I want to thank the Seanad for agreeing to accept this additional amendment on Committee Stage. The Dáil has asked the House to consider an amendment to section 7 (2) (c) of the Matrimonial Home Bill which proposes that a person contemplating marriage who wishes to opt out of joint ownership of the intended matrimonial home, must obtain independent legal advice before doing so. As the Bill stands, this requirement applies only to spouses who wish to opt out. However, it is equally desirable that a similar requirement should apply to those intending to get married. Indeed, it is precisely at this moment in their lives that many individuals may be especially vulnerable to pressures which might be exerted upon them to relinquish any ownership claim to what should be their future matrimonial home. I would, therefore, ask Senators to approve the amendment in the terms which have been proposed. It is designed to further safeguard the substantial rights which are being conferred by the Bill and I trust that the House will find it acceptable on this basis.
Matrimonial Home Bill, 1993: Committee Stage.
We, in Fine Gael, do not have any problem with this amendment, in fact we welcome it. However, I would like to say a few things about it. Originally when this was highlighted in the Dáil, Deputy Shatter moved an amendment which would cover this area. He used the word "person" rather than "spouse" in his amendment. If that had been accepted at the time, this problem would not have arisen.
It is wrong to force somebody to accept joint ownership of a house if they do not want it. Sometimes there are good reasons they should not accept it, for example, if the house was heavily mortgaged. I have reservations about people before marriage waiving their rights to joint ownership of the family home. Women are often very vulnerable before marriage when discussions about marriage are taking place, especially when it comes to property. Sometimes where marriage is involved, sanity does not prevail and people can be very emotional.
Is the Senator speaking from experience?
Yes. People can be very vulnerable and can be persuaded to abdicate their right under this section. If there is a discussion about property rights and somebody waves an engagement ring in one hand and a matrimonial waiver form in the other, there might be a great deal of pressure on the woman to sign because of the emotion involved.
That might have been so 60 years ago.
I accept a person must have the right to opt out if they wish and must have full protection and the Minister is providing for protection by making advice available. It is very important, especially prior to marriage, that the person waiving their right to joint ownership of the matrimonial home fully understands the implications of this. The difficulty with a subsequent court case is that on most occasions courts do not accept ignorance of the rules and regulations of the law as a basis for changing legal agreements. While one has reservations about any opting out of joint ownership of the matrimonial home, prior to or after marriage, one would be more concerned about this prior to marriage because of the emotional circumstances surrounding marriage.
On balance, we cannot force somebody to do something but it is important that they get advice from an independent lawyer on the implications of what they are doing. If this amendment had not been tabled the Bill would have been defective. We fully agree with it but if the amendment moved by Deputy Shatter on Committee Stage in the Dáil had been accepted, this problem would not have arisen.
The amendment is the best way to deal with this. As Catherine McGuinness, SC, said, if one's fiance says opt out one should have a good look at him. If there is an engagement ring in one hand and a waiver in the other a woman would be well advised to have another look at her fiance. Providing for independent legal advice is as much as we can do. The amendment should be supported.
I welcome the amendment but have a query. Will spouses' rights under the Family Home Protection Act, 1976, be affected if they waive their legal rights to joint ownership of the home? The Minister has indicated such a waiver will not affect their rights under that Act.
I wish to refer to a point made by Senator Neville. He has a reputation in this House for being extremely sensible and has introduced much positive legislation. It is nonsense to suggest a waiver in one hand and an engagement ring in the other sums up the attitude of Irish women in the 1990s. Has he visited any universities or secondary schools recently? This cant about a man with an engagement ring saying sign this or I will not marry you is more in keeping with the 1920s. One should remember that the Minister's title is the Minister for Equality and Law Reform. Treating people and their intelligence equally is a fundamental part of his brief.
I thank the Senators who contributed and who indicated their agreement with the amendment. As I explained on Committee Stage, initially I was not in favour of making it a compulsory requirement for legal advice to be obtained before a person contemplating marriage could opt out; even now I have reservations about it. It is an unusual provision in that it makes it compulsory for a person who is of full age and in command of their faculties to go to the expense and trouble of obtaining and paying for independent legal advice irrespective of whether they feel they need it. Nonetheless, I decided to take that point on board at the urging of Members on both sides of both Houses.
It is an unusual provision. I can think of no other case where it is made compulsory on a person of full age to obtain legal advice. There are many cases where it is regarded as advisable or recommended to do so, but in no other case would it be compulsory to do so. A person of full age and in command of their senses must now, if they wish to opt out, go to a lawyer and obtain independent legal advice. Otherwise, the opt out would not be valid or recognised.
The amendment before the House is to bring into line the position of people who are contemplating marriage rather than people who are already married. I can confirm for Senator Crowley that the Family Home Protection Act, 1976, even in the event of an opt out, would still apply so far as the benefits in that Act are concerned. It, of course, is quite different from the Matrimonial Home Bill in that it does not vest a property ownership right which the new Matrimonial Home Bill will do automatically.
A message will be sent to the Dáil accordingly.