This amendment is being taken in conjunction with amendments Nos. 7, 9 and 10. The purpose of these amendments is to ensure that if the spouse wishes to opt out of joint ownership of a mobile home, that spouse must obtain independent legal advice. We provided on Committee Stage that if the spouse wants to opt out of ownership of the marital home, that spouse must obtain independent legal advice. We want to treat marital and mobile homes uniformly.
Matrimonial Home Bill, 1993: Committee Stage.
Government amendment No. 1:
In page 3, subsection (2), line 15, after "3" to insert ", 5(5)".
We accept that this is in the spirit of the Bill.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
Government amendment No. 2:
In page 4, subsection (1), between lines 6 and 7, to insert the following definitions:
"‘Land Registry', ‘registered land', ‘the Registrar', ‘Registry of Deeds', and ‘unregistered land' have the meanings assigned to them by the Act of 1964;".
The purpose of this amendment is to define the term ‘Land Registry'. As Senators are aware, there are a number of references to the Land Registry in the legislation. This is a technical provision to provide a definition of the term ‘Land Registry'.
Amendment agreed to.
I move amendment No. 3:
In page 4, subsection (1), line 11, after "land;" to add the following:
"the expression comprises in addition a dwelling in which a married couple ordinarily resided prior to the 25th of June, 1993, as their sole or principal residence and in which either spouse continued to reside on or after the 25th June, 1993 and includes any easements attached or annexed to such a dwelling and exercisable over any other land;".
As the Bill stands, the definition of a matrimonial home is a home where a married couple were residing together on 25 June 1993. Regardless of who has the legal title to the property, it will be deemed to be owned jointly. It excludes from joint ownership thousands of wives already separated or deserted who are residing in family homes owned by their husbands. This is the case under the terms of the Bill because their husbands deserted them prior to 25th June 1993. If the husband walked out of the home on 24 June 1993, the wife will not have joint ownership of the home.
In 1992 15,000 women were in receipt of deserted wife's benefit or deserted wife's allowance. If we assume that half the family homes were in joint ownership, 7,500 would be excluded under the provisions of this Bill. In making this calculation, we are not including deserted wives who do not receive allowances. Allowances are means tested, therefore anyone who is not eligible under a means test is excluded from this statistics. Therefore, the number of deserted wives excluded from benefit under the Bill is higher than 7,500. Wives whose husbands have moved out voluntarily because of extramarital relationships or wives whose husbands have left but continue to support them are not included because the husband left prior to 25 June. It is impossible to calculate the number of women who are excluded because of the definition of matrimonial home, but it is fair to estimate that the number is approximately 15,000.
My amendment will provide protection for deserted and separated wives for whom the courts have not made orders to resolve the consequences of their marriage breakdowns and where there is no written agreement in force between the husband and wife in regard to the ownership of the home. In many cases the wife did not take legal steps in regard to ownership of the home because she knew the husband could not sell the house without her consent. She continues to live in the home which is in her husband's name while he lives in another house which may be jointly owned by another person if he has entered into a second relationship. Under this Bill such a wife will not have automatic joint ownership of the original family home.
The Bill condemns to uncertainty thousand of wives who do not understand the technicalities of this Bill. The media have fairly promoted the Bill and praised the joint ownership proposals. People who were separated prior to 25 June believe that they will have joint ownership of their house and that this legislation assists them when in fact that is not the case. It is only fair, just and constitutional that wives who were separated prior to 25 June and are living in the home should have the same rights as wives separated post 25 June. I ask the Minister to accept our amendment.
This is a fairly straightforward amendment. The Minister may say that he is putting in a particular date, 25 June 1993 and he may feel it would be unwise to make it retrospective. However, I question whether it is necessary to have such a date in the Bill. I think it can be retrospective in this instance. Retrospective legislation can be difficult and cause problems but I do not think that would be the case.
A woman may be living in the house having been deserted by her husband, who may perhaps have taken up residence in some other house. This woman who is living in what she regards as the family home may find that she will not be the joint owner of the house if it is in her husband's name. That is a matter of concern.
Senator Neville mentioned a figure of about 15,000 who have been drawing deserted wife's allowance. There are vast numbers of people who are not getting that but who are getting maintenance of one type or another. It is far greater than the 15,000 mentioned; I cannot put a figure on it. I am very worried that many women will suddenly find they do not have joint ownership as they thought they would. They will be excluded in this instance from joint ownership. It is essential therefore that this amendment be supported.
I agree with what both Senator Enright and Senator Neville have said. This is complex legislation and I would be grateful for clarification from the Minister. My understanding was that women who were in the home as of 25 June would be entitled to joint ownership. I did not realise that the situation Senator Neville outlined could arise and I would certainly be concerned about it.
The Minister referred to the matter of changing the date when he addressed the House on Second Stage. He said he was aware that there were those who would advocate greater retrospectivity, as he called it, but he believed that this was as far as he could go. I would be concerned in light of what Senator Neville has said.
Most of the people in this situation would be women. Women tend to be the more vulnerable of the two spouses. I understood that if the marriage had broken down and there was a judicial separation everything would have been sorted out under the Judicial Separation Act. However, if there was not a judicial separation and they could lose the home in which they were residing as at 25 June, I would be particularly concerned. I ask the Minister to clarify that.
This involves quite a radical change in the law. We are giving half the beneficial interest in a family home to the non-owning spouse. If the home is in the name of one person, the effect of the legislation is to give half the beneficial interest to the other spouse and make them joint tenants. This means that when one dies, the other will automatically get the entire property. This obviously necessitates defining the term "matrimonial home". "Matrimonial home" is defined in the definition section as:
a dwelling in which a married couple ordinarily resided or reside on or at any time after the 25th day of June, 1993, as their sole or principal residence and includes any easements attached or annexed to such a dwelling and exercisable over any other land.
If one is defining the matrimonial home, that is, the property in which one is creating the joint interest, it must be defined by reference to some starting date and that is precisely how it is done in the legislation. It is essential that there is a starting date.
I understand the concerns which motivated Senator Neville to put down his amendment. However I do not feel that the amendment is practicable or workable. There is a limit to the extent to which legislation should reach back into the past in the fashion proposed by Senator Neville's amendment. I have strong doubts as to whether the amendment proposed would be in accordance with our Constitution. That is not just a throwaway remark. We have to consult the Attorney General in relation to all legislation and the Attorney General is very doubtful about the constitutionality of such a proposal.
I appreciate that there will be difficult cases which will be caught on the wrong side of the line. However, individuals in this situation are not without alternative remedies. As Senators are aware, under the Family Home Protection Act, the wife in the example given has the right to veto the sale of the home. Even though one of the spouses may have left the home before 25 June, it is still a family home for the purposes of family home protection. In addition to that, the wife can bring a case requesting a property adjustment order under the Judicial Separation and Family Law Reform Act, 1989.
There is a provision in section 18 of this Bill which allows people to apply to court in a summary manner to deal with all questions relating to the ownership of property. I realise what the Senators are saying but the spouses — and it generally will be the wife — in the case the Senator outlined has alternative remedies. In legislation such as this we must have a starting point somewhere and the starting point. The starting point here is by reference to the definition.
The Bill creates two categories of separated wives. One category is those who were separated prior to 25 June who do not have joint ownership of the family home and who must resort to other legislation to obtain joint ownership. The intention of the legislation is to move away from a situation where wives have to go to court to obtain ownership of the home if they are separated. Wives who are separated or deserted after 25 June will have joint ownership while wives deserted on 24 June will not. The latter will have to go to the court to obtain ownership under the Family Home Protection Act.
I understand that when that Act came into force in 1976 there was no cut off point. A wife could retrospectively obtain protection under the Family Home Protection Act. I see this legislation in the same light. It is designed to cater for women in a vulnerable situation, who are separated and do not own the home in which they are living. However, the people being excluded are the most vulnerable, that is, those who are already separated and who are living in a home while their husbands are living elsewhere and may have another home jointly owned with another person with whom they have entered into a second relationship. These people who have been separated must go to court to obtain their rights when it was the intention of this Bill to cover that situation. My amendment is designed to ensure that the Bill is fair to all separated wives, especially the most vulnerable who have been separated for some time, by giving them the right jointly to own the home in which they have been living and probably rearing their families alone. This Bill does not cover that situation. In fact, the husband who has left or deserted the wife will continue to own the home after this Bill is passed. No ownership rights are vested in the spouse who has been living and rearing a family in that home.
It is unfortunate that the Minister cannot assist the most vulnerable people, those who have been separated for some time. Those who were separated after 25 June 1993 will have joint ownership of the family home but those who were separated in April 1993 will not. That is unfair and it should be corrected by acceptance of the amendment.
The Bill endeavours to safeguard the rights of husbands and wives, particularly wives. In this instance, as Senator Neville outlined, ownership of the home is not vested and will not vest in the deserted wife is living in the family home and whose husband is living elsewhere and may have another relationship. In the event of the death of the deserting husband he may leave the dwelling where the deserted wife is now living to the person with whom he set up the new relationship. In that situation the deserted wife does not have an automatic joint tenancy. The third party has a will and the most the deserted wife is entitled to claim is one third of the property. The remaining two thirds can go to the third party, who may already have another home. There is a real difficulty in that up to 15,000 women may be in that situation. The Minister is putting a number of women at risk who, through no fault of their own, are caught by a technicality. When the Family Home Protection Act was introduced I do not think it included a cut off date. There should not be a cut off date in this Bill either. Many of these women can, to all intents and purposes, be disinherited.
Many deserted wives have already endured much trauma and they are particularly vulnerable people. Many are quite strong but others are not. They would have little knowledge of the law and may not want to go to court.
That is right.
The Minister should accept this amendment. I have consulted a number of people about it. It is the only contentious issue in this legislation and we feel so strongly about it that we will call a vote on it.
I wish to clarify a matter. The Minister stated that the Bill creates joint ownership, which we all accept and welcome. I may have misunderstood the Minister but I thought he said that he did not want to give a deserted wife joint ownership because if the deserting husband died she would acquire the house. Was that what the Minister wished to convey? I do not think that women in this situation, who tend to be the most vulnerable, should be asked to remain vulnerable because the Minister is concerned about the deserting husband.
I also agree with the points made by Senator Neville and Senator Enright. Women in this situation do not, in many cases, have the resources to go to law. The home may be the only thing they possess and they would not have independent means or access to the law. The Minister said they have other legal means of redress but they cost money and many women do not have the necessary financial independence. I am concerned with protecting their rights.
The Minister on Second Stage said that where couples separated since June 25 the provisions of any separation agreement or court order relating to the home would override the provisions of the Bill. If such things had happened prior to 25 June that could also be the case. It is complex and it could be difficult but I am concerned that all women should have the protection of this Bill.
Senator Enright has given a practical example of the point I made. Most women who are separated prior to June 25 will assume that under this Bill they have joint ownership. They will not go to court even though they have that right under the Family Home Protection Act. Most of these people are vulnerable and trying to survive from day to day. They will assume that they own the family home. They will not know that part of their house has been willed to a third party after the death of the husband. The home might have to be sold if the third party wishes to obtain the value of their share.
We have had an interesting discussion and there are some points I wish to clarify. There is some illusion about the question of going to court. Senator Enright mentioned the spouse's right to one third of the estate under the Succession Act of 1965. If a married person makes a will and ignores the spouse's legal right to one third under the Succession Act of 1965, the Senator will be aware of the procedure. She must be informed of her options in that regard by the personal representative. It would be crazy if anyone had to go to court to establish a right to their one third. Any solicitor will advise her that under the Succession Act she does not have to go to court. If she had to go to court to get it the cost would come out of the estate. Nobody will dispute that. There is no legal point at issue here. I am sure the courts would be very angry to have somebody coming before them claiming what is clearly provided for in the legislation.
Senator Neville mentioned the question of going to court under the Family Home Protection Act. That will not arise. Under the Family Home Protection Act the spouse has a veto if the other spouse wishes to convey his family home. He cannot convey a proper title in that family home unless the other spouse signs the consent.
In relation to Senator Honan's point, we are not trying to discriminate against deserted wives. We are introducing an innovative radical provision whereby every matrimonial home — regardless of whose name it is in — is now being put into joint names. We are defining a matrimonial home as a home in which the husband and wife ordinarily resided after June 25 1993. There must be some starting point. To follow through the example, if a home is a matrimonial home because there is a couple living in it in an ordinary marital relationship on 25 June, 1993 and if at any time subsequent to that date one party deserts the other, it remains a matrimonial home and they are still joint owners although they are no longer living together.
With regard to the arguments made by Senator Neville and Senator Enright, I have to agree with the Attorney General that there is a limit to how far we can go back in the past. Let us take an example where people separated 20 or 25 years ago and one of the parties remains in the home. Forgetting about the law for a moment, can that logically be described as a matrimonial home?
Senator Enright outlined a situation where somebody would only get one third if the separation had occurred before 25 June, 1993. I will give another example where two parties separated 25 years ago and the wife continues to live in the family home. Perhaps at the time of separation the home was in the wife's name or it may have been in the name of the husband, but now the wife, by virtue of her undisputed occupation, will have possessory title. The effect of the amendment would be that the deserting husband, wherever he is, would automatically come back in as a joint owner of the family home. Surely that cannot be right but it would be the logical consequence of the amendment.
There are difficult cases which fall on both sides of the line. The best that can be done is to try to get a logical starting point and work from there.
Surely section 6, the exclusion clause, would cater for the latter situation. The Minister of State is talking about where somebody has left — the exclusion clause. The Minister of State has not answered the case where somebody was deserted, for example, last April and the husband dies having made a will leaving the home to a third party. What is the wife's position in that case?
The Minister of State did not explain why there is retrospection in the Family Home Protection Act but not under this legislation. Surely they are similar as they try to achieve the same objectives of protecting the vulnerable partner, usually the wife, in separation circumstances. I fail to understand why we could not have retrospection in this Bill since it is in the Family Home Protection Act, 1976.
The Minister of State makes the point about a cut-off date and as a generality that is reasonable. The point here is that there are particular circumstances envisaged to which it is argued the generality should not apply. It must be the function of legislation not to penalise any citizen unduly and that would be the effect of leaving the legislation unamended.
The Minister of State made the point that there is a limit to which we can go back in the past. I hope he will tell that to the Minister for Finance and to the Revenue Commissioners. I say that as an aside. He made the point——
There is a limit to that.
I realise that. It is the degree.
They have exceeded their limits.
We return to the fundamental point about the degree of the limit and that is what is at issue here. I do not think Senator Neville has argued that it should be an unlimited degree.
He has.
The Minister of State made the point earlier that the spouse could apply to the court in a summary manner under section 18 of the Bill. I am not a lawyer but it seems that section 18 deals with title and possession and not residence and they not quite the same thing. I do not share the Minister of State's confidence in the value of section 18 as an adequate safeguard.
I support Senator Neville's amendment. I reiterate the point that as a generality starting points may be required but somebody should not find themselves in a situation where the starting point penalises them to the extent envisaged in the Bill.
We have had a long debate on this amendment.
I will be brief on this point. The Minister makes the point that a woman may have been living in the home for, let us say, 15 or 18 years. In the event of her husband's death she can claim title by law of possession and may get title to the home. The difficulty is that normally if there is a family or maintenance is being paid and the husband visits the house maybe twice or three times yearly, he would be in a position to claim that he has retained ownership in the house. In the event of a widow making an application to the Land Registry she would have to overcome that-challenge by a third party to claim title to it.
The Minister of State refers to the Succession Act and claims that if the person had been living in the house a court would frown upon such an approach. The courts will abide by the Succession Act, the Family Home Protection Act and the provisions of this Bill. That is what a court will base its decisions on and in many instances there is a grave risk of a widow coming down on the wrong side and losing out in this regard. This is a matter we feel strongly about and although I do not think the Minister of State will accept what we are saying we ask him to consider it carefully.
The Minister of State said that I would like this provision to go back 20 years. If a wife is living in a home and has been separated for 20 years I have no problem with her obtaining joint ownership of that home if it was originally owned by her husband. If it is owned by her and the husband comes back then surely section 6(5) covers that situation. The wife can go to court and prevent the husband getting joint ownership of the family home.
I would just like to clarify a few points. Senator Dardis referred to penalising widows. The purpose of this legislation is not to penalise anybody but to give a wife a joint interest share in the family home. That is benefiting somebody, which is the thrust of the Bill. Senator Dardis also said that he did not accept the idea of going back indefinitely. If not then he cannot accept the amendment, which goes back to the year dot and there is no starting point or cut-off point. It is like God; it has no beginning and can go back indefinitely.
I take Senator Enright's point about the possessory title. We have all dealt with such cases and are aware of the complications which can arise. I would put the other case where the husband is the owner of the family home and the wife has left him and taken off with somebody else, perhaps 30 years ago. The effect of the amendment would be that she would automatically become joint owner of the family home.
With regard to section 6, which involves a referral to court, are we really suggesting that everybody who owns a house and had been deserted 20, 30 or 40 years ago should as a result of this legislation have to go to court to stop the person who deserted them becoming joint tenant of their property? That would be the net effect. There is no point referring to section 6 as that is directly what it means.
In regard to Senator Enright's example relating to somebody willing the property to his mistress, having deserted his wife, the legal position will be that the wife has a legal right to a one third share. No matter whom the property is willed to, she can claim her one third share. There will be no question of going to court because the solicitors for the other side will inform their client of the Succession Act whereby the wife is entitled to her one third share and that it has to be conceded. In addition, the wife in that case can apply for a property adjustment order under the 1989 Act which would involve her getting a share of the property now. That is the reality of the 1989 Act.
The final point was in relation to the Family Home Protection Act and why there was no cut off point under that Act while there is a cut off point under this Bill. There is a simple explanation for that, namely the Family Home Protection Act did not create any property ownership rights. It only gave a spouse a veto. This Act creates ownership rights, an entirely different matter.
I am not a legal person. If a husband deserted his wife last April and the husband now dies, what is the legal situation with regard to the ownership of that property if he has willed the property to a third party? I do not understand what would happen in that situation and it is important that the matter be clarified.
The wife would have the legal right to one third of her husband's entire property. If his property comprises more than the family home the wife can appropriate the family home.
What if there was only the house?
If his property comprises only the house she has a legal entitlement to one third of his house. I agree that if somebody deserts on 24 June that person will be treated differently from someone who deserts on 26 June. We have taken 25 June as the starting point. Hard cases will arise in relation to people who are deserted on 23 and 24 June, 1993, but if we are to cater for those cases in a broad way, as proposed in the Senator's amendment, we would also have to cater for cases of people who were deserted on 23 June, 1943 or 23 June, 1933 and that is our difficulty.
The Minister accepts that there will be hard cases, but 95 per cent of cases of desertion entail the husband leaving the matrimonial home, leaving the wife. In most cases the house is owned by the husband. I agree there will be hard cases if retrospection is allowed indefinitely. However, on balance, I believe this to be the better approach because it is likely that the husband deserts the wife rather than vice versa and in such cases the wife is always the more vulnerable because in many situations she is not working, does not have a separate income and is rearing a family. Secondly, 90 per cent of houses, and 99 per cent if one goes back 40 years, would be owned by the husband, who has a 90 per cent probability of leaving the home should separation arise.
We cannot base the law on percentages like that. We cannot have a situation where everybody who was deserted before 23 June 1993 has to attend court to stop the legislation giving the deserter a joint interest in the family home. It is not practicable. Secondly, we have serious doubts about the constitutionality of this amendment. We must have a starting point somewhere, especially when ownership rights are being created. This is not simply a question of a veto, as in the 1976 Act. It is a question of ownership rights. We cannot legislate on the basis of percentages.
Would the Minister agree that it is discriminatory that a woman deserted in May has a different right to ownership of her home from that of a woman deserted in July?
It is no more discriminatory than having a distinction between a woman who was deserted in July 1993 and a woman who was deserted in July 1933.
Is the amendment being pressed?
Yes.
I want to make the last point on this issue. The Minister deals with the legal right of a widow whose deceased husband decided to leave the house where she is living to a third party, such as another lady with whom he had commenced residence or some other party. The Minister specifies that the widow is entitled to a legal right of one third and then proceeds to deal with the family law under the Judicial Separation Act. In regard to this, the widow would have a one third right, but there is a grave danger then that the executor of the husband's will may move to have severance and may move to have the house sold or something of that nature.
I agree.
That is the law as it has existed since 1 January, 1967. We are making substantial improvements here and we cannot cater for every situation. Unfortunately there will be hard cases. That is the reality.
Amendment put.
The Committee divided: Tá, 15; Níl, 22.
Tá
- Burke, Paddy.
- Cregan, Denis (Dino).
- Dardis, John.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Honan, Cathy.
- Howard, Michael.
- Manning, Maurice.
- Naughten, Liam
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Ross, Shane P.N.
- Taylor-Quinn, Madeleine.
Níl
- Byrne, Seán.
- Calnan, Michael.
- Cassidy, Donie.
- Crowley, Brian.
- Daly, Brendan.
- Farrell, Willie.
- Finneran, Michael.
- Gallagher, Ann.
- Henry, Mary.
- Kelleher, Billy.
- Kiely, Dan.
- Lanigan, Mick.
- Lee, Joe.
- Magner, Pat.
- Maloney, Sean.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Roche, Dick.
- Townsend, Jim.
Tellers: Tá, Senators Burke and Neville; Níl, Senators Magner and Mullooly.
Amendment declared lost.
Government amendment No. 4:
In page 4, subsection (1), to delete lines 19 and 20.
Amendment agreed to.
I move amendment No. 5:
In page 4, between lines 27 and 28, to insert the following subsection:
"(2) Reference in this Act to an interest in a matrimonial home shall include a legal or beneficial interest in shares held in a company where the legal or beneficial interest in a property in which a married couple ordinarily reside is vested in such a company."
In the majority of cases the family home is owned either by the husband or wife or is in their joint names. The amendment which I propose is designed to ensure that either spouse does not get around the Act's objectives by engaging in legal mechanisms to do so. The experience following the introduction of the Family Home Protection Act, 1976 showed how those who wished to do so devised legal mechanisms to attempt to get around the Act. This amendment will ensure that a husband or a wife does not exclude the other by forming a company, with another person holding a minimum amount of shares.
Perhaps the Minister will say that section 4(11) covers this situation. I wish to clarify that the position outlined in my amendment is fully covered by section 4(11).
Provision is already made in the Bill to ensure that the benefit of joint ownership cannot be denied to a spouse by using the mechanism of transferring the matrimonial home to a company after 25 June this year, the date of the Bill's publication. I understand that Senator Neville wants to simplify the anti-avoidance mechanism, but I am advised that the situation he is trying to avoid is fully covered under section 4(11).
In the circumstances I accept the Minister's commitment.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
I wish to ask one question which I raised on Second Stage. I stated clearly and unequivocally on that occasion that I fully support the principles of what we are attempting to do in ensuring that the spouse is legally protected. It is a mechanism whereby the property can become owned as a joint tenancy by the husband and wife. I and most practitioners strongly recommend that properties be put in joint tenancy. Normally there is total consent and both parties are very favourably disposed towards it.
The Minister made a point earlier about a woman deserting the family home, coming back and claiming rights many years later. I am concerned about a situation where a husband and wife have joint tenancy. The husband is living with another party or residing with his wife but is a heavy gambler or heavy drinker. There is a family and the wife is seriously ill and knows that she will die. In that instance the wife will be concerned that since the property will become the sole property of her husband in the event of her death there is no protection whatsoever for the children.
Everybody that is married has responsibilities towards their children. I agree with the principle of the Bill but I do not know how that situation can be remedied or whether there could be a severance to try to protect the interests of the children. It is a serious concern. If the father is a waster and decides to sell the property and spend the proceeds on drinking or gambling, there is a genuine problem. I do not know how it can be resolved. The Minister, Deputy Mervyn Taylor, in 1990 contacted the Law Reform Commission about this. I was not aware of this until recently when I read a Law Reform Commission report. He foresaw this situation many years ago but it was only when I read the Bill that I realised the consequences.
I accept that under section 6 there are some protection and safeguards, but they are insufficient. A husband and wife have responsibility towards one another but they have great responsibility towards their children. A good mother who is seriously ill, facing the prospect of passing into the next world, may be concerned that the home will be sold and the children will have nowhere to reside.
I am advised that the unfortunate spouse in such a situation could apply under section 5 of the Family Home Protection Act, 1976 to have the ownership of the house transferred into her name. Is the Senator talking about a situation where the husband is the sole owner and is carrying on like this?
After the passing of this Act they will be joint tenants of a property. Perhaps one of the parties is totally irresponsible. It is not simple to ground an application to court to safeguard it. There is a real danger that such a person, if left with sole rights to the property, might sell it and waste the assets. That is the crux of the matter.
As the Senator is aware the child also has a right to apply under section 6 to disallow what has happened under section 4, even after the death of the other spouse. That is in addition to section 5 of the Family Home Protection Act, 1976 which I will read for the purposes of the record:
Where is appears to the court on the application of a spouse that the other spouse is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of depriving the applicant spouse or a dependent child of the family of his residence in the family home, the court may make such order as it considers proper, 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 of such child.
I will have to clarify this with my advisers but my understanding is that in such a situation if any bank or anybody gets an order against the gambling spouse's interest in the family home that will effect a severance and the other spouse will hold as tenant in common. In other words it will change from a joint tenancy to a tenancy in common. The order will not have any effect on the innocent spouse's half share in the family home, as I understand it.
It is not just a half share here. Somebody owns all of what was a joint tenancy. I refer to a problem that can and will arise where on the death of the one of the spouses the other spouse becomes the sole owner of the property and wishes to sell it. The problem is that the children do not have proper protection.
The child can apply under section 6, even after the defaulting person's death, to have the provisions of section 4 disapplied, in other words to make it not a joint tenancy, as it were retrospectively. I accept Senator Enright's point concerning people, especially those who are ill, calling in lawyers and going to court, but section 5 of the Family Home Protection Act, 1976, allows them to do that. Unfortunately, as Senator Enright, like myself, knows that everyone does not behave perfectly and we cannot legislate to make them do it. I accept the point he is making; it is a genuine one. We have gone as far as we can to resolve it.
Section 6 (2) states:
An application under subsection (1) by the personal representative, or by or on behalf of a child, of a deceased spouse shall not be made later than 9 months after the death of the spouse or 3 months after the grant of representation, whichever is the later.
That is a short period of time. Again, one is dealing with minors in most instances who will not be aware of their rights, and the immediate family on either side may not be anxious to involve themselves or to interfere. This is a genuine problem and is the one concern I have with the Bill.
It is a real problem in that we have seen many cases of battered wives, desertion and other unfortunate behaviour on the part of husbands in practically all of the cases where the wife is concerned. If a wife is terminally ill, obviously she is not going to take her husband to court, regardless of what the behaviour is in the home. I am interested to hear the Minister say that section 6 can be applied retrospectively. In such circumstances, the ownership will revert to the sole ownership of the wife, who is deceased at that stage. I am anxious to know how that would operate, how the children can benefit and the mechanism for the management or the ownership of the home if, as the Minister said, subsequent to the spouse's death, section 6 can apply retrospectively.
Under section 6, if section 4 is disapplied following an application by a child, or behalf of a child, the ownership reverts solely to the name of the former spouse and that spouse will have been deemed to have died intestate as being the full owner of the house in question. The property will then be divided equally among the children. That is the legal position there. I take Senator Enright's point about the period of nine months being short. There was a great deal of discussion about that matter in the Department——
I do not dispute the Minister on that.
What Senator Enright is referring to is only one side of the coin. There are genuine spouses as well and there may be an urgent reason why they may want to sell. We cannot extend the limit indefinitely within which they cannot sell — a balance must be found. Many can argue that we have balanced it wrongly — too much on one side or the other; that is the problem when one tries to find a balance — but the reason there must be some limitation period is that we must bring some certainty to the matter, from the point of view of genuine spouses who need to sell as a matter of urgency and be able to convey a proper title to the property they are selling.
I would like to refer to the report of the Law Reform Commission on land and conveyancing law. One section dealt with the conversion of a joint tenancy into a tenancy in common.
Mr. Mervyn Taylor T.D, wrote to the then president of the commission in May 1990, suggesting that a joint tenant should be able to sever unilaterally a joint tenancy by giving notice that the property would henceforth be held under a tenancy in common. His concern arose in cases where a husband and wife who held the family home as joint tenants have separated. The husband had left home and the wife and children are residing in the home which is held on a joint tenancy. If the wife dies first, her interest in the family home passes to the husband automatically, by way of survivorship and the position of the children may be undermined. In such cases, it may be impossible to secure the husband's consent, during the wife's lifetime, to any severance of the tenancy and conversion into a tenancy in common, so as to give the children a vested interest in the property.
The commission went on to say:
This type of situation will hopefully be ameliorated by the implementation of the Government's proposed legislation providing for ownership of the family home.
In fact, it has failed to grasp the point. The Minister should insert a provision in the Bill to safeguard the position of the children.
I am aware of the Law Reform Commission report to which Senator Enright is referring — it is gathering dust on my desk. I am sorry now, in view of Senator Enright's intervention, that I have not yet read it. It proposes major changes in the law relating to conveyancing and property ownership generally, as he will be aware. I do not know if the final report is available — I suspect it is not — and what Senator Enright quoted from may have been the discussion report. When the final report is available - obviously the commission was set up for a reason — the Government will be looking at its results and will be bringing in further legislation on the basis of the final recommendations.
This section has been reasonably well teased out, unless Senator Neville has a new, enlightened comment to make.
Would the Minister look at an amendment to cater for this matter on Report Stage?
As I have said, Senator Enright's suggestion came from the Law Reform Commission report on conveyancing. These matters should not be taken too much out of context. There would be general recommendations on property law which we hope to have in the near future. As I understand it, they should be here already. We will look at what Senator Neville is proposing in the context of that report.
It was only when I read the Bill for this debate that I realised such a situation could arise. When I started to go through the Law Reform Commission reports on it, I saw that Deputy Taylor had made a submission on it as well some years ago.
Acting Chairman
Senator Enright has made that point emphatically and I appreciate what he is saying.
The Minister is saying that perhaps the matter will be dealt with in some future report. I am not going to press him for it. I do not want to pressure him on this matter because he may not be able to phrase a proper amendment at this stage, but if he could consider some provision for Report Stage, it would be helpful. When making his Second Stage speech, the Minister showed how complicated the matter was.
Question put and agreed to.
SECTION 5.
Acting Chairman
Amendment No.6; Amendment No. 11 is an alternative and both may be discussed together.
Government amendment No. 6:
In page 7, between lines 45 and 46, to insert the following subsection:
"(2) Where—
(a) a spouse in whose favour section 4 applies is convicted of the murder of the other spouse, and
(b) immediately before the death of the other spouse, an interest in the matrimonial home was vested by virtue of section 4 in the spouse in whose favour section 4 applies,
then, as on and such death —"
I have tabled the amendment especially to meet the point raised by Senator Neville's amendment No. 11. The question whether a spouse who murders his or her spouse, having benefited from the joint ownership conferred by this Bill, should continue to retain that ownership has already received extensive debate in the Dáil. Initially, the Minister took the view that the general law, in combination with the specific provisions of section 6, was sufficient to cater for the rare instance when this issue would arise. However, in line with the flexible attitude the Minister has adopted in regard to worthwhile amendments, he has given further thought to this issue. On reflection, it seems to him that in the specific instance of murder, it would be appropriate to set aside the statutory joint tenancy and therefore I am going to accept the principle of Senator Neville's amendment.
It has been necessary, however, to make specific, detailed provision for a number of matters, one of which is the revesting in the deceased spouse's estate of the share of the joint tenancy received by the murderer under section 4. Because that was not provided for in his amendment, I ask Senator Neville to accept this amendment, which was brought in to meet his suggestion and the principle which underlaid his amendment.
I thank the Minister for his positive approach to our amendment. It is a pity this does not happen more often, but perhaps this is the start of a new approach which we may see more of during the period of this Government.
A new beginning.
I thank the Minister for taking on board the content and spirit of this amendment. It highlights difficulties which an Opposition has in framing amendments. I am not a legal person and we do our best in this regard. We do not have legal backup from Departments or otherwise and it would help the legislative process if we could bounce our views off somebody who would put them into proper legal terminology. I mentioned a number of weeks ago that we should simplify the wording of legislation. This has been done in other countries, including Australia where legislation is framed in ordinary language.
This amendment would only apply in exceptional situations. It also applies under the 1965 Act relating to inheritance. That Act includes exemptions for manslaughter and attempted murder. Is there an anomaly in that a spouse convicted of manslaughter or attempted murder is deprived of their inheritance right under the 1965 Act, although this does not apply under this legislation?
I take Senator Neville's point about Opposition spokesmen getting professional help from the Civil Service. This should be provided and I will convey the Senator's views to the appropriate quarter. The 1965 Act gives the surviving spouse certain rights on intestacy, when one spouse dies without making a will. When the deceased spouse has made a will it gives the spouse what is known as a legal right. Section 120 of the 1965 Act automatically provides that in certain situations the surviving spouse is unable to avail of those rights, for example, where the deceased spouse has been murdered by the surviving spouse or where the surviving spouse is guilty of manslaughter or another crime carrying at least two years imprisonment. Joint tenancy is excluded in the specific case of murder. If the surviving children take an action under section 6 to have the joint tenancy disapplied retrospectively, they will succeed in cases such as manslaughter. In one case it is disapplied automatically and in the other it will certainly be disapplied by the court.
I thank the Minister for his approach to this issue.
Amendment agreed to.
Government amendment No. 7:
In page 8, subsection (2), lines 4 and 5, to delete "and to any order of a court made during the period aforesaid".
Amendment agreed to.
Government amendment No. 8:
In page 8, subsection (4), line 14, to delete "Section 45" and substitute "Sections 12 and 45".
This is a technical amendment. Under section 12 of the Land Act, 1965, the consent of the Land Commission is required where, among other matters, an agricultural holding is to be subdivided. It is, therefore, desirable to include a reference to that section along with section 45 of that Act, which also relates to the vesting of certain interests in land and for which explicit provision is currently made.
When the Bill was originally drafted, section 12 was forgotten, but it is now being included. Section 12 states the consent of the Land Commission must be obtained for the subdivision of certain agricultural holdings. I presume the parliamentary draftsman had in mind that the transfer, the division of the family home might, in certain instances, constitute the subdivision of an agricultural holding because it includes surrounding land. We are providing that the permission of the Land Commission does not have to be obtained in such a situation.
Amendment agreed to.
Government amendment No. 9:
In page 8, subsection (5), line 18, after-"exercising", to insert "on or after the passing of this Act".
Amendment agreed to.
Government amendment No. 10:
In page 8, subsection (5), line 19, after "1989", to insert "or as affecting any order under those provisions made before such passing".
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
Amendment No. 11 not moved.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.
Acting Chairman
Amendment No. 12. Amendment No. 13a on the additional list of amendments is a substitute for amendment No. 13. Amendments Nos. 13a and 14 are related. These amendments may be discussed together.
Government amendment No. 12:
In page 11, lines 32 to 48, to delete subsection (1) and substitute the subsection:
(1) Where an interest in a matrimonial home has vested in both spouses by virtue ofsection 4—
(a) in the case of registered land, if one only of the spouses is registered in a register maintained under the Act of 1964 as owner of the interest, both spouses or (in case the spouse so registered has died) the surviving spouse shall be entitled, on application in the prescribed form by either of the spouses or by the surviving spouse, to be registered as owners or owner thereof, or
(b) in the case of unregistered land, if one only of the spouses appears from a deed or deeds registered in the Registry of Deeds or otherwise to be the sole owner of the interest, a declaration in writing that the interest has so vested may be made by either of the spouses or, as the case may be, by the surviving spouse and a copy of the declaration certified by that spouse to be a true copy, may be registered in that Registry, and, upon such registration, any legal interest in the home vested, or becoming vested, in the spouse who is so registered or who appears from the deed or deeds to be such owner shall, subject and without prejudice to the rights of an other person, vest in both spouses as joint tenants or, as the case may be, in the surviving spouse.".
These amendments are technical in character and relate mainly to the Land Registry. Two matters are provided for. It is now being made plain that where one spouse is registered as sole owner of land which includes a matrimonial home, the other spouse has a clear entitlement to apply in their own right to be registered as co-owner of that home. Ideally, this registration should take place during the lifetime of both spouses, but where the owning spouse has died without such registration having taken place, the surviving spouse will still be entitled to apply for registration.
To facilitate registration by a surviving spouse, the provision in the Registration of Title Act, 1964, whereby the registrar of title is compelled to recognise the personal representative alone as having any rights in respect of the land of the deceased is being set a side in the specific instance of the matrimonial home. In addition, no assent by the personal representative will be necessary to vest the outstanding legal interest in the surviving spouse. The assent is the means by which the actual transfer of the assets of the deceased to the persons entitled under the will or intestacy is usually carried out. Any legal interest of the deceased in the matrimonial home will remain with the personal representative until it vests in the surviving spouse on registration. The personal representative is precluded from executing any assent in relation to that specific interest or from transferring it to any other person.
This amendment is a technical one because the equitable interest, the real beneficial interest of the deceased in the home has already passed to the surviving spouse by survivorship and any legal interest remaining is of a nominal character only. Provision is also being made to cater for a situation where the surviving spouse may have died before he or she had time to register their ownership interest. In that case, the personal representatives are given the right to do it on their behalf.
If the family home is not fully transferred to the original spouse, would it automatically pass on to the surviving spouse who was not the original inheritor of the property? In other words, if a husband inherits a property, but did not take the issue through registration, would it automatically register in the name of the surviving spouse on his death?
If the surviving spouse dies without undergoing the formalities, the personal representative may do this on his or her behalf.
Does that have to be done before it is transferred to the surviving spouse who should have ownership?
This is about formally registering legal ownership which is only a nominal matter.
Amendment agreed to.
Government amendment No. 13a:
In page 11, after line 48, to insert the following subsections:
(2) On an application pursuant to subsection (1)(a) by a spouse who is not the registered owner of the land concerned for registration in such a register as aforesaid of both spouses or (as the case may be) the surviving spouse as owners or owner of the matrimonial home, the Registrar shall be bound to assume that the applicant is acting correctly in relation to the application, and section 61(2) (which provides that the registrar shall recognise personal representatives alone as having any rights in respect of land of the deceased) of the Act of 1964 shall not apply in relation to such an application by a surviving spouse.
(3) (a) On the death of a spouse who is entitled to a legal interest in a matrimonial home to which section 4 applied, the personal representative of that spouse shall not execute an assent in relation to that interest or otherwise transfer it to any person.
(b) If the surviving spouse has died without the legal interest in the matrimonial home concerned having vested in that spouse pursuant to subsection (1), that subsection shall apply to the personal representative of the surviving spouse as it applies to that spouse and, accordingly, upon compliance by that personal representative with that subsection, that interest shall, subject and without prejudice to the rights of any other person, vest in that personal representative for the purposes of the administration of that spouse's estate.
Amendment agreed to.
Amendment No. 13 not moved.
Section 8, as amended, agreed to.
SECTION 9.
Government amendment No. 14:
In page 12, lines 43 to 46, to delete subsection (4).
Acting Chairman
Amendment No. 14 has already been discussed with amendment No. 12.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Government amendment No. 15:
In page 13, subsection (3), line 29, after "6,", to insert "7,".
This amendment should have been taken with amendment No. 1a which, due to an oversight for which I apologise to the House, I did not move at the beginning of the debate. I propose to deal with it on Report Stage.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 14, inclusive, agreed to.
SECTION 15.
Government amendment No. 16:
In page 15, between lines 20 and 21, to insert the following subsection:
(5) Where section 4 applies to an interest in a matrimonial home and—
(a) the spouse in whose favour that section applies is adjudicated bankrupt under the Act, or
(b) that spouse becomes an arranging debtor and the interest in the home to which that spouse became entitled by virtue of such application vests in the Official Assignee,
the interest in the home to which that spouse became so entitled shall not be realised for distribution in accordance with the provisions of the Act in respect of any debts, obligations or other liabilities arising out of acts or omissions occurring before the application of subsection (2) or (3) of that section to the first-mentioned interest in the home and section 61 of the Act shall have effect accordingly.".
In the Dáil on Report Stage the Minister introduced an amendment to ensure that a judgment mortgage could not be registered in respect of debts incurred prior to a section 4 vesting. This amendment is somewhat analogous. Under the Bill as now drafted, if a benefiting spouse is bankrupt at the time the section 4 interest would have vested, the joint ownership provisions of the Bill will not apply. However, where a benefiting spouse is adjudged to be bankrupt after that interest is vested in respect of debts which arose prior to that vesting, his or her share in the matrimonial home would be available for distribution by the official assignee in accordance with the provisions of the Bankruptcy Act, 1988. This amendment is designed to prevent this happening since clearly, in respect of debts incurred prior to the section 4 vesting, any such distribution by the official assignee would be unjust and unfair. I imagine that this will meet with approval from Senators on all sides. We are, in effect, protecting the interest of the spouse who becomes bankrupt provided the debts in respect of which he or she became bankrupt arose prior to the vesting.
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 and 17 agreed to.
SECTION 18.
Government amendment No. 17:
In page 18, subsection (7)(a)(ii), line 27, after "divorce,", to insert "not or".
We are referring to an annulment as well as a marriage. In the context of an annulment it is not appropriate to refer to a marriage that no longer subsists. That is the effect of the text. We would be referring to an annulment as meaning a marriage which no longer subsists. The legal implications of an annulment are that the marriage never existed in the first place, so we are just changing around the wording to recognise legal reality.
If one had a situation where section 4 applied after a marriage, which in fact was registered in the land registry, and there was a subsequent annulment, would that render the registration of the joint ownership void?
The answer is that it would effect what they call in legal circles a restituo in integrum. It would go back to the beginning because the home would not have been a matrimonial home, for example, because a married couple would not have been living in the home. The marriage never existed so it does completely invalidate the effect of section 4. Section 4 will be deemed never to have applied. That is my interpretation of it anyway.
Annulment is fully accepted as a legal position in this?
Yes.
Does annulment mean State annulment or church annulment, or can it mean both?
State only.
State only.
Amendment agreed to.
Section 18, as amended, agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Government amendment No.18:
In page 20, between lines 10 and 11, to insert the following subsection:
"(5) Section 18 (which deals with jurisdiction of the court) of the Act of 1964 is hereby amended—
(a) by the insertion in subsection (1), after ‘Circuit Court', of ‘and, in relation to a matrimonial home (within the meaning of theMatrimonial Home Act, 1993) whose rateable valuation is not more than £20, the District Court’, and
(b) by the substitution of the following subsection for subsection (3):
‘(3) The jurisdiction conferred on a court by this section to hear and determine any matter under this Act in relation to land may be exercised—
(a) in the case of the Circuit Court, by the judge of the circuit, and
(b) in the case of the District Court, by the judge assigned to the district court district,
in which the land or any part of the land is situated.'.
This is another technical amendment. Its purpose is to ensure that determination by the District Court in relation to matrimonial homes whose rateable valuation is not more than £20 will be acceptable in the context of land registry practice. In other words, we are bringing adjudications by the District Court into the land registry system.
Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill.".
In regard to the jurisdiction, at what level does the Minister of State propose building in the valuation for the High Court? There is a rateable valuation of £25 or upwards for the High Court, is that correct? In other words, they can bring them in the Circuit Court or the High Court.
Yes.
Where is the upper limit for the Circuit Court, is it £25? I appreciate that it is unlimited at the High Court end but where does it commence?
After all that, the simple answer is £200. I take it that what the Senator is asking me about is the cost implication of bringing an application in a higher court than the one in which you are entitled to bring it? Where you have to go to the High Court basically it is £200. You can go at any stage but you have to go above a rateable valuation of £200.
On Second Stage, I put a marker on this section. While I agree with the provision that "proceedings under this Act shall be heard otherwise than in public", — I might be wrong in interfering here but I seek your guidance on it — is it possible that a system of recording of judgments in family law cases, particularly in the Circuit Court, could be set up under section 22?
My understanding is that that can be done without making any specific provision in the legislation, by referring to the names by means of initials, such as, A versus B.
I understand that, but if you had proper reports of Circuit Court cases drawn up, a body of law would be laid down and a register of family law cases could be established. In relation to the operation of the Judicial Separation Act, 1989, in 1991 there were 28 applications to the Circuit Court and only 27 applications to the High Court. So, obviously, out of those 27 applications there were reports available setting up precedents to be followed by the other courts. The Circuit Court is the main area where a lot of this law is involved. Is it possible to implement some system of formal reporting as in the Irish Law Reports Monthly?
I apologise to Senator Crowley, I misunderstood his question at the beginning. I fully understand what he is talking about now. I do know that what the Senator is proposing is under active consideration by the Minister for Justice and I shall come back to him in another capacity.
Question put and agreed to.
SECTION 23.
Government amendment No. 19:
In page 20, subsection (1), line 25, to delete "the" and substitute "a".
In the Bill the definition of a matrimonial and family home is linked up as closely as possible. At the moment, matrimonial home is defined as "a" dwelling, and family home is defined as "the" dwelling. The purpose of this amendment is to further align the definitions by substituting the indefinite article for the definite.
Amendment agreed to.
Section 23, as amended, agreed to.
Sections 24 and 25 agreed to.
Title agreed to.
Bill reported with amendments.
Acting Chairman
When it is proposed to take the remaining Stages?
We had hoped to table an amendment on Report Stage.
We want to have a further look at the issue discussed by Senator Enright to see if we can table an appropriate amendment. While we had accepted that Report Stage would be taken today this issue has arisen during Committee Stage and we would like to consider it further.
Acting Chairman
Do you require a sos?
No, we require another day because we want to engage in consultation on the issue.
Acting Chairman
That is a matter for the Leader as it involves an order of the House.
Would Senator Neville be satisfied with a break this evening so that we can conclude this Bill by 6 p.m.?
We would be satisfied with a suspension until 5.30 p.m.
Report Stage ordered for 5.30 p.m.
Sitting suspended at 4.40 p.m. and resumed at 5.30 p.m.