Family Law (Miscellaneous Provisions) Bill, 1997: Committee and Final Stages.

Section 1 agreed to.

NEW SECTION.

Mrs. McGennis

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

"2.—Section 32 of the Act of 1995 shall not apply to marriages solemnised between the 1st day of August, 1996 and the 31st day of June, 1997.".

I understand the purpose of this legislation, and the Minister has reiterated that there is no attempt to interfere with the three month notice period. I support that requirement. This Bill addresses those couples whose marriages are invalid because they notified the wrong registrar or received an exemption from the wrong Circuit Court. There are over 25 couples in this situation through no fault of their own. The Minister will say that there was widespread notice of this requirement. However, having examined these cases, the Registrar General will agree that these marriages were conducted in a church. If that is the case it is possible that a number of elderly priests may not have been as aware of the civil requirements as of canon law. These couples should qualify for the protection of this legislation.

The three month requirement came into force last August. Some of these couples may now be expecting a child. What if the husband dies before the marriage is validated? What is the status of that marriage? I presume it does not exist and that the issue of the marriage is illegitimate, although that concept no longer exists. What would be the position vis-à-vis property and inheritance? The Minister introduced technical amendments in this legislation as a result of a particular case. If we do not extend the protection of this legislation to the approximately 25 couples I mentioned, one of those couples might find themselves in extreme difficulty, particularly if a child was born of that marriage, if a partner dies and if property becomes an issue.

This time requirement is new. The settling down period for the application of the requirement has expired and all Churches which conduct marriages are aware of it. The Catholic Church already had a requirement that a person who was under 18 years of age should give six months' notice to the church of his or her intention to marry. However, there is now a new legislative regime and, if we are to be fair and ensure that the possible scenario I outlined does not arise, we should validate the approximately 25 marriages which are invalid at present. I hope the Minister will accept the amendment.

Minister for Equality and Law Reform (Mr. Taylor)

If a substantive requirement under marriage law has not been complied with, from the point of view of the State there is no marriage. The normal consequences with regard to a child or property apply. There is no point in having a law if it is not substantive. Either we are serious about the necessity for this requirement or we are not.

The effect of Senator McGennis' amendment would be that the substantive requirement of three months' prior notification would be dispensed with for the period of 1 August 1996 to 31 June 1997. What the Senator is trying to achieve is not clear. If one were to follow the logic of her amendment, the substantive requirement would be dispensed with entirely. I do not believe that is the Senator's intention.

A similar amendment to the one now being proposed was tabled in the course of the debate on the Family Law (Divorce) Act, 1996, in respect of the Family Law Act, 1995, and also in the course of the debate on this Bill in the Dáil. The amendment tabled to the 1995 Act during the debate on the Divorce Act provided that section 32 of the 1995 Act shall not apply to marriages solemnised between 1 August 1996 and 31 December 1996. This arose in a context where it was being suggested that marriages celebrated in the months of August, September and October 1996 might be invalid because registrars did not have the power to accept notifications prior to the 1995 Act coming into operation on 1 August 1996.

The presumption under rules of statutory interpretation is that the Oireachtas intended that couples be entitled to notify the registrar of their intention to marry and that the registrar should have power to receive such notices prior to the commencement of section 32. The advice from the Attorney General was and is that the provisions of section 10 (1) (b) of the Interpretation Act, 1937, cover the situation that arises in relation to notices of marriage given prior to 1 August 1996. That provision deals with where an Act of the Oireachtas is expressed to come into operation on a day subsequent to the passing of such Act. It makes clear that if an Act confers a power, the exercise of which is necessary or expedient to enable the Act to have full force and effect immediately upon its coming into operation, such power may be exercised at any time after the passing of such Act, even though it has not technically come into operation at that time. Consequently, on the basis of ordinary rules of statutory interpretation and by virtue of the provision of section 10 of the Interpretation Act, the Attorney General's view was and is that prior to 1 August 1996, when the Act came into operation, couples were authorised to notify registrars of marriage of their intention to marry and registrars had power to receive the notices so given.

The view of the Attorney General is that the legislation now being proposed deals fully with the problem encountered to date in relation to persons giving notice to wrong registrars. Of the 17,500 applications received to date, only 167 have been referred to the Registrar General and, of those, 42 were in order. Those which give rise to difficulties arise as a result of notification being given to the wrong registrar or failure to give timely notice. While we have addressed the question of notice to the wrong registrar, we cannot address the question of people's failure to give timely notice without dispensing altogether with the substantive requirement.

While I regret the situation of that small number of people, we are not in a position to address it. The Registrar General will be in communication with them and will discuss, if they so require, what action they should take. In the circumstances, I oppose the amendment.

Mrs. McGennis

I usually draft my own amendments. The Minister said my intention was not clear, but my contribution in support of the amendment made my intention clear. Ignorance is no defence in law, but this legislation has been introduced because people were not fully familiar with the requirements. It will, therefore, validate their marriages.

The Attorney General's opinion regarding the situation of the 25 affected couples is unbelievable. I presume somebody spoke to these people during the review and ascertained why they did not give notice. Other than telling them their marriages are invalid, did the Registrar General ask why they did not give the required notice? If it were discovered they acted in ignorance of the requirement, why can this legislation not be extended to them? If the Minister says it is impossible to do so, I will accept his opinion. However, it is difficult to accept the Attorney General's opinion that in order to validate those marriages one is effectively removing the three month notice requirement. Whatever about the problems that arose regarding the Succession Act and powers of attorney, some of the people to whom I refer might end up in dire circumstances as a result of the invalidity of their marriages simply because they were unaware of the requirement.

Mr. Taylor

They can deal with the matter without undue difficulty. They can give three months notice and have a simple marriage ceremony before the registrar. They need not go through the same rigmarole again. Some might already have done that; the registrar or their legal advisers would have advised them to so do.

Everybody recognises the need for this substantive requirement. We cannot now provide that it was not necessary after all for the period of time mentioned in the amendment. We are dealing with the problems which arose where the wrong registrar was involved. However, we cannot deal with situations where the time requirement was not complied with. The remedy is in the hands of the couples concerned. They can give notice now, if they have not already done so. Any responsible solicitor they might consult would advise them to give three months' notice and fix up the matter before a registrar without having to go through all the formalities again. This is not an insuperable problem which requires a legislative solution.

The remedy is there and it is satisfying to know that in the overwhelming number of cases, 17,500, the process worked as intended. When one deals with a large number of incidents there will always be negligence, carelessness or oversight in some cases. The requirement is good and we have to enforce it. It is not a major problem for that small number of people to put in order.

Mrs. McGennis

There is no problem provided both parties are fit and healthy. There is also the question of the marriage certificate and other certificates that may, for example, show Marian McGennis was born three months after the marriage took place as distinct from a year and a half. This is not a major problem but it will appear on the official marriage records. I hope both parties to these 25 marriages can put their affairs in order, provided they remain fit and healthy. If they do not, there will be a human problem.

Amendment, by leave, withdrawn.

Sections 2 and 3 agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mrs. McGennis

I did not fully grasp the requirement in renewing a barring order and the suggestion of natural justice was incorrect in the context in which I mentioned it. I thank the Minister for clarifying the matter. Under section 4, in order to strengthen the Domestic Violence Act, 1996, — and this is also the view of Women's Aid — the time requirement should be omitted completely.

Apart from pretending that a couple have lived together for six months prior to the implementation of a barring order in order to ensure the protection of women and children in the home, there are other areas in which the time requirement is a problem for cohabiting couples — not just in terms of renewing a barring order which has been in existence for a year or more. The best and cleanest way to deal with this is to remove the time requirement, which may be a constitutional matter.

From discussions with Women's Aid I know it is having problems with the aggregate time requirement; not just in renewing barring orders but also in cases where a partner is jailed for part of the preceding nine months, and maybe not for domestic violence. I know the Minister is affording a woman the right to go to court and ask for the renewal of a barring order. I understand that is the purpose of the section from the Minister's explanation. However, in order to strengthen the Domestic Violence Act, 1996, we should have removed the time requirement.

Mr. Taylor

Before I address Senator McGennis's point I wish to refer back to my answer on the renewal point made by Senator Gallagher. I understood that a renewal applied only once. However, my officials have told me they are not sure that interpretation is correct. They think further renewals may be possible. My understanding was that the Bill provided for a once only renewal and that it could not continue on a permanent basis. My officials are not so sure whether my interpretation is correct. I probably should not be giving legal interpretations in any case. I always try to be as helpful as I can on these matters.

Senator McGennis raised the requirement of people having to live together for a certain length of time and whether we should have dealt with this in the Domestic Violence Act, 1996. The Attorney General advised at that time that the limitation should be placed on the scope of the provision. The existence of a barring order obliges a person to leave his or her home and renders that person liable to arrest in respect of behaviour which might not otherwise constitute a criminal offence.

The provision covers a nine month rather than a 12 month period, as in safety orders because of the more drastic nature of the remedy. The fact that a period of six months of the last nine is specified should ensure that a person who has recently left an established cohabitant relationship because of a partner's violence will have a one month period of grace in which to apply if, for example, she has moved to a women's refuge.

I remember examining this matter. The problem of cohabitant relationships presented considerable difficulties as it was entirely new. Two people could have cohabited for two days. Does that leave one of them open to being barred from their home when the relationship was as new or recent as that? In marriage, the intent is different. People may say they are no longer cohabitants and that the relationship is over. There has to be a period under which one can say people are cohabitants within the meaning of the Bill because the remedy is draconian — being forcibly excluded from one's home by law. Should that remedy be accorded to people living together for days, weeks or a month in a relationship not affirmed to any degree of permanence?

The basis of this kind of remedy was, is and should be that two people are living together in a relationship that has at least some aspect of permanence. This would prohibit a violent situation arising between them that would intrude on the permanent relationship that had been established. This requires a period of living together. We decided on the period in the Bill taking those factors into account.

Question put and agreed to.

Sections 5 to 7, inclusive, agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Sitting suspended at 12 noon and resumed at 2 p.m.

Seanad Éireann debate -
Wednesday, 30 Apr 1997