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Select Committee on Social Affairs debate -
Thursday, 9 Sep 1993

Matrimonial Home Bill, 1993:

Committee Stage (Resumed).
NEW SECTION.
Debate resumed on 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.".

Before I speak on this, may I very briefly make two points relevant to the workings of this committee? This is a very difficult, technical Bill and I appreciate that the staff of the House may have got the large list of amendments we received yesterday morning rather late. Therefore, it may not have proved possible to amalgamate them into one book of amendments but in the context of future meetings it would help all Members of the committee if the amendments were printed in one book.

If we had taken Committee Stage of this Bill in the Dáil proper we would long ago have had the report of the first day of the proceedings last July. I assume everyone else has not yet received a copy of the report. I understand the committee cannot sit next week, there is no room available because other committees are coming back the following week. Will the reports of the proceedings of this committee, a formal Dáil Committee Stage, be made available to Members so that, we can keep track of what is said with regard to the different amendments proposed in the sections of the Bill? Members should also have time to reflect on what is said about different aspects of the Bill as the committee works its way through it. I appreciate, Chairman, that none of this is your fault but, in the context of these committees working promptly, given that this is an important Bill and that the Committee Stage is technical and difficult, those difficulties are made a little worse by the way in which the documentation is being dealt with. Perhaps, Chairman, you might look at that.

The points made by Deputy Shatter are important and I appreciate the reasons for them. I certainly will raise it with the people responsible and see if we can achieve improvements from which the Deputy and the whole committee would benefit.

This amendment is designed to deal with an exceptional situation that could arise under the Bill. Sadly it will arise but, I hope, very rarely. It deals with a situation addressed in the Succession Act, 1965, and which should be addressed in this Bill. The effect of this legislation, as we said yesterday, is that if the home is owned by a husband, held by him in his sole name, it will give an automatic joint interest in the home and if a home is in a wife's sole name it will give the husband an automatic joint interest in the home. To get out of the legal technicalities it will mean that each spouse has a share in the ownership of the home.

Yesterday, I mentioned a situation in which a wife owns the family home and that when this Bill comes into force, her husband will appear to acquire a joint interest. I made the point that under the relevant provision of the Succession Act, 1965, with regard to inheritance, a husband who murders his wife or is convicted of her manslaughter or attempted murder is disentitled to a share in her estate. However, as this Bill applies, if a husband murders his wife and she originally had sole ownership of the family home, even though he is convicted of murder, he may become the sole owner of the house. At the very least if his criminal act and conviction had the effect of what lawyers call severing the joint tenancy it would, in effect, give him a half interest in the house. Although guilty of the murder of his wife, he would end up having ownership rights in the house she originally owned. That also applies the other way round. A wife who murders her husband could end up with ownership rights in a house that she would not otherwise have had if this legislation had not been enacted.

I do not want to exaggerate this problem and I do not want a caricature presentation of what I am saying to result in headlines in tomorrow's newspaper saying: "Shatter says Bill an incentive to murder". I am not saying that. However, there is a problem in this area, recognised in the Succession Act, which, although irrelevant to 99.9 per cent of spouses, will sadly, arise on some occasions. In these circumstances, the Act should not apply and should not be triggered. The section I suggest should be included in the legislation states: A person who has been guilty of the murder, attempted murder or manslaughter of his or he spouse shall be precluded from retaining or acquiring any interest in the matrimonial home under the provisions of this Act. That is a simple and straightforward provision.

If a husband is convicted of the attempted murder of his wife, the wife, if she wishes to terminate the husband's interest in a home as prescribed by this legislation, should not have to bring her own separate family law proceedings for the courts to judge that he was not an appropriate person to retain such interest. She should not be put through such trauma and upset, nor should she be put to the expense of that procedure. If a wife is murdered, her surviving children should not have to bring proceedings under the original section 6 of the Act to seek a court judgment that the husband convicted of the murder should not be regarded as having an entitlement to joint ownership under the legislation.

As I said yesterday, it is a simple and straightforward amendment, designed to deal with an issue perceived necessary to be addressed under the Succession Act. It would be anomalous if we did not deal with it here and it is an amendment I hope the Minister will accept. It sets out a principle which should be included in the legislation if it is to be consistent with the existing law and provide protection for people within the community who are the victim of an attempted murder by a spouse. Perhaps the Minister will respond to what I am saying, I hope he will take this amendment on board in the same spirit in which we agreed to his amendments. As the Bill is so complex, there are aspects of it we may want to re-examine on Report Stage and I would be interested to hear the Minister.

I sympathise with the intent and thrust of the amendment. However, this is not a situation where the Act should not be triggered; it involves untriggering the Act when it has already come into effect. Quite clearly, the provisions of section 6 are that a person who has committed murder, attempted murder, or manslaughter would be disentitled from securing or retaining the benefit vested in that spouse under the provisions of section 4. However, I am cautious about delimiting the very serious offences of murder, attempted murder and manslaughter and specifying them to the exclusion of other very serious offences that could be committed against a spouse, apart from murder or manslaughter.

There could be a danger that if one inserts specific measures like those in a Bill, thereby excluding other criminal acts, a court may be inclined to say that if the Legislature had intended to include other serious offences against a spouse, they would have been mentioned. For that reason I have some concern about accepting the amendment.

The procedure for disentitlement in section 6 is straightforward, summary and simple. It leaves it open to the courts to consider all applications on their merits even though they may concern a lesser offence than murder and manslaughter. There is the danger that it is not practical to select those three very serious crimes and categorise them alone as the basis for an automatic disentitlement.

The probability is that, one way or another, the registrars of titles and so on will require a court order for rectification of the register. The matter will require a court order and the simple summary procedure provided for in section 6 is designed to meet the needs of those situations. Clearly, it would be a very quick, simple procedure in cases of murder and manslaughter and, of course, there might be other offences where the same situation would prevail. There is no doubt it would have the effect Deputy Shatter's amendment seeks. The difference is it would require the summary court application provided for in section 6. That is reasonable and will have the advantage of clarifying the matter by a straightforward court order which would then be handed to the registrar of titles so that the register would be rectified.

I was disappointed in the Minister's reaction to this because I thought he might have given deeper consideration to what is proposed here. It is nonsensical for the Minister to say that if we name specific circumstances in which someone is automatically excluded from or loses the benefits of this legislation it could pose dangers in the context of court decisions on other serious circumstances which would merit such a result.

I propose a new section which would automatically set out three very simple situations resulting in a spouse losing his or her rights under this legislation. One could only lose one's rights if a court decision was made that one was guilty of murder, attempted murder or manslaughter in a criminal trial. If one was found guilty of such an offence the court order in the criminal trial could be made available to the registrar to correct the register. The Minister said that if we name three serious areas in which someone loses their rights it may mean that the court will not look at other cases. That is not the position because the existing section 6 will remain in the Bill and that confers a broad discretion on the courts to determine that in specific serious circumstances the court may exclude application of the legislation.

Therefore there are two sets of circumstances which are not unusual in legislation: one is an absolute rule that if somebody is guilty of the murder or attempted murder of their spouse they cannot claim entitlement to an interest in the family home, the home the murdered spouse owned and in which he or she lived. The second situation arises where someone has behaved in other ways towards their spouse that gives rise to queries as to whether they should benefit from the Act. It is open to the personal representatives of that spouse, to a child — or to the spouse — to bring a family law application to the courts and for the courts to look at the background and exercise discretion.

There are many circumstances in which proceedings will be brought under section 6. The Minister should not be under any illusion that they will all be very straightforward and simple. There will be circumstances in which a spouse may wish to apply to the court, on the basis that the other spouse or marital partner should not benefit from the Act, in which they may make allegations about the manner in which their marital partner has behaved although the marital partner may disagree with those allegations. In effect there could be a family law contested hearing on that issue. It will not all be summary and simple. If it was, it would be unconstitutional to deprive people of rights without a proper hearing. It will not work that way.

There are three blatant situations in which a husband or a wife is convicted of the murder, manslaughter or attempted murder of a spouse where it should be quite clear that the Act should be excluded from the application to a family property. That is done in the Succession Act. It is anomalous that it is not done here. Further court applications, for example, after a trial for attempted murder, should be unnecessary. I do not see the logic of it.

The Minister's reply is untypical in the context of the way he dealt with this Bill so far. It is the sort of reply I received for years in regard to legislation to which I tabled amendments. I would describe it, without being derogatory to any individual, as Civil Service jargon. It is the sort of thing that has been lobbed up in relation to Opposition amendments from time immemorial based on someone trying to think of a reason for not accepting an amendment. I would have expected a more considered response to this proposal.

This is a reasonable provision. It does no damage and does not put section 6 in jeopardy. All sorts of situations may arise under section 6. The wife may allege that becasuse her husband at some stage assaulted her, the section should be excluded or a husband may allege that because a wife has behaved in ways towards him that were inappropriate she should be excluded from benefiting. However, it is disingenuous to suggest that having a strict rule that if one is convicted of the attempted murder of one's spouse one does not benefit from this Act will not affect the way the courts operate the original section 6 of the Bill. It is an extremely weak argument for opposing this amendment when all it seeks to do is to ensure that our laws in this area correspond in the context of family and property law generally with laws that already exist in the inheritance area.

I am concerned about the inclusion of murder, attempted murder or manslaughter. I have in mind two cases where wives were convicted of manslaughter — in my opinion justifiably in the circumstances — which would exclude them from inheriting the home if that is to be included. Equally, if a husband was charged with dangerous driving and manslaughter of his wife, then he would be excluded automatically. There are circumstances in which the courts should decide whether the action was deliberate or non-deliberate and whether it is justifiable or unjustifiable. I would prefer the courts to decide in those circumstances because we cannot legislate for situations where, for example, a wife is being constantly beaten, who fears that her life is in danger and reacts in a manner which amounts to attempted murder or manslaughter. It would be wrong to exclude in that case because she or he would be the only person surviving to look after the family in the family home.

I support Deputy Shatter's amendment. Whereas I agree that the reference to conduct in section 7 (5) is vague it is necessary to have it open-ended. I agree with Deputy Shatter that this is a separate section he is putting forward. It would be reasonable to exclude murder and manslaughter as in the Succession Act.

The other sort of open-ended notion of conduct which would justify exclusion or losing out on joint tenancy is reasonable but it would have to be left to the court because one can imagine all sorts of bad and improper conduct, some quite normal and usual in a bad marriage which would be used by both sides, perhaps unjustly, to qualify for this exemption. For example, if you started listing them you would have to put in things like adultary and desertion. Would these be grounds for exempting the benefit of the joint tenancy? I urge the Minister to reconsider including murder and manslaughter as justifiable reasons for exclusion.

I agree with the point made by my colleague, Deputy Davern. It should be left to the courts because, as has been pointed out, there are circumstances in which people are provoked. Very often when there is a conviction, particularly for manslaughter, in this country and indeed abroad, there is a campaign on behalf of the person convicted because of these circumstances.

Attempted murder should be included. While obviously a person should be charged and convicted if found guilty it might not be reasonable to take the family home from them. It should be left to the courts who could look at all the circumstances to see what is in the best interest of the children and indeed of the particular spouse. I cannot see that putting in three specific areas where there would be an exclusion order would be beneficial because in some way it is identifying three particular areas and it could be argued that the Oireachtas wanted to exclude all other eventualities. The court is in the best position to judge where an exclusion order should be made.

This debate is interesting. Apparently there is a philosophy running through the Government parties that it is acceptable to murder one's wife or at least attempt to murder one's wife, or perhaps it is even acceptable for wives to attempt to murder their husbands. That is the nub of these arguments. Let us be very blunt about this. If Deputies Davern and O'Hanlon have difficulty with this amendment, I find it astonishing that during their ministerial days they did not try to do anything about section 120 of the Succession Act, 1965. That section states:

A sane person who has been guilty of the murder, attempted murder or manslaughter of another shall be precluded from taking any share in the estate of that other, except the share arising under a will made after the act constituting the offence.

The legal position has been that if I am convicted of the manslaughter of my wife, and if my wife has not made a will when I kill her, I cannot claim my inheritance rights under the Succession Act. If a wife is convicted of the manslaughter of her husband and it is discovered that he has not made a will, she cannot make a claim. If he has made a will and left her nothing, she cannot make a claim. What Deputy Davern and Deputy O'Hanlon are now arguing for is that we should change the inheritance legislation and allow murderous spouses to inherit property from the people they have killed, or perhaps people they have attempted to kill.

Deputy Davern had a lot to say in the media some weeks ago about family values in relation to legislation that he appeared to oppose and which was dealt with in the Dáil when he went on holidays. It is a very odd family value to argue that people who attempt to murder their spouses should be allowed to have statutory rights to the property owned by the spouse they attempt to murder. That is a very radical change in our approach to family life as has been set down for many years in legislation. If that is what they are arguing for they are entitled to that view but I disagree with it profoundly.

It is my view that, in the context of the example Deputy Davern gave, if a wife is the victim of assault and is so provoked by her husband that an incident takes place which results in his death, and if it is established in proper evidence in court that the provocation was such that her response was compatible with what she was suffering, she will not be convicted of manslaughter. I am not one of the people who go along with the argument that if a marriage is difficult and if there is violence in the marriage that justifies either the husband or the wife taking the life of the other. There is a panoply of protections in existence that can be used in those circumstances. If we in this House are to give an imprimatur to husbands and wives murdering each other when there are family difficulties we are heading down a very odd and slippery slope.

I did not see this as a particularly controversial amendment. I can only suggest to Deputy O'Hanlon, who was a Minister for many years and who has a great experience of legislation, that to set out three particular circumstances which exclude the application of the Act and would prevent a court exercising a discretionary power to exclude its application in other situations is complete nonsense. The Minister has used that argument and Deputy O'Hanlon is now using it. If that was the case there would be large chunks of legislation that have been passed by Deputy O'Hanlon himself and his colleagues in Government which would not be applicable. It is a nonsensical argument.

All I am seeking to do is to ensure that this legislation was in line with existing legislation. I assumed that this would be a helpful amendment and that Members of this House would be of the view that if somebody murders their spouse they should not benefit from the Act. I presumed this was a commonsense, straight forward view. It is my view that if someone attempts to murder their spouse, the spouse they attempt to murder should not be forced to go to court to disentitle the murderous spouse from an interest in the home. If the criminal courts have convicted them of attempted murder that should be the end of it.

When we are dealing with legislation of this nature we are trying to deal not just with the situation as it would pertain to 99 per cent of people but also to the peculiar and tragic situations that might affect another 1 per cent of people which could give rise to a huge injustice or add to their difficulties in life. It is to deal with those situations that often we have to rush emergency legislation through this House because they have not been adequately addressed in the past.

Here we have a precedent, namely legisation introduced by Deputies Charles Haughey and Brian Lenihan when in Government. The Succession Act, 1965 lays out a clear rule in relation to inheritance of property and we are saying that should be different in relation to the family home. It is a rule I happen to agree with. It is upholding a certain standpoint in life. I suppose, without putting a tooth in it and exaggerating it, it is a pro-life provision.

In fairness to the Minister, Deputy Taylor, his argument was not as extreme as that coming from Deputy Davern or Deputy O'Hanlon whose arguments I find quite extraordinary. This amendment should be included in the Bill. If the Minister wants more time to consider, I will not press it today. We agree with the principles of this legislation. It is technical and difficult legislation and I am anxious not to waste the time of the House unnecessarily, while ensuring that technical difficulties and exceptional problems that could arise for a minority of people are addressed. So far we have played a role in doing that. If the Minister wants to give further consideration to this, I am happy to withdraw it and come back to it on Report Stage, but if he is not prepared to do that I will put it to a vote.

I am sorry that Deputy Shatter has to resort to sarcasm on this issue. I was speaking from a non-legal viewpoint but from the experience of constituents of mine, two ladies who were both convicted of the manslaughter of their husbands. The matrimonial home was involved. While Deputy Shatter mentions the fact that there is a bevy of protections for people who are in this situation, there is no protection when they are alone in the home and they may find themselves justifiably needing to react in a violent manner to save their own lives or that of their children. They should not be excluded from the family home.

If you are saving your own life you are not convicted of manslaughter.

I am sorry, I did not interrupt the Deputy. In one case the lady was convicted and sentenced to three years in prison. There was no proof of violence beforehand but there was a threat to her and her family which she reacted to. To say that she would lose the family home over that is wrong. I also want to mention the charge of manslaughter for somebody driving on the road who kills her husband or wife in those circumstances. That would automatically exclude them from the Family Protection Act. It may have been through drunken or dangerous driving. I did not mention murder; I mentioned manslaughter. It would be wrong to exclude somebody rather than leave discretion to the court to decide in the circumstances in each case.

I resent the remarks of Deputy Shatter. It is time in this House that we grew up and realised that people are entitled to disagree with other Members. If one does not agree with Deputy Shatter it seems one is nonsensical or supporting murder and manslaughter. It is sheer arrogance on the part of a Deputy to come in here with that view. Perhaps when we are talking about legislation we should use old fashioned commonsense which may help the people we are legislating for.

Deputy Shatter makes great play out of the 1965 Act. This is 1993. He referred to circumstances where a person may have been killed by a spouse and claimed that if there was provocation the court could decide they were not guilty. It could be that the court would decide they were guilty and also that they should be left in possession of the matrimonial home. We should not take that right from the court, which is in the best position to judge. The court makes the judgment in a case where somebody has been killed by their spouse as to whether the spouse is guilty of murder or manslaughter. It should be given the sole right in this instance.

In so far as the principle exists, if a spouse commits a serious crime against the other spouse the position is that the operation of section 4 would be disallowed following a court order. I have no objection to looking at some possibility on Report Stage, without giving any commitment to do anything about it. However, I will make a few points in this regard.

The range of the offence of manslaughter is extremely wide. The most serious manslaughter, which is little short of murder, carries a heavy penalty, but manslaughter can also carry a slight penalty. Penalties a court is empowered to impose for manslaughter range from the Probation Act to imprisonment for life. This indicates the range of seriousness of the offence. There have been occasions when the Probation Act has been applied for manslaughter, indicating a need for discretion by the court.

I would point out that even in terms of the Succession Act, in the case of attempted murder provision is made for the spouse to forgive and forget and that is clearly provided for in this Act. There could be a complete reconciliation even after the case of attempted murder and the spouse may not wish an automatic disentitlement to come into play. In any serious case a court on application will disentitle the spouse.

I will give some consideration on Report Stage as to whether we should categories the cases mentioned in Deputy Shatter's amendment or any such case. On that basis, I would be grateful if we did not spend any more time on this amendment.

If the Minister is willing to have another look at this amendment I will not press it. However, I hope he will look at it seriously and not dismiss it. Could the Minister clarify that position?

I will have a look at it between now and Report Stage.

Amendment, by leave, withdrawn.
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