I move: "That the Bill be now read a Second Time."
At the outset I would like to thank the Government for allowing us to take this Fine Gael Private Members' Bill in Government time and also for taking Second Stage so soon after the Bill had completed its passage through the Dáil. There must be very many of us who felt that this much-needed piece of reforming legislation would never reach this House, let alone see the light of day but we can now give this proposed legislation a very genuine welcome indeed.
That we have reached this Stage today reflects credit on many people, but in particular on Deputy Alan Shatter, for this most emphatically is his Bill. In many ways it is the culmination of a decade of reforming and crusading work by him in the whole field of family law reform. While this Bill may not go as far as he would like, or as I would like or indeed as my party would like, it does mark a genuine and historic milestone in our approach to family law reform. It marks the beginning, I hope, of a new era when questions such as this can be discussed on their mertis, free from party political point-scoring, free from accusations of bad faith, free from manipulation by outside agencies and free, most of all, to seek to create legislation which is designed to serve the common good.
In praising Deputy Shatter, I must also give credit to the Minister for Justice, Deputy Collins, I said here last week that he has been a good Minister for Justice with an impressive record of legislation so far in this Parliament. Both he and Deputy Shatter have shown in this Bill an ability to compromise which reflects credit on them both.
I also give credit to the members of the Dáil committee who spent so much time and effort processing this Bill through Committee Stage. As we know, it is in Committee that so much of the real work of the Oireachtas is done. That is certainly true of this Bill which has been substantially improved in Committee and I would hope that these improvements have not yet finished.
I would like at the outset to say a word about the process which has brought us to this point today. This is the first Private Members' Bill to be enacted — hopefully it will be enacted — in this House in 30 years. It is only the sixth such Bill in the 50-year lifetime of Seanad Éireann. For the record, the other five Bills were the Meath Hospital Bill, 1950; the Agricultural Workers (Weekly Half-Holidays) Act, 1951; the Local Government (Sanitary Services) Joint Burial Boards' Act, 1952; the Friendly Societies (Amendment) Act, 1953 and the Law Reform (Personal Injuries) Act, 1958. These are the five Bills which preceded this legislation, and I can see that while each one in its own way was important the Bill before us today is easily the most significant and substantial piece of legislation of its type ever to come before the House. This Bill, in fact, brings a section of Irish family law from the 19th century up to the end of the 20th century. This is certainly a most significant piece of Private Members' legislation.
The very fact that we have reached this stage today should be a cause of some celebration for all of us who want to see Parliament working as fully as possible. Clearly, Government business must take precedence and must dominate the life and the timetable of Parliament. No one would want it otherwise, but there is a place for Private Members' Bills. If taken in the right spirit they enrich the life and the workings of the Oireachtas. They add to, rather than threaten, the position of the Government of the day. They can be seen as a sign of a Government that is confident rather than a Government that is fearful. I feel there are two sets of winners here today. First, the very many people who have waited so long, too long, for the relief this Bill will bring are the real winners but this House and our Parliamentary process is a winner, too.
The Bill before us today does not go as far as many of us would wish. This is due in part to the fact that as a Private Members' Bill it cannot constitute a charge on the Exchequer. Thus, it cannot implement one of the major recommendations of the Oireachtas Joint Committee on Marriage Breakdown that there should be established a unified family court structure to hear and determine all family law disputes between spouses that require judicial resolution. The committee recommended that the current overlapping and fragmentary court jurisdiction exercised by the District, Circuit and High Courts should be transferred to a single court, staffed by judges with a particular expertise in family law matters and who would have the back-up of the necessary welfare services. I hope after this Bill is passed the Minister will turn his attention to this recommendation, if he has not already done so, and also that the quality of people appointed as judges in such courts be given attention. Not all judges are temperamentally suited to family law. Many are not suited at all. I believe far greater care should be given to choosing the people who will act in this difficult and delicate area. Indeed, I would suggest the need to learn from other jurisdictions where special training courses are expected of those who judge in family courts.
Marital breakdown is an ever-increasing and growing problem in our society but the full extent of the problem is unknown. Comprehensive and detailed statistics on marriage breakdown are not available to us in Ireland. In fact, the 1986 census was the first census which allowed people to accurately describe their marital status. The figures from the 1986 census show that altogether 37,245 people said that they were separated. This figure includes people who described their marital status as "deserted", "marriage annulled", "legally separated", "other separated" or "divorced in a different country". Of these five categories the most worrying by far is the 13,062 people who described their marital status as "other separated." These are people whose marriges have completely broken down and are living apart from their spouses but are not legally separated. The Bill before us today is, to a considerable extent, aimed at them.
The basic purpose of this Bill is to minimise the hardship and distress that can occur when marriages break down. It attempts to ameliorate rather than exacerbate marital conflict. It seems to place a duty on lawyers consulted about a marital problem to ensure that all avenues have been explored by a distressed spouse before court proceedings are commenced. It imposes for the first time in our law an obligation on solicitors to provide information about marriage guidance services that are available and, where marriage guidance is not a practical possibility, it imposes an obligation on them to provide information about the availability of mediation services.
It is a measure which is designed to encourage spouses whose marriges have broken down to reach a civilised agreement about their future arrangements without the need of court proceedings where that is at all possible. It confers new comprehensive powers on the courts to make financial lump sum and property transfer orders to provide additional protection, in particular for dependent wives and children, by enabling the court to give them a far greater degree of security than they can obtain at present. By conferring a jurisdiction on the Circuit Family Court to resolve all outstanding problems that arise upon a marriage breaking down in one court action, the Bill will reduce the cost of family law litigation and will simplify much of the documentation required to commence court proceedings from other types of court proceedings. The prohibition on the wearing of wigs and gowns and-provision to enable judges to obtain independent welfare reports on children will make family law court proceedings a less distressing experience for those who look to the law to resolve their difficulties.
As I said, marital breakdown is an ever increasing problem in our society. Prior to the 1970s the law relating to marital breakdown had remained virtually unchanged for over a century. In 1976 the first significant reform took place with the Family Law (Maintenance of Spouses and Children) Act of that year but the first real breakthrough came in 1983 with the establishment of the Oireachtas Joint Committee on Marriage Breakdown. For the first time since the foundation of the State this committee conducted a detailed examination of our marital laws, especially laws dealing with marital breakdown. It was a major educational experience for many of those who participated. It did help to change people's attitudes. It focused public attention on the issue and it allowed the debate to be widened, not always in the most amicable of ways but at least the question was, in an informed way, put very fully on the public agenda.
In its report published in April 1985, the committee acknowledged the failure of the Oireachtas to tackle this area and it emphasised the need for reform. It proposed comprehensive and radical reform on our separation laws and of the court system which administers them. Many of the recommendations of that report are implemented in the Bill before us today. As things now stand under current legislation the only grounds upon which a decree of separation can currently be granted is on proof of adultery, cruelty or what is known as unnatural practices. The current law provides no legal remedy for many spouses whose marriges have totally collapsed and who need legal intervention to resolve the consequences of such collapse.
In separation proceedings the courts currently cannot determine property disputes between spouses or disputes relating to the guardianship or custody of children. At no time since the foundation of the State has legislation been introduced into the Oireachtas either to expressly state the grounds upon which a decree of separation can be obtained or to expand, modify or reform the grounds upon which such a decree can be granted. As a result, the current law provides no legal remedy for many spouses whose marriages have totally collapsed and who require legal intervention to resolve the consequences of such collapse.
At the present time, if the court grants a decree of separation it has ancillary powers to make an alimony order to require a husband against whom a decree of separation is being made to pay alimony for the support of his wife. It may also under the provisions of section 18 (1) of the Guardianship of Infants Act, 1964 make a declaration that the spouse by reason of whose conduct the decree is made is unfit to have custody of any children.
A decree of separation automatically deprives the guilty spouses of his or her legal right to a share of the estate of the other, either as a legal right or on intestacy under the Succession Act of 1965. There are no other statutory powers conferred on the courts to make ancillary orders following the making of decrees of separation.
At the present time, the courts in separation proceedings cannot determine property disputes between spouses or disputes concerning the guardianship of children. At the present time, the courts in separation proceedings cannot make maintenance orders for the support of a dependent husband or dependent children or orders to protect the family home or permit its sale. At the present time in separation proceedings the courts cannot make barring orders to provide protection for a spouse at risk of violence, or property transfer orders to provide security for a spouse who requires such security.
The result of these restrictions is that in many cases in order to circumvent the limited jurisdiction conferred on the courts when determining separation proceedings, the practice has grown up in recent years of estranged spouses instituting a variety of other court actions at the same time as the bringing of separation proceedings so that all issues that have to be resolved between them which arise from a marital conflict can be dealt with in a single court hearing. The consequence of this is that the husband and wife whose marriage has broken down can find themselves embroiled in two or three different sets of court proceedings and incur a great deal of unnecessary legal expense and hassle, inordinate delay and unnecessary emotional exposure.
The Oireachtas Joint Committee on Marriage Breakdown discovered that there was almost universal agreement right across the religious, social and political spectrum that our separation laws should be reformed and that the current narrow grounds on which a decree of separation could be granted should be replaced with the one overall ground of proof of irretrievable marital breakdown. The committee recognised that the current grounds for separation which require proof of the committal of matrimonial offence maximised conflict between estranged spouses, discouraged instead of encouraged voluntary reconciliation, and effectively sabotaged the possibility of future co-operation between the estranged couple.
The report of the Oireachtas Joint Committee recognised that the purpose of separation proceedings was to provide the means whereby the parties to a broken marriage could rearrange their lives with a minimum of bitterness and recrimination. The committee recommended that all barriers to reconciliation contained in current law should be removed, and this is reflected in the provisions contained in the Bill. They also recommended that following the granting of a decree of separation, the courts should have comprehensive powers to make maintenance orders, guardianship, custody and access orders concerning the children, lump sum payment orders, orders relating to the family home and other family property and also orders to provide protection for a spouse at risk of violence. All of these recommendations are implemented in the provisions of the Bill.
At this stage I should like to go through the Bill before concluding the main points in it. Part I of the Bill deals with the basis upon which a decree of separation can be granted and related matters. Section 1 of the Bill is simply a definition of what is meant by the court having jurisdiction.
Section 2 proved to be one of the most contentious sections of the Bill when it was debated in the other House and during its Committee Stage. It outlines the six grounds upon which a spouse can apply for a decree of judicial separation. This area caused great difficulty and was the subject of much of the discussion which finally led to a compromise which was acceptable to all parties. Basically, this section provides comprehensive grounds on which a decree of separation can be granted. Section 2 (1) (f) defines the concept of marital breakdown: that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application. This concept of marital breakdown rather than irretrievable breakdown met with general approval of all the parties involved in the lengthy debate before the Bill reached this House. I believe it meets the main case made by both sides. If accepted it takes away the need for adversarial strife which was so much in the minds of all sides in framing this particular section.
Section 3 provides that the court will grant a decree of judicial separation in respect of the spouses concerned if it is satisfied that one of the grounds referred to in section 2 (1), which have been relied on by the applicant, have been proved on the balance of probabilities. Subsection (2) states that where there are dependent children of the family the court shall not grant a decree of judicial separation until it is satisfied that such provision has been made or, intends by order upon the granting of the decree, to make such provision for the welfare of these children. This is a key section in the Bill. The provisions there are designed to ensure the protection of the welfare of the children in resolving any dispute. This section is linked with sections 11 and 16.
Section 4 of the Bill contains a provision to ensure that if parties to a marriage attempt a reconciliation after marital difficulties have occurred which could give rise to one of them seeking a decree of separation, then that attempt at reconciliation does not prevent a spouse from seeking a decree if the reconciliation does not prove successful. Under the current law if a husband or wife attempts a reconciliation and if the reconciliation does not prove successful, the spouse who could have brought separation proceedings may find that he or she is unable to do so due to their being held to have condoned the matrimonial offence previously committed by the other spouse. In effect, the current law frequently acts as a barrier to conciliation in circumstances where reconciliation may prove possible.
For example, at present if a wife learns that her husband has committed adultery and, upon his promising not to commit adultery again, forgives him and the couple resumes normal marital relations, then if matters do not work out the wife may find that because she attempted to resolve the marital difficulties she is excluded from seeking a decree of separation. Many people feel — and I agree — that the current law in this case militates against reconciliation. The provisions of section 4 (2) of the Bill are designed to remove obstacles to reconciliation inherent in the current law.
Section 5 and 6 contain provisions to ensure that court proceedings between couples are avoided where possible. This section requires a solicitor consulted about a marital difficulty to advise the spouse as to the availability of marriage counselling where there is a possibility of the marital problems being resolved. Where there is no such possibility a spouse must be advised as to how to effect a separation without bringing court proceedings. In this context a solicitor is required to furnish information to a spouse as to the availability of mediation services and the possibility of resolving the consequences of marital breakdown by the conclusion of a separation deed or written separation agreement. At this point there is no harm in pointing out that the existing mediation services have been successful, but it would probably be the view of all sides in this House that this service could very well do with being strengthened.
Section 7 of the Bill provides for the adjournment of proceedings at any time to give the spouses an opportunity, if they both so wish, to consider a reconciliation, with or without a third party, or to consider agreement on separation. This, again, is a very important section because it means that if a couple find themselves, as may happen today, on a legal treadmill there is the possibility of getting off it.
Section 8 provides that following the granting of a decree of separation the parties to a marriage are no longer obliged to reside together.
Section 9 abolishes the decree of divorce a mensa et thoro after the commencement of this Bill. Part II of the Bill contains provisions to enable the courts to make comprehensive ancillary orders following the granting of a decree of separation.
Section 10 is a defining section, defining the terms such as "conveyance", "dependent child of the family", "family home", "chattels" and so forth.
Section 11 gives powers to the court in separation proceedings where necessary to make orders in respect of barring or protection orders to provide protection for a spouse at risk of violence. It gives custody orders or access orders concerning children and orders for protection of the family home and household chattels.
Section 12 is concerned with the making of applications for preliminary orders. Section 13 is an important section. It gives the court power, when application is made for judicial separation, to make an order for maintenance pending suit, that is, an order requiring either spouse to make to the other spouse periodical payments for the support of the other spouse and of dependent children of the family pending the separation trial. Clearly, this is designed to meet a situation at present where frequently there can be very long delays in such cases.
Section 14 lists the various periodical payments and lump sum orders the court can make following the granting of a decree of separation. Section 15 lists the property adjustment orders the court can make following the granting of a decree of separation.
Section 16 gives the court power to make orders determining which spouse may occupy the family home to the exclusion of the other spouse. This section can determine the sale of the family home. It can determine property disputes under the Married Women's Status Act, 1957, orders under the Family Home Protection Act, 1976 and barring orders under the Family Law (Protection of Spouses and Children) Act, 1981. It can also determine orders under the Partition Acts of 1868 and 1876 in relation to the sale of property and orders under the Guardianship of Infants Act 1964 concerning any dependent child of the family.
Section 17 moves into the area of succession rights. This, again, is an important section because it has provisions to ensure that dependent spouses will retain inheritance rights following the granting of a separation decree. These are listed in section 17, where the court is satisfied "that adequate and reasonable provision of a permanent nature has been made to provide for the future security of the spouse whose succession rights are in question...". There is one exception where a spouse can lose inheritance rights and this is covered in section 20 (2) (i). Those rights are protected in section 17.
Section 18 is an order for the sale of property. It has provisions to enable the court to order a sale of property in circumstances where arrears may have accrued or where there is a need for a lump sum payment. Under this section the court can order that property be disposed of to meet either of these two needs.
Section 19 deals with additional family home jurisdiction. This section is inter-linked with section 16 (a) and (b). What it means really is that frequently — in fact almost always — after a separation generally it is not possible for a couple to reside together. In section 19 the court "shall in exercising such jurisdiction have regard to the welfare of the family as a whole and in particular shall take into consideration... that proper and secure accommodation should, where practicable, be provided for a dependent spouse and any dependent child of the family ...".
The details of section 19 are greatly elaborated in section 20 — the conditions relating to the circumstances in which the court will decide are elaborated in great detail, dealing both with the spouse and with the position of the child. Again, these sections provide one of the key parts of the Bill.
Section 21 deals with restrospective maintenance orders. This is a new power. It will ensure that courts can have maintenance orders backdated. Again, this can mean additional protection for a dependent spouse, especially if there has been a delay or a draggging of feet by the lawyers on one side or the other or if there has been difficulty in coming to a resolution, so that there now exists the possibility of backdated retrospective maintenance orders.
Section 22 deals with the variation and the discharge of financial property orders. This is a usual type of provision which simply takes account of changing circumstances. Section 23 on child maintenance is largely a technical section.
Section 24 is quite an important section because under this section payments can be made through the District Court office to ensure the keeping of accurate records. This section will apply automatically unless alternative arrangements are made, though in practice about half of the payments under existing law are made by bankers order.
Section 25 is largely a technical section. Section 26 is in acccordance with current law and states that payments must be made without the deduction of income tax. Section 27 is in line with current law and deals with the position of the Defence Forces. Section 28 is a technical section.
Section 29 is an important section. It is designed to ensure that assets cannot be dissipated or transferred to avoid payments. It is important because it gives the Bill real teeth. It ensures that the court can look behind transactions and, if the court is satisfied that there has been any attempt to dissipate assets or to transfer them in any improper way, this can be dealt with.
Part III of the Bill deals with court jurisdiction. Section 30 defines "Family law proceedings" in relation to a court. As stated already, currently separation proceedings can be commenced in either the High Court or the Circuit Court, although the majority of such cases at present are brought to the Circuit Court. Very often the Circuit Court hears family law cases on the same day as it hears criminal prosecutions, pub licensing applications, running down actions and other civil actions. As a result, distressed wives and husbands are often left hanging around the courts while other legal proceedings are given precedence.
The Bill expressly provides that the Circuit Court shall hear initially all judicial separation proceedings and that when it is dealing with such proceedings the Circuit Court is to be known as the Circuit Family Court. It also provides that judicial separation proceedings should be heard on separate days set aside for the hearing of such proceedings and should not be intermingled with other types of court actions.
As an alternative, it is providing that the Circuit Court sitting as the Circuit Family Court shall hear judicial separation proceedings at a separate venue to the venue in which other court proceedings are heard. The Bill also provides that all existing powers vested in the Circuit Court to hear and to determine family law cases shall be transferred to the Circuit Family Court and heard and dealt with by it. Matters relating to the Circuit Court jurisdiction are dealt with in section 31 and 32 of this Bill.
Section 33 provides for a degree of informality at the hearing of family law procedings. This is based, again, on a recommendation by the Oireachtas Joint Committee on Marriage Breakdown which — and I think this would be very much in line with current thinking — emphasised the need to reduce the adversarial element inherent in the resolution of family disputes and to provide a less formal type of adjudication process for their resolution. Where legal rights are in contest it is clear it is essential to ensure that justice is properly administered. Acccordingly, it is not possible to make such proceedings totally informal, but to deal with this issue the Bill provides that family law proceedings in the District, Circuit or High Courts shall be as informal as is practicable and consistent with the administration of justice. These matters are dealt with under the provisions of section 33 and 45 of the Bill.
The Bill also provides that neither judges hearing family law proceedings nor barristers appearing before them should wear wigs or gowns. This provision is similar to provisions enacted in the legislation of a number of other countries in recent years such as Australia and New Zealand. To ensure that the anonymity of couples whose marriages have broken down is preserved, provision is also made for all proceedings brought under the Bill to be heard in camera— section 34.
Section 35 gives the court discretion regarding the costs of the proceedings. Section 36 is technical. It is designed to simplify legal proceedings, as is section 37 also a technical change.
Part IV of the Bill deals with a number of consequential amendments of existing family law legislation which are required to provide for a consistent legal approach in the area of matrimonial law. Section 38 amends the Family Law (Maintenance of Spouses and Children) Act, 1976, regarding maintenance orders. Section 39 is a technical amendment.
Section 40 is an important section. It protects the welfare of the children. It allows the court to get independent reports from outside experts. Typically, up until now when experts' reports are brought into court these reports are usually partisan. They have been commissioned by one side or other, and, while the competence of the experts is not brought into question, the questions asked and the way in which the agenda is set may very well make these reports less than fully impartial. Under this section the courts can seek independent advice. Under section 40 (5):
The court may, of its own motion or on an application by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the infant.
Section 41 is on the same topic, dealing with the welfare of the children. Subsection (1) is worth quoting:
Where the court grants a decree of judicial separation it may declare either spouse to be unfit to have custody of any dependent child of the family.
The importance of this arises, and may currently be very topical, where a parent has been deemed unfit because there may be strong reason to believe that that parent has been subjecting the child to sexual abuse. Under present law it is possible that if the spouse who has been given custody in a situation where the other spouse has been deemed unfit to be a guardian should die, the infant or child could revert to the care of the other spouse. Under this section if the court is satisfied about allegations of unfitness it can make other arrangements. This, I believe — and this was agreed in the other House and in Committee — was seen as an important change.
Sections 42 and 43 are technical amendments. Section 44 is slightly convoluted. It states that collusion between the spouses when applying for a judicial separation, except when an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant, or any conduct, including condonation or recrimination, shall not be a bar to the grant of a decree of judicial separation.
Section 45 comes back to a point mentioned already, that is, the simplifying of procedures, the introduction of a greater note of informality and in general taking much of the terror out of the courts as far as the hearing of these cases are concerned. Many of us would agree that the trappings of our courts do not sit well on a republican country, that many of the trappings in our courts — the wigs and the gowns and the forced formality, this need to dress up the majesty of the law in these ways — are something which we have taken perhaps too literally from an earlier régime in this country. Most of us would perhaps like to see the simplifying of procedures and the taking away of many of these outdated trappings in all our courts. Certainly, in this Bill, if and when it is passed, the family courts will have none of these trappings and these fearful symbols which are so out of place in courts of this kind.
Section 46 is simply the short title of the Bill.
This then is the Bill which we are bringing before you to-day. It is designed to meet certain very well documented needs. It is based on very detailed research and experience. It has the support of the vast majority of people inside and outside this House. Churches, caring agencies, welfare groups have all welcomed it. No significant voice or group has opposed this legislation. It is not divorce by the back door, nor is it going to open any floodgates and cause marriages to break up. What it will do is alleviate some instances of hardship; it will simplify and humanise procedures which are often outdated and less than fully human. It will make what is always a traumatic and difficult experience somewhat less traumatic and somewhat less difficult. It will eliminate unnecessary cost, it will eliminate some hassle and some expense and, most of all, it will allow very many people the opportunity to rebuild shattered lives with some hope and some decency. It is a good Bill, it is an important Bill and it gives me great pleasure to commend it to the house.