This is purely a technical amendment to the long Title.
Family Law Bill, 1994: Report and Final Stages.
It is an ominous sign when even the Title of a Bill has to be changed at this late stage. Can the Minister explain why it is proposed to insert the phrase "or after proceedings for judicial separation" into the Title? Does this mean that the parties are entitled to the provisions of this Bill before a judicial separation is completed? I do not quite understand the need for the change. Is the Minister saying that if a couple are in the process of a judicial separation, this Bill applies to them before a judicial separation is agreed?
No, it would not.
Perhaps the Minister can explain what it means.
As the Title stands, it specifies that the Act makes provision in relation to the jurisdiction of the courts to make preliminary and ancillary orders in cases where the spouses become judicially separated. The purpose of this amendment is to make clear that the Act makes provision in relation to the jurisdiction of the courts to make preliminary and ancillary orders both in or after proceedings for judicial separation. It clarifies and gives a better reflection of what this Act actually does. It is not related to the point the Senator is making.
On Committee Stage I sought clarification as to whether certain provisions or reliefs provided in this Bill would be available to people who had entered into a deed of separation, not people who had proceedings for judicial separation but who had entered into a deed of separation without going to court. The Minister said that there was some uncertainty. I raised the matter also because I was asked by solicitors about some uncertainty in relation to the Judicial Separation and Family Law Reform Act, 1989, and whether a spouse was entitled to institute proceedings under the Act and claim the various reliefs provided. They thought the uncertainty would apply in relation to this Bill. Does this cover that?
That is a different point altogether. It is a point of legal interpretation. This amendment is simply clarifying that even after a judicial separation order is granted and the ancillary orders are made, it is still open to a person, pursuant to the terms of this Act, to apply to the court for a variation or grant of an ancillary order. In other words, the orders can be made not only when the original application is being heard, but the opportunity is also left open to a person in changed circumstances to apply for an order at a later stage, or for a review. That is why we are substituting the words "or after proceedings for judicial separation".
This is also a drafting amendment.
This is also a drafting amendment. It involves the deletion in section 2 of the definition of the words "household chattels". The words "household chattels" are used in the Bill in section 51 (1) only. However, that section provides, among other matters, for amendment of the Family Home Protection Act, 1976, by way of the substitution of subsections. There is no need for a definition in the Bill along the lines suggested. The words are already defined in the 1976 Act. This is a technical drafting point.
I am not sure I understand the Minister correctly. I thought he referred to the previous amendment when he mentioned the deletion of the words "household chattels". Amendment No. 4 involves the deletion of a property adjustment order.
It involves the deletion of the definition of the words "households chattels". We do not need to have the definition in this Bill because it is in the Family Home Protection Act, 1976.
I apologise because I am one amendment ahead of the Minister.
This is also a drafting amendment.
This is a technical amendment to section 3 and the main effect is to make more clear the status of certain orders or decrees made under the Legitimacy Declaration Act (Ireland), 1886, the Marriages Act, 1972, the Married Women's Status Act, 1957, or the Judicial Separation and Family Law Reform Act, 1989, before commencement of provisions in the Bill which amend those Acts. It is a technical amendment.
I only received the amendments recently and as I am not a lawyer it is difficult to understand them. Is there a possibility that people could fall between the two Acts? Amendment No. 7 (c) refers to "proceedings instituted before such commencement under a provision of the Act of 1989 repealed by subsection (1)". I realise this would only be an interim measure and that those who are in the process of making legal arrangements regarding property, etc. would be covered by it. Is it normally the case that when legislation is introduced the old legislation continues to be used for a certain period, or am I misunderstanding the situation? As I understand it, if someone starts proceedings today for judicial separation they must continue under the Judicial Separation and Family Law Reform Act, 1989, and that what we are introducing today will not cover them. Perhaps I am totally mistaken because I only received the amendments recently and it is difficult to understand them when one does not have legal training.
A number of Acts deal with certain situations. We have the Judicial Separation and Family Law Reform Act, 1989, the Marriages Act, 1972, the Legitimacy Declaration Act (Ireland) Act, 1886, and many orders have been made under those Acts. We are repealing certain provisions in that legislation and re-enacting it in a varied form in this Bill. We want to ensure that orders which have been made long since under the other legislation are not affected by the repeal and that they continue in full force so that those positions which were set up then are not disturbed by the fact that we are repealing and re-enacting here. It is a technical matter. We do not want to cast doubt on those orders made under the other legislation which is being repealed and re-enacted by this Bill.
Do the words "this Act" in paragraph (c) of the amendment refer to the Bill we are discussing or to the Act of 1989? The paragraph refers to "the corresponding provision of this Act".
It refers to the Family Law Bill.
I want to be quite clear on this. If people commence a judicial separation today, does it continue under the 1989 Act?
Is the Senator referring to current proceedings under the 1989 Act?
Yes, but I cannot follow what happens if there is a change. Under which Act do people proceed after the President has signed the Bill?
They would continue under the 1989 Act. The new Act will only apply to proceedings commencing after this Bill is passed.
They will therefore continue under the 1989 Act. I wanted to ensure that no one would fall between two stools.
There is no question of that. Ensuring that does not happen is exactly what we are doing here.
Amendment No. 8 is recommitted. Amendment No. 10 is related to amendment No. 8 and both may be discussed in Committee.
This is a drafting amendment involving the deletion of the words "or a property adjustment order" in section 7 (5) (b). Subsection (5) provides that, if either spouse happens to remarry having obtained a decree of judicial separation, the court shall not by reference to that decree make a periodical payment order or a property adjustment order. Circumstances of remarrying could arise where one or other of the spouses obtains a foreign decree of divorce that is entitled to recognition in the State. Section 7 contains comprehensive provisions on periodical payment orders and the reference to property adjustment orders in section 7 was out of context.
Amendment No. 10 is a consequential amendment in that it transfers the effect of subsection (5) (b) in relation to property adjustment orders to section 8 which contains comprehensive provisions in relation to those orders. These are drafting amendments in essence.
The purpose of this amendment is to protect the family home from becoming the subject of a property adjustment order in cases where, after obtaining a decree of judicial separation, a spouse may happen to remarry. That circumstance could arise where one of the parties to a separation subsequently obtains a foreign divorce which is entitled to be recognised in the State and then remarries. The amendment would have the effect of precluding a family home resided in by the parties to that marriage from being the subject of a property adjustment order.
Would that apply to a family farm as well as the house?
It would not apply to the farm but it could certainly apply to the family home element of the farm.
There is a difficulty in relation to any property relating to the original marriage. In the light of the separation and remarriage surely the property relating to the previous marriage — be it a house or farm — would be tied in.
The property adjustment would have been dealt with under the original judicial separation involving the first family. Decisions relating to home, property and so on would have been dealt with at that point. We are now talking about a situation where one of the parties secures a valid foreign divorce which is recognised in Ireland — there are a large number of those — is then entitled to remarry, does remarry and has a family home. That family home cannot be disturbed in a property adjustment order.
I have a question relating to the section.
We can only deal with the amendment at present. This is Report Stage of the Bill.
I sought clarification regarding the section on Committee Stage. The Minister said that he would consider it between Committee Stage and Report Stage.
It is out of order but I will permit the Senator to ask a brief question.
Several amendments were dealt with very quickly on Committee Stage and we sought clarification at that time. The Minister stated that there was some uncertainty regarding this issue, that he would consider it and return to it at Report Stage.
I inquired earlier, with regard to amendment No. 1, whether it would be open to a spouse who entered into a deed of separation, either before or after the passing of this Bill, to institute proceedings under the Bill.
That is a legal position which is not being dealt with under the Bill. There have been a number of legal decisions, or at least one legal decision, on the subject. However, we are not addressing that point in the legislation.
This legislation is being introduced because of the situation in relation to marital breakdown. We are attempting to address the problems which arise from that. There was uncertainty after the passing of the Judicial Separation and Family Law Reform Act, 1989. The Family Law and Civil Legal Aid Committee of the Law Society asked me to seek clarification on this matter. It is obviously an issue of concern, particularly in relation to the Judicial Separation and Family Law Reform Act, 1989, and they see it as something which could potentially raise concern when this Bill is passed. This is our only opportunity to clarify that difficulty. I presumed that the Minister would consider the matter after Committee Stage to see if it could be resolved. It is very important that there be as little uncertainty as possible in relation to family law matters.
The Senator will appreciate that the question of writing finality into any of these orders must always be a matter of great concern. Senators will note that the whole thrust of the legislation, both in 1989 and at present, is that if circumstances change it is open to either spouse to apply for a review of the proceedings or for a further order. One would have to show great caution before writing a finality into a separation situation having regard to the fact that circumstances change. That was the reason for one of the earlier amendments agreed to by the House. We are preserving the position. Circumstances change and variations are necessary from time to time even after a court order, let alone a separation agreement.
No further discussion will be permitted on this matter.
I would like to ask the Minister a question.
Only with regard to the amendment, Senator. I allowed Senator Honan to raise a question she said she raised on Committee Stage to which the Minister had given a commitment to return.
I did not ask the Minister a question in relation to this amendment.
The Senator may speak on this amendment by all means.
Do I understand in relation to property adjustment orders that the content of this section will not apply to couples who have not secured a judicial separation?
Is the Senator referring to the amendment or the entire section?
It relates to the section and the amendment.
The amendment deals with a specific situation where one of the spouses, who had originally been judicially separated, has secured a valid foreign divorce, has remarried and is in a family home. We are saying here that that person's family home cannot be disturbed in the course of a property adjustment order.
A property adjustment order can, in the generality of the situation, be applied for even quite a long time after the judicial separation, if the circumstances so warrant. I think that is a correct and appropriate position to leave open because, as I said, circumstances change. That is why it is possible even at a latter stage for either of the spouses to an original judicial separation to apply for a property adjustment order. To deal with that situation, we must bring in this amendment to ensure that one item that it will not, and cannot, cover would be a valid family home setup following a remarriage following on a valid divorce.
If divorce goes through, how will that effect the legislation?
That is a good question. The answer is precisely in the same way as is being provided for here in the cases of foreign divorces. If the referendum goes through and divorce comes in, the same thing would apply. If one of the spouses remarries and has a valid family home established, that could not be the subject of a property adjustment order.
Will the Minister have to amend the legislation accordingly?
The divorce bill, I would imagine, will cover that kind of situation. That would be a different position but the same thing would apply. In other words, if what we are saying here in this Bill is that it does not apply in relation to a family home following the grant of a decree if either of the spouses concerned has remarried, the only circumstance now in which they could validly remarry is by obtaining a valid foreign divorce. If divorce is provided for here, they could do it the other way by obtaining a local divorce.
This is a technical amendment providing for the definition of the words "dependent spouse" which are used in the Bill.
I hope this amendment will not adversely affect anyone, particularly a woman who has worked in any small capacity outside the home, perhaps to improve the family finances. I hope she will not be in a more deleterious position than someone who had worked totally in the home. I would not like to think that a person who had not worked up to the potential of their earning capacity, maybe having had a long time where they were involved totally in home duties, would be considered by the courts to be very much more independent than someone who had not worked outside the family home for a length of time.
I was concerned when I read this amendment this morning. Apart from voicing my concern, I can do no more because it will depend on how it is interpreted. Certainly, I would not like to think that any woman who has worked within the home for a long period of time and then takes up a job outside the home on a part-time basis in order to supplement family finances would be assessed as being in a very much more advantageous position than someone who had never worked outside the home during the previous years.
I wish I had longer to consider it and get some advice. Someone could say to a member of my own profession, for example, who went back to work in a very limited part-time capacity after maybe 15 years of working totally in the home and child-rearing that since she is a doctor she is in a good position to get a good job. That would be far from the truth of the situation.
Like Senator Henry, we all have grave difficulties with the Minister's amendments by virtue of the fact that, if we were lucky, we got them only yesterday.
Can I ask about the opposite case? Take the situation where in a rural or, indeed, urban area the husband is the spouse who is at home full-time. In that situation, and depending on the wife's income, she might find herself responsible for providing the accommodation for that spouse who is wholly or mainly dependent on her.
I, too, was concerned about that and I listened carefully to Senator Henry's contribution. Will social welfare payments be taken into account in the context of her position as a totally dependent spouse? It is difficult to assimilate all of this information. We need more time to consider this very detailed Bill. I am concerned about certain areas but I have not had sufficient time to give them full consideration. Many people have asked me questions about the Bill and we have not been given sufficient time to consider it today.
This arises in the context of section 9 which deals with the court in exercising its jurisdiction under subsection (1) (a) which refers to having regard to the welfare of the spouses and any dependent member of the family and, in particular, to taking into consideration that where a judicial separation decree is granted, it is not possible for the spouses concerned to continue to reside together and that proper and secure accommodation should, where practicable, be provided for a dependent spouse. I am proposing to amend that to "a spouse who is wholly or mainly dependent on the other spouse". Some spouses might be dependent to a trifling extent and it is not intended that particular provision should come into play in those cases.
The question of contribution referred to by Senator Henry on the granting of decrees under section 9 is set out clearly in section 16 (1) (f) where the court is enjoined to take into account the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contributions made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family. Those provisions are carefully catered for in that section and the court is enjoined to take that into account in making any of its orders.
My question referred to the fact that the wife would be the spouse in this case who was——
It could be either spouse.
Therefore in this case the woman could lose the family home.
That is and always has been technically possible. It would be unusual but that is not to say that it does not happen or that it might not be appropriate in some cases.
If the wife is in receipt of deserted wife's allowance, will that exonerate the spouse from any further commitments? Will the Minister give us an example of how that would work?
The Senator is talking about a wide range of possibilities. The income of each spouse is important but it is just one factor in the equation. In deciding what orders it will make, the court will take all factors of that family into account including the income of the spouses, the needs of both, the ages of the children, the home situation, etc.
On the point raised by Senator McGennis, as one who has been through that process I am well aware of the minute investigation carried out by the court in relation to financial income on both sides, property, the children, etc. I am confident that the section proposed will be more than adequate to meet the concerns of both husbands and wives. This is not a type of revenge tour — it is about equity between people irrespective of sex.
This amendment is in substitution for section 11 which deals with pension adjustment orders. In effect the amendment is also in substitution for the section which was substituted in the House on Committee Stage. In bringing forward amendments to the pensions section at Report Stage, there was the option of listing the amendments separately. However, since there are about 50 in number, the approach being taken, as indicated earlier by the Cathaoirleach, is to substitute a new section. The assumption is that the House will be better able to see the section in full and, therefore, better able to assess its efficacy.
The main principles of the section have been in the Bill since it came before the House. I indicated in the course of the Committee Stage debate that I was concerned to ensure that the pension provisions in the Bill would be comprehensive and that the arrangements for their implementation would be as practicable as possible. The provisions and amendments to them have been framed on the basis of extensive 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 am glad to say that the pensions people who have been associated with the work are fully satisfied with the revisions being made and have indicated that they are in the best possible shape from the point of view of the practicalities involved. I wish to put on record once again my deep appreciation of their endeavours and their co-operation in this area. There is no change in the main policy involved in the substitute section before the House. What is involved is a series of technical drafting amendments. For the information of the House I propose to indicate the main amendments.
The amendments provide, for example, for the following: new definitions for situations where the member of the pension scheme dies before normal retirement age and ceases to be a member of the scheme and for situations where the dependent spouse dies before benefits come into payment. I have provided for a number of technical amendments which make it more clear that where a spouse who was a member of a pension scheme dies, the pension benefit earmarked by the courts to be paid to a dependent spouse is automatically paid by the trustees directly to that spouse.
I am also making provision that the trustees of a pension scheme, in complying with a court order under the section, will not be held liable under the scheme where such compliance occasions non-compliance with the rules of the scheme. The section, as now proposed, also provides that the court in making a pension adjustment order will give pension trustees such directions as it considers appropriate in relation to the order. I trust Senators will support these amendments which are aimed at improving the operation of the pensions section of the Bill.
It has been a bone of contention for some time in this and in some other jurisdictions that there is an absence of legislation to enable the courts to adjust the rights of spouses in pension schemes on the breakdown of a marriage. I have made it my business to ensure that a mechanism is provided on the matter. It has taken considerable time and effort to make those provisions a reality. I think the House will agree that it has been well worth while.
The court, in separation proceedings, is already obliged when making provisions for a spouse and children to take the financial and other circumstances of the parties into account. The section on pensions will ensure pensions can be taken into account by the court in the same way as any other asset. I commend the provisions in that regard.
I wish I could agree with the Minister that the insertion of a new section makes it easier to assess the effects of the amendments. I found it difficult to understand the amendments on Committee Stage but now the Minister proposes to change the entire section on Report Stage and it will not be easy to assess its effects. I certainly have no idea what effect these amendments will have. I take the Minister at his word when he says that this is the first time in law that a spouse will be entitled to a share of the other spouse's pension and that is very worthwhile. However, I do not know if the proposed new section is the best way of going about it. When we discussed this on Committee Stage the Minister was quite confident that his Department, in conjunction with The Pensions Board, had come up with the best possible wording.
There is no policy change.
I know there is no policy change. When there are lengthy amendments such as this it would be helpful if we were to be given a copy of the Minister's speaking notes on it. I thought I heard the Minister say that this gives the pension trustees the latitude to make decisions and so on — I may have misunderstood — but I am not sure that I want pension trustees to have the latitude to make those decisions. I know it has to do with money——
It is the court which will do that.
On Committee Stage the Minister referred to the various types of pensions and I have been asked to raise a question on the defined benefits scheme and defined contributions scheme. As far as I remember from the Committee Stage debate only one of those schemes is included in this section of the Bill and it was suggested that I should ask why one scheme should be singled out.
There is at least one day's work for a Member to deal with the small technical amendments in order to have some idea of their effects. I have no idea what effects this entire new section will have. I presume the Minister thinks it will strengthen the protection of people who seek a judicial separation. However, it does not do so, as will be evident from my amendment. Senator Honan queried the provision for couples who have not gone down the judicial separation route.
I do not know what effect this section will have and that says a great deal about the way the Bill has been handled. I hope that in the coming weeks better attempts will be made at ensuring a "Yes" vote in the referendum on divorce because if this kind of confusion reigns the Minister will be unsuccessful in his referendum.
That confusion reigns in Senator McGennis's mind should not imply that it reigns throughout the country. I am as much a lay person as she but I would think the Minister has done a tremendous job in this complex area. It is well known that pensions have been used as offshore repositories of money. A large proportion of income can be channelled into a pension and the pension remains untouched. It is a huge asset in terms of a divvy up of disposable income. The proposition as I understand it — and I am open to correction — is that irrespective of the rules and regulations of a scheme, a court ruling on the issue supersedes all the rules. That is very valuable. It gives the ordinary person, male or female, the power of the law that could otherwise be defeated by the expenditure of large sums of money on very expensive lawyers. We should all welcome this section.
I agree with Senator McGennis that it was totally unacceptable for the Minister to put down a seven page amendment to the section dealing with pensions the day before the Committee Stage debate. He has done the same on this occasion and completely changed the section. I accept his good intentions — he said that much time and effort had gone into involving the people dealing with pensions and trying to do the best for the spouses concerned — but it is extremely disingenuous of him to expect Opposition Senators to accept his amendment and good intentions. However, we have no choice as nobody could be expected to read in detail a seven page amendment to a section which had previously been amended by a seven page amendment the day before we debated Committee Stage. It is obvious from the number of Report Stage amendments that this is a technical Bill and it is insulting and wrong to expect Opposition Senators to accept all of them at face value. How is this House supposed to function if it is not given an opportunity to go through amendments which will come before it and debate them in detail?
Senator Magner was being unfair when he said we were confused. If we had been given an opportunity to look at the amendments in detail we would be clear about what we are doing. The Minister cannot expect us to be clear about what we are doing when we were given such short notice of the amendments.
I welcome the Leas-Chathaoirleach to the Chair and wish him well in his appointment.
I am glad the Minister has endeavoured to deal with this complex issue which needs to be clarified. He has gone a long way towards dealing with the questions raised about this major issue which could be used as a mechanism to evade responsibilities. By dealing with the matter in this way the Minister is facing up to this possibility and he is to be complimented on his efforts.
Having said that, I have some difficulty in cases where court orders cease to have effect, for example, where persons have opted out of schemes. The issue of opting in and opting out of pension schemes has been a cause of some concern in the Army where members opted out of pension schemes and their widows received no pension. Difficulties may arise if people can opt in or opt out of schemes. If a person decides to opt out of a scheme the court will have no jurisdiction over the element of the pension which was applicable before the opt out date. This is a complicated issue and the Minister has not helped the situation by introducing such a complex amendment at this stage. This Bill has been around for some time and it is unprecedented for a Minister to put down so many amendments on Report Stage.
I, too, welcome the Leas-Chathaoirleach to the Chair.
Thank you, Senator.
I commend the Minister on putting down this amendment. On Committee Stage we had a long and detailed discussion on this issue and the Minister has dealt in the amendment with many of the concerns raised by Senators on all sides of the House. He has also had extensive consultations with the various pension bodies on their concerns. I understand that these bodies are happy with the proposals contained in the Minister's amendment.
I was involved in the pensions area for many years. It is a highly complex area, but important to those in receipt of pensions and contributing to pension funds. The proposal before the House is very progressive. We are way ahead of many of our fellow members of the European Union and certainly of our nearest neighbour, the UK. This to be welcomed because pensions, like anything else are property, and the courts are now in a position to protect the pension rights of both spouses in case of marriage breakdown.
I commend the Minister for listening to all sides of this House on Committee Stage, having wide consultations with the experts, and bringing forward proposals which are progressive in the European context and will set a headline for many of our neighbours.
I join in welcoming you to the Chair, a Leas-Chathaoirleach. I appreciate that the amendment is complex and hard to take on board at short notice, particularly in comparison with what was before us when we last spoke about the Bill.
The Minister deserves to be congratulated on tackling the mire of pension funds in terms of family law. I agree with Senator Magner that they were badly abused in every sphere of family law with which I was familiar in the past. People automatically put money into pension funds knowing they were untouchable so many couples found that it was too late for them to get their rightful share of the family property. This will be of vast help to many thousands of people in determining who owns what and in not allowing a safe haven for the better off. In this Bill we have dealt with pensions by way of property and pension adjustment orders as provided for in section 11 in a way that is far beyond what is available in the North at present. As a Border Senator I am very much aware of that. We should clap ourselves on the back for having done so.
There is one point on which I seek clarification. If a dependent spouse elects to take the pension share when it matures, and dies before that happens, does that entitlement go to his or her estate? Apart from that, it is clear what is intended by the amendment. Certainly the provisions of section 11, though complex, are excellently worked out. I congratulate the Minister and his Department on their work in that area of law.
I join with the other Senators who welcomed you to the Chair, a Leas-Chathaoirleach. Let me first refer to Senator Honan's suggestion that I was somewhat insulting to the House. I assure the House that under no circumstances would I ever consider doing anything that was in any way remotely insulting to this House. That certainly was not my intention. I regret that it took a long time to complete the fine-tuning in this very complex area, and I sympathise with Senator McGennis and the other Senators who have referred to the complexity of it. It is extraordinarily complex and there are many trained lawyers who would need a long time to examine this material and work out its ramifications.
It is so complex that, as Senator Neville rightly pointed out, in most other countries they simply shied away from it and did not tackle the very difficult question of pensions in family law. However, I have always felt it very important that we grasp that nettle and deal with pension and property rights. In many cases, the pension is the family's main asset and it would be wrong to leave it out of the equation. Great difficulties had to be overcome and we had to work with the pension authorities and boards who operate these schemes. We could not do it on our own because without their co-operation and assurance that what we were proposing was feasible, we could not have commenced the whole operation. That is why there was ongoing consultation and fine tuning.
We are not making any fundamental changes today. Certain technical changes are being made and some new points of clarification emerged from the consultations with the pension authorities which we felt we had to tackle in order to get the best possible result. However, this is quite fundamental legislation as it is giving the courts the power to make orders intruding into contracts between people and the pension authorities. We had to do that in order to bring this objective to fruition.
Senator McGennis asked whether all schemes are included and if defined contribution schemes and benefit schemes are included. I assure her that both are included. Senator Daly referred to the opt out position. That is intended to be covered under the legislation. If there is an opt out, the build up position allocated to the spouse will be protected if an earmarking order is made by the court. In other words, a person cannot escape simply by opting out where the order has been made.
We have brought this very complex area to the optimum position we can achieve. I do not mind analysing it again but I explained it in some detail on Committee Stage. The objective is that the courts are being given power to earmark a portion of the pension between the two spouses, for example 40 per cent and 60 per cent. It is then open to the spouse who is awarded that earmarked portion to apply for a separate pension in that same fund or to transfer the benefit to a new fund nominated by that person. Pensions are now, and will be after this Bill is passed, a key part of the family law situation and will apply on marital breakdown, in the cases of both judicial separation and foreign divorces recognised here. It will also apply in domestic divorces if they come into play.
Does that mean that one is locked into a scheme with no freedom to opt out? The amendment states, "after the making of the order, the member spouse ceases to be an active member of the scheme". What happens if one wishes to opt out of the scheme? It gives no freedom to opt out and curtails movement.
If a court order has been made earmarking a proportion of one's benefit to one's spouse, that proportion of the benefit is secured. One may opt out of the remaining proportion if one is entitled to do that under the terms of the scheme — under some schemes one can and under others one cannot. However, the part that is earmarked for the spouse by the court order remains earmarked and preserved, and various provisions are set out in the subsections which give the spouse the right to make certain applications in connection with that to the pension trustees and so forth.
Why has the Minister included (c) at all? It states: "(c) after the making of the order, the member spouse ceases to be an active member of the scheme,".
That is providing for notification to the court so "the trustees shall, within 12 months of the cessation, notify the registrar or clerk of the court concerned and the other spouse of the cessation."
I am still not quite clear about it.
The court has made an earmarking order under subsections (2) or (3) of the scheme, the trustees of the scheme have not applied to transfer the amount and after that a member spouse ceases to be an active member of the scheme. The earmarking has already taken place. Let me refer to the Senator's case again. The Senator is a pension holder. Her spouse applies to the court for and obtains an earmarking order against 40 per cent of her scheme. Her spouse lets that sit and does not apply for the split — he could apply for the split but decides to leave it so and have the benefit of the earmarking of the 40 per cent. That 40 per cent is retained for the Senator's spouse. If she ceases to be a member of the scheme or opts out of the scheme the spouse is entitled to know that has happened. This provision provides that within 12 months the spouse must be notified that there has been a change. It does not affect the spouse's 40 per cent because that is locked.
It is locked in. That is the main point.
On a point of clarification, is going to court the only way the pension can be earmarked or split? Where there is a deed of separation and a spouse wants to ensure that a certain portion of the pension is earmarked or split for her or him, would they have to go to court to secure this? Is it the case that they cannot do it themselves without a court order?
That is correct.
I move amendment No. 20:
In page 16, between lines 31 and 32 to insert the following:
"12.—That the provisions of section 11 apply to separation agreements.".
It probably would have been necessary for me to submit an amendment stating that the provisions of this Bill should apply to separation agreements. On Second Stage I said this is good legislation and I do not wish to take away from that. The protection it affords to couples who have separated is very welcome, including the provisions relating to pensions which we have just discussed. This was an area that was left alone probably because it was so difficult to address and perhaps because it suited people to leave it alone. As Senator Magner said, it is an extremely valuable asset one would be anxious to hold without letting anybody interfere with it if possible.
The only problem I have with this particular section is that, while it affords that kind of protection and rights to couples who are separating and have opted for a judicial separation, the Bill does not afford the same kind of protection of rights to anybody who has decided on an agreed separation by way of mediation. We had a long debate on this under the section dealing with pensions on Committee Stage. The Minister acknowledged that what I was saying had some benefit but he stated again and again that it could not be done. The worth and benefit of this legislation will be tested soon, if and when the divorce referendum is carried, when people realise that the effect of the passing of a divorce referendum does not give simple access to these kinds of safeguards and provisions and that — as I understand this Bill and I am open to contradiction by the Minister — if I require the provisions and protections of this Bill after the divorce referendum is passed, it will be necessary for me to have secured a judicial separation first. Every section of this legislation refers to securing judicial separation.
On the earlier sections relating to pensions I asked whether, if I had an agreed separation by way of mediation, there was some system whereby pension rights would be taken into account. That is what I am trying to achieve with this amendment. I am more concerned that the Family Law Bill does not cover nullity. The Minister says there is a constitutional reason for that. He has said he will also not introduce legislation in advance of the referendum and I now see that the timescale does not permit it.
We will be left with a situation where we will have a referendum, which will possibly be passed by the people, allowing for remarriage but in order to fare well from that and in order to ensure that everybody is protected, it looks like one will have to obtain a judicial separation. It also means people who have obtained decrees of nullity have no rights whatsoever. I am concerned that even those who may vote against the right to remarry may find themselves faced with the judicial separation legislation. They will think that, because they voted against divorce, they are getting a protection that they are actually not getting. We had a discussion last night on this issue and there is a fear that people who will vote against the referendum will do so because they feel that if it is defeated they are safe and their spouse cannot push them aside. They are not actually considering that it means remarriage. They are presuming that voting no in the referendum means that their spouse cannot push them aside. That will not be the effect of this referendum.
The Acts we have in place, the legislation and hard work which has been done since 1986 have put us on a path whereby a spouse can decide, after a period and within the law, to have a division of property, maintenance agreements, property agreements and pension agreements. People voting against divorce in the referendum do not realise that all of these things can happen with or without their consent. There will be a muddying of the waters, some of it by the Family Law Bill before us. The campaign will not be clean. I would far prefer — and Senator Magner will probably agree from his own experience — that a couple should separate by way of some kind of an agreed settlement and that one should not have to use the services of the courts or jam up the civil legal aid system if one does not have an income. If a person does have an income, he or she should not be drained by the legal system. I fear this Bill is lacking in that respect and the approach to 24 November is not clean and is not as I would prefer to see it.
I do not know if the Minister had an option but every part of this section refers to the fact that one can only get this division of a pension after a judicial separation. I would like to see this Bill reflect the way people have managed to end marriages by agreed and mediated settlements, services for which the Minister has provided a tremendous amount of money during the last few years. Money had not been provided by other Governments. Such services are of no use unless the agreed settlement can go to the next stage and people can obtain pension adjustment orders and other protections.
On Second Stage I said I thought this Bill was good but could be improved. I accept that the Minister could not take the nullity provisions on board but if he can amend the Bill to recognise agreed separation agreements, the situation on 24 November will be much clearer. People will know the Bill is not a lawyers' charter and that they will not have to go down the whole route a second time.
The provisions of section 11 should be applied to separation agreements. There will be confusion between judicial separations and divorce proceedings. If the divorce referendum is carried, we are into a new ball game. If it is not, I do not know where we will be in relation to judicial separations and this legislation.
The majority of legal separations are concluded by means of deed of separation and people do not go to court. Confining many of the benefits of this Bill to orders made under the Bill will inevitably encourage many more people to institute legal proceedings. Senator McGennis talked about mediation and trying to come to a civilised agreement especially in cases where there are children. We all agree there are great benefits in the Bill and the Minister has done an enormous amount of work to ease the position of people whose marriage breaks down. However, not giving the benefits of this Bill to people who deal with their situation by deed of separation is regrettable and I support the amendment.
I will not support any amendment but Senator McGennis's contribution was valuable. There is confusion fuelled by propaganda and it is troubling people who will soon have to make a judgment. The idea that voting against divorce will stop all the ramifications of marriage breakdown is nonsense. As the Minister repeatedly said, the net issue on the completion of this legislation becomes apparent and crystal clear and nobody but a chancer could say that divorce is anything but about the right to remarry. Senator McGennis has made this absolutely clear.
There should not be a pretence that this Bill does anything other than deal with the after effects of marriage breakdown. It does not protect against it. Even people who have a great affinity with the Creator cannot prevent it. It happens and when it does we have to deal with it. This is the reality which this Bill faces.
Fianna Fáil and the Progressive Democrats have been extremely generous in their plaudits of the Minister and this is a fair assessment of his work. Senator McGennis made an important contribution in clarifying the issue which is the right to remarry.
I thank Senators for their contributions on this amendment. When framing the provisions on pensions, I considered whether it would be feasible to provide also for pension splitting in circumstances where parties enter into separation agreements. The advice available to me was that the matter could not be achieved without detailed examination and if it proved to be feasible it would require detailed provisions which would have to take into account existing rules on pensions which do not readily lend themselves to be changed by agreements entered into privately by individuals. The matter would need considerable consultation with representatives of the pension industry before workable solutions could be brought forward, if indeed that was possible at all.
The solution purported to be offered by way of the amendment from Senator McGennis and Senator Kiely is far too simplistic and underestimates the task ahead in dealing with that matter. However, if something can be done it should be done. I will look at the matter when other urgent legislative provisions can be disposed of.
The section as it stands is a court based provision. The provisions can only be activated on the basis of an application to the court for a judicial separation. Separation agreements are, by definition, not court based. To impose a court centred approach on those agreements would be open to a very large question. There are no ready made answers — not, at least, today and, for that matter, not until the matter can be properly examined and teased out.
Under the proposed divorce legislation there will not be a necessity for a prior judicial separation under any circumstances. The divorce procedures will be very different to the judicial separation procedures. It is possible to have a judicial separation by agreement but it will not be possible to have a divorce by agreement. Every divorce will have to go to court and, consequently, in every divorce application the problem of pension splitting or earmarking will not arise. In any divorce application it will be open to the court to make pension adjustment orders under the provisions of this Bill or the Divorce Bill, as the case may be. It is not something that would be a problem in a divorce context.
Certainly, the question arises in the separation case alone. Reflecting for a while about it, Senators will readily see the complexities of having a pension splitting provision provided for privately between individuals in a separation agreement outside the context of the court. It is a very difficult area. A pension is a contract between a number of people: the pensions board, the pension holder and a whole group of pension holders usually. To introduce a provision whereby people could privately alter the terms of that contract by splitting it or earmarking parts of it, clearly has serious major downstream implications for the operation of the pension system.
In the public court context we are giving the courts power to intrude and vary the terms of the pension scheme. There may be pension schemes which, by their conditions, allow pension holders privately to divide, split or otherwise deal with pensions. If there are any pension schemes whose conditions make provision for that then, of course, it can be done. The problem arises where the pension scheme does not allow for that and where trustees of the pension scheme are in control of its operation, as they have to be in virtually all cases except where we allow this intrusion.
I am not saying these difficulties are incapable of resolution but they are extraordinarily complex. If it was possible to devise a scheme to deal with it by giving people privately the powers to intrude into the terms and conditions of a pension scheme, we would end up with sections that would be far more complex and extensive than the ones with which we are now dealing.
What are the practicalities of the situation? When people negotiate a separation agreement and try to work out their differences between themselves, through mediation, solicitors or privately, they will examine in detail and consider all factors of the property situation, of which pensions are one. The spouses will know what the pension position is. In thousands of cases they succeed in reaching agreement and resolving the property aspects of their marital breakdown. The pension position will be to the forefront of their minds and in many cases some other property adjustment will take place to balance the retention of the pension, or, perhaps, the consent of the pension trustees can be secured. If their consent can be secured as regards operating a particular divide scheme, that can be done. They will either reach a satisfactory agreement which will take account of the pensions position, in which case they will enter into their agreement — this is done in large numbers all the time — or they will not. If in the exceptional case that agreement cannot be reached on account of the pension provision and it is felt by one of the spouses that sufficient protection cannot be achieved for that person without securing a proportion of the pension provision, then that person must make an application to the court and ask the court to intrude into that pension scheme and make the divide for them. That will arise in a small number of cases.
We now have the power to do this which was not there before. Large numbers of people reach agreement, but many do not and they bring their applications for judicial separation. Regrettably, we are not in a position today to tackle the major question of allowing people to override the terms of pension schemes. That would be a major step which would require extensive examination, consultation and the time to work out its full implications with the pension authorities. It may arise at some stage, but we are a long way from it today. It will not arise unless divorce is introduced because every divorce case must come before the court.
I thank the Minister for his lengthy reply during which he suggested that if it is possible in the future he will look at this issue again. He said it was a simple amendment. I work on the KISS basis, keep it simple stupid.
I find it difficult to accept that a judge can look at the assets of a couple and decide to split the pension appropriately. If a couple can make a decision about the distribution of the family home and custody of the children and can deal with the emotional impact of marital breakdown, then they are capable of looking at the pension contributions and agreeing to an 80: 20 split. The pensions board is putting it up to the Minister who does not seem to support what it is saying.
The Minister is taking on an extremely complex area in section 11. As Senator Gallagher said, this area has been fudged in the North of Ireland and in England, but the Minister has taken the issue of pensions on board and he has driven a coach and four through it. He is telling the pensions board what he intends to do and he wants it to show him how it can be done. It is balking at taking that one extra step. The Minister should not allow it to do that.
A couple do not tell their pension company that they wish to talk about the actuarial implications of the situation, but that they have separated and if the policy has matured they would like whatever has accumulated to be divided on a certain basis. Perhaps my view is too simplistic. The Minister said he does not think it is right that private people should override the pension boards. I do not have those kinds of hang ups. Private people should nearly always override large institutions.
It is a little more worrying that if the Minister does not deal with this now, he is leaving a loophole. The result is that on separating from my husband, it would be more advantageous for me to go the court route and secure a divorce, even if neither of us wanted to remarry, because as the Minister pointed out — and I am glad he did — on going to court all of the provisions in this Bill will be afforded to me. It strengthens a court culture of which I would not be totally supportive. The Minister should try to allow people the advantages of this legislation without the trauma of court proceedings unless they wish to remarry. I am trying to keep this legislation in line with other legislation which protects people in the event of marital breakdown.
As Senator Magner said, divorce is about the right to remarry. If the provisions of this Bill only apply when seeking a divorce, people will automatically opt for divorce rather than separating by deed of separation or through mediation. It does the legislation and the Minister's efforts in this area a disservice to omit the other means by which couples can separate. Couples should only go to court to seek a divorce when they wish to remarry. The supports and protections contained in this Bill and other legislation should be available to couples regardless of how they separate.
The pension boards are trying to pull the wool over the Minister's eyes on this one. Nothing is ever as complicated as they try to make out.
They have been more than helpful.
I am sure they have. It is an empire and everybody likes to hold on to their little bit of power. If the Minister will examine it again in the future, I will accept that. If he will not, I will press the amendment and ask him to accept it.
The pension industry has been very helpful and co-operative during our ongoing consultations. Without them it would have been extremely difficult to frame this legislation, which is a major step forward. We have to remember that the effect of a court order is to override the position set out in the trust deed. Senators will see the difficulty in allowing private citizens, who make up just one side of the pension arrangement, to override the terms of the trust deed. It is a big step when a court does it. If one side, namely the pension holder, could override the terms and conditions in the trust deed, it could have downstream implications for other pension holders and other people who benefit under the scheme. It is very difficult and complex. We will look at this at a later stage.
Section 13 provides that where certain conditions apply the court must, in cases of judicial separation, make an order extinguishing the succession rights of either spouse. This amendment allows the court discretion in the matter. The aim is to allow for a degree of flexibility in the operation of the section having regard to the specific criteria set out in this section and in section 15.
Amendments Nos. 22,23 and 24 are related and may be discussed together.
These three amendments are purely drafting amendments.
Amendments Nos. 25 and 26 are related and may be discussed together.
Amendment No. 27 is being recommitted. Amendments Nos. 30 and 37 are related. All three amendments may be discussed together.
Amendments Nos. 27, 30 and 37 are technical amendments which involve the taking into account of the provisions in the Maintenance Act. 1994.
This is a technical amendment.
Amendment No. 31 is being recommitted. Amendment No. 32 is related and both amendments may be discussed together.
This is a technical drafting amendment to the definition of the word "relief" in section 34 (1).
Amendments Nos. 34 and 35 are related and may be discussed together.
These two amendments involve small drafting changes.
With regard to amendment No. 41, amendment No. 42 is an alternative and amendment No. 43 is related. All may be discussed together.
I move amendment No. 41:
In page 42, to delete line 4 and substitute the following:
"a decree of judicial separation,
"(b) a Deed of Separation, or".
This amendment was to take account of the fact that under this Bill there is an exemption from capital gains tax for certain transactions between spouses. I tabled an amendment on Committee Stage because I was concerned that the benefits of this would be extended to legal separations that were concluded by means of a deed of separation. The Minister was engaged in discussions with the Revenue Commissioners at the time and he undertook to return to the matter on Report Stage. Amendments Nos. 42 and 43 take care of this issue and I, therefore, withdraw my amendment.
Amendment No. 43 has already been discussed with amendment No. 41.
Amendment No. 44 is a recommitted amendment. Amendments Nos. 44, 45 and 46 are related and may be discussed together by agreement.
Amendment No. 45 has already been discussed with amendment No. 44.
Amendment No. 46 has already been discussed with amendment No. 44.
I sincerely thank all Senators for their constructive contributions to this measure which will be so important in the evolution of our family law system. It is landmark legislation which introduces a number of radical new benefits and provisions in the family law area. It will be the base on which family law can evolve.
A huge amount of effort and work has been put into this by a number of officials in my Department and I express my appreciation to them also.
I welcome the passing of the Bill. I compliment the Minister on his openness to the suggestions made on Committee Stage and his response today on Report Stage.
The Bill recognises changes in society and responds to them. It recognises the growing problem of marriage breakdown and, as we said on Second Stage, one cannot over emphasise the need for strong support services for the family and marriages. The Bill ensures that both partners in a marriage which has broken down are treated fairly. It protects the rights of each spouse and of the children in trying and stressful circumstances.
I welcome the raising of the minimum legal age of marriage to eighteen and the provision for a waiting period of three months before marriage. That is in line with the recommendations of the Law Reform Commission and we welcome it.
As we said on Report Stage, the approach taken to the changes in pension rights is progressive and welcome. I compliment the Minister on being open to suggestion from this House and I compliment the experts in this area.
Finally, I compliment the Minister's staff who put in much work over a period of twelve months to bring this Bill to its present stage.
I congratulate the Minister on bringing this Bill before us. It extends powers to the courts for the support of spouses and dependent children when marriages break down. If there is one view which the Minister holds in common with the anti-divorce lobby, and which he should exploit in the coming weeks, it is that he believes the family must be protected. We argued about property in the 1986 referendum; it is children, and the vulnerability of the first family, which will be the focus of debate in the coming weeks. The Minister must make the case again and again that he believes the family must be protected and that he will ensure this in law.
I will do that with your help, Senator.
I join others in congratulating Senator Mullooly on his election as Leas-Chathaoirleach. He had the unanimous support of the Labour Party — which is quite rare — for his election. I wish him well in his new position.
Thank you, Senator.
It would be churlish of any member on the Government benches not to tell the Opposition spokespersons how much we appreciated their approach to the Bill and the valid concerns expressed. The Minister has brought a completely new meaning to the phrase "equality and law reform" since taking office. All of us agree that irrespective of our views on divorce, the Minister, in this legislation, is dealing with the unfortunate reality of life and he should be congratulated for that.
The Minister is charged with responsibility for the divorce referendum. As a member of the Labour Party and as a concerned citizen I hope the referendum will be passed without the rancour which was displayed on a previous occasion. I congratulate the Minister, his advisers and the staff of the Department of Equality and Law Reform for dealing so well with an enormously complex and difficult area of life.
I, too, congratulate the Minister for bringing this much needed and welcome Bill through the House. We may have had reservations on some minor issues but I am sure the Minister knows he had the support of all of us. He is also assured of our support — perhaps not in the way he is going about it — for the ban on divorce being removed from the Constitution. In this Bill the Minister has dealt with the many difficulties that exist as a result of marriage breakdown and legal separation. The Bill deals with the maintenance of spouses and children and other complex issues such as pensions, life assurance, succession rights, etc. It is important we get the message across that the reality of marriage breakdown is and has been dealt with in the law reform that has been introduced, primarily by the Minister since coming into the Department. Even if we do not have the right to remarry, all of these matters can be dealt with in our law. Irrespective of whether people object to this reform, it is now the law of the land. As other Members have said today, what we are voting on in this referendum is the right to remarry. All of the other issues including property rights, the care of the children and women who are dependent have been dealt with by legislation passed by these Houses, much of which has been brought forward by the Minister for Equality and Law Reform. I compliment the Minister's officials who I am sure had an extremely difficult time framing this legislation. When one is dealing with an issue as personal as this, it can become extremely complex. I am pleased to have contributed to the debate on this legislation and, while we may have disagreed with the Minister on some aspects, I am sure he is aware that in the main he had our full support.
I compliment the Minister and his staff on the enormous amount of work that must have gone into bringing forward this Bill. Bills such as this are the most difficult for us to deal with. It is easy to talk about disasters such as wars and famine and the anguish they cause but nobody can underestimate the private grief experienced by families on the breakdown of marriage. As Senator Neville rightly said, we must do all we can to support the institution of marriage but Bills such as this face up to the reality of the problem of marriage breakdown. In this Bill the Minister has ensured that those who are most dependent in a marriage, especially the children, are given the greatest form of protection.
I congratulate the Minister on the Bill and hope that the campaign in which he will be involved in the next few weeks, will regularise the provisions to cater for the breakdown of marriage. We depend on legislation to a great degree to hold things together. A loving relationship must be one of the strongest and most elastic in the world. Legislation can only do so much. A great deal of the strength within marriage and the family depends on personal relationships and the State must do all it can to support them. If that involves the introduction of divorce to support other relationships it has to be recognised and dealt with accordingly.
Without going over the top in terms of this marvellous legislation, the Department deserve great credit for the work it has carried out in putting together and tying up the strands of a very complex area. I congratulate the Minister on tackling it. He has adopted a sensible and rational approach to providing facilities to enable marriages to work. There are very few areas in which the Minister can interfere, but where possible, he has done that by increasing the age for marriage to 18, by setting a statutory period of three months notice and by providing funding for the mediation services. In that way he is protecting the institution of marriage in so far as the law can.
In a society where peoples' expectations are high, the reality is that marriages break down. Where people make mistakes and a marriage does not work they have to get on with their lives.
Last year there were over 3,000 applications for judicial separation. When we consider the number of people affected by marriage breakdown it is only right that we should try where possible, to ease the financial strains and the burden that comes with marriage breakdown and help the family get on with their lives in the best way possible. As politicians it is our duty to provide the laws to facilitate that. This Bill tidies up many of those areas.
In the past there was enormous abuse in dividing the spoils or assets. Because information was unknown to one or other of the spouses people could avoid their responsibilities by investing in pensions etc. That area has been tackled. The Bill goes further in terms of property adjustment orders and financial compensation orders by taking into account the work done in the home and the earning capacity of the spouse given up in exchange for work in the home for the benefit of the family. Many areas which caused problems during the last referendum have also been tackled in terms of tax provisions and so on. Those were areas which allowed campaigners play on the fears of married people so that they feared being left without a roof over their heads or being swindled out of money they had invested. All those issues have rightly and properly been tackled.
It is the Government's duty to allow people realise exactly what has been provided for in the Bill. Information is vital at this time. In an area as complex as this I hope it will be possible to spell out the changes provided for so that people will know their rights and will not live and vote in fear, as may well happen.
I again congratulate the Minister on marvellous and comprehensive legislation for which many people will thank him.
When is it proposed to sit again?
I proposed that we adjournsine die.