The Family Law Bill is a very wide ranging measure. It provides substantial power to the courts to deal with the financial consequences of marital breakdown in cases where a foreign decree of divorce is entitled to recognition in the State. Those powers will, in substance, be the same as the powers in any legislation on domestic divorce were the people to vote "yes" in the forthcoming referendum on divorce. The powers include wide powers in relation to maintenance, inheritance and property generally, including the family home and pensions.
The Bill repeals, and re-enacts with amendments, provisions in the Judicial Separation and Family Law Reform Act. The amendments include new provisions giving the courts power in separation proceedings to make orders in relation to pensions. The Bill strengthens the law on maintenance generally, not just in the case of separation proceedings or where financial relief is sought after a foreign decree of divorce. There are comprehensive tax provisions in the Bill to ensure that where property is transferred by our courts between parties following a foreign divorce, those parties will be free of the range of tax measures which might otherwise apply to their situation.
To safeguard and protect the institution of marriage, the age of marriage is being increased and there is provision for notice of marriage. With a view to having clear and simple procedures in the law to enable persons to establish the validity of their marriage in the event of foreign decrees of divorce or separation being granted, the Bill provides for updating of the law in this area. The social reporting role of health boards and welfare officers in family law proceedings in general is put on a statutory footing under special provisions in the Bill.
Jurisdiction and proceedings for decree of nullity of marriage, at present confined to the High Court, is being given also to the Circuit Court. The purpose is to bring that jurisdiction into line with the jurisdiction for separation proceedings, to improve access to the courts and to reduce costs. The Circuit Court is also being empowered to make the ancillary orders in support of spouses where foreign decrees of divorce or separation are entitled to recognition in the State and to make any declarations in relation to the status of a person's marriage.
The District and Circuit Courts will have jurisdiction to order maintenance by way of lump sums and secured payments. That jurisdiction is at present confined to the Circuit Court in separation proceedings only. The District Court will have jurisdiction to make orders under the Family Home Protection Act, 1976, where the rateable valuation of the home is no more than £20. Jurisdiction is at present confined to the Circuit and High Courts.
In bringing forward the Bill, I am indebted to a wealth of sources, not least the White Paper on Marital Breakdown. The Bill draws on the provisions of the Family Law (No. 1) Bill contained in that paper. I should also mention the following reports of the Law Reform Commission on which the Bill is based: the report on the Age of Majority, Age for Marriage and some connected subjects and the report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees and the Hague Convention on Celebration and Recognition of the Validity of Marriages. The list of reports would not be complete without mentioning also that account has been taken of the work of the Oireachtas Joint Committee on Marital Breakdown, the Combat Poverty Agency in their report on the Financial Consequences of Marital Breakdown and the work of the Second Commission on the Status of Women.
The Bill as now framed does not empower the courts to deal with the financial consequences of a decree of nullity granted in the courts. Those provisions were based largely on those contained in a paper prepared by the Attorney General in 1976 which took account of the laws in other jurisdictions and they were contained also in the 1992 White Paper on Marital Breakdown. However, in the light of further consideration and taking into account representations made to me about possible constitutional difficulties, I decided that the best course would be to delete those provisions and to deal with them in a separate Bill in due course.
Senators may note that the heading to Part II of the Bill still retains a reference to nullity and that the side note to section 5 also makes a similar reference. Those references have been included in error because of an oversight at printing stage and I mention the matter to avoid any possible confusion for those looking at the text of the Bill for the first time.
Turning now to specific provisions of the Bill, Senators will appreciate that in view of its size it would not be practicable for me to go through all of the Bill in detail at this stage. I propose, therefore, to concentrate on the main provisions.
Part I of the Bill contains provisions dealing with short title, commencement and interpretations. Some of those definitions — for example, in relation to "family home", "conveyance" and "household chattels"— are standard provisions in other family law legislation.
Part II, which runs from sections 5 to 21, is concerned with the financial, property and other ancillary orders which the court is empowered to make in or after proceedings for judicial separation. Part II also re-enacts the substance of Part II of the Judicial Separation and Family Law Reform Act, 1989, which is being repealed by section 3, concerning the powers of courts to order financial support in the context of judicial separation. The purpose is to consolidate those provisions with new provisions in relation to life assurance and occupational pensions.
The provisions in section 5 of the Bill deal with preliminary orders that may be dealt with by the court in proceedings for separation and allow the court, before deciding on an application for a decree of judicial separation, to make a barring order or protection order, custody order and orders for a protection of the family home and contents.
Sections 6 and 7 are in one form or another concerned with the question of maintenance of a spouse and dependent children. Section 6 allows the court to make interim maintenance or lump sum orders pending the determination of an application for a decree of judicial separation. Provision for interim lump sum payments is new and is intended to cover situations where there may be hardship or where immediate bills have to be paid by a spouse. Section 7 provides for the making of orders for periodical payments, secured periodical payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.
The provision in subsection (6) of section 7 is new. It gives important powers to the courts in separation proceedings to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding on such an attachment of earnings order, the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. I am also, under section 42 of the Bill, extending those provisions to cases where maintenance is ordered in proceedings under the Guardianship of Infants Act, 1964, and the Family Law (Maintenance of Spouses and Children) Act, 1976.
There are good and valid reasons for strengthening the law in these areas. The Combat Poverty Agency in their report on the financial consequences of marital breakdown highlighted the extent to which maintenance debtors default on payments ordered by the courts. While there are cases where the debtor may due to a change in circumstances be unable to pay — and this is allowed for in legislation already by permitting variations of maintenance — there are many other cases where the debtor simply refuses to pay and this results in the dependent spouse having to pursue separate proceedings in the courts for enforcement of the maintenance. The agency found that where enforcement was ordered by way of attachment of earnings, it doubled the chances of payment. Those facts cannot be ignored and I think that Senators will agree that the provisions I have made are warranted and overdue.
Sections 8 and 9 are the provisions which allow the courts in separation proceedings to redistribute property as between spouses for the benefit of a spouse and any dependent children. In substance, they repeat the provisions contained in the 1989 Act. Section 8 provides that the court may make an order for the transfer of property from one spouse to the other or to any dependent child, an order for the settlement of property, an order to very for the benefit of the other spouse or a dependent child, or both, any ante-nuptial or post-nuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property.
Section 9 deals with a number of orders which may be made in relation to the family home. These may include orders in relation to the right of one spouse to occupy the family home to the exclusion of the other spouse, an order for the sale of the family home and for disposal of the proceeds of sale, and orders under existing statutes, including the Family Home Protection Act, 1976.
Section 10 provides a new and very practical measure for the courts to deal with life assurance for dependent spouses and children. It enables the courts in separation proceedings to make an order for the assignment, in whole or in part, of a spouse's interest in a life assurance policy in favour of the other spouse or a dependent child of the family, or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent children. These orders are designed to supplement or substitute for, where necessary, other orders in support of a dependent spouse and children.
Sections 11 and 12 address the questions as to what should happen to pensions in the context of marital breakdown. I am sure Senators will agree that for too long pension rights in the marital breakdown situation have been neglected and, at worst, ignored. This is despite the case that pension rights are often the spouse's second most valuable asset after the matrimonial home. I do not accept that pension rights are an area which should continue to remain a mystery or be left without specific provisions enabling the courts to deal with the matter. In my view the assignability and valuation of pensions should not be foreign territory. If necessary, spouses must be compensated in one form or another for loss of pensions or they must be assigned an interest to enable justice to be done.
Some members of the pension industry may have reservations for administrative or other reasons about changes in pension schemes necessitated by marital breakdown. The reality is that change to greater equity is with us in the context of the Bill and it is vital to resolve, as best as possible, all the problems of the financial consequences of marital breakdown.
I would like to make a point about property provisions in the Bill, including those in relation to pensions. All property on the breakdown of a marriage may be the subject of a court order once one of the spouses applies to the court for an order in relation to that property. The court will not make an order in relation to property of its own motion. That will also be the position in relation to pension orders.
Property is property no matter how and when it is required. It may include real or personal property, the family home, a business, shares, policies of insurance and pensions. It does not matter if the property is owned by the wife or the husband separately or jointly. The point is that the Bill allows the court, where appropriate, to make the necessary type of order in support of a spouse or children. It has a range of powers to do so.
Sections 11 will allow the court to make one of two types of pension orders. The first type may be described as a pension split order where the member spouse's interest in his or her scheme is reduced by order of the court and that amount used to create an entitlement to an independent and separate benefit for the dependent spouse.
The second mechanism which may be described as "earmarking" is one that retains the dependent spouse's interest in the member spouse's scheme, including the survivor's part, with the proportion of benefit to be paid to the nonmember spouse being determined by the court. Under section 11 notice of any application in relation to a pensions adjustment order must be given by the applicant spouse to the trustees of the pension scheme, and in making a pensions adjustment order, the court must have regard to any representations made by the trustees. In making a pensions adjustment order, the court will give the pension trustees such directions as it considers appropriate in relation to the order.
I am, of course, concerned to ensure that the pension arrangements under the Bill will be as practicable as possible. In this, I greatly value the expertise given to me by members of the pension industry and the help given by them in the formulation of the provisions in the Bill. The provisions are complex and I continue to have the benefit of consultations with pension experts. In the light of those consultations some fine tuning of the provisions may be desirable and I shall be giving consideration to the question of some amendments on Committee Stage. I shall take into account any points which may be raised in the course of further debate on the Bill.
While section 12 deals with pensions also, its scope is narrower. The section contains a useful provision enabling the court to order the trustees of a pension scheme not to regard the judicial separation of the spouses as a ground for disqualifying a spouse from benefiting under the scheme on the death of the other spouse. This is intended to remove a difficulty in situations where the rules of a pensions scheme may provide that survivors' benefit will only be paid to the spouse of the deceased member if both spouses are residing together at the time of the member spouse's death. Notice of an application under this section must be given to the trustees of the pension scheme and the court is required to have regard to any representations made by them. I have made similar provisions in section 42 of the Bill where parties have entered into separation agreements and have those agreements made a rule of court under section 8 of the Family Law (Maintenance of Spouses and Children) Act, 1976. That separation also may not disqualify a spouse from benefiting under the other spouse's pension scheme.
Section 13 re-enacts, in substance, provisions in the 1989 Act empowering the courts in suitable cases to extinguish rights of successions of the spouses following a separation decree. A decree of judicial separation will not end succession rights, but the court is empowered in certain circumstances to do so.
Section 14 empowers the court to order the sale of property and re-enacts provisions in the 1989 Act. It provides that where a court makes a secured periodical payments order, a lump sum order of a property adjustment order, it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale.
Criteria are set out in section 15 for the making of court orders under Part II in support of spouses and dependent children. Subsection (1) sets down that a general criterion provision must be made for the spouse and children as is adequate and reasonable having regard to all the circumstances of the case. Subsection (2) sets out more specific criteria in relation to such matters as spouses' income, earning capacity, property and financial resources, likely future obligations and age, as well as the conduct of the spouses and their accommodation needs. The court must take into account any contribution made by either spouse to the financial and other resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family. Subsection (3) sets out specific criteria in relation to children, which take into account financial and accommodation needs and other matters. Conduct of the spouse may also be relevant to the question of the making of financial and other orders in support of a spouse — desertion, for example, will be a bar unless the court is of the opinion that it would be unjust not to make such orders.
The remaining section of importance in Part II is section 17 which empowers the court, on the application of either spouse, to vary or discharge previous orders under part II, taking into account any change in circumstances. Variation orders are also subject to the criteria set out in section 15.
Part III of the Bill is new and takes into account the recommendations of the Law Reform Commission's report on recognition of foreign divorces and legal separations. At present, where a foreign decree of divorce is entitled to recognition in the State, the courts have no power to order financial or other relief for a dependent spouse. The Bill empowers the court to order such relief under Part II. It also provides that where one of the parties to the foreign divorce decree dies, the other party, if he or she has not remarried, may apply to the court for financial provision to be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section, the court must have regard to any lump sum payments or property adjustment order made in favour of the applicant, or any devise or bequest made by the deceased spouse to the applicant spouse. The provisions which the court can make under this section, together with any lump sum payments already made or property adjustment order, must not exceed in total the share, if any, of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was valid.
There is a technical legal aspect of the proposals in Part III on which I would like to make some comment. The Court of Justice of the European Union, in interpreting the Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, which has been in force in Ireland since June 1988, has ruled that a maintenance order granted in one state, on the basis of the obligation arising out of marriage of one spouse to maintain the other, is irreconcilable with a decree divorcing the spouses granted in the state where enforcement of the maintenance order is sought. For example, if a wife had a maintenance order granted against her husband by an Irish court, and her husband subsequently obtained a divorce in England, an English court would not be in a position to enforce the maintenance order because it is irreconcilable with the fact that a divorce has been obtained there since the making of the original maintenance order. In such circumstances, the only avenue at present open to an Irish person is to apply to the English court, in the divorce proceedings, for maintenance at the time of granting the divorce decree or at any time thereafter. It will now be possible under the provisions in Part III of the Bill for the maintenance creditor, where the divorce is recognised here, to apply to the Irish courts for maintenance. A maintenance order granted in such circumstances by an Irish court, since it will be granted following a divorce which is recognised here, will be capable of being enforced within the European Union.
Part IV of the Bill deals with declarations as to marital status and its purpose is to restate the law which enables a person to apply to the court for a declaration as to the validity of his or her marriage. The provisions implement, with certain changes, recommendations of the Law Reform Commission in their Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters. The commission was of the view that the present law would benefit from restatement in clear terms in modern legislation. At present, the power to give such declarations of status is confined to the High Court and its statutory basis comes from an Act of 1868. The Bill gives the Circuit Court jurisdiction to deal with the provisions in Part III.
Occasionally, the question of the marital status of a person, particularly one who has been married or divorced abroad, may be raised — for example, to determine whether he or she is free to marry here or can claim a pension or other benefit as the spouse or widow or widower of another. Part IV enables the court to make a declaratory order regarding the marital status in these and other cases. These provisions will be welcomed by, among others, the Registrar of Marriages, who can now refer persons with queries about their marital status to the straightforward procedures in Part IV.
Although a declaration will normally be sought by one of the parties to the marriage, others may be legitimately interested in its validity. For example, the trustees of a pension fund may wish to establish whether a woman is the widow of a former member of the scheme. Applications for a declaration may therefore be brought by anyone, but the court must refuse to hear a case if it considers that the applicant does not have a sufficient interest in the outcome of those proceedings.
Part V of the Bill implements a long standing recommendation in the report of the Oireachtas Joint Committee on Marriage Breakdown for an increase in the age of marriage from 16 years to 18 years. The Law Reform Commission and the Second Commission on the Status of Women also made this recommendation.
The provisions on notice of intention to marry are consistent with the requirement of most churches that notice be given by members proposing to marry. Circumstances may arise where the inflexible application of either or both of the new rules could be unfair. In recognition of this, I am providing that a person affected in this way can apply to the court for an exemption from one or both of the requirements.
Part VI of the Bill deals with a number of miscellaneous provisions, including court jurisdictions, the more important of which, in relation to nullity and jurisdiction under the Family Home Protection Act, I have dealt with in my opening comments.
In the course of the its passage through the Dáil important new provisions relating to taxation were included in Part VI of the Bill. The areas of the tax code to which these provisions relate are stamp duty, capital acquisitions tax, capital gains tax and probate tax. The main effect of these provisions is to extend the property tax exemptions which currently apply in financial and property dealings between married couples to those cases covered by the Bill where the foreign divorce is recognised here. These tax provisions will ensure that couples who are divorced abroad will not be at a disadvantage in terms of our tax code. The added significance of these tax provisions is that they will in substance be the same as those in any future divorce legislation.
This concludes my summary of the main provisions contained in the Bill. I am confident it will be found acceptable in principle by all sides of the House. I assure Senators I will consider fully the points they make today and during later stages of the debate.
I will make brief reference to an important area associated with the Bill which is also being addressed. My colleague in Government, the Minister for Social Welfare, Deputy De Rossa, is preparing legislative proposals to provide that no person will be disadvantaged as a result of his or her legal status being changed from married, separated or deserted to divorced. These provisions are required as a follow-on to the provisions in the Bill and again they will be model provisions in the case of provision in our law for domestic divorce.
Senators will no doubt agree that while it is essential to update and modernise our family law provisions and to give the courts full powers to enable justice to be done to parties of broken marriages, it is equally important that where parties can settle the terms of their separation they should be facilitated to do so by way of mediation and that where there is the possibility of reconciliation that should be facilitated by way of counselling. The extra funding for support services which I secured for 1994 and 1995, together with the various legislative measures I am bringing forward this year, are a measure of the comprehensive approach I am endeavouring to achieve in relation to the issues involved in marriage breakdown.
I have brought forward the Bill to put the civil legal aid scheme on a statutory footing. It has been initiated in this House and I look forward to debate on that matter in addition to debate on the Family Law Bill.
I commend this Bill to the House.
