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Select Committee on Social Affairs debate -
Thursday, 15 Jul 1993

SECTION 2.

We now come to amendment No. 5. Amendment No. 7 is related. Amendments Nos. 5 and 7 may be taken together by agreement.

I move amendment No. 5:

In page 3, subsection (1), line 23, to delete "assent,".

In consequence of the amendments tabled to sections 9 (5) and 10 (6) it is no longer necessary to provide for the definition of "conveyance" to include the word "assent".

When we were dealing with the last amendment, the Chairman indicated that amendments Nos. 62, 63 and 64 were being discussed with it. Does this mean we will be precluded from discussing them later?

I mentioned that those amendments were being discussed with the amendment. When we come to deal with them the question will be put, but they cannot be discussed.

We did not have a discussion on amendments Nos. 62, 63 and 64. For some reason they were tied with the last amendment.

Yes. As I pointed out, they were being discussed with that amendment.

On a point of order, as the Minister made no reference to the purpose of the amendments, it would be desirable to make some comment.

They have been discussed.

There was no discussion.

We can comment on them when we reach them.

The discussion we would have on those amendments would be similar to the discussion we will have on the question of the actual dwelling. Given that there is an overlap, we might agree to discuss the two together. That would be a more logical way of dealing with it.

We are discussing amendment No. 5 to section 2. Amendment No. 7 in the name of Deputy Shatter is being taken with it.

If the Minister agrees that the word "assent" should be deleted my amendment is irrelevant and I will not move it. It might be helpful to members of the committee who are not lawyers if the Minister explained in more detail what is meant by an assent and why that word is being deleted. This is a legal and technical matter. As there are members of the committee who would like to participate in the discussion, perhaps the Minister would respond in more detail.

It was suggested by the conveyancing committee of the Law Society that we should make this amendment. I have accepted their advice.

Would the Minister or Deputy Shatter explain the significance of this?

Perhaps the Minister would explain to the Committee exactly what is meant by an assent and the relevance of the Law Society's concern.

Section 9 (5) deals with a situation where one of the spouses owned the full legal interest in the matrimonial home before the equitable interest in the home was vested in both spouses as joint tenants under section 4 and a nominal legal interest remained vested in the legal owner. On the death of the spouse who was the legal owner, the beneficial interest in the home passes to the surviving spouse by survivorship, but the nominal legal interest passes to the legal personal representative of the deceased, together with any assets passing under the will or intestacy.

It is necessary to transfer that legal interest to the surviving spouse so that he or she may be in a position to establish full title. The present text of section 9 (5) proposes to achieve this result by requiring the personal representative to execute an assent document vesting the legal interest in the surviving spouse. The conveyancing committee suggested, however, that the same result could be achieved more neatly and effectively by a provision for an automatic transfer of the interest to the surviving spouse in those circumstances. This is achieved by the subsection now being substituted for subsection (5) of section 9. A corresponding amendment is made in section 10 which deals with the matrimonial home that the couple have ceased to live in. It is not necessary to provide in the revised text for the situation where the surviving spouse has died before the personal representative executes the assent.

I am sorry I asked.

I will try to explain it in more simple terms. For the purposes of discussion let us say the husband was the original owner and the vesting spouse the wife — it could be the other way around. Under the Bill the house will be vested in the joint names of the husband and the wife, but the legal name that will appear on the title, unless something is done about it, is that of the husband. On the death of the husband although the wife will acquire the full beneficial interest in the entire house the formal legal interest, as it is known, would remain outstanding as his name would still be on the title; this would have to be removed. What is known as an "assent document" has to be prepared which assents to the vesting of the interest in the appropriate person. The original format was that that assent document had to be prepared and registered in the usual way. The Law Society have made a very sensible suggestion, that an automatic procedure should be provided for in sections 9 and 10 to deal with that matter and, consequently, the word "assent" is no longer required.

I welcome this clarification. This matter was the source of concern and it seemed very unfair that the surviving spouse might have to face the fact that legal ownership rested elsewhere. I thought we would deal with this matter when we came to the substantive section, but even here we can see how important it is to get the definitions right.

Amendment agreed to.

I move amendment No. 6:

In page 3, subsection (1), line 26, after "conveyance" to insert "and the word ‘convey' shall be construed accordingly".

I am attempting to have the word "convey" included in the definition of "conveyance" as provided for in section 2. The word "convey" is used, for example, in section 9 but it has not been formally defined in the Bill.

I refer the Deputy and the committee to line 27, page 4, where it is stated that, in connection with all definitions, including that of the word "convey", "any cognate words shall be construed accordingly". The amendment, consequently, is not technically required for that reason.

Amendment, by leave, withdrawn.
Amendment No. 7 not moved.

I move amendment No. 8:

In page 4, subsection (1), line 2, after "not" to insert "and, in the case of a farm, ‘dwelling' means the land providing access for vehicles and pedestrians to the dwelling along with any gardens and car parking ancillary to it".

I am proposing this amendment to refer to a case where a farm is also the family home. There is a danger that the definition of dwelling will not be sufficient to cover a farmhouse and out-buildings. I do not object to the wording of such a definition but I raise this point to highlight my concern and that of solicitors that problems may be created in this regard. The Bill refers to gardens ancillary to the house, but not to a car parking area in a yard or cases where land is directly related to the farmhouse. That is not clarified in the definition. Does the Minister agree that a clearer definition is necessary to assist spouses, people carrying out conveyancing and solicitors who may have to work out agreements between spouses in relation to a family farm?

Deputy McManus's amendment relates to access for vehicles and vehicle parking. I notice that she is anxious to have cars included in the definition of chattels. Her amendments tend to be vehicle orientated.

They are vital in rural Ireland.

That is because the Democratic Left are all on the move.

The women cannot walk all the time — we need vehicles.

I understand Deputy McManus's concern to ensure that where the matrimonial home is a farmhouse enclosed by the farm the spouse, particularly the spouse remaining in the home will have access to all necessary facilities such as gardens, car parking and so on. However, this object is adequately achieved by section 2 as it stands in conjunction with sections 4 and 5. Section 2 defines a "dwelling" as including any garden or other land usually occupied with the dwelling. The only restriction with regard to "other land" is that it must be subsidiary and ancillary to the dwelling, that it is required for its amenity or convenience and that it is not used or developed primarily for commercial purposes. In the standard case where there is a drive-in to the house, clearly within the definition that would be included with the dwelling. That definition ensures that there will be a sufficient area around the farmhouse for gardening, car parking and other such amenities.

In relation to access for vehicles and pedestrians the farmhouse is a matrimonial home and that expression is defined as including any existing easements attached to the home and exercisable over any other land, for example, an existing right of way over other land to the farmhouse or an existing right to draw water. It may be, however, that the right of access to the farmhouse is across the farm portion and if that portion was originally owned along with the farmhouse by one of the spouses solely or in conjunction with another person, that right of access would have been exercised by that spouse in right of his or her ownership, or perhaps by way of licence. Either way it would be a right attaching to the spouse personally, not to the farmhouse. It would not be an existing right covered by the definition of matrimonial home.

Section 4 (5) provides that, once joint ownership is created in the matrimonial home portion of the farm, there will be attached to the home any necessary additional easements exercisable over any other land that is the property of either or both of the spouses, or of either or both of them and another person. These additional easements will be such "as are necessary for the reasonable, beneficial use, occupation and enjoyment of the home", as long as the easements will not materially prejudice the use, development or amenity of the land. That provision will adequately cover any access for vehicles and pedestrians to the farmhouse if it is not already provided for as an existing easement. For these reasons the present provisions meet the Deputy's concerns.

Amendment, by leave, withdrawn.

Amendments Nos. 9 and 11 are related and will be discussed together, by agreement.

I move amendment No. 9:

In page 4, subsection (1), line 7, after "dwelling" to insert "or dwellings".

The reason I put down this amendment is to provide for the minority of people — I accept it is a minority — who have two homes, one of which may be a holiday home in which they spend a lot of time. The Bill does not provide for holiday homes. There is no good reason that a spouse should be excluded from sharing 50 per cent ownership on that property, which is also considered as a domestic dwelling. The Bill does not provide for all possible circumstances and problems may arise for ordinary householders who wish to avail of the benefits of this Bill.

I support the principle of Deputy McManus's amendment. Obviously this Bill will cause difficulties only when disputes arise. Where a couple are getting on well and there are no disputes in the marriage there will be no problems with this legislation. We must ensure that the Bill makes provision in so far as is possible for exceptional cases. I know a couple, one of whom works and lives in Cork and the other works and lives in Dublin. In those circumstances this provision should apply to both houses. I want to ensure that people such as those I mentioned are covered by the provisions of this legislation so that there is equity and justice. We should ensure the legislation is as comprehensive as possible so that there are no loopholes that would result in inequity and injustice.

I would like to hear the Minister's views on this matter. This is a very good amendment but I would have thought that this matter was covered in the Bill. As the two previous speakers have pointed out, many people have two homes and both houses should be included in the legislation.

This Bill is breaking major new ground. It is limited to the principal family home of the spouses concerned. The report of the Second Commission on the Status of Women deals as a separate matter with property acquired after the marriage by one or other spouse, and that is a question that may have to be addressed. This Bill deals with a current matrimonial home or a home that was formerly a matrimonial home. It is not proposed to extend the scope of the principle of joint ownership for spouses. That is not to say that the far-reaching recommendations in the second commission's report will not be considered. There are major and serious implications that will have to be very carefully considered. That will be done at a later stage. For the moment the House is taking a major step forward in securing joint ownership in the matrimonial home. Second holdiay homes and so on are not within the ambit of this Bill and are not intended to be so.

I am disappointed at the Minister's response because I do not think he recognises the range of lifestyles that exist nowadays. Deputy Harney raised one example of people who are living in two homes for reasons of work. In that instance how would the matrimonial home be defined? Will one home be considered as the matrimonial home even though the people may spend an equal length of time in both houses? The Minister should recognise that there has been a transformation in people's lifestyles. Many people change residence at some stage in their lives and some people have a multiplicity of houses. We should ensure we do not introduce a Bill that is out of date before it even comes into force. I accept we are talking about a minority of people but we must cater for every couple. Otherwise we are discriminating against those people who lead lifestyles that differ from the norm. The whole principle behind this Bill is one of equality and therefore, everybody must be treated equally. If the term "matrimonial home" applies to a house-boat, surely it should also apply to two semi-detached houses, one in Cork and one in Dublin.

I emphasise that I am sympathetic to the widest possible sharing of matrimonial property, not only dwellings but farms, deposits, stocks and shares and so on. That matter is addressed in the Second Commission's report and will have to be considered in the widest possible terms. This Bill, which is a major step forward, is confined to the matrimonial home. To go beyond that would be to tread uncharted waters — we may well deal with these matters at some stage but not within the ambit of the Bill. I recognise that a couple may own more than one home and that they may spend an appreciable amount of time in both. Problems may arise in determining the principal residence of a couple, but that matter is already referred to in other legislation and can be determined in difficult cases. People may own more than one home but there will always be a principal residence which is the matrimonial home within the terms of the Bill.

I wish to raise this matter in the context of the definition of "matrimonial home"— it is also referred to in my amendment No. 10. The legislation does not refer to the phrase the Minister just mentioned, "the principal home". The Bill states that a matrimonial home is a dwelling in which a married couple ordinarily reside. In the context of Deputy McManus's case two issues arise. It seems there are cases where couples ordinarily reside in more than one dwelling. If a couple live for part of the year in one house and part in another house, for work or leisure reasons, it is quite possible that the definition of "matrimonial home" may extend to more than one dwelling. The difficulty with the definition in the Bill is that when a marriage breaks down a court may have to determine which property is a matrimonial home or whether more than one property is a matrimonial home. Under the Family Home Protection Act, 1976, a substantial dispute arose within the legal system as to whether more than one property may be a family home. Conveyancing lawyers take the view that if a property was once a family home it remains a family home, and that is a debate we will come back to. The matter is not quite as simple as portrayed by the Minister.

The principle of Deputy McManus's amendment is at the root of this legislation. I welcome the principle of the legislation and the fact that it proposes to extend to both a husband and wife, regardless of financial contribution, joint property interest in the matrimonial home. The broader issue, not addressed in this legislation or in any detail in the Oireachtas, is whether, instead of simply extending joint ownership to family homes, we should introduce a system of community of property whereby it is recognised that as marriage is a partnership both husband and wife have a joint interest in marriage property, acquired by both. If that system was introduced it would deal with the anomalies that could arise under this legislation. The Minister said he is not unsympathetic to Deputy McManus's view. The concept of community of property would extend not just to homes but to business properties, farmland, company shares and other property including the motor vehicle as referred to by Deputy McManus. It would be interesting to know whether it is Government policy to introduce legislation to provide for that type of community of property. That would, perhaps shed further light on the relevance of Deputy McManus's amendment.

The Second Commission on the Status of Women recommended the system of community of property. My recollection is that the 1972 report of the Commission on the Status of Women also raised the issue of community of property. However, in the 20 years since that report was published not much has happened in this regard. Perhaps the Minister will tell us whether as a matter of policy the Government has agreed that legislation to provide for a system of community of property as recommended by the Second Commission will be introduced and, if so, whether it will be introduced before or after the divorce referendum. Perhaps it is simply a question of the Minister, having read the report, showing personal sympathy for this view but the Government has made no policy decision on the matter. Clarification of that issue will determine to what extent Deputy McManus needs to push her amendment.

The Minister is taking a restrictive and conservative approach to this matter. We are now introducing the concept of a matrimonial home — the concept of the family home has already been introduced and as Deputy Shatter said, family lawyers believe "once the family home, always the family home." Part of the difficulty is that there are so many different definitions. Under this Bill the matrimonial home is the home where the couple ordinarily reside. That assumes there is a particular home in which the couple spend most of their time. Let us take the example of a Member of the Oireachtas from a rural constituency whose spouse may be retired or who may, because they have no children, regularly accompany that Member to Dublin where they own a property. At weekends they go to their constituency home, which is the matrimonial home for the purpose of this Bill. There are many family arrangements such as that which do not fit into the tight definition of "matrimonial home" and we must provide for them in this legislation. Difficulties will arise in exceptional cases and comprehensive legislation is necessary to deal with all circumstances. I am concerned, for example, about how this legislation will affect farms and homes attached to businesses, for example, a home attached to a pub, shop, dental or doctor's surgery. There is a presumption in this Bill that there will be one entrance to the business and another entrance to the home and that both premises will be divided equally, but it does no work like that. We must be very careful in the definition section that we provide for exceptional cases so that there is justice and equity.

I outlined the case of a couple I know who are both professional people, who have been married about two years and have no children. The husband works and has a property in Cork and the wife works and has a property in Dublin and at weekends they move from one property to the other. They spend weekends in one area or the other and they go abroad on holidays. One of these people, who is a lawyer, asked me last weekend which property will be their matrimonial home. We need to provide for exceptional cases and to be open to change. I am not criticising the Minister, but perhaps he will deal on Report Stage with this matter. I cannot see the difficulty in accepting that a matrimonial home may not be necessarily one home, that in exceptional cases there may be two homes and that it may be very difficult to define which one is the matrimonial home.

Quite a large number of matrimonial homes have been occupied by one or other of the spouses where, for example, houses have been bought on the tenant purchase scheme from the local authority. However, some members of the family may be living with one spouse and other members may be living with another spouse in two separate homes or perhaps a house and a flat, a house and a caravan or some other accommodation. Will the section cover that position? Which would be deemed to be the matrimonial home? In many cases people who have barring orders or who have passed that stage may have separated by mutual agreement and may be living in two separate houses.

Regarding Deputy Bell's point, if the spouses are separated neither residence would be a matrimonial home within the meaning of the Bill. The residence only becomes a matrimonial home within the meaning of the Bill if the spouses are ordinarily resident in the home immediately before the Bill comes into operation or if they both live in it afterwards, otherwise neither of the residences the Deputy described would come within the ambit of the Bill.

Deputy Shatter raised the point about the Government's policy in relation to the report of the Second Commission on the Status of Women. The Government has not yet considered that aspect of the matter, it has considered this Bill and the provision of joint ownership of matrimonial homes as defined. I refer the committee to the full wording of the definition. Part 1, section 2 of the Bill states:

. . ."matrimonial home" means the dwelling in which a married couple ordinarily resided, or reside, either immediatley before or at any time after the commencement of this section as their sole or principal residence and any easements attached or annexed to such a dwelling and exercisable over any other land;

In the ordinary, overwhelming majority of cases the dwelling will be their sole residence. The number of cases in which there will be more than one dwelling will be quite small and will be covered by the expression "sole residence". If there is more than one the question of which is the principal residence has to be clearly defined in the overwhelming majority of the cases where there is more than one dwelling. As I said, the notion of a principal dwelling is already known in law in other contexts. I do not deny that there could be an arguable case, there will always be arguable cases in exceptional circumstances as to which dwelling is the principal residence. If that cannot be resolved amicably between the parties in those rare exceptional cases there is an option under the Bill for the court to determine which of the dwellings is the principal one. I envisaged that that would rarely, if ever, arise. Cases where there is any doubt as to which residence would be the principal one would be a matter for the spouses. Every case in which this arises will not lead to a dispute between the spouses, in virtually all cases they will agree. If the spouses agree on this matter there is no difficulty, but if there is a dispute there is an option under the Bill for the court to determine which residence is the principal one.

I recall the Minister said that this Bill was breaking new ground. I am concerned he is adopting an entrenched position on this point because I do not believe there is any great difficulty in accommodating my amendment. The idea of waiting until another Bill is prepared relating to community property greatly concerns me because such a Bill would provide a different set of rules. The significance of this Bill is that it deals with the matrimonial home which is of particular significance to the two spouses. Larger property which would include investment bonds and so on, is a completely different ball game and much more controversial and what I wish to avoid.

The element of the matrimonial home as a concept should be included in this Bill where it relates to a second home. For example, a couple may decide to have a modest home in the city and another home in the country. They may spend many years building up their home in the country and spent a good deal of time there. One spouse may work in the garden and the other may do the wall-papering or whatever but they may invest a good deal of time and money in creating a home. If a couple separate they must decide or use the benefits of this Bill to delineate ownership of the second home. The woman may find that all the personal emotional investment she may have put into the second home is not recognised. That position is different from that which would prevail in relation to a larger community property Bill and the object of this Bill is that the matrimonial home has a particular significance for a couple. If we do not recognise that couples live in different forms of a matrimonial home, including the matrimonial home that covers two locations, then the Bill will not achieve its objective. I would be quite happy if the Minister considered this matter on Report Stage. The matter of the second home is a fundamental one even if it only related to one couple because the matrimonial home is an important element in people's lives. We must recognise that people live their lives differently and it is important that the matrimonial home as defined acknowledges that difference. I ask the Minister to recognise this point and to consider it on Report Stage because we should not lose sight of this point. I do not want to see this matter deferred to some long term project. The Minister stated that the larger question of community property has not yet been considered. The little holiday home or the second home that forms part of the larger matrimonial home should not be hived off and shunted into the distant future.

I take the point made by Deputy McManus and forcifully put by Deputy Harney. I cannot see any possibility of dealing with the question of family homes. I envisage difficulties regarding the issue raised by Deputy Harney relating to parity between two possible homes occupied by spouses, but I have no objection to considering it further on Report Stage.

I wish to refer to another family case. A family to whom I am related live in a modest semidetached house in Swords and have a holiday home in Curracloe, a small bungalow which they acquired but which during the years they have extended. That family decamp to their holiday home when the children finish school in June and stay there until September, they also travel there at other times of the year. A great deal of time, love and attention has been invested in that property. Others referred to time spent gardening and so on, that family have invested a great deal of themselves in their holiday home and it is their home for one-third of the year. This issue must be considered and deserves further attention. The commission wants community property to be subject to a broader regime. I referred to that during my Second Stage speech and I accept it is outside the scope of this legislation. The issue raised here by Members is a real one and could be a major one at a time of conflict. I am not sufficiently knowledgeable regarding case law in this area and how such matters in regard to which there is dispute are resolved in court. If this small area can be clarified in this legislation it would improve it.

Section 21 may cover some of the situations envisaged by some of the comments made by some members of the Committee. As I said, I will consider the matter between now and Report Stage.

Is the amendment being pressed?

I do not wish to press the amendment if the Minister will consider the matter. When he first said he would consider it he did not hold much hope, but the second time he did not put that caveat on it. I am pleased the Minister will consider it and I hope he will come back with a proposal that includes the definition I seek.

I do not see much hope in regard to the issue of holiday homes. The issue posited by Deputy Harney was different. I will consider that aspect. I will consider the issue of holiday homes but I do not hold out much hope in that regard.

Is the amendment being pressed?

Amendment put.
The Select Committee divided: Tá, 11; Níl, 14.

Ahearn, T.

Harney, M,

Allen, B.

Higgins, J.

Bradford, P.

Mitchell, G.

Creed, M.

O'Donnell, L.

Flaherty, M.

Shatter, A.

Níl

Bell, M.

Moynihan, D.

Brennan, M.

Moynihan-Cronin, B.

Davern, N.

O'Hanlon, R.

Gallagher, P.

Pattison, S.

Kenny, S.

Ryan, E.

Moffatt, T.

Shortall, R.

Morley, P.J.

Taylor, M.

Amendment declared lost.

On a point of order, I know many of the Government Deputies are absent, but is the Minister entitled to vote in this Committee?

Only persons acting as substitutes are entitled to vote.

The Minister dealing with the Bill is ex officio a member of the Committee.

Ex officio?

The Select Committee on Finance and General Affairs is also meeting this morning. I am a member of both committees and had to get a substitute in order to come here. When two committees meet at the same time it creates problems for those who are members of both committees.

That matter will be considered.

The Minister is not entitled to vote.

I move amendment No. 10:

In page 4, subsection (1), line 8, to delete "immediately".

This amendment relates to the definition of the matrimonial home. The matrimonial home is defined in the legislation as ". . . the dwelling in which a married couple ordinarily resided, or reside, either immediately before or at any time after the commencement of this section as their sole or principal residence and any easement attached or annexed to such a dwelling and exercisable over any other land." That definition is at the root of this legislation.

A number of issues arise in regard to that definition. Basically, if a property is a matrimonial home, a spouse will acquire a joint interest in it and if it is not a matrimonial home a spouse will not acquire an interest in it. There appears to be a distinct difference between the definition of a matrimonial home in this legislation and that contained in the Family Home Protection Act, 1976, and I will refer to that definition in the context of this amendment. I will be asking the Minister to explain why there is a difference because to most married couples their family home is their matrimonial home and their matrimonial home is their family home. It would have been more logical to give both a similar definition.

It concerns me that this is not simply a family home Bill as opposed to a Matrimonial Home Bill. Why do we need two different legal entities, a family home and a matrimonial home? Under section 2 of the Family Home Protection Act a family home is defined as "primarily a dwelling in which a married couple ordinarily reside". That section goes on to state: "The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving". The definition of a family home in the Family Home Protection Act was designed to ensure that, for example, where a husband and wife were living together and the wife left the family home because the marriage broke down, the property would nevertheless remain a family home. The family home did not cease to be a family home because the wife left and it did not automatically allow a husband who owned the property to sell it without his wife's consent or alternatively without a court order dispensing with her consent.

I am concerned about a number of matters in section 2, but I want to refer to the use of the word "immediately". I want to pose a number of questions to the Minister and I want him to clarify how he envisages this legislation working. A matrimonial home is defined as the dwelling in which a married couple ordinarily resided immediately before the commencement of the Act. Let us assume that a married couple resided in a property for 20 years, that one year ago the wife left the husband because the marriage had broken down and the property is in the husband's sole name. The wife spent 20 years looking after her children and caring for her husband, the marriage has broken down — but I will not attach blame to either side.

On the assumption that this legislation will come into force on 1 January 1994, by which stage the wife would be away from the matrimonial home for a year and a half, because of the use of the word "immediately" she will acquire no joint interest in that property despite having lived in it for 20 years. The word "immediately" will exclude her from doing so because that was not the home in which she resided immediately prior to the passage of this legislation. Nevertheless, under the Family Home Protection Act the property would remain a family home. That is taking a case where no blame is attached for the marriage breaking down, perhaps the husband and the wife gradually became imcompatible and the wife left. Under the Family Home Protection Act the house cannot be sold without her consent, but under the Matrimonial Home Bill she does not automatically acquire a joint interest in the property.

Let me give another example. Let us assume that the wife who left her residence one year ago was the victim of violent assault by her husband for a number of years, in law that would be regarded as inconstructive desertion. Following the enactment of this legislation, why should the wife who was forced by her husband's violence to leave the family home, not have a joint interest in the matrimonial home in which she resided for ten, 15 or 20 years? That wife would not be protected under this legislation because of the use of the word "immediately".

Other issues also arise in the context of this legislation. For example, the matrimonial home must be the home in which the couple ordinarily resided immediately before the commencement of section 2 and that section will commence upon the enactment of the legislation. Let us assume the husband died three months ago, the wife remains living in the matrimonial home, the couple had lived together for 30 to 35 years and the home is in the husband's sole name. Why should that wife not be regarded as having a joint interest in the family home following the enactment of this legislation? Let us assume that the legislation comes into operation on 1 January 1994 and the husband dies on 31 December 1993. Will that be regarded as a matrimonial home? If the husband dies on 1 October 1993, will it be regarded as a matrimonial home? How will this operate? The use of the word "immediately" creates a problem and I want the Minister to tell us what it means. Does it mean that if a couple are residing together in a property for three or four months before this Bill is enacted their home will automatically be regarded as a matrimonial home or will there be litigation in the courts to determine the meaning of the word "immediately"? I envisage a great deal of litigation in that regard.

Couples whose marriages have broken down during the past 18 months or so or a couple whose marriage breaks down in September or October, and they initiate court proceedings, under the Judicial Separation Act the wife can ask the courts to make property transfer orders and give her an interest in the matrimonial home and other property. There will be extensive argument in the year or 18 months following the enactment of this legislation as to whether the wife starts off from a position where a home is in the legal name of her husband, where it is assumed she has a joint interest or where she has no joint interest at all. The use of the word "immediately" will give rise to extensive litigation between husbands and wives who cannot agree on the arrangements to be put in place when their marriages break down. It will also give rise to great difficulty in advising them as to their legal entitlements in relation to the matrimonial home and certain conveyancing problems with which I will deal later.

Why is the definition of "matrimonial home" in this legislation different from the definition of "family home" in the Family Home Protection Act? Under the Family Home Protection Act it appears that by regarding a property as a family home, where a spouse has ordinarily resided before leaving the family home, resolves a number of these problems. I presume this matter has been given some consideration as there appears to have been a clear decision to insert a different definition in this case. That needs to be clarified. The concept of whether something is or is not a matrimonial home will give rise to a great deal of discussion, but not where couples are happily married. To some extent this legislation is providing what happily married couples do in reality anyway. The prime objective of this legislation is not simply to recognise marriage as a partnership and to give husbands and wives an equal right in the family home, but to ensure that where marriages break down that husbands and wives are in an equal position with regard to the family home.

Many other problems will be created, some of which might be more properly discussed under other definitions. This legislation will also give husbands rights in family homes that are owned by wives. Let us reverse the position and assume a marriage has broken down, the wife is in employment and she purchases a home for herself. An attempt is made at resolving the marriage problems and the husband moves back in with the wife after she has acquired her own home and it is in her sole name. The husband them acquires a beneficial interest in the home. Let us assume that a few months before this legislation comes into force the husband moves out of the marital home after a failed attempt at reconciliation, how many months before this measure comes into force must he move out so as to put the wife in a position where this legislation does not confer on him an automatic joint interest in the family home? I do not know the answer to that question because the word "immediately" creates a problem.

Of course, the Act raises other issues. The Minister has pointed out that in certain circumstances where a spouse dies children may be able to challenge whether an interest in the home should vest in the other spouse and automatically give the other spouse the sole ownership rights by virtue of what is known as the right of survivorship.

At a later stage we will discuss in greater detail an amendment I have tabled and which has been circulated which seeks to ensure that where a person has murdered or attempted to murder their spouse or has been found guilty of the manslaughter of their spouse enactment of this measure will not automatically result in joint ownership. There is a similar provision in the Succession Act of 1965 but for some reason it is not in this Bill. If my wife owns the family home and there is a marital row and I resort to violence and kill her, under this definition of the family marital home and as the legislation will operate, if I am convicted, whether of murder or manslaughter, I will automatically obtain the house by the right of survivorship. Children may seek to challenge that but one would have to question whether that should be necessary.

Let us assume that my wife and I are ordinarily residing in the family home and this legislation comes into force. I attempt to murder my wife, the attempt is unsuccessful and I am convicted of that crime. Under this Bill I still have a joint interest in the home if the home is owned by my wife. Equally, if a wife attempts to murder her husband she will have a joint interest in the home.

Where a home is owned by one spouse and either the husband or wife, in October of this year, attempts a murder and is unsuccessful, the legislation comes into force on 1 Janury next by which time the person accused of attempted murder has moved out of the home, on 1 January will the home still be regarded as the property in which the parties were ordinarily resident or will the word "immediately" exclude the husband or wife who is charged with attempted murder, provided they moved out three months beforehand?

I do not want to go on at length on this but a number of problems arise from the use of the word "immediately". A number of other problems arise in exceptional cases such as where a spouse is murdered, were there is an attempted murder or perhaps where there is an aggravated assault and a conviction. The Bill does not automatically exclude, in certain circumstances where other legislation excludes spouses from gaining property ownership, the perpetrator.

Even in the most simple cases where marriages break down, the use of this word "immediately" and the way it might trigger ownership rights in the family home will have a profound impact on the immediate application of this legislation to approximately 5,000 to 10,000 couples at the time when it comes into force. This issue will become less relevant as the years go by. However, on the basis that approximately 4,000 family law disputes are determined in our courts currently on an annual basis, and on the basis of my personal experience which is that far more couples resolve their problems by concluding agreements when marriages break down than by issuing court proceedings, it is reasonable to estimate that in the case of approximately 10,000 couples — that is probably a conservative estimate — their legal position will be affected one way or another by the use of the word "immediately". I am not suggesting in the context of that 10,000 that in all instances one spouse will be in the home and one will be out of it; that is an exaggeration. There might be a few hundred in that position; it would not be an exaggeration to say that somewhere between 1,000 to 2,000 may be in that position. There would certainly be many hundreds affected. There is a problem with the use of the word "immediately".

Earlier, the Minister gave some good reason for using the word "immediately" in an intervention on an earlier amendment. Certain situations are arising that the Minister is trying to properly address by the use of that word, but the complications are not apparent and in the context of the amendment I have tabled we should tease this out in some detail. This amendment will not resolve all the problems but it may resolve the problems in the areas to which I have referred. It may not address some of the issues the Minister wishes to raise and which I agree should be dealt with also. I tabled this amendment to enable us to tease out the problems in this area and I hope it will be dealt with in that context. Obviously, I will be interested in the Minister's response.

Deputy Shatter has made a very good case for his amendment. He is right to put down this amendment because it highlights the general problem in relation to this Bill in that it raises differences between the interpretation of what is a matrimonial home and what is a family home. The purpose of the 1976 Act was to protect against a vindictive spouse selling the property without the consent of the other spouse. I see no reason why a different interpretation should be put on the definition of a family home and a matrimonial home in this case. It raises the issue as to whether we should consolidate both Acts into this Bill and call it the Family Home Bill.

Regarding the 1976 Act, there were often criticisms that the requirement to obtain the consent of the other spouse was so deliberate that it was unfair because in some cases the consent of a spouse who had never even lived in a family home would have to be obtained before the property could be sold. The principle in the 1976 Act was correct because it ensured in general terms protection for the family home.

Deputy Shatter's argument is well founded and the Minister should consider it. It is unfortunate that we will have two definitions complicating this area of family law, a matrimonial home and a family home. They are exactly the same and we should seek in this legislation to avoid any unnecessary litigation that might arise concerning the points raised by Deputy Shatter in relation to the word "immediately".

I share the view that there is a need for the Minister to clarify his reasons for deciding on a substantially new definition. This is a useful occasion for the Minister to do that.

In regard to the term "immediately", Deputy Shatter has outlined many of the possible problems in relation to that. The word "immediately" requires definition and if it must be included it should represent a period of time, two weeks, three months or whatever. Otherwise, it will be a legal nightmare for people who want to know where they stand in regard to their rights. It is odd because "immediately before" confines the entitlements of the Bill to whatever one's definition of "immediately before" will be.

The only other time limiting element in the Bill is in section 12 in relation to the period of six years following the purchase of a matrimonial home when the property will be deemed to be free of any interest arising from section 4 of this Bill. That six year provision is seen to be a reasonable time limit in which one's interest might be vested but in this definition "immediately before the implementation of this Bill" could mean that one's entitlement to protection under it could be quashed or never exist for a much shorter disqualification period. It is important for the Minister to outline to us his thinking on this matter and to answer the questions raised.

Deputy Shatter made an excellent case. Indeed, there is not much for me to add to it but as he was listing examples I thought of another one. For example, a husband may be convicted of incest and imprisoned immediately before this legislation comes into force and that may lead to the break up of the marriage. On release from his custodial sentence that man may never return to the family home, or the matrimonial home as it is now being described, but he is the owner of the house. Obviously, the wife would have no interest and no right to joint ownership under the provisions of this Bill if there were to be this narrow definition based on using the word "immediately". The word "immediately" adds little to the definition, although I accept that if it is omitted it will cause other problems. I do not have a magic answer as to the alternative.

I regret that we are not consolidating the provisions of this Bill with the existing provisions in the Family Home Protection Act. That is a disappointment because, to a large extent, it would have been much easier to do that while retaining the same definition. We now have the matrimonial home, the family home, the former matrimonial home, the former family home and so on. As far as litigation is concerned it will be a nightmare from the practitioners' point of view and will cause an endless and unnecessary legal dispute. People will waste time, money and effort trying to establish their rights or circumvent the provisions of this legislation. It is unfortunate that we are not repealing the 1976 Act and re-introducing the necessary provisions into this Bill so as to have one Act dealing with the family home or the matrimonial home or whatever it might be.

In regard to all that has been said by Deputy Shatter in particular, I believe there will be enormous difficulties and challenges to this legislation because of the use of the word "immediately" in the definition of the matrimonial home.

Sitting suspended at 1.10 p.m. and resumed at 2 p.m.

Before lunch we had a wide-ranging debate on amendment No. 10. While I have no complaint about the debate, Members went beyond the terms of the amendment and raised issues which will be discussed later when we deal with other amendments and sections. I propose to address, primarily, the terms of the amendment in which it is suggested that we should drop the word "immediately" from the definition of "matrimonial home". This point was raised, briefly and tentatively, by the conveyancing committee of the Law Society with officials of my Department, but after a short discussion it agreed it was appropriate that the word should remain and that it was necessary to include it.

A number of issues were raised and a number of examples cited. The Bill will not apply, for example, in cases involving assault and where one spouse has left the home at various times for a good and sufficient reason so that both spouses are not residing in the dwelling at the time the Bill comes into force. Cases where a separation order is in force at the time the Bill comes into operation require to be dealt with. Legislative rights are given to the people concerned under the Judicial Separation and Family Law Reform Act which caters for cases where people have separated. Consequential orders made under that Act adequately cover property rights, transfer orders and so on that may be appropriate in separations.

There was also a reference to a case in which one of the spouses dies at a crucial point but these cases do not come within the effectual ambit of the Bill, they are covered by the succession Act, where appropriate, or under the will or intestacy in so far as that may be affected by the succession Act and do not come into play on the granting of joint tenancy in the matrimonial home.

The question of residence was raised by Deputy Harney. It is not the immediate point of the amendment, but I will refer to it briefly. In the first instance, I would draw the Committee's attention to the fact that the word "residence" is not synonymous with the word "occupation". A person can be resident in a dwelling without physically occupying it. Further-more, the definition is not confined to the word "residence", the wording used is "ordinarily resident" and that, too, is an expression well known to the law in other contexts. It could well be the case that one spouse may be away from a dwelling for a long time, say, one or two years, working in Saudi Arabia or, indeed, in prison. That dwelling would still be his residence and he would be covered by the definition of "ordinarily resident".

There must be a cut off point, that is the date on which the Bill will come into operation. I have been asked to explain what is meant by "immediately before"; it has its ordinary meaning. The question is whether the couple would be ordinarily resident in that dwelling at the time the Bill comes into operation.

The Family Home Protection Act was referred to, it was asked why it is necessary to have a separate definition. The Act and this Bill cover different situations, produce different results and provide protection to different people. Under the Family Home Protection Act a veto may be exercised in regard to a sale or mortgage in certain circumstances, but this Bill is a different proposition. Under the Bill a half share in the matrimonial home will be vested in the other spouse. That is a major departure. The Family Home Protection Act covers a case where the spouses have separated and one spouse is living in the home. Protection is accorded. The question of granting joint ownership does not arise. This might arise in the course of judicial separation proceedings.

The argument that the word "immediately" should be deleted from this definition is not tenable. I suspect that Deputy Shatter accepts this. It would produce some unacceptable results. For example, if we were to delete the word "immediately" in a case where the home is in the name of the wife who is separated or divorced from her husband, who has been living in England for the past 30 years, section 4 would be brought into play. While I am prepared to consider carefully any amendments that may be tabled, I suggest that Deputy Shatter should withdraw this amendment because it would produce undesirable results.

The Minister said that the word "residence" is not synonymous with the word "occupation". He seems to be of the view that if a couple are separated at the time the legislation comes into force — by that I mean living apart — the Act will not be triggered; in other words, if one spouse is living outside the home the matter would have to be dealt with in separation proceedings.

The Minister went on to say that "ordinarily resident" does not have to mean that at all. If a person is working in Saudi Arabia for two years or in prison, they would still be regarded as ordinarily resident in the family home, the matrimonial home in this case. Until one analysed what the Minister said it sounded coherent, but it is contradictory. One cannot say that "ordinarily resident" immediately before the Bill comes into force means one thing in the context of couples who may have been living apart because their marriages have broken down and something entirely different where one of them is working abroad. There is confusion.

I am not sure whether in applying the legislation, because of the use of the word "immediately", there will be a difference between the concept of residing in a place and occupying a place. The Minister said the word "residence" is not synonymous with the word "occupation", but it would seem they are synonymous. The Minister has given us two contradictory interpretations.

Let me return to the examples to which I adverted. Let us assume the wife leaves the family home six months before the Act comes into force because there has been violence in the home or because the couple are incompatible and they have not reached agreement as to the arrangements that should be made to effect a permanent separation. The Minister might say while she is not occupying the home the matrimonial home is the place in which she is ordinarily resident but he also said that if that is the case the matter will be dealt with under the Judicial Separation and Family Law Reform Act and this Act will not be triggered at all. I do not see how one could suggest to a court — to take the opposite approach — that the wife was ordinarily resident in the home immediately before the Act came into force when she was resident elsewhere for six months. The Minister said that if the husband is working in Saudi Arabia he will be regarded as ordinarily resident in the family home. It is contradictory and the complications are compounded by the imposition of the word "immediately". This might be understandable if reference was made to the dwelling in which a married couple ordinarily resided or reside, either 12 months prior to the enactment of this legislation or at any time after the commencement of this legislation. Perhaps that would cover the situation where one of them is temporarily out of the house for marital reasons but then the Minister will ask about the man or woman who has been working in Saudi Arabia for two years.

While I accept the Minister's view that the husband who has abandoned the family home for 30 years should not be allowed to acquire an interest in it, the reason I tabled the amendment is that the matter is more complicated than the Minister seems to realise. I am not here to represent the conveyancing committee of the Law Society but it is my information that it still has a problem with this matter, even though the impression was given that it was convinced, after a brief discussion, that the problem was resolved. I do not care whether its problem has been resolved. What I am concerned about is how this legislation will work in practice, not just whether it will facilitate conveyancing lawyers in selling and buying houses but whether the husbands and wives for whom this Bill is designed to provide protection will genuinely get the protection they feel is necessary.

I want to make sure that the people who should be covered by the legislation are covered and that the people the Minister might wish to include are not excluded.

I do not want to drag this discussion out unduly but I find the Minister's response indicative of the confusion that exists with regard to the application of this section. It seems that the Minister has not fully thought out how this definition is going to work in practice. Perhaps we will not resolve the problem by removing the word "immediately" but we may resolve it by making reference to the house in which the couple were ordinarily resident 12 months or two years prior to the enactment of the legislation to meet the position of those who are currently temporarily separated.

Let us assume that a husband owns a house in Ireland, that he is working in Saudi Arabia, that his wife and three children are living in the house in Ireland and that he has not been back to this country for two years. When the Act comes into force the matrimonial home will not be the home in which the married couple ordinarily resided immediately beforehand because they have not resided together for at least two years. Is the Minister saying that, in principle, the Government does not want that wife to have a joint interest or that under the Bill she will have a joint interest, and, if so, will he explain how? If she will have a joint interest, why will it not apply in the case of a separated wife? What we need is a more complicated definition. We will have to deal with situations where people are neither occupying nor resident within the home for periods of time, due to the fact that their marriage has broken down or they are engaged in employment which requires them to live or reside outside the country. If we do not deal with that, some wives whose husbands are living outside the country will be deprived of a joint interest, some husbands and wives who might be entitled to a joint interest but who have moved out of the family home will be deprived of getting it. It will not work. The Minister is trying to develop a dichotomy between the words "residence" and "occupation"— I think he said on Second Stage it was hoped that this legislation would not prove to be a goldmine for lawyers — perhaps I am paraphrasing what he said. Although complex, it was his intention to set out clear principles as to how it would apply in practice.

Let me tell the Minister that the situations I am suggesting will arise on a regular basis unless the legislation spells out a good deal more clearly how this is going to work. There is going to be a huge amount of litigation over this and a huge amount of legal disagreement and some people who should benefit from the legislation will not. Will he explain to us whether it is intended that this legislation will give a wife a joint interest in the family home in circumstances where her husband has been working abroad for two or more years and has not returned to the country and where the home is in her sole name? Perhaps he will clarify that? If it is intended to give the joint interest we might then tease out whether it does or not and look at how that will apply in the situation where a marriage has broken down and someone has left the family home.

I am happy to clarify that for Deputy Shatter. In the case of a man who goes to work in Saudi Arabia for a year or two the matrimonial home is quite clearly within the terms of the definition and the wife certainly gets her half share. The wording of the definition is not that he resides there. It is that he ordinarily resides there. That is his ordinary residence. If you ask that man in Saudi Arabia where is his ordinary residence he will say his ordinary residence is in such and such a place in County Dublin. That is quite clearly a different position from a situation where a wife is battered and leaves home and takes up residence somewhere else. She is separated as a result of being battered or incompatibility. If you ask her where she ordinarily resides, she will say she resides at a new residence because she had to leave where she was formerly ordinarily resident. That concept is quite clear. Those two sets of circumstances are clear enough to my eye.

I do not say the definition is perfect; it is as perfect as I can make it. I have looked at it inside out and back to front. It seems to meet the needs of the situation but if any amendment is tabled that suggests any improvements to it I will certainly consider it. I do not think it would be appropriate to put a time limit on the period of residence. The intention is clearly stated. It is complex enough as it is and I do not want to make it any more complex. It is clear that if that is their ordinary residence, the legislation comes into play. If it was not the ordinary residence of one spouse at the time of enactment, the Act would not come into play and it is not intended that it should.

I want to tease out this matter further. The examples produced by the Minister might be useful. His response is somewhat bizarre, to say the least. Let us examine it. There is a gentleman working in Saudi Arabia for two years who has not returned home to Ireland and his wife is residing in the matrimonial home. She says, when the Act comes into force, "I regard this as my ordinary residence, I have lived with my husband in this home as a married couple and we had been doing so immediately before the Act came into force". The Minister said the Act would apply because, he said, if one asked the man in Saudi Arabia where his ordinary residence was would say it was in Dublin or in Cork — wherever the house is. Let us take a different scenario. Perhaps the man in Saudi Arabia does not want his wife to have a joint interest in the family home in these circumstances. Not only has he not occupied it for the past two years, he has not resided in it. Maybe it suits him to continue working in Saudi Arabia and sending money home. Maybe he is living with a girlfriend in Saudi Arabia. If we ask this man in Saudi Arabia where is his ordinary residence, he will consult his lawyer, who will tell him that if he says his ordinary residence is in Saudi Arabia his wife will not get a joint interest in the home but if he says it is in Dublin or Cork, where the home is, she will. So what does he say? He says his ordinary residence is in Saudi Arabia, but his wife will say it is in Dublin. She will want to assert that she has a joint interest and he will want to deny it. There will be a court case and a judge will have to decide whether immediately before the Act came into force the couple were ordinarily resident there. The Minister is telling us that the judge will take the view that they were ordinarily resident in Dublin and the man will charitably say, yes, his wife can have a joint interest. That, with all due respects, is just highlighting the problem.

The Minister says, on the other hand, that if the wife leaves the family home because she is being battered, that is a different question. That is entirely different from the man working in Saudi Arabia. If the wife moves out of the family home for three or four months and, to use the Minister's words, occupies another home, she is quite clearly not ordinarily resident and the Act will not apply to her. Let us turn that around. Let us assume the wife has left the husband in the family home as she was forced out by violence and she moves somewhere else temporarily, with the aspiration of getting the husband out of the home and claiming her joint beneficial interest. The husband will say she is no longer ordinarily resident in the home because he does not want her to have a joint interest; she will say, like the man in Saudi Arabia, she is only temporarily occupying somewhere else and she will claim a joint interest and the courts will have to work it out. Somewhere in the middle of it all the word "immediately" is jumping up and down.

It will be extremely difficult to persuade any judge that the husband in Saudi Arabia or living in Birmingham, Liverpool, London or Cork for two years, while the family home is in Dublin, has in fact prior to the Act been ordinarily resident in the family home in Dublin when he is asserting he was not residing there. The Minister thinks he is protecting the position of wives left in this country, or indeed in a particular part of this country, whose husbands are either working abroad or somewhere else in the country and he thinks he is giving the wives a joint interest. I am saying he is not and there is a problem with the section. The Minister holds the view that if a wife leaves the home due to marriage breakdown during the interregnum between now and the enactment of the Bill or in the preceding 12 months, she will be excluded from benefiting under the Act. If that is the Minister's intention, he is just wrong. A wife forced out of her home by the violence of the husband over the next three or four weeks should not be excluded from the application of the Act.

Let us take this matter a step further. What we are doing in this House today might be reported to some minor extent in the papers. Let us assume that there are various husbands and wives whose marriages are in difficulties and there are a number of husbands whose houses are in their sole name. The Minister's proposal is a distinct incentive to them to make life so dreadful for their wives as to force them to move out of the house before this legislation is enacted. In the Minister's explanation of how the Act should work it is his view that if you get your wife out of the family home before this Bill is passed there is a possibility the courts will not regard her as being ordinarily resident in it immediately before it became operative and she will not get an automatic joint interest. There is a direct incentive for a husband whose marriage is in difficulty to throw his wife out of the family home, which he owns, over the next few months. We can reverse that and say wives who own the family home, but do not want their husbands to get a joint interest, have an equal incentive to get them out. That is a very odd way to deal with legislation relating to marriage breakdown.

I am not suggesting — and I do not want the Minister to misunderstand me — it is remotely his intention that any of this happen. I am certain it is not, and that he has not addressed such a possibility. I do not want to be personal. I am trying to highlight a real problem which has not been fully and adequately addressed. Although this legislation is complex, the definition of matrimonial home and the time frame within which it should apply is so crucial that we need a more complex definition. We have also to deal with the time frame problem in a manner in which it has not yet been addressed. If we do not do so, we will create not only real problems which will give rise to litigation, but something a great deal worse, we will cause real injustice. There are women and some men who should be entitled to benefit under this legislation but who will be excluded from it. This is unique legislation providing for additional rights within marriage that are very important and which complement the provisions in the Judicial Separation Act, which I put through the House, for the first time recognising the worth of the role played by the wife and mother in the home and in caring for the family and bringing up the children. This is a complementary measure and its intent is right. There are real technical problems in the Bill. The Minister has highlighted some of the technical problems and the difficulties in applying the legislation in practice to a number of human situations.

Saudi Arabia has been mentioned. In my immediate family, the husband was in Saudi Arabia for two years and the wife remained at home. They separated and it was dealt with by the legal process of separation, but there was never any question about dealing with assets or a dwelling the spouse had in Saudi Arabia because they were outside the jurisdiction. I assume that the definitions in the Bill would not apply to whatever dwelling somebody would have in Saudi Arabia and that the dwelling that would normally be used in this country would be the matrimonial home. I assume that is dealt with in this section. There is nothing bizarre about that.

I do not accept the explanation I gave was in any way bizarre. It was straightforward and clear. I do not want to be repetitive but to take the Saudi Arabian example, if the husband is working in Saudi Arabia or Birmingham, there is no dispute in the overwhelming majority of cases. They are still a couple, their home is here and at some point the husband will come back and re-establish the family unit. Should he make the case either inside or outside court to avoid his wife getting a 50 per cent share in the matrimonial home under this Bill, that he is living with another woman in Saudi Arabia, then they are in a separated state. That is a different position. If the determination of the court is that they are separated at that time by reason of what he says, this Act will not come into play. That is not to say that the wife, like any other separated wife, will not have her rights to apply to the Circuit Court for a judicial separation and to seek a property transfer order of that house to her by reason of the fact that her husband went off to Saudi Arabia, and by his own admission, is living there with another woman. In all probability the court will order the house to be transferred to her. In the case of the wife who was compelled to leave her home and is in a state of separation, should there be a dispute the court will determine it the same as the court determines any issue that arises under the judicial separation legislation. Those rights are there and they are preserved. They are in no way interfered with by this legislation.

This is new legislation, breaking new ground. If a home is the ordinary residence of the spouses at the time the Act comes into play or if it becomes their ordinary residence at any subsequent time, they automatically become joint owners of it. That is the thrust of the Bill and it is quite clear. To delete the word "immediately" from that would bring it to a reductio ad absurdum position and would give rights in a whole range of situations that nobody in this committee would wish to provide. We seem to be at loggerheads on the issue and there is no point in engaging in repetition. The amendments to delete the word “immediately” is untenable and would give rise to undesirable situations which were never intended. If any other amendment is tabled on Committee or Report Stage, I will be happy to look at it but taking into account all that has been said, it seems to me that the definition meets what we are seeking to achieve.

I wish to raise briefly one other issue which I invite the Minister to look at. In this context he seems to be saying there are two simple situations. In the first case the couple are happily married living together or one spouse is in another country and pretends to be still living in Ireland. The Act applies to their case. The second case is where the marriage has broken down and the couple are not living in the one home. Then the Act does not apply because the Judicial Separation and Family Law Reform Act applies.

There is another reason that people are getting a joint interest in family homes and it is not just to protect wives in marriage breakdown. As the law stands, the main rights that a wife has on the death of her husband, and he has reciprocal rights on the death of his wife, are the rights conferred under the Succession Act, 1965. Depending on whether the couple have children, if the husband makes a will and does not properly provide for his wife, the wife is entitled automatically as a legal right either to one half or one third of the couple's property. This Act is important because the majority of couples have one home and their main asset is the family home. Where the home is in joint names, what the will says about property is irrelevant because the surviving spouse automatically owns the home. In some instances there have been problems because the only matrimonial asset of significance is the family home. The husband may leave property between children and a variety of other people and leave the wife a minimum one-third. If the wife is not on good terms with the children and the other beneficiaries under the will, she may be forced to sell the matrimonial home, often being left in an extremely insecure and difficult position. There are exceptional circumstances in which, under the Succession Act, the home can be kept for the wife but such circumstances arise very rarely.

This Bill will be to the benefit of both husbands and wives. By virtue of the right of survivorship in the case of properties jointly owned, the surviving spouse will automatically acquire the full ownership of the family home. They are no longer reliant simply on a one-third share in the other's estate. That provides protection.

The husband in Saudi Arabia, Liverpool or Birmingham who has been there for a couple of years may make a will leaving all his property to his girlfriend. If it is accepted that, at the time when this Act came into force — even though he was out of the country — the parties were ordinarily resident in the matrimonial home, it does not matter to the wife, in the context of her security in the home, what is contained in the will. She will get the home by virtue of joint ownership. If the view is that they were not ordinarily resident, she may find herself put out of the house because her only entitlement may be the one-third share of the estate. That is a problem the courts cannot solve under the provisions of the Judicial Separation Act. That is why it is important that it be quite clear when the provisions of this Bill are triggered.

I am not happy with the Minister's response. I am quite willing to accept that simply deleting the word "immediately" does not necessarily solve this problem. I deliberately tabled the amendment in this regard to give us an opportunity to tease this out. I am quite happy not to press the amendment if the Minister will confirm that he and his Department will examine these problems in greater detail before Report Stage. It may well be that the problems which arise could be resolved by further amendments being tabled to later sections of this Bill on Committee Stage.

The problems are significant and will arise in a number of circumstances — either where one spouse has been working outside the country for some years prior to the Act coming into force, or where a husband or wife has moved out of the family home, perhaps within weeks or months of the Act becoming operative. Equally they would be triggered if one of those two events has happened and the house-owning spouse dies. I have no wish to call a vote on this amendment. It is the first opportunity I have had to deal with this definition in such detail. I am certain by the time this Bill goes through the Oireachtas this definition will have been amended or will have had to be amended. If the Minister undertakes to have a further look at this with a view to resolving some of these problems, I will be happy not to press my amendment.

Like Deputy Shatter I remain concerned about the definition. Unfortunately, I did not hear all of the Minister's reply. I will not ask him to repeat it but I am still concerned that the word "immediately" is to be included. What will it mean in effect? I suggest the inclusion of the phrase "immediately before or at any time after the commencement of this section"

Like my colleague I am very concerned. The definition has been changed very specifically, obviously with clear intent, from that contained in the Family Home Protection Act, 1976. It could lead to confusion and to a certain undermining of the intent of the Bill.

It is extraordinary that the Minister did not see fit in this Bill to redefine the family home. Deputy Shatter referred to some of the problems in relation thereto this morning: for example, under the Family Home Protection Act, 1976 once a family home, always a family home. That is how it has been interpreted. Yet we have the crazy position obtaining where, even if the marriage had broken up before the home was purchased by the wife she still has to get the husband's permission if she wants to sell it or, alternatively, go to court at a cost of £700 or £800 to have his consent dispensed with. It is extraordinary that the Minister did not feel it necessary to redefine the family home in the context of this Bill. I support very strongly the points made by Deputy Shatter. He is one of the few experts in this field in this country. The arguments he makes are very compelling.

I have no doubt there will be some person with a very expensive home who will use as much money as it takes to challenge the provisions of this Bill if they are to be forced to give half of that property to their spouse. We must remember that the provisions of this Bill will cause difficulties only in the event of disputes. A couple who are perfectly happy probably will have made these arrangements anyway. It is in the case of disputes arising when a marriage goes sour that people will be prepared to go to every court in the land to protect their rights, interests and property. In the case of somebody who moves out of a house worth £1 million three or four months before the enactment of this Bill and wishes to challenge the right of the other spouse to an equal share of the property, I am not a lawyer but I believe they would have a very strong case. I would not be certain how the courts might interpret such a case.

I appreciate that if one keeps two Acts one must keep two definitions. I should have preferred a Bill to consolidate the provisions of the Family Home Protection Act, 1976. I understand there are more cases of negligence taken against solicitors in relation to burden of proof inquiries under the Family Home Protection Act, 1976, than there are in relation to any other single matter. If that is the case, it indicates the kinds of difficulties that will arise. The point made by Deputy Shatter should be re-examined by the Minister before Report Stage to ensure that we are not exposing some unfortunate spouse to circumstances in which he or she will not have the protection of this Bill.

Over recent months I have examined this definition exhaustively. I am quite happy to re-examine it again, word by word, particularly in the context of submissions from Members who are concerned about it. I would be interested to hear their suggestions for its improvement. I will keep an open mind until I receive such suggestions. I will also take into account what has been said today. I will examine Deputy Flaherty's suggestion about using the phrase "at the commencement" rather than the word "immediately". Perhaps that might be a better wording but the effect would be the same.

The final point made by Deputy Shatter is essentially a Succession Act point. We are not engaged in amendments to the Succession Act today. It could well be argued that the protection given at present under the Succession Act, 1965, is not adequate and should be varied. No doubt that is something that will be examined in another context.

In the light of the Minister's agreeing to have a look at it, I will not press the amendment.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.

Amendments Nos. 12, 19 and 20 are related. It is proposed to discuss amendments No. 12, 19 and 20 together, by agreement.

I move amendment No. 12:

In page 4, subsection (1), line 24, to delete "or would become".

These three are drafting amendments designed to provide greater clarity in the wording.

Amendment agreed to.

Amendments Nos. 13, 14, 17, 18, 22, 23, 34, 38, 39, 44, 49, 51, 52, 54 to 57, inclusive, 59, 60, 68, 69, 71, 72, 75 to 80, inclusive, 82, 93, 94, 96 and 97 are related and will be discussed together.

I move amendment No. 13:

In page 4, subsection (1), line 25, to delete "he" and substitute "the spouse".

These are all gender proofing amendments, something I gave a commitment to on Second Stage. I am sure credit will be given where it to due, particularly by Deputy Harney.

I congratulate the Minister on gender proofing the amendments. Before Deputy Harney gives him credit, I will give him credit. This is the first major Bill to emanate from the Department of Equality and Law Reform. I find it somewhat extraordinary that it is only on Committee Stage that the Bill is gender proofed and that so many amendments have to be tabled by the Minister to his own Bill.

That is begrudgery.

Were I Minister I should have expected that that would have happened before the Bill was published. I wonder whether this will be the pattern of other Bills. The Minister has the remit to ensure that legislation from all the Departments is gender proofed. Of all Departments I would have expected the Minister's to have got this right first time. This Bill is sufficiently complex without having to remove the word "he" from a variety of places and replace it with a variety of other types of terminology to remove the male bias. I am sorry if the Minister sees this as begrudgery. His Department has a headline to set in this area. I would like to have seen this in the original format of the Bill. Nevertheless, the Minister took up what was said on Second Stage and has tabled the amendments which are welcome. I hope that all future legislation will be gender proofed by the Minister's Department before publication.

My amendment No. 14 relates to this aspect also. I welcome the fact that the Minister has amended his Bill to omit the offensive references to "he" and replace them with non-gender specific words, which should have been included in the Bill before we received it. It is strange to go about gender proofing on Committee Stage. Since there has been a gulf between the aspiration and the actual execution of the whole principle of gender proofing and gender balance, the Minister might ensure that all other legislation will be gender proofed before reaching Committee Stage. None of us should underestimate the power of language. It is claimed that the term "he" is used to describe men and women, but in reality women are excluded by it when it is used in common parlance. It was interesting that in this morning's briefing the term "he" was used rather than "he or she", "they" or some other term that was not specific. Equality must extend to language. Its importance should not be underestimated. I would hope this will be the last Bill to come before any committee containing these offensive terms.

I congratulate the Minister for doing this and suggest that whoever did the gender proofing for him should be in charge of gender proofing all legislation. I am tired of hearing Ministers say it cannot be done until we do X, Y or Z. This shows it can be done and whoever has drafted these amendments should be the gender proofer for other Bills for the Minister's Department.

I agree with the points made by Deputy McManus. We can do much to advance equality for women through legislation but it is difficult to change the culture, attitudes and ethos of society. There is no doubt that men and women are not perceived as being equal when it comes to culture and attitudes and this is partly due to the language we use, the roles adopted by men and women and the examples given to children. We need to go to extraordinary lengths to show that although we are different we are equal and language is a big part of that. The Commission for the Status of Women recommended that we change the Interpretation Act so that legislation would be gender neutral. It concerns me that when Ministers are referred to in Bills a definition is given stating that the Minister is the Minister for a certain Department and it is always presumed that he is male. In the past Ministers and Presidents were nearly always male, but the world is changing and we can no longer presume that is the case. The Minister has given great example to his colleagues in Government. The public order Bill is before the Dáil at present and it contains many references to the word "he". It is interesting that that Bill is being sponsored by a female Minister. I hope the Minister has an opportunity over the summer recess to allow his officials to gender proof the public order Bill before it is enacted.

I agree with the comments made. It is extraordinary that a Bill, the main purpose of which is to bring about equality, should be riddled with inequality in the use of language. I agree with speakers who say it should have been gender proofed before it came to the House. It is alarming that those who drafted the Bill were concerned about equality in one area and yet did not recognise that the language they were using was the essence of inequality. It is regrettable that so many amendments had to be tabled to this Bill to rid it of its male-oriented phraseology. As many speakers stated all Bills need to be gender proofed and one must question the gender ratio in the Bills Office.

Do all Bills go to the parliamentary draftsman's office? If so rather than chasing individual Ministers, perhaps that might be the best place to deal with gender proofing. Will the Minister undertake to do that?

Deputy Therese Ahearn should consider calling them into her committee.

Amendment agreed to.
Amendment No. 14 not moved.

I move amendment No. 15:

In page 4, between lines 27 and 28, to insert the following subsection:

"(2) Reference in this Act to an interest in a matrimonial home shall include a legal or beneficial interest in shares held in a company where the legal or beneficial interest in a property in which a married couple ordinarily reside is vested in such company.".

In the majority of marriages the family home is held either in the name of the husband or the wife or in their joint names, but in circumstances where people have a reasonable amount of finance and where a husband or a wife is determined to ensure that the other spouse does not acquire a joint interest, a variety of possible legal mechanisms can be deployed, some of which were attempted following the enactment of the Family Home Protection Act, 1976. Under section 4 of this Bill and the definition section it would appear that for someone to have an interest in the family home they must have a legal or beneficial interest in the title to the home. If a husband with a reasonable sum of money wants to buy a house and exclude his wife from getting a joint interest in it under the provisions of the Bill as drafted he could form a company, hold 99 shares in it, get his secretary, brother, mother or anyone else to hold one share in it and purchase a house through the company. In that context, it is questionable whether there would be a legal or equitable interest in the family home. The husband's interest would be in the company and it would be the company who, legally speaking, would own the matrimonial home.

The provisions of the Companies Act and the vehicle of a limited liability company could be used by husbands and wives to evade the application of the legislation and to exclude a wife or husband from getting a joint ownership in the matrimonial home. In the case of the Family Home Protection Act one could argue that where the family home is owned by a company there is still a difficulty in selling it without getting the wife's consent while the wife is living in it, but that is a legal grey area in the context of this legislation. The legislation is designed primarily to provide for a case where a husband owns the house, where the conveyancing documents—the documents of title—have the husband as the sole owner and it is intended to give the wife a joint interest. If the house is vested in a company in which the husband is the major shareholder and the wife has no shareholding interest in that company, the wife will not automatically acquire a joint beneficial interest in it.

The sort of person who will put in place that type of legal vehicle is the sort of person this legislation is designed to get at. This legislation is designed to ensure that the spouses share the family home and regard marriage as a partnership. It is designed to ensure that where there is a difficult marriage the spouse who has the main finance and controls the family purse strings does not deprive the dependent spouse of a just share in the family home. It is that type of spouse — more often it is the husband but occasionally it may be the wife — who will be able to use the vehicle of a company to acquire a home which will deprive the other spouse of a joint interest.

The amendment I have tabled is designed to ensure that is not the case and directly addresses that issue. It provides that reference in this Bill to an interest in the matrimonial home shall include a legal or beneficial interest in shares held in a company where the legal or beneficial interest in a property in which a married couple ordinarily reside is vested in such company. In effect, if the company controls the family home, the wife would get a joint interest in it by acquiring a joint beneficial interest in the shares of the company. It would mean that a legal vehicle which could deprive wives, in the majority of cases, of their rights under the legislation would not be available. Formation of companies in such circumstances might not arise frequently but I know, from the small amount of work I do as a practising lawyer outside this House, that few months pass when I would not have at least one instance of a family home being held by a company. There are many reasons for this, in some instances people are simply ill advised by their accountants.

Did Deputy Shatter say he had experience of such cases?

Yes, rarely do three or four months pass when I do not have at least one instance of someone who owns a matrimonial home held in the name of a company. I dealt with a number of such cases over the years which gave rise to substantial difficulties in protecting a wife's interests and the legislation has failed to address that area. I am bringing this to the Minister's attention because I do not believe he wants a spouse to be excluded in that manner. Extending rights to dependent or vulnerable people by way of legislation often leads to others evading the provisions of legislation by resorting to other areas of the law. That has been the case in respect of tax laws and Finance Acts for many years. I am certain that the vehicle of a company will be used to evade the provisions of this legislation, especially by middle and upper income families where the family home is worth in excess of £100,000. Even in happy marriages husbands will feel that acquiring the house in the name of a company is an insurance against the wife acquiring an interest in it under the legislation or in the event of the marriage running into difficulties. Some people may consult lawyers before getting married to discover what they should do to limit their liabilities in the event of the marriage getting into difficulties. Any lawyer consulted by, say, a husband considering buying a house under those circumstances would be legally obliged to tell him that if he buys the house in his name, his wife will automatically jointly own it but that if he buys it through a company she may not. If lawyers do not supply that advice and a marriage breaks down five or six years later the lawyer in question could be sued for negligence.

This is a very serious issue and I hope the Minister will accept my amendment. I am merely trying to be constructive. I deliberately tabled the amendment under section 2 to give the Minister time to consider it between now and September because a separate section using slightly different wording could be inserted to deal with this issue. Having teased out the matter this afternoon I hope the Minister will see fit to rectify it.

My amendment addresses the issue although I see one technical problem in that if a family home is purchased in the name of a company and the company has a variety of other properties and interests, it could be argued that the wife is entitled to a share in everything by getting a joint shareholding interest. If a husband attempts to purchase a home under the umbrella of a company to evade the provisions of this legislation and deprive his wife of her entitlements, it would be good enough for him if, as a result of his actions, she was given an interest in property other than what he envisaged. Equally, over the years I have dealt with cases where wealthy wives have married less than wealthy husbands and controlled the purse strings and arranged the family finances in a manner which left their husbands dependent and vulnerable when the marriages broke down. This problem is not unique to husbands, it also applies to wives. It is inevitable that any marriage entered into under such circumstances will run into difficulties. People do all sorts of strange things and we must address the inequalities which might arise under this legislation. Unless we deal with the possible use of a limited liability company as a vehicle to evade its application many people will be able to drive a coach and four through the Act. It will not operate in the way the Minister intends.

In supporting the points made by Deputy Shatter we must address the possibility that massive professional expertise and ingenuity will be applied to circumventing this legislation. When word gets out that upon marriage one's property rights will be substantially and radically altered, as this legislation seeks quite properly to do, people will view marriage in a whole new perspective. For the reasons stated by Deputy Shatter, I have no doubt that ingenious measures and legal concoctions will be devised by tax lawyers and others to circumvent the worthwhile motivation behind this legislation. We saw in the Telecom scandal recently how the corporate company law provided for a whole series of ways of circumventing tax liabilities. We should not underestimate the ability and creativity of the human mind to get around the worthwhile intentions of this legislation and I support any effort to stop or hinder any such circumvention.

The amendment tabled by Deputy O'Donnell and me, although worded differently, deals with a similar point, where somebody can buy a house in the name of a company and, as the licensee, have that house as the matrimonial home. I do not understand why licensees are excluded from section 4 of this Bill.

To which amendment is the Deputy referring?

Amendment No. 16. I understand why a joint tenancy might not apply if one owns a property for the purposes of employment or is the provost of Trinity and owns that lovely house at No. 1 Grafton Street. However, I envisage problems arising in relation to homes bought through companies. I understand the courts have interpreted the consent provisions in the Family Home Protection Act in such a way that solicitors dealing with conveyancing of the property of companies have to inquire whether the property was ever a family home and, if so, get the consent of the other spouse. The interpretation of the courts in relation to the Family Home Protection Act is such that the burden of proof applies also in many cases to companies. Many lawyers when they are selling a company property have to establish whether it is in any sense a family home. Many difficulties will arise in relation to this. I know a person who transferred all his property into his mother's name before getting married. He could trust his mother, but had doubts about his intended spouse who is an American who had been married and divorced there. He was not taking any chances. He is a very wealthy person. They are the type of measures people will take, particularly those who are well off and can afford legal advice. As Deputy Shatter said, a lawyer who would not advise that by buying a home through a company one will not be subjected to the provisions of the Matrimonial Home Protection Act may be sued for negligence. There is no shortage of lawyers who will advise clients who wish to go down the litigation road in relation to property. I am concerned that we would not deal with situations that can arise. Obviously, trustees, and those who have a house for the purpose of their work and other such bona fide parties, should be excluded, but there should not be exclusions for the purposes of circumventing this Bill. Deputy Shatter made a reasonable point and I will not force my amendment if the Minister undertakes to consider this matter before Report Stage. I have spoken to three conveyancing lawyers and they suggested that the exclusion of the licensee under the Bill was an error. They saw no reason to exclude the licensee and, perhaps, the Minister would further consider the valid points made by Deputy Shatter and me.

In relation to the interest now being passed to the other spouse, will the Minister clarify how that affects the mortgage or the mortgagee? If a mortgage is in the name of one person, does the mortgagee not have prior or a higher priority to the legal ownership of the property? What is the role of the lending institution in this regard? Are there different types of mortgages?

I agree with Deputy Shatter's amendment. I would like to put a question to the Minister which has been raised by other Deputies. If he accepted this amendment what would the position be with regard to a couple with children where the husband or wife have their own business and put up personal guarantees? If they wanted to protect the family home, and either the husband or wife and children from those personal guarantees, and the family home was in the name of the husband, wife, or a company and the company went bankrupt, can they protect themselves from creditors? The position is difficult when a business goes bankrupt through no fault of the person running it. A person might have to borrow more money to keep the business afloat but, through no fault of his or her own, it may eventually go bankrupt. No one wants a husband, wife or children put into the position where they could lose everything including the family home. In the case of a husband's business going bankrupt could the creditors seek the 50 per cent share of the home owned by the husband?

This raises a number of complex issues which only partly relate to what we are discussing. There is an opt out provision in the Bill which deals with the affects on bankrupts and arranging debtors. I do not believe any Member is concerned about cases where both spouses put their home into a company. The amendment attempts to deal with a possible evasion by one of the spouses under which they would either take the family home in the name of a company which they controlled or, if they own it, transfer it into the name of a company before the Bill is enacted.

The question of evasion through the medium of a company was considered by my Department and I during the relatively short time we had to prepare this Bill. It is a complex one and, regrettably, it cannot be met by an amendment as simply worded as Deputy Shatter's. The Deputy may know that and properly tabled an amendment to provide a vehicle so that we could discuss the matter. I am anxious as far as possible to include in the Bill whatever anti-evasion systems we can reasonably devise. Nobody should be under the impression that that is easy. It is not. I am pleased Deputy O'Donnell referred to the Telecom affair which highlights the difficulty of drafting anti-avoidance provisions where companies are concerned. It throws the whole area of company law into play. Attempts have been made during the years to deal with that in various ways, but the intrinsic difficulties remain. If one is prepared to go to any lengths to devise an anti-evasion procedure, it can be done.

A person could form company A, which could hold shares in company B, and company B may hold shares in company C which company may own the matrimonial home. There can be nominee directors and nominee shareholders. There can be an arrangement like "Freezone""Hoddle", "Chestvale" and so on. In those circumstances it becomes increasingly difficult to discover who owns what and who are the beneficial owners. The simple basic case where the husband takes the matrimonial home in his name could be contained. However, anyone who would resort to this type of conduct to deprive a wife or husband would obviously not act so transparently. They will devise a more complex method to deal with this issue without great difficulty and they will have the resources to do so.

I will consider this issue further and see what progress can be made. There are some anti-evasion provisions in the Bill. I do not think it will be possible to deal with this before September because of the approach of the holiday season. If a method can be devised I will bring it forward on Report Stage. The difficulty to which Deputy Shatter referred is a real one but, unfortunately, I do not agree that it can be dismissed as easily as he believes. It relates to the case where the company owns not only the matrimonial home but some other property. If a wife is given joint ownership in a husband's shares in that company she would become a joint owner of the appropriate share of the matrimonial home and the other property. That is another ball game with serious implications. To avail of that a spouse must own additional property to the matrimonial home.

I want this Bill to work but Members must realise that it is a complex matter which I will consider as carefully as possible between now and Report Stage. If we can devise some methods of progressing it we will do so. I was surprised to hear Deputy Shatter say he has come across instances of this practice in the past, before the introduction of this legislation and that is why I asked him for clarification in this regard. From my 40 years' experience in legal matters I cannot recall any incident of that nature but that does not mean it does not happen. I am sure that is the case in certain circles. If a spouse is prepared to resort to such conduct to deprive the other spouse of the matrimonial home it does not augur well for the marriage and is probably the genesis for a separation. If there is a separation the assets could potentially come into play.

Is the amendment being pressed?

On the basis of agreeing to consider the issue, Chairman, I will not press the amendment. However, I am concerned about one point, the Minister said they considered this issue before the Bill was published but did not address it. I am worried that the complexities of addressing it may be such that it will not be addressed. If the issue is not addressed I will table an amendment on Report Stage. This issue should be seriously addressed. I accept that people will form a multiplicity of companies, some of which are offshore, simply to purchase the family home in Ireland. However, of the small proportion of people who will go to the extreme of buying their family home through the vehicle of the company an even a smaller proportion will go to the extreme of purchasing their homes through offshore companies. We may not be able to fully address the problem but we can address three quarters or ninetenths of it.

During the years I have been concerned about how Government Departments operate because of the fragmentation of responsibilities. This point may not apply to the Minister's Department and I do not want to be unfair to anyone. For example, company law would normally fall under the aegis of the Department of Enterprise and Employment, often there is fragmented expertise within different Departments. In some Departments people may have difficulty addressing certain areas and the relevant expertise may exist in other Departments. That may not be the case in addressing this issue under the Bill but if it is, I urge the Minister and his Department in dealing with an issue that also falls under the aegis of company law to avail of the expertise in the Civil Service so that this issue can be properly addressed.

Amendment, by leave, withdrawn.
Question proposed: "That section 2, as amended, stand part of the Bill."

I refer the Minister to section 2 (2) which states:

References in this Act to a dwelling, a home, a matrimonial home, a matrimonial family home or a former matrimonial residence include references to a part of the dwelling, home, matrimonial home, matrimonial family home or former matrimonial residence, as the case may be.

The point was made that we should have a uniform definition of family homes and matrimonial homes. Although the Minister says the Family Home Protection Act has a different purpose from this Act I am unclear as to why we must have two different legal animals, one is a family home and the other is a matrimonial home. The Minister might clarify in the context of this section in definition terms what is the precise difference between a dwelling, a home, a matrimonial home, a matrimonial family home or a former matrimonial residence. A multiciplicity of terminology is used in relation to dealing with one property. Frankly, I do not understand why one definition and one name cannot be used to deal with one property. The use of more than one definition makes sense in the context of the former matrimonial residence but it seems that the former matrimonial residence may still be a family home. Perhaps the Minister might clarify the difference between the residences referred to under section 2 (2).

As I said earlier, in the context of the Family Home Protection Act, the definition and the thrust of that Bill is different. It covers situations not covered in this Bill and contains different provisions, for example, it provides a veto protection. However, this Bill is a positive one, it gives the spouse a vested interest in property ownership which is not provided under the Family Home Protection Act. On the other hand, the Family Home Protection Act covers situations not covered by this Bill. For example, where one spouse is left in a dwelling he or she might have the protection of the Family Home Protection Act but would not have the vesting covered under this Bill.

The various definitions in those references arise within the detailed context and analysis of this Bill. A matrimonial family home is a matrimonial home in which the family are residing. A matrimonial home is one which the family own and occupied at one time and this Bill vest joint ownership in both spouses. However, it is still a matrimonial home in the sense that it remains in the joint ownership of both spouses. In other words, on marriage, interest in a house which the husband owned previously is vested in both spouses. The home becomes a matrimonial home and a matrimonial family home because the couple reside in it. If the couple leave that house, rent it or leave in vacant, and move to a second house it will become their matrimonial family home, although the first residence is no longer the matrimonial family home it is still a matrimonial home. It is still jointly owned by the couple. The fact that they have left that home does not disentangle the joint vesting — it is still jointly owned. In time the Bill can apply to more than one dwelling. It is not the case that it applies to one dwelling and operates only once. There could be a continuity of that position. There could be perhaps two, three or four houses to which the Bill applied at varying times, only the house in which the couple live is the matrimonial family home, the other houses are matrimonial homes in the sense that they are vested in two names and remain in the two names. Section 2 (2) includes references to part of the dwelling, that is to ensure that the Bill applies to part of the dwelling as much as it applies to the entire dwelling. All those definitions come into play at varying stages under the terms of the Bill.

I am somewhat confused, I do not know if others are also. The Minister referred to a series of matrimonial homes. If a husband and wife move into one property and reside in it as husband and wife, move out and buy another property while retaining the first property, the first and second properties and so on will remain in joint names. There can be a series of matrimonial homes. I was a little confused when the Minister said some of these may not be family homes. The view tends to be that a home once it becomes a family home is always a family home. In that situation the first property and the second property would equally be family homes. There would be no change in that either. If an attempt was made to sell property number one and if the legal title appeared to be in the name of one spouse — even though the joint interest was triggered by this legislation — they would still require prior consent to sell it under the Family Home Protection Act. The matrimonial home, the family home and the former matrimonial residence are synonymous. I am not quite sure where the difference comes in, except that the Minister said situations can arise where family home protection cover exists but matrimonial protection cover does not exist under this Bill. He instanced the case where one spouse might have Family Home Protection Act, protection but not a vested interest. I am sorry if this is getting a little tautological but it is not clear to me why there should be this difference.

The definition of "family home" in the Family Home Protection Act states:

The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving.

The Family Home Protection Act gave the spouse a negative right in those circumstances. She could veto the sale of a house. In 1976 the Legislature deemed it desirable to allow someone who was living in a family home but who was forced out and whose protection was necessary a right to veto the sale of the house. I do not understand the reason this Government has made the decision that the spouse whose protection was necessary in 1976, with the right of veto, should be deprived of an automatic properietary interest in 1993.

At some stage a value judgment was made that the definition of the matrimonial home had to differ from the definition of the family home. It seems to me that it is only in that area that the difference arises. I am not sure what moral judgment or philosophical distinction requires that you confer on such a spouse — in most cases the wife — a right of veto but not a right to property by way of an ownership interest. If the Minister went through those definitions he would see that some of the anomalies we referred to will turn what should be a relatively straightforward area into one of huge complexity. I would urge the Minister to look at this again. I am not sure why some of these judgments have been made. There is nothing benevolent behind it. For technical legal reasons somebody has reached a conclusion that there is a need to define the "family home" differently from the "matrimonial home". We have two sets of terminology.

I recall many years ago when the Status of Children Act, 1987, came into operation everyone in the Department of Justice felt the need to have something called a non-marital and a marital child; that was a strange distinction in a Bill which was trying to provide equality between children. It took a lot of kicking around for the message to get through that we did not need to do it that way. Initially the reaction was negative. All sorts of reasons were given as to why children should be defined either as marital or non-marital, none of which was valid, and by the time it had been fully sorted out it was dropped and the Act was revamped. There is no reason we should have two different legal animals, one called a matrimonial home and one called a family home, operating under two different pieces of legislation and each applying to the same properties and arising out of the same marital relationships. It is illogical. Someone somewhere, for tortuous legal reasons, thought that was necessary. I suspect the reasons are just as tortuous as the reasons that applied to the Status of Children Act, 1987, when it was first published.

It is not my job or my intention to play games of a party political nature or to cause the Minister any more aggravation than he may get occasionally in political life, but I want to tease out these things. It is a good Bill but we could do a little better. Some of the complexities hidden within it are necessary. In asking the Minister to give the definitions and explain the differences we are again highlighting that fact. The view here is that once a property is a matrimonial home it will always be a matrimonial home and once it was a family home it will always be a family home. If that is the correct legal view the definitions should be the same and this Bill should be the Family Home Bill, 1993, or perhaps the Family Home Protection Act should become the Matrimonial Home Bill. I do not care which terminology is used but it is utterly illogical that we should have a plethora of terminology and differing definitions to deal with the same properties arising out of the same marriage relationships.

I agree with Deputy Shatter. He began by wondering if anybody else was confused following the Minister's explanation. I think, it was Peter Sutherland who said recently "if you are not confused you are not concentrating". I am very confused. Deputy O'Donnell and I said that what we needed was a Family Home Protection Bill. Essentially, we are talking about the same property arising from the same relationship. I can see why it is necessary to have consent pocedures to the sale of the property even though somebody may not have an equal interest in it because they have contracted out. If somebody contracts out for various reasons they should still have the protection of the consent procedure whereby the home cannot be sold without their consent. It would have been much better to bring the provisions of the Family Home Protection Act, 1976, into this Bill, and repeal that Act, thereby having one set of definitions and one item of legislation governing that property. Numerous unforeseen difficulties have arisen in the 15 years since the Act came into force on 7 July 1976. The Minister is aware of some of them. It is ludicrous that a wife must seek the permission of a spouse who has never lived in a property before she can sell it. Deputy O'Donnell and I have a case at present of a woman who was a local authority tenant and subsequently bought the house from the local authority because her mother left her money. Her husband was never in the house. He is in the United States. If she wishes to sell the house and buy another property she has to go to court to have the consent dispensed with. Many similar situations arise. In order to simplify the law and make clear what we are trying to do the Minister should have consolidated these two provisions. I suspect the reason we have two different definitions is that a view was taken that we should continue to have two separate pieces of legislation. We have matrimonial home, matrimonial family home, former matrimonial residence and all the other things the Minister read out. As he began to read them I got further confused. It will be a lawyer's nightmare to implement all this legislation.

I am concerned about pre-existing mortgages before this legislation takes effect. Does the mortgagee have a higher priority in terms of ownership? What is the position of the lender in relation to this legislation? It will affect property rights other than those of the spouses. In relation to easements and so on, many other interests are affected by the legislation. I would like to hear the Minister's thinking on this before we resume in September. It may not directly relate to this section but we will not get the chance to reach the sections that are relevant this evening.

I wish to raise a different question. Deputies Shatter and Harney have been making the point that they feel the same property arising from the same relationship refers to both the matrimonial home and the matrimonial family home. My understanding of what the Minister said was that the matrimonial home could be one of the many homes in which the couple lived but still retained ownership, and that the matrimonial family home is the home in which they now live. I am interested in the family home. This Bill deals with the matrimonial family home and if we are talking about previous homes which they still own surely they are more of an investment in terms of community property rather than a family home. I wonder whether those matters should arise in the context of the Bill which deals with the issue of the family home and previous homes in which they lived and still own and are part of their property, as distinct from a family home.

Deputy Wallace said that if the husband owns the house and gets married, it is vested in the two partners jointly, that the house then belongs to the husband and the wife. Nobody suggests that because the family moves on but keeps that house as an investment, the half share vested in the wife should be taken from her and given to the husband. That cannot be done as they have become joint owners of the house. There is no going back on that position as that house is now their joint property. There is no change, barring the exceptional provision, which we will come to later. Apart from a court order of disentitlement, that is their house and they own it jointly. When they move on to another house, that becomes their matrimonial family home and that process could continue indefinitely. Whatever rules of law apply to property in joint ownership will apply to that and to each subsequent house.

Much play was made about the Family Home Protection Act which covers a wider range of situations than can be covered in this Bill. It provides additional protection for a spouse. I do not think anybody wants to remove the existing protection either spouse has in a family home. This Bill is giving a new right of quite a different calibre, the vesting of a joint property right in a matrimonial home. We want to do that without removing or detracting from spouses' rights under the Family Home Protection Act. The Act does not say: "once a family home, always a family home", that is a notion used and put forward by many conveyancers. They may make their rules in connection with that, but whether that is actually the full legal position is doubtful. I suppose it could be held to be the case but it is by no means an established fact.

We all agree that the Matrimonial Home Bill will not cover all the situations under which protection is given by the Family Home Protection Act. To take it at its simplest, you could have a case where a couple have been and are separated, but one of whom remains in the family home. They must surely retain the protection of the Family Home Protection Act. The Matrimonial Home Bill will not apply to that position. Perhaps one could argue that it should. It only applies to a house in which both spouses ordinarily reside when the Bill is in force. It is intended to protect spouses living together as a family in a house. It is intended to give a vested right in that category or when one spouse, subsequent to the Act coming into operation, acquires a house that becomes their matrimonial home. These are the situations it is designed to cover. It would not be appropriate to do anything that would in any way detract from the rights of people under the Family Home Protection Act. It is a complex matter, I am sorry about that but many Bills are complex. Legislation dealing with social welfare and Finance is complex. I am satisfied that there is no easy way of doing it. When I looked at this in considerable detail when I went into the Department, I was surprised at how complex it was. I thought it did not need to be complex but when I delved into it, it became quite clear that there was no easy way of doing it. I was surprised when I discovered just how many sections were in the Bill. We have reduced it to the lowest common denominator. If anyone can suggest a way of simplifying it — as long as they do not over-simplify it — I am prepared to listen.

I would like to ask the Minister a number of questions, because I am getting more confused. This morning when we discussed the matrimonial home I made the point that in some cases there are two homes and that the couple do not ordinarily reside in either, they move between two houses for various reasons. The Minister promised to look at the definition with a view to including more than one house as the matrimonial home. In his reply to Deputy Wallace the Minister said the matrimonial home is the home the husband has when he gets married; which then becomes the home of the husband and wife and if they move to another house that too becomes their joint property. He gave the impression that if there were five houses they jointly owned the five houses. That is not the case because surely only one of the homes is the matrimonial home.

When Deputy Shatter spoke about removing the word "immediately" earlier, the Minister said that to cover situations where people were forced out of the house because of violence or whatever they would not have the protection of this Bill under which they would be entitled to joint ownership. Earlier, in saying that Deputy Shatter was taking the wrong view, the Minister said that such situations were covered but then he said that if people are separated, when this legislation comes into effect, they will not have the protection of the Matrimonial Home Bill but will have the protection of the Family Home Protection Act. If a woman left a house a year ago because she was being beaten, it is no great consolation to her to be told she can stop him from selling it, or that he must have her permission to sell it, but that she is not entitled to any share in it. That is ludicrous. She needs a share in the property so that she can buy something else or help her family. She needs that more than a vindictive power to prevent the property being sold. We need to think this out more. I believe we should have consolidated the two Bills and had one Bill dealing with ownership rights, contracting out position, consent to sale and so on. I see no point in giving a spouse the right to refuse consent but not giving a right to any share of the property. If the woman has lived for 20 years in the home and the situation has become so intolerable — perhaps her children were subjected to incest or whatever — that she is forced out, the Minister is now saying that despite all that she will not get any share in the matrimonial home following the enactment of this Bill but that she can prevent him selling it by refusing to give her consent. That is not good enough.

I have asked the Minister a number of times to clarify the position in regard to mortgages. I would like to know what it is before September.

That matter is dealt with in section 14.

If the Minister explained the thinking behind it, it would save me the bother of going down that road, unnecessarily during the summer to understand this legislation. I am totally confused as to what we are trying to do.

The reason the Bill is not called the family home Bill is that it deals with more than the family home, it deals with matrimonial homes. That is the point we are trying to tease out. Not only does it deal with the matrimonial home, it also deals with all other homes that the couple owned during their marriage. We could be talking about five homes.

That could happen over a period of time.

But they do not have to share all of them.

(Interruptions.)

It appears Members know many people who own many houses. Most of the people I am concerned about have only one family home.

(Interruptions.)

I am glad Deputy Davern is back with us. It is nice of him to join us towards the end of the evening.

I have been here for the past hour.

We were keeping an eye on the Deputy; he was not here before 3.40 p.m.

Reference has been made to the Family Home Protection Act but we are dealing with the Matrimonial Home Bill which deals with more than the family home. Is that not the point?

It must be my fault. I am not getting the message across. Let us assume when the Bill comes into force, say, 1 January 1994, one of the spouses owns the family home and a holiday home in Connemara. Deputy Harney referred to a more subtle case, where the couple own two homes, both of which could be considered to be the family home. That is a different matter, and I am going to look at it again. Under the Bill the matrimonial home, not the house in Connemara will be vested in both names. If the couple decide to sell their home in Dublin and live in Connemara, then the house in Connemara would become the family home and the Bill would come into play. Therefore if the Bill comes into operation on 1 January 1994 and the husband owns more than one house only the matrimonial home will be covered.

Once the matrimonial home is vested in both names it will belong to both of them and nothing can change this. If they decide to rent that house and live in another house clearly the first house will remain in both names.

Even if they do not ordinarily reside in it? According to the definition they have to ordinarily reside in it.

They will have to ordinarily reside in it for the Bill to come into play. When the house is vested in both names they will remain joint owners. If they acquire a second house and live in it the Bill will apply; it will become the matrimonial home.

There are two matrimonial homes?

No, the home in which they are living will be considered to be the matrimonial home; the other will no longer be considered to be their residence. This can be rented or left idle but it will remain in joint ownership.

The Minister is covering my core argument.

No. The Deputy mentioned two houses both of which could be considered to be the principal residence. Unless I can see a way later whereby both could be considered to be the principal residence the Bill will not come into play. However, it may come into play in respect of a series of houses over a period of time.

Therefore the Bill may come into play as one acquires more houses and they become the matrimonial home.

Correct, but the first house in which they lived will still belong to both of them and nobody will be able to take that away from them except under section 6.

The Minister has highlighted the illogicality of the position. I think I can follow what he is saying and the route that is being travelled, but it is being assumed that one can have a series of matrimonial homes. I agree with him to the extent that once a home has acquired the status of a matrimonial home it cannot lose that status so if one retains the property and buys another they would have a series of homes which would automatically fall under the aegis of the Bill and which would be jointly owned. If the Bill allows for this, in principle — I am not suggesting it should not — it is illogical that it does not allow for a situation where one would have an automatic joint interest in the context of the case to which Deputy Harney referred where a couple use two houses for work reasons or in the context of the case to which Deputy McManus referred, because it already envisages——

There is a distinction between the two.

——the possibility that one may have a series of homes. Let us assume that my main residence is in Dublin and I have a holiday home outside Dublin. If I decide to live permanently in my holiday home, I could rent my main residence to tenants or keep it for the occasional visit and turn my holiday home into my main residence. Therefore on the question of whether a holiday home would be jointly owned it would all depend on the number of weeks I spend in it and how I regard it.

It would depend on whether it was your sole or principal residence.

The point I am trying to make is that it could become my principal residence. I think an error is being made.

The Minister made an interesting remark in the context of what I said earlier. I do not believe the legal position is that only one property at any one time can be considered to be the family home. Logically, that should be the position. Under the Family Home Protection Act the issue was not dealt with properly. There is a strong belief within the Department of Justice and perhaps within the Minister's Department that only one property at any one time can be considered to be the family home but this is not in keeping with the definition of "family home". It seems this view is held at official level. There is not a conveyancing lawyer in the country who holds that view. If a conveyancing lawyer was to rely on that view and effect the sale of a house in which the married couple resided before moving to another without first receiving consent under the Family Home Protection Act he would find himself in serious difficulty. I suspect that some of the complexity derives from a view that one can have a series of matrimonial homes but only one family home under the provisions of the 1976 Act. The Minister should again look at that matter.

I am appalled that we have spent so much time discussing whether the definition means one or two homes. As far as I am concerned, 99.9 per cent of the people I represent in County Louth own one home only, indeed, some have none. We should pay more attention to the thrust of the Bill and not try to protect those who can afford to own two homes. If I owned two homes and disagreed with my wife I would give her one and keep the other. That would solve the problem.

This is scandalous. The Labour Party is a disgrace.

Question put and agreed to.
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