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Seanad Éireann debate -
Wednesday, 30 Apr 1997

Vol. 151 No. 6

Family Law (Miscellaneous Provisions) Bill, 1997: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The main purpose of this short but important Bill is to provide for validation of marriages where the three months' notification of marriage requirement under the Family Law Act, 1995, was given by some couples to the wrong registrar of marriages. The Bill sets matters right in those cases by validating, with retrospection, the marriages concerned. The Bill also avoids such cases happening in the future by providing that a marriage shall not be deemed to be invalid in law solely by reason of notification being given to the wrong registrar. The opportunity is also being taken in the Bill to make some useful technical changes to the law in relation to barring orders granted in the case of cohabitants, to irrevocable powers of attorney and to disclaimers of interest in cases of intestate succession.

Section 32 of the Family Law Act, 1995, requires parties to a marriage to notify in writing the registrar of marriages for the district in which the marriage is to be solemnised of their intention to marry not less than three months prior to the date of the marriage. The effect of section 32 is that, unless special exemption has been obtained from the Circuit Court or the High Court under section 33 of the 1995 Act, a marriage shall not be valid unless the parties have met the notification requirement.

The policy enshrined in section 32 of the 1995 Act derives from a considerable body of sources. It was recommended by the Oireachtas Committee on Marriage Breakdown in 1985. It formed part of the Government's statement of intentions with regard to marriage, separation and divorce in the run up to the 1986 divorce referendum, and the merits were discussed in the Government's White Paper on Marital Breakdown published in 1992. In the Government's information campaign prior to the divorce referendum in 1995, the section was highlighted as one of the Government's measures to protect and support marriage. The provision now contained in the 1995 Act was the subject of debate during the period February 1994 and September 1995, and received a broad welcome in the House. The period of three months, as provided for in the Act, was considered appropriate to allow for a period of reflection on marriage as an institution of the greatest importance. The provision was welcomed by all interest groups, including the Churches.

My colleague, the Minister for Health, who has responsibility in relation to the administration of the Office of the Registrar-General of Births, Deaths and Marriages, informs me that considerable steps were taken by the Office of the Registrar-General to advise the public, clergy and registrars of the new notification requirements. Those steps included the production of information leaflets for couples intending to marry, for celebrants and for registrars as part of a process which began early in March 1996. Notices in relation to the new requirement appeared in all national newspapers and in the Sunday newspapers, in 40 provincial newspapers and some magazines and there were advertisement slots on RTÉ and commercial radio. In addition, a number of circulars were issued to registrars reminding them of the importance of those procedures and of the need for strict compliance with the guidelines, and training courses for registrars were also held.

Since introduction of the notification requirement on 1 August 1996, the notifications which have been processed by registrars have not given rise to difficulties in the vast majority of cases. I understand that between May 1996 and April 1997 notifications of intention to marry have been received in respect of 17,500 marriages approximately. Of that total, 167 cases were referred to the Office of the Registrar-General for review. While 42 cases were found to be in order, 25 cases failed to give the required three months' notification. The Registrar-General is confirming with the 25 couples concerned that their marriages cannot be registered. Some 57 cases to date have been identified as cases where notification was given in error to a registrar for a district other than the district in which their marriage was to be solemnised. A further 43 cases are currently being examined to establish if the requirements of the Act have been met. Where problem cases have been identified, the registrar has communicated with the couples concerned.

I think it important to emphasise that the substantive requirement under section 32 of the 1995 Act of three months' notification of intention to marry is not in any way being affected by this Bill. Neither does the Bill provide for the validation of marriages where parties failed to give notification in time or failed to give any notification. On the passing of this Bill it is the intention of the Registrar-General to clarify the position, in writing, for all couples where doubts have arisen.

Of course, circumstances can arise where the notification requirement under section 32 could present difficulties for the parties. In recognition of this fact, it is provided in section 33 of the 1995 Act that a person can apply to the court for an exemption from the notification requirement. In line with the substantive nature of section 32, exemptions by the court shall not, however, be granted unless the applicant shows that its grant is justified by serious reasons and that it is in the interests of the parties to the intended marriage. I think it important to reiterate that, notwithstanding the passing of this Bill, unless a couple has obtained prior exemption from the three months' notice requirement, their marriage is not, and will not, be valid in law if they failed, or fail, to give three months' prior notification of their intention to marry.

The Bill deals with those cases, 57 in all so far, where notification was given to the wrong registrar. In those cases it is reasonable to assume that it was the intention of the parties concerned to comply with the law. The notifications were, unfortunately, placed with the wrong registrar and this was not discovered in time for all concerned to do anything about the situation. The Minister for Health has stated on several occasions in the House his concern about the matter and his regret about the position that has ensued for the parties concerned. I have shared in that concern and, in consultation with the Minister for Health, indicated my intention to bring forward amending legislation. The Bill implements the commitment both of myself and the Minister for Health on the matter.

I now turn to the specific provisions of the Bill. Sections 2 and 3 amend the Act of 1995 in relation to the notification of intention to marry provisions in a number of respects. Section 2(1)(a) of the Bill inserts a new subsection (5) into section 32 of the 1995 Act which will require health boards to pay fees to certain registrars of marriage, in accordance with regulations prescribed by the Minister for Health, to compensate them for processing the marriage notifications they receive under the section. The registrars concerned comprise about half of all registrars and their remuneration at present is made up of fees paid by the public and by the appropriate health board for each registered marriage.

Section 2(1)(b) of the Bill, which substitutes a new subsection (6) for subsection (5) of section 32, contains a definition of the registrar of marriages for the purposes of the 1995 Act. In relation to a marriage to which section 11 of the Registration of Marriages (Ireland) Act, 1863, applies, it will mean the registrar appointed under section 10 of that Act or a person authorised by that registrar to act on his or her behalf. In relation to any other marriage, it will mean the registrar appointed under section 57 of the Marriages (Ireland) Act, 1844, or a person authorised by that registrar to act on his or her behalf.

Section 2(2) of the Bill introduces a degree of flexibility as regards the jurisdiction of the Circuit Family Court to deal with applications for exemptions from the marriage notification requirement. Under section 38(4) of the Act, as it stands, exemptions may be given by a judge of the circuit in which any of the parties to the proceedings ordinarily resides or carries on any business, profession or occupation. Accordingly, the parties to an intended marriage have to apply to that circuit for such an exemption. Section 2(2) of the Bill provides that applications for exemption from the marriage notification requirement may be heard by the judge of any circuit.

Section 3 of the Bill is the provision which deals with the validation of marriages where notification was given to the wrong registrar. Subsection (1) provides for validation where notification was given, under section 32 of the 1995 Act, to a registrar appointed under either the Marriages (Ireland) Act, 1844, or the Registration of Marriages (Ireland) Act, 1863, and that registrar was not the registrar for the district in which the marriage was intended to be solemnised. It also provides that, in the future, where couples give notification to the wrong registrar of marriage this will not of itself invalidate the marriage.

Subsection (2) validates any marriages which have taken place since 1 August 1996 where a judge of the Circuit Family Court may have granted an exemption from the notification of marriage requirements in cases where the court did not have the jurisdiction to do so because the parties did not ordinarily reside or carry on any business, profession or occupation in that court's jurisdiction. The provision is for the avoidance of doubt and is a logical consequence of the amendment being proposed under section 2(2). That problem will not arise in the future because of the provisions in section 2(2) of the Bill which allows the judge of any Circuit Family Court to grant exemptions.

These are the main provisions amending the rules on notification of intention to marry. I now turn to the amendments in relation to other areas of the law that are provided for in sections 4, 5 and 6 of the Bill.

Under section 3 of the Domestic Violence Act, 1996, a cohabitant who applies for a barring order must have lived with the respondent for a period of not less than six months in aggregate during the period of nine months immediately prior to the application for a barring order. It has come to my notice that there may be a difficulty of interpretation of the Act in those cases where a cohabitant is seeking the renewal or extension of a barring order. For the removal of doubt, section 4 of the Bill inserts a new subsection into section 3 of the 1996 Act. It provides that where by reason only of a barring order or interim barring order the parties have not lived together for the requisite period prior to the application they shall be deemed for the purposes of the application for a further barring order to have lived together for the requisite period prior to the application for a barring order.

Section 5 of the Bill amends the law in relation to certain powers of attorney. The Powers of Attorney Act, 1966, is detailed and complex legislation. A main feature of the Act is that it introduces a power of attorney which endures notwithstanding the mental incapacity of the donor. Common law rules had been to the effect that a power of attorney must cease on the intervening event of mental incapacity of the donor. The Act repeals sections 8 and 9 of the Conveyancing Act, 1882, under which certain powers of attorney could not be revoked by the donor's death, mental incapacity or bankruptcy. Both sections had been widely criticised as being confusing and failing to provide adequate protection for third parties. Section 20 of the 1996 Act made it clear that the only powers which ought to be irrevocable should be those given by way of security, for example, to protect a mortgagee in the event of default in repayments by the donor of the power. The section applies to powers of attorney whenever created.

When the 1996 Act was introduced, it was widely understood that there were no cases where powers of attorney had been granted otherwise than by way of security. However, my attention has recently been drawn to a case where a person had given a power of attorney which was expressed to be irrevocable and was in consideration of an annual payment to the donees. The intention of the donor was that the donees should be in a position to act in the event of the donor's incapacity. Legal advice was obtained by the parties to the effect that the power was valid under section 8 of the 1882 Act. Although there may be other similar cases, none has so far been reported. I am of the view that any power of attorney given before the date on which the 1996 Act came into operation under the 1882 Act otherwise than by way of security should not be so affected by section 20 of the 1996 Act. Accordingly, I have provided in section 5 that section 20 shall not invalidate powers of attorney given otherwise than by way of security under sections 8 and 9 of the 1882 Act.

The purpose of section 6 is to clarify the law in relation to the disclaimer of interest in cases of intestate succession. The section is being included following submissions made to me by the Law Society and the Revenue Commissioners for clarification of the law in this area.

The rules governing the distribution of an estate on intestacy are set out in Part VI of the Succession Act, 1965. There is some doubt as to the position of the State, as ultimate intestate successor under section 73 of the Succession Act, 1965, when the next-of-kin of a person who dies intestate disclaims an interest in the deceased's estate. Section 73 of the 1965 Act provides that, in default of next-of-kin, the estate of an intestate shall pass to the State as ultimate intestate successor. Section 6 makes clear that the disclaimed estate shall be distributed as if the person disclaiming had died immediately before the death of the intestate and if that disclaimant is not the spouse of the intestate or a direct lineal ancestor of the intestate, it shall be distributed as if the disclaimant had died without leaving issue. The effect of section 6 which, in effect is a codification of existing practice, is that where there are any possible successors of the intestate, other than the disclaimant, they will take precedence over the State for the purposes of intestate succession.

I believe that Senators will appreciate that, while the provisions in the Bill will possibly affect only a small number of persons, they are, nonetheless, important in their own right and for the persons concerned. I am happy to respond, by way of this Bill, to the various submissions made to me on these issues. I commend the Bill to the House.

This Bill is necessary and welcome. None of us anticipated that the Family Law Act, 1995, would have to be amended because of practical problems involving people seeking to marry. There was support on all sides of the House for the provision specifying a three month prior notification of marriage. The divorce debate was raging at the time and the view was taken that marriage, entailing a serious commitment, was not to be entered into lightly.

This Bill has several purposes, but its immediate purpose is to validate a number marriages that have been found to be invalid due to a technicality. It is right that this legislation should be expedited to rectify that situation, particularly in cases where notice was given to the wrong registrar or the exemption was for a court other than the court in the area concerned.

However, I have grave concerns about the numbers mentioned by the Minister. Of approximately 70,500 marriages last year, a small number will not be covered by this legislation because they did not give three months' notice. The Minister of State, Deputy Fitzgerald, stated in the Dáil that if they did not give notice, then it was their own problem. I do not believe that any couple who exchanged marriage vows in a church did so believing their marriage was invalid. This legislation should cover those couples also, and I have tabled an amendment similar to that tabled in the Dáil. I hope the Minister can accept it and, if not, perhaps he can explain why not. I do not believe that the approximately 25 couples affected, and the approximately 60 other couples being investigated, exchanged marriage vows on the basis that they were contracting illegal marriages.

The provisions validating marriages that were notified to the wrong registrar are very welcome. These are probably teething problems with the necessity to give notice that this legislation will solve. This was not anticipated when the Family Law Act, 1995, was being debated. Allowing couples to apply to any Circuit Court for an exemption is also sensible and welcome.

There is a provision in this Bill that amends section 3 of the Domestic Violence Act, 1996. I am concerned with that as it provides that if a person has a barring order in place for six months and applies for a renewal of that order, under the existing law it would be impossible to renew the order because the couple would not have been living together for six of the nine preceding months. There is a need to protect women and children, and Women's Aid has told me that it also has a problem with this provision.

There is also a need for natural justice, however, and there is a presumption in the proposed change to existing legislation. That presumption is that the partner, who is usually male, will return to the family home and be violent again. That might be true, but it is still a presumption. It is accordingly a breach of natural justice to allow someone to apply for a barring order on the basis that this will happen. Women's Aid pointed out that problems arise with the stipulation of the need for cohabiting couples to be residing together for six aggregate months of the nine months immediately prior to the application, and this amendment does not solve that. There is a constitutional difference between cohabiting couples and married couples, but the time requirement is causing problems for those dealing with violence against women. The solution may be to remove that requirement and have all cases dealt with on their merits when they come before the courts. While protecting those who are vulnerable, this amendment suggests that the person who has been violent will continue to be violent if readmitted to the home.

The Minister's Powers of Attorney Bill, 1996, baffled me when it came to the House. I thought it was a Justice Bill, which had nothing to do with me. I was presented with it one morning and had no knowledge of it. Having read the amendment to that Act, I am still slightly confused. I would not pretend to understand it, so perhaps the Minister will explain it in layman's terms.

The Bill also deals with succession. Does this mean, for example, that the extended family, which might not have been able inherit property because a person died intestate, will be able to do so? If that is what it means, it is welcome. This is technical legislation required to deal with case law which has come to light and the problem of validating marriages. After the Family Law Bill was passed, a Government Deputy suggested there was in flaw in the legislation and there would be a need for amending legislation. Was he correct, or is this Bill unrelated?

That is not correct.

We must ensure that couples who believe their marriages are valid will be afforded the protection of the Bill.

I, too, welcome the Bill. As Senator McGennis said, it does not affect many people, but it is important legislation for those it does. It deals with 57 cases where notification was given to the wrong registrar. In those cases it is reasonable to assume it was the intention of the parties concerned to comply with the law, but notifications were unfortunately placed with the wrong registrar. This was not discovered in time for those concerned to do anything about it.

I know one of those affected. Couples in this situation are concerned and face many difficulties. Having planned a marriage, gone through a ceremony and complied with the law, it was a shock for them to learn that the State did not consider these couples to be married. When looking at this issue we must consider difficulties for each couple affected by this anomaly which arose when notification was given to the wrong registrar. For that reason this Bill will be welcomed by couples whose marriages will be validated.

I welcome the amendment to the Domestic Violence Act, 1996, which tidies an anomaly which arose in that regard. Where a barring order existed there was a legal difficulty renewing it because it did not comply with section 3 of the 1996 Act. On the amendment to the Succession Act, I understand that heretofore if a person died intestate, the next of kin inherited and, if not, the estate passed to the State. It is important that the extended family has the opportunity or the right to inherit the value of the estate. The intention of the original person who died would be that the estate would stay within the family and not pass to the State.

I will not delay the passing of the Bill only to say that I welcome it, especially for that small number of couples, 57 in all, who, subsequent to being married and believing it to be legal, found that because they informed the wrong registrar they were not legally married. For that reason I welcome the Bill.

As previous speakers have indicated, this Bill is largely technical. It surprised me to learn of the marriages made invalid because of the new requirement of giving notice. It was important that it be urgently redressed. The concept of giving notice of marriage was a new one to registrars, clergy and citizens, so it was natural there would be teething problems in its administration. However, it must have been horrific and distressful for those concerned, after all their plans and good intentions for walking up the aisle, to be told by the State that their marriages were officially invalid. I am happy to see that situation resolved in this legislation.

Further clarification on the domestic violence legislation is another provision in this Bill. That was major reforming legislation passed by this House. For the first time, and despite the difficulties existing in the Constitution whereby it appeared cohabiting couples could not get the protection of the law in the way they should, the Minister and his advisers worked to ensure some protection was provided by way of the Domestic Violence Act, 1996. This provided that where a couple lived together for a period of at least six months in a total nine month period, one or the other was afforded the protection of the law as of right. The legislation is amended to clarify the aggregate total time to be taken into consideration in a subsequent application for a barring order, or a final barring order after an interim one has been granted. That needed clarification and I welcome it. Can this run on indefinitely? What would happen with the subsequent application? Is the time period aggregated on an overall basis? I am not clear on that, but the provision goes some way towards clarifying the situation for those concerned.

The Powers of Attorney Act, 1966, was very technical. My understanding is that the Bill made it clear that the only powers which could be made irrevocable were those which could be given by way of security. The Minister said it was the understanding of the Department that those were the only powers of attorney which could arise, whereas it appears there are other circumstances warranting the same provision. I understand the Minister now states that section 20 would not invalidate powers of attorney given otherwise than by way of security. I take it that it is to cover the possibility of other provisions having been made by way of power of attorney and to allow them to endure. For what it is worth, I welcome that.

It is stretching it to include disclaimer of interests and intestate succession in family law, because in my view it deals solely and entirely with succession law. Nonetheless, if the Minister is ingenious enough to include it in this legislation, I am happy with that. It needed clarification. It was an area which concerned me because the law becomes a little vague in terms of intestate succession beyond the immediate boundaries of family. This provision states that up to now a disclaimed estate automatically reverted to the State, whereas there might have been others, not necessarily the next of kin but other family relations, who ought to have been considered prior to it reverting to the State. By deeming the person who disclaims the estate to have died immediately before the person who died intestate, it allows succession to extend to the family of the disclaimer. That is something which will be welcomed by practitioners of law and by relations who may have been excluded by the State taking what was left over in an all too quick fashion.

Some bank and savings accounts of deceased people remain unclaimed, uninvestigated and unidentified. There is a role for legislation in tackling that issue because the money is being held by financial institutions without proper investigation as to who owns it and with no real intent to distribute it to its rightful owners. Many old people would have put a little nest egg aside and perhaps told no one about it. Their relations probably do not know about it and unless detailed inquiries are made the financial institutions will not disclose its existence. That money, which can be sizeable, should be taken from the financial institutions and invested in a charitable purpose, or some effort should be made to ensure it reverts to the family in question. There is a role for legislation in that area and it is something which ought to be tackled.

I thank the Senators who addressed the House during the debate and I appreciate the general welcome they gave to the Bill. A number of issues were raised upon which I would like to comment briefly.

I reiterate that the policy enshrined in section 32 of the Family Law Act, 1995, welcomed by both sides of the House and by various interest groups, including the Churches, when it was debated in the House, is that the notice requirement reflects the belief that marriage is an institution of the greatest importance and one which should not be entered into lightly. It also reflects the view that the taking on of marriage requires both maturity and reflection. The three month period provided for in the Act was considered appropriate to allow for a period of reflection and to prevent hasty marriages. The substantive requirement of three months' notice provided for in the Act is not affected by the Bill before the House. Its purpose is focused for those cases where the notice was given to the wrong registrar, although sufficient notice of period was given.

I apologise to Senators that the remaining provisions of the Bill are so technical and I concede they are such, especially those dealing with the Powers of Attorney Act and the Succession Act, 1965, although the number of cases to which they have relevance would be very small.

I am disappointed Senator McGennis thinks there is any breach of natural law in the amendment to the Domestic Violence Act. I think the reverse. We are saying that where a barring order is made in the case of cohabitants and, as a result of and following on the compulsion of that barring order, the parties have, of necessity being living apart from each other, it would offend natural justice for the man to then say that the woman does not qualify for the renewal of the order because they have not been living together. In fact, this was so because of the court order.

Senator McGennis's fears for natural justice are not valid for the additional reason that the granting of the renewal of a barring order is not automatic. It is not the case that the woman says that she wishes the expired order renewed and, as of right, is automatically granted such a renewal. The court must be satisfied that it is right, proper and appropriate for the order to be renewed. That would depend on the history of the couple during the period of the initial order. For example, if the parties had behaved in a proper manner and gave assurances to the court, the court may decide that it was inappropriate to renew the order and that the couple should be given an opportunity to sort out their problems. Alternatively, if, for example, the man had been causing difficulties for the woman, breaking the barring order or making threats, the court may decide that it was appropriate to renew the order. If this was necessary to protect a woman initially involved in a domestic violence situation, it would be inappropriate if living apart could be used as a technical ground to enable the man to return home.

Senator Gallagher raised the question as to whether this could be an ongoing process. It cannot be so, as a barring order can only be renewed once. The Domestic Violence Act extended the period for which an order could be granted from one to up to three years. There is no second renewal. If a permanent order was required, a further formal proceeding would be required in the Circuit Court seeking a judicial separation or some such measure.

The inclusion of the Powers of Attorney Act arises from a technical interpretation of sections 8 and 9 of the Conveyancing Act, 1882. However, this provision is of limited application. I am aware of only one case in which it would apply. However, I felt it inappropriate to intrude on the power of attorney granted under that Act.

Similarly, the Succession Act provision is of limited application. In the 40 years I practised law I never came across a case where the State emerged as the ultimate successor. Such cases are very rare. The amendment arises from the wording of section 73 of the Succession Act, 1965. This provides that the State succeeds to the estate if a person dies intestate. However, what of cases where the next of kin disclaimed their rights to succeed to the estate? The net intent of the technical amendment is that where there are any possible successors of the intestant other than the person who disclaimed his or her rights, they will take precedence over the State in succession. That is fair, right and logical. The State is the final successor only when there is no next of kin.

I am surprised that Senator Gallagher raised an eyebrow on including this amendment in family law legislation. By definition, next of kin are members of the wider family. It is logical that this provision should be included in this legislation.

I thank Senators for their assistance and understanding with this important legislation.

Question put and agreed to.
Agreed to take remaining Stages today.