser. A purchaser in good faith would be bound by the provisions of section 3. This section in the Conveyancing Act is being applied by section 3 of the Bill, subject to the amendment specified at subsection (7) to the effect that the knowledge of a solicitor or counsel who has himself notice of something, though not as solicitor or counsel, will bind the purchaser. The law relating to notice is clearly set out in Mr. John Wiley's recent book Irish Land Law.

Section 3 of the 1882 Act says that "a purchaser shall not be prejudicially affected by notice of any fact or thing unless (a) it is in his own knowledge or (b) would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him". In other words, if a person fails to make the inspections and inquiries that ought reasonably to have been made by him, he shall be prejudicially affected. There is an ordinary conveyancing onus on a purchaser to issue a prudent requisition and he may want it supported by a statutory declaration. Section 3 of the 1882 Act, which applies to all conveyancing, applies in this case and it puts an onus on a purchaser to make all reasonable inquiries and inspections. The law which the Senator seeks to achieve by this amendment already exists so as to achieve the object of the amendment.

Mrs. Robinson

I am grateful to the Minister for that explanation of the position. I had been worried on the Second Stage that a purchaser by not raising the issue, by staying quiet, by not being told that the person was married or by not realising that it was a family home in question, could in fact become a purchaser for value despite the absence of consent in writing by the spouse as provided in section 3. If I understood the Minister correctly, a person cannot claim to be a person in good faith acquiring an interest in property unless he has actively made reasonable inquiries. That was the purpose which the amendment sought to achieve. In the circumstances, I would ask leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed: "That section 3 stand part of the Bill."

Mr. Horgan

Could the Minister give some sort of indication of the type of agreement he has in mind in section 3 (2) which reads:

Subsection (1) does not apply to any conveyance made in pursuance of an enforceable agreement made before the marriage of the spouses.

I would be glad of an example of the kind of agreement the Minister has in mind here. I wonder whether an agreement made in consideration of marriage would be caught under this subsection; in other words, an agreement of which the marriage itself in some sense is a component part. Some marriage settlements might be made in this fashion, particularly in rural areas. I wonder if the giving of some sort of interest in a house to a spouse by reason of a marriage settlement would be caught under this subsection.

Mr. Cooney

The subsection provides that the sale of a house which was agreed to in an enforceable contract made before marriage can go ahead without the wife's consent. If there is an enforceable agreement made prior to marriage for the sale of a dwelling and that dwelling after the marriage becomes the family home, the consent of the other spouse is not necessary for that sale. I could not conceive that, in a marriage settlement, in the type of contract mentioned in consideration of marriage, that it would provide for the giving of a home to the married couple and, at the same time, have a clause in it providing for the sale of the house. I do not think that would be likely to arise.

What the section is designed to deal with is the situation where before marriage the fiancé had contracted to sell his house in expectation of later on buying another house for himself and his wife and after marriage the sale has not been completed for some reason. After they are married, the couple move into the house which he had contracted to sell and it then becomes the family home. If we did not have this subsection the man's fiancé, now his wife, might say: "I prefer this house to the one you are going to buy for me; I will not let you sell it now, notwithstanding the fact that before we got married you had agreed to sell it". It would be that sort of situation that would be covered by that subsection.

Question put and agreed to.

SECTION 4

Question proposed: "That section 4 stand part of the Bill."

Mrs. Robinson

This is obviously a very important section because it is the section which will allow a spouse —we would use the term "husband" as being the normal spouse—to make application to the court to dispense with consent where it has been omitted or refused by the other spouse, by the wife. There are a few questions which I should like to ask on this. First, I should like some clarification of subsection (3). After much effort I have begun to understand it but it is a very complex provision and I would welcome some clarification on it. It provides:

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.

I think I am beginning to understand it but I would welcome some clarification.

On this section, and indeed a similar observation applies to several other sections we are dealing with, it seems to me that the type of procedure and inquiry and the type of consideration by the court is not going to be easy for the sort of common law courts, the kind of adversary proceedings we have. I am aware that the court in question will be either the High Court or Circuit Court, depending on the circumstances. They have concurrent jurisdiction in this area. I am also aware that this type of case will be held in camera in these courts. Increasingly in these sorts of provisions for reform of our family law we are introducing sections of Acts giving very unusual and broad powers to our courts which do not lend themselves to the narrow type of adversary proceedings that we have. Subsection (2) says:

The court shall not dispense with the consent of a spouse unless the court considers that it is unreasonable for the spouse to withhold consent, taking into account all the circumstances, including—

(a) the respective needs and resources of the spouses and of the dependent children (if any) of the family, and

(b) in a case where the spouse whose consent is required is offered alternative accommodation, the suitability of that accommodation having regard to the respective degrees of security of tenure in the family home and in the alternative accommodation.

In what way in adversary proceedings is the court going to have the resources to examine the needs and resources of the spouses and dependent children? Obviously this is to be through the mouthpiece of the applicant or defendant in the particular proceedings. The husband will be trying to establish that there is adequate alternative provision for the spouse and dependent children and the wife who is refusing her consent will say it is not adequate.

In these sort of adversary proceedings how can the court genuinely and effectively assess the overall family position and that of the dependent children? This is a problem even now in relation to proceedings under the Guardianship of Infants Act. Far too often it is an adversary proceeding between adults and the court does not at any stage go into the particular needs and welfare of the children. Because of the narrow and inhibiting form of proceedings as they are, and all the difficulties of trying to exercise the very significant discretion of the court in relation to the family circumstances, the court is handicapped by not having itself a power of inquiry into the whole situation. It is largely dependent on what comes up in adversary proceedings and what is introduced by the parties to the case. Therefore, this section, and other sections even more so, would make it increasingly necessary for us to move towards a family court system which would allow for the full consideration of all the factors so that there will be genuine equity and justice in the types of remedies we are providing for.

I know that the Minister, both in this House and in other forums, has expressed no enthusiasm at all for the concept of a family court. He says that people who argue for it never clarify what they think about it. That is not so. There are examples in other jurisdictions and working models which we could and should examine. We are strengthening the necessity all the time for the introduction of family courts by the sort of remedies provided in the Family Law (Maintenance of Spouses and Children) Act, by this Bill, which will shortly become law, and by any legislation of this kind.

It is not enough to have a section which, on paper, appears to allow the court genuinely to exercise an overall discretion and concern for the respective needs and resources of the spouses and the dependent children and then lets the mechanism, by which this is done, be common law adversary proceedings, which are suitable to actions in tort and actions in contract which are not suitable to this type of application in the heart of a family situation—a question of selling or not selling a family home. I do not think the proceedings, the atmosphere and the way in which evidence is presented or the inadequate resources of the court are satisfactory to determine what we ask of the High Court or the Circuit Court to determine in this Bill.

Mr. Cooney

I do not want to get into a debate on what is still a nebulous concept of the family court. As to what it should be within this jurisdiction, nobody has yet defined or specified. It is not that I am unenthusiastic about the idea but I would prefer to keep an open mind on the matter until the advocates of it spell out what precisely they mean by family courts.,

We are dealing here with a situation where there has been a breakdown in relationships and where parties are in dispute. In any situations of disputation a certain amount of adversary proceedings are inseparate from them. I cannot see how, even in a family court, assuming that the vague idea means something, a situation where the parties are in an adversary position can be avoided. Two points of view have been put forward and surely each party is entitled to cross-examine the other party to assess the accuracy and validity of its point of view. Therefore, the adversary situation is inherent in any situation of disputation. No particular type of form of proceedings will remove it.

The adversary system has been devised over many years and has been designed to get out of the dispute the true facts so that the court can make a proper assessment of them. I do not think that any injustice will be done or anything will be left unsaid or unanswered in our courts by reason of these proceedings being taken under our present system.

On the question of constructive desertion, suppose a wife owns the family home and her husband behaves in such a manner as to force her to leave then the desertion is his. The wife having left the family home wishes to sell it. She should be allowed to sell it despite the husband's presence in it. That is one example. On the other hand, if a wife, by her conduct, forces the husband out of the home and he wishes to sell it over her head, the fact that she is present should not be allowed interfere with the sale. There may be other reasons for this. The phrasing at first sight may appear awkward but the subsection is so phrased to deal with such situations.

Mrs. Robinson

I thank the Minister for his clarification of the meaning of desertion in subsection (3). I take fundamental issue with him in relation to how satisfactory the present court system is for this type of family proceedings. Of course here would be an adversary element in a situation like this but a family court would be equipped to give a proper assessment of what is best for that family in the circumstances, including taking genuine account of the respective needs and resources of the spouses.

The only thing that the court, at present, in adversary proceedings can take into account is what comes up in evidence offered by either side. If both sides are legally represented then legal presentation is made. If not then the individual is trying to conform to very highly technical court rules of procedure in order to state the case. We all have experience of being present in court when the individual is frustrated by being told he cannot introduce that now or state something, he cannot make a point at this stage and so on.

The court itself is not equipped. Our judges are not, in my view equipped on the basis of adversary proceeding to deal as adequately as they should like with the particular types of procedure, the jurisdiction, we are conferring on them. The judge would not have the benefit of the sort of expertise which our society could provide in these circumstances or have the expert, lay assistance, such as medical or psychological assistance, whatever may be considered appropriate guidance to the judge in the particular circumstances. I do not say that a family court rules out any adversary proceedings, I say it is the appropriate approach to this type——

Mr. M.J. O'Higgins

This section seems to rule out family courts from relevancy.

Mrs. Robinson

I think it is relevant on this section as it is relevant on other sections to point to the increasing divergence between the types of jurisdiction which we are conferring in sections like this on our courts and the absence of any parallel court structure to avail fully of this jurisdiction and genuinely to exercise the sort of jurisdiction which we want it to exercise. It is a very serious criticism, for example, of the Guardianship of Infants Act procedures, that they arise in the adversary context, in the narrow procedural environment of an adversary court. Very often, although they are supposed to be related to the custody and needs of the child, the child is hardly mentioned. It is a fight between two adults and it is very adversary but one would question whether it is achieving the guiding principle of the Guardianship of Infants Act, in which the welfare of the child is the predominant consideration. Similarly, I am asking on the section, I think it is relevant to it, whether the Minister is satisfied that either a High Court or a Circuit Court at present, even sitting in camera with the sort of adversary proceeding we have, is competent to take into account all the circumstances of that particular situation, including the respective needs and resources of the spouses and of the dependent children, if any, of the family.

Question put and agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Mr. Horgan

This section appears to be an interesting one and which relates very strongly to the—it was not a hypothetical problem—natural problem which I raised with the Minister in the course of the Second Stage debate. The case I raised with him was that which seems to be mentioned in this section, whereby one spouse, through his activity, has deprived an applicant spouse of residence in the family home. I notice under this section that when this is about to happen or even after it has happened, the court is being given fairly wide powers, either to direct payment by the spouse who is at fault to the other spouse or to make such other order, directed to the other spouse or to any person, as may appear to the court to be just and equitable. These are very wide, blanket provisions. In the interests of equity, they seem to be quite admirable.

On the other hand, it seems to be important to make it absolutely clear what the effect of these provisions will be. I want to ask the Minister if they represent, to some extent, an extension of the powers given to courts in the Maintenance Act that he was speaking about earlier. Do they merely replicate them or what? One of the things in this Bill is that the courts largely concerned are not, so far as I am aware, the District Courts. They are mostly High Court actions which, of course, are much more expensive for an applicant spouse, or could be so. Could the Minister clarify this point for me?

Mr. Cooney

These provisions do extend the powers that are given to the court by the Maintenance Act. There could be a situation where a spouse is behaving himself in such a way, short of being violent or threatening to his family, where perhaps he was negotiating with purchasers or he was failing to maintain the house or taking moves to render it uninhabitable. There are various ways in which a cunning spouse could render the house less comfortable or unsuitable as a habitation, ways in which he was behaving short of the violence that is anticipated in the Maintenance Act. It is to deal with that sort of situation that this section is drafted. It is drafted in wide terms and it does give the court very wide powers. These powers are necessary. There is no point in confining the protection to the stage when the house comes for sale. It could be that if we had not this power to take proceedings at an early stage the place might have been rendered so uninhabitable, so uncomfortable, so impossible to live in that a wife would have no alternative but to give her consent at that stage. This section provides an earlier remedy for a wife where her husband is misbehaving himself by trying to devise or force a situation where a wife has no alternative but to give her consent.

Mr. Horgan

The third line of subsection (1) refers to the loss of any interest in the family home. Would the wife of a man in whom a local authority tenancy is vested be regarded as having an interest under subsection (1) of this section?

Mr. Cooney

She would because "home" is defined in section 2 as primarily a dwelling in which a married couple ordinarily reside. It would cover a local authority dwelling.

Mr. Horgan

And such an interest would obtain irrespective of any registration by the wife of the existence of the marriage?

Mr. Cooney

Yes.

Mrs. Robinson

I should like to ask the Minister whether the provisions of section 5 (2) will be retrospective and, if so, whether there is any time limit for bringing these proceedings? Subsection (2) 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 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 persons as may appear to the court to be just and equitable.

It seems that, as that section stands, any wife under present Irish law who has had the family home sold over her head would have a cause of action, that she could go in and get compensation for the loss from the court, or any other order for her or for the children of the family as the court thinks just and equitable. It is my understanding that there are a considerable number of women in Ireland at present who would claim that they have been treated in this way, that the family home has been sold over their heads, so I think it would be important to have clarification of the scope of this section.

Mr. Cooney

It is not retrospective. It will only apply to actions by the husband from the passing of the Act.

Mrs. Robinson

Where is that stated in the section?

Mr. Cooney

It does not have to be stated. An Act only applies from the date it is passed unless retrospection is written into it.

Mrs. Robinson

If in the month of June a house had been sold and the woman goes in a week after this Act is in force, can the court not take into account the circumstances during that month of June, or is that a total cutoff from any rights she might have under section 5?

Mr. Cooney

It depends on the facts of a particular case. If the action that is depriving her of her rights is continuing, if it commences before the date it is passed and continues after the passing of the Act it will be a matter for the court then to assess the conduct that took place subsequent to the passing of the Act to see if it gives rise to right of action under this section. It will depend on the facts of each individual case. I would imagine that the court, in order to protect a wife, if there is any action subsequent to the passing of the Act, would probably lean in favour of the wife.

Mrs. Robinson

I thank the Minister for that clarification. I would just like to make the point that the scope and the element of discretion contained in this section reinforced the argument I was making in relation to the previous section, that our courts in my view are not equipped to discharge in any meaningful way the sort of functions which we are giving them jurisdiction to discharge. The court is not going to be able to get sufficient evidence to exercise meaningfully the sort of jurisdiction that has been conferred on it. Later on I should like to have much more clarification on the sort of proceedings we are envisaging. It is provided that they be summary proceedings. What sort of application, what sort of evidence of conduct, what sort of hearing is going to take place? Is it going to be confined to what is in the grounding affidavit of a summary proceeding or is there going to be a general inquiry once the application has been made, which would give the court sufficient background material about the conduct of the other spouse, about the suitability for habitation of the house, about the relative disadvantage that the applicant spouse claims she is in because of activity? I find it very difficult to see how the court will cope with this. What happens if the court has to try to assess what sort of order to make in relation to compensation or what sort of other order as may be just and equitable? How is the court to be sure that it will have sufficient knowledge on which to make that sort of assessment? I do not claim to have a very long and detailed practice in the area of family law but nothing that I know of the present procedures of the courts in this area leads me to believe that they will be comfortable in the exercise of the sort of jurisdiction we are conferring on them in the section.

Mr. Horgan

It occurred to me on reflection that there is a very slight difference of emphasis between myself and the Minister in our interpretation of the section which could be relevant when it comes to applying it to the courts later on. My reading of the section is that it is a section which can be applied by a court in widely differing circumstances. It can obviously be applied within the context of this general Act if the question of a sale or threatened sale is involved. The two sections are so widely drafted as to include the possibility of action by the court, even in cases where the conduct by the offending spouse does not actually involve or provide for the possibility of the sale of the house. I would be glad if the Minister would confirm if this is the case.

Mr. Cooney

Things do not have to go that far before that section comes into play. For example, an improvident husband who is going to get a second mortgage on the house to look after his gambling debts, some conduct such as that, would bring the section into play and would enable the wife to go to court to seek relief. If I may refer to Senator Robinson's remarks regarding the capacity of our courts. I am quite satisfied to rely on the experience and common sense of our judges to deal with the problems that come before them in administering this Bill. There is no doubt that that experience and common sense will enable them to give full and proper consideration to all matters that come before them. I cannot see anything so difficult and so subtle or so technical as to defy proper judgment by our courts. I cannot see a situation where courts would not be able to get whatever evidence they would want. It is for the parties to produce the evidence for the courts and if the courts feel that there is a lack of evidence they have every right—indeed they have more than a right; it amounts to an obligation— to seek it, and in my experience they would not be slow in seeking the information or further evidence that they would want.

The procedure would involve an application to the courts, making the allegation that the conduct is such as to justify action under these sections. Then it will be for the parties to adduce the evidence to support their application. The Rules of Court may prescribe how these applications are to be made. These are necessary, but they will not be restrictive rules of court. There is no question of technical rules being drawn up so that the party must set out in a preliminary affidavit every fact on which he or she relies. That would be wrong and that certainly is not the intention.

Again, the courts will have discretion to go beyond any documents that may be brought to them. If these documents indicate that further evidence is needed it will be for the courts to seek further evidence and it will be for the parties to give to the courts the evidence the parties feel the courts should have. So, between the courts and the parties before them, I have no doubt the full facts will be exposed and a competent judgement made on the full facts.

Mrs. Robinson

May I ask the Minister for clarification on another aspect? If the court makes an order under subsection (1) directed to the other spouse or to any other person, for the protection of the family home in the interest of the applicant spouse or child, or under subsection (2) for compensation because the family home has been sold or the interest in it some way diminished, if the defendant spouse fails to do that, is that defedant spouse in a position of contempt of an order of the court? Is that the remedy for it or what is the particular enforcement procedure under section 5?

Mr. Cooney

The normal sanctions that would attach to enforcement of any court order would be available— attachment of goods or attachment of persons for failure to obey a court order. In effect, non-compliance with an order would amount to contempt.

Question put and agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mrs. Robinson

I am well aware that the attempts to get clarification on this Bill are not coming from the main Opposition party in the Seanad —their silence is astonishing on such an important Bill. I should like, nevertheless, to try to have the various sections of this Bill examined in the way I feel the House ought to examine them. In that spirit I should like the Minister to clarify section 6 (2). It states that nothing in subsection (1) shall affect any claim by the first-mentioned spouse against the other to an interest in the family home by virtue of such payment or things made or done by the first mentioned spouse. Is this a reference to the possibility of equitable claims to having made payment for outgoings on the family home or does it refer to the provisions of the Maintenance Act? I am not quite sure what that saving clause is about.

Mr. Cooney

I understand it could certainly deal with either. It could deal with a claim for an equitable share under the Married Women's Status Act—section 12, I think, is the section in question. It could deal with that. Another thing, it could involve the Maintenance Act procedures also. The main purpose of the section is to allow the claim under the Married Women's Status Act.

Question put and agreed to.

SECTION 7.

Question proposed: "That section 7 stand part of the Bill."

Mrs. Robinson

There is a general point of clarification on these sections that refer to the imposition where a mortgagee wants to close on the mortgage on the family home and, therefore, he has to accept now payments by the spouse as being equivalent to payments by the mortgagor and the proceedings can be adjourned. In the debate on this in the other House there was some suggestion that this might inhibit mortgagees from creating mortgages over family homes and I should welcome some indication from the Minister of the extent to which it is envisaged that there might be problems if the mortgagees think that their legal rights are being diminished by having to accept adjournment of proceedings and then payment ultimately by a spouse, and so forth. I am in favour of the provisions but I should welcome the Minister's clarification on this.

Mr. Cooney

The point made in the debate in the other House was that the Bill as drafted would not inhibit the institutions from lending on the family home but if it went any further there might be such inhibitions. For example, the point was made that there should be joint ownership so that a mortgagee would not be able to realise against the wife's share of the joint home and, of course, no mortgage company would lend on a home unless they had a mortgage on all the interests. To go any further to prevent a sale because the wife was not able to avail herself of the rights under this section would be to inhibit the lending of money on family homes.

I think we go as far as we can in this. What is in the section is in the interests of lending institutions because they do not want to have to realise their security. Their main interest is to have their loan repaid. They do not want the difficult and distasteful procedure of having to realise their security and have the mortgage suit and a forced sale. Far from this particular section inhibiting lending institutions from lending on the family homes, I think it may possibly encourage them. It certainly does not discourage them, it does not alter the position. Subsection (2) represents an amendment introduced in the other House to deal with a point made by one of the women's committees who made representations to me on this question of notice.

Mrs. Robinson

I welcome the amendment which is very relevant, and the extent to which the mortgagee has notified the other spouse——

Mr. Cooney

We could not go any further. There would be practical difficulties in imposing an obligation on the mortgagee to give notice.

Question put and agreed to.

Section 8 agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mrs. Robinson

This is a very interesting and rather far-reaching provision restricting the disposal of household chattels. It is a provision that I welcome because I think it provides a measure of protection to the spouse who needs protection in circumstances, usually the wife and the dependent children of the family. I raised on the Second Stage the possibility that subsection (2) may create some unintentional offences. It provides that when 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, unless they have otherwise consented or the court on application permits it. "Matrimonial proceedings" is defined in subsection (3) as including proceedings under section 12 of the Married Women's Status Act, the Guardianship of Infants Act and under the Family Law (Maintenance of Spouses and Children) Act.

It seemed to me that it would be quite possible to have either the sale of a particular item or the pledging of it only to maintain a cash flow position and not with any intention of diminishing the household property in a way that would undermine the spouse. There might be an argument that it should be in some way knowingly and precisely to undermine the spouse and diminish the contents of the house at a time when matrimonial proceedings had been instituted. There should be that specific intent and not just any pledge or sale of any household furniture, in particular since, under subsection (7) "household chattels" have been defined to include furniture, bedding, linen, china, earthenware, glass, books and other chattels of ordinary household use or ornament.

This Bill encroaches very considerably on the family situation. There is good reason for doing so in some very hard cases where it is not unknown for a wife in such a situation to find that the furniture is sold from under her. I think it is the intention to control that situation. But it seems to me that the precise wording of the section may lead to unintentional breach of the provisions. Then there is the penalty provided for under subsection 4, a fine not exceeding £100 or imprisonment for a term not exceeding six months or both. One might find that where there had been an unintentional breach of this section by the sale or the pawning of an item of household furniture the other spouse might be vindictive enough to insist on a prosecution. The reality of some of these situations is that there can be a high degree of spite and vindictiveness between the spouses.

Mr. Cooney

Because of the probability of that sort of situation we have to have the section, as drafted, because if there was such a degree of vindictiveness present to have the word "knowingly" in the section would provide a loophole for the vindictive spouse to come along afterwards and say "I did not know". On balance, it is better left in the strict terms in which it is drafted. If it is a question that cash is needed, that can be arranged by an application to the court, before the determination of the matrimonial proceedings, for permission to sell. No doubt if a case was made that cash was needed for the well-being of the spouse and children, the court would permit a sale in advance of the determination of the proceedings. Likewise, if relations had not broken down completely, the parties could agree to the sale of some of the chattels. Therefore, I think it is better without the word "knowingly".

Mr. Horgan

I am intrigued by subsection (7). I would not be a bit surprised if we heard a great deal more about subsection (7) in the courts after this Bill becomes law. It is not unknown, especially among the wealthier members of professional classes, for people to buy items normally described as chattels as a form of investment, for example, silver, modern paintings, old paintings and so on which may, indeed, be part of the household chattels in the sense that they are there, they are hanging on the walls or in a glasscase but which may have been bought, to some extent at least, as a hedge against inflation, as an investment. Even though they may have been bought effectively on the income of one of the spouses, the decision to buy and the nature of the purchase may have been a joint decision. What category does property like this come into? A spouse might want to sell a Jack Yeats painting that he had bought for £300 ten years ago. He is now being offered £3,000 for it. Would that be included under the general heading of "household chattels" or could the spouse in question argue that this was something which he had acquired for business purposes, in a sense that he may have been, in his normal line of business, a professional man, an accountant, a doctor, a lawyer or whatever, he was also in a small line of business as somebody who invested in modern paintings and occasionally resold them when they had appreciated substantially?

Mr. Cooney

The motive in buying the chattel in question would be irrelevant in determining its nature. If it comes within the definition of the section it would be a household chattel irrespective of its value or irrespective of why it was purchased. The example quoted by the Senator would be clearly covered by the use of the term "ornament" in the subsection. The subsection reads:

For the purposes of this section "household chattels" means furniture... and other chattels of ordinary household use or ornament...

Therefore, it would be a chattel of ornament. Quite clearly a painting would come within that definition.

Mr. Horgan

Irrespective of the motive for which it was bought?

Mr. Cooney

It would have nothing to do with it.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mrs. Robinson

Subsection (6) of this section provides that

proceedings under or referred to in this Act, in which each spouse is a party (whether by joinder or otherwise) shall be conducted in a summary manner and shall be heard otherwise than in public.

For proceedings in the High Court and the Circuit Court there is a provision that they be heard in chambers.

I should like to hear in some detail from the Minister about what he envisages as being in the summary manner provided for and whether this will necessitate amendment of the rules of court or any other procedural difficulties that might arise. Certainly it involves a range of new forms of application and proceedings before the High Court and Circuit Court which are substantially different from the normal jurisdiction of these courts. I would welcome some information on this.

Mr. Cooney

As the Senator knows, summary proceedings involve mainly issue of a summons. There are no documentary pleadings involved in summary proceedings in the way that there would be in certain types of proceedings particularly before the High Court, to a lesser extent, in the Circuit Court and to a much lesser extent still in the District Court. Therefore, the intention is that a simple document will get the parties into court and the matter will then be argued between them. There would have to be rules of court for all the courts to provide for summary proceedings. What we want to do here is to have a simple procedure to ensure that parties can come into court quickly and without having to face technical difficulties. If one provides for pleadings and a lot of procedural technicalities one will slow up the procedure and cause delay in getting into court. It is of the essence of family matters that they be resolved speedily. That is the motive behind the subsection in question in providing for summary proceedings. Of course there will have to be rules to deal with them but they will be also as simple and as uncomplicated as possible.

Mrs. Robinson

Arising out of what the Minister said, I have two further questions. First of all, will it be a summary summons and an affidavit equivalent to the procedures under the Guardianship of Infants Act?

Mr. Cooney

I could not answer that because that would be a matter for the rules committee, the appropriate committee for the appropriate courts. I do not know quite what form of procedures the committees will devise. It will be a matter for them and it will be remitted to them to draft the necessary rules.

Mrs. Robinson

On that question of fact that the various remedies under the Act will require new rules of court in order to be effective, will this be a delay in the actual operation of the Bill? I note that there is no date as to when it comes into operation. Is there a possibility of delay while the rules of court committees get down to drafting the necessary rules of court?

Mr. Cooney

No, we do not anticipate any delay. In this connection, I might mention the action of the District Court and other rules committees, particularly the District Court Rules Committee, in drafting a very thorough set of rules and forms for the Maintenance Act. They were ready as soon as the Act was ready and I anticipate the same with regard to this Bill.

Mrs. Robinson

Finally, and again it relates to the question of proceedings being in a summary manner, I should like to get back to the question of cost of proceedings. When one uses the term, "in a summary manner", the intention obviously, and the Minister has made this clear, is that parties can get into court easily on a summons grounding affidavit. The implication is that these are not very costly proceedings. Therefore, the absence of a system of legal aid or whatever does not really cause any great hardship because they are summary proceedings. It might be of interest to know that it appears now that under the Guardianship of Infants Act a simple summary proceeding for custody and maintenance of children, where one spouse applies under section 11 of the Guardianship of Infants Act, the estimated costs of application would be in the region of £1,200 to £1,500. Usually, it would be the husband who would end up paying these costs because it is now, apparently, relatively normal to have senior counsel and junior counsel involved. There is something strange if the most summary and, by implication, therefore, the most accessible and cheap remedy we can offer in these family law situations is probably going to cost the losing party in the circumstances something like £1,500. This money will come out of the overall assets of that family. Whatever order has been made for custody and maintenance the family will be at a loss to that extent.

The Minister may try to come back and say, "There you are; if you are talking about a system of free legal aid and advice, look what that system might cost in the situation". That is a different sort of situation. We could meet that problem by examining where the very high cost in these proceedings comes. However, if we are providing for various types of application under various sections of this Bill in a summary manner to the High Court—obviously, the cost would be less in an application to the Circuit Court—under this section if the rateable value of the land exceeds £100 or if the value of the personal property to which the proceedings relate exceeds £5,000 then a defendant can insist on it being transferred to the High Court. It is possible that the High Court will exercise a considerable jurisdiction in practice under the provisions of this Bill.

It is a very serious matter on which I would like to hear the views of the Minister. Although we appear to be providing for summary proceedings and the intention is that parties can get into court easily, the costs that those parties face are quite prohibitive. The intention is that a spouse or dependent children who are being protected will get justice but, in fact, what may happen is that after a High Court proceeding the family cake has been diminished by legal costs and whatever order the court may make may become just that more difficult to enforce because of the bill for legal costs at the end of the day.

Mr. Cooney

The example which Senator Robinson has given and which, unfortunately, may mislead a lot of people, is not relevant to this Bill. She said that we appear to be providing in the Bill for summary proceedings. We are positively providing for summary proceedings under this Bill. In contrast, the Guardianship of Infants Act procedure is not a summary procedure. The Guardianship of Infants Act procedure will generally be taken in the High Court and we all know the High Court is the most expensive court to go to. There is what in practical terms amounts to unlimited jurisdiction in this Bill to proceed in the Circuit Court, which is a local court and where the costs will not run to anything like the figure mentioned by Senator Robinson. I want to make it quite clear that to obtain relief under this Bill will not, in my opinion, cost the rather frightening figure which Senator Robinson quoted for a particular case of a different type in the High Court. It is important to make that perfectly clear lest any people might be misled or inhibited from seeking their remedies under this Bill. It would be a rare situation where the parties, having started in the Circuit Court, would seek to move to the High Court unless it would obviously be in their interests to do so. If a party did so with prejudice to the other party I have no doubt the court would take that into account when it would come to deal with costs.

We have not got free legal aid at present and the parties will have to bear their own costs. I do not want to go over this ground again. I did not make the argument that we do not bring it in because of the costs of a particular case. I did say that the Exchequer may have higher priorities when the time comes that we have a recommendation from the committee. We must not forget that. It is equally important to keep the matter of costs in perspective and to point out again that the proceedings in this case will be truly summary proceedings. The proceedings in the case the Senator quoted are not summary proceedings and are generally brought in the High Court where the costs are at the highest. Proceedings under this Bill can be taken in the Circuit Court which is a local court and where the costs would not run to anything near the amount of costs that could be incurred in the High Court. We need to remember these things to get the matter into perspective.

Mrs. Robinson

Certainly, it is not my intention to mislead.

Mr. Cooney

I do not say that it is the Senator's intention but the example she gave could be misleading.

Mrs. Robinson

I am going to pursue that further because my confusion is a genuine one. I would like to know in what way proceedings, if taken in the High Court under this Bill, will differ in a qualitative way from proceedings under section 11 of the Guardianship of Infants Act which are on special summons. I agree that that procedure is confined to the High Court but one has a special summons and a grounding affidavit. The idea is that the procedure is supposed to be a fairly quick and relatively cheap one. An assessment in the Law Library at the moment is that the cost of bringing guardianship of infants proceedings before the High Court would be of the order of money I mentioned, between £1,200 and £1,500. If an application under this Bill is initiated in the High Court, or transferred from the Circuit Court to the High Court, in what way will it be guaranteed not to cost that much money? What is the difference between them?

Mr. Cooney

Quite obviously I cannot say in vacuo because the costs of a particular case depends on how long it takes and that, in turn, depends on the complications and facts of a particular case. It could be that some proceedings under this Bill would take longer than the example quoted by Senator Robinson and could cost more. In such a situation one must assume that the estate is large, that the issues are complicated and that there are very high material considerations involved. On the other hand, there could be a case where the facts would be very simple. The court could adjudicate in a very short time and the costs would, accordingly, be smaller. It is a rather pointless exercise for us to be trying to assess in advance of actual cases what a particular case will cost. It is not possible. The point I want to make is that the Circuit Court is available and that the scale of costs in the Circuit Court are far lower than the type of figure quoted by Senator Robinson.

Question put and agreed to.

Section 11 agreed to.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill."

Mr. Horgan

This is the section which deals with the possibility of registration. In the other House, and here, the Minister dealt, in some detail and with some cogency, with his reasons for going easy on the concept of registration. He argued, if I remember rightly, that this was something which if it was introduced into a marriage situation before the situation had got really bad would only tend to make things worse. He preferred the particular device adopted in this Bill to the registration mechanism. However, his arguments have validity in respect of private housing that they do not necessarily have in relation to public housing. In the case of private housing there is very often a substantial sum of money involved in the initial purchase of the house.

There may be very many complications in trying to ascertain where exactly this money has come from, who has paid it, and so on, which would make the idea of compulsory registration rather difficult to wear.

However, where local authority housing is concerned, there are no such ambiguities. The rent as it usually is, at least initially, is not that substantial, and it is contributed to very often by both spouses. Even in cases where it is contributed to in cash terms by one spouse, it is also contributed to in kind and work by the other spouse. There is no ambiguity about the source of the support for local authority housing. I am a great believer in the case that local and public authorities should, whereever possible, and especially where it does not cost them money, set a headline in the matter of establishing parity between individuals, and especially between husbands and wives in housing situations.

There is a very strong argument in favour of compulsory registration of the existence of marriages where they exist in cases which local authorities convey a leasehold or a freehold interest in houses to people. In fact, local authorities generally convey only leasehold interests. Basically they give first of all a house on a lease subject to a weekly rent. If they sell the house they usually maintain a small ground rent of a shilling, or so, in order to ensure that certain conditions are observed. I suspect that after the Minister's legislation on ground rent, not even this will be possible. So they may in fact also be conveying freeholds.

We are dealing with a situation in which in local authority housing a house is usually vested in a certain person as a tenant. Thereafter, in a decreasingly short space of time, the house is vested in the same person as a purchaser. I would like to think that the local authorities should set a headline here by registering the fact of marriages where such marriages exist in the same way, as in the case of private property, either spouse may register independently and voluntarily his or her interest.

I had anticipated that we might have had a day between the conclusion of the Minister's speech and the taking of Committee Stage, which is why I did not get a particular amendment in on these lines. I have a form of words which I should like to suggest to the Minister. Perhaps he might consider it before we get to Report Stage whenever that will be. I would suggest a new subsection which would read:

A local authority shall register in the Registry of Deeds, pursuant to the Registration of Deeds Act, 1707, in the case of unregistered property, or under the Registration of Title Act, 1964, in the case of registered land, a notice giving details of the marriage, if any, of any person to whom it conveys an interest in such property or land by lease or sale.

A small consequential amendment would be necessary in subsection (2) of the section. This is an idea which would not cost anything. It would write large the concept of a joint ownership of what is public property as between husbands and wives to whom public property is conveyed. It is a course of action which has been urged very strongly by the Free Legal Aid Centre people. I would be very interested to hear the Minister's views on it.

Mr. Cooney

What was urged, with respect to the Senator, was not so much registering a notice of marriage but that local authority houses should be subject to compulsory joint tenancy. I think that is what the advice centres recommended. I see a lot of merit in what the Senator says. There is one disadvantage to it. It is putting local authority houses in a different category from the rest of the community. That is something I should not like to do. I would like all householders to be on exactly the same legal footing and subject to the same legal obligations with regard to their titles. If a local authority failed to give notification to the registry, is it to be subject to any sanction? If you impose an obligation without a sanction, of what value is the obligation? We can expect local authorities to discharge their obligations with greater consistency than mere individuals. Nevertheless that would be a flaw in it.

The second point is, how do the local authority get the information on which to base their notification to the registry. They would have to depend on the parties to give them the information that they are married. Again, if the parties refuse to give this information to the local authorities, do we compel them to do it, or do we just allow the local authority to ignore that particular situation? There may be people who would tell the local authority they are married when they might not be married. The parties might be married bigamously, one of them having had an ecclesiastical annulment. Is that the marriage that would end up notified to the registry, whereas the real marriages did no appear on the registry? These are all complications that would arise from what Senator Horgan suggests.

What local authorities do—and this is possibly of greater practical benefit — in their invitation to people to avail themselves of purchase schemes is to recommend that the property should be placed in the joint ownership of the husband and wife. They actually recommend this in the notice of application to participate in a purchase scheme. That is possibly more valuable than notifying the Registry, because to have a system of notification to the Registry would bring with it all these difficulties to which I referred. While it would be desirable in principle, in practice it would be extremely difficult and could lead to serious complications.

Mr. Horgan

The Minister has made the best possible case against what I am suggesting, although he agrees that it would be a good thing if it could be brought about without all these complications. The first point I should like to address myself to is his contention that this would put local authority housing in a different position from other housing, and that he would like to see all housing more or less on the same plane. We have to face the fact that local authority housing is different from other housing in that it is directly subsidised by the taxpayer to a very large extent. Given that that is the case, it is important that public policy should be observed to the maximum possible extent in the allocation of public housing. That is the reason I would suggest an amendment on these terms.

Many of the problems suggested by the Minister could be avoided if we were to make it optional on the local authority to register in such fashion, and leave it up to the democratic sensibilities of the local authorities in their own particular situations to do it if they see it necessary to do it and, if they do see it necessary to do it, to devise whatever sensible and modest administrative procedures may seem to them to be appropriate.

Mrs. Robinson

Just two brief points on this section. First of all, there seemed to be some confusion about what I said on Second Stage about this particular section from what was said in the Minister's Second Stage reply. I think that the balance achieved by this Bill is better than to have a system of compulsory registration, although I am very much in sympathy with the view put forward by Senator Horgan. If he wishes to table that amendment for Report Stage I will be happy to second it for him. For private housing, a system which provides for the necessity for consent for sale of the family home, combined with a system of voluntary registration, is a good balance.

What I said on Second Stage was that I hoped it would become a very acceptable part of normal practice for a solicitor that the advice given would be that the voluntary system of registration should be used at the start of every normal marriage without any possible inference that there was likely to be any trouble in that marriage and that it would become the norm that the fact of marriage would be registered either in the Registry of Deeds for unregistered land or the Land Registry under the Registration of Title Act in the case of registered land.

I want clarification on a second point. What would be sufficient evidence offered to allow a person to register notice of a marriage? Presumably there would have to be some form of proof. I wonder whether this has been considered by the Minister. Would mere production of the marriage certificate be sufficient or would there have to be a sworn affidavit by the person registering the notice?

Mr. Cooney

It would be a matter for the Registrar to decide what type of notice he requires. He may require that the notice be authenticated by a marriage certificate exhibited in the notice. He may further require it to be by way of statutory declaration, but essentially it will be for the Registrar to make rules to satisfy himself that the notice is authentic. As a matter of practice over a comparatively short time, I imagine there will be a large number of marriages notified to the Registry. The fact of marriages will be notified to the Registry and will arise in this way that every alienation of property, and that includes mortgage lease and sale, from the passing of the Act will have to be endorsed with the wife's consent. That fact will be available in the Registry for the knowledge of subsequent purchasers. Therefore, after a comparatively short time, every dealing lodged in either the Land Registry or Registry of Deeds where the consent of a spouse was necessary will have that spouse's consent endorsed and thereby subsequent purchasers will be alerted that there was a marriage on that particular title. In practice what is set out to be achieved by this section will be achieved through conveyancing and conveyancing practice.

Mr. Horgan

Would the Minister address himself to the change which I suggested in my amendment to the effect that such registration received by local authorities would be made available to them as an option rather than compulsorily?

Mr. Cooney

The local authorities might register?

Mr. Horgan

Yes.

Mr. Cooney

I do not know if there is any great advantage in that. We are not protecting the local authorities. It is the spouses we want to protect. If local authorities have notice of marriage in some cases and not in others and there was no legal obligation to give it in all cases, the chances are that local authorities would decide to opt out of giving notice in any case. The best role they can play is to continue to inform people of the advantages of joint ownership and urge them to take the local authority house in both names.

Mrs. Robinson

The Minister is in favour of co-ownership.

Mr. Cooney

I have always been in favour of voluntary co-ownership.

Mrs. Robinson

I thought you might come one step further.

Mr. Cooney

No. There would certainly not be any legal objection to a local authority deciding to notify, on a voluntary basis, the fact of a marriage in relation to a house provided it itself has knowledge. But how does it satisfy itself that it is getting accurate knowledge? There are practical difficulties, and as far as we have gone in the section is as far as we need go.

Question put and agreed to.

Section 13 agreed to.

SECTION 14.

Question proposed: "That section 14 stand part of the Bill."

Mrs. Robinson

I would like to welcome this provision. It is slightly different from some of the other provisions of the Bill so it is probably worth drawing attention to. It provides:

No stamp duty, land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between spouses in respect of a family home where the home was immediately prior to such transaction owned by either spouse or by both spouses otherwise than as joint tenants.

There are now a number of spouses who would like to convert the property into a joint ownership and who have been prevented from doing so by the costs that this would have involved, and, similarly, solicitors who would otherwise advise on the desirability of converting property into the joint names have been deterred from giving this advice because of the stamp duties and so on which have had to be paid. It is most desirable that it become the norm in marital relations in Ireland that the property be held jointly. Until we get a provision providing for compulsory co-ownership all we can do is use every opportunity and possibility of increasing the incidence of voluntary joint ownership. This provision should be widely advertised, and husbands and wives should be encouraged to become aware of it and to transfer the family home into their joint names.

This goes back to what was relevant to the background to legislation of this sort. It is one of the reasons why I regard it as potentially a very far-reaching Bill. I do not think that one can really take a marriage, abstract it from a society, and start classifying it as a happy or successful marriage. Irish marriages are very much conditioned by the atmosphere prevailing and the cultural ethos of our society, and the average Irish marriage is one where the wife is not, on the whole, consulted or given financial responsibility and a right to share in decisions. The dependency of Irish wives in the marriage, even for marriages which appear from the outside to be successful ones, is an imbalance in our society and prevents the marriage being the degree of partnership between two equal and adult partners that it should be. I would hope, therefore, that section 14 will be availed of by as many husbands and wives of what are happy and successful and normal marriages—whatever term one wants to use—in order to reinforce that marriage relationship by giving the underpinning of co-responsibility, co-legal rights and, therefore, copartnership in the whole venture.

I do not agree with the Minister that this type of active encouragement as part of our public policy is irrelevant to the normal happy marriage. The normal happy marriage in Ireland is a conditioned Irish marriage. Conditioned Irish marriages need to be prodded and encouraged by sections such as this and by a public policy in relation to it to have better, more equitable and more reasonable provisions in relation to the holding of property in those marriages. There is a great backlog to catch up on, a great redress of the sharp and narrow conditions of women and, indeed, of men in our society so that they have seen their roles in a very narrow and restrictive way and this is reflected in their attitudes within marriage.

The compulsory parts of this Bill and also the voluntary parts, like the voluntary registration of the fact of a marriage by notice to the Registry of Deeds or the removal of financial handicaps to transferring the family home into joint ownership, are very welcome and very significant parts of this Bill.

Mr. Cooney

The House might be interested to know that the majority of the applications to the Land Registry for registration in respect of new houses are in the joint names of husband and wife.

Mrs. Robinson

I accept there is a very good trend in this. But there is a backlog of situations down the years where husband and wife have been living in a house which they would like to have converted into their joint ownership.

Mr. Cooney

This is designed to help them.

Mrs. Robinson

Yes. Many people have been put off because in a situation where the wife has raised the matter the husband might say that he would like to transfer the property into their joint names except that the cost would be prohibitive. In that type of situation this measure is welcome.

Question put and agreed to.

Section 15 agreed to.

NEW SECTION.

Mrs. Robinson

I move amendment No. 2:

Before section 16, to insert a new section as follows:

"The costs of any proceedings under this Act shall be in the discretion of the Court."

This amendment is necessary in order to confer on the courts in question, be it the High Court, the Circuit Court or, in some instances, the District Court, a general discretion in relation to costs. It is necessary because the normal rule in the circumstances is that the costs fall on the party who loses, but there are a number of applications that could be made, particularly by a wife, under various sections of this Bill where, for example, she may make an application under section 5 in relation to conduct leading to the loss of the family home, she may not win in the sense of establishing what she was alleging. She may say that the other spouse was engaging in conduct which may lead to a loss of an interest in the family home and the court may say, no, the conduct has not gone so far as to actually succeed in an application under section 5.

There are very strong grounds in all these applications in the area of family law for conferring the discretion on the court to decide whether any costs will be awarded against the party or who will bear the costs in the circumstances. The particular provision is similar to one in the Family Law (Maintenance of Spouses and Children) Act. Section 26 of that Act provides that the cost of any proceedings under that Act shall be at the discretion of the court. We are in a similar situation here. If anything, there are stronger grounds for arguing for the necessity of such a provision in this Bill.

Mr. Cooney

This amendment is not necessary because the costs will be in the discretion of the court. The present Court Rules, 1950, provide that:

Unless otherwise provided by statute or by these rules the granting or withholding of the costs of any party to any proceedings in the court shall be in the discretion of the judge."

A further section provides that:

The costs following the trial of an action by jury shall follow the event unless the court otherwise awards.

Order 99, rule 1, of the Superior Court Rules says:

Subject to the provisions of the Act and any other statutes relating to costs and except as otherwise provided by these Rules,

(i) the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of these Courts respectively...

Again, there is an exception in the rules for costs following the event where there is a trial by jury. In these particular cases there will not be a trial by jury and even if there were the court would still have power to award the costs, notwithstanding how the event might turn out. Therefore, the amendment is not necessary because the costs are already in the discretion of the courts in question.

Mrs. Robinson

Would the Minister mind explaining why the House passed section 26 of the Family Law (Maintenance of Spouses and Children) Act?

Mr. Cooney

As far as I remember, not having the particular Act with me, I think the Senator is referring to the District Court.

Mrs. Robinson

No, I am referring to a section of the Family Law (Maintenance of Spouses and Children) Act which is identical to the amendment I have moved. It provides:

The cost of any proceedings under this Act shall be in the discretion of the courts.

If it was felt necessary by the Minister to have such a section in relation to maintenance proceedings and attachment of earnings proceedings and so on, why is it not felt necessary to have it in relation to the various types of applications under this Bill?

Mr. Cooney

The only thing I can say to that is that the law as I have stated in regard to this amendment is the law with regard to costs, that they are in the discretion of the courts. I would have to read that Act again to see if there was any particular reason for it. Offhand, I cannot see any reason and the only thing I can suggest is that it was not particularly necessary in that Act. The fact that it is in that Act does not follow that it should be inserted in this Bill if it was necessary in the other one.

Mrs. Robinson

I suggest that if the Dáil were in session at present the Minister's attitude to this amendment might be quite different. It is desirable to——

Mr. Cooney

I am quite satisfied that there is no need.

Mrs. Robinson

I find it rather strange, as the House only passed the other Bill a few months ago. It was the Minister's Department that moved it and the Minister steered it through the House.

Mr. Cooney

The statement in the Act does not add to or take from the legal position. It is quite clear that the costs of any proceedings are in the discretion of the court. That is the position I have set out in that Bill and that is what the position will be following the enactment of this Bill. The inclusion of the words in the amendment is not necessary to make that the legal position. It is that already.

Mrs. Robinson

If perhaps there were some value in having clarity on this matter in the Family Law (Maintenance of Spouses and Children) Act, would the Minister accept that it is better to have both clarity and common approach to Bills of this sort and that the absence of a section to this effect, when the section is contained in the Family Law (Maintenance of Spouses and Children) Act may give rise to an impression that the court does not have the same discretion as it has in relation to the Family Law (Maintenance of Spouses and Children) Act?

Mr. Cooney

There is nothing to give rise to such an impression. The only people who would have such an impression would be the courts and they would be already well aware of their position in regard to costs. There is no need for clarity because the position is already quite clear, notwithstanding the absence of words in this Bill of the type included in the Family Law (Maintenance of Spouses and Children) Act. Their presence in the Act to which the Senator referred does not make the matter any clearer. The clarity in this context is absolute.

Mrs. Robinson

It is not so much a question of clarity as consistency.

Mr. Cooney

Consistency from a politician? The Senator should know better as a practising one.

Amendment, by leave, withdrawn.

Mrs. Robinson

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.

Mr. Cooney

The danger of contracting out to which Senator Robinson referred in my opinion cannot arise under this Bill because let us recall what the right is. The right is to withhold consent to the sale of a family home. That is in effect the right given by the Bill. If you have an agreement not to give consent, or rather to contract out, the agreement would have to be an agreement to give consent, and then the wife in effect would be contracting out. In other words, a malicious or vindictive husband would not need to have an agreement in writing for his wife to give her consent.

As drafted, I do not see how contracting out could be possible. A wife can always consent to the sale of the matrimonial home and an agreement to do what she can do under the Act is not of any value. It will not interfere with her rights. The provisions of the Bill make it clear that the consent must always be obtained subject to section 4 regarding an appeal to the court. You cannot prevent a wife from agreeing not to exercise her rights under the Bill any more than you can prevent her, say, from renouncing her rights under the Succession Act. Where she agrees not to withhold her consent and then withholds it, this will have to be taken into account under an application under section 4. A sale or other disposition of the home will not be valid without the wife's consent unless the court dispenses with her consent and this is true irrespective of any agreement that might be made.

The Bill is very positive in its provisions. I cannot see how contracting out could arise under the Bill as drafted. I have not got the Maintenance Act before me but from recollection of its general provisions there would be room for contracting out because it is not a case of the wife's withholding of her consent to a particular thing or giving her consent to a particular action. There are more substantive matters in that Act where she has a positive right to move. If I thought there would be any need for this I would accept this amendment but quite frankly I am satisfied that there is no need, that contracting out of the rights under the Bill is not possible as it is drafted.

Mrs. Robinson

Perhaps it is because it has been a difficult afternoon that I put my arguments in a very obtuse and unclear way but I do not think the Minister has quite understood the purpose of the amendment. If one goes back to section 3 (1), it provides that where a spouse without the prior consent in writing of the other spouse purports to convey any interest in the family home to any persons except the other spouse then subject to the particular qualifications of it the purported conveyance shall be void. The sort of agreement that I have in mind is an agreement entered into at the time of the marriage, on the honeymoon or a few weeks after that or at any time subsequent to it where there is an agreement between the spouses which is to the effect: "I undertake not to withhold my consent from any disposition of the family home"—that is, written consent.

Mr. Cooney

That means, "I undertake to give my consent...".

Mrs. Robinson

Yes. I could see many circumstances where the husband would draft the type of agreement, put it under the nose of his wife, and say: "Look, sign that". The wife would sign it——

Mr. Cooney

What would be the consideration?

Mrs. Robinson

It is the same sort of contracting-out type agreement. There could be consideration. He could say: "I will give you £1,000". There could very well be consideration for that type of an agreement. The point I am trying to make is that in the situation where very often the wife is very vulnerable. She may be improvident and may enter into an agreement in writing which makes it clear that her consent will be forthcoming for any disposition in the future of the family home.

Mr. Cooney

Notwithstanding that agreement it is still a matter for the courts to adjudicate whether that agreement would be binding on her or not.

Mrs. Robinson

The section does not provide for that type of adjudication. The section says that—

where a spouse, without the prior consent in writing of the other spouse,

If the husband is going ahead with the sale or lease or mortgage and has prior consent in writing, then he has prior consent in writing. The fact that it is a kind of global consent in abstract terms early on in the marriage does not matter if there is prior consent in writing. We have not defined in more express terms what we mean by "prior consent in writing".

Mr. Cooney

It means that the deed of conveyance—that is all it can mean— is the document, or instrument alienating the property, and is the document that must have the writing on it.

Mrs. Robinson

That is not contained in the section.

Mr. Cooney

It says in the section that "the purported conveyance shall be void". It would have to be the conveyance. It is implicit in everything in the section that only the instrument of alienation can have the consent in writing on it.

Mrs. Robinson

It is not enough for a husband, disposing of the family property, to be entering into a conveyance of the property and have and present a letter showing consent in writing?

Mr. Cooney

No, the wife's endorsement on the conveyance would be necessary.

Mrs. Robinson

It would have been better to have that expressly in the section.

Mr. Cooney

There is not any need. It is there. That is possibly where we were not ad idem.

Mrs. Robinson

I certainly did not understand the section to mean that it was necessarily part of the conveyance itself that there had to be, in that conveyance, a written consent of the wife actually written into it. Does she find herself a part of it?

Mr. Cooney

It would be a matter for the conveyance how he would draft it, but I believe it would be on the lines of "in consideration of X thousand pounds paid by and with the consent of a spouse as is testified by her endorsement hereto," and that at the end of the conveyance the wife would endorse it.

Mrs. Robinson

Say there was a conveyance that did not especially incorporate a clause to that effect but there was a letter from the spouse consenting to the sale, would that be a void sale?

Mr. Cooney

It would, in my opinion. The document of title would be faulty because on its face it would not have the consent of the spouse which is necessary to make it a valid conveyance. It would be a faulty title and no purchaser would take it. No reputable solicitor would close a sale on foot of it.

Mrs. Robinson

That is a clarification I had not appreciated. What happens if it is not a conveyance, if it is the creditor of a mortgage or a leasing?

Mr. Cooney

The same rule applies to any document alienating property. A conveyance of sale is, if you like, a species of document of alienation. The other species would be mortgagees, leases, fee farm grants, whatever they might be—but each would have to have the endorsement of the wife's consent on its face.

Mrs. Robinson

I am grateful to the Minister for that clarification. Maybe it was an obvious point that escaped me but I was not aware that the section prescribed in such explicit terms that the actual deed of conveyance or mortgage instrument itself on the face of it, contained the reference to the prior consent and the endorsement by the signature of the spouse.

Mr. Cooney

It is more a matter of conveyancing law that when the obligation is laid down here, conveyancing will prescribe how it will be effective in practice. As a matter of conveyancing, the method I have indicated to Senators would be how it would be done. Anything less than that would not achieve the purpose of this section and would render the title faulty.

Mrs. Robinson

In the light of that clarification and my better understanding of the scope of section 3, my amendment, which would have tried to prevent an earlier improvident agreement where a wife would forgo the possibility of refusing her consent to a sale or mortgage is not necessary. Clearly, even if there were such an agreement, it would have no significance, it would not affect the position. In those circumstances, I ask leave of the House to withdraw my amendment.

Amendment, by leave, withdrawn.

Section 16 agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.