Amendments Nos. 30 and 65 are consequential on amendment No. 1 and all may be discussed together.
Family Law Bill, 1994: Committee Stage.
The purpose of amendments Nos. 1, 30 and 65 is to increase from under 16 years to under 18 years of age the upper limit under which a parent has a legal liability to maintain his or her child. The new age limit will apply in cases where an application for maintainance of a child is made under the provisions of Part III of the Bill and will apply also in cases where an application is made for maintenance under the Family Law (Maintenance of Children and Spouses) Act, 1976. The Bill, of course, already provides that where a child is in fulltime education the upper age limit is under 23 years and there is no upper age limit where the child has a mental or physical disability such that it is not possible for the child to maintain himself or herself fully.
Amendments Nos. 3, 19 and 28 are related to amendment No. 2 and all may be discussed together.
I will deal with amendment No. 19 first. This amendment is in substitution for section 11 regarding pension adjustment orders. I indicated on Second Stage that I was concerned to ensure the pension provisions in the Bill would be comprehensive and the arrangements for their implementation would be as practicable as possible.
In the course of framing the provisions contained in amendment No. 19 I have taken into account the consultations between my Department, the Pensions Board, the Irish Association of Pension Funds and other pension experts. Those consultations have been ongoing for a considerable time since I initiated an examination in my Department of pensions in the context of marriage breakdown. I have never doubted that the area is complex and the provisions in the Bill reflect that complexity.
I have remained firmly of the view that pensions must be regarded as an asset just like any other asset whether it is real property, that is to say the family home, a farm or business property, or personal property, that is to say, money in a bank account, shares in a company or the contents of a home. I am pleased to be able to inform the House that the consultations have resulted in a maximum degree of consensus on the best way to frame the legislative provisions on pensions so as to meet the support that may be necessary for dependent spouses and children in that area. I thank the Pensions Board, the IAPF and all others concerned for their most helpful and valuable assistance in this matter.
In general, the amended provisions are the same as in the original section. They provide for the earmarking and splitting of pensions. However, the amended section provides additionally for new definitions and for situations where a member of a pension scheme ceases to be a member of the scheme before normal retirement age, and for situations where the dependent spouse dies before benefits come into payment. It also provides that the pension can be split at the discretion of the spouse in whose favour the order is made.
The provisions in the amendment are quite detailed and I propose to outline briefly for Senators their purpose and effect. Section 11 (1) contains the relevant definitions. Subsection (2) allows the court, following the grant of a decree of judicial separation and on application to it by either of the spouses concerned, to make a pension adjustment order designating a portion of the retirement benefit of a spouse who is a member of a pension scheme, that is the member spouse, for payment to a dependent spouse and children. Such an order would have the effect of preserving for a dependent spouse an interest in the member spouse's pension benefit and the proportion of the pension benefit which would be paid to the dependent spouse and children would be determined by the court.
Subsection (3) has a similar effect to subsection (2) so far as a contingent benefit under a scheme is concerned. A contingent benefit is a benefit payable under a pension scheme to a member spouse's dependants where the member dies before retirement.
Subsection (4) provides that, where the court makes a pension adjustment order, the spouse in whose favour the order is made may be entitled to the payment of the proportion of the benefit specified in the order to another scheme or arrangment so as to create an entitlement to an independent separate benefit, that is, the splitting of the pension benefit.
Subsection (5) provides for the mechanism whereby the pension benefit can be split on application by the person in whose favour the pension adjustment order is made. Subsection (6) provides in so far as specific schemes are concerned that the trustees may at their own discretion transfer the proportion of the benefit payable to the dependent spouse to another scheme so as to create an entitlement to an independent and separate benefit for the dependent spouse.
Subsections (7), (8), (9) and (10) provide for special circumstances where a member spouse leaves a scheme or where a dependent spouse dies before pension benefits come into payment. Specifically, they provide that where the member spouse dies or leaves the scheme before the payment of any benefit has commenced, the trustees must, within three months of the death of that spouse, transfer the proportion of the benefit payable to the dependent spouse to another scheme so as to create an entitlement to an independent and separate benefit for the dependent spouse.
Where the member spouse ceases to be an active member of the scheme the trustees must inform the dependent spouse and the court concerned that the member spouse has ceased active membership. Where the spouse dies before the payment of any benefit has commenced the trustees must pay to the personal representative of that spouse the proportion of the benefit ordered by the court to be paid to the dependent spouse.
The remaining subsections provide for notifications to the various parties to proceedings and for technical arrangements relating to the making of guidelines under the Pensions Act, 1990, for the calculation of the value of pension benefits. The guidelines for the calculation of the value of pension benefits are to be drawn up by the Pensions Board and I am happy to be able to inform the House that the Pensions Board is commissioning pension consultants to undertake the work.
In relation to notifications, I would point out that notice of any application in relation to a pension adjustment order must be given to the trustees of the pension scheme and the court, in making a pension adjustment order, must have regard to any representations made by the trustees. The section also provides that the court, in making a pension adjustment order, will give pension trustees such directions as the court considers appropriate in relation to the order. I trust Senators will support these amendments.
I do not know whether I will support these amendments. I do not understand the content. If the Minister wanted to ensure there was a balanced and informed contribution to the debate on this Bill, which by his own admission is important legislation, it would have been more helpful had we not received 18 pages of amendments yesterday, the bulk of which relate to pension matters.
I hope to come back to these elements of the Bill when speaking to the section. I do not have the benefit of legal expertise or back-up facilities and I do not fully understand the Minister's proposals in these lengthy amendments. The situation with the Bill as it stands, before any of these amendments are agreed to, is that a court may rule on the issue of pensions, which it could not before, and that is a welcome change. To date, pensions were not considered an asset when people separated. The family home, etc., would be dealt with by means of a judicial separation, by agreement or whatever. Pensions have not been part of that to date. Even though they could be considered to be a valuable commodity, they have not been the subject of division of property. This legislation, as I understand it, gives the courts the right to decide on the division or apportionment of a pension.
In the situation of either mediation or an agreed separation, am I right in saying that pensions cannot be dealt with as an asset to be apportioned, assigned or otherwise to one or other of the spouses, without going through the courts? I will deal with the annulment issue later. Is what is contained in this legislation in effect a lawyer's charter? There are couples who negotiate separations amicably and well through the mediation service, which the Minister has put additional funding into and has referred to in previous debates in this House. He has admitted that if a couple are deciding to separate, this is a worthwhile way of doing so. If I go to the mediation service with my spouse and we agree on the division of property and whatever other assets we happen to have, what is the position with my pension or my husband's pension? As I read it, even without the amendments the Minister is proposing today, the situation is that I cannot, without going to a court, have any portion of that pension assigned to me and my husband cannot have any portion of my pension assigned to him.
I also understand that, in law, the trustees of a pension scheme cannot and are not empowered to agree such a division or allocation of a person's pension. Before this, it could not be done because a law was needed to enable the trustees of a pension scheme to deal with a pension, to divide it or whatever. This piece of legislation does that, but in circumstances where we do not want to go the road of divorce — the Minister has said that this is the blueprint for the divorce legislation which will follow — or judicial separation, then what is contained in this legislation is worthless to me in terms of my husband's pension or my pension. If I am incorrect or I have missed amendments which are contained in the legislation which get around this, I would be delighted to hear so from the Minister.
As I see it, we now have another important piece of family law which appears to be lacking unless couples go into courts and battle it through. Maybe the Minister can confirm to me that I am wrong. I would like come back to this issue when we are debating this section, having given this a little more time. The Minister should accept that there is no way that this entire piece of legislation can be dealt with on Committee Stage between 2 p.m. and 6 p.m. today. I would like the opportunity to deal with the Committee Stage another day.
As Deputy McGennis rightly says, the whole area of pensions is extraordinarily complex and one would need a course of lectures——
——to get to the bottom of it, even for somebody who had a legal background and expertise in the subject. I will do the best I can with it within the timescale that we have. It is true that this legislation will, for the first time, bring the question of division of pensions into play. It is important that this be done. It is a major step forward, but I am not suggesting that it is a panacea either. There are certain limitations involved in it.
Basically, a pension arrangement is a contractual arrangement entered into by the trustees of a pension fund on behalf of the beneficiaries of the scheme. The terms and details of that are set out in an extensive trust document, which sets out the terms that apply, what the powers of the trustees are, what they may do and what discretion they may have in certain circumstances. The point to remember at all times is that the terms and conditions for a pension scheme vary from case to case. All pension schemes are not the same. It would be hard to find two that are the same. The level of discretion granted to trustees varies from case to case, as do the rights of the members and their dependants.
If one were to approach it on an out of court basis, the separating spouses or their representatives would have to look at the particular pension scheme and see what they were in a position to implement by agreement, having regard to the terms and conditions set out in the pension document. That would be quite an undertaking. It could be possible that the trustees would have the relevant powers and discretion and would be prepared to exercise their discretion in a way that the parties wanted; but one could not be certain of that. They may not be prepared to commit themselves at any particular point in time.
The legislation intrudes, to a limited extent, on pension schemes when matters come before the court. One could not bring in a generalised intrusion into what is, at the end of the day, a contractual arrangement between the trustees and the beneficiaries. When the matter goes into court, the question of pensions can be dealt with under the terms of this Bill and provision is made for dealing with it in two ways — earmarking and splitting of pensions. What I am proposing in this amendment is a variation on what was in the Bill before, giving the initial attention of the court to dealing with the particular pension scheme by way of earmarking and leaving rights in certain circumstances to the benefiting spouse under such an order to apply for a split based on the percentage earmarked for that spouse. In some circumstances the trustees may likewise do that on their own motion. That is a court situation.
The question raised by Senator McGennis is the question of what arrangements may be appropriate or can be achieved down that same road but outside of court orders and court proceedings. There is no easy answer to that. It would depend on the particular pension scheme concerned. The spouses, if they are minded to achieve a divide of pension benefits, would need to have their advisers look closely at what is possible within the terms of the particular pension scheme to which they subscribe. If they can and want to achieve it, can agree on it and it is possible within the terms of the scheme, they may do that. If a position arises where they can and want to achieve a split arrangement which is not possible within the terms of the scheme, they may in some cases have to achieve that by court order. It will be possible to do that and that is a major step forward. Until now that would not have been possible. It will be possible now and that could be of importance in many cases. I am sure that is not a comprehensive explanation but I hope it goes some way towards clarifying the position.
I appreciate what the Minister is saying and I recognise that this is the first time we have got to the point where pensions can be considered. While we are at it and given the huge number of amendments proposed on the pension issue, is it not possible — I do not have the expertise but I will try to find it somewhere by Report Stage - to cobble something together which allows an out of court division of the pension? The Minister and Members have said on a number of occasions that we must make proceedings in family courts as amicable as possible. If a couple agree an amicable separation and do not want to go to court, is it possible to make provision for them in an amendment to the legislation?
With due respect to the Minister, it does not matter what kind of pension scheme I have. Pension schemes are as varied and numerous as the social welfare legislation. The basic ground rule is that, regardless of the type of pension I have, the trustees may not dispose of my interest in my pension without going through the process described in section 11 of the Bill. If that is the case, we are effectively saying that all the mediation services and separations which are worked out mean nothing unless one ignores one's spouse's pension or goes to court afterwards. There is still a requirement to go to court.
Is there not some mechanism or procedure whereby, if I agree in mediation that part of my pension will go elsewhere or vice versa, this could be registered in court? I do not have the necessary legal expertise to know how this can be done. I do not want the Family Law Bill to be seen just as a divorce Bill as it includes many other things and ensures access to one's rights and entitlements.
As I said on Second Stage, this is good legislation but there are parts of it which could be improved, and this is one of them. Let us not force everyone into the courts. There were learned barristers and solicitors in this Chamber last week telling us they did work for nothing and represented people who were in dire straits. The majority of them do not do this and we are just setting up queues. Everyone at some stage has some kind of a pension and therefore this is relevant to anybody who negotiates or decides to separate. Somebody mentioned that there are 70,000 couples waiting for this legislation. They will have to traipse into court to get their pension entitlements. I ask the Minister, with his expertise and that of his Department which I do not have, if he can suggest something on Report Stage which would get over this?
Like Senator McGennis I think the pension issue is extremely complex and the Minister has accepted that. It is extremely difficult for us to absorb a seven page amendment when we see it for the first time the day before Committee Stage. I found the situation complex before I saw this amendment; I found it very difficult to understand all of it last night and I hoped for enlightenment from the Minister today.
The Minister's reply to Senator McGennis explained some of the issues I did not understand. Is he saying that the only way we can intrude on pension schemes is when the matter comes before the court and that, as Senator McGennis said, they cannot be changed if there is a deed of separation or some other agreement outside court procedures? There is no way the trustees of the pension scheme can interfere with the the scheme unless the provisions are there. I am not sure about that and I would be concerned.
I accept what the Minister is doing in this Bill and this amendment tries to improve the situation. As I said, last night I found it very difficult to go through the entire seven pages of the amendment and compare it with the Bill as passed by the other House to ascertain the difference. I hoped for an explanation by the Minister today and I ask him to clarify that point.
I will outline the variation this amendment makes in simple terms. There are two ways in which one can divide up a pension — earmarking and splitting. It is complex enough to get to the bottom of that alone but take it from me that those are the two methods. The Bill as passed by the other House provides that the court may either earmark or split. This amendment provides a little differently.
The amendment provides that the court, in the first instance, earmarks. If it is going to deal with the pension at all, it does it by earmarking; that is phase one. Having earmarked, a new situation comes into play. It is now open to, for instance, the wife to ask for a split based on the earmarking the court did. The court will not split initially, it will only earmark so it would be open to the wife — it could be either spouse — to apply for a split based on the earmark the court decreed. In other circumstances, if the wife has not done that, it is also open to the trustees of the pension scheme to split based on the earmark if, for the various reasons set out in the amendment, they are minded to do that.
This arises from the extensive consultations the Department had with the pensions boards and the association to which I referred. They primarily are the people who would be operating these difficult procedures and it would not work unless they were satisfied with the arrangements we are putting in place. They are at the cutting edge and operate these pension schemes. We, in the Department — I pay tribute to my officials on that — spent many long hours working with the pensions people who operate all these schemes to ascertain how it would work and operate in the most effective manner possible.
Senator McGennis and Senator Honan made similar points. In my view it would not be possible to deal with this in legislation in as broad and sweeping a manner as is posited. If one was talking about a contractual arrangement between the two spouses, and they were the only two people involved, they could agree anything they wanted in negotiation or mediation and it could be put into effect. Nobody else would involved so there would be no problem. In this instance we are not dealing with an arrangement which pertains to just two spouses. There are other people involved, mainly the trustees of the pension scheme and other holders who are beneficiaries under that pension scheme. They are key parties to the pension contract.
As this is a contract the spouses alone cannot alter the pension scheme by simple agreement between themselves. The only circumstance in which they could do that would be if, in my opinion, the terms of the pension contract included sufficiently wide a purpose that would allow it. The actual pension contract would have to provide that an earmark or a split was possible on notification and would be recognised by the pension trustees and have downstream effects. If this was included in the contract, anything that complied with the contract could be done by mutual agreement. I am not an expert in the pensions area but I think few pension schemes would be drawn that widely.
While one is not actually altering a pension contract, one is certainly affecting it in a new and special way. In most cases that would require a court order; that is unavoidable. It arises from the fact that some parties to a contract cannot alter it without the involvement of all parties to the contract. The trustees are key parties to the pension contractual arrangement and that is why the intervention of the court is and would be required in most cases.
Amendment No. 3 has already been discussed with amendment No. 2.
This is a technical drafting amendment.
The purpose of this amendment is to make clear that the various orders which the court will empowered to make under Part III will apply only to applications which are initiated after the Act comes into force. The provision is a standard one in legislation of this kind where the courts are given new powers.
Amendment Nos. 7, 8, 10, 11, 13, 18, 20, 21 and 22 form a composite proposal and may be discussed together.
I move amendment No. 7:
In page 9, line 5, after "decree of". to insert "nullity or decree of".
I presume this Bill must go back to the Dáil because amendments have been made to it in this House. The Bill was changed dramatically on Report Stage in the Dáil when all references to nullity were deleted. Substantial amendments in relation to pensions have been made to the Bill in this House.
On Second Stage I said I was concerned the Minister had deleted all references throughout the Bill to nullity because I believe the situation for separated people, regardless of how their marriages have broken down. Will amount to the same thing. In a number of cases it will amount to children, and probably one spouse, needing to be supported and to the assets of the family home having to be divided. The Bill as initiated catered for people who had obtained judicial separations or had their marriages annulled. The provisions and protections of the Bill are no longer extended to couples whose marriages have been annulled.
On Second Stage I said it is important that before a divorce referendum is held, everything should be cleared up and out of the way. Concerns about financial entitlements created the most concerns in the minds of peoples who decided not to vote for divorce in 1986. People were concerned they had not been financially provided for in law and that if the referendum proposal were carried, they would find themselves in a limbo situation. I think the Minister would agree this would have been the effect if the referendum was carried in 1986. The legislation which was needed to be put in place beforehand was not in place.
This Minister, in the main, has put most of the necessary legislation in position before bringing forward the wording of the referendum amendment and a divorce Bill. There are still issues which need to be tackled, an important one of which is nullity. If we are to say that those who have ended legally binding marriages by way of judicial separation or divorce will be catered for, we will do a disservice to those who, for many reasons, have obtained Church or State annulments.
My amendments are grouped together because they propose the same change throughout the Bill. I am asking that nullity be included in any references to judicial separation. If there were references to nullity in the Bill when it was initiated, why were they deleted on Report Stage in the Dáil? I ask the Minister to accept these amendments. I do not know if there is any reason this cannot be done. If there is a good reason why nullity had to be dropped, if it created another constitutional problem, we should say that and address that problem as well.
If people's marriages are annulled and declared to be void they have no entitlements in law, because if the marriages never existed we cannot provide for the division of property and so on. We must be honest and up front with people and say that there will be major problems in this area and that in order not to slow down the passage of the Bill and its laudable and welcome measures, we will have to address the issue of nullity separately. This needs to be said today and I ask the Minister to say exactly what confusion and problems the inclusion of nullity causes. My amendments propose the restoration of the references to nullity which were included in the Bill as initiated. If the amendments cannot be accepted, how does the Government intend dealing with the serious situation of people whose marriages have been declared null and void?
The purported effect of these amendments is to restore within the scope of the Bill provisions for the making of ancillary orders by the courts in nullity proceedings which were deleted on my initiative in the other House. The amendments purport only to have that effect. This is because in a technical sense they do not do so comprehensively. However, since I am opposing the amendments in principle, I do not propose to dwell on the technicalities. I proposed instead to deal with the main substance of the amendments.
It was represented to me in the other House and by some interested groups that while the provisions giving power in cases of nullity to make financial and property orders, including orders to enable provisions to be made out of the estate of the parties to an annulment, were welcome and overdue, there was the possibility that those powers could be open to challenge on the basis of constitutionality. I had, in regard to those powers, moved a number of amendments to the Bill to strengthen the provisions further. Those amendments had been framed in a way that would require the courts to take into account the interests of all parties concerned, including the rights of parties to a marriage that is contracted after the annulment of the marriage of either of those parties.
However, questions remained, in particular, about the validity of rights given to parties to an annulled marriage in cases where the marriage is void and, in effect, there never was a marriage in the eyes of the law. Those concerns were expressed in relation to the rights of the spouses in question and they were raised, even though the provisions were based largely on those contained in a paper on nullity prepared by the Attorney General in 1976, which took account of the laws in other jurisdictions. The provisions were also contained in the 1992 White Paper on Marital Breakdown.
I concluded it would be better to provide for the matter in one form or another, perhaps in a modified form, in separate legislation. Unfortunately, it has meant that while the Bill retains substantial provisions for support of spouses in the context of a judicial separation and in the case of foreign divorces, it does not now extend those powers to nullity. The aim was to have all those provisions consolidated in one Bill and in time this may be possible.
Having regard to the background which I have outlined, I am unable to agree that the nullity provisions should be restored to the Bill. I am, therefore, opposing these amendments. I ask Senators to agree that the better course at this stage is to progress this important Bill as it stands and not to put in jeopardy its implementation in the near future.
I understand what the Minister is saying. However, I am probably now more concerned about the Bill than I was at the beginning. The Bill specifically states that after people have secured judicial separations, they may be entitled to pensions and other rights. Therefore, those who part amicably, as we discussed on the previous amendments, and who agree their separation by way of mediation do not have the protection of this legislation in certain parts. Those who have received either church or State annulments are similarly left without the protection which this Bill affords to people who have secured a judicial separation.
When does the Minister intend bringing forward legislation to deal with nullity? If he cannot specify when, can he at least promise that such legislation will be brought in advance of the referendum on divorce? It is not helpful at any stage for issues to be left over. There is a lobby which does not want to see a divorce referendum carried, and I would not automatically be put into that category. It is bad enough that children will be used as ammunition in the next referendum but we, as legislators, should not leave loopholes which can be used — and rightly so in certain instances — to point out that the necessary legislation is not in place, that is, the situation in regard to pensions where people separate by mediation and must go to court to get pension rights and those with church or State annulments will have no entitlements under this legislation.
There is still work outstanding. Can the Minister tell us when he intends bringing in the separate legislation in regard to nullity to which he referred? If he cannot state that, can he give us a categorical assurance that this legislation will be brought in in advance of the divorce referendum?
I cannot give any particular date as to when legislation will be brought in. All I can say categorically is that it will not be brought in before the divorce referendum. This legislation has been needed for a very long time as we have not had legislation on nullity before. It was open to many Governments to deal with it but they did not do so. I hope to do so when resources in the Department permit, but that will not be before the divorce referendum.
Nullity is a separate issue. We are not talking about dissolving a marriage or the spouses in a marriage separating, but about cases where a marriage did not exist. That has downstream constitutional implications which must be faced up to. The question of how the property rights of the subsequent marriage of one of the spouses would be impacted on by a property claim of a person who had never been a spouse quite clearly has constitutional implications and dangers. That is why the only safe course I could adopt was to remove nullity from this Bill to be dealt with separately and, I hope, comprehensively at a later date.
This Bill deals with a substantial range of material, such as the questions of judicial separations and foreign divorces which are recognised in this country. That is an appreciable volume of material. The considerations in nullity are different and will require separate attention. I hope that that will come about sooner rather than later, but it will not be before the divorce referendum.
With regard to the point the Minister raised about a marriage which never existed, I would accept that if that was the reality but the Family Law Bill is about the division of property——
That is what nullity is by definition.
That is fine but may I pursue that one line further with the Minister? I had occasion to raise in this Chamber, and with the Minister for the Environment, the case of a woman who was married with six children and had a church and State annulment. I remember Senator Norris guffawing loudly at the time about how they had six children and the marriage was declared null and void. She reared and educated those six children on her own and worked and provided for them.
The same State which the Minister is telling me says that a marriage never existed, demanded £8,000 from that woman from her State pension as a nurse in lieu of unpaid contributions for her widows and orphans pension. As her children were all over 20 years of age, they were too old to get anything from the pension. She was told by the State that, in the event of her death, the husband of the marriage which never existed, and who had never supported her, would get full payment of the widows and orphans pension which she had paid. She could not opt out because there was no opt out clause. As she could not pay the outstanding £8,000 it was going to be deducted from her lump sum.
I am not trying to make life awkward for the Minister but this is the reality. We cannot deal with pensions unless we go to court, and in a situation of nullity a mother of six children had an extra £8,000 deducted from her lump sum. The State said that a marriage did not exist in the context of divorce but in the case of her State contributory pension it existed to the extent that she had to pay £8,000. I know the Minister loses the rag with me on occasion but I ask him not to dismiss me when I raise a point because I raise it for a purpose.
This legislation is flawed as it does not deal with nullity; it deals only with judicial separation cases. We are saying that those who quietly annul their marriages or go to mediation services will have no protection from this legislation. Those who are wealthy enough to get a foreign divorce or who are prepared to go through the costly — unless one is entitled to civil legal aid — judicial separation procedure in the courts will be looked after. Unless one can spend the money, one will not get a pension or entitlements.
I do not ask questions or table amendments lightly. This is important and needs to be dealt with. The Minister has admitted that it will not be dealt with before the divorce referendum. The people need to know before they vote that what happened to my friend in Skibbereen could happen to them.
I do not want to get involved in any one particular case without knowing the full facts; I have no knowledge of this case. Senator McGennis is getting carried away in saying that this Bill is flawed because it does not deal with nullity. This important Bill is certainly not flawed and deals with very important innovations which give very important new rights. It does not purport to deal with nullity.
Nullity is an important issue and I do not decry it or say that it would not be desirable to have a special piece of legislation developed to deal with it in all its aspects. However, this Bill deals with the question of judicial separation, of which there are many thousands of cases each year, and the question of foreign divorces which are recognised here. It brings in many new and important remedies.
There is nothing flawed about it, it is a very important and developmental Bill. Its terms were agreed during the currency of the previous Government, in which Senator McGennis' party and mine were in coalition. That was the format in which the Bill was developed to deal with those important——
Nullity was included then.
If Senator McGennis looks at the Official Report of the Dáil debates, she will see that very considerable doubt was cast on the question of the constitutionality of dealing with the nullity provisions in the way proposed. We are all bound by the Constitution. It is important that no constitutional question mark arises out of this Bill; it is much too important for that. For those reasons, I deemed it prudent, based on the advice I received, to delete the nullity provisions — which were just one aspect of the Bill, although an important aspect — and leave that over to be dealt with separately and carefully at a future date as soon as possible. It is important that we get on with this Bill which is giving new and important remedies which have been long sought, and which will be extremely helpful to people who are in marital breakdown situations as opposed to those whose marriages have been declared never to have existed in the first place.
- Byrne, Seán.
- Dardis, John.
- Fahey, Frank.
- Farrell, Willie.
- Fitzgerald, Tom.
- Honan, Cathy.
- Kelleher, Billy.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mulcahy, Michael.
- Mullooly, Brian.
- O'Brien, Francis.
- Ormonde, Ann.
- Wright, G.V.
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis(Dino).
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Henry, Mary.
- Howard, Michael.
- McDonagh, Jarlath.
- Maloney, Sean.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- O'Sullivan, Jan.
- Reynolds, Gerry.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Townsend, Jim.
- Wall, Jack.
Amendments Nos. 12, 16 and 17 are related to amendment No. 9 and all may be discussed together.
Amendments Nos. 9, 12, 16 and 17 are technical drafting amendments. Amendment No. 9 amends the opening paragraph of section 7 (1) and makes it clear that in granting a decree of judicial separation, the parties who may apply for a periodical payments order under section 7 are either of the spouses concerned or a person on behalf of a dependent member of the family. The other amendments are amendments to section 8 concerning property adjustment orders. Section 9 concerning miscellaneous ancillary orders and section 10 concerning financial compensation orders are of similar effect to amendment No. 9.
Amendment No. 12 has already been discussed with amendment No. 9.
This amendment provides that where a property adjustment order is made by the court and a person who is directed to execute a deed or instrument in relation to land which is the subject of the order refuses or neglects to comply with the directions of the court, where it is considered necessary to do so, the court may order another person to execute the deed or instrument.
The amendment also makes clear that any costs incurred in complying with a property adjustment order will be borne as the court may determine by either of the spouses concerned or by both of them. Under the law as it stands under the Judicial Separation and Family Law Reform Act, 1989, the law is silent in these two areas and Senators will recognise the need for expressed provisions to deal with these two matters.
In my experience there has been much difficulty when the court has ordered a division of property in a separation under the Judicial Separation and Family Law Reform Act, 1989, and where the spouse in whose name the property is registered refused to co-operate in either signing the deed of transfer or agree to a transfer of the property as determined by the court. It has posed practical difficulties when that spouse leaves the country or wilfully refuses to co-operate. I have known a few spouses who have been put at a severe disadvantage in trying to determine their property adjustments and settle the matter after the court decision has been made. Therefore, this amendment is particularly important on a practical level. I appreciate its inclusion in this Bill and I thank the Minister and his officials for doing so.
I welcome the amendment. It is an important amendment and caters for a situation where people are under extreme pressure. They have had their rights ordered by the courts but are unable to obtain them.
I move amendment No. 15:
In page 11, after line 47, to add the following new subsection:
"(4) Spouses may agree to settle matters in relation to property adjustment by Deed of Separation which will constitute a full and final settlement of all such issues between them."
It is becoming more common for spouses in a separation situation to want to conclude a full and final settlement with one another which would ensure that no future applications could be made against one another for any form of financial relief. At present it is not open to parties to conclude such a settlement, particularly in view of section 27 of the Family Law (Maintenance of Spouses and Children) Act, 1976. Spouses should be able to conclude such settlements and provision should be made in this Bill to allow separation agreements and court orders to be made full and final, provided that both parties consent to this and the court approves of the agreement and makes it an appropriate order deeming the agreement to be in full and final settlement.
The Minister said that couples could do this when this matter was discussed on Committee and Report Stages in the other House, but the court could come back to this at a future date. It has to power to do this if one spouse decides to take the other party to court. I would appreciate it if the Minister could accept this amendment.
I would like to hear the Minister's response.
Couples who wish to separate and who can agree on issues such as the custody of their children, maintenance support and the distribution of property, can enter into a voluntarily negotiated separation agreement which will arrange their affairs in a formal way without the need to obtain a decree of judicial separation or court-imposed ancillary orders. In general the provisions of such agreements are legally enforceable in the same way as with other contracts. They can also be made a rule of court under the provisions of section 8 of the Family Law Maintenance of Spouses and Children Act, 1976.
Senator Honan's proposed amendment would provide that where property adjustment is made as part of a deed of separation, it would be in full and final settlement. The net effect of this would be that, irrespective of changed circumstances of the parties, it would not be open to either spouse to seek to have the arrangement varied. This could prove very much to the disadvantage of a dependent spouse where, at the time of contracting the deed, there may have been little property to transfer and what was provided for the dependent spouse — the wife in most cases — may have been very small. The husband may subsequently come into substantial property or income and the former wife would not be able to seek to have the provisions of the deed varied, insofar as property or income was concerned. This could result in grave injustice for a dependent spouse. I am opposing the amendment for this reason.
Both spouses can decide that their agreement will be a full and final settlement which can be accepted by the courts. Under the present legislation, if something happens subsequent to this event, one spouse can decide to return continuously to court and seek further settlements. Effectively, there is no end to the actual agreement. It is open to either spouse to return continuously to court. I accept that the court has the power to review or vary maintenance agreements, for example. However, I cannot understand why the Minister is unwilling to accept the amendment if both parties involved in a separation agreement are willing to do this and want to settle their affairs, once and for all. The Law Society, from representations they have made, also believe that it is becoming common among spouses in a separation situation to want to conclude a full and final settlement. They are being prevented from doing so under this legislation.
All things being equal, I am broadly in favour of the position where two parties who enter into a contract can make a final agreement between themselves if they so desire. However, the bases on which separation agreements are often entered into are not built on a foundation of full and genuine equality. The dependent spouse will often be in the weak bargaining position, for various reasons, and may be constrained upon to enter into an agreement that is full and final. That could turn out to be to her disadvantage, and the disadvantage of her children, in many cases — for example, where when the agreement was entered into the circumstances of the wife might have been good and she might therefore have agreed to accept less than she would otherwise been entitled to. She would then be constrained to enter into such an agreement. She could then fall on hard times, whereas the husband could come into good times and acquire property, etc. In that new situation, which could not have been anticipated and resulted from seriously changed circumstances in both their fortunes, she would therefore be debarred from seeking review or redress as she could at present.
In this kind of contract agreement there often is no real bargaining position, from an equality standpoint, such as might be found in dealings and contracts between businessmen, which are different to the separation agreements entered into between spouses. I ask Senators to agree that the only safe thing to do is to leave it open to a spouse whose circumstances have changed to review a situation. That could be very important for many dependent spouses and children.
What is the situation with a couple who have separated and drawn up a deed of separation, the last words of which were probably "...in full and final settlement."? Is it open to either party to seek a judicial separation and reopen the matter?
They can apply for a separation in light of the new situation. I do not want to interfere with that right in case the circumstances have changed.
What is the legal standing of this deed of separation? These people are friends of mine who agreed a deed of separation. They thought the matter was finished and they agreed on the division of property, custody of the child and the amount of maintenance to be paid.
It has precisely the same status as a decree of judicial separation. Section 8 (1) of the Bill states "On granting a decree of judicial separation or at any time thereafter...". This is left open, because if the financial circumstances of either spouse change after a period of time, it would be a base to return to and seek a review. It is right and proper that this is the case. It would be quite dangerous to close off that possibility. The courts approach these cases in a very practical way. If the circumstances had not changed, either from the separation agreement or the date of the judicial separation, anyone returning to seek a review would receive short shrift from the court. They would be told that the circumstances were unchanged. However, if they returned when there had been a major change in circumstances, up or down as the case may be, the court would have to review the agreement in light of the new situation.
I was asked by the Family Law and Civil Legal Aid Committee of the Law Society to seek clarification about a case where a spouse entered into a deed of separation prior to the enactment of the Judicial Separation and Family Law Reform Act, 1989. Is the spouse entitled to institute proceedings under the Act and claim the various reliefs provided? The committee believe it is also unclear whether a spouse who entered into the deed of separation after the enactment of the 1989 Act can institute proceedings under that Act. They also believe the same uncertainty would apply to this Bill, as it is unclear whether it would be open to a spouse who has entered a deed of separation either before or after the passing of this Bill to institute proceedings under this Bill. They feel that if this is the case, it should be amended to clear up the uncertainty under the 1989 Act and the uncertainty that would occur if the Bill becomes law in its present form. Perhaps the Minister could clarify the situation.
Did the parties enter into a separation agreement?
Into a deed of separation.
Into a deed of separation before this Act, and whether they could now apply for a judicial separation?
Whether this Bill would actually apply to such a situation? Whether it would be open to a spouse who has entered into a deed of separation, either before or after the passing of this Bill, to institute proceedings under this Bill?
There is some uncertainty. We are considering that aspect and will return to it on Report Stage if necessary.
Amendment No. 16 has already been discussed with amendment No. 9.
Amendment No. 17 has already been discussed with amendment No. 9.
As amendment No. 7 was defeated, amendment No. 18 cannot be moved.
Amendment No. 19 has already been discussed with amendment No. 2.
Acceptance of this amendment involves the deletion of section 11 of the Bill.
Is it open to speak to the section?
No, we are not on the section yet.
Will we have an opportunity to speak on the section later?
If this amendment is accepted, section 11 of the Bill as already printed no longer exists.
Yes, but is there not a procedure whereby when we have dealt with the amendment we can have an opportunity to speak to the section?
It has been discussed with amendment No. 2.
On the Final Stage.
As amendment No. 7 was defeated, amendment No. 20 cannot be moved.
As amendment No. 7 was defeated, amendment No. 21 cannot be moved.
As amendment No. 7 was defeated, amendment No. 22 cannot be moved.
This is purely a technical drafting amendment.
Amendment No. 24 is consequential on amendment No. 46 and Amendment No. 47 is related. All may be discussed together.
Amendment No. 24 is a technical drafting amendment only and amendments Nos. 46 and 47 are consequential on amendment No. 24.
This is a drafting amendment only.
This is another drafting amendment.
Amendments Nos. 27 and 54 are related and both may be discussed together.
I move amendment No. 27:
In page 19, subsection (2) (f), line 5, after "family", to insert:
"and there shall be a rebuttable presumption that the work of the spouse within the home should, unless there are compelling reasons to the contrary, give rise to a joint interest in the family home".
This amendment is an attempt to recognise the work of the spouse within the home. We are discussing the Bill and this amendment in the light of the declared unconstitutionality of the Matrimonial Homes Bill. That Bill, which dealt with joint ownership of the family home, had the support of all parties in both Houses. I know the Minister greatly supported the principle which this Bill tried to enshrine. We were all disappointed that, in the light of the fact that the Supreme Court found the Bill to be unconstitutional, the Government is not pursuing alternative methods to enshrine the principle which we all supported.
Even though this Bill applies equally to men and women it will be of particular benefit to women. Likewise when we discussed the Matrimonial Homes Bill we believed that it would be of particular benefit to women in the home. The Matrimonial Homes Bill was trying to address that category of women who do not work outside the home.
In cases before the courts, particularly L v. L, the court decided that because a woman did not contribute financially to the purchase of the home or the repayment of the mortgage she did not have a joint entitlement to the family home. We are all concerned to address that position and these amendments try to do that. The financial dependency of women is a huge issue that needs to be addressed. Many women now feel that they must work outside the home in order to maintain this financial independence.
The Commission on the Status of Women recommended that joint ownership of the family home should be enshrined in our laws and they went further in looking for community of property. Obviously, we fell at the first hurdle. The Supreme Court threw out the Bill on the basis — which none of us expected — that it interfered too much in the family. Many of us expected they would find it unconstitutional because it interfered with property rights, but that was not the case.
In trying to address the issue when dealing with the family, we are trying to create a balance. Because of her work within the home a woman should have an entitlement to joint ownership of the family home. Her work should be recognised.
The Cork Examiner today published a survey carried out by Irish Marketing Surveys on behalf of Ark Life, AIB's life assurance company. The survey put a value of £486 a week on the work done by women in the home. The survey also found that four in every five married women described their working status as full-time housewives. At a rate of £486 a week, women would not be long in making a big contribution towards ownership of the family home, and a very good one too. We all accept the principle of the wife having an entitlement to a share in the family home, but up to now we have failed in our responsibilities to enshrine this into law.
I will be interested to hear the Minister's reply and the plans he has to address the situation if he does not accept the situation if he does not accept what I am trying to do here. Has he any plans to introduce the principles of the 1994 Matrimonial Homes Bill into law?
Senator Honan's amendment tries to enable a spouse to obtain ownership of the family home where there is not a separation and there is an ongoing relationship between the two people. A separation is catered for in the Judicial Separation and Family Law Reform Act, 1989, which is being updated by this Bill.
The amendment deals with spouses who are not separating and dictates that the matter can only be settled by the court. I would be concerned about bringing the court into the whole area of the marriage relationship and the effect it might have on the relationship. Obviously, it is designed to cater for a situation where there is some difference between the partners about the ownership of the home and only the courts can settle it. We all know what effect bringing the courts into any relationship, even outside of marriage, can have on two people. Litigation has ensured for generations that families were not on speaking terms. We all know of these situations. There are few families who have not been exposed to situations, where litigation has soured what previously could have been a reasonable and often close relationship. Once the courts get involved, that relationship is invariably and finally terminated.
There is also the question of the uncertainty of calculating the non-financial contribution. Senator Honan made one calculation today. What kind of argument would ensue, if either a husband or a wife — it is not always the wife who is in this situation, although invariably it is — puts the value of £480 per week on their contribution to the family home — in other words about £25,000 per year? What kind of difficulties and arguments would that raise if the courts were to put such a figure on it?
Finally, if the court calculated that the value of the non-financial contribution of the spouse to the family home was less than 50 per cent — for example, 40, 30 or 20 per cent — will they come back to court in five years for 25 per cent and again in ten years time for more? Will there be continuous litigation? Will the court have to decide over a period that there is an improved or changed non-financial contribution to the ownership of the family home?
Involving the courts where there is not a separation and where the relationship has not broken down, could initiate the commencement of a breakdown in that relationship, and I would be concerned about that.
I fully support the objective of Senator Honan's amendments. Senator Neville probably does too because I do not think he spoke with as much conviction as I have hear him on other amendments. I do not think there is any disagreement between the political parties about the worth of what the Matrimonial Home Bill, 1994 tried to enshrine in law, that is, the right of the wife, normally, to a share in the family home — but it was declared unconstitutional. The Minister does not need to be told that women should, of right in law, be granted——
I was the one who brought it forward.
Exactly. That is my point. I am not arguing with the Minister.
We, in Opposition, fully supported it.
But the Senator argued about how the court work it out——
——that was without a separation where the courts are being brought in, but I think it should be a right by law, as the Minister tried to achieve with the former Bill.
I agree. All parties in the House at the time totally agreed with the Minister's efforts and he will probably continue to try to achieve that objective. It appears that the more we try to improve the situation — and this is probably a criticism of myself and the 1937 Constitution — the more it has emerged, particularly in the women's rights committee, that there are areas of the Constitution which prohibit improvements in legislation: the Minister is currently dealing with one area relating to extending barring orders; the bail issue; the joint interest in the family home and the Minister's own Bill. The nullity issue today poses another huge problem in relation to the Constitution. The Government needs to address the areas of the Constitution which have outlived their usefulness or which need to be amended.
In relation to the amendment and the proposed referendum on divorce, maybe this is an opportunity, particularly in relation to the barring order issue, the family home and nullity provisions, to carry out a thorough review of the Constitution to see how we might amend it.
A review of the Constitution is under way as Senator McGennis knows and, hopefully, these matters will be addressed.
Amendment No. 54 proposes to enable a spouse, who has made a non-financial contribution to the household, to go to court with a view to establishing an ownership interest in the matrimonial property in proportion to that contribution up to maximum of 50 per cent. I appreciate that the Senator is seeking to give some legislative recognition to the contribution to the family made by a spouse working in the home and caring for the family. We are all conscious of the value of that contribution. It has already been given such recognition in Part II of the Judicial Separation and Family Law Reform Act, 1989, which is being repealed and updated by this Bill, and section 15(2)(f) in particular refers.
These provisions deal with situations where proceedings for judicial separation have begun and where the matrimonial property may have to be divided between the couple concerned. In those cases, it is essential that the decision of the court should take fully into account any non-financial, as well as financial, contributions made by each of the spouses, and particularly the contribution made by a spouse in looking after the home. That is specifically provided for.
The amendment deals with spouses who are not separating or proposing to separate. It provides that if one of those spouses wishes to assert an ownership right on the matrimonial property based on non-financial contributions and the other spouse disagrees, the dispute can be settled, and can only be settled, by the court. Of course, if both spouses agree there is no problem. If they disagree, the only way the dispute could be settled — and this is supposed to be in a non-contentious marriage situation — would be by the court. Such litigation would involve substantial expense and, irrespective of the outcome as Senator Neville rightly pointed out, it would adversely affect the marriage relationship.
It is true that under the present law financial contributions by a spouse towards the acquisition of the matrimonial property can give rise to proportionate ownership interests which can be determined by courts in default of agreement but there is a world of difference between establishing the extent of financial contributions, which are easily ascertainable and difficult to dispute. and that non-financial contributions made by either spouse from the date of the marriage up to the commencement of the litigation. This uncertainty would increase the likelihood of disputes and consequent recourse to the courts and it would also increase the costs of the litigation, which would normally have to be borne by the defendant spouse irrespective of the outcome. It might also be open to a spouse who had successfully established a share in matrimonial property of less than 50 per cent to return to the courts more than once to get extra credit for work carried out in the home in the meantime and eventually build up his or her share to the 50 per cent limit. In contrast, the determination of non-financial contributions on the occasion of a separation is a once-off evaluation of those contributions made during the period when the couple were living together. Moreover, I do not accept the suggestion that such a provision would help spouses get their partners formally to convey to them a share in the family home or other matrimonial property on the basis that otherwise proceedings would be taken against them. I believe such an implied threat of litigation could have the opposite effect.
In my opinion what is wanted most by spouses working in the home who do not wish to engage in litigation with their partners is a practical recognition of their contribution. The real deterrent is the formality and costs associated with putting the family home into joint names. I am giving consideration to whether legislation would facilitate more simplified and less costly arrangements. Such provision might enable couples who live in harmony to give full and effective recognition to the contribution made by the spouse who works in the home. By encouraging litigation between spouses we could do more harm than good.
The Senator's related amendment, No. 27, to section 16 (2) (f), proposes that there should be a rebuttable presumption that the spouse's work in the home should give rise to a joint interest in the home unless there are compelling reasons to the contrary. I understand the Senator's motivation in putting down this amendment but here we are dealing with the matters to which the court must pay particular regard when making an order under various sections of the Bill. These could include maintenance orders or pension adjustments orders, with the grant of a property adjustment order giving a spouse an interest or an enlarged interest in the family home, and might not be the best or most appropriate option for the parties. In those circumstances obliging the court to give an ownership interest in the home to one of the spouses might be contrary to that spouse's best interests.
I appreciate the presumption is expressed to be subject to there being compelling reasons for not granting a joint interest in the home but it seems to me it would be much better to leave the fullest discretion to the court to do justice in the circumstances of each case, once it has had particular regard, as the section requires, to any past or future contributions made by each of the spouses to the welfare of the family. I much regret, therefore, that for these reasons I am not in a position to accept the Senator's amendments.
The Government side has said we are dealing with separation agreements and there is provision for division of the property in that light. Here, however, we are talking about cases where there is no marital breakdown and there is a stable relationship. The Minister said trying to do this might have a detrimental effect on the relationship. Many women do not have any rights in relation to the family home, which has a damaging effect on their relationship, yet they are expected to put up with that.
Does the Government intend amending or reintroducing the Matrimonial Home Bill to make it constitutional? I moved these amendments because that Bill was found to be unconstitutional and the Supreme Court said it was up to us as legislators to introduce legislation to address the problems they found with it.
These amendments were also tabled by my colleague, Deputy Keogh, in the other House. I subsequently received representations from the Dublin Solicitors' Bar Association, which was concerned that this Bill does not give the court power to award an interest in property by reason of that spouse's work in the home. Case law under the Married Women's Status Act, 1957, section 12, shows the court will declare an interest in favour of the spouse who has contributed in money or money's worth to the acquisition of the property, but the courts have not gone as far as to declare work in the home sufficient to entitle a spouse to an interest in the property. That is worrying for women who work full time in the home and they can take no reassurance from what we are doing today or from the refusal to accept these amendments.
I cannot understand the difficulty in accepting amendment No. 27, which provides for a rebuttable presumption that the work of the spouse would, save where there are compelling reasons, give a joint interest in the family home. If I could be assured by the Minister that he would introduce an amended Matrimonial Home Bill, taking account of the concerns of the Supreme Court yet enshrining the principle we supported, I would be happy; but he has not made any such promise. Has the Government given up on that issue, or is it willing to bring forward amended legislation?
I do not need any persuasion as to the value of women's work in the home. I remind the House that it was the previous Government and I which brought forward the Matrimonial Home Bill. Senator Honan's party, the Progressive Democrats, was in Government before that and could have introduced that Bill, which was in preparation at that time. I did not start it from scratch. The Fianna Fáil-Progressive Democrat Government did not introduce it, nor did it bring forward any measure on that topic. I was determined to introduce it and was hopeful it would have been found in order; I had advice to that effect and we believed it was constitutional. It is to my deep regret that the court found otherwise. My bringing it forward is an indication of the bona fides of that Government and I on this issue.
Like her colleague in the other House, Deputy Keogh, Senator Honan laid stress on what efforts were being made to fix the Matrimonial Home Bill, as they put it. That Bill cannot be fixed to make it constitutional. If there is to be legislation in this area it would have to be different in kind to the Matrimonial Home Bill and by implication it could not be as far reaching. This is a difficult area, since the Matrimonial Home Bill finished as it did, and it is not easy of resolution.
There are now two categories of cases. Under this Bill, if the marriage breaks down all the property of the marriage is available for division. That includes not only a half-share of the matrimonial home, as would have been provided in the Matrimonial Home Bill, but the entirety of the property. In some cases it is considered appropriate that the entirety, not only half, of the matrimonial home should be given to one or other spouse — I know cases where that happened. All property is on the table — the matrimonial home, its contents, the family farm, the family business, shares, bank accounts, etc.
Where there is no breakdown, where the family is intact and remaining so, there are two possibilities. Either a transfer of a half-share or a proportionate interest will be done by agreement, or it will not. If agreement is reached by the two spouses where the marriage is intact, all they have to do is have a deed drawn up transferring whatever share they may agree at that point and that will be done. In that area we may be of help by devising simpler, cheaper forms of conveyancing transfers than those that pertain at present. The Department is examining whether that can be done.
If in an intact marriage the partners do not agree, what would happen if Senator Honan's amendment was applied? In this intact marriage, one spouse would bring the other to court and have a panoply of legal proceedings drawn up. They would battle each other in court as to the value of the work each did, with costs mounting up on both sides in the meantime. A court may decide that 15 per cent is appropriate, but two years later, as a result of further contributions, another application will be made to the court to upgrade that. It does not add up in an intact marriage situation. The matter cannot be resolved that way.
If there had been no court proceedings on the Matrimonial Home Bill, 1993, it would have been an automatic provision that the home and contents belonged to both parties rather than being based on house contributions. A court would not be necessary because they were both spouses. One can appreciate its thrust and purpose, which would have been all right if it had stood up, but unfortunately it did not. We are now faced with a difficulty and there is no easy route to take.
One cannot fix the Matrimonial Home Bill, 1993, because it was declared unconstitutional. A different type of legislation is needed to replace it. I am keeping the situation under review. If the constitutional position changes as a result of the review group's work, I would be delighted to reintroduce the Bill in its original form because I now believe it was the right thing to do. In the meantime we should try to simplify the conveyancing procedures because that would help many people in an intact marriage situation.
I thank and reassure the Minister that we acknowledge the work he has done in this area since he took office. We acknowledge the fact that he introduced the Matrimonial Home Bill, 1993, which was a huge step forward and which none of his predecessors were willing to do. I also acknowledge the Minister's work for civil legal aid and the extra funding he has secured for the law centres. We accept he has been kept busy because he has introduced many Bills, particularly in this House.
It is becoming a hazardous thing to do.
Does that mean we are working well?
I welcome what the Minister said about the formalities and costs associated with putting the family home in joint names. He is trying to reduce the costs which will encourage spouses who are in agreement to do that. I also welcome his statement that he is keeping the matter under review and that if the constitutional position changes as a result of the work of the review group, he will reintroduce the Bill. We appreciate what he has done, but we are concerned about women in these circumstances. Senators on all sides of the House would prefer to do this an easier way. I accept it is not easy to fix the Matrimonial Home Bill, 1993, which was found to be unconstitutional. However, we should raise this matter at every opportunity and try to ensure it is kept on the Government's agenda.
Amendments Nos. 31, 58 and 66 are related and all may be discussed together.
I move amendment No. 31:
In page 23, before section 22, but in Part II of the Bill, to insert the following new section:
"22.—(1) In any case in which application is made to the court for an order under section 6, 7, 8, 9, 10, 11, 12, 14, 17 or 35 of this Act, each party to the application shall file an affidavit which shall:
(a) state his or her income and the source of such income;
(b) exhibit statements for the last three years of any and all bank or building society accounts, credit union accounts or accounts with any other financial or credit institution of such party, whether in his or her sole name or held jointly with another or by a nominee on his or her behalf, and whether located within the State or in any other state;
(c) disclose the nature, extent and location of any assets currently held, or held over the last three years, by him or her, including, without prejudice to the generality of the foregoing, any interest in any lands or premises or other property, or any stocks, shares, cash, motor vehicles, Government securities, prize bonds, policies of life assurance or bloodstock, whether held by him or her solely or jointly with another person or by nominee on his or her behalf;
(d) disclose all income and/or monies received by him or her from any source whatsoever within the last three years, whether within the State or in any other state, including income and/or any other monies derived from any trade or profession carried out by him or her; income and/or monies derived from any dividends or interest, emoluments or remuneration received by him or her from any company of which he or she is or was a shareholder and/or director, and/or rental income, and
(e) exhibit returns of tax made by him or her for the last five financial years.
(2) It shall be an offence for any party to such application knowingly to conceal or to attempt to conceal the existence of any of the matters referred to in subsection 1 from the other party or from the court.".
The purpose of this amendment is to cover all orders which involve money. There should be total transparency, openness and accountability in relation to all assets and income. No one should have any reason to conceal anything from the other party. The Minister said in the other House that rules of court will take care of this, but if one files an affidavit of means which is subsequently discovered not to have contained everything, one can be prosecuted for perjury. I ask the Minister how many people have been prosecuted for perjury in the past ten years. That is not done in practice.
I have support from the Dublin Solicitors Bar Association which said that this Bill imposes a duty on the spouses or dependent members of the family in certain proceedings under the Bill to give such particulars of his or her property and income as may be reasonably required. In many cases the present discovery court procedure is not taken seriously enough. Under the rules of court an additional offence cannot be made. The association has said it has never heard of a party in a family law proceedings case being punished for contempt of court for failing to obey an order of discovery. The extension of attachment of earnings orders will not help where one spouse is self-employed because it may be difficult for the other spouse to get full details of their income and assets. This amendment should be accepted in that regard.
The effect of Senator Honan's amendment is to provide that parties to proceedings under the Bill are required to make full disclosure of their assets and income. In the course of the Bill's passage through the Dáil, this question of disclosure was debated at length and section 37 of the Bill was amended to provide that each of the spouses concerned shall give to the other spouse or defendant such particulars of his or her property and income as he or she may reasonably require for the purpose of the proceedings. In addition, amendment No. 58, which I propose today, provides that the court will have power to direct persons to comply with the provisions of section 37 for disclosure of information and, where they fail to do so, they will be in breach of a court order, which, as Senators will be aware, carries its own penalty.
Amendment No. 66 provides that the important provisions in section 37 are also incorporated in the Family Law (Maintenance of Spouses and Children) Act, 1976, which will provide for the first time that parties to maintenance proceedings under that Act will be required to make full disclosure of their property and income. Section 37, with the amendment I am proposing today, provides for full disclosure of information in relation to the parties' property and income, which can be enforced by a court. Senator Honan's amendment is, therefore, not necessary and I am opposing it.
Amendment No. 58 states:
Where a person fails or refuses to comply with subsection (7), the court, on application to it in that behalf by a person having an interest in the matter, may direct the person to comply with that subsection.
If they do not do this, they will be in breach of a court order which carries its own penalty. Is it an offence to be in breach of a court order?
It is a serious offence because it is contempt of court, for which the potential penalty is unlimited fine and imprisonment until it is complied with.
This amendment is an additional provision.
Amendment No. 58 puts the position in order and it achieves what the Senator wants.
This is a purely technical amendment.
Amendments Nos. 34, 35, 36 and 38 are cognate and all may be discussed together.
Amendments Nos. 34, 35, 36 and 38 are purely drafting amendments.
This is also purely a drafting amendment.
Amendment No. 67 is related to amendment No. 39 and both may be discussed together.
These are drafting amendments only. They are consequential on amendments made in the other House.
This is a drafting amendment only. It involves a recasting of subsection (1) but does not involve any change in substance of that subsection, which provides, in effect, for the making of interim maintenance orders pending determination of applications for relief orders under section 24 for persons whose marriage has been dissolved abroad or who have obtained a judicial separation abroad. It recasts that section and is purely a drafting matter.
Amendment No. 46 has already been discussed with amendment No. 24.
Amendment No. 47 has already been discussed with amendment No. 24.
Amendments Nos. 49, 51 and 52 are cognate and all may be discussed together.
These three amendments are all drafting amendments.
This is another drafting amendment.
Amendment No. 51 has already been discussed with amendment No. 49.
Amendment No. 52 has already been discussed with amendment No. 49.
Amendment No. 54 has already been discussed with amendment No. 27.
I move amendment No. 54:
In page 33, before section 35, to insert a new section as follows:
"35.—(1) In proceedings brought under section 12 of the Married Women's Status Act, 1957, the High Court or the Circuit Court, as the case may be, shall have additional jurisdiction in respect of property to which this Act applies—
(a) to inquire as to whether, and to find and declare that, a husband or wife, by reason of the extent of his or her non-financial contribution to the family household, has directly or indirectly enabled or assisted the other spouse to acquire or enlarge any interest, legal or equitable, in such property,
(b) to declare that such husband or wife is or was entitled to an equitable share in such interest, by reason of any non-financial contribution,
(c) to declare that the other spouse holds or held that interest, or its proceeds, in trust for such husband or wife to the extent of such equitable share accordingly.
(2) In determining the entitlement of a husband to a beneficial interest in respect of property under subsection (1) of this section, the Court shall have regard to:
(a) the value of the property in question.
(b) the financial contribution made directly or indirectly by either spouse towards the acquisition of the property,
(c) the duration and the nature of the non-financial contribution made directly or indirectly by each spouse to the family household,
(d) the circumstances of each spouse, and
(e) such other matters as the Court may consider relevant.
(3) An order made under this section shall not in any circumstance increase the legal or equitable share of the husband or wife in whose favour it is made to any extent greater than that of the other spouse.
(4) The jurisdiction conferred by this section is without prejudice to the powers of any Court to make a property adjustment order relating to an order for judicial separation under the law for the time being in force.".
Amendment No. 59 is consequential on amendment No. 55 and both may be discussed together.
I move amendment No. 55:
In page 35, subsection (2), lines 39 to 41, to delete subsection (2).
The Circuit Court is overburdened with work and cannot deal with the cases it already has. The Circuit Court does not issue written judgements. It does not have its own body of case law and there would not be any great consistency between courts around the country. The judges in the Circuit Court would not have other court decisions to go on. It is not appropriate that the Circuit Court would deal with these cases.
Section 37 of the Bill provides that the Circuit Family Court shall have jurisdiction concurrently with the High Court to hear and determine proceedings for a decree of nullity. The effect of Senator Honan's amendment would be to limit jurisdiction in such proceedings to the High Court only.
The purpose of providing, as the Bill does, for the Circuit Family Court to have jurisdiction in proceedings for nullity is to ensure that persons involved in such proceedings will have greater access to the courts and also to minimise the costs of such proceedings for the parties involved. It will also mean that the Circuit Court will have jurisdiction to deal with all family law matters. I am satisfied this is as it should be and I do not think the jurisdiction of the Circuit Court in family law matters should be limited. That would be the effect of the amendment and, consequently, I oppose it.
Section 28 of the Bill is a useful provision for persons to seek declarations by the Circuit Court regarding the status of their marriage. This may involve a declaration concerning the validity of a marriage. In these proceedings it may well transpire that the court will treat the proceedings as an application for nullity and the Bill provides for that eventuality in section 28 (7). If, as this amendment proposes, nullity is confined to the High Court, parties involved in the proceedings I have mentioned would end up in two courts. That would be an inefficient use of the courts' time and an unnecessary expense on litigants.
While I appreciate the Senator's comments in relation to the volume of family law business currently before the Circuit Court, I would direct Senators' attention to the announcement made yesterday by my colleague, the Minister for Justice, in relation to measures for tackling the backlog of cases in the courts generally.
I welcome what the Minister has said, particularly in relation to the announcement by his colleague the Minister for Justice yesterday. The Minister said that by dealing with nullity decrees in the Circuit Court one was giving greater access to the courts. The Circuit Court does not have adequate resources to deal with the present family law jurisdiction. With increased jurisdiction, particularly in rural Circuit Courts, I cannot understand how people will have greater access.
The Solicitors' Bar Association is concerned that the Circuit Family Court is being given concurrent jurisdiction with the High Court in nullity matters because the Circuit Court has no jurisprudence in this area and few written judgements are handed down in Circuit Court family law cases. Thus, the law of nullity will not continue along the lines of the development which has been ongoing in the High Court, particularly in the area of inability to enter into or sustain a normal marital relationship. This is particularly worrying in view of the failure to codify the law of nullity, notwithstanding the recommendations of Mr. Justice Costello's discussion paper on that issue. Because of the huge number of cases and the backlog in these courts, I do not accept that we are, in effect, giving greater access. A fully contested nullity petition would take up to three of four days in the Circuit Court.
Regrettably, there is also a backlog of cases in the High Court. Let us not get the idea that the Circuit Court has a backlog and the High Court does not; the High Court also has a backlog. My colleague, the Minister for Justice, has indicated that the issue of backlog in all courts is now going to be effectively addressed by the Government.
When one talks about access to the courts, one is talking to a large extent about costs. I have to point out to Senator Honan that the cost of access to the High Court is considerably higher than it is in the Circuit Court. There are many people who would be financially unable to bring an application that they wanted to bring in the Circuit Court and simply could not afford to do it all in the High Court. Therefore, access to the courts for remedy in such a case will be open to people if there is a Circuit Court jurisdiction, whereas it would be closed off to them from a cost point of view if it were confined as at present to the High Court.
I have to confess that I do not follow the question about availability of jurisprudence. Whatever jurisprudence that is there for a High Court judge is equally available for a Circuit Court judge. They can examine the jurisprudence and have it submitted to them by solicitors and counsel on both sides and that jurisprudence is available for them. They will quickly bring about their own jurisprudence as well in addition to that. The fact of the matter is that there is not a great deal of jurisprudence on this subject anyway — what is there is quite limited. I agree with Senator Honan that it would be desirable to have a new piece of legislation brought in dealing with all aspects of nullity. As I said earlier in the debate, I would like to see that happen. It is something that should have been done a long time ago. I hope to be in a position to address that during the lifetime of the current Government but I am not in a position to give any commitment in respect of it until I see how other matters progress and are dealt with.
This is purely a drafting amendment.
This is purely a technical drafting amendment.
I move amendment No. 59:
In page 36, subsection (1), line 26, before "court" to insert "High".
Amendments Nos. 60 and 61 are related and may be discussed together.
Amendments Nos. 60 and 61 are drafting amendments only. As to amendment No. 60, the effect of paragraphs (a) and (c) of section 39 is that notice of proceedings under the legislation must be given by the person bringing the proceedings to the other spouse and to any other person specified by the court. Amendment No. 61 provides for the deletion of paragraph (b), which would require notice to be given to any other person having an interest in the proceedings. I am satisfied that the requirement is too wide and particular cases which may arise would be best left to the court to decide on under paragraph (c). These are purely drafting amendments.
This is purely a drafting amendment.
Amendments Nos. 63 and 64 are related and may be discussed together.
Amendments Nos. 63 and 64 are drafting amendments only.
This is a drafting amendment only.
I have a question for the Minister regarding the property of engaged couples. Is this covered by the Civil Legal Aid Bill, 1995, or is it only marital property that is covered?
Is this a question arising on section 46?
It was really for my information. If there are disputes in this area will the property of engaged couples be covered under the Civil Legal Aid Bill? I thought only marital property was covered.
No, it covers family law matters. The matter would really arise under the Civil Legal Aid Bill. I will have a look at it and communicate with the Senator.
I thank the Minister. I thought a bit was left out and that it had to be just marital property, which is mentioned in the Civil Legal Aid Bill. I will be glad of the Minister's clarification.
I will communicate with the Senator on the matter.
I move amendment No. 69:
In page 42, subsection (1), to delete line 4 and substitute the following:
"a decree of judicial separation,
(b) a Deed of Separation, or".
This section deals with capital gains tax treatment of certain disposals by spouses. Under this Bill there is an exemption from capital gains tax for certain transfers between spouses. I am concerned that this exemption only applies to transfers made pursuant to an order under this Bill. Most legal separations are concluded by means of a deed of separation. Confining the exemption to transfers made pursuant to an order under this Bill would inevitably force spouses to institute legal proceedings against one another.
Section 49 as drafted is contrary to the spirit of the Judicial Separation and Family Law Reform Act, 1989, which encourages spouses to make every effort to resolve matters by means of a separation agreement. This exemption should be extended to transfers made pursuant to separation agreements and other court orders, such as those under the Married Women's Status Act, 1957. I ask the Minister to clarify if that is the case or if I misunderstand the provision.
I appreciate what Senator Honan is seeking to achieve. This subject is currently under discussion between my Department and the Revenue Commissioners. I intend to examine this amendment further between now and Report Stage.
In light of what the Minister has said, I will withdraw the amendment.
This is a purely drafting amendment.
This is also a technical drafting amendment.
When is it proposed to take Report Stage?