Before we commence, I would like to remind Senators that they may speak only once on Report Stage, except the proposer of an amendment who may reply to a discussion on the amendment. Also, on Report Stage each amendment must be seconded.
Matrimonial Home Bill, 1993: Report and Final Stages.
Government amendment No. 1:
In page 3, line 15, after "(1)", to insert ",(3)".
This is a technical amendment, the reasons for which have already been outlined in the debate. If anybody has any queries I would be happy to deal with them.
The content of the amendment is that section 4 will apply to a home which is a mobile home and we fully accept the amendment.
Amendment agreed to.
I move amendment No. 2:
In page 7, between lines 39 and 40, to insert the following:
(12) A spouse may sever his or her joint tenancy and opt for a tenancy in common provided that a court of competent jurisdiction is satisfied that the other spouse is likely to dissipate the assets to the detriment of the children.
I am anxious that in such an instance, the spouse who has concerns or worries would be able to sever the joint tenancy and perhaps establish a tenancy in common which will give an actual tenancy. This would be an exclusion because I presume that up to 90 per cent of people would be in favour of that and this Bill is making it 100 per cent. However, this is an exception where I feel it is essential to have some sort of safeguard. In this instance, perhaps one of the spouses is concerned that in the event of their death the other party will waste the assets to the detriment of the children. The survivor can opt to sell the property on the death of their spouse or in the event of the survivor remarrying, the property will vest in him or her solely. It will become a new joint tenancy. We want to introduce this exemption in order to prevent a situation arising where children will be affected. I hope the Minister will consider this amendment. The Minister will say that under a joint tenancy this amendment will not change the existing law to any great extent. However, existing law is unsatisfactory with regard to safeguarding the rights of children. Under the new legislation the situation will remain the same. I hope this amendment will benefit and safeguard the rights of children. A husband and wife have their own rights and responsibilities. A spouse whose husband is drinking, gambling or wasting money might be worried about safeguarding their children's rights. That is the reason I move this amendment.
I support the amendment. It expresses the views and concerns which the Minister for Equality and Law Reform, Deputy Taylor, expressed to the president of the Law Reform Commission on this issue. He suggested that a joint tenant should be able, unilaterally, to sever a joint tenancy by giving notice that the property would be henceforth held under tenancy in common. We are giving expression to this and we are outlining the circumstances which should be included in such proposals. A court of competent jurisdiction should decide if the spouse can opt for the tenancy in common. This was discussed on Committee Stage and Senator Enright outlined in detail the situations which could arise.
We should cater for children who may be left destitute and without accommodation as a result of a reckless spouse who may dissipate the family assets for selfish reasons. A spouse who is terminally ill, perhaps, would be concerned about this, particularly if there is a possibility that the surviving spouse would sell the family home and waste the assets. In view of the many amendments which have been accepted and proposed by the Minister during the course of this Bill, this amendment would complete the legislation.
I want to correct Senator Neville on a point he made. It is unfair to say that the Minister, Deputy Taylor, suggested that this change should be made in the context of this Bill. He made his suggestion in a recommendation to the Law Reform Commission at a time when this Bill was not mooted and this change had not been spoken about.
From the discussions before the break I thought that what Senator Enright and Senator Neville had in mind was a situation where either spouse could, by declaration or unilaterally, sever the joint tenancy. However, this would be impractical as it would undermine the basis of the Bill and it would enable either spouse unilaterally to destroy the right of survivorship. I am glad they have now raised the question of a court of competent jurisdiction. They are saying that if one spouse is dissipating or likely to dissipate the family assets, including the matrimonial home, the other spouse can apply to court to sever the joint tenancy created by the legislation.
I am sympathetic to the thinking behind the amendment, but the Senators must appreciate that we have a short time to consider this. It has many implications and we do not have time to show it to the parliamentary draftsman or to consult the Attorney General. Perhaps my interpretation of the discussion before the break is wrong, but it seems to me we have shifted ground. In view of this move and the fact we are talking about a court, the situation which this amendment seeks to address is already fully covered by existing law.
In the case of a matrimonial home, if the husband was the original owner and then became joint tenant with his wife under section 4, and if he proceeded to behave so recklessly that the home was in danger, his wife could go to a court of competent jurisdiction, which is the same as the court mentioned in the amendment. Under section 5 of the 1976 Act his wife could go to court and have the full ownership or less than the full ownership of the house transferred to her.
The existing law is stronger than the change proposed in the amendment because under the amendment the innocent spouse can go to court to sever a joint tenancy. This means they will be tenants in common in equal shares. The most the wife can get is half the house. Under section 5 the court has discretion to transfer to her the entire house or a lesser part, if the court sees fit in the circumstances, to do so. If the husband was the benefiting spouse, that is if he acquired the joint interest only by virtue of section 4 — that is where the wife is the original owner — his wife would have an additional opportunity to get redress as she could proceed under section 6 and have section 4 disapplied.
In so far as the amendment will affect the general law governing joint tenancies, it would be necessary to study its full implications. This is not possible in the short time span available. If it is proposed to change the law along the lines suggested in the submission to the Law Reform Commission, the appropriate place to do that would be in the legislation which would result from the final recommendations of the Law Reform Commission.
I am sympathetic to the thinking behind the amendment, but I cannot accept it for two reasons. First, the possible implications which could arise as a result of the short period of time we have had to consider it, the lack of consultation with the Attorney General, which is a norm with any legislation, and the lack of consultation with the parliamentary draftsman. Secondly, now that we are talking about applying to a court, the existing law is stronger in many ways than the law which would result from this proposed amendment. Although I sympathise with the Senators' views, I cannot accept the amendment at present.
I sympathise with this amendment, but I understand the Minister's explanation. The spouse who is worried about the other spouse disposing of the home, the children's protection, would have to take legal action. I understand what the Minister is saying. Senator Enright and Senator Neville have highlighted a valid point because this type of situation could occur.
The points made by the present Minister, Deputy Taylor, in 1990 were made in good faith and I accept he has done everything in good faith. I commend him and the Minister of State on the Bill. I tabled this amendment in the same spirit because I am concerned about the rights of children in many of these cases. The Minister of State knows the type of situations where people are unable to manage their own businesses as a result of carelessness, recklessness, etc. As a result, the wife will be concerned about what will happen if she dies. We tabled this amendment in order to provide an additional safeguard. I thought the Minister would have been able to accept this amendment. I appreciate his difficulties as we are in the final Stages of this Bill and it must be returned to the Dáil.
We may be able to include this amendment in future legislation. It is a matter to which I would ask the Minister to give full, detailed consideration because most husbands and wives would be anxious that the rights of their children be safeguarded in the event of a death when the family home could be sold or alternatively, in the event of a remarriage, where the children of the first marriage could be the losers.
I sympathise with the intentions of Senator Neville and Senator Enright. I thought the amendment they were proposing would give an automatic right to the children and that they would not have to go to court. The Minister's explanation has clarified that matter for me. I understand, as Senator Henry said, that in either case they must go to court. I thought the amendment would give an automatic right and therefore I was supporting it. Obviously it will not and I accept what the Minister has said. The Senators' intention, the conferral of additional safeguards on the children, would have my support.
Acting Chairman
Is the amendment being withdrawn?
The amendment is being pressed.
Amendment put and declared lost.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
I congratulate the Minister, Deputy Taylor and indeed Deputy O'Dea for introducing this Bill. We have been asking for it since December 1991 when the Supreme Court changed what we then thought was the situation. It is progressive legislation. We require similar and other legislation before a divorce referendum because we cannot be sure that the referendum will go through regardless of the present indications. We must try to ensure that everything is covered so as to assist the easy passage of the referendum.
I accept what the Minister said on Committee Stage. He did not get enough time to fully consider our amendment and to refer it to his Department and there is a lesson in that. We should not be running the different stages together. The purpose of having stages is to allow reflection and consultation on issues that arise in the previous stage. I again wish to congratulate and thank the Government for bringing this Bill forward.
I very much support this Bill and welcome it. It fulfils one of the most important recommendations of the Second Commission on the Status of Women and it gives real emphasis to the value of the work of women in the home. I, as one of the ordinary women of Ireland and having no legal training, understand it to mean that those women living with their husbands in their homes on and up to 25 June 1993 would have a legal right to half the matrimonial home whether or not it is in their joint names and, on the death of their spouse, a legal right to the whole home. They are advised to take legal steps to have this registered. Although it is not essential the fees will be nominal. If they were separated before 25 June 1993 I believe that any legal arrangements they have made regarding their matrimonial home and other affairs still stand and indeed if they have not made legal arrangements they are in a position to proceed to make legal arrangements. I am delighted to see the Minister nodding; I have obviously got it quite clear. If they have not made legal arrangements. The worst that can happen is that on the death of their spouse, they will only get a third of his estate, which may only be the matrimonial home, rather than owning 50 per cent already. They will then in fact only lose one sixth of the family home. The Minister is still nodding. I gather that is the main substance of the Bill.
I say this because reading Bills such as this is incredibly difficult and I would like to be sure that this is what I have been party to passing. I know many women will be anxious to know what it actually means and the language is quite difficult to understand. I am delighted that this Bill has not been taken solely in relation to divorce and that it is standing on its own. It enhances marriage and the situation for women in this country. I hope the Government will go further with other recommendations regarding community of property for example, access to knowledge of the income and assets of the other spouse and a right to half the income of the family.
I join with the other speakers in congratulating the Minister, Deputy Taylor, for the initiative he has shown in bringing this complex legislation before the House. In many ways it is a watershed in terms of equal rights for people and a recognition that those rights need to be enshrined in law. The establishment of a Department of Equality and Law Reform has welcome ramifications and implications for men, women and children throughout the country.
I compliment the Minister of State on the way he has tried to meet the very good case in the submissions of Senator Enright and Senator Neville. In many ways those submissions were a model of how people should act if they wish to amend Bills. They were argued very cogently and the response by the Minister was in layman's language.
When one sees people, particularly lawyers, having a debate amongst themselves, a layperson might just as well be on Mars or some other planet because it is usually very specialised. However, in the case of Senator Enright and Deputy O'Dea who are both lawyers, it was intelligible to the layperson and this is to be welcomed. I hope that other speakers in this House take a leaf from that book. Our own spokesperson, Senator Gallagher, is a member of that profession. As a layperson, I am glad to see that I was in the Seanad and not in the Four Courts. I congratulate the Minister once again.
I welcome the Bill and compliment the Minister. He was quite open in accepting amendments right through. It is a small step on the road to equality as it now provides spouses who had no ownership up to now with joint ownership rights in the family home. This will particularly benefit women and particularly women in the home. The vast majority of Irish women are working fulltime in the home. On their behalf, I greatly welcome the Bill.
I also support what Senator Henry has said. Now that we have completed this Matrimonial Home Bill, we should move on to the community of property. I think the Minister when summing up in the other House said this was something at which we could aim. We already have community property in the Judicial Separation and Family Law Reform Act and there is compulsory sharing of assets on death. These should not be the only two areas. When people are in a marriage situation, there should be joint ownership of all assets and income. I again congratulate the Minister and hope he will take this further step.
I thank Senators for a very constructive debate. There have been many amendments to this Bill since it was first published but that is only to be expected because we are breaking new ground. I am glad to announce to the House this evening that this legislation, which is now on the Statute Book, puts us ahead of other common law jurisdictions in this field. That is saying something in view of the fact that our record in law reform over many years was somewhat less than other common law jurisdictions. We have now moved ahead of them in a particular field and I think the Minister is to be complimented for that.
I thank Senators and indeed Deputies for the expertise and practical common sense which they have brought to bear on this subject. We have taken on board suggestions from people who had no training in the legal field and I hope that is a portent of things to come.
I want to make one final point. The explanatory memorandum of the Bill has not yet been updated to take account of all the amendments. I will ensure that is done immediately.
Question put and agreed to.