Amendment No. 1 in the name of Senator McGennis. Amendments Nos. 2 and 3 are alternatives and may be discussed together.
Family Law (Divorce) Bill, 1996: Committee Stage.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
I move amendment No. 1:
In page 9, between lines 5 and 6, to insert the following new subsections:
"(3) Subsequent to a grant of divorce, or of an order for judicial separation made under the Judicial Separation and Family Law Reform Act, 1989, if a non-custodial parent does not have or is not exercising a right of access to any child of the family, the parents of the non-custodial parent may apply to the court on notice to the custodial parent for an order granting a right of access to the child concerned for the purpose of maintaining the child's relationships with his or her extended family and the court may where it thinks appropriate grant such access having regard to the provisions of the Act of 1964.
(4) Where the parents of the non-custodial parent are dead or do not reside in this jurisdiction or are otherwise unable to make application under subsection (3) of this section, such application may be made by a brother or sister of the non-custodial parent.”.
This is probably one of the most important sections of the legislation. That is not to say that other provisions in relation to financial arrangements for families and so on are not important, but how we deal with children in the situation of divorce is the most important issue. During Second Stage I said that if we were to model this legislation on what was in the best interests of our children then it will be an extremely good piece of legislation, if divorce can be considered good, but the legislation that would emerge would pass the test of time and be in accordance with the wishes of the people when they voted by a small majority for the introduction of divorce legislation.
During the period of separation or when the marriage breaks down we have all admitted it is not the divorce which causes the trouble, confusion and trauma for the children, it is the period preceding that when the marriage is very obviously breaking down and children are very tuned in. Even though we as parents may think they do not appreciate, understand or recognise the conflict which is taking place, they can surprise you many years later when they tell you that they remember clearly the arguments or whatever preceded separation. In order to ease the confusion and trauma of the eventual separation we must ensure that the extended family links which existed for the children remain in place after a divorce.
In this House we have established a Joint Oireachtas Committee on the Family. It seems strange, as I mentioned to a group which made a submission in relation to custody, that very little account seems to have been taken of the points they made to the committee — at least that was their experience in relation to judicial separations. In the main these were fathers, but there was another group which specifically mentioned the extended family. The purpose of my amendment is to try to protect those friendly links. It would be admitted by Senators that the relationship between mother and daughter or father and son, or any combination of those, can be difficult. However, when one becomes a grandmother or grandfather either you change or children are completely different; but there is a very different relationship between grandparents and grandchildren. It seems to be almost always a happy one and one which works very well. These relationships can be a cushion in what is bound to be a stressful and difficult period for children. The purpose of my amendment is to ensure that it is not just left to the decision of the spouses as to whether grandparents can have that important role in the development and security of a child after the divorce, but to see those rights recognised in law.
This is a reasonable amendment. I know the Minister said there may be some constitutional reasons why this cannot be done. However, I still think it is important because, regardless of what anybody says, there still is a tendency by couples who are separating to use the children as a pawn in the battle. It often happens that children finds themselves being cared for by grandparents and they are a vital part of the children's development. I ask Senators to support this amendment.
Let me acknowledge my debt to Senator McGennis's amendment because it was her amendment which set me thinking. My own amendment is very similar to hers except it inserts the right of access of an individual parent as well as parents. In that sense it is refining because you will have widows and widowers as grandparents.
Cases exist in all jurisdictions where divorce is legal in which a child's grandparents and parents are divorced. In such cases grandparents might not be on the best of terms and their grandchildren might be brought into play in those relationships. While that situation will not arise in most circumstances, I hope that some way could be found to ensure the right of access of a parent of the non-custodial parent. That is the purpose of inserting the singular as well as the plural into the phraseology of the amendment, which is in the spirit of Senator McGennis' amendment.
The effect of these amendments would be to allow the parents, brother or sister of a separated or divorced person in certain circumstances to apply to the court for access to that person's child. The advice available to me at present is that since the constitutional rights of parents are wide ranging, several matters would be required to be considered before provision of the kind proposed in these amendments could be legally acceptable.
The difficulty is that situations could arise whereby third parties would have the right to interfere in a family unit recognised and protected by the Constitution. However, where what is proposed is a relatively narrow right to apply for access only — a right that would not extend to other aspects of a child's welfare such as custody, schooling and so on — the difficulties may be diminished.
I have arranged for the legal issues to be examined. I am confident it may be possible to devise provisions which will contain appropriate safeguards and will prove to be legally sound. I am not in a position to bring forward those provisions in the context of this Bill. However, I propose to do so, if it is found to be feasible, in the context of a Children Bill which is in the course of being drafted on my initiative at present. I am unable to accept the amendments at this point in time. However, I assure the House I am well disposed to the principle of the amendments and intend to do what I can about it in the not too distant future.
Will the Minister clarify how something can be addressed under different legislation if there is a constitutional problem with it and why it cannot be addressed under this legislation? I thought when the Minister began to speak that he was suggesting it would be possible to look at it again on Report Stage. Perhaps I am wrong, and I bow to the Minister's superior knowledge, but it seems to me that this is the legislation under which we should consider access for the extended family, particularly grandparents. I do not think my amendment suggests that any third party would have a right to demand custody of a child; the amendment refers to access.
In this Bill, which I think is good legislation, we are giving judges wide ranging powers in relation to finance, the family home, maintenance support and so on. Are those judges not capable of examining an application for custody and saying there is no reason why my third cousin twice removed should have any right to apply to the court for access to or custody of my children? Under this legislation we are entrusting great responsibility to judges. In my view, those same judges are capable of exercising the kind of discretion needed in such cases. If it is not constitutionally proper under this legislation, how can it be constitutionally allowable in other legislation?
Of course, a judge would be perfectly competent to deal with any application for custody, access or whatever. The constitutional point is not necessarily a black and white situation. There is a potential difficulty there having regard to the status of the family as recognised by the Constitution. Great care is required in devising those provisions. We need to conduct an in-depth legal examination of what we can do and to what extent we can do it.
I generally support the principle advocated by Senator Lee and Senator McGennis. However, we must ensure we devise the specifics of it in a way which will not offend the constitutional provisions. We are engaged in that process. The Department is in the course of preparing a Children Bill which is a suitable medium to deal with this issue, which arises in the context of separation as well as divorce. Guardianship access is dealt with under separate legislation such as the Guardianship of Infants Act and amending legislation.
I have not yet got the extensive advice I need on this question to enable me to make definitive provisions which will be as safe as they can be from the constitutional point of view. When I have that advice I will introduce those measures in the Children Bill, which, as I said, is in the course of preparation.
I welcome the Minister's acceptance in principle of the thinking behind the amendment, which is an encouraging response. I understand Senator McGennis' very reasonable question. We are treating judges as virtually oracles of the Holy Ghost — or the Holy Ghostess, depending on the gender quotas of the people above.
It could be argued that the matter is more appropriate to a Children Bill than to this Bill. The children's side of the divorce debate has been used as a shuttlecock by all sides. It would focus our minds on the implications if we made this matter a central part of the Children Bill. While, as a simple layman, I get very impatient with arguments about constitutionality, I accept the Minister's goodwill on this point and I am encouraged by it.
I support the thrust of the amendment. I agree with Senator McGennis that there is a unique relationship between grandparents and their grandchildren, to whom they should have access in the circumstances outlined in the amendment. I have direct knowledge of grandparents who do not have access to their grandchildren, which they find extremely traumatic. In that case, there are custodial problems because of a separation; but there are also problems of distance because they live 200 or 300 miles from their grandchildren, whom they have not seen in a year and a half. It is an important issue. I thank the Minister for taking on board the principle, which, I hope, can be introduced in the Children Bill.
Based on what the Minister said, I will take the leap of faith made by all the people who voted "yes" in the referendum. I would call a vote if I thought it would strengthen the Minister's hand to get this definitive definition. When is the Children Bill likely to be published or before the House? I will not press the amendment, but Senator Lee and I will be gung-ho in ensuring these provisions are in the Children Bill.
I cannot say. It is being worked on at the moment.
Will it be introduced before the October election?
I hope so.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 9, between lines 5 and 6, to insert the following new subsection:
"(3) Subsequent to a grant of divorce, or of an order for judicial separation made under the Judicial Separation and Family Law Reform Act, 1989, if a non-custodial parent does not have, or is not exercising a right of, access to any child of the family, a parent of, or the parents of, the non-custodial parent may apply to the court, on notice to the custodial parent, for an order granting a right of access to the child concerned, for the purpose of maintaining the child's relationships with his or her extended family, and the court may where it thinks appropriate grant such access, having regard to the provisions of the Act of 1964.".
Is amendment No. 2 being pressed?
It is not. "Gung ho" is a term which I would not in any circumstances wish to apply to the dignity of the senatorial performance. As a general principle I do not believe in pressing amendments where the Minister is being reasonable. Only when the Minister is being unreasonable should amendments be pressed.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Section 5 agreed to.
SECTION 6.
Amendment No. 4; amendment No. 11 is an alternative and both may be discussed together.
I move amendment No. 4:
In page 9, between lines 8 and 9, to insert the following new subsection:
"(2) The Minister shall ensure the provision for solicitors of a list of names and addresses of persons qualified to help to effect a reconciliation between spouses who have become estranged, and a list of the names and addresses of persons qualified to provide a mediation service for spouses who have become estranged."
I am prepared to yield to Senator McGennis because she made this point but it struck me simply on presentational grounds that where there are several references in the text to lists being presented by solicitors to applicants and respondents, it is usual to have a reference to those issues at the start rather than at the end. Where are the solicitors to get those lists from? Who are to be identified as qualified people in this respect unless an authorised list is available to solicitors at the outset? The purpose of this amendment is to ensure that the reference to the list further down in this section is taken in the context of what those lists are and to authorise them earlier in the section.
The purpose of amendment No. 11 is to ensure that solicitors would have a list of qualified reputable professional organisations. Those organisations would have the list of people who they deemed to be qualified and reputable. I do not expect the Minister to find the appropriate organisations, but professional organisations of which the Minister is aware would be able to provide the kind of information I am seeking in my amendment.
If we do not do this there is a risk that the good intent in the legislation may be lost. People might set up in business overnight and describe themselves as professionals in the area of reconciliation or mediation so we have to refer people to professional organisations. There is no point in putting provisions in place in our divorce legislation which then fall apart because anyone who sticks a shingle outside their door can say they are qualified in this area. The Minister could liaise with reputable groups and organisations. I am not suggesting that he puts provisions to this effect into this legislation but he could do so later by regulation. Solicitors would then be able to make these lists available.
When we were dealing with abortion information legislation the Minister mentioned that he would be making grants available to various organisations. It is very easy to identify bodies who will provide counselling when they are to be grant aided. These organisations can be identified. We have to ensure within this legislation that qualified, reputable people will provide the services mentioned in the legislation. Both the Minister and I, as well as many contributors on Second Stage, have stated that even when it looks as if a marriage has failed, there is always the chance of a reconciliation. If it is done by a good, qualified practitioner, that reconciliation can be effected, but unless we get a quality service it will probably not work.
Amendment No. 11 would allow the Minister for Equality and Law Reform to make regulations establishing a register of professional organisations in the field of counselling and mediation. Amendment No. 4 provides for the Minister to ensure the provision to solicitors of a list of names and addresses of counsellors and mediators. In effect, both amendments suggest that I have a role in the regulation and certification of persons as counsellors or mediators. While my Department has certain responsibilities which relate to the funding of marriage counselling organisations as well as the funding administration of the family mediation service, I am unable to agree that it is a function of my Department to establish a national register of persons who are deemed to be qualified to practice as family counsellors or mediators.
I am aware that mediators, for example, through the Mediators Institute of Ireland have already set standards necessary for accreditation and training of mediators. That is the best way to proceed. The organisations involved in counselling and mediation are in the best position to set standards and qualifications for persons engaging in the provision of such services and I do not accept that there is a need for me, as Minister, to intervene in such a system. I consequently oppose these two amendments.
I am not concerned about the precise modalities. I am quite happy to accept Senator McGennis's amendment rather than my own, but I fail to understand how one can have in legislation a requirement that a solicitor give to the applicant the names and addresses of persons qualified to help to effect a reconciliation or a mediation service with no indication whatever of how the solicitor is to determine those names and addresses. Who is responsible for that? Is the solicitor obliged, for instance, to provide names and addresses from the organisations that the Minister has indicated?
How can there be a requirement for a solicitor to do something when there is no indication of the criteria by which the solicitor shall judge who is qualified in this respect? If there is not at the very least guidance, although I would say a requirement, from the Minister who after all is responsible for the legislation, where is it to come from? Will we have a case of laissez faire after that? I am at a loss to understand the problem from the Minister's point of view.
I am slightly disappointed. I was not suggesting that the Minister should get involved in any way in the certification of those who would be qualified to provide this kind of service. The Minister has more important work to do. The last legislation we mentioned, the Children Bill, which the Minister hopes to bring forward, is very important, but he mentioned the Mediators Institute of Ireland in his response, an organisation which already provides mediation. Perhaps there are other such groups involved in reconciliation. The Department should contact them, as the Minister already knows they offer a particular level of service. They could make a list of practitioners available to the Department.
There has been criticism in the public domain of solicitors, described as ambulance chasers, who chase compensation claims. We run the risk of private individuals writing to every solicitor, particularly those involved in family law, saying that they are qualified mediators in the area of reconciliation. If the solicitor involved does not know any different, he or she simply gives that person's name to a couple seeking a divorce, as required by this legislation. We will not have lived up to the spirit of this legislation and the commitment which we gave to the people in the referendum.
Senator Lee has a problem with a divorce culture. People were promised that there would not be "quickie divorce", but limited divorce. It is restricted but there are those who favour a more lenient approach. It will not be possible for a couple get a divorce unless they satisfy certain requirements. There is an obligation on the solicitor to provide contact names and addresses for reconciliation purposes. Unless a level of service is provided by qualified people in the area of reconciliation we are codding the people and messing. I want the Minister to certify these groups. The group he referred to would be able to guide him on how this could be done. I ask that qualifications be checked before an individual's name put on the list. If it is not important for couples to seek reconciliation, the legislation should state that; if it is, it should be done properly. Unless somebody is able to stand over groups that provide this service such a provision should not be in the legislation.
Senator McGennis is indulging in some colourful turns of phrase. She used "gungho" on the last amendment and "codding" and "messing" on this one. My Department is not in a position to get involved in setting standards for the certification of counsellors and mediators. These are specialised jobs and there is no point in me assuming power in this Bill, as suggested by Senator McGennis' amendment, to establish a register of persons who are qualified. These professions do not have a statutory base or any statutory certification processes. We have not yet reached that point in the evolution of the mediation profession or in the practice of counsellors which is less skilled and professional but important nonetheless.
Mediation is attainable by the Family Mediation Service which is a State run service with centres in Dublin and Limerick. In addition to these there are a relatively small number of people who practice privately as mediators. They are involved with the Mediators Institute Ireland but I do not know if they are all affiliated to it. It is open to any person to set up a practice as a mediator or counsellor and perhaps some do with inadequate training. The time will come when certification and standards will be necessary.
Counselling is offered through voluntary organisations, the largest and most substantial of which is ACCORD, formerly the Catholic Marriage Advisory Service. It runs an excellent service and is different in substance to the other agencies as it is a national organisation. There are a number of other counselling organisations such as the marriage counselling service in Cork. My role is to help them with funding. The Department funds the family mediation service entirely and substantial grants are made to ACCORD and the other counselling organisations. These organisations train counsellors and allow people who meet the standards they set to practice. ACCORD has its own training arrangements and I know from discussions that it runs a first class and professional service and will only allow someone to be involved in counselling when it is satisfied, through its own rigorous arrangements, that the person is qualified. The same applies to marriage counselling services and other services in this area. Solicitors who practice family law know these organisations. A solicitor in Tullamore will know who the local ACCORD officer is and who else may be available. They are obliged in this section to seek out counsellors or mediators and have been doing that in connection with the judicial separation system which will continue. I want mediation to become a fully fledged profession with a statutory certification base. I am sure every arrangement will be made with the Mediators Institute to form a proper statutory basis. They would conduct examinations etc., and the matter would be dealt with in that way. The most I can do is furnish a list from time to time of organisations, perhaps those grant aided by my Department to anybody interested. This could be considered but I have no facility for getting involved in the area of testing, research, examinations and certificates as it is outside the ambit of my Department.
This is thoroughly unsatisfactory. I am sure everything the Minister said is true but almost all of it is irrelevant to this issue. One of the criteria for granting a decree is that there is no reasonable prospect of a reconciliation. Much emphasis was placed on that during the referendum debate. Section 6(2)(a) states that a solicitor should discuss with the applicant the possibility of a reconciliation and then give a list of names of persons qualified to help. A list of people's names who are qualified to help is already available. A solicitor, wholly at his or her discretion, is entitled to decide who is qualified to help. Nothing that the Minister said refutes that observation. Solicitors who are skilled in family law may be in contact with these worthy organisations but there is no obligation on them to ensure that it is a person qualified to help.
What happens in court? The judge, presumably, has to be satisfied that this has been properly checked — it may be only a ritual. Who decides who is qualified? That surely has to be an integral part of the legislation if it is to be more than simply rhetorical window dressing. I am not optimistic about the possible impact of mediation services given their record around the world. If we are remotely serious about it this simply does not satisfy that requirement and somebody has to determine who is qualified as distinct from any individual solicitor who can say that a relation of theirs is as good as anybody.
It is vacuous legislation and does not fulfil the commitment given to the people that there will be serious attempts at reconciliation. I do not care whether the Minister's Department or any other does it, but there must be some authority — it could be the list of organisations Senator McGennis mentioned. I do not understand how one can promise something and then say they have no responsibility for ensuring it is implemented.
I do not want to be adversarial but there is no basis for not establishing this now rather than some time in the future. We are told there are 80,000 people, which will increase to 100,000, clamouring for this. To whom will they be referred if there is anything like the demand we were assured of and which justified confronting reality, etc.? This section fails to live up to the responsibilities the Government has taken on itself to ensure the adequate implementation of the terms and conditions under which the referendum was proposed to the people.
I would like to refer to the Minister's comment on my colourful language. I apologise for not having the benefit of legal language training and, therefore, I use simple language. I suggest that if we, as legislators, used simple language more often, perhaps the public would be better able to relate to us. I hope I continue to use inoffensive simple language. I am concerned about this because I was one of those who canvassed actively before the referendum. We were codding the public by including the words "there is no reasonable prospect of a reconciliation between the spouses" in section 5. It should not have been included if it was not intended to be a reality. We are codding the public by suggesting something we do not mean. I am sure Senator Lee would give me a better word than "codding" but as far as I am concerned, it fits the bill.
The Minister said he grant aids certain institutions, some of whom I do not know. The only group of which I was aware which provided marriage counselling was what was known as the Catholic Marriage Advisory Council. I do not want to be accused of being unhelpful but perhaps the legislation is premature. The Minister told us the position of grandparents was not appropriate to this legislation, but he did not have a definitive definition within the parameters of the Constitution which would allow him to take action. He should have a definitive definition by now. We have had ten years since we first tried to get this legislation passed to ensure a clear definition. The Minister is grant aiding organisations about which he has no idea of the quality of service they provide and which have not been set up on a statutory basis. If he does not know about their standards and certification, perhaps he should not be grant aiding them.
A friend who was legally separated many years ago went for marriage guidance counselling during the painful period before his separation. To this day he says that it is as a result of the counselling they received that they eventually separated. They may have gone to a reputable body but he is convinced that the counsellor unearthed painful issues, much which he was blamed for, and that if they had not attended they may have been in a position to save their marriage. In the words we put to the people and in the provisions of this legislation, we have said that a judge must make a decision where he is satisfied there is no reasonable prospect of reconciliation. I do not know if a judge can make that decision unless we do everything properly.
Perhaps the legislation is premature until such time as the Minister gets definitive definitions and until we see what standards exist. The Minister said he has no intention of setting standards or providing certification, which is not what I want. If a person submits a tender to Government or to a local authority, we must know about their standard. A person must have a tax clearance certificate to get a contract. There must be a way of knowing whether organisations which the Minister is grant aiding have reached a particular standard and are competent. If we do not know that, perhaps we should put this legislation on hold.
There is no question of putting this legislation on hold. It is necessary and was voted for by the people. I cannot put the matter in substance much further except to say that I do not accept the comments by Senator Lee, in particular. Extensive counselling is available. The counselling organisations are grant aided to the extent of almost £1 million per year by my Department. Mediation is available to a lesser extent. There is a State run service and number of private mediators. They consult thousands of people year in, year out in an organised way. The overall body for mediators is the Mediators Institute of Ireland and the overall body for counsellors is the Irish Association for Counselling and Therapy. There are many people working in these organisations both professionally and voluntarily. They are doing a fine job and we are assisting them in every possible way. The system works reasonably well, although there is always room for improvement. Counselling and mediation services are available. That is the position which is acceptable in the context of the legislation.
I am at a loss to understand why the Minister did not accept what I said. I did not say a word to criticise the existing counselling services. This issue is not about the counselling services but about who will be recommended by solicitors. If the counselling and mediation services are working so well — I am delighted to hear it — all the more reason for listing the organisations, including them here, and for providing a direction to solicitors as to whom they may deem qualified. As the legislation stands — I am open to correction — it is solely at the discretion of a solicitor to decide who is qualified to help. Everything the Minister said reinforces my view that the solicitor should be required to recommend one or more of these excellent organisations. The issue is not about the service but about the scope given to a solicitor to determine by what criteria he or she shall judge a person is qualified. Imputing that the organisations are somehow being denigrated by me is irrelevant and false.
Amendment put.
The Committee divided: Tá, 12; Níl, 17.
Tá
- Bohan, Eddie.
- Dardis, John.
- Farrell, Willie.
- Fitzgerald, Tom.
- Kiely, Dan.
- Kiely, Rory.
- Lee, Joe.
- Lydon, Don.
- McGennis, Marian.
- Mullooly, Brian.
- Ormonde, Ann.
- Wright, G.V.
Níl
- Belton, Louis J.
- Burke, Paddy.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- D'Arcy, Michael.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Hayes, Brian.
- Kelly, Mary.
- McAughtry, Sam.
- McDonagh, Jarlath.
- Maloney, Seán.
- Neville, Daniel.
- Townsend, Jim.
- Wall, Jack.
Tellers: Tá, Senators Lee and McGennis; Níl, Senators Cosgrave and Burke.
Amendment declared lost.
An Leas-Chathaoirleach
Amendments Nos. 5 to 10, inclusive, and 12 to 16, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In page 9, subsection 4 (a), line 34, after "solicitor" to insert the following:
"and the applicant".
The aim of the amendment is to try to ensure that there is a double certification by the applicant and the solicitor. It would, therefore, be clear to the court that the applicant had been fully appraised of the possibilities under the legislation. It is a drafting amendment to ensure that the applicant corroborated the solicitor's statement and could make it clear to the court that the procedures, whatever one may think of them, were complied with in an adequate fashion.
The amendments tabled in my name deal with a situation where a couple have consulted a solicitor, been given a list of unknown origin and sent away to mediate or reconcile. They may return to the solicitor to inform him or her that the reconciliation did not work. In my opinion there should be a formal procedure whereby the group or individual providing the mediation or reconciliation service should state that the couple attended for the purposes of mediation or reconciliation and that a mediated settlement was agreed or that there is no possibility for a reconciliation. If such a stipulation is not included in the legislation, we will return to the situation dealt with in the previous amendment where a couple state they received a list and have returned for further consultation. Perhaps that is an indication that there is no possibility for reconciliation.
We are dealing with adults. If a couple consult a solicitor to seek a divorce we should not put them through the requirements or hoops — perhaps I am again using colourful language — suggested in the Bill. Had such requirements not been incorporated in the legislation, I would not have tabled my amendments. As there is a requirement to seek a reconciliation and as the referendum put to the people clearly states that there is no reasonable prospect for reconciliation between the spouses, must both sides air their case in court?
When I suggested to people in the legal profession that those seeking a divorce are best equipped to air their case in court, I was informed that this was ludicrous nonsense and that people could not be allowed to tell their various sides of the story in court. To a great extent, the legal profession is not amenable to people making their own case in family law courts and prefers that this should be dealt with by lawyers. A counsellor must then state that a couple consulted them and that either there is no prospect for reconciliation or that a reconciliation may take place if the couple involved attend counselling for a longer period.
I am not certain about some of the requirements in the Bill. The Divorce Action group would not have agreed with the wording of the legislation and the referendum, but the people made a decision which we are bound to respect. The Minister published the draft legislation before the referendum and people knew what they were voting for or against and what would be the requirements. Those are the issues before us. If there is a requirement that a couple must consult a solicitor to obtain a list and if it was stated in the referendum that there is no reasonable prospect for reconciliation, someone must say so. Those best equipped in this regard are counsellors working in the field. That must be included in the legislation.
These amendments appear to serve no particular purpose in a context in which counselling and mediation, as is the case under the Bill, are envisaged as a process to be engaged in by parties on a voluntary basis. I am of the view that to require the provision of certificates from counsellors and mediators, as the amendments propose, would only have relevance in circumstances where the parties are compelled to undergo counselling and undergo reconciliation through mediation. I agree that every effort should be made by parties to effect a reconciliation and, failing this, to engage in mediation to settle the terms of separation and divorce. However, these amendments do not contribute to the reconciliation and mediation process but would simply add an unnecessary process of certification. Accordingly, with regret, I must oppose the amendments.
If I interpret it correctly, the Minister's reply addresses Senator McGennis' amendment concerning the counselling service, etc. My amendment suggests that an applicant sign together with their solicitor. I cannot see how that would introduce a labyrinth of bureaucratic requirements. It simply vouches that the applicant complied with the procedure, which, it could be argued, is now meaningless. Nevertheless, one may as well try to obtain confirmation that the applicant complied with the procedure. The amendment suggests that an applicant should indicate that the possibility for reconciliation was mentioned by their solicitor and they were aware of its existence. What happens thereafter is a matter for themselves. The amendment does not impose an extra burden. However, it suggests an additional assurance that we are complying with what we believe to be the wishes of the people in this regard.
It would not be appropriate for the applicant to make a signature in this context because this section puts an onus on the solicitor to discuss with the applicant the possibility of reconciliation. Accordingly, the solicitor must certify that he or she has complied with the provisions of the section.
I accept that but the only witness is the applicant. It would be extremely awkward if an applicant were to say in court that that was the first they had heard of the matter. In a sense, this is to facilitate and expedite the procedure. Since, in principle, anyone can be nominated, what is the problem in having the applicant verify that he or she has been told?
Who will decide whether there is a prospect of reconciliation? Is it the judge, or does the solicitor make the case to the judge in the court that there is no possibility of reconciliation? If the two parties agree on a divorce it is straightforward. However, what happens if one of the parties wants to remain in the marriage and wishes to avail of counselling? If there is agreement the solicitor will be able to tell the judge there is no possibility of reconciliation.
Ultimately it will be the judge's decision. The judge must be satisfied that there is no reasonable prospect of reconciliation having heard the evidence.
What happens if one spouse refuses to avail of counselling and the other spouse states in court that he or she is prepared to seek counselling towards reconciliation?
As the saying goes, to use the vernacular, "it takes two to tango".
The Minister is using "McGennis speak"—"gung ho" and "two to tango".
I am following precedent.
Is this the position with legal separation cases at present? Are judges confronted with such decisions at present where one party to a separation wishes to separate and the other does not?
One cannot have a marriage consisting of one person.
There is provision in the Bill for a judge to adjourn an application.
If the judge is not satisfied that there is no reasonable prospect of reconciliation, the judge may not grant the divorce but may adjourn the matter.
Even the amendments with which I am not totally happy would probably deal with some of the arguments made during the referendum about people being divorced against their wishes. If the parties go for counselling, at least somebody who is supposed to be qualified——
That is outside the thrust of the amendments.
It is not because amendment No. 7 provides for a certificate provided by a person qualified to help effect a reconciliation. A practitioner who is supposed to be an expert in the field will at least indicate there is no chance of a reconciliation. It would have strengthened our case before the referendum if the provision in this amendment had been included.
We are post-referendum now.
That does not negate the promises made during the campaign.
The promises were kept. The Bill was published in advance. The solicitor is obligated in accordance with the section to discuss with the applicant the possibility of reconciliation, engaging in mediation or effecting a separation by an agreement in writing. The solicitor must furnish a certificate to the court that he or she has complied with that obligation placed on the solicitor by the section.
When the matter comes for hearing one of the obligations on the court, having heard the evidence, is to be satisfied that there is no reasonable prospect of a reconciliation. That will arise from the certification and the evidence presented. Unless the judge is satisfied that there is no reasonable prospect of reconciliation, the judge may not grant the divorce.
We are entering into hypotheses. It will not have escaped the Minister's attention that I am slow witted in these matters and that I am highly sceptical about the section. A solicitor may submit a document stating that he or she has complied with the requirements and, as is stated in section 6 "... if the document is not so accompanied, the court may adjourn the proceedings for such period as it considers reasonable...". What if the applicant says that this is the first they have heard of the matter but the document is before the court stating that they have complied? What does the court do? Does it forget about the document because somebody has challenged it? Part of the purpose of my amendment was to ensure there could be no difference of recollection about what had been done. As it stands, as I understand it, once the document is presented it has to be accepted by the court.
One is talking about a solicitor and his or her client's position. If a solicitor signs a certificate that he or she has carried out certain functions and it should transpire or be suggested that he or she has falsely done so or has certified something which did not happen, it is an extremely serious matter. The judge might refer it for investigation by the Law Society. The solicitor's professional standing with the Law Society could be called into question.
I would not say that it could not happen or that all solicitors are above board. However, the overwhelming majority of solicitors are honourable people who are extremely careful about what they certify. They know the consequences of putting their signature to a certificate which was not correct.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 11, inclusive, not moved.
Section 6 agreed to.
SECTION 7.
Amendments Nos. 12 to 16, inclusive, not moved.
Section 7 agreed to.
SECTION 8.
An Leas-Chathaoirleach
Amendments Nos. 17 and 18 are consequential and may be discussed together.
Government amendment No. 17:
In page 11, lines 19 to 25, to delete subsection (6).
Section 8(6) provides for the non-admissibility as evidence in court of communications between either of the spouses concerned and a third party for the purposes of effecting a reconciliation or a mediated divorce settlement after the institution of divorce proceedings. Amendment No. 17 provides for the deletion of that subsection and amendment No. 18 substitutes a more comprehensive provision by way of a new section which provides for the non-admissibility as evidence of such communications made prior to and after the institution of the divorce proceedings.
Amendment agreed to.
Section 8, as amended, agreed to.
NEW SECTION.
Government amendment No. 18:
In page 11, before section 9, to insert the following new section:
.—An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation or a divorce (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.".
Amendment agreed to.
Sections 9 to 13, inclusive, agreed to.
SECTION 14.
Government amendment No. 19:
In page 15, paragraph (c), line 31, to delete "4,".
This is a purely technical amendment.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16, agreed to.
SECTION 17.
An Leas-Chathaoirleach
Amendments Nos. 20, 21, 22, 23, 36, 37, 38 and 39 are related and will be taken together by agreement.
Government amendment No. 20:
In page 24, subsection (6), line 46, to delete "the deceased spouse concerned" and substitute "a deceased spouse in respect of whom a decree of divorce has been granted".
These are drafting amendments which are all related in one form or another. They do not effect any change in sections 17 and 49 of the Bill.
Amendment agreed to.
Government amendment No. 21:
In page 24, subsection (6), lines 47 and 48, to delete "the death of the deceased concerned" and substitute "his or her death".
Amendment agreed to.
Government amendment No. 22:
In page 24, subsection (6), lines 48 and 49, to delete "a spouse who might be an applicant under this section" and substitute "the other spouse concerned".
Amendment agreed to.
Government amendment No. 23:
In page 24, subsection (6), line 51, to delete "concerned".
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 24, 40 and 41 are related and will be discussed together by agreement.
Government amendment No. 24:
In page 24, after line 53, to insert the following subsections—
"(7) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted gives notice of his or her death to the other spouse concerned ('the spouse') and—
(a) the spouse intends to apply to the court for an order under this section,
(b) the spouse has applied for such an order and the application is pending,
or
(c) an order has been made under this section in favour of the spouse,
the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.
(8) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.
(9) Nothing in subsection (7) or (8) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.".
This amendment provides that, where a divorced spouse dies, the court may by order make provision out of the deceased spouse's estate for the surviving former spouse. Under section 17(6), the personal representative of the deceased spouse is required to make a reasonable attempt to ensure that notice of the death of the deceased is brought to the attention of the spouse who might be an applicant under the section. Where an application is made under the section for provision to be made out of the estate, the personal representative must not, without leave of the court, distribute any of the estate until the application has been determined by the court.
As the section stands, there is no protection afforded to the personal representative. The amendment now proposed provides that, where a personal representative gives notice to a former spouse as required under subsection (6), that spouse is required within one month to notify the personal representative of any intention to make an application under section 17, any application pending or any order made. Should the former spouse fail to so notify the personal representative, he or she will be free to distribute the assets and shall not be held liable to the former spouse for any assets so distributed. The proposed provision is similar to provisions contained in section 49 of the Succession Act, 1965. Amendments Nos. 40 and 41 are consequential on amendment No. 24.
Amendment agreed to.
Question proposed: "That section 17, as amended, stand part of the Bill."
I wish to ask a question on subsection (6):
(6) The personal representative of the deceased spouse concerned shall make a reasonable attempt to ensure that notice of the death of the deceased concerned is brought to the attention of a spouse who might be an applicant under this section....
Is there a definition of "a reasonable attempt"?
That is a matter left to the discretion of the court. There is no particular definition given. In a disputed matter, it would be at the discretion of the court to define what would be reasonable in a particular circumstance.
Is there a precedent for this? I am unaware of how this legal arrangement works.
I understand the Succession Act, 1965, works in the same way.
Question put and agreed to.
Section 18 agreed to.
SECTION 19.
An Leas-Chathaoirleach
Amendments Nos. 25 and 26 are related and both may be discussed together by agreement.
I move amendment No. 25:
In page 26, subsection 2(f), line 44, after "family," insert the following:
"including any dependent parent,"
This is a difficult and sad situation. When one examines the contribution of either spouse towards the welfare of the family, there will be cases where an elderly or incapacitated parent will have lived with the divorcing couple and may have required more care than dependent children. It is conceivable there might not be a dependent child. It is desirable that specific provision be made to ensure that provisions made by the court take cognisance of the commitment, mostly by the wife, to the welfare of the dependent parent. I do not know how often it occurs but it will occur less often in future given the direction in which treatment of the elderly is heading. However, it could occur on a number of occasions for the time being. I hope some way will be found of acknowledging the commitment of a spouse in those circumstances.
The effect of Senator Lee's amendments would be to require the court, in making financial, property, pension adjustment and other ancillary orders for the benefit of a dependent spouse and children on the grant of a divorce, to have regard to any contribution made by either of the spouses to the welfare of the family by caring for a dependent parent and to have regard to the degree to which the future earning capacity of either is impaired by reason of their having relinquished or foregone the opportunity of earnings in order to care for a dependent parent. I draw the Senator's attention to section 19(2)(b) of the Bill which already provides for the courts to have regard to the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future. This provision is very broad.
The most obvious examples of facts to be considered under this heading are the parties' need to maintain themselves and their responsibility to provide for their dependants. Maintenance of children must be a priority, but infirm parents or other members of an extended family to whom it is reasonable to expect either party to look after in the circumstances, are also included. Not all these obligations are legally enforceable. In this context, though, a moral obligation and the voluntary assumption of a responsibility, provided it is reasonable, may be as relevant as a legal obligation. While I respect and share the Senator's concern for dependent parents, I do not consider that a specific provision along the lines proposed is necessary.
I welcome that clarification and am entirely at one with the Minister in my thinking about this matter, although he may be alarmed to hear that. Is it possible to ensure the court would interpret section 19 (2) (b) in that way? I may have misinterpreted the Minister but I understood him to say that although it was not legally binding, it was morally incumbent on the court to interpret it in that way. However, it is virtually impossible to commit the courts to anything in this House unless it is written down. While one would hope the court would interpret it in the way the Minister has indicated, what if it does not? Is there any way it can be compelled to do so within the terms of this legislation? Does the provision oblige the court to interpret it in that way only?
It does not oblige it to do so, but my information and advice is that it enables it to do so in appropriate cases if it is so minded.
In that case, having made the point, accepted the Minister's assurance that this is the most likely interpretation and made the reasonable assumption that this is the way the court is likely to interpret needs in this society, at least for the present generation, I am glad of the Minister's clarification and moral endorsement and am prepared to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 26 not moved.
I move amendment No. 27:
In page 27, between lines 12 and 13, to insert the following paragraph:
"(m) the extent to which counselling may be needed by either spouse or any child of the marriage.".
Section 19 (2) allows the court to have regard to a number of issues, including, under paragraph (c), the standard of living. If we are to allow such latitude to a judge in deciding what provisions should be made, we should take into account the much more important issue of the psychological wellbeing of the child or children and spouses in the marriage. I propose that a new paragraph be added to allow the court to have regard to any counselling which may be needed by spouses and, particularly, children and to make provision for same.
I assume the Senator's objective in tabling the amendment is to allow the court to settle the cost, if any, of counselling of parties to a divorce proceedings on one of the spouses concerned. I have a technical drafting difficulty with the Senator's amendment, as it would amend a section of the Bill which deals only with the criteria the court must take into account when making financial and other orders in support of a spouse and children. The amendment to section 19 would not have the desired effect of making it clear that the court may make an order in relation to the costs of counselling.
In any event, I draw the Senator's attention to section 42, which already provides that the cost of any mediation or counselling for a spouse or dependent child in the context of divorce or separation proceedings shall be at the discretion of the court. On the basis that section 42 deals with the cost of counselling and mediation I oppose the Senator's amendment because it is technically unsound and not necessary.
I accept what the Minister says.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 27, subsection 4 (e), lines 29 and 30, to delete "the spouses concerned anticipated that the member would be educated or trained" and substitute "he or she could reasonably have been expected to have been educated or trained".
I move this amendment because it seemed there was scope for a good deal of uncertainty and perhaps injustice in the literal interpretation of the clause in the Bill. The spouses concerned may well disagree about the education — if they are seeking a divorce it is likely they will disagree about anything they possibly can; and establishing what the anticipation was could itself be a source of conflict and confusion.
Beyond that, is it reasonable to accept for a child in these circumstances the anticipations of parents about the education or training he or she ought to receive? We are living in a society where educational aspirations and requirements are changing rapidly. In those circumstances, parents may not be abreast of what is reasonably best for their children, even if they wish it. For instance, parents may intend differences between boys and girls in more primitive households. Given that the courts are allowed to determine so much else, the question should at least be considered as to whether the child's educational expectations should be confined within its parents educational expectations for him or her. If the court thought these were not fair to the child and would not allow him or her to achieve its potential, within reason, it should be entitled to take a view on that. We are giving enormous power to the courts but in this case the welfare of the child is to be determined solely by the parents, who have not felt sufficient concern for the child to stay together on his or her behalf. I do not wish to state a polemical or ideological viewpoint but this is potentially an important issue for a number of children and it behoves us to think seriously about the implications of what we are doing.
Section 19 sets out criteria which the court must take into account in deciding whether and to what extent it should make financial property and pension orders in respect of a spouse and children of a family. Subsection (4) sets out the specific criteria in relation to children and paragraph (e) requires the court to have regard to the manner in which the child was being and in which the spouses concerned anticipated that the child would be educated or trained. Amendment No. 28 seeks a change to that paragraph such that the court would be required to have regard to the manner in which the child was being and in which he or she could reasonably have been expected to have been educated or trained.
The provision as it stands in the Bill is similar to provisions in the 1985 and 1989 legislation on separation proceedings where children are concerned. In separation proceedings at present it is the parents who are asked to assess and anticipate the education and training needs of their children now and in the future. It is the parents who have that responsibility in relation to their children, whether or not they are separated, and that is as it should be. It is the parents who make the assessment, in many cases because of the age of the children but also because of the legal responsibilities they have in respect of their children. There will be cases when the age of the children is such that their wishes can and should be taken into account by the parents.
I think the law as it stands in relation to separation proceedings — and, for that matter, maintenance proceedings in general — already covers the matter adequately. The provision in section 19 (4) (e) would operate in a similar fashion. The Senator's amendment raises an interesting aspect of how the criteria under which the court operates might be improved, but I do not think it would advance operation of the law a great deal. The amendment would, it appears, put the court in the position of having to decide on the basis of an objective criteria as opposed to a subjective criteria and that could pose difficulties, particularly if the children are young.
I take some of the points made by the Minister, but the precedents of 1985 and 1989 ought not determine the line we take. If the precedent is not necessarily the best possible there is no reason for adhering to it. There will probably be a substantial number of cases of this kind involving a significant number of children. There will also be a number of parents who will not be the best judges, certainly in these circumstances, of what is in the best interests of their children in a period of rapidly changing educational activities, expectations and so on.
There is no such thing as an objective criterion on something like this. The words "could reasonably have been expected" means, I assume, on the basis of good practice and thinking at that time. It allows a degree of latitude and does not seek to impose robotic and arbitrary criteria.
The issues are important. I would be much happier if I thought that the Minister considered it worthwhile to take further cognisance of the implications of this provision, even in terms of the proposed children's legislation, The more I think about it the more of a potential impact it has on children's futures, which ought to be the primary concern in these circumstances. Given that this is a very complex issue, will the Minister take on board the issue involved in the children's legislation to which he referred?
Senator Lee's proposal is concerned with the essential balance between who decides on the rights of a child to an education and the expectations of parents versus children. Parents generally intend and hope that their children will have the best education possible. I anticipate that there would be problems where the parents have had an acrimonious divorce and where one child is persuaded to argue for a higher education than that intended. In such circumstances, pressure may be put on the child to fall into line with one parent over the other. How can legislation deal with this?
The Constitution indicates that parents have primary responsibility for the education of their children. In view of this the proposed amendment may be open to a constitutional challenge in that it would appear to take the right to decide away from the parents and effectively place it on dependent children. This would be questionable.
The points made are reasonable. This is a potentially complex issue but we may have scope for improving what is being proposed here. Parents are obliged to ensure that their children attend school up to the school leaving age, which may change over time. What happens after that? What are the expectations of parents? If they come from disadvantaged backgrounds they may not even conceive of the possibility of their children going beyond that level.
Nevertheless, while it may be the judgment of the court or of teachers that some children would be capable of benefiting greatly from further education, the parents may not take that view. Parents come from different backgrounds and many of them will have very little knowledge of education beyond the level at which they received it. By contrast, most children today go on to levels of education which their parents did not receive.
I cannot quibble with Senator Gallagher. The Constitution makes parents primarily responsible for the education of their children and obliges them to ensure that they receive a primary education. This is complex but it is one area where some good might accrue to children from divorce legislation if one were to have more time to think about it.
I do not pretend to have thought the matter through in as probing, detailed and comprehensive a way as required. I also appreciate that, in the short time at his disposal, the Minister could not have responded to all the positive implications. However, the more I talk about it the more potentially significant the issue appears to be. I would appreciate if the Minister would indicate that he will look at the issue in the context of the children legislation which he has in mind.
I see difficulties with the form of the amendment but I will have another look at it in that context.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Sections 20 to 29, inclusive, agreed to.
NEW SECTION.
I move amendment No 29:
In page 31, before section 30, but in Part III of the Bill, to insert the following new section:
"—.—Where, on an application to a Court, it appears, that there has been default in the payment of a periodic payments order, or lump sum order, the Court may impose interest at such rates as may from time to time be fixed by order, by the Minister for Equality and Law Reform, with the consent of the Minister for Finance, on any amount outstanding under the said orders after the dates for payment of same, such interest to run from the date of default until payment is made.".
The purpose of this amendment is to get around the problem of a spouse defaulting on payment. Probably the most effective way of doing this is to make the person who has defaulted liable for interest because this will avoid the cost implications of court appearances. However, there may be another way of addressing this problem and I look forward to the Minister's views.
The courts already have certain powers under the Courts Act, 1981, to order payment of interest in respect of money that is the subject of a court order. In the circumstances, the amendment is not necessary.
Amendment, by leave, withdrawn.
Section 30 agreed to.
NEW SECTIONS.
Acting Chairman
Amendments Nos. 30 and 31 are related and both may be discussed together.
I move amendment No. 30:
In page 32, before section 31, to insert the following new section:
"—.—From and after the passing of this Act, value added tax shall not be chargeable on services provided to any of the parties by barristers, solicitors, psychiatrists, psychologists, other registered medical practitioners, marriage counsellors, mediators or social workers in contemplation of, or in connection with, an application to a Court under this Act or under the Judicial Separation and Family Law Reform Act, 1989.".
The purpose of this amendment is to keep costs down. We do not wish to see the State benefit from divorce proceedings. The purpose of amendment No. 31 is to allow that where property is transferred on a voluntary basis it would avail of the tax concessions which would have been available had the transfer been made pursuant to a court order.
The purpose of amendment No. 30 is to exempt from VAT the services provided by certain practitioners in respect of applications to the courts under the Bill or under the Separation Act, 1989. I have been advised by the Minister for Finance that VAT is covered by European law, with which Irish law must comply. Under the EU Sixth VAT Directive, it is not possible for the State to exempt economic activities not already deemed exempt by the directive. European law requires that professionals, for example, solicitors and barristers, should register and charge the tax once they are over the registration threshold.
However, the supply of services by medical practitioners is provided by non-profit making organisations while services related to welfare and social security are already exempt under the EU Sixth VAT Directive.
Finally, provisions for VAT are contained within the VAT Act, 1972, as amended, and it would be inappropriate to include them in any other Act. Accordingly, I must oppose this amendment.
Amendment No. 31 would enable informal transfers of property, namely, those without a court order between former spouses, to benefit from the stamp duty, capital acquisitions tax and capital gains tax exemptions contained in the Bill. The Bill as initiated provides only for transfers between former spouses effected on foot of a court order to benefit from those exemptions. The Minister for Finance, with whom I have discussed the matter, informs me he is unable to agree to the amendment for a number of reasons. In his view the amendment is too open ended. It leaves it open to former spouses to transfer assets at any time, even say 30 years following the granting of a divorce. The amendment will grant a blanket exemption for all property transfers between divorced spouses, which would be wrong in principle as the new legal nature of the relationship between them is that of stranger. The reliefs from taxes which are contained in the Bill are predicated upon a court granting an order which will facilitate the transfer of property from one spouse to another. The proposed amendment does not require such an order to be made following dissolution. As such, it could be argued that the effect of the amendment would be to usurp the jurisdiction of the court in that it makes an assumption that the court would have acceded to whatever application was made in this regard. Since divorce has to be a court matter, the tax reliefs should be confined to court orders. An amendment is not necessary to cater for either a capital acquisitions tax or stamp duty liability where a settlement is reached as to how the property is to be distributed as part of the divorce; but if the settlement is voluntary, namely, where there is no court order and the actual transfers take place after the decree is granted, there is no capital acquisitions tax liability in such situations because full consideration — namely, the agreement to the divorce — has been given and the wording of the stamp duty exemption contained in section 114 of the Finance Act, 1990, is sufficiently wide for it to apply to the transfers in such situations. The Minister for Finance has, nevertheless, indicated that if in practice the issues raised by amendment No. 31 turn out to be a significant problem sometime in the future, the matter could be reconsidered in the context of the annual Finance Bill. The amendment consequently is one which cannot be supported at the present time.
I accept what the Minister has said in relation to amendment No. 30 if it is governed by EU law. I could not claim to have taken on board all of what the Minister said in relation to the other amendment except that the divorce will be granted by way of a court order. Will any changes or amendments have to pass through the courts? If a couple can agree something on a voluntary basis then——
The exemption will only be done pursuant to a court order because divorce is a court matter.
The legislation allows for variations in payments and so on as alterations occur in the lives of either spouse. Will all of these changes have to pass through the courts even if a couple agree to something which seems logical and sensible?
Not if they can reach agreement as to their property, but the exemptions would only apply if there was a court order. As the Minister for Finance has pointed out, and it is really a matter for him, if there is a significant problem arising from these issues he will look at it in the context of the annual Finance Act.
It is better for all concerned if things can be done by way of agreement. I have a problem with having to go to court to do everything. Maybe there is no way around this.
You do not have to go to court to do everything.
No, but if you want to avail of the tax exemptions you must go to court.
Yes, that is so, but that is a different matter.
I am not sufficiently au fait to argue the case with any conviction but I have a view that it is best to do things voluntarily. Perhaps the Minister for Finance can keep the Minister updated if it is a problem.
Amendment, by leave, withdrawn.
Amendment No. 31 not moved.
I move amendment No. 32:
In page 32, before section 31, to insert the following new section:
"—.—For the purposes of this Act, the Minister shall make regulations to allow for the implementation of a maximum scale of charges by barristers, solicitors and other professionals involved in the proceedings.".
I knew this would be popular. There is a view expressed that the flood gates will open and it will be a bonanza for lawyers and so on. Is it possible to agree a scale of fees for these cases? I know every case will be intricate and different, but it may transpire that divorce is an expensive option and that if one can afford it one will get it. Civil legal aid has been improved immensely by the Minister but can we ensure that divorce proceedings in court do not become the bonanza that has been mentioned? Is it possible to effect by regulation a scale of fees for divorce proceedings?
Powers already exist for the regulation of solicitors' and barristers' fees. It is the function of the taxing masters of the High Court and the county registrars in the Circuit Court. Some deficiencies in the powers of the taxing masters were identified in a number of court actions and as a consequence the Courts and Court Officers Act, 1995, section 27, gave additional powers to the taxing masters and the county registrars to evaluate fees charged by counsel and expert witnesses and to allow or disallow such fees.
So the Minister is saying that the Courts and Court Officers Bill covers what I am talking about?
Yes, there are controls.
Wearing my hat as a member of the profession, I wish I earned the money that Senator McGennis seems to think I do.
It is not just me. The entire outside world thinks the same.
As a professional, I feel that the legal profession is unfairly targeted. No other profession is so regulated in terms of costs and fees. There seems to be a full range for doctors and architects but the legal profession is hit every time. A lot of people handle family law cases without making any money. I endorse what the Minister has said about the profession being regulated by the Courts and Court Officers Act. Perhaps we should apply this to similar professions.
To be fair to Senator McGennis, she did say other professionals as well as barristers and solicitors in discussing how cappings might occur. We should all get an introductory course in law before coming into the House. Does the litigant have to take the initiative in complaining about fees, or are the court's officers obliged to monitor what is happening? Poor people will divorce as well. They may not be able to do so using the same facilities as those better off, but they are entitled to as decent a service as is possible. Is there any way of levelling the playing pitch?
It is a tightly controlled situation. The position is that a bill of costs is furnished. The litigant has a number of choices. They can accept it and pay the bill; they can try and negotiate it, or they may have the bill taxed by a taxing master in the High Court or county registrar in the Circuit Court. That official will adjudicate on the fees charged by solicitors, barristers and professional witnesses and may reduce them. This happens all the time.
Does the Minister have any idea of the average cost of judicial separation? Is there a mean average?
It varies enormously. It is largely dependent on the complexities of the case, the amount of property involved and the length of the case.
There must be an average figure.
Senator Gallagher probably has more information on that than I do, but it varies greatly.
It is likely that one's solicitor will give one an idea of the costs beforehand?
One can ask for that; it is a competitive situation and people should shop around in that regard.
Under the legislation, as I recall, solicitors are obliged to give an estimate of their fees in advance. That is becoming the practice within the profession.
Is that under this legislation?
It is the general practice. Under the Solicitors Bill, solicitors are obliged to give an estimate of their fees in advance. Obviously, it is difficult to tell in advance how complicated a separation case will be — it depends on how acrimonious people decide to be.
Amendment, by leave, withdrawn.
Sections 31 to 42, inclusive, agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."
Why is this section in the Bill? If this legislation is simply concerned with the dissolution of a marriage and the right to remarry, why does it deal with someone whose agreement to marry has been terminated?
Perhaps it is not logical for the section to be in this Bill but it is a necessary legal provision. It is an amendment to existing legislation which is necessary. It was put in the Bill for that purpose. Perhaps the Senator is right that it is not entirely logical but it is desirable.
It goes to show that, while I might not be able to talk smart, I can spot an error.
Question put and agreed to.
NEW SECTION.
Government amendment No. 33:
In page 36, before section 44, to insert the following new section:
.—The Act of 1989 is hereby amended—
(a) in section 3 (2) (a), by the substitution of the following subparagraph for subparagraph (i):
‘(i) is satisfied that such provision exists or has been made, or'
(b) in section 7, by the deletion of subsection (7), and
(c) by the insertion of the following section before section 8:
7A.—An oral or written communication between either of the spouses concerned and a third party for the purpose of seeking assistance to effect a reconciliation or to reach agreement between them on some or all of the terms of a separation (whether or not made in the presence or with the knowledge of the other spouse), and any record of such a communication, made or caused to be made by either of the spouses concerned or such a third party, shall not be admissible as evidence in any court.'.".
This amendment provides for changes in various sections of the Judicial Separation Act, 1989, all of which are consequential on certain provisions contained in the divorce Bill. The main change is for a new section 7A to be inserted in the 1989 Act. That section corresponds to the new section 9 in the divorce Bill which, following agreement today on amendment No. 18, provides for the non admissibility as evidence of certain communications during any process of counselling or mediation of estranged couples.
Amendment agreed to.
Sections 44 to 46, inclusive, agreed to.
NEW SECTION.
Government amendment No. 34:
In page 38, before section 47, to insert the following new section:
47.—The Powers of Attorney Act, 1996, is hereby amended—
(a) in section 5 (7), by the substitution of the following paragraph for paragraph (a):
‘(a) the marriage is annulled or dissolved either—
(i) under the law of the State, or
(ii) under the law of another state and is, by reason of that annulment or divorce, not or no longer a subsisting valid marriage under the law of the State,',
(b) in Part I of the Second Schedule, by the insertion of the following paragraph:
‘2A. The expiry of an enduring power of attorney effected in the circumstances mentioned in section 5 (7) shall apply only so far as it relates to an attorney who is the spouse of the donor'.".
Acceptance of this amendment involves the deletion of section 47.
Section 47 of the Bill contains an amendment to section 5(7) of the Powers of Attorney Act, 1996. That subsection provides that an enduring power of attorney in favour of the spouses is invalidated if subsequently the marriage is the subject of a separation, annulment or foreign decree of divorce or if a protection, safety or barring order is made against the attorney on the application of the donor or vice versa. Section 47 provides, in effect, that the enduring power will be invalidated also if the marriage is dissolved in the State. The purpose of the amendment is to bring the power of attorneys position up to date in the context of our having domestic divorce.
Amendment agreed to.
Section 47 deleted.
Section 48 agreed to.
SECTION 49.
Government amendment No. 35:
In page 38, line 19, to delete "Family Law Act, 1995," and substitute "Act of 1995".
This is only a drafting amendment.
Amendment agreed to.
Government amendment No. 36:
In page 40, subsection (6), lines 16 and 17, to delete "the deceased spouse concerned" and substitute "a deceased spouse in respect of whom a decree of judicial separation has been granted".
Amendment agreed to.
Government amendment No. 37:
In page 40, subsection (6), lines 18 and 19, to delete "the death of the deceased concerned" and substitute "his or her death".
Amendment agreed to.
Government amendment No. 38:
In page 40, subsection (6), lines 20 and 21, to delete "a spouse who might be an applicant under this section" and substitute "the other spouse concerned".
Amendment agreed to.
Government amendment No. 39:
In page 40, subsection (6), line 23, to delete "concerned".
Amendment agreed to.
Government amendment No. 40:
In page 40, between lines 26 and 27, to insert the following subsections:
"(7) Where the personal representative of a deceased spouse in respect of whom a decree of judicial separation has been granted gives notice of his or her death to the other spouse concerned (‘the spouse') and—
(a) the spouse intends to apply to the court for an order under this section,
(b) the spouse has applied for such an order and the application is pending, or
(c) an order has been made in favour of the spouse,
the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.
(8) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.
(9) Nothing in subsection (7) or (8) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.".
Amendment agreed to.
Government amendment No. 41:
In page 40, lines 42 to 45, to delete paragraph (j) and substitute the following paragraph:
"(j) in section 25—
(i) in subsection (1), by the substitution, as respects applications under that section made after the commencement of the Family Law (Divorce) Act, 1996, of ‘6 months' for ‘12 months', and
(ii) by the substitution of the following subsections for subsection (7):
‘(7) The personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State shall make a reasonable attempt to ensure that notice of his or her death is brought to the attention of the other spouse concerned and, where an application is made under this section, the personal representative of the deceased spouse shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.
(8) Where the personal representative of a deceased spouse in respect of whom a decree of divorce has been granted in a country or jurisdiction other than the State gives notice of his or her death to the other spouse concerned ("the spouse") and—
(a) the spouse intends to apply to the court for an order under this section,
(b) the spouse has applied for such an order and the application is pending, or
(c) an order has been made in favour of the spouse,
the spouse shall, not later than one month after the receipt of the notice, notify the personal representative of such intention, application or order, as the case may be, and, if he or she does not do so, the personal representative shall be at liberty to distribute the assets of the deceased spouse, or any part thereof, amongst the parties entitled thereto.
(9) The personal representative shall not be liable to the spouse for the assets or any part thereof so distributed unless, at the time of such distribution, he or she had notice of the intention, application or order aforesaid.
(10) Nothing in subsection (8) or (9) shall prejudice the right of the spouse to follow any such assets into the hands of any person who may have received them.'.".
Amendment agreed to.
Section 49, as amended, agreed to.
Section 50 agreed to.
Title agreed to.
Bill reported with amendment.
Acting Chairman
When is it proposed to take the next Stage?
Next Tuesday.
Report Stage ordered for Tuesday, 29 October 1996.
Sitting suspended at 1 p.m. and resumed at 2 p.m.