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Seanad Éireann debate -
Wednesday, 15 Jul 1987

Vol. 116 No. 18

Family Law Bill, 1987: Second and Subsequent Stages.

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

The purpose of this short Bill is to abolish the old common law action for restitution of conjugal rights. That was an action which could be taken by a spouse who was deserted or excluded from the family home, with a view to ending the desertion or securing re-admission to the family home. The action has fallen into disuse in this country; so far as is known no such action has been taken for more than 20 years now. In England, the action was abolished in 1970. The Law Reform Commission considered the matter in a report published in 1983 and recommended abolition here also.

It appears that the action, when it was being used, was seldom taken with a view to enforcement of the decree sought, or even in the hope that the proceedings themselves would bring about a change of attitude by the spouse against whom they were directed. Usually it was applied for as a means of establishing desertion in order, for instance, to assist or resist, as the case might be, an application for maintenance. In a 1922 Irish case, the judge is recorded as saying that such decrees were sought in the expectation that they would not be obeyed, so as to lay the foundation for other proceedings, He said that penalties for failure to comply with an order were rarely, if ever, sought.

There is a belief in some quarters that the action was one taken mainly if not exclusively by husbands although such limited statistics as are available — all of them English — suggest that the action was resorted to by wives as much as husbands. In any event, it is clearly not in accordance with present day ideas of personal liberty that any person should be ordered by a court to live with his or her spouse. In relation to maintenance rights, I should mention that, since the 1976 maintenance legislation, the right of a spouse to apply for a maintenance order no longer depends on proof of desertion by the respondent spouse and the action now has no relevance for maintenance.

One effect under our law of not complying with an order for restitution of conjugal rights is that the non-complying spouse is precluded from taking any share in the estate of the other spouse as a legal right or on intestacy. However, since the action has fallen into disuse, this is of no practical consequence. A spouse who has deserted the other for at least two years before the other's death has in any event forfeited his succession rights.

Senators may express surprise that a provision to abolish this action should be made the subject of a separate Bill. My original intention was that the provision would be included in the Family Law (Protection of Spouses and Children) (Amendment) Bill, 1987, which is also before the House. However, I was advised that it would not be appropriate to include it in that Bill and, rather than wait further for a suitable Bill in which it might be included, it was decided to proceed as I now propose. While essentially this archaic action has no practical effects, I am aware that abolition has been sought by some women's groups who find the action offensive.

I commend the Bill to the House.

I want to welcome these two Bills dealing with family law which are before us today and say how pleased I am that the precedent set by the introduction of the Status of Children Bill here last year is being continued by this Government. Bringing the Adoption (No. 2) Bill and these family law Bills to this House to be passed by it before proceeding to the Dáil is recognising the special quality of debate in this Chamber and the concern with examining the detail of Bills. It recognises that this House has the time, given more flexible Standing Orders and our shorter recesses, to deal with Bills in greater depth. In the context of introducing important social legislation here I feel that this new initiative is a good one and I trust it will be maintained in the future.

In welcoming this Bill and the other Bill I do so with a great sense of familiarity, having been the person in office responsible for the initiation of both of them and having done a great deal of work in their drafting. I accept that the Bill we are discussing at present did not require a great deal of drafting. Everyone knows that when it comes to reforming legislation it cannot just be pulled out of a hat, and one of the Bills before this House was instantly created by the relevant Ministers in this Government. I am quite sure that the Minister does not intend to give that impression. The Bills on the order paper, that is to say the family law Bills, and the Adoption (No. 2) Bill, are there because of the commitment and the work of the former Government.

A great deal of in depth consideration, consultation and preliminary work on legislation was done by me in the Department of Justice. While I am naturally grateful that this work has not been abandoned or substantially altered, as has happened after other changes of Government, and that the Government decided to bring the Bills forward, it tells us something about Fianna Fáil vis-a-vis social legislation. The Minister will find that there is a good agenda of legislation in the family law area almost ready for him to introduce as compared with what I found in the Department of Justice when appointed in 1983. Not one item of social legislation had been initiated, much less waiting in the wings ready to get the final touches and publication, as is the case now. Fianna Fáil left a bare cupboard after them in 1981 and 1982 and did precious little in their years in office from 1977 to 1981. Therefore, just as Fine Gael effected the transformation in Fianna Fáil's approach to the economy, I am glad to see that our influence in the area of social legislation is just as persuasive.

In general the difference between Fine Gael and Fianna Fáil as the main Opposition party goes rather deep. Fine Gael in Opposition will not oppose social reform measures——

I can not see the relevance of this to the Bill.

——which are in most instances long overdue and essential to the needs of a modem developed society. We have taken and will continue to take a responsible approach to legislation whether it is relating to legitimacy, adoption, family planning or family law reform. We did not shirk the issue of divorce, nor will we do so in the future. These issues ought to be above party opportunism. They are too sensitive and important in a human context for party point scoring. We should all as legislators in both Houses give a lead in public attitudes to fighting intolerance, prejudice and discrimination.

I turn to the Bill before us, and really it is a small Bill — one could even call it a puny Bill — the purpose of which is to abolish an old action of restitution of conjugal rights but, however short this Bill may be, it should not be underestimated. It is another step to take out of our legal system the concept that a married woman is the property of her husband. I welcome this Bill, with one reservation which I will enter later, because there must be no area left in our laws which reflects one sex as subordinate or unequal to the other. While laws alone will not change a society's attitude or immediately alter, for instance, the distorted perception of wives as their husbands' property — which from many aspects of the debate on the divorce referendum last year is still very prevalent — maintaining outdated concepts like this one is unacceptable.

Under this action a spouse could by lawful means force the other spouse to cohabit against his or her will. If a spouse failed to comply with a decree for restitution of conjugal rights a Statute enacted in 1813 provides for commital to prison for a period not exceeding six months for that non-compliant spouse. Indeed, husbands are on record as using extra-judicial methods to enforce their rights to their wives' company. In the case of R. v. Jackson in 1891 a husband lay in wait with two other men for his erring wife as she came out of church one Sunday, seized her, took her home and kept her there against her will. However, this less than refined manner of patching up a marriage did not succeed when a subsequent successful application for a writ of habeas corpus set this wife free.

This action was abolished in England in 1971 subject to a 1969 Law Reform Commission report which stated that it was intolerable interference with the freedom of individuals for the court to order adults to live together and that it is hardly an appropriate method of attempting to effect a reconciliation. Interestingly enough, between 1965 and 1967 in England there was 105 petitions for restitution and 31 decisions made, 11 to husbands and, again interestingly enough, 20 to wives. Apparently these proceedings were brought at that time by wives seeking to take advantage of the courts' power to make ancillary orders, particularly maintenance orders.

Our own Law Reform Commission in their sixth report in November 1983 recommended in favour of the abolition of this procedure and stated on page 12:

International experience strongly suggests that reconciliation and conciliation are more successfully encouraged when the procedures are voluntary rather than compulsory. We consider that more support for these procedures should be made available by the State through financial subsidy of existing marriage guidance and conciliation agencies, as well as through the creation of new conciliation services by way of pilot projects if necessary.

The question I would like to ask the Minister about this Bill is why does he not go further and deal with the subject matter also included in the sixth Law Reform Commission report regarding jactitation of marriage. A petition on a suit for jactitation is designed to prevent a person, the respondent, from making assertions that he or she is married to the petitioner. In recommending the abolition of this law the Law Reform Commission proposed replacement by a new remedy.

I would like to have seen this issue included in this Bill, as was intended when I was in the Department, extending either total abolition or another remedy to give protection against false claims. While it is not an issue of critical importance, it is regrettable that when the opportunity presents itself, as it does with this Bill, we do not go all the way in dealing with the recommendation of the Law Reform Commission rather than doing it in a piecemeal way as is the case in this Bill.

Like Senator Fennell, I welcome the fact that the Minister has decided to introduce these family law Bills in the Seanad and to afford this House the first opportunity of considering them. This Family Law Bill, 1987, is a very narrow and a very limited Bill which simply repeals and removes from our law a proceeding which had virtually fallen into disuse. As a practitioner, I am not aware of any recent case brought before the Irish courts for restitution of conjugal rights.

The Minister referred to the report of the Law Reform Commission, report No. 6 of 1983, and Senator Fennell has also quoted from that report. In that report the Law Reform Commission in a footnote referred to the last reported Irish case as being in 1959, that of Hood against Hood. They also refer to an unreported decision in 1962 in the case of D and D which was a case of a wife bringing proceedings and obtaining a decree against her husband for restitution of conjugal rights. It is clear from the statistics which the Law Reform Commission referred to that in Britain and in this country the remedy was potentially open to either spouse but it is not of significance. Therefore although it is welcome that a Family Law Bill is being introduced here it would not be high on my priorities if I was ordering the priorities. The approach of the Law Reform Commission was correct and therefore I welcome the fact that the remedy is being removed.

Senator Fennell referred to a passage, which I was going to put on the record of the House, of the report of the Law Reform Commission in which they point out the importance of encouraging procedures for voluntary reconciliation between the parties and they look for more support in that area. It would be helpful if the Minister could indicate in his reply whether, in bringing forward this rather narrow Bill to remove an old action which had fallen into disuse, he has taken on board the recommendation of the Law Reform Commission of the need for greater financial support and financial subsidy of marriage guidance and conciliation agencies and the expansion of conciliation services. We have a pilot project on conciliation but I would welcome some indication from the Minister of the extent to which he places priority on this area because that would be of far more importance. It was something that was considered in depth by the Oireachtas Joint Committee on Marriage Breakdown.

I would welcome some indication from the Minister as to whether he accepts the recommendations of the joint committee on reconciliation, where the marriage can be brought together again and also on the technically more correct designation of conciliation where it is a question of helping a couple to resolve issues in a marriage which has broken down and where the partners are not going to come back together again but where instead of having to litigate all aspects of their family life thay are able to deal with these matters with the help of conciliation services. We have had some initiatives in this area and I would welcome the Minister's view on the matter.

Finally, because this is not a Bill on which to make long speeches, I join with Senator Fennell in asking why the Minister did not in this Bill deal also with the issue of jactitation of marriage. As Senator Fennell has pointed out, the Law Reform Commission criticised, and did not recommend the continuation of, the present but very old and virtually unused proceedings. They recommended their replacement by a different form. The alternative would be to simply abolish them. It would have seemed appropriate to have extended the Bill to deal with the two matters dealt with in the report of the Law Reform Commission. I would welcome some indication from the Minister as to why he has only dealt with one matter. I was going to ask him why this repeal of the action for restitution of conjugal rights requires a separate Bill but I think he had dealt with that in his speech when introducing the Bill. He said he had originally intended to include it in the Family Law (Protection of Spouses and Children) (Amendment) Bill, 1987. I can see that it would not be appropriate to that Bill because it is not appropriate to the Principal Act and to the long title of it. In effect he was obviously advised to bring in a separate Bill to deal with it. It seems as though this Bill could have dealt with another minor reform which had been recommended by the Law Reform Commission.

As Senator Robinson has said, this is not a Bill on which to make long speeches. There are two points I want to make. One concerns the memorandum accompanying the Bill. As so often happens in these cases it tells us precisely nothing. I cannot see any point in issuing explanatory memoranda unless they give us some extra information. It is interesting that at least one morning newspaper apparently misunderstood what this Bill is about. It certainly stressed aspects of it which were not mentioned in the Minister's speech. I suggest therefore, not for the first time, to those responsible that explanatory memoranda should anticipate as it were, the main points of the Minister's speech. The Minister's speech is very explanatory. It states the case very satisfactorily.

I notice that Senator Fennell instinctively welcomed the Bill as a further stage in the emancipation of women from what is allegedly a discriminated against status. This seems to ignore the information the Minister has given us, that the English experience has been that the action now being abolished was resorted to by women as much as by men. It is time to challenge the gratuitous feminist assumption that all marital and sexual relationships are characterised by male dominance on the one hand and female enslavement on the other. I certainly challenge that assumption.

I welcome the Bill because it represents the disengagement of the State from an area in which it really has no business. I wish the Church would move towards similar disengagements. However it seems there is an inconsistency in the Minister's statement when he says, "In any event it is clearly not in accordance with present day ideas of personal liberty that any person should be ordered by a court to live with his or her spouse." But is it not the effect precisely of the article in the Constitution which absolutely prohibits divorce, and the Government's insistence on supporting that article, that people are compelled to live with their spouses against their will? Does that not represent a fundamental political inconsistency on the part of the Government?

Speeches so far on this Bill have been very brief and mine will be likewise. I welcome the Bill. The effects of it are not going to be earth shattering. As I understand it, in over 20 years there has not been a case before the courts under the legislation we are proposing to abolish. Therefore, the Bill, while on the Statute Books, has not been effective in trying to achieve whatever its purpose was.

Under this legislation we are talking about bringing a couple before the courts to restore conjugal rights. In a sense we are talking about the restoration of their marriage and we have to ask how that can be enforced. There is no way the courts can enforce the restoration of any marriage. If we grant the restoration of conjugal rights against the will of one partner we are talking about rape or a licence to rape. No court, no law and no parliament would countenance that. The case could arise, and the Minister referred to this in his speech, where, if an order is granted and one partner refuses to comply with it, that partner is in contempt of court. The suspicion must be that in the cases where this law was applied in the past the motive was to create a situation of contempt which would be used in other courts to extract financial benefit.

It was a crude device, not to restore conjugal rights but as a motive for financial gain before the law at a future time. In that sense we are well shut of this legal device. If it could have played some part in the restoration of a marriage, there might have been some case for it, but clearly it could not and it did not do that. In our circumstances, the difficult task of trying to restore broken, marriages today rests almost entirely with the underfinanced marriage guidance clinics and marriage guidance counsellors. Their task is a difficult one.

My main point in speaking on this Bill this morning — it has the support of all people — is to draw attention to the nonappearance of that wide range of support services, of caring, advice and help, promised so glibly during the recent divorce campaign. We have not, as yet, seen this raft of family legislation, although I have confidence in the good faith of the Minister in this regard. I hope that during the present Parliament we will see many of the very necessary changes, upon which there is fairly general agreement among thinking persons in either House of Parliament, and many people outside, changes which need to be made and which were spoken about in the referendum debate. What worries me even more is the silence from some of the major Church figures and spokespeople for the various Churches who promised so smoothy and so glibly during the referendum campaign to provide all the help possible afterwards.

When we discuss a Bill like this it is an opportunity to reflect on that very unhappy episode in our recent history, to reflect upon the help that was promised, the very glib promises that were made and the smooth words which poured out so easily to people who found themselves in very difficult situations. In the meantime we have had a deafening silence from the Church as to what now is possible. However, I would like the two Bills on marriage law which we are discussing this morning, to be seen as an earnest of the Minister's good intentions in this regard, that, during the course of this Parliament, we will see serious reforms in the area of family law since the divorce referendum did not provide one particular part of one answer to the problem faced by many people. I have no intention of going over the whole referendum debate here again. I am just making this point in passing.

I welcome this Bill. It is long overdue. Its effect will not be earth shattering, but I see it as an earnest of the Government's intention to bring in serious worthwhile reform.

I want to make a brief comment on this short Bill. Other speakers, particularly the two Senators who have an expertise in this area, made some very important comments from their experience as barristers and legislators. Far be it from me to query their expertise. That is not my intention.

As a local representative I have been confronted with some of the problems being created by marriage breakdowns in rural Ireland and the fact that people are unable, for many reasons unfortunately, to live together. The fact that similar legislation was abolished in England in 1970 does not convince me that we should follow suit. We introduced this legislation because of a report from the Law Reform Commission and the fact that people had not been using this old common law action for the restitution of conjugal rights. If there was any ground for the abolition of this old law, that must be it.

Arising out of what the Minister said, there are a few points on which I want clarification. As a public representative people come to me with a separation agreement prepared for them through the free legal aid scheme or some other channel, often, especially the female spouses, are totally unaware of their rights in this area or the consequences of the maintenance agreement that has been worked out for them.

If the male spouse makes it impossible for his wife to live with him, nine time out of ten, the woman has to leave the home with no compensation and she is usually given responsibility for the children. That puts her at a disadvantage because she has no place to go. She is dependent on relatives or friends and she is required to provide alternative accommodation for herself and her children out of the maintenance allowance, often a miserable pittance, granted in the family law courts. That is an unfair imposition to make on the wife who is charged with responsibility for the children. It is impossible to get local authorities to take account of the fact that suddenly a mother and her children are homeless and there is great difficulty in getting them approved for rehousing because as far as some laws are concerned, the mother is still married and has access to the family home if she wishes to return, and put up with the torment and other unfair practices she experienced earlier. We may not want to admit it but that is what happens. The maintenance granted is usually £70 or £80 a week and it is very difficult for the woman to rent alternative accommodation and keep her family out of that pittance. Many of these woman are unaware of what is facing them.

I am sorry to interrupt, but may I ask the Leader of the House to move an adjournment for 15 minutes? The Minister for Justice is needed elsewhere.

As the Minister has to go on urgent business, with the agreement of the House. I propose that we adjourn for 15 minutes.

I will be back in 15 minutes.

Sitting suspended at 11.10 a.m. and resumed at 11.30 a.m.

One of the reasons I raised the point in connection with the disadvantages that women have found, particularly in their maintenance agreements, was the need for them to provide alternative accommodation. The reason I raised it is that since the 1976 maintenance legislation, the right of a spouse to apply for a maintenance order no longer depends on proof of desertion by the respondent spouse. The action now has no relevance for maintenance. Can I take it then that a spouse is entitled to maintenance while still living in her home, although not necessarily living with her husband, who is also in the home? I hope I have made it clear that it can be difficult in some homes particularly as the man of the house at times precludes his spouse from the benefits of the marriage in that he almost ignores her and does not allow her any rights as regards housekeeping money or other ordinary requirements which one would expect of a happy marriage.

Will the Minister clarify if it is necessary for a spouse to leave her home and still claim in law for maintenance so that she could purchase food for herself and her children or does she have to formally leave home to get a maintenance agreement? These are some of the questions on which I have been trying to elicit information from the family law centre, particularly in the area of free legal aid and they usually respond by saying that they "have already explained all this to the estranged woman, asking her to contact them again". As a public representative who is sometimes confronted with this dilemma it is difficult to advise people properly.

I am also concerned — this goes back to the comment made by Senator Murphy — that right is not always necessarily on one side. I am aware of a husband who has been deserted by his wife although there is no formal legal separation document and the woman is living elsewhere. The husband is still at home with his children and is unable to claim, as a married person, under the income tax code. I am unable to get anything but a single person's allowance for that man; although he is a married man, legally and morally and has a family, he is treated as a single person. That is discrimination. I have researched the case and discovered that the woman in this instance is not working or claiming her separate rights to tax free allowances under the tax code, although she is living with somebody else. Neither is she availing of a married allowance, even a common law married allowance, so there are anomalies in this area. Reference has been made to the previous referendum and the promises made to people about the commitment of the then Government and Opposition to legislation to assist people in difficulties. I welcome the fact that there are two Bills on the Order Paper in that area. I hope that the promises made by everybody concerned during the referendum will be fulfilled because people need assistance in many areas.

I would like to comment on Senator Manning's reference to the lack of assistance from the church. My experience is to the contrary. There are several church agencies which readily give assistance and advice, in the area covered by CURA or in marriage guidance counselling and people should request this assistance if they need it. I hope it will not be construed from this debate that the church has not matched responsibilities in this area because I am personally aware that they have.

Whereas this matter might be dealt with more specifically in the Family Law (Protection of Spouses and Children) (Amendment) Bill, I hope that the Minister might be able to give me an indication if some of my concerns in this area are genuine. I notice also from the Minister's speech that a spouse who has deserted the other for at least two years before his or her death has in any event forfeited any succession rights. I welcome the Bill.

I welcome the legislation introduced by the Minister and compliment him on the speed with which he brought it to the House even though it is a very technical Bill. It seems ludicrous to have a law on the Statute Book that compels two people to live together even though they may not be getting on with each other. The penalty for not complying with that law is that they may be sent to prison. One of the basic features of the obligations of spouses is the duty to cohabit. Under the law, the wrongful failure to do so disentitles the spouse who fails to comply with this regulation to maintenance or succession rights. It also infringes on their protection under the Family Home Protection Act, 1976. Where the spouse continues to cohabit, no proceedings may be taken even though one spouse is refusing to have marital relations with the other. Conversely, the respondent could refuse to live with the petitioner and he or she will not be excused by supplying or offering to supply the petitioner with comfortable accommodation or financial support.

One aspect of the statute worth mentioning which causes tremendous uncertainty about the present law relates to where one spouse may stop living with the other either by leaving home or by excluding the other spouse from the home. In the case of the spouse who leaves the home, it could well be that the action for restitution of conjugal rights might be held to be inconsistent with one or more constitutional rights, the right to privacy, to earn a livelihood or the liberty of the person. In the case of a spouse who excludes the other spouse from the home, it seems less likely that an action for the restitution of conjugal rights would be held to be inconsistent with the Constitution.

Indeed, as well as an action for conjugal rights the excluded spouse would, in certain cases, be entitled to obtain an injunction ordering the offending spouse to desist from all conduct whatsoever that prevents the excluded spouse from reentering the home. Many cases have been put forward to eliminate this legislation from our Statute Book or to amend or abolish the law relating to the restitution of conjugal rights. As I mentioned before, it is contrary to the values in society, that we compel people to live together and that failure to do so may mean committal to prison.

I have already mentioned that the action for the restoration of conjugal rights is inconsistent with the Constitution. It may not be consistent with the provisions of the Constitution, especially in cases where a spouse has left home or been excluded.

Second, there might be a case to be made for the right to a maintenance order which is no longer dependent on proof of desertion by the respondent. Therefore, the case for maintenance does not relate any longer to the existence of this law, thus constituting an argument in favour of its abolition. If a spouse was sent to prison under the provisions of present legislation the consequent lack of financial support that would emanate from such a decision would render the other spouse, dependent on maintenance, even more of a pauper in terms of financial support. The inclusion of property and succession rights no longer pertains. As the Minister pointed out, if a spouse has deserted the other for at least two years before the spouses death, forfeiture of succession rights automatically takes place.

The Law Reform Commission in their report of 1983 advanced arguments that if we abolish the law relating to the restitution of conjugal rights that would remove the possibility of the two partners coming together again, having a change of heart and, as it were, coming to their senses. It removes or eliminates the possibility of reconciliation. I share Senator Robinson's view that it is much better in law to have a situation in which people can come together on a voluntary rather than a compulsory basis. I would not share the archaic notion that we have to compel people to live together even though the manner in which they live their lives together leaves a lot to be desired.

Senator Ferris made a very important point. Where there are two people living in the same house, even though in the eyes of the law they are not separated, the maintenance order is called into question because they still live under the one roof. This is an anomaly I have come across recently. Senator Ferris mentioned to me before that he has come across cases in which the legal and social welfare systems have failed to come to grips with this lack of union, where the dwelling place still exists but, in effect, the marriage does not. The fact that proceedings for restitution of conjugal rights have not taken place here for 20 years is sufficient evidence that they have outlived their usefulness. As the Minister explained, the relevant legal provision was eliminated in England in 1970. As far as I can recall the provisions of that law were not invoked since 1844.

The family law position obtaining here warrants attention, more support, mediation and conciliation in order to bring to a conclusion marriages that no longer exist or bring about reconciliation. This should be done by offering support services rather than enacting laws compelling people to live together even though in effect their marriages are at an end.

As Minister of State at the Department of Justice, Senator Fennell was instrumental in initiating a mediation or conciliation service offering some support to married couples experiencing difficulty. This is the sort of support service I hope the Minister and his Department will expand thus providing people with adequate opportunities and support on a voluntary rather than compulsory basis.

I welcome the Bill. Though short, it is necessary in order to update the law in this matter.

It goes without saying that this Bill is welcome. If I may be permitted, it is worth placing its provisions in context. Like what used to be the law in criminal conversation — which is now extinct as well — this sort of law is a very interesting reflection on what are much flaunted in this country as traditional values. There is an image portrayed by the moralists in our society of a society on the brink of collapse, in total decay, because all of what we understood to be traditional values were under assault; the family was under assault.

When one looks at the attitude of this much hankered-after traditional value society one finds inherent in it a series of laws and prohibitions, notwithstanding what Senator Murphy may say, which were offensive not only to women but constituted an extremely narrow and cruel definion of what a family ought to aspire to being. It is quite ludicrous that the law would attempt to force people to live together simply because the law or society thought it was a good thing to do. It is quite ludicrous that a wife should ever have been, or still continue to be in some ways, treated as the property of her husband, as a thing. It needs to be said that there is a considerable carry-over of that sort of value in a lot of male attitudes, in a lot of male conversation, in a lot of the sort of literature that men consume in the page three syndrome of some of the less intellectual British newspapers — an attitude of men towards women which is one of possession, of ownership, of subjugation, of control. Because those sorts of philosophical attitudes run so deeply, it is no real excuse to say there is discrimination against men too. It is no real excuse to say that the problems within marriage are related to both partners in a marriage. I have never understood this analysis — it applies to any minority or deprived group — that apparently the discrimination against the larger group, or the victims of the greater discrimination, somehow can be excused by saying there was a bit of misbehaviour on the other side or on the part of the other party also.

It is the most awfully over-used cliché to say that two wrongs do not make a right. The fact that some women perhaps do not play their rightful part in marriage or that other things happen which are not the fault of men does not in any way detract from the fact that we are still a male dominated society, based on male values, with assumptions about the role of men and women in society that run far deeper into the male subconscious than many of us are prepared to admit. These little glimmers of wisdom which surface from time to time when anachronistic laws are repealed underline the depths of society's conviction that there was an order in society which was based on the primacy of the male sex. The law in some ways encapsulates the values. It is the more extreme manifestations only of that set of presumptions of dominance that are now being dealt with. The fundamental, philosophical acceptance of the absolute equality of the sexes is a long way from being accepted. For instance it is not accepted at all in my Church and will not, in my lifetime, be accepted in my Church, though my Church will waffle on for ever about the fact that its discriminations against women are not in any way discriminatory — that they are somehow different, because my Church's view of what God said happens to keep women in a secondary role.

I say all of that because what is sometimes described as extremist feminism was mentioned by Senator Murphy. The truth is that women have suffered economically, socially, physically and emotionally from a one-sided view of society. The little efforts we make now — and we are inclined to pat ourselves on the back for what we do — are a long way from completing the task of the elimination of such discrimination. There is a succession of practices that still continue. For instance, the Minister is quite well disposed and his Bill is quite progressive but he could talk to his colleagues in the Department of Social Welfare about the attitude of that Department towards women who are deserted. The most painfully detailed requirements to prove desertion, the most painfully intimate questions are asked often by insensitive officials, both in terms of welfare benefit and in terms of supplementary welfare benefit. The attitudes that are aspired to in legislation are very often totally absent in administrative practice. Again, the inequality is reflected there. It is no excuse to say that men sometimes suffer from these things too. The truth is that, by and large, the people who have to go through these painful chores with the Department of Social Welfare are women and the fact that areas of equality in terms of income under social welfare are enforced upon us from outside the country reflects particularly poorly on us.

That brings me to the fundamental deficiency of addressing the problems of inequality within marriage exclusively in terms of liberal legislation. The fundamental problem that has to be addressed if there is to be equality within marriage is the economic dependence of many women and that reflects itself in salary, in property ownership, unemployment benefit, unemployment assistance and many areas like that. Even where there is a postulation of equality, there is no such practice built in.

The fact is that a dependent spouse is entitled to a smaller unemployment assistance income than the spouse, who tends predominently to be male. If a couple separate the husband is left with the single person's allowance, the wife who is dependent on him gets an allowance equivalent to about £20 a week. That is quite extraordinary. She has to live on her own, she gets the children's allowance as well but what she gets is substantially less than what the husband who has to live on his own will get. There is no logical or rational justification for that. It is fundamentally a view of the order of our society. We are a society where value by and large is measured in terms of price and in terms of price women are undervalued within the philosophical presumptions of our society.

This sort of Bill also invites us to reflect on the sort of society we are. We are a society much given to long speeches about traditional values, the sanctity of the family and so forth. We are a society much given to talking about ourselves as being somewhat superior to what we, in our more extreme flights of fancy, tend to describe as pagan Europe. But the truth is, of course — that we are worse at supporting our families in terms of hard cash, of support services, of housing, in terms of all of those things than any other country in western or northern Europe.

I know the argument can always be made that we are a poorer country but given that we regard these as the central values of our society it would be much easier to accept these central values of our society if our child benefits, our family income supports, housing, advice and all those things were seen to be part of an overall social strategy to sustain the family which we regard as the bedrock of society.

In fact, the opposite is the case. We have a structure in terms of welfare and housing, accentuated by the combined decisions of Fianna Fáil and Fine Gael in recent times, which undermines the capacity of families to survive together, which deprives them of income support, which deprives them of hospital support, which will deprive them of educational support, which will deprive them of a whole series of advice and assistance that a family under stress needs and we do that in the interests of what we regard as an acceptable economic philosophy.

The whole economic philosophy this country accepts attacks and undermines the family far more than any so-called dangerous radical like myself or Senator Norris or Senator Robinson who are often lambasted for undermining all our traditional values could ever do. If I could undermine Irish conservatism as effectively as I am somehow accused of, I would be delighted to do so. Unfortunately I cannot. The economic philosophy pursued by this Government and advocated by the major Opposition party will undermine many very fundamental Irish values far more than anything I could every say.

I welcome the Bill as far as it goes. However, I was a bit disturbed by the remarks attributed to the Minister that he did not have much in the line of proposals coming up in the area of dealing with the problem of marital breakdown. This was attributed to him in the other House: it is a bit difficult talking about the other House when we are in the other House, but the Minister knows what I mean.

I do not. I would like to know who is supposed to have made these comments about me or to me.

I shall have to dig up the Official Report.

Perhaps the Senator would like to tell me who is supposed to have made these comments about me.

I do not want to get involved and the Leas-Chathaoirleach will not let me.

They are not true.

I am very relieved to hear the Minister has proposals coming up in the area of judicial separation because I understood he had said he had not. If he has proposals coming up, I am glad to hear it.

Would the Senator like to tell me who made these comments, even if they are untrue?

An Leas-Chathaoirleach

The Senator is entitled to make his contribution without interruption. The Chair is the sole arbiter.

I am not a lawyer and, incidentally, I want to repeat something I have said frequently here. I do not think that Members of either House of the Oireachtas should apologise for the fact that they are not lawyers. I have a very simple view of this. If legislation cannot be presented to the Houses of the Oireachtas in a way which makes sense to the Members of the Oireachtas, it should not be legislation. Legislation is the fundamental function of the Oireachtas and legislation should, therefore, be intelligible to the Members of the Oireachtas and they should not have to apologise because they are not specialists in the writing of law. The writing of law is a different thing from the process of development of legislation. Perhaps the Minister would have a word with the parliamentary draftsman about the fact that simple English is preferable to complicated English and it does not necessarily make the law any less precise. I would look forward to that in what I am sure will be a large body of legislation from his Department.

Since we are talking about the question of conjugal rights and of families, I want to say that one area where the Minister could be very constructive would be in the area of the enforcement of maintenance orders; since he mentioned that in his speech I feel free to do so here. People I know who have had maintenance orders made against their husbands will tell you that there is a certain stage you can get to and after that enforcement becomes virtually impossible. There is a reluctance on the part of the gardaí to become involved and I can understand that but there is no point in getting involved in a whole plethora of legislation to do with the rights of spouses in marriages where there are difficulties if these rights cannot be enforced.

Finally, and this is totally outside the scope of the Bill, I would like to ask the Minister, since we are talking about conjugal rights, if he could think about another area of society which is under his aegis, that is the whole possibility of conjugal visits for the 2,000 or 3,000 people who populate our prisons at any given time. It would do more than most things to sustain those families over periods of pain and suffering. It is not a ludicrous idea. Even in illiberal societies like the United States the idea has been accepted and implemented.

An Leas-Chathaoirleach

A passing reference to something completely outside the scope of the Bill may be all right but the Chair would not like to see it develop.

I am finished with that point. All I was going to say was that it would be one way to sustain the marriages of those who have to suffer the separation of imprisonment. The Minister has a better reputation or a better record in the area of prison reform than perhaps he would be given credit for; I will say that. I know what the Minister did when he was Minister for Justice and it was far more than many of those did who would perhaps talk more liberally. He deserves credit for it and perhaps his reforming zeal might move in that direction.

I may wander just a little bit because I did not intend to speak this morning but I feel I simply must respond to some things my distinguished colleagues have said. Or course, I approve of the Bill. It takes us back to a period in which women were simply property or chattels and this is a diminishing of the human dignity of individuals. I very much welcome the Bill. It is long overdue and I congratulate the Minister on introducing it. It is short, specific legislation, a businesslike thing which we all must welcome.

However, I would like to take issue with some of the things I have heard here this morning from my colleagues. I refer particularly to the putting in context of this Bill and this notion that there must be more support in cases of marital breakdown, more mediation, more money spent, more taxation and I tell you why I would withdraw my assent from this. It is a matter in which the Minister either has taken an interest or has ignored perhaps in the past but will certainly in the New Year be required to take an interest in it, that is, the question of the recognition of the status of relationships between persons of the same sex. The Minister, I am sure, is well aware of the quotation from the American Revolution, "No taxation without representation." As far as I am concerned as a single man, no taxation without participation. I was greatly distressed to read the report of many committees of inquiry established by the State, including the report of the Oireachtas Joint Committee on Marriage Breakdown because I support many women's issues and it was a cause of great disappointment to me that Members of this House, including lawyers, saw fit to sign that document which started off on the premise that persons of the same sex should never have their relationships recognised. The mis-titled Law Reform Commission in their submissions made very much the same point.

I do not wish to subvert the family because I regard myself as belonging to it in some odd or remote way. Unlike Topsey, I do not "specs I growed." I emerged from a family and it is not my intention to subvert the family. It is not my desire either to be taxed to the hilt in order to support a framework which is the bedrock of society, the expression of normality, which is part of the divine intention but in which I am specifically and deliberately disbarred from participating. With all these things assumed in its favour the heterosexual family unit ought to be able to work without my support financially as a single person. I am in the 58 per cent tax category. I do not wish to be mean, cheese-paring or niggardly but the Minister will understand that in times of financial stringency it is very galling to be expected to support financially institutions from which one is deprived of participation, with the apparent approval and consent of the women's movement. I look for some support from the women on this very important matter. They signed these documents. I hope they will be educated into refusing to sign any such offensive material in future.

I am extremely glad that the last speaker clearly indicated to the House at the outset that he was going to speak outside the scope of the Bill. I would like to thank the Senators for their comments on this short Bill. The notion that a court can order a person to live with his or her spouse is clearly a relic of bygone days and one we can well do without. Of course, I am happy that no one in this House will be sorry to see it go. I thank Senators for their contributions. I am not going to do what is done every Sunday evening and give the award for the man of the match or the woman of the match. It was an interesting and worthwhile debate.

I am sorry Senator Brendan Ryan is not in the House because he would enjoy what I am going to say. It is a great pity he did not go to the trouble of making sure of what was and what was not attributed to me before he made certain assertions here today because as recent as 24 June, during the course of an address by me at the launching of the Family Lawyers Association in Blackhall Place under the most capable chairmanship of a former and distinguished Member of this House, Catherine McGuinness, I said — and I will repeat because it is necessary to repeat it — that my proposals for new legislation in regard to judicial separation are advanced. I said that the new grounds for a decree of judicial separation — the present grounds are adultery, cruelty and unnatural practices — will include desertion and separation for a specific period and such other grounds as may appear desirable either as additional grounds or in substitution for an existing ground, i.e., unnatural practices, following full consideration of the matter. I said also that I am having examined the question of giving the court in separation proceedings powers to make order for the secured maintenance, lump sum payments and orders in relation to property owned by the spouses. Proposals for more informed hearings and for the use of counselling and mediation services are also being considered in connection with this legislation. That was a very positive statement and it attracted great attention by the media. To the best of my knowledge it was printed verbatim in at least two of the national newspapers, The Irish Times and the Cork Examiner. I fail to understand how Senator Ryan could believe, if he had done any research whatsoever before making his contribution here this morning, that I had any intention other than those I spelled out as recently as a couple of weeks ago. This is a totally non-political matter and it is important that contributions to it should be worthwhile ones and stances should be not accredited to a person such as myself which are totally untrue.

I recognise that Senator Robinson has a very genuine interest in this area. I accept and respect that. We have differed in the past in different fora but always in a dignified way. I have always respected her viewpoints even though at times I could not accept them but that is as it should be. She inquired about the position regarding the Government for conciliation services. As Senators will be aware, a pilot scheme of conciliation between spouses whose marriages have broken down was launched in July 1986 and is to be evaluated after three years. It is too early as of yet to say what should be done in future in this matter. I intend to wait until the pilot scheme has been evaluated before making recommendations to the Government on the matter.

I want to reply to a number of points raised by Senator Fennell. I will deal at a later stage with the political content of her contribution. I will deal initially with the more serious part of it and gently tease her on the political points she made before I conclude. Senator Fennell inquired why other items dealt with in the Law Reform Commission's report have not been included in this Bill. The proposal to abolish proceedings for the restitution of conjugal rights is a straightforward and a non-contentious one and can be easily implemented in one section of a Bill. As I said earlier, the original intention was to have this provision included with proposals in the other Bill — the Family Law (Protection of Spouses and Children) (Amendment) Bill which we will probably get an opportunity to move on to this morning. However, this did not prove technically possible. The remaining recommendations of the Law Reform Commission's report, eight in all, are related to each other and are considerably more complex. They are being examined in my Department along with other proposals in the area of family law. Rather than hold this proposal over until another more suitable legislative vehicle came before the House, the Government on my recommendation decided to give it a Bill to itself.

I could be forgiven for reminding Senators that the Bill we are now discussing and which everybody says something should have been done about a long time ago rested under the political wings of Senator Fennell when she had the very comfortable position of a Minister of State in the Department of Justice for three years but when she did nothing about it.

I prepared a lot of the legislation you will be bringing forward.

As the record shows the Senator did nothing about it for three years. I was not going to say that but because the Senator was inclined to be political, as she was in the beginning, it is a fact that should be noted. I will give the Senator credit for everything she did during her term of office as Minister of State with responsibility in this area. I will give everybody credit where it is due irrespective of what party they belong to. To the best of my recollection, the only legislation that reached finality in the Houses of the Oireachtas that could be seen clearly to have been handled wholly and totally by Senator Fennell was the Domicile and Recognition of Foreign Divorces Act, 1986. She introduced in another place, the Status of Children Bill but that has not reached finality within the Oireachtas to date.

On a point of information, there was the Irish Nationality and Citizenship Bill, 1985, which the Minister referred to last week when citizenship was being granted to some Vietnamese people. The Minister will find that is correct if he checks the record which is what he should do before he speaks in the tone that he does.

Of course, the Senator must appreciate that I am dealing specifically with measures brought to their finality by her, totally within the family law area. I am not taking away from the fact that the Senator was involved in other matters.

There were other areas.

I hope that my output in this area will be somewhat more extensive by the time my term of office, without a Minister of State, is complete.

This is a good Bill and I am glad there is support for it. I will take up the point made by Senator Murphy about the inadequacy of the Explanatory Memorandum. I have not got a copy of it but if that type of information, which is necessary, can be improved on, I am prepared to do so. I am thankful to the House for the general welcome which they gave the Bill and it is my intention to bring forward as much legislation as possible within the shortest possible time to this House, particularly legislation with a non-political content and reforming legislation for which we all readily recognise there is a genuine need. I commend the Bill to the House.

I apologise to the Minister for misunderstanding him and misrepresenting him. I was poorly informed and I did not recall the statement. I now recall it and I fully accept that the Minister made those proposals and I want to apologise to the Minister.

I graciously accept, but I am not looking for an apology and the Senator should know that. I should also tell him about another small correction in case it may be broadcast on radio tonight or be in tomorrow morning's papers. The Senator talked about certain rights for people who are temporarily being denied their freedom of movement. There are not 3,000 people in our prison system.

Question put and agreed to.
Bill put through Committee, reported without amendment, received for final consideration and passed.
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