Amendment No. a26a has been discussed with amendment No. 18a.
SECTION 5.
I move amendment No. a26a:
In page 6, after line 49, to insert the following subsection:
"(2) Where a married couple have separated during the period of 3 months before the commencement of section 4 or agreed during that period to separate, the application of that section to the matrimonial home concerned shall be subject and without prejudice to the provisions of any agreement made between the spouses in connection with the separation or the agreement to separate.".
Amendment agreed to.
Section 5, as amended, agreed to.
NEW SECTION.
I move amendment No. 26a:
In page 7, before section 6, to insert the following new section:
"6.—A person who has been guilty of the murder, attempted murder or manslaughter of his or her spouse shall be precluded from retaining or acquiring any interest in the matrimonial home under the provisions of this Act.".
Under this Bill a desirable position is created whereby if one spouse owns the family home it will automatically create joint ownership, it recognises the partnership of marriage. The Succession Act 1965, to some extent, recognised that marriage is a partnership. It has been one of the peculiarities of our law that, in property terms, wives have had, on occasion, greater rights when their husbands are dead. Indeed, the same applies to the rights of husbands viz-�-vis their wives’ property.
The Succession Act, 1965 contained an exception with regard to inheritance rights designed to ensure the legislation did not create an invitation to murder. A section in that legislation excludes a spouse from inheriting property of another spouse found guilty of the murder, attempted murder or manslaughter of the other spouse. In practical terms, I do not see people murdering their husband or wife simply because they are given a joint interest in the family home. It seemed to me when I read the legislation that there should be a mechanism whereby a spouse found guilty of the murder, attempted murder or manslaughter of his or her spouse should be precluded from benefiting under this legislation.
Let us assume, for example, that a family home is in the sole name of the wife. The Bill triggers a joint beneficial interest. If the wife is subsequently murdered by her husband, the husband, as I understand the legislation, still retains his joint beneficial interest which, by virtue of killing his wife, will become his sole interest in the family home.
If the wife had made a will leaving the husband property, the Succession Act would trigger in a way that would automatically exclude the husband from benefiting from the will although he may benefit under this legislation. This amendment is designed to ensure that these very extreme circumstances — which occasionally arise — are dealt with in the same manner in which they are addressed in the Succession Act, 1965. The issue should be addressed in this legislation. I do not think it should be necessary, for example, for the wife of someone convicted of attempted murder, to have to apply to the courts under this Bill or other legislation to terminate their husband's joint beneficial interest in the family home.
If a husband or wife is convicted of attempted murder there should not be a legal assumption that the joint interest in the marital home continues and that it can only be removed by court application. The effect of this amendment would be to automatically terminate that joint interest in so far as it was triggered by this Act. If it was deemed necessary to have such a provision in the Succession Act, 1965, we should have a similar provision in this legislation. It is appropriate that I draw Members' attention to the relevant provision in the Succession Act, 1965.
One can think of other circumstances where one may want to provide for automatic preclusion of a joint interest. For example, if a husband is convicted of raping his wife or is convicted of a grievous assault on her it might be appropriate to consider the question of joint ownership.
Section 120 of the Succession Act, 1965, states that a sane person who has been convicted of the murder, attempted murder, or manslaughter of another shall be precluded from taking any share in the estate of that other except a share arising under a will made after the act constituting the offence. Presumably you would not make a will after you had been murdered or died as a result of manslaughter. You might do so after an attempted murder.
There are certain other circumstances in which someone is regarded as unworthy to succeed under the Succession Act.
The Act goes on to state that a person who has been found guilty of an offence against the deceased, the spouse or any child of the deceased, and a person to whom the deceased was in loco parentis at the time of the offence, when the offence was punishable by imprisonment for a maximum period of at least two years or by a more severe penalty, is also precluded from taking anything by way of a legal right. There are certain circumstances where the automatic triggering of this legislation should not take effect and it should not be necessary for people to resort to the courts to seek court orders. I hope the Minister gives serious consideration to this amendment.
I am glad this amendment was tabled. The reference to "conduct" in section 6 (5) (a) is vague. I agree that it should be open-ended to a certain extent because to list particular measures of behaviour or particular acts such as murder and manslaughter, means that other unacceptable behaviour which might be justifiably used to exempt the bestowing of the joint tenancy will be left out. However, on balance it would be better to have — as in sections 119 to 123 of the Succession Act, 1965 — positive exclusions for persons found guilty of murder, attempted murder or manslaughter at least. You then open up the whole arena of determining the extent of a section for bad behaviour. Would desertion, for example, be another ground for excluding the statutory joint tenancy? It is a difficult question. I am not sure whether it is better to have it open-ended so that we can leave it to the courts to decide whether it would be unjust for the joint tenancy to survive.
In terms of legislative precedent the Succession Act positively excludes those people found guilty of murder, attempted murder and manslaughter and then leaves it open-ended where the court could apply the sanction on the basis of bad behaviour. Certain behaviour can relate to the marriage breaking down. It is very difficult to make provision for each situation in the legislation.
As Deputy Shatter and Deputy O'Donnell correctly said, section 120 of the Succession Act, 1965, automatically excludes certain categories of people from succeeding in the case of an intestacy or from entitlement to a legal rights share. There is nothing to stop the person who has been the victim of the offences designated in that section from making a will leaving that property to them. If it is Deputy Shatter's intention to get uniformity between this and the Succession Act he will have to accept he is not getting it in the amendment.
I am not trying to get it in this amendment. I agree with the point made by Deputy O'Donnell. I did not go down the road of trying to list a whole series of other types of conduct to which the Succession Act refers. In that regard the Succession Act is somewhat out of date with current thinking. Amendments have been made to that aspect of it. It is very clear that if somebody is found guilty of murder, attempted murder or manslaughter, it should not be left to either the spouse who was the intended victim of an attempted murder or the child of that spouse where the spouse has in fact died at the hands of the other spouse to make an application under section 6 to exclude the person found guilty from getting an interest in the home. The point was to create a very simple and straight forward situation which accords with the Succession Act which is to the effect that if someone is found guilty of murdering or attempting to murder their spouse, they are excluded automatically from their joint interest where the joint interest would otherwise have been triggered by this Act.
In the case of homocide they will not be able to avail of their succession rights because of the general principle——
They get their rights here.
No, they will not. If a joint tenancy is created and one spouse kills the other, by murder or manslaughter, the general law on homocide would prevent the right of survivorship coming into play. I agree with the Deputy that it does not extent to attempted murder.
They would retain their half interest.
Yes.
They would retain their half interest, so what interest will be triggered by the legislation? I take the point that they may not end up owning the whole property although that is a matter of the manner of case law in relation to joint interest, as far as I am aware. It is not explicit in the legislation. At the very minimum they would retain a half interest because if its effect was to sever, what was otherwise a house jointly owned would become a tenancy in common.
By virtue of the legislation coming into force I will normally have a joint interest. If I am convicted of murdering my wife one of two things happen. Either as a result of the murder, because the house passes outside the Succession Act, I end up owning the whole house if and when I am ever released from prison or, if you take the manner in which case law has applied joint tenancies, I end up at least owning half the house. The only people that can do anything about that are my children. They can make a section 6 application to say that after my wife's death I should not be entitled to it. The personal representative can also do that.
Just as the Succession Act acknowledges that if somebody murders his spouse he should be disentitled from the statutory rights vested by the Succession Act of either a legal right or a share intestacy, equally under this legislation he should be disentitled to benefit through either retaining a half interest, because it has been severed, or by getting the entire interest. This is technical but it has been recognised for many years that we should have such provisions in Succession Acts. It would be particularly anomalous not to have it in this Bill.
As Deputy O'Donnell said, examining other conduct is not helpful. Section 6 is still in existence. In this stark instance I hope the Minister sees fit to take on board my proposed section 6. If he does we could return to it on Report Stage in so far as it may require any further consideration. We should ensure this Bill accords with what is already part of our law in the inheritance area.
As agreed, we should now adjourn until 11 a.m. tomorrow morning.
This morning we had a debate about whether we should finish at this time. I am quite happy to finish now. It is appropriate that committees should show a certain amount of flexibility. However, I have difficulty with the emerging shape of this Committee. Only a handful of Government Deputies have been here for most of the morning. Credit is due to those who stayed here for the duration.
It is not long since Deputy Broughan lectured us about the historic nature of this morning's committee session. I would hate to see the Labour Party's response if it had not been a historic session. The backbenchers on the Government side, for whom these committees were to be of benefit, have been conspicuous by their absence. I support the adjournment but it should be noted this does not augur particularly well for Dáil reform and for the life of these committees.
That is unfair. Traditionally when a Minister answers the Government backbenchers do not intervene to the same degree. I take exception to that comment. The Government members contributed to all the other sittings of this and other committees.
Government backbenchers are members of this committee. I am not asking them to contribute all the time. However, they are not even here although they are members of the Committee.
The Select Committee adjourned at 1.30 p.m. until 11 a.m. on Thursday, 9 September 1993.