Select Committee on Legislation and Security debate -
Wednesday, 17 Jul 1996

SECTION 13.

Ms O'Donnell

I move amendment No. 22:

In page 15, subsection (1), to delete lines 15 to 25 and substitute the following:

"(a) an order providing for the conferral on one spouse either for life or for such period (whether definite or contingent) as the court may specify of the right to occupy the family home to the exclusion of the other spouse,

(b) directing the sale of the family home subject to such conditions (if any) as the court thinks proper and providing for the disposal of the proceeds of the sale between the spouses and any other person having an interest therein,".

Under the current wording of section 13 (1) (a) of the Bill the court may make an order conferring on one spouse the right to occupy the family home for a specified period or an order directing the sale of the family home and the division of the proceeds. Under the current wording it seems that the court can make one order or the other, but not both. This amendment seeks to amend the section to allow the court to confer a right of occupation on one spouse pending the sale of the family home. The same problem seems to arise under the 1995 Act in the context of judicial separation. I would welcome the Minister's response to this amendment.

Mr. Taylor

Deputy O'Donnell has expressed concern that the word "or" between subparagraphs (i) and (ii) of section 13 (1) (a) might prevent a court from ordering the sale of the family home where it has made an order conferring a right on one spouse to occupy that home. The Deputy's amendment proposes the removal of the word "or" in order to remove the possibility of this interpretation being taken by a court. Subparagraph (i) provides for "the conferral on one spouse either for life or for such other period (whether definite or contingent) as the court may specify of the right to occupy the family home to the exclusion of the other spouse". Sub-paragraph (ii) provides in the alternative for the sale of the home subject to such conditions as the court considers proper.

Corresponding provisions are contained in section 10 of the Family Law Act, 1995. If the Deputy's amendment were accepted a consequential amendment would have to be made to that provision in the 1995 Act. While provisions corresponding to those in the Bill and the 1995 Act were contained in section 16 of the Judicial Separation and Family Law Reform Act, 1989, a section repealed by the 1995 Act, it did not provide for home occupational orders or sales orders to be made in the alternative.

In any event, the change made in the 1995 Act and the provision now contained in the Bill reflect exactly what will happen in practice. It is difficult to conceive of a situation where the court would give a life or other interest in the home to one spouse and at the same time make an order directing the sale of that home. Also, it is inconceivable that the court at the time it directs the sale of the home would give a life or other interest to a spouse. The drafting of section 13 as it stands reflects sound policy and should not be changed in the way suggested in the amendment.

While section 17 allows the court to make an order for the sale of the property to underpin the efficacy of a secured periodical payments order, a lump sum order or a property adjustment order, it cannot be used to affect the right given to one spouse to occupy the family home. Similar provisions are contained in the 1995 Act. The policy in section 13 is consistent with that in section 17 and I am not convinced there is a need to change it. Consequently, I am unable to support the amendment.

Ms O'Donnell

The Minister appears to be satisfied that the amendment is unnecessary. I will consult with Deputy Keogh and perhaps we will revisit the matter on Report Stage.

Mr. Kemmy

I understand Deputy O'Donnell's point. The courts must be given some flexibility and discretion. While one cannot use the concept of guilty and innocent parties in terms of marriage breakdown, the court should be given some discretion because it would be wrong to force a clinical solution in such a situation. If the court hears both parties it should have some flexibility to decide who should occupy the family home and for how long. The amendment is a little too mechanical, although well intentioned. However, it might have the opposite effect to that intended.

Dr. Woods

We agree with Deputies O'Donnell and Keogh that the matter needs to be examined, perhaps the Minister will examine it for Report Stage. I would be concerned that the amendment would remove some of the reliefs mentioned in the remainder of the section. Those issues might be taken into consideration if the matter is reexamined.

Mr. Taylor

Deputy O'Donnell will re-examine it.

Amendment, by leave, withdrawn.

Section 13 agreed to.

Sections 14 to 17, inclusive, agreed to.