Amendment No. 70 proposes to enable a spouse, who has made a non-financial contribution to the household to go to court with a view to establishing an ownership interest in the matrimonial property in proportion to that contribution up to a maximum of 50 per cent.
I appreciate that the Deputy is seeking to give legislative recognition to the contribution to the family made by a spouse working in the home and caring for the family. We are all conscious of the value of that contribution. It has already been given such recognition in Part II of the Judical Separation and Family Law Act, 1989, which is being repealed and updated by this Bill. However, these provisions deal with situations where proceedings for nullity or judicial separation had begun, and where the matrimonial property may have to be divided between the couple concerned. In those cases it is essential that the decision should take fully into account any non-financial as well as financial contributions made by each of the spouses, and especially the contribution made by a spouse in looking after the home.
This amendment deals with spouses who are not separated and are not proposing to separate. It provides that if one of the spouses wishes to assert an ownership right in the matrimonial property based on non-financial contributions, and the other spouse disagrees, the dispute can only be settled, by the court. This litigation would involve substantial expense and, irrespective of the outcome, it would adversely affect the marriage relationship.
Under the law, financial contributions by a spouse towards the acquisition of matrimonial property can give rise to a proportionate ownership interest which can be determined by the courts in default of agreement. However, there is a world of difference between establishing the extent of financial contributions, which are easily ascertainable and difficult to dispute, and that of non-financial contributions made by either spouse from the date of the marriage up to commencement of the litigation.
This uncertainty would increase the likelihood of disputes, and consequent recourse to the courts, and it would also increase the costs of the litigation, which would normally have to be borne by the defending spouse, irrespective of the outcome. It might also be open to a spouse who had successfully established a less than 50 per cent share in matrimonial property to return to the courts more than once to get credit for work carried out on the home in the meantime and eventually build up his or her share to the 50 per cent limit.
In contrast, the determination of non-financial contributions on the occasion of a separation is a once off evaluation of those contributions made during the period when the couple were living together. Moreover, I would not accept, as has been suggested, that such a provision would help spouses to get their partners to convey to them formally a share of the family home or other matrimonial property on the basis that, otherwise, proceedings would be taken against them. Indeed, such an implied threat of litigation could have the opposite effect.
What is wanted most by spouses who work in the home and who do not wish to engage in litigation with their partners is some practical recognition of their contribution. The real deterrent is the formality and costs associated with putting the family home into joint names. The Matrimonial Home Bill, 1993, sought to have a statutory joint ownership registered in the Land Registry or the Registry of Deeds without any formal conveyance, payment of stamp duty or registration fees. I wish to see simplified arrangements along these lines in respect of voluntary conveyances of family homes to joint ownership.
As I indicated recently when this matter was debated, my Department is examining proposals for legislation to provide for such arrangements in consultation with the lending institutions. Such provision would enable couples who live in harmony to give full and effective recognition to the contribution made by the spouse who works in the home.
I regret that I cannot regard this amendment as being other than a minimalist approach to the problem we are all anxious to resolve, that is to establish joint ownership of the family home as the norm. Encouraging litigation between spouses could do more harm than good.
The Deputy's amendment No. 55 to section 16 (1) (f) proposes that there should be a rebuttable presumption that a spouse's work in the home would give rise to a joint interest in the home unless there are compelling reasons to the contrary. I understand the Deputy's motivation in putting down this amendment, but this deals with matters to which the court must pay particular regard when making an order under various sections. These orders, which could include maintenance orders, or pension adjustment orders for the grant of a property adjustment order, giving a spouse an interest, or an enlarged interest in the family home, may not be the best or most appropriate option for the parties.
In those circumstances, obliging the court to give an ownership interest in the home to one of the spouses might be contrary to that spouse's best interest. I appreciate that the presumption is to be subject to there being compelling reasons for not granting a joint interest in the home, but it would be better to leave the fullest discretion to the court to do justice in the circumstances of each case, once it has had particular regard to any past or future contributions made by each of the spouses to the welfare of the family as the sections requires. I regret that for these reasons I am unable to accept the Deputy's amendments.
