I move amendment No. 4:
In page 5, line 32, to delete "21 years" and substitute "23 years".
One effect of the definition of dependent member of the family in subsection (1) of section 2 is that orders may be made under Part II and Part III of the Bill in support of a school-going child who is under the age of 21 years. The amendment increases that age to 23 years on the basis that that age probably reflects better the age, on average, at which a person completes third level education.
Could the Minister confirm that that will cover increasing age limits for all types of maintenance applications both under the Guardianship of Infants Act, 1964 as well as under the Family Law (Protection of Spouses and Children) Act, 1976?
A later amendment will cover that.
I move amendment No. 5:
In page 5, lines 36 and 37, to delete "the Family Home Protection Act, 1976" and substitute "section 2 of the Family Home Protection Act, 1976, with the modification that the references to a spouse in that section shall be construed as references to a spouse within the meaning of this Act".
The Family Home Protection Act, 1976 defines the family home as a dwelling in which a married couple ordinarily reside. The purpose of this amendment is to provide that the definition of family home used in the Bill will encompass the home of a couple to a void or voidable marriage, or a marriage in relation to which an annulment or a foreign decree of divorce or annulment has been obtained.
I do not necessarily disagree technically with what the Minister is trying to do, but I have serious constitutional reservations in so far as this legislation seeks to tie down property or require that property transfer orders be made, or refers to a home as a family home in circumstances where a marriage has been annulled. This would give rise to major constitutional problems with this legislation.
I do not disagree with the spirit of what the Minister is trying to do but the difficulty is that we are confined not simply to what the Constitution says but the manner in which it is being interpreted. If one takes the recent Supreme Court judgment dealing with family homes, and the implication within it that you cannot unduly interfere in internal family arrangements in a situation in which the Constitution provides specific protection for the family, I am not sure that the Minister can do what he now proposes in the context of marriages in respect of which decrees of annulment have been made.
I distinguish between those and marriages in respect of which there has been a foreign decree of divorce which is subsequently recognised because then there is no doubt that there has been a valid marriage at some stage. That is a distinguishable situation. It seems to me that, based on the constitutional provisions and the Supreme Court's interpretation of those provisions, legislation which prevents people who are unmarried from freely dealing in and selling property is going to be at serious risk of being constitutionally impugned. The Minister will say that where a marriage has been annulled it is in a different situation. Unfortunately, it is not. I am saying this as someone who believes there is a need for protection and I am not sure that it can be provided within our current constitutional structure.
The reality of a decree of annulment is a court decision that, despite the fact that people have participated in a ceremony, there has in fact never been a marriage. That is the effect of a decree of annulment. We all understand that. I accept that no providing certain property rights and protections, in particular for dependent parties, can result in serious injustice when decrees of annulment are granted. I am afraid that is a problem that the Constitution does not allow us to address properly in the manner in which it should be addressed.
This amendment is only one of a series of provisions in this Bill which will lay the grounds for a major constitutional problem. It is inevitable that this Bill, like its predecessor, the Matrimonial Home Bill, will have to be refered by the President to the Supreme Court for a decision. If it is not, it is inevitable that at an early stage it will be challenged.
My colleague, Deputy Currie, mentioned the politics of what we are doing. Politics is all about perception just as law reform is, on occasion, about perception. On occasion people think we are achieving things that, in reality, this House either does not achieve or cannot achieve. If this Bill is constitutionally challenged and is found to be unconstitutional because of the manner in which it addresses property provision, property protection and financial provision following the granting of nullity decrees, then despite the fact that the provisions relating to post-nullity court orders have absolutely nothing in the world to do with divorce, it will create a perception which will so damage the Government's standing in addressing this area that it will make it extremely difficult, if not impossible, for a divorce referendum to be successful.
The politics of what we are doing now would have made a great deal of sense if all the protections the Minister would like to put in force — for a couple who have been through a nullity hearing that has resulted in a court decree of annulment — had been left until the divorce issue was dealt with. It is poor political judgment to confuse this area with the protections that need to be put in place if a divorce referendum is to be put before the people and if divorce legislation is subsequently to be enacted. The technicality of the problem is so complex that it will be used by those who are opposed to reform to sow confusion.
If we were in a different constitutional environment this problem would not arise but it is there and we should not pretend otherwise. Many of the provisions in the Bill are aspects of law reform that I would personally like to see and of which I have been an advocate. Because of the Supreme Court judgment on the Matrimonial Home Bill the general public are confused about the implications of divorce. We do not need to create another time-bomb which ticks away and simply sows more confusion. It is wrong to have identified these sort of reforms in this Bill as being a prerequisite to the divorce referendum. In so far as we are trying to address injustices that arise after the granting of nullity decrees it is an entirely separate and different issue and, because of our unique constitutional structure, gives rise to entirely different and separate legal problems.
I am saying this also in the context of the numbers of people who are affected. Between 30 and 40 decrees of annulment are granted each year by the High Court. They are important aspects of what the courts do but they affect a small number of people. If we compare the numbers of people looking for decrees of separation in the courts — and who might ultimately be some of the people who would look for decrees of divorce — a profoundly different situation faces us. Statistics that have been made available to me by the Department of Justice within the last few days show that in the legal year August 1992 to 1993 there were 2,781 applications initiated before the Circuit Court looking for separation decrees. About one third of couples who separate every year have to initiate court proceedings for separation. I would estimate that approximately two-thirds would effect a separation by agreement or without ever bringing judicial separation proceedings.
The vast numbers currently getting separation decrees or separating by agreement and the thousands of people whose marriages have long since broken down — in the region of 70,000 — have no possibility of getting nullity decrees and rely on a divorce referendum to sort out their family situations. Their prospect of securing the legal reforms necessary to recognise the reality of their lives and to give them a second chance is being placed in jeopardy by bad political judgment in seeking reforms in the nullity area which are in danger of being constitutionally impugned and causing more confusion.
I agree with the Minister that the current position in relation to the Family Home Protection Act cannot be defended. If a decree of annulment is granted after a couple have lived in a family home for ten or 15 years and if the home is in the husband's sole name, the person who thought she was a wife might have no rights in relation to that home. That is wrong. However, if the court reaches the conclusion that there never was a marriage there will be a major constitutional difficulty in this area.
Will the Minister say why, in his political and legal judgment, we should address this in advance of a divorce referendum? I believe we should attempt to address it after a divorce referendum. If necessary that Bill could be referred to the Supreme Court and, if found to be constitutionally impunged, we might address some aspect of our Constitution. However, as it affects only a small number of people and because vast numbers are affected in the other context this matter should be dealt with after a divorce referendum. At this stage we should not make matters any more confused than they are at present.
In view of the importance of the matters raised by Deputy Shatter, we should await the Minister's reply. All Members of the committee who support civil divorce have an interest in avoiding confusion. Deputy Shatter has expertise in this area so I would prefer to hear the Minister's reply before contributing.
It is tempting to get into a debate on complex constitutional questions. However, this not the appropriate venue or legislation for such a debate.
The Government is guided on the constitutionality of measures by the Attorney General who, under the Constitution, is the legal adviser to the Government. The advice of the Attorney General is that this measure is constitutional and I put that position to the committee with confidence. This Bill in not comparable to the Matrimonial Home Bill. Its intent, extent and form is quite different. It has a different impact and a different method of operation. This Bill deals with other issues besides nullity.
The nullity issue must be addressed by the Oireachtas. The Law Reform Commission recommended measures in this regard as far back as 1984 and it is time the matter was addressed. This Bill covers a range of areas in family law and the measures dealing with nullity are incorporated in it. All aspects of the matter, including the constitutional question were examined with great care by the Attorney General who took the judgment of the Supreme Court in the Matrimonial Home Bill into account. That is the advice I have received and I accept it.
I do not wish to extend this debate but I have issued a warning on a matter about which I am deeply concerned.
This is not a party political issue and I have no interest in scoring points. As Deputy Currie said, we have a common aim in this regard. The Minister's assurance regarding the Attorney General's advice is a mere image of what he said about that advice on the Matrimonial Home Bill when I voiced a similar warning about its constitutionality although I did so from a position of support for the Minister's efforts. We were told that the Attorney General was right but the Supreme Court proved him wrong. I say that with no sense of satisfaction as I had hoped that the Supreme Court would take a different view. I ask the Minister to take my comments seriously. They apply not only to this amendment but to other sections of the Bill. I will not delay the work of the committee by repeating my warning on a number of other sections as there is no point in doing so.
I agree that much of the content of this Bill does not give rise to similar concern. Many aspects of the Matrimonial Home Bill were not repugnant to the Constitution and we are trying to incorprate some of them in this Bill. I would like the committee to get on with doing that. This discussion is not about party politics, scoring points or trying to embarrass the Minister, the Government or the Attorney General. It is about getting this legislation right. What we are doing here is unwise and I ask the Minister to reconsider. There is no reason the recommendations of the Law Reform Commission regarding the powers of courts to grant property transfers and other orders after nullity proceedings could not be implemented — or an attempt made to implement them — in a separate Bill after a divorce referendum. That would not muddy the waters or cause the problems I have described.
I do not agree that we should not discuss this matter now or that there is another forum in which we can discuss constitutional issues. There is an expressed constitutional obligation on the Dáil when enacting legislation to do so in accord with the Constitution. We have an obligation to tease this matter out now.
I move amendment No. 6:
In page 6, between lines 3 and 4, to insert the following definition:
"member of the scheme", in relation to a pension scheme, means any person who, having been admitted to membership of the scheme under its rules, remains entitled to any benefit under the scheme;".
This is a technical amendment. The definition of the words "member of the scheme" provided for in the amendment is based on the definition of those words in the Pensions Act, 1990, and is of relevance to sections 11 and 12 of this Bill regarding powers given to the courts to deal with pensions in the context of support for dependent spouses and children.
There is an extraordinarily large number of amendments regarding pensions. I agree with the Minister's intent. However, I have serious reservations about the manner in which the Bill is drafted.
I welcome the Minister's series of amendments as they appear to be of assistance to the committee. However, what the Minister is doing about pensions would require the equivalent of a Second Stage debate on the pension issue. As the new committee system is operating in a constructive and non-contentious manner it would be a help to Members of the committee — all of whom cannot be expected to have the technical expertise and who do not have the back-up available to the Minister in his Department — if the Minister distributed a briefing note from his Department on the pensions issue to explain why these sections are included and the nature of the restructuring.
Substantial concern has been expressed about the constitutionality of what is proposed by those who administer pension schemes. If these provisions applied simply to the divorce issue there would not be a problem. Dealing with the nullity area, however, is a problem. Will the Minister explain the position regarding the suggestion that any costs that would arise on a pension scheme would reflect on its members the extent that they could lose their benefits under it? This legislation gives rises to difficulties in that area and perhaps the Minister could explain that issue. Committee members should be given an overall briefing on the changes, rather than in a piecemeal fashion, as we come to the individual provisions.
I voiced reservations at our abortive meeting last week. The Minister submitted 64 amendments, a number of which relate to pensions, and, as Deputy Shatter said, there seems to be a restructuring and a rethink of that area. I am not an expert on pensions and although there was a useful briefing last week it was then a case of sight unseen. I ask for more details of the reasons for the amendments, as we go through them individually or from the overall perspective. I share the concerns voiced by Deputy Shatter about a number of items.
It is extraordinary there should be so many amendments because there was considerable discussion on this matter before the Bill was published. I voice my concern as someone without much expertise in the area, trying to trawl through the Bill and its implementation.
I understand that officials from my Department gave a full and thorough briefing lasting 45 minutes on the last occasion and that they dealt with these matters. I do not know which Deputies were present.
The Minister will remember some Members had another engagement that morning.
That is true. I am happy to assist in any way I can; perhaps we can deal with this when we reach the pensions sections. Amendment No. 6 is a purely technical amendment; it provides a definition for a member of a scheme which is the same as that used in the Pensions Act. This is required to put the pensions provisions in context.
There are a substantial number of amendments, put down for a variety of reasons, with which we can deal when we come to them. Many of them result from ongoing consultations with the pensions board to meet some of its concerns and make the pensions splitting sections more effective and useful.
Will the Minister confirm that the Association of Pension Lawyers in Ireland, who made an extensive submission to the Minister about the implications of this Bill, has been consulted about the amendments tabled and is happy that they deal with the problems it foresaw in the Bill?
I cannot say whether that association is happy but it has certainly been consulted at length on its submission.
I fully accept that not all the association's views on the Bill were shared by all members. Most of us accept that where marriages break down there is a need to ensure protection for a dependent spouse's pension rights. Leaving aside any views expressed about interfering with pension schemes, is the association satisfied with the technical element of the Bill and that the problems foreseen have been addressed? The association might wish this was not happening in the first place.
The object of the exercise is not necessarily to satisfy a particular association. The expertise of those lawyers has been availed of and they have been consulted. I appreciate the work they put into the submission and many of their suggestions have been taken on board.
Amendments Nos. 7 and 8 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 7:
In page 6, between lines 8 and 9, to insert the following:
"(b) (i) an annuity contract approved by the Revenue Commissioners under section 235 of the Income Tax Act, 1967, or a contract so approved under section 235A of that Act.
(ii) a trust scheme, or part of a trust scheme, so approved under subsection (4) of the said section 235 or subsection (5) of the said section 235A, or
(iii) a policy or contract of assurance approved by the Revenue Commissioners under Chapter II of Part I of the Finance Act, 1972, or".
This amendment extends the definition of pension scheme provided for in section 2 of the Bill to make that definition as wide-ranging and comprehensive as possible. It follows consultations between officials from my Department and representatives of the pension industry, whom I thank for the many suggestions they made which have led to this and other amendments I am proposing in relation to the pensions provisions of the Bill. Amendment No. 8 is consequential on this amendment.
This amendment is also relevant to what was said on the previous amendment. One would require considerable expertise to understand the Minister's amendment and the reason behind it. If we are expected to buy a pig in a poke the Minister should try harder to sell it. Will he clarify the intention of the amendment, why it was thought necessary and what representations were made to him in relation to it?
The Minister used a phrase when discussing the last amendment which is pertinent to this one. He thanked those who had contributed and made submissions and said these amendments were due to "ongoing discussions" with those bodies. Does this mean there will be more amendments than we have before us already or is this the total?
I cannot give any commitment on that. If either now or on Report Stage further amendments are necessary it is open to any Member of the committee, including myself to table them should that be necessary. As the process goes on amendments are often made on Report Stage or in the Seanad, necessitating a return to the Dáil. That is an advantage; when the Oireachtas produces legislation it is necessary to have it honed and refined as far as possible.
In answer to Deputy Currie, the intention of this amendment is to have the definition of a pension scheme under this Bill as wide as possible. We want to clarify that certain types of contracts will come within the definition of a pension for splitting purposes and for the purposes of this Bill. Three additional categories of contracts are specified in the amendment: an annuity contract; a trust scheme; and a policy or contract of assurance of a type approved by the Revenue Commissioners under the Finance Act, 1972.
These operations are similar to pensions and we want them to come within the ambit of the pensions provisions of this Bill so that they would be available for splitting or earmarking in favour of a spouse. The amendment broadens the scope of the Bill to bring in contracts of a pension and make them available as an asset in appropriate cases for dependent spouses or children.
I echo the points of other Deputies about the complexity of this Bill. We were promised we would receive Bills in good time before they were debated in the Dáil to examine them and take advice. Last week we were presented with a huge list of complex amendments from the Minister. This caused the system to break down because it is not possible for us to examine them if we are presented with them on the same morning we are supposed to debate them.
Another important aspect of this Bill, related to my amendment which was ruled out of order, deals with the complexity of legal aid. However difficult it is for us, as public representatives, to assess this Bill, when we talk about individuals who wish to execute their rights, as enshrined in this Bill, and who need legal advice and representation in order to do so, a fundamental question is raised about legal aid and the ability of people to avail of it. This is causing problems despite the Minister's efforts to reduce waiting lists. I am dealing with an annulment case where the husband is able to get a legal representation, but the wife is not. We find it difficult to absorb the provisions of this Bill. One can imagine how women on low incomes, with family commitments who do not have free legal aid to enable them exercise their rights view it. This is a good example of why we must put legal aid in place if this Bill is to have any real meaning and give protection to women particularly those on low incomes.
I understand and sympathise with the point made by Deputy McManus. Parts of this Bill are complex, particularly the provisions on pensions. However, this is unavoidable bearing in mind what we are trying to do, which has the support of all Deputies. The briefing by Department officials was helpful and I am sure they will be happy to further clarify the complexities. I will also be happy to help in any way I can.
I congratulate the Minister on responding without taking any notice of my main point, which related to the women directly affected by this Bill.
I move amendment No. 8:
In page 6, line 10, to delete "or other financial plan".
I move amendment No. 9:
In page 6, lines 28 and 29, to delete the definition of "trustees" and substitute the following definition:
"trustees', in relation to a scheme that is established under a trust, means the trustees of the scheme and, in relation to a pension scheme not so established, means the persons who administer the scheme,".
This is a technical amendment to define "trustees" in section 2. The definition as it stands covers trustees with pension schemes established under a trust. The amendment extends the definition to include administrators of pension schemes which are not so established. The definition as proposed to be amended is also contained in the Pensions Act, 1990.
Amendments Nos. 10 to 13, inclusive, are related and may be discussed together.
I move amendment No. 10:
In page 6, subsection (3) (a), line 37, to delete "to which section 24 applies" and substitute "that has been dissolved or annulled under the law of a country or jurisdiction other than the State".
Throughout the Bill, the words "marriage", "remarriage" and "spouse" are used in a context where these words are not legally correct. For example, the word "spouse", used in reference to a person whose marriage has been annulled, is not correct because that person is no longer a spouse. However, the definitions of "spouse", "marriage" and "remarriage" in section 2 (3) are working definitions so as to make the Bill more readable. They indicated that references to those terms include, where the context so requires, cases where section 24 applies. This amendment makes clear what those cases involve, namely a marriage which has been dissolved or annulled under the law of a country or jurisdiction other than the State. Amendments Nos. 12 and 13 are similar.
This amendment has implications for some of the later provisions in the Bill. Perhaps the Minister could explain to us what discussions, if any, his Department had with the Department of Finance on changes in the law which may be necessary in the income tax code, capital gains tax code, inheritance tax code and capital acquisitions tax code, arising from the provisions in this Bill.
The current legal position of cohabiting couples was recently debated in the Dáil. If a couple, who are not married, are cohabiting and have children, and the man is working but the woman is not, he will be taxed as a single person with a single persons's tax allowances. He would not get the benefit of double tax bands or double tax allowances. He might get a single parent's allowance in certain circumstances, but he is taxed as a single person.
The current law on income tax for a separated couple is dealt with under sections 3 and 4 of the Finance Act, 1983. The situation is quite complicated for people who may be jointly or separately assessed for tax or where they may elect for separate or single assessment. This legislation envisages someone, who the court says has never been married, providing support payments to the wife, who the court says he has never married. Will sections 3 and 4 of the Finance Act, 1983, apply to those maintenance arrangements? For example, if an order is made, following a decree of annulment, that the man must provide support payments for the woman, can the woman elect for joint assessment so as to allow the man, who is providing the support payments, the benefits of the married persons tax allowance and tax bands, although the court has said they have never been married to each other?
Has the Minister looked at the tax implications of this, or could it result in all payments being made from gross income? There is no point creating a new legal regime and regarding it as family law maintenance without addressing some of the other tax implications. If the courts make a property transfer order in respect of a woman, following the granting of a decree of annulment, will capital acquisitions tax arise on the transfer of the property, or will the Finance Act, 1983, be amended because the person will not be a spouse, a separated spouse or a divorced spouse? The courts have said she has never been a spouse. If a lump sum capital payment order is made, perhaps after a decree of annulment, and the man is ordered to pay the woman £100,000, if he has the money, or the woman is ordered to pay the man £100,000, if she has greater wealth, will the recipient of that money pay capital acquisitions tax?
I raise these questions because I want to ensure that we are addressing this complicated area. I understand that my questions do not fall within the Minister's brief, but it has direct implications for the workings of this legislation.
I am grateful to Deputy Shatter for raising this matter. Tax implications will arise when the Bill is passed and comes into operation. Discussions have taken place with the Department of Finance and the necessary tax provisions to give effect to the measures in this Bill are receiving the attention of that Department. It will be dealing with the tax aspects Deputy Shatter mentioned which will arise in due course.
I am concerned about this. As I understand it, the Finance Bill, 1994, which has gone through the Dáil, does not deal with this issue. We are talking about bringing this measure in within a specific time-scale. Normally we would not have another Finance Bill until this time next year. In the context of this legislation being put in place, will a Finance Bill be introduced later this term or in the early autumn to address these issues, or will this Bill not become operative in some of these areas until next year because of the tax problems?
We are having discussions with the Department of Finance about this issue. Perhaps we will include the tax provision in this Bill on Report Stage. We have not finally decided on the modus operandi, but we are aware of the tax implications and they will be dealt with at the appropriate time.
It seems there is a problem about including this on Report Stage because it is outside the ambit of the Bill. It might be possible to make these provisions if we recommit the Bill on Report Stage. If we are to incorporate complex and substantive tax measures into this Bill, Report Stage is not the time to do so because the Opposition may only make one contribution and the Minister then responds. This should happen through a recommital procedure, which may not take more than an hour in the House. It should not be done on Report Stage.
The Minister has clarified the point and it was important to do so.
I appreciate points made by the Minister and I am glad that provisions will be made. However, I am concerned that it should come within the ambit of this Bill. I understand that such provisions were specifically excluded from the Finance Bill, 1994. I thought it would have been appropriate, if possible, to include any of those provisions in that legislation. It may not have been technically possible to achieve that through the Department of Finance or the Minister for Finance.
When did discussions start with the Department of Finance in relation to these matters?
Discussions are ongoing. I cannot give specific date.
It would appear that the way to deal with this would have been on Committee Stage of the Finance Bill but nothing happened. I understand Committee Stage of the Finance Bill is now complete. Is this something which came to the Department's attention recently? Was there time for the Department of Finance to consider the implications of this?
Deputy Currie must understand that one could not put tax provisions in the Finance Bill, which is nearing completion now, in expectation of a measure in a Bill which has not yet been passed by the Oireachtas. It would have to be done in this Bill, or in a separate Finance Bill. We are aware of the tax implications and they are being addressed.
I move amendment No. 11:
In page 6, subsection (3) (b), line 39, after "that" where it secondly occurs to insert "is void or".
I move amendment No. 12:
In page 6, subsection (3) (b), line 40, to delete "to which section 24 applies" and substitute "that has been dissolved or annulled under the law of a country or jurisdiction other than the State".
I move amendment No. 13:
In page 6, subsection (3) (c), lines 42 and 43, to delete "or to which section 24 applies" and substitute "or in relation to which a decree of nullity has been granted or that has been dissolved or annulled under the law of a country or jurisdiction other than the State".
I move amendment No. 14:
In page 6, subsection (3), after line 43, to insert the following:
"(d) a reference to a family includes a reference to a family as respects which the marriage of the spouses concerned is void or voidable or in relation to which a decree of nullity has been granted or that has been dissolved or annulled under the law of a country or jurisdiction other than the State,".
This amendment provides for the purposes of the Bill a definition of family that includes persons who are parties to a void or voidable marriage or a marriage in relation to which a decree of nullity is being granted or one which has been annulled or dissolved outside the State. The definition is, on that basis, a working definition only.
It is not a working definition, but is a definition of family as per the Bill, which sadly does not coincide with the manner in which the courts define "family" under the Constitution. I wish the Minster well with this, but I believe he will run into difficulties.
I want to raise a serious matter in regard to section 2. This is the definition section and it states that the court shall be construed in accordance with section 38, which refers to the court as being the Circuit Court and the High Court. While that may seem unexceptional, it is relevant to what is happening. By virtue of the definition section being linked with section 38, the Minister is now extending jurisdiction to hear and determine decrees of nullity to the Circuit Court.
There is only a small number of nullities each year; approximately 30 to 40 decrees of annulment are granted by the High Court. Nullity cases are particularly difficult and complex and are often in hearing for two or three days in the High Court. Although there is a small number each year compared to separation proceedings, they take up a lot of time in the High Court. This jurisdiction should not be transferred to the Circuit Court because it cannot cope with the level of work it has at present.
By transferring this jurisdiction to the Circuit Court, if one initiates a separation application tomorrow morning, one would be lucky to have one's case heard and dealt with in 12 months. It takes a minimum of 12 months to a year and a half for a couple whose marriage has collapsed, and who are, perhaps, at war with each other, to have their case heard in the Circuit Court. Those who go to court are spouses who are most at odds with other. If a marriage breaks down, but there is reasonable communication and understanding, agreement may be reached and there would be no need to go to court. The further away people stay from the courts, the better.
The courts are currently swamped with a growing number of separation cases. In the first year of operation of the Judicial Separation Act, between October 1989 and 31 December 1990, 636 applications were made for separation decrees. That number was low because people were only getting used to the fact that the Act was there. In fact, it did not start to work for some months because there was a delay in producing rules of court. From 1 January to 31 July 1991, 945 applications were made, a large number for a seven month period. Between August 1991 and August 1992, 2,222 applications were made and, last year 2,781 applications were made.
The Law Reform Commission recently described the way the courts deal with family law as a parody of justice. Because of the way the Circuit Court operates, particuarly outside Dublin, 60 or 70 separation cases may be on an individual Circuit Court list to be heard by one judge on one day. Perhaps one, two or three cases are dealt with, while the remaining ones are adjourned for a couple of months, to be joined by later applications. Most Circuit Courts cannot cope with a hearing of longer than one day. If a separation case is in hearing on 2 April 1994 and if it is not finished on that day, the second day of hearing may take place in May or June 1994 and, if it does not finish on day two, it will take place in October or November 1994. That is unsatisfactory. If a nullity case goes to the Circuit Court, it will stutter on for two or three court sessions and later cases will pile up.
For the past 20 years I have spoken about the need for a family court structure, which the Law Reform Commission has now recommended. We should have the type of regional family court structure recommended by the Law Reform Commission. Such a court should deal with separation, nullity and other cases. There is no commitment from the Government to provide that structure.
To extend nullity jurisdiction to the Circuit Court will add to the existing chaos within the court system. Another factor which will contribute to this chaos is that Circuit Court judges have no experience in dealing with nullity cases. All the law on nullity is case law and judge developed and the High Court is familiar with it. Rather than reducing the cost of nullity cases for those who do not qualify for legal aid, putting them in the Circuit Court will add to costs because of the way the hearings are conducted over a lengthy period. It will make matters more difficult and complicated.
In a simple world where we would not have these problems, one could say that to put such cases in the Circuit Court would be less expensive. However, it will be more expensive and hearings will be long drawn out and complex. Because the Judiciary in the Circuit Court has no experience in this area, a significant number of cases will be appealed to the High Court which would otherwise not have been appealed. This will add to the expense of those involved.
The Minister is wrong to extend the jurisdiction of nullity to the Circuit Court, given its current problems. I ask him to reconsider that and let us have a regional system of family courts ultimately as the Law Reform Commission recommends. They should deal with all of these areas, but not at this stage, and not at a time when any Circuit Court judge who deals with family and marriage problems is finding it impossible to cope with the demands being made on him. There is not an occasion when I have appeared as a lawyer at a Circuit Court hearing on family matters outside the Dublin area when the judge has not felt the need to apologise to those in the court, husbands, wives and lawyers alike, for his or her inability to deal with the lists presented.
Deputy Shatter who has hands-on experience of this has made his points forcibly and very well. There is grave concern about the capacity of the Circuit Court to cope with the additional burden which will arise following the passing of this Bill. Only a small number of civil nullities are granted each year, but with the passing of this Bill, that will increase. The situation is untenable and outside of Dublin, family Circuit Courts sit for one day per sitting.
There is a long list of cases and the physical conditions are absolutely appalling. The Minister must examine this and give some succour to people in dire circumstances. The provisions of this Bill will not give them any hope that the situation will improve. It will get much worse. I will not labour the points which have been made very well and I support the comments made. Unless the situation changes radically people will be in an even worse situation at a time when they are very vulnerable. We should try to alleviate problems, not make them worse.
The jurisdiction of the High Court to deal with nullity cases is not being taken away by this Bill. Concurrent jurisdiction is being given to the Circuit Court. I do not accept that Circuit Court judges are not capable and qualified to deal with nullity cases. They are as capable as reading up the law as any High Court judge and they come from the same pool. The number of nullity cases has not been that great in the past, but the giving of a concurrent jurisdiction to the Circuit Court may increase the number of nullity cases and many people who could not afford to do it in the High Court would wish to bring and could bring a nullity case. The legal costs of solicitors, barristers and so on in High Court proceedings are much greater than they are in the Circuit Court. It may well be that justice for quite a number of people would be opened up by providing a Circuit Court jurisdiction.
I take the points made by Deputy Shatter about delays in the courts. That has been a problem for decades, to a greater or lesser extent. The Law Reform Commission recenlty issued a report on family courts and I know that the matter has the close attention of my colleague the Minister for Justice.
